National Agricultural Statistics Service
International Trade Administration
National Oceanic and Atmospheric Administration
Navy Department
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Health Resources and Services Administration
National Institutes of Health
Coast Guard
Land Management Bureau
Comptroller of the Currency
Foreign Assets Control Office
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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Office of the Comptroller of the Currency, Treasury.
Notification of Monetary Penalties 2023.
This document announces changes to the Office of the Comptroller of the Currency's (OCC) maximum civil money penalties as adjusted for inflation. The inflation adjustments are required to implement the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.
The adjusted maximum amount of civil money penalties in this document are applicable to penalties assessed on or after January 4, 2023 for conduct occurring on or after November 2, 2015.
Lee Walzer, Counsel, Chief Counsel's Office, (202) 649-5490, Office of the Comptroller of the Currency.
This document announces changes to the maximum amount of each civil money penalty (CMP) within the OCC's jurisdiction to administer to account for inflation pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 (the 1990 Adjustment Act),
To the extent an agency codified a CMP amount in its regulations, the agency would need to update that amount by regulation. However, if an agency codified a formula for making the CMP adjustments, then subsequent adjustments can be made solely by notice.
On December 15, 2022, the OMB issued guidance to affected agencies on implementing the required annual adjustment, which included the relevant inflation multiplier.
The following charts provide the inflation-adjusted CMPs for use beginning on January 4, 2023, pursuant to 12 CFR 19.240(b) and 109.103(c)(2) for conduct occurring on or after November 2, 2015:
Coast Guard, DHS.
Notification of enforcement of regulation.
On January 28, 2023, the Coast Guard will enforce a special local regulation for the Gasparilla Invasion and Parade to provide for the safety of life on navigable waterways during this event. Our regulation for recurring marine events within Sector St. Petersburg identifies the regulated area for this event in Tampa, FL. During the enforcement periods, the operator of any vessel in the regulated area must comply with directions from the Patrol Commander or any designated representative.
The regulations in 33 CFR 100.703, Table 1 to § 100.703, Line No. 1, will be enforced from 11:30 a.m. through 2:00 p.m., on January 28, 2023.
If you have questions about this notice of enforcement, call or email Marine Science Technician First Class Ryan Shaak, Sector St. Petersburg Prevention Department, Coast Guard; telephone (813) 228-2191, email:
The Coast Guard will enforce the special local regulation in 33 CFR 100.703, Table 1 to § 100.703, Line No. 1, for the Gasparilla Invasion and Parade on January 28, 2023 from 11:30 a.m. until 2:00 p.m. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation for recurring marine events, Sector St. Petersburg, § 100.703, Table 1 to § 100.703, Line No. 1, specifies the location of the regulated area for the Gasparilla Invasion and Parade which encompasses portions of Hillsborough Bay, Seddon Channel, Sparkman Channel and Hillsborough River near Tampa, FL. During the enforcement periods, as reflected in § 100.703(c), if you are the operator of a vessel in the regulated area you must comply with directions from the Patrol Commander or any designated representative.
In addition to this notice of enforcement in the
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to disapprove revisions to the Missouri State Implementation Plan (SIP)
The final rule is effective on February 3, 2023.
The EPA has established a docket for this action under Docket ID No. EPA-R07-OAR-2022-0531. All documents in the docket are listed on the
Wendy Vit, Environmental Protection Agency, Region 7 Office, Air Quality Planning Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219; telephone number: (913) 551-7697; email address:
Throughout this document “we,” “us,” and “our” refer to the EPA.
The EPA is disapproving a submission from Missouri requesting to revise the SIP by removing 10 Code of State Regulations (CSR) 10-6.260 “Restriction of Emission of Sulfur Compounds” and replacing it with a new state regulation, 10 CSR 10-6.261 “Control of Sulfur Dioxide Emissions” (effective date March 30, 2019). Missouri submitted its request on March 7, 2019. 10 CSR 10-6.260 was originally approved into the SIP at 40 CFR 52.1320(c) in 1998 (63 FR 45727, August 27, 1998) and has been revised several times.
In order for the EPA to fully approve a SIP revision, the state must demonstrate that the SIP revision meets the requirements of CAA section 110(l), 42 U.S.C. 7410(l). Under CAA section 110(l), the EPA may not approve a SIP revision that would interfere with any applicable requirement concerning NAAQS attainment and RFP, or any other applicable requirement of the CAA. The EPA interprets section 110(l) such that states have two main options to make this noninterference demonstration. First, a state could demonstrate that emission reductions removed from the SIP are substituted with new control measures that achieve equivalent or greater emission reductions/air quality benefit. Thus, the SIP revision would not interfere with the area's ability to continue to attain or maintain the affected NAAQS or other CAA requirements. The EPA further interprets section 110(l) as requiring such substitute measures to be quantifiable, permanent, surplus, and enforceable.
Missouri's proposed SIP revisions would remove SO
We disagree with Missouri's analysis and rationale for removing the Hawthorn and Labadie SO
For Labadie, the substitute SO
As explained above, because the EPA's approval of Missouri's requested SIP revisions would not be consistent with CAA section 110(l), we are disapproving the submission. However, the state submission met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The state provided public notice of the revisions from August 1, 2018, to October 4, 2018, and held a public hearing on September 27, 2018. The state received and addressed four comments from three entities, which included the EPA. The state did not make changes to 10 CSR 10-6.261 as a result of comments received prior to submitting to the EPA.
The public comment period on the EPA's proposed rule opened July 8, 2022, the date of its publication in the
The EPA's role is to review the SIP or SIP revision. The EPA “shall” approve the SIP or SIP revision if it meets the minimum requirements of the CAA.
CAA section 110(l), 42 U.S.C. 7410(l), provides in relevant part, that “[t]he Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment.” The EPA has consistently interpreted CAA section 110(l) as permitting approval of a SIP revision as long as “emissions in the air are not increased,” thereby preserving “status quo air quality.”
The EPA implements this interpretation of CAA section 110(l) by approving SIP revisions if they do not allow an increase of net emissions. In doing so, “the level of rigor needed for any CAA [section 110(l)] demonstration will vary depending on the nature and circumstances of the revision.”
As described in the proposal, the substitute SO
After carefully reviewing our previous actions pertaining to 10 CSR 10-6.260, we have discovered that monitoring, record keeping, and reporting provisions associated with the Hawthorn SO
Hawthorn is located approximately two kilometers outside of the Jackson County nonattainment area boundary. In Missouri's modeling demonstration supporting the redesignation, the state included Hawthorn as a “nearby source” in accordance with Table 8-1 in
As described previously, where the EPA anticipates that a SIP revision may allow an increase in emissions, the EPA typically requires that a state either substitute equivalent or greater emissions reductions or submit an air quality analysis demonstrating that the revision would not interfere with any applicable requirement. In this case, to compare the stringencies of the two different SO
An air quality analysis for the requested SIP revisions may need to take into account multiple operating scenarios because dispersion of SO
The EPA is disapproving a SIP submission from Missouri that would rescind 10 CSR 10-6.260 “Restriction of Emission of Sulfur Compounds” and replace it with 10 CSR 10-6.261 “Control of Sulfur Dioxide Emissions.” By disapproving these revisions, 10 CSR 10-6.260 will be retained in the SIP, along with the already SIP-approved Consent Agreement. The EPA has determined that Missouri's proposed SIP revisions do not meet the requirements of the Clean Air Act because the revisions would remove permanent and enforceable emission limits, thereby relaxing the stringency of the SIP. Furthermore, Missouri has not shown that the proposed SIP revision related to removal of the Labadie 4.8 lb/MMBtu limit would not have an adverse impact on air quality.
Under section 179(a) of the CAA, final disapproval of a submittal that addresses a requirement of part D, title I of the CAA (CAA sections 171-193) or is required in response to a finding of substantial inadequacy as described in CAA section 110(k)(5) (SIP Call) starts a sanctions clock. The Missouri SIP submission being disapproved was not submitted to meet either of these requirements. Therefore, this disapproval will not trigger mandatory sanctions under CAA section 179. In addition, CAA section 110(c)(1) provides that EPA must promulgate a Federal Implementation Plan (FIP) within two years after either finding that a State has failed to make a required submission or disapproving a SIP submission in whole or in part, unless EPA approves a SIP revision correcting the deficiencies within that two-year period. With respect to the disapproval of Missouri's SIP submission, in our proposed action we concluded that any FIP obligation resulting from this disapproval would be satisfied by finalization of our proposed determination that there is no deficiency in the SIP to correct.
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget for review.
This action does not impose an information collection burden under the PRA because it does not contain any information collection activities.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action merely disapproves a SIP submission as not meeting the CAA.
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. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.
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
This action does not have tribal implications as specified in Executive Order 13175. This action does not apply on any Indian reservation land, any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, or non-reservation areas of Indian country. 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 merely disapproves a SIP submission as not meeting the CAA.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. This action merely disapproves a SIP submission as not meeting the CAA.
This action is subject to the Congressional Review Act, 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 6, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur oxides.
Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS).
Final rule with comment period and final rule; correction.
This document corrects technical errors in the final rule with comment period and final rule that appeared in the
This correction is effective January 1, 2023.
Elise Barringer via email,
Kianna Banks via email,
Nicole Hilton via email,
Terri Postma via email,
In the final rule with comment period and final rule that appeared in the November 23, 2022
On pages 72147 and 72148, in the discussion of “Comments on Additional Measurement Topics and for Suggested Measures for REH Quality Reporting,” we are correcting typographical and technical errors in the footnotes.
On page 72206, in the discussion of the addition of the definition of “primary roads” to the CAH requirements at § 485.610(c), we inadverdently omitted discussion of the cross-reference making a conforming change to the requirements at § 485.610(e)(2), “
On page 72224, we incorrectly stated the number of timely pieces of correspondence that were submitted in response to the Competition RFI questions. We are correcting the number of timely pieces of correspondence from “21” to “22”.
1. On page 72306, in the REH regulations at § 485.542 (e), (e)(2), and (e)(3), we inadvertently used the term “CAH” when we intended to use the term “REH.”
2. On page 72307, we intended to amend § 485.610(e)(2) to incorporate the phrase “on primary roads” into the language and to incorporate and cross-reference the change made to “primary roads” finalized at § 485.610(c). This section requires that the off-campus provider-based location or off-campus distinct part unit of the CAH be located more than a 35-mile drive on primary roads (or, in the case of mountainous terrain or in areas with only secondary roads available, a 15-mile drive) from a hospital or another CAH. For the purpose of determining the driving distance of an off-campus provider-based location or off-campus distinct part unit of a CAH relative to other facilities, “primary roads” are defined as a numbered federal highway, including interstates, intrastates, expressways or any other numbered federal highway with 2 or more lanes each way; or a numbered State highway with 2 or more lanes each way. This technical change to § 485.610(e)(2), along with the changes made to § 485.610(c), provides clarity and consistency regarding the distance requirements. Therefore, we are correcting § 485.610(e)(2) to cross-reference the change made at § 485.610(c).
3. On page 72307, we inadvertently labeled amendatory instruction number “45” amendatory instruction “3”. Therefore, we are correcting the instruction number to read “45”. In addition, instructions “45 through 52” beginning on page 72307 and ending on page 72309 are corrected to read “46 through 53”.
Under 5 U.S.C. 553(b) of the Administrative Procedure Act (APA), the agency is required to publish a notice of proposed rulemaking in the
We believe that this correcting document does not constitute a rulemaking that would be subject to these requirements. This correcting document corrects technical and typographic errors in the preamble, addenda, payment rates, tables, and appendices included or referenced in the CY 2023 OPPS/ASC final rule but does not make substantive changes to the policies or payment methodologies that were adopted in the final rule. As a result, the corrections made through this correcting document are intended to ensure that the information in the CY 2023 OPPS/ASC final rule and the REH Conditions of Participation (CoP) and Critical Access Hospital (CAH) CoP Updates final rule accurately reflect the policies adopted in those rules.
In addition, even if this were a rulemaking to which the notice and comment procedures and delayed effective date requirements applied, we find that there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the corrections in this document into the final rule or delaying the effective date would be contrary to the public interest because it is in the public's interest for providers to receive appropriate payments in as timely a manner as possible, and to ensure that the CY 2023 OPPS/ASC final rule and the Critical Access Hospital (CAH) CoP Updates final rule accurately reflect our policies as of the date they take effect and are applicable.
Furthermore, such procedures would be unnecessary, as we are not altering our payment methodologies or policies, but rather, we are simply correctly implementing the policies that we previously proposed, received comment on, and subsequently finalized. This correcting document is intended solely to ensure that the CY 2023 OPPS/ASC final rule and the Critical Access Hospital (CAH) CoP Updates final rule accurately reflect these payment methodologies and policies. For these reasons, we believe we have good cause
In FR Doc. 2022-23918 of November 23, 2022 (87 FR 71748), make the following corrections:
1. On page 72147, third column, footnote 274 is corrected to read: “In Brief, Rural Behavioral Health, Telehealth Challenges and Opportunities, SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES ADMINISTRATION, (Nov 2016).
2. On page 72148, first column, footnote 277 is corrected to read: “Centers for Medicare and Medicaid Services Measures Inventory Tool: Emergency Department Utilization (EDU).
3. On page 72148, first column, footnote 279 is corrected to read: “All-Cause Emergency Department (ED) Utilization for Medicaid Beneficiaries Public Comment Framing Document.
4. On page 72148, third column, footnote 283 is corrected to read:
“Gabayan, G, et al. (January 17, 2013) Factors Associated With Short-Term Bounce-Back Admissions After Emergency Department Discharge. Annals of Emergency Medicine, 62(2): 136-144.
5. On page 72206, under the section titled “b. Changes for Critical Access Hospital Conditions of Participation (Part 485, Subpart F)”—
a. First column, the title “(1) Conditions of Participation: Status and Location (§ 485.610(c)” is corrected to read: “(1) Condition of Participation: Status and Location (§ 485.610(c) and 485.610(e)(2))”.
b. Second column, first partial paragraph, lines 7 through 13, the sentence “The current regulatory requirement at § 485.610(c) sets forth the distance requirements for CAHs relative to other CAHs and hospitals, and specific definitions as related to the distance requirements are found in the SOM, Chapter 2, Section 2256A,” is corrected to read, “The current regulatory requirement at § 485.610(c) sets forth the distance requirements for CAHs relative to other CAHs and hospitals. Additionally, the regulatory requirement at § 485.610(e)(2) sets forth the distance requirements for off-campus provider-based locations of the CAH. Specific definitions as related to the distance requirements are found in the SOM, Chapter 2, Section 2256A.”
6. On page 72224, third column, in the section titled “Request for Information on Use of CMS Data to Drive Competition in Healthcare Marketplaces”, line 6, correct the number “21” to read “22”.
“45. Section 485.610 is amended by:
The revision reads as follows:”
Surface Transportation Board.
Final rule; termination of proceeding.
The Surface Transportation Board (STB or Board) is adopting a final rule in Docket No. EP 755 to establish a new procedure for challenging the reasonableness of railroad rates in smaller cases. Under this rate review procedure, the Board will decide a case by selecting either the complainant's or the defendant's final offer, subject to an expedited procedural schedule that adheres to firm deadlines. The Board is also terminating its proceeding in Docket No. EP 665 (Sub-No. 2).
The final rule is effective March 6, 2023. The termination of proceeding is effective on January 3, 2023.
Amy Ziehm at (202) 245-0391. Assistance for the hearing impaired is available through the Federal Relay Service at (800) 877-8339.
In January 2018, the Board established its Rate Reform Task Force (RRTF), with the objectives of developing recommendations to reform and streamline the Board's rate review processes for large cases and determining how to best provide a rate review process for smaller cases. After holding informal meetings throughout 2018, the RRTF issued a report on April 25, 2019 (
In a notice of proposed rulemaking issued on September 12, 2019, the Board proposed to build on the RRTF recommendation and establish a new rate case procedure for smaller cases, the Final Offer Rate Review (FORR) procedure.
The Board received numerous comments on the
On November 15, 2021, the Board issued a supplemental notice of proposed rulemaking, which made minor changes to the proposal in the
After considering the comments filed in response to the
To the extent the discussion below does not revisit issues raised in comments on the
In the ICC Termination Act of 1995 (ICCTA), Congress directed the Board to “establish a simplified and expedited method for determining the reasonableness of challenged rail rates in those cases in which a full stand-alone cost [(SAC)] presentation is too costly, given the value of the case.” Public Law 104-88, 109 Stat. 803, 810. In the Surface Transportation Board Reauthorization Act of 2015 (STB Reauthorization Act), Public Law 114-110, 129 Stat. 2228, Congress revised the text of this requirement so that it currently reads: “[t]he Board shall maintain
In 1996, the Board adopted a simplified methodology, known as Three-Benchmark, which determines the reasonableness of a challenged rate using three benchmark figures.
The Board has recognized that, for smaller disputes, the litigation costs required to bring a case under the Board's existing rate reasonableness methodologies can quickly exceed the value of the case.
In public comments, shippers and other interested parties have repeatedly stated that the Board's current options for challenging the reasonableness of rates do not meet their need for expeditious resolution of disputes at a reasonable cost.
Accordingly, the Board has continued to explore ideas to improve the accessibility of rate relief. For example, in
The Board already uses a final offer procedure as part of the Three-Benchmark methodology, although it is only one part of the rate reasonableness approach as opposed to providing the overall framework, as the Board is adopting here.
Although the Board may not require arbitration of rate disputes under current law,
Similarly, AAR itself provides its members a final offer procedure for car hire arbitration.
Finally in this regard, the Committee for a Study of Freight Rail Transportation and Regulation of the Transportation Research Board (TRB Committee) described the benefits of adopting “an independent arbitration process similar to the one long used for resolving rate disputes in Canada.” Nat'l Acads. of Sciences, Eng'g, & Med.,
The RRTF agreed that a final offer process—with the decision being made by the Board rather than an arbitrator—could be an effective way to implement procedural limitations, which would improve access to rate relief.
Taking into account these recommendations, the Board's
Parties would simultaneously submit their market dominance presentations, final offers, analyses addressing the reasonableness of the challenged rate and support for the rate in the party's offer, and explanations of the methodologies used and how they comply with the decisional criteria set forth in the
The complainant would bear the burden of proof to demonstrate that (i) the defendant carrier has market dominance over the transportation to which the rate applies, and (ii) the challenged rate is unreasonable.
The Board proposed a relief cap of $4 million, indexed annually using the Producer Price Index, consistent with the potential relief afforded under the Three-Benchmark methodology.
The Board also sought additional comments on Docket No. EP 665 (Sub-No. 2), including whether to close that docket.
In the
Also, on November 25, 2020, the Board instituted a rulemaking proceeding to consider a proposal by Canadian National Railway Company, CSX Transportation, Inc., The Kansas City Southern Railway Company, Norfolk Southern Railway Company, and UP to establish a new, voluntary arbitration program for small rate disputes.
After considering the filed comments and information received in meetings with stakeholders, the Board will adopt the rule proposed in the
The purpose of this rule is to satisfy the statutory requirement that, if the Board determines that a rail carrier has market dominance over the transportation to which a particular rate applies, the rate established by such carrier for such transportation must be reasonable.
AAR continues to question the need for a new procedure to resolve small rate disputes. (
AAR argues that the Board should not “accept at face value unsupported claims from shippers that they have meritorious rate claims they have chosen not to bring.” (AAR SNPRM Comment 17-18.) Therefore, according to AAR, the only relevant evidence is the absence of small rate cases, which “could be evidence that tariff-based rates are generally reasonable.” (
As it did in its comments on the
Contrary to AAR's argument, the problem addressed by this rule is illustrated by the lack of small rate cases
Accordingly, the Board finds that FORR will further the RTP goal of maintaining reasonable rates where there is an absence of effective competition,
AAR renews certain of its arguments that the Board lacks statutory authority to adopt a final offer procedure under which, having found the challenged rate unreasonable, the Board must select one of the parties' offers to be the maximum rate going forward. The Board disagrees with AAR for the reasons stated in the
The offer stage of FORR represents an exercise of the Board's remedial rate prescription authority: “When the Board, after a full hearing, decides that a rate” violates the statute, “the Board may prescribe the maximum rate . . . to be followed.” § 10704(a)(1).
AAR asserts that a final offer procedure exceeds the scope of this clause, but that argument lacks merit. (
Implicit in AAR's argument is the incorrect premise that “prescribing” a rate under § 10704(a)(1) cannot occur unless the Board allows itself discretion in each case to prescribe a rate other than one a party has proposed. That requirement is absent from § 10704(a)(1), which says nothing about the extent of discretion the Board can or must permit itself in prescribing a maximum rate. Nor has AAR identified such a requirement in any other provision, as discussed in more detail below. And such a requirement would contradict established Board practice. The Board's SAC test has long included a procedure for prescribing the maximum rate to be followed. This procedure, the Maximum Markup Methodology (MMM), applies mechanically, with the Board exercising no discretion as to its application in an individual SAC case.
AAR reiterates its reliance on the magistrate judge's opinion in
The nonbinding opinion in
As in its previous comments, AAR assumes that a maximum reasonable rate exists in the abstract, outside of any Board process used to determine the maximum reasonable rate. (
AAR argues that because the statute does not mention the parties' pleadings among these considerations, the Board cannot adopt one party's position. (
The SNPRM pointed out similarities between FORR and the Three-Benchmark test with respect to decision-making structures and the agency's exercise of discretion.
UP similarly contends that Three-Benchmark is distinguishable from FORR in terms of the Board's exercise of discretion because parties to a Three-Benchmark case can choose to submit evidence regarding “other relevant factors.” (
AAR continues to argue that the Board cannot exercise its rate-prescribing power unless it performs a rate analysis distinct from any party's pleadings within each case—as opposed to exercising judgment in establishing the process itself. (
Indeed, AAR's theory of adjudication, taken to its logical endpoint, would preclude the Board from having any pre-defined processes. In an individual SAC case, for example, the result produced by the SAC process and Board precedent may be above or below the abstract ideal of a maximum rate—which AAR described in its
According to AAR, § 10707(c) “charge(s)” the Board with determining whether a challenged rate exceeds “a reasonable maximum for that transportation.” (AAR SNPRM Comment 12.) AAR argues that FORR does not permit the Board to bring its own independent judgment to bear in determining what “a reasonable maximum” rate would be and therefore conflicts with this provision. (
In the
UP now tries to distinguish
Finally, AAR again cites
Even accepting, for argument's sake, the premise that Congress lacks power to authorize federal district courts to employ a final offer process, AAR fails to acknowledge the reality that administrative agencies enjoy far greater procedural flexibility than do federal district courts.
That is especially true here, where Congress expressly authorized and required the agency to develop rate reasonableness methods in open-ended terms and without any indication that these methods must be limited to those available to courts.
AAR argues that, even if a FORR complainant bears the burden of proof as to market dominance and the reasonableness of the challenged rate, it is improperly relieved of the burden as to FORR's third stage, the selection of offers. (
As discussed above and in the
Adopting the burden allocation proposed in the
AAR again describes a hypothetical scenario in which a shipper submits an offer below the jurisdictional threshold,
As noted above, the
UP asserts in response that deliberately taking a less aggressive position regarding one element of a SAC analysis is not analogous to conceding the unlawfulness of the challenged rate under FORR. (
UP's argument appears to contemplate an intent element in rate reasonableness determinations—the idea that a railroad would “violate FORR” if it argues for one rate but has a different rate in mind. This notion also explains UP's suggestion, (
In a similar vein, the Board also clarifies that a carrier does not concede unreasonableness by submitting an offer that is lower than the challenged rate (
UP also repeats its argument posing a hypothetical situation in which a complainant submits very compelling evidence that the challenged rate is unreasonable and no evidence whatsoever in support of its offer. (
UP misconstrues the language it cites from the
The
The
The
AAR argued in its
The
Finally, BNSF repeats its assertion that uncertainty in FORR cases would deter negotiated outcomes. (
As noted above, the Board stated that, in reviewing offers, it would take into account the RTP,
In the
AAR selectively quotes a phrase from the paragraph distinguishing
In its NPRM comments, AAR characterized FORR as distinct from these other agency processes in terms of predictability, implying that the Board has given no hint as to how it would reach a decision. (
In response to the
BNSF also disputes the comparison to SAC, asserting that “parties raise novel issues in SAC cases that may affect the predictability of the outcome, [but] those cases were litigated under traditional SAC procedures where the parties had the ability to fully develop the administrative record and the Board had its traditional discretion to weigh the evidence and determine what the maximum reasonable rate should be. Neither of those procedural protections will be present in [a] FORR proceeding.” (BNSF SNPRM Comment 2.) But BNSF does not explain how it believes the massive record development and vast range of individual issues that parties present in modern SAC cases—a process that has ballooned far beyond what SAC was meant to entail,
According to AAR, the Board has not provided sufficient clarity on the legal standard because it will not announce the “winning” standard until the end of a FORR case. (
BNSF argues that “[p]arties will face the choice of seeking to exhaustively address any potential feasible methodology that could be used to analyze the challenged rate to devise arguments in the alternative or engaging in a crash effort to adequately analyze novel methodologies in the ten days parties have to file their replies—either option leading to substantial unnecessary litigation expense.” (BNSF SNPRM Comment 2.) As framed by BNSF, a party to an unreasonable practice case under § 10702 would feel the need to “address any potential feasible methodology that could be used to analyze the challenged [practice] to devise arguments in the alternative,” but no one has suggested that parties litigate this way in such cases. And having to analyze the opposing party's submission quickly is a necessary part of litigating under a short timeline, which is an important aspect of improving the accessibility of the Board's rate reasonableness processes.
Similarly, AAR claims that parties to FORR cases “will not even know the materials they must produce in discovery.” (AAR SNPRM Comment 14.) AAR contends that, “if a party's methodology is ultimately rejected by the Board, there is no basis for compelling their opponent to produce discovery in service of it.” (
Finally, AAR argues that “[i]f the railroad's offer is deemed `unreasonable,' it is hard to understand how revenue adequacy would even be relevant if the Board is compelled to accept the shipper's offer.” (AAR SNPRM Comment 18.) In making this argument, AAR assumes a scenario in which the Board has rejected the railroad's offer and is “compelled” to accept the shipper's offer, without any consideration of revenue adequacy. As the
AAR repeats arguments from its
In the
The
In the
BNSF argues that allowing non-streamlined market dominance will increase the time required in FORR cases, contrary to the Board's goals, because the Board will grant extensions of time. (
BNSF also asserts that responding to a non-streamlined market dominance presentation will be more burdensome to a FORR defendant than a Three-Benchmark defendant because in FORR, the complainant “may pursue a novel rate reasonableness theory that will consume a disproportionate share of the railroad defendant's time and energy in preparing its responsive pleading.” (BNSF SNPRM Comment 3-4.) But the
BNSF further contends that, “[i]f the Board chooses to permit shippers to use non-streamlined approaches to market dominance on the basis that the short time frame is a sufficient protection
The Coalition Associations note that, in a FORR case where the complainant chooses streamlined market dominance, it would have the option of an evidentiary hearing before an administrative law judge to discuss market dominance, but if the complainant chooses non-streamlined market dominance, it would not have the option of a hearing. (Coalition Associations SNPRM Comment 4-5);
Moreover, the Coalition Associations' proposed solution—bifurcating market dominance and rate reasonableness pleadings in FORR cases using non-streamlined market dominance, (
Notwithstanding their concerns about a lack of rebuttal with respect to market dominance in non-streamlined cases (Coalition Associations SNPRM Comment 6), the Coalition Associations have expressed strong support for FORR's rate reasonableness procedure, which does not include rebuttal. (
The
In the
AAR continues to argue that a $4 million dispute is not a small case, that the $4 million cap is arbitrary, and that the Board has not addressed disaggregation of claims. (
With respect to disaggregation of claims, AAR fails to acknowledge that the
The Coalition Associations state that they “seek clarification as to when the two-year window for applying the relief cap begins. The statute clearly allows for two years of reparations, which could result in the entire relief period occurring prior to the date of the complaint. It also is clear that a complainant could elect to forego pre-complaint reparations and apply the relief period from the date of the complaint.” (Coalition Associations SNPRM Comment 10.) As the
Contrary to the Coalition Associations' suggestion, however, if a complainant decides to forgo reparations and seek only a prescription, the transition from reparations to prescription occurs on the effective date of the prescription order—
In the
Accordingly, the Board will adopt the relief cap proposed in the
AAR contends that the Board has not explained why it is not applying the conclusions of InterVISTAS Consulting Inc. (InterVISTAS), a consultant that prepared a report for the Board in 2016.
Finally, AAR repeats its arguments that the Board must conduct a cost-benefit analysis. (
The Board received no further comment on its proposal to close Docket No. EP 665 (Sub-No. 2), and therefore will proceed to terminate that proceeding. As noted in the
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, generally requires a description and analysis of new rules that would have a significant economic impact on a substantial number of small entities. In drafting a rule, an agency is required to: (1) assess the effect that its regulation will have on small entities; (2) analyze effective alternatives that may minimize a regulation's impact; and (3) make the analysis available for public comment. Sections 601-604. In its notice of proposed rulemaking, the agency must either include an initial regulatory flexibility analysis, section 603(a), or certify that the proposed rule would not have a “significant impact on a substantial number of small entities,” section 605(b). The impact must be a direct impact on small entities “whose conduct is circumscribed or mandated” by the proposed rule.
In the
Additionally, the Board concluded (as it has in past proceedings) that the majority of railroads involved in these rate proceedings are not small entities within the meaning of the Regulatory Flexibility Act.
This final rule adopts the approach proposed in the
In this proceeding, the Board modifies an existing collection of information that was approved by the Office of Management and Budget (OMB) under the collection of Complaints (OMB Control No. 2140-0029). In the
This modification and extension request of an existing, approved collection will be submitted to OMB for review as required under the PRA, 44 U.S.C. 3507(d), and 5 CFR 1320.11. The request will address the comment discussed in the
Pursuant to the Congressional Review Act, 5 U.S.C. 801-808, the Office of Information and Regulatory Affairs has designated this rule as non-major, as defined by 5 U.S.C. 804(2).
1. The Board adopts the final rule as set forth in this decision. Notice of the adopted rule will be published in the
2. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration.
3. The final rule in Docket No. EP 755 is effective March 6, 2023.
4. The termination of Docket No. EP 665 (Sub-No. 2) is effective on January 3, 2023.
Decided: December 19, 2022.
By the Board, Board Members Fuchs, Hedlund, Oberman, Primus, and Schultz. Board Members Fuchs and Schultz dissented with separate expressions.
Congress has entrusted the Board with the responsibility to regulate rail carriers' rates, and it has set broad criteria under which the Board is to apply its expertise and judgment.
Though the Board has stated its role in regulating rates is to serve as “guardian of the public interest,”
Not only does FORR turn over the Board's responsibility to litigants, it diminishes the Board's ability to pick the best outcome based on the litigants' presentations. In a FORR case, suppose the Board, relying on a litigant's rate reasonableness methodology, finds a rate unreasonable. The Board would then turn to the litigants' final offers to prescribe the maximum rate. However, in FORR, the maximum rate need not
Today's decision might accept these severe, unprecedented limitations in hopes that a final offer framework—by virtue of its design—will produce good outcomes, but
More alarmingly, FORR has a fundamental flaw in its framework—as
Given these deep and irreparable flaws, FORR could have significant negative consequences for the rail network. FORR's decisions are precedential, so one litigant's rate reasonableness methodology—for which the Board would not find best implements the statutory criteria, let alone seek broader public comment or analyze effects across carriers—could affect rail rates nationwide, potentially impacting infrastructure and operations. Moreover, as noted above, the intensified and unequal pressures in FORR could affect the network even in the absence of a Board decision. Because
The Board's drastic shift to FORR is not justified by
Though I disagree with
For several years, shippers and other interested parties have repeatedly informed the Board that the Board's current options for challenging the reasonableness of rates do not meet their need for an expeditious resolution at a reasonable cost. While I am aware of the need for additional methodologies, I respectfully dissent from today's decision to finalize Final Offer Rate Review (FORR).
The Board issued its Supplemental Notice of Proposed Rulemaking (SNPRM) in this proceeding concurrently with the Notice of Proposed Rulemaking in
The need for new rate review methodologies is well documented. In September 2014, the Board commissioned an independent assessment of the stand-alone rate reasonableness methodology as well as possible alternatives that could reduce the time, complexity, and expense involved in rate cases. In January 2018, Chairman Ann Begeman created the Rate Reform Task Force to recommend improvements to existing processes and to propose new rate review methodologies. And while the need for alternatives to the existing methodologies is clear, that need cannot supersede the Board's congressionally delegated authority to either establish rates based upon its own best judgment or to promulgate regulations allowing parties to seek similar relief through a voluntary arbitration program,
The majority believes that FORR—like the final-offer arbitration (or “baseball arbitration”) process on which FORR is based—will not reward extreme positions, thereby incentivizing both parties to submit their most reasonable rate to the Board.
The need for a streamlined, cost-effective dispute resolution process that provides both consistent deliberation of evidence and reliable outcomes is clear. But that need should not be met by a process that restricts the Board's ability to exercise its own independent judgment and requires it to render a decision proposed by only one of the parties. The majority's decision today means that the Board could be faced with two extreme and undesirable outcomes with no choice but to select one. Without the discretion to ensure that rates prescribed in FORR cases are reasonable, FORR could operate to depress rail rates below what is needed for carriers to invest in, maintain, or even improve the rail network.
Administrative practice and procedure, Common Carriers, Freedom of information.
Administrative practice and procedure, Investigations.
Administrative practice and procedure.
Administrative practice and procedure.
For the reasons set forth in the preamble, the Surface Transportation Board amends parts 1002, 1111, 1114, and 1115 of title 49, chapter X, of the Code of Federal Regulations as follows:
5 U.S.C. 552(a)(4)(A), (a)(6)(B), and 553; 31 U.S.C. 9701; and 49 U.S.C. 1321. Section 1002.1(f)(11) is also issued under 5 U.S.C. 5514 and 31 U.S.C. 3717.
(f) * * *
49 U.S.C. 10701, 10704, 11701 and 1321.
(c)
(a)
(b)
(c)
(e)
(a) * * *
(3)(i) In cases relying upon the Final Offer Rate Review procedure where the complainant elects streamlined market dominance:
(A) Day −25—Complainant files notice of intent to initiate case and serves notice on defendant.
(B) Day 0—Complaint filed; discovery begins.
(C) Day 35—Discovery closes.
(D) Day 49—Complainant's opening (rate reasonableness analysis, final offer, and opening evidence on market dominance). Defendant's opening (rate reasonableness analysis and final offer).
(E) Day 59—Parties' replies. Defendant's reply evidence on market dominance.
(F) Day 66—Complainant's letter informing the Board whether it elects an evidentiary hearing on market dominance.
(G) Day 73—Telephonic evidentiary hearing before an administrative law judge, as described in § 1111.12(d) of this chapter, at the discretion of the complainant (market dominance).
(H) Day 149—Board decision.
(ii) In cases relying upon the Final Offer Rate Review procedure where the complainant elects non-streamlined market dominance:
(A) Day -25—Complainant files notice of intent to initiate case and serves notice on defendant.
(B) Day 0—Complaint filed; discovery begins.
(C) Day 35—Discovery closes.
(D) Day 49—Complainant's opening (rate reasonableness analysis, final offer, and opening evidence on market dominance). Defendant's opening (rate reasonableness analysis and final offer).
(E) Day 79—Parties' replies. Defendant's reply evidence on market dominance.
(F) Day 169—Board decision.
(iii) In addition, the Board will appoint a liaison within five business days after the Board receives the pre-filing notification.
(iv) The mediation period in Final Offer Rate Review cases is 20 days beginning on the date of appointment of the mediator(s). The Board will appoint a mediator or mediators as soon as possible after the filing of the notice of intent to initiate a case.
(v) With its final offer, each party must submit an explanation of the methodology it used. If a complainant fails to submit explanation and support for its offer, the Board may dismiss the complaint without determining the reasonableness of the challenged rate.
(b)
(c) A defendant's reply evidence under the streamlined market dominance approach may address the factors in paragraph (a) of this section and any other issues relevant to market dominance. A complainant may elect to submit rebuttal evidence on market dominance issues except in cases under Final Offer Rate Review, which does not provide for rebuttal. Reply and rebuttal filings under the streamlined market dominance approach are each limited to 50 pages, inclusive of exhibits and verified statements.
(d)(1) Pursuant to the authority under § 1011.6 of this chapter, an administrative law judge will hold a telephonic evidentiary hearing on the market dominance issues at the discretion of the complainant in lieu of the submission of a written rebuttal on market dominance issues. In cases under Final Offer Rate Review, which does not provide for rebuttal, the telephonic evidentiary hearing is at the discretion of the complainant.
(2) The hearing will be held on or about the date that the complainant's rebuttal evidence on rate reasonableness is due, except in cases under Final Offer Rate Review, where the hearing will be held 14 days after replies are due unless the parties agree on an earlier date. The complainant shall inform the Board by letter submitted in the docket, no later than 10 days after defendant's reply is due, whether it elects an evidentiary hearing in lieu of the submission of a written rebuttal on market dominance issues. In cases under Final Offer Rate Review, the complainant shall inform the Board by letter submitted in the docket, no later than 7 days after defendant's reply is due, whether it elects an evidentiary hearing on market dominance issues.
5 U.S.C. 559; 49 U.S.C. 1321.
(a) * * *
(4) Except as stated in § 1114.31(a)(2)(iii), time periods specified in this subpart do not apply in cases under Final Offer Rate Review. Instead, parties in cases under Final Offer Rate Review should serve requests, answers to requests, objections, and other discovery-related communications within a reasonable time given the length of the discovery period.
(h)
(a)
(1)
(2)
(ii) In a rate case to be considered under the stand-alone cost, Simplified-SAC, or Three-Benchmark methodologies, a reply to a motion to compel must be filed with the Board within 10 days of when the motion to compel is filed.
(iii) In a rate case under Final Offer Rate Review, each party may file one motion to compel that aggregates all discovery disputes with the other party. Each party's motion to compel, if any, shall be filed on the 10th day before the close of discovery (or, if not a business day, the last business day immediately before the 10th day). The procedural schedule will be tolled while motions to compel are pending. Replies to motions to compel in Final Offer Rate Review cases must be filed with the Board within 7 days of when the motion to compel is filed. Upon issuance of a decision on motions to compel, the procedural schedule resumes, and any party ordered to respond to discovery must do so within the remaining 10 days in the discovery period.
(3)
(4)
(d)
5 U.S.C. 559; 49 U.S.C. 1321; 49 U.S.C. 11708.
(e) Petitions must be filed within 20 days after the service of the action or within any further period (not to exceed 20 days) as the Board may authorize. However, in cases under Final Offer Rate Review, petitions must be filed within 5 days after the service of the action, and replies to petitions must be filed within 10 days after the service of the action.
Office of the Secretary, HUD.
Initial implementation guidance; request for comment.
This document highlights the key changes made by the recently enacted Violence Against Women Act Reauthorization Act of 2022 (VAWA 2022) to the Violence Against Women Act of 1994, as amended, provides an overview of key provisions applicable to HUD programs, and explains HUD's plans to issue rules or guidance to implement VAWA 2022. In addition, this document seeks comment from HUD housing providers, grantees, and other interested members of the public on this document generally and on certain issues discussed in more detail below. Comments received in response to this solicitation will aid HUD in developing additional regulations and guidance.
Interested persons are invited to submit comments regarding this document to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW, Room 10276, Washington, DC 20410-0500. Communications must refer to the above docket number and title. There are two methods for submitting public comments. All submissions must refer to the docket number and title above.
1.
2.
To receive consideration as public comments, comments must be submitted through one of the two methods specified above. Again, all submissions must refer to the docket number and title of the document.
For more information about this document, please contact Karlo Ng, Director on Gender-Based Violence Prevention and Equity, Department of Housing and Urban Development, 451 Seventh Street SW, Room 10232, Washington, DC 20410, telephone number 202-402-7642. (This is not a toll-free number.) HUD welcomes and is prepared to receive calls from individuals who are deaf or hard of hearing, as well as individuals with speech and communication disabilities. To learn more about how to make an accessible telephone call, please visit
On March 15, 2022, the President signed into law the Consolidated Appropriations Act of 2022 (Pub. L. 117-103, 136 Stat. 49), which included the Violence Against Women Act Reauthorization Act of 2022 (VAWA 2022). VAWA 2022 reauthorizes, amends, and strengthens the Violence Against Women Act of 1994, as amended (VAWA) (Pub. L. 103-322, tit. IV, sec. 40001-40703; 42 U.S.C. 13925
As provided by section 4 of VAWA 2022, all but one of the HUD-related amendments made by VAWA 2022 took effect on October 1, 2022. The one exception is section 606, which took effect upon enactment of VAWA 2022 and requires HUD to study and report on housing and service needs of survivors of human trafficking and individuals at risk for trafficking. VAWA 2022 did not amend the majority of authorizing statutes for HUD's programs that are covered by VAWA.
Section II of this document provides an overview of VAWA, HUD's
VAWA, enacted in 1994 as title IV of the Violent Crime Control and Law Enforcement Act of 1994, (Pub. L. 103-322, approved September 13, 1994), was reauthorized in 2000 through Division B of the Victims of Trafficking and Violence Protection Act of 2000 (Pub. L. 106-386, 114 Stat. 1464), in 2005 through the Violence Against Women Act and Department of Justice Reauthorization Act of 2005 (Pub. L. 109-162, 119 Stat. 2960) (VAWA 2005), and in 2013 through the Violence Against Women Act Reauthorization of 2013 (Pub. L. 113-4, 127 Stat. 54) (VAWA 2013) (see summary at 78 FR 47717, 81 FR 80724). In 2016, the Justice for All Reauthorization Act (Pub. L. 114-324, 130 Stat. 1948) amended VAWA by clarifying VAWA's lease bifurcation provisions.
HUD's implementing regulations for VAWA's protections, rights, and responsibilities are codified in 24 CFR part 5, subpart L, and related provisions in HUD's program regulations (“HUD's VAWA regulations”). These regulations, as explained in HUD's final rule issued on November 16, 2016 (81 FR 80724), implement VAWA as amended through VAWA 2013.
Section 2 of VAWA 2022 revises the definition of “domestic violence” and adds definitions for “economic abuse” and “technological abuse” for purposes of VAWA grants.
The amendments that VAWA 2022 makes to the Housing Rights Chapter of VAWA build on the 2013 and 2016 amendments to strengthen VAWA's housing protections for survivors of domestic violence, dating violence, sexual assault, and stalking (collectively referred to as “survivors” in this document). Section 601 of VAWA 2022 expands the “covered housing program” definition in section 41411 of VAWA (34 U.S.C. 12491) to add specific programs and a catch-all provision that includes any other Federal housing programs providing affordable housing to low- and moderate-income persons by means of restricted rents or rental assistance, or more generally providing affordable housing opportunities, as identified by the appropriate agency through regulations, notices, or any other means. HUD intends to engage Tribes regarding VAWA protections and implementation for HUD's Native American programs.
Section 602 of VAWA 2022 adds several new sections to VAWA's Housing Rights Chapter. These new sections include: section 41412 (34 U.S.C. 12492), which requires each appropriate agency to consult appropriate stakeholders and conduct rulemaking to establish a process for reviewing compliance with VAWA's expanded housing protections; section 41413 (34 U.S.C. 12493), which requires HUD to establish a Gender-Based Violence Prevention Office
Section 603 of VAWA 2022 adds a new section 41415 to VAWA (34 U.S.C. 12495) titled “Right to report crime and emergencies from one's home.” The new section provides, among other things, that landlords, homeowners, tenants, residents, occupants, and guests of, and applicants for, housing shall not be penalized based on their requests for assistance or based on criminal activity of which they are a victim or otherwise not at fault under statutes, ordinances, regulations, or policies adopted or enforced by covered governmental entities. Section 603 defines a “covered governmental entity as any municipal, county, or State government that receives funding under section 106 of the Housing and Community Development Act of 1974.” It also imposes reporting and certification requirements on covered governmental entities. Section 603 further provides the Secretary of HUD and the Attorney General with the authority to “implement and enforce this chapter consistent with, and in a manner that provides, the same rights and remedies as those provided for in title VIII of the Civil Rights Act of 1968 (42 U.S.C. 3601
Section 605 of VAWA 2022
Section 606 of VAWA 2022 requires HUD to study the availability and accessibility of housing services to survivors of human trafficking or those
The following sections identify specific issues on which HUD seeks comment to inform HUD in the development of regulations or guidance, or both, as may be applicable. For each issue, this document provides information on relevant VAWA 2013 requirements and existing HUD regulations, relevant VAWA 2022 changes and requirements, and HUD's proposal for implementation.
ECONOMIC ABUSE.—The term `economic abuse', in the context of domestic violence, dating violence, and abuse in later life, means behavior that is coercive, deceptive, or unreasonably controls or restrains a person's ability to acquire, use, or maintain economic resources to which they are entitled, including using coercion, fraud, or manipulation to—(A) restrict a person's access to money, assets, credit, or financial information; (B) unfairly use a person's personal economic resources, including money, assets, and credit, for one's own advantage; or (C) exert undue influence over a person's financial and economic behavior or decisions, including forcing default on joint or other financial obligations, exploiting powers of attorney, guardianship, or conservatorship, or failing or neglecting to act in the best interests of a person to whom one has a fiduciary duty.
TECHNOLOGICAL ABUSE.—The term `technological abuse' means an act or pattern of behavior that occurs within domestic violence, sexual assault, dating violence or stalking and is intended to harm, threaten, intimidate, control, stalk, harass, impersonate, exploit, extort, or monitor, except as otherwise permitted by law, another person, that occurs using any form of technology, including but not limited to: internet enabled devices, online spaces and platforms, computers, mobile devices, cameras and imaging programs, apps, location tracking devices, or communication technologies, or any other emerging technologies.
HUD's regulatory definition of “domestic violence” is broad as it provides that “domestic violence includes felony or misdemeanor crimes of violence committed by” a list of certain relations, such as a person similarly situated to a spouse of the victim, and captures felony or misdemeanor crimes of violence committed “by any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws of the jurisdiction.” Furthermore, HUD's existing definition of “stalking” broadly covers any “course of conduct directed at a specific person that would cause a reasonable person to (1) fear for the person's individual safety or the safety of others; or (2) suffer substantial emotional distress.” Given HUD's broad and inclusive definitions of these terms, HUD believes that the specific acts that VAWA 2022 made explicitly part of the VAWA “domestic violence” definition can be reasonably interpreted to be covered by HUD's existing VAWA regulations.
Accordingly, assisted housing providers, grantees, public housing authorities, owners and managers of the covered housing programs are advised to apply HUD's VAWA requirements in a manner that encompasses the “domestic violence” definition provided by VAWA as of October 1, 2022. HUD considers its existing regulatory definition of “domestic violence” to be broad enough to, in most
• Section 202 Supportive Housing for the Elderly (12 U.S.C. 1701q), with implementing regulations at 24 CFR part 891.
• Section 811 Supportive Housing for Persons with Disabilities (42 U.S.C. 8013), with implementing regulations at 24 CFR part 891.
• Housing Opportunities for Persons With AIDS (HOPWA) program (42 U.S.C. 12901
• HOME Investment Partnerships (HOME) program (42 U.S.C. 12741
• Homeless programs under title IV of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11360
• Multifamily rental housing under section 221(d)(3) of the National Housing Act (12 U.S.C. 17151(d)) with a below-market interest rate (BMIR) pursuant to section 221(d)(5), with implementing regulations at 24 CFR part 221.
• Multifamily rental housing under section 236 of the National Housing Act (12 U.S.C. 1715z-1), with implementing regulations at 24 CFR part 236.
• HUD programs assisted under the United States Housing Act of 1937 (42 U.S.C. 1437
• The Housing Trust Fund (12 U.S.C. 4568) (with implementing regulations at 24 CFR part 93).
While not included in the VAWA 2013 statute, HUD included the Housing Trust Fund in its regulatory definition of “covered housing program” by using its general rulemaking authority. This document refers to these programs as “2013 HUD covered programs”.
• Direct loan program under section 202 of the Housing Act of 1959 (12 U.S.C. 1701q);
• Assistance from the Housing Trust Fund established under section 1338 of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4501); and
• Any other Federal housing programs providing affordable housing to low- and moderate-income persons by means of restricted rents or rental assistance, or more generally providing affordable housing opportunities, as identified by the appropriate agency through regulations, notices, or any other means (referred to as a “catch all” provision).
This document refers to these programs as “VAWA 2022 HUD covered programs”.
Additionally, section 603 provides that covered governmental entities must report on their laws or policies (or laws or policies adopted by subgrantees) that impose penalties on the listed protected persons based on requests for law enforcement or emergency assistance or based on criminal activity that occurred at a property. These entities must also certify compliance with these protections or explain how they will come into compliance or ensure compliance among subgrantees
Section 603 also includes an implementation provision that provides that the Secretary of HUD and the Attorney General “shall implement and enforce this chapter consistent with, and in a manner that provides, the same rights and remedies as those provided for in title VIII of the Civil Rights Act of 1968 (42 U.S.C. 3601
While HUD prepares to issue guidance and help answer questions from grantees and Federal financial assistance recipients on this process, any municipal, county, or State government that receives funding under section 106 of the Housing and Community Development Act of 1974 (42 U.S.C. 5306) must not, as of October 1, 2022, engage in any practices that violate the right to report provided for in section 603 of VAWA 2022. In addition, any municipal, county, or State government that receives funding under section 106 of the Housing and Community Development Act of 1974 (42 U.S.C. 5306) must conduct the required review and reporting
The Paperwork Reduction Act (PRA) of 1995 requires that Federal agencies, including HUD, seek and obtain Office of Management and Budget (OMB) approval before providing forms to grantees to be used to collect information from the public, including information related to record-keeping, certifications, and reports. HUD, therefore, intends to seek approval under the PRA to collect such information from covered governmental entities required for reporting under section 603 while HUD updates its regulations related to record-keeping, certifications, and reports.
In the meantime, any municipal, county, or State government that receives funding under section 106 of the Housing and Community Development Act of 1974 (42 U.S.C. 5306) is advised to update applicable policies and practices to include the statutory right to report to avoid potential liability under the law.
In 2016, HUD issued guidance on applying the Fair Housing Act to local nuisance or crime-free ordinances that discriminate because of a protected characteristic.
(1) is experiencing trauma or a lack of safety related to, or fleeing or attempting to flee, domestic violence, dating violence, sexual assault, stalking, or other dangerous, traumatic, or life-threatening conditions related to the violence against the individual or a family member in the individual's or family's current housing situation, including where the health and safety of children are jeopardized;
(2) has no other safe residence; and
(3) lacks the resources to obtain other safe permanent housing.
(13) Facilitating and coordinating activities to ensure compliance with [the emergency transfer plan requirement in 34 U.S.C. 12491(e)] and monitoring compliance with [the confidentiality protections of the confidentiality requirement in 34 U.S.C. 12491(c)(4)].
In this document, HUD has highlighted certain issues for which comment is specifically sought but welcomes comment on any aspect of this document.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Proposed rule.
Through this notice of proposed rulemaking, the Department of Housing and Urban Development (HUD) is proposing to amend its regulations covering rental housing assistance for the Native Hawaiian Housing Block Grant (NHHBG) program, consistent with the Native American Housing Assistance and Self-Determination Act of 1996 (NAHASDA). HUD proposes to clarify and improve consistency with NAHASDA's statutory requirements and HUD's Indian Housing Block Grant program regulations. This proposed rule would also help make affordable housing opportunities, in the form of NHHBG-assisted rental housing, more available to eligible Native Hawaiian families.
There are two methods for submitting public comments. All submissions must refer to the above docket number and title.
1.
2.
To receive consideration as public comments, comments must be submitted through one of the two methods specified above. Again, all submissions must refer to the docket number and title of the proposed rule.
Claudine Allen, Lead Native Hawaiian Program Specialist, Office of Native American Programs, HUD Honolulu Field Office, 1003 Bishop Street, Suite 2100, Honolulu, HI 96813; telephone number 808-457-4674 (this is not a toll-free number). HUD welcomes and is prepared to receive calls from individuals who are deaf or hard of hearing, as well as individuals with speech and communication disabilities. To learn more about how to make an accessible telephone call, please visit
The Hawaiian Homelands Homeownership Act of 2000 (HHH Act) was enacted as both title II of the Omnibus Indian Advancement Act (Pub. L. 106-568, 114 Stat. 2868, approved December 27, 2000) and subtitle B of title V of the American Homeownership and Economic Opportunity Act of 2000 (Pub. L. 106-569, 114 Stat. 2944, approved December 27, 2000). Section 513 of the HHH Act, Public Law 106-569, amended the Native American Housing Assistance and Self-Determination Act of 1996 (25 U.S.C. 4101
In accordance with title VIII of NAHASDA, the NHHBG program must primarily benefit low-income Native Hawaiian families who are eligible to reside on the Hawaiian Home Lands. Native Hawaiian families eligible to reside on the Hawaiian Home Lands experience more significant housing challenges compared to Native Hawaiian households overall, including other Hawaii residents and Native Hawaiians already residing on the Hawaiian Home Lands.
On June 13, 2002, HUD published an interim rule (“interim rule”) adding a new 24 CFR part 1006 to implement the block grant assistance program for Native Hawaiians. 67 FR 40773. HUD modeled the NHHBG regulations after the Indian Housing Block Grant (IHBG) regulations implemented at 24 CFR part 1000 because the NHHBG and IHBG programs are authorized under the same statute and have overlapping requirements that apply to both programs.
The interim rule established program requirements pertaining to homeownership and rental assistance authorized under section 810 of title VIII of NAHASDA.
Prior to fiscal year 2020, the DHHL, the sole recipient of the NHHBG, used NHHBG funds primarily for homeownership housing assistance. In 2019, Hawaii's governor approved administrative rules allowing the DHHL to expand residential lease offerings to include rental housing.
Two of HUD's proposals require further background discussion. First, NAHASDA requires HUD to establish certain program requirements for both IHBG and NHHBG. On July 26, 2007, HUD amended the IHBG regulations at 24 CFR part 1000 to reflect these requirements. 72 FR 41211. Pursuant to authority in section 404(c) of NAHASDA, HUD revised § 1000.514 to require IHBG recipients to submit Annual Performance Reports within 90 days, instead of 60 days, of the end of their program year. HUD did not make a corresponding change to the NHHBG provision in § 1006.410,
Second, HUD has identified one provision, § 1006.101,
Given the need to clarify the rental assistance provisions in HUD's current NHHBG regulations and because HUD has not comprehensively reviewed or amended 24 CFR part 1006 in over 20 years, HUD is proposing to amend its regulations to clarify how the funding recipient may use NHHBG program funds for rental housing assistance, as authorized by title VIII of NAHASDA. These changes should relieve burden on the funding recipient in implementing rental assistance, directly help low-income Native Hawaiian families who need rental assistance, and clarify the tools available for HUD to monitor and enforce program requirements. This proposed rule would help make affordable housing opportunities, in the form of NHHBG-assisted rental housing, more available to Native Hawaiian families who are not ready for or do not desire homeownership housing, and who otherwise may be experiencing overcrowded conditions, lack of affordability, and/or homelessness.
HUD is proposing in this rulemaking to amend 24 CFR part 1006 to ensure compliance with the NHHBG program's statutory requirements; promote consistency between NHHBG and IHBG program regulations where the programs' statutory requirements overlap or where inconsistencies exist between the NHHBG and IHBG regulatory frameworks; and add details that would improve the NHHBG
HUD is proposing to add definitions in § 1006.10 for each of the reasons identified in the most immediately preceding paragraph.
HUD is proposing to add a definition for “Annual income” that matches the definition in § 1000.10. This term is currently used in part 1006 but does not have a specific definition. The proposed definition would allow for discretion by the Department of Hawaiian Home Lands to use the Section 8 programs definition in 24 CFR part 5, the definition of income as used by the U.S. Census Bureau, or adjusted gross income as defined for purposes of reporting under Internal Revenue Service (IRS) Form 1040 series for individual Federal annual income tax purposes.
HUD is proposing to add definitions for “Homeless family” and “Person with a Disability”. These terms are currently used in part 1006 but do not have specific definitions. HUD's proposed definition for “Person with a Disability” is consistent with the definition of person with a disability in HUD's regulations for section 504 of the Rehabilitation Act of 1973 in 24 CFR 8.3, as amended by the Americans with Disabilities Act (ADA) Amendments Act of 2008, see 42 U.S.C. 12102(3)(B). The provisions and rules of construction in 28 CFR 35.108 are necessary when applying the definition of “Person with a Disability” in this proposed rule.
HUD is proposing to add a definition for “Income” that clarifies this term has the meaning provided in the definition of “Income” in section 4(9) of NAHASDA. The statute defines “Income” as income from all sources of each member of the household, as determined according to criteria determined by HUD, and provides for three categories of amounts that may not be considered income: amounts not actually received by the family, certain amounts received under the Social Security Act, and amounts received for certain disability compensation or as dependency and indemnity compensation received by veterans or their surviving family members.
HUD is proposing to add a definition for “NAHASDA” that provides the full title, Native American Housing Assistance and Self-Determination Act of 1996, and United States Code citation, 25 U.S.C. 4101
HUD is proposing to add a definition for “Project-based rental assistance” since HUD is proposing to add project-based rental assistance requirements in new § 1006.227,
In this proposed rule, HUD is proposing to amend § 1006.101 by revising the introductory text of § 1006.101 to clarify that the DHHL must submit a housing plan before the start of its fiscal year. This is consistent with NHHBG statutory requirements and provides a clear deadline.
HUD is also proposing to amend § 1006.101 by making technical revisions to the introductory text to clarify that the housing plan has two components, a five-year plan and a one-year plan. HUD also proposes clarifying amendments to paragraphs (c) and (d). HUD is proposing to revise paragraph (c)(1) to clarify that the five-year plan may be changed as necessary to update it after its initial submission, but the information for the one-year plan must be submitted annually. HUD proposes revising paragraph (c)(2) to clarify that complete plans must include a new five-year plan. Paragraph (d) currently requires that, before undertaking new activities not addressed in a current one-year housing plan, the DHHL must submit to HUD for review any amendment to the plan. HUD proposes to revise this paragraph to clarify that the current one-year plan must have been reviewed by HUD and determined to comply with section 803 of NAHASDA.
HUD is proposing to amend § 1006.201 by adding language that clarifies that eligible affordable housing activities may include those conducted in accordance with subpart D of part 1006 and that develop, operate, maintain, or support housing for rental or homeownership, or provide services with respect to affordable housing through the activities described in subpart C of part 1006. This added language improves consistency between § 1006.201 and statutory language.
HUD is proposing to amend § 1006.210 by removing existing paragraph (g) and redesignating existing paragraph (h) as new paragraph (g). HUD proposes to move the existing language in § 1006.210(g) to a new section, § 1006.227,
HUD is proposing to add § 1006.227 that describes in detail how NHHBG funds may be used for tenant-based rental assistance and project-based rental assistance. HUD proposes to model this new section off § 1000.103 to maintain consistency between IHBG and NHHBG regulations. However, HUD proposes slightly different language from § 1000.103 to conform to NHHBG statutory requirements. Paragraph (a) of § 1006.227 would explicitly authorize use of NHHBG funds for tenant-based rental assistance, which may include security deposits and first month's rent, and project-based rental assistance. Paragraph (a)(1) of this section would clarify that rental assistance must comply with the requirements of part 1006 and be provided to eligible families. In paragraph (a)(2), HUD proposes to incorporate statutory flexibility providing that DHHL “may” use NHHBG funds for rental assistance for eligible Native Hawaiian families “both on
HUD is proposing to amend § 1006.301 by adding new paragraphs (b)(3) and (b)(3)(i) through (iii) to implement limitations on uses of NHHBG assistance for non-low-income families pursuant to section 809(a)(2)(B)(ii) of NAHASDA. HUD proposes to implement a 10-percent limitation on the use, if any, of the
HUD is proposing to further amend § 1006.301 by revising paragraph (b)(2) to add a sentence at the end of the paragraph clarifying that the DHHL must obtain HUD approval by submitting proposals in its housing plan, by amendment of the housing plan, or by special request to HUD at any time, where the DHHL would provide homeownership assistance to Native Hawaiian families who are not low-income under § 1006.301(b)(1). This revision would improve consistency with the IHBG program regulation at § 1000.108.
HUD is also proposing to amend § 1006.301 by revising language in paragraph (b)(1) to clarify that the DHHL may provide homeownership assistance in conjunction with loan guarantee activities. Section 1006.301(b)(1) currently states the DHHL may provide homeownership assistance
Finally, HUD proposes to revise paragraph (b)(2) to make technical changes, such as the addition of a cross reference, that conform to HUD's proposed addition of new paragraph (b)(3) and subordinate paragraphs (b)(3)(i) through (iii).
HUD is proposing to amend § 1006.305 by revising existing paragraph (a) and existing paragraphs (a)(1) and (2) and adding new paragraphs (a)(3) through (5). HUD proposes these changes to reflect the typical timeline for families entering programs offered by the DHHL, the typical timeline for constructing housing, and the possibility of fluctuating incomes over time.
HUD's proposed revision to paragraph (a) would provide that housing qualifies as affordable housing for purposes of NAHASDA and part 1006 provided that the family occupying the housing unit is low-income at the times described in paragraphs (a)(1) through (5).
HUD proposes removing language in paragraph (a)(1) referring to occupancy by a low-income family to avoid redundancy with new language proposed in paragraph (a).
HUD proposes removing the last clause of paragraph (a)(2), “or is an owner-occupied unit in which the family is low-income at the time it receives NHHBG assistance” and adding it as a new paragraph (a)(3). HUD also proposes to add a sentence to the end of paragraph (a)(2) providing that when the DHHL enters into a loan contract with the family for assistance to purchase or construct a homeownership unit, the time of purchase means the time that loan contract is executed.
HUD proposes adding paragraphs (a)(3) through (5) to further clarify when housing qualifies as affordable housing: under paragraph (a)(3), in the case of owner-occupied housing units, at the time the family receives NHHBG assistance; under paragraph (a)(4), in the case of a lease-purchase agreement for existing housing or for housing to be constructed, at the time the lease-purchase agreement is signed; and under paragraph (a)(5), in the case of emergency assistance to prevent homelessness or foreclosure, at the time the family receives NHHBG assistance.
HUD is proposing to add § 1006.306 to incorporate for the NHHBG program requirements for initial determination of income eligibility and periodic reverification. These requirements are already implemented for the IHBG program in § 1000.128, and HUD's proposed addition of these requirements in § 1006.306 would ensure compliance with NAHASDA and improve consistency between IHBG and NHHBG program regulations.
HUD is proposing to add § 1006.307 to clarify that a family that was low-income at the times described in § 1006.305 but subsequently becomes a non-low-income family may continue to participate in the program in accordance with the DHHL's admission and occupancy policies. HUD proposes to model this new section off the IHBG program regulation in § 1000.110(a) to improve consistency between NHHBG and IHBG program regulations. Section 1006.307 would exempt these families from the limitations HUD proposes to add at § 1006.301(b)(3)(i), and would permit the DHHL to apply the additional requirements HUD proposes to add in § 1006.301(b)(3)(ii) based on the DHHL's policies.
HUD is proposing to amend § 1006.310 by adding details about maximum and minimum rents limitations, flat or income-adjusted rent, and utilities, to maintain consistency with IHBG program regulations at §§ 1000.124 and 1000.126. HUD proposes to move the last sentence in § 1006.310(a), which states the maximum monthly rent for a low-income family may not exceed 30 percent of the family's monthly adjusted income, to new paragraph (a)(1). New paragraph (a)(1) would further provide that the DHHL may compute payments based on any lesser percentage of the family's adjusted income, and while the Act does not set minimum tenant rent or homebuyer payments, the DHHL may do so. HUD proposes to add paragraph (a)(2) about flat or income-adjusted rent. Paragraph (a)(2) would provide that flat rent means the tenant's rent payment is set at a specific dollar amount or specific percent of market rent, income-adjusted rent means the tenant's rent payment varies based on the tenant's income (
HUD is proposing to amend § 1006.375 by removing paragraph (c),
HUD is proposing to add § 1006.377 which would contain only the existing displacement and relocation requirements in current § 1006.375(c) with minor technical changes to cross references. HUD proposes this change for structural reorganization and readability. Existing § 1006.375(c) is lengthy and includes definitions relevant only to displacement and relocation requirements. Additionally, HUD is proposing to amend new § 1006.377(c) by adding sentences at the end of paragraph (c) that describe civil rights requirements included in 24 CFR 576.408(c)(1): that a displaced person must be advised of his or her rights under the Fair Housing Act (42 U.S.C. 3601
HUD is proposing to amend § 1006.410 by revising paragraph (a)(2) to require the DHHL to submit a performance report within 90 days, instead of 60 days, of the end of the DHHL's fiscal year. HUD is also proposing to add a new paragraph (a)(3) that states the DHHL may request an extension and that HUD will provide a new date for submission if HUD grants the extension. Both changes would improve consistency between the IHBG requirements at § 1000.514 and the NHHBG requirements.
HUD is proposing to make minor technical revisions to several provisions to conform to statutory requirements and increase consistency with IHBG regulations. These provisions and revisions are:
• In § 1006.205, HUD is proposing to add language to paragraph (a)(9) so that it conforms to language in section 202 of NAHASDA and is more consistent with § 1000.102.
• In § 1006.215, HUD is proposing to add paragraph (f) so it conforms to language in section 202 of NAHASDA and is more consistent with § 1000.102.
• In § 1006.235, HUD is proposing to revise the title to read
• In § 1006.340, HUD is proposing to revise the cross reference at the end of paragraph (a) to cite to statutory requirements, “Section 812(b) of NAHASDA”, instead of regulatory requirements, “§ 1006.235”.
• In §§ 1006.230, 1006.350, 1006.410, and 1006.420, HUD is also proposing minor technical amendments.
Under Executive Order 12866 (Regulatory Planning and Review), a determination must be made whether a regulatory action is significant and, therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the Order. Executive Order 13563 (Improving Regulations and Regulatory Review) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” Executive Order 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. HUD is proposing changes to NHHBG program requirements and regulations, such as clarifying that NHHBG funds can be used for certain affordable housing activities including project-based rental assistance, permitting rental assistance to be provided off the Hawaiian Home Lands when Congress authorizes such use through appropriations acts, and adding or changing requirements for low-income and non-low-income families. However, there is no significant impact because DHHL is the sole recipient of NHHBG funds. This proposed rule was not subject to OMB review. This proposed rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is not an economically significant regulatory action.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. This proposed rule does not impose any federal mandates on any state, local, or tribal governments or the private sector within the meaning of the UMRA.
A Finding of No Significant Impact with respect to the environment has been made in accordance with HUD regulations in 24 CFR part 50 that implement section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). The Finding of No Significant Impact is available for public inspection between the hours of 8 a.m. and 5 p.m. weekdays in the Regulations Division, Office of General Counsel, Room 10276, Department of Housing and Urban Development, 451 Seventh Street SW, Washington, DC 20410-0500. The FONSI is also available through the Federal eRulemaking Portal at
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Order. This proposed rule does not have federalism implications and would not impose
Community development block grants; Grant programs—housing and community development; Grant programs—Indians; Hawaiian natives; Low and moderate income housing; Reporting and recordkeeping requirements.
For the reasons described in the preamble, the Department of Housing and Urban Development proposes to amend 24 CFR part 1006, as set forth below:
12 U.S.C. 1701x, 1701x-1; 25 U.S.C. 4221
(1) “Annual income” as defined for HUD's Section 8 programs in 24 CFR part 5, subpart F (except when determining the income of a homebuyer for an owner-occupied rehabilitation project, the value of the homeowner's principal residence may be excluded from the calculation of net family assets); or
(2) The definition of income as used by the U.S. Census Bureau. This definition includes:
(i) Wages, salaries, tips, commissions, etc.;
(ii) Self-employment income;
(iii) Farm self-employment income;
(iv) Interest, dividends, net rental income, or income from estates or trusts;
(v) Social security or railroad retirement;
(vi) Supplemental Security Income, Aid to Families with Dependent Children, or other public assistance or public welfare programs;
(vii) Retirement, survivor, or disability pensions; and
(viii) Any other sources of income received regularly, including Veterans' (VA) payments, unemployment compensation, and alimony; or
(3) Adjusted gross income as defined for purposes of reporting under Internal Revenue Service (IRS) Form 1040 series for individual Federal annual income tax purposes.
(1) Has a physical or mental impairment which substantially limits one or more major
life activities;
(2) Has a record of having such an impairment;
(3) Is regarded as having such an impairment;
(4) Has a disability as defined in section 223 of the Social Security Act; or
(5) Has a developmental disability as defined in section 102 of the Developmental Disabilities Assistance and Bill of Rights Act.
(6) For the purposes of this definition, the term “Physical or mental impairment” means:
(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or
(ii) Any mental or psychological disorder such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disability.
(7) For the purposes of this definition, the term “physical or mental impairment” includes, but is not limited to contagious and noncontagious diseases and conditions such as the following: orthopedic, visual, speech, and hearing impairments, and cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, intellectual disability, emotional illness, dyslexia and other specific learning disabilities, Attention Deficit Hyperactivity Disorder, Human Immunodeficiency Virus infection (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism.
(8) For the purposes of this definition, the term “major life activities” includes, but is not limited to:
(i) Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working; and
(ii) The operation of a major bodily function, such as the functions of the immune system, special sense organs and skin, normal cell growth, and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive systems. The operation of a major bodily function includes the operation of an individual organ within a body system.
The DHHL must submit a housing plan each year prior to the start of its fiscal year. The housing plan has two components, a five-year plan and a one-year plan, as follows:
(c)
(2)
(d)
Eligible affordable housing activities are development, housing services, housing management services, crime prevention and safety activities, and model activities. Affordable housing activities under this part are activities conducted in accordance with subpart D of this part to develop, operate, maintain, or support housing for rental or homeownership; or provide services with respect to affordable housing through the activities described in this subpart. NHHBG funds may only be used for eligible activities that are consistent with the DHHL's housing plan.
(a) * * *
(9) The development and rehabilitation of utilities, necessary infrastructure, and utility services;
(e) Management of tenant-based rental assistance;
(f) The costs of operation and maintenance of units developed with NHHBG funds; and
(a) NHHBG funds may be used for the provision of tenant-based rental assistance, which may include security deposits and first month's rent, and project-based rental assistance.
(1) Rental assistance must comply with the requirements of this part and be provided to eligible families.
(2) Rental assistance may be provided to eligible families both on and off the Hawaiian Home Lands provided such use is consistent with the applicable appropriations acts governing the use of the NHHBG funds.
(b) [Reserved].
(a)
(b)
(2)
(3)
(ii) Non-low-income families cannot receive the same benefits provided low-income Native Hawaiian families. The amount of assistance non-low-income families may receive will be determined by DHHL as established in its written policies.
(iii) The requirements set forth in paragraphs (b)(3)(i) and (ii) of this section do not apply to other families who are non-low income that DHHL has determined to be essential under § 1006.301(c).
(c)
(1) The presence of the family in the housing involved is essential to the well-being of Native Hawaiian families; and
(2) The need for housing for the family cannot be reasonably met without the assistance.
(d)
(a)
(1) In the case of rental housing, at the time of the family's initial occupancy of such unit;
(2) In the case of housing for homeownership, at the time of purchase. When DHHL enters into a loan contract with the family for NHHBG assistance to purchase or construct a homeownership unit, the time of purchase means the time that loan contract is executed;
(3) In the case of owner-occupied housing units, at the time the family receives NHHBG assistance;
(4) In the case of a lease-purchase agreement for existing housing or for housing to be constructed, at the time the lease-purchase agreement is signed; and
(5) In the case of emergency assistance to prevent homelessness or foreclosure, at the time the family receives NHHBG assistance.
(b)
(a)
(b)
(a) A family that was low-income at the times described in § 1006.305 but subsequently becomes a non-low-income family may continue to participate in the program in accordance with DHHL's admission and occupancy policies. The 10 percent limitation in § 1006.301(b)(3)(i) in this part shall not apply to such families. Such families may be made subject to the additional requirements in § 1006.301(b)(3)(ii) of this part based on those policies.
(b) [Reserved]
(a)
(1)
(2)
(3)
(b)
(c)
(d)
(a)
(1) Subpart A, “Disclosure of Known Lead-Based Paint Hazards Upon Sale or Lease of Residential Property”;
(2) Subpart B, “General Lead-Based Paint Requirements and Definitions for All Programs”;
(3) Subpart H, “Project-Based Rental Assistance”;
(4) Subpart J, “Rehabilitation”;
(5) Subpart K, “Acquisition, Leasing, Support Services, or Operation”;
(6) Subpart M, “Tenant-Based Rental Assistance”; and
(7) Subpart R, “Methods and Standards for Lead-Based Paint Hazard Evaluation and Hazard Reduction Activities”.
(b)
(c)
(d)
(e)
(f)
The following relocation and real property acquisition policies are applicable to programs developed or operated under the Act and this part:
(a)
(b)
(c)
(d)
(e)
(2) The cost of required relocation assistance is an eligible project cost in the same manner and to the same extent as other project costs. However, such assistance may also be paid for with funds available to the DHHL from any other source.
(3) The DHHL shall maintain records in sufficient detail to demonstrate compliance with this section.
(f)
(i) A tenant-occupant of a dwelling unit who moves from the building/complex permanently after the submission to HUD of a housing plan that is later approved;
(ii) Any person, including a person who moves before the date the housing plan is submitted to HUD, that the DHHL determines was displaced as a direct result of acquisition, rehabilitation, or demolition for the assisted project;
(iii) A tenant-occupant of a dwelling unit who moves from the building/complex permanently after execution of the agreement between the DHHL and HUD, if the move occurs before the tenant is provided written notice offering him or her the opportunity to lease and occupy a suitable, decent, safe and sanitary dwelling in the same building/complex, under reasonable terms and conditions, upon completion of the project. Such reasonable terms and conditions include a monthly rent and estimated average monthly utility costs that do not exceed the greater of:
(A) The tenant-occupant's monthly rent and estimated average monthly utility costs before the agreement; or
(B) 30 percent of gross household income.
(iv) A tenant-occupant of a dwelling who is required to relocate temporarily, but does not return to the building/complex, if either:
(A) The tenant-occupant is not offered payment for all reasonable out-of-pocket expenses incurred in connection with the temporary relocation, including the cost of moving to and from the temporarily occupied unit, any increased housing costs and incidental expenses; or
(B) Other conditions of the temporary relocation are not reasonable.
(v) A tenant-occupant of a dwelling who moves from the building/complex after he or she has been required to move to another dwelling unit in the same building/complex in order to carry out the project, if either:
(A) The tenant-occupant is not offered reimbursement for all reasonable out-of-pocket expenses incurred in connection with the move; or
(B) Other conditions of the move are not reasonable.
(2) Notwithstanding the provisions of this section for the definition of “Displaced Person,” a person does not qualify as a “displaced person” (and is not eligible for relocation assistance under the URA or this section), if:
(i) The person moved into the property after the submission of the housing plan to HUD, but before signing a lease or commencing occupancy, was provided written notice of the project, its possible impact on the person (
(ii) The person is ineligible under 49 CFR 24.2(a)(9)(ii); or
(iii) The DHHL determines the person is not displaced as a direct result of acquisition, rehabilitation, or demolition for an assisted project. To exclude a person on this basis, HUD must concur in that determination.
(3) The DHHL may at any time ask HUD to determine whether a specific displacement is or would be covered under this section.
(g)
(a) * * *
(2) Submit a report in a form acceptable to HUD, within 90 days of the end of the DHHL's fiscal year, to HUD describing the conclusions of the review.
(3) DHHL may submit a written request for an extension of the deadline. HUD will establish a new date for submission if the extension is granted.
(c) * * *
(1)
National Agricultural Statistics Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention of the National Agricultural Statistics Service (NASS) to request revision and extension of a currently approved information collection, the Aquaculture Surveys. Revision to burden hours will be needed due to changes in NASS estimates programs, target population sizes, sampling designs, and/or content of questionnaires.
Comments on this notice must be received by March 6, 2023 to be assured of consideration.
You may submit comments, identified by docket number 0535-0150, by any of the following methods:
•
•
•
•
Kevin L. Barnes, Associate Administrator, National Agricultural Statistics Service, U.S. Department of Agriculture, (202) 720-2707. Copies of this information collection and related instructions can be obtained without charge from Richard Hopper, NASS—OMB Clearance Officer, at (202) 720-2206 or at
The trout survey includes sales (dollars, pounds, and quantities), percent of product sold by outlet at the point of first sale, distribution (dollars, pounds, and quantities) of fish raised for release into open waters, and losses. The catfish surveys include inventory counts, water surface acreage used for production and sales (dollars, pounds, and quantities).
• Twenty-five states (Arkansas, California, Colorado, Connecticut, Georgia, Idaho, Massachusetts, Michigan, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming) are in the Trout Production Survey. In January, data are collected in the selected states that produce and either sell or distribute trout. State, federal, tribal, and other facilities where trout are raised for conservation, restoration, or recreational purposes are included in the survey.
• Nine states (Alabama, Arkansas, California, Georgia, Louisiana, Mississippi, Missouri, North Carolina, and Texas) are in the Catfish Production Survey. Data are collected from farmers in January for inventory, water surface acreage, and previous year sales. In addition, farmers in the three major catfish producing states are surveyed in July for mid-year inventory and water surface acreage.
• An aquaculture survey is conducted in Hawaii is conducted under a cooperative agreement with the state.
• An aquaculture census is conducted in Pennsylvania to satisfy Act 98 of the 1998 Pennsylvania General Assembly Amended Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes mentions the Pennsylvania Department of Agriculture cooperates with NASS for a survey of Pennsylvania's aquacultural industry.
• All of the surveys conducted under this approval will have a voluntary reporting statement on each questionnaire with exception to the Pennsylvania Aquaculture Census, which is required by State Law.
All NASS employees and NASS contractors must also fully comply with all provisions of the Confidential Information Protection and Statistical Efficiency Act (CIPSEA) of 2018, Title III of Public Law 115-435, codified in 44 U.S.C. Ch. 35. CIPSEA supports NASS's pledge of confidentiality to all respondents and facilitates the agency's efforts to reduce burden by supporting statistical activities of collaborative agencies through designation of NASS agents, subject to the limitations and penalties described in CIPSEA.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) preliminarily determines that the respondents selected for individual examination, respectively, Ingenio Tala S.A. de C.V. and Ingenio Tamazula S.A. de C.V. (collectively, respondents), were in compliance with the terms of the Agreement Suspending the Antidumping Duty Investigation on Sugar from Mexico, as amended (AD Agreement) during the period of review (POR) from December 1, 2020, through November 30, 2021. Commerce also preliminarily determines that the AD Agreement met the applicable statutory requirements during the POR.
Applicable January 4, 2023.
Sally C. Gannon or Jill Buckles, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0162 or (202) 482-6230, respectively.
Commerce and Mexican producers/exporters accounting for substantially all imports of sugar from Mexico signed the AD Agreement under section 734(c) of the Tariff Act of 1930, as amended (the Act), which suspended the underlying antidumping duty investigation, on December 19, 2014, and which was subsequently amended on January 15, 2020.
On December 23, 2021, the American Sugar Coalition and its members (the petitioners)
On March 15, 2022, Commerce selected two companies as mandatory respondents, listed in alphabetical order: Ingenio Tala S.A. de C.V. and Ingenio Tamazula S.A. de C.V.
The product covered by this AD Agreement is raw and refined sugar of all polarimeter readings derived from sugar cane or sugar beets. Merchandise covered by this AD Agreement is typically imported under the following headings of the HTSUS: 1701.12.1000, 1701.12.5000, 1701.13.1000, 1701.13.5000, 1701.14.1020, 1701.14.1040, 1701.14.5000, 1701.91.1000, 1701.91.3000, 1701.99.1015, 1701.99.1017, 1701.99.1025, 1701.99.1050, 1701.99.5015, 1701.99.5017, 1701.99.5025, 1701.99.5050, and 1702.90.4000.
Commerce has conducted this review in accordance with section 751(a)(1)(C) of the Act, which specifies that Commerce shall “review the current status of, and compliance with, any agreement by reason of which an investigation was suspended.” Pursuant to the AD Agreement, each signatory producer/exporter individually agrees that it will not sell subject merchandise at prices less than the reference prices established in Appendix I to the AD Agreement.
After reviewing the information received to date from the respondent companies in their questionnaire and supplemental questionnaire responses, we preliminarily determine that the respondents have adhered to the terms of the AD Agreement and that the AD Agreement is functioning as intended. Further, we preliminarily determine that the AD Agreement continues to meet the statutory requirements under sections 734(c) and (d) of the Act.
We were not able to complete our review of one aspect of the AD Agreement, the requirement in Section VI to eliminate at least 85 percent of the dumping found in the investigation, and we therefore intend to address this issue in a post-preliminary analysis. Due to the complex nature of the issue, we find that we require additional time and information in order to complete our examination. Therefore, we will continue our examination after the issuance of these preliminary results as to whether the respondents complied with the requirement to eliminate at least 85 percent of the dumping found in the investigation during the POR, and we intend to issue a post-preliminary analysis addressing the issue as soon as practicable.
For a full description of the methodology underlying our conclusions,
As provided in section 782(i) of the Act, Commerce may verify the information relied upon in making its final results. Normally, Commerce verifies information using standard procedures, including an on-site examination of original accounting, financial, and sales documentation. While we consider the possibility of conducting an on-site verification for the information submitted by the respondents, we may also need to verify the information relied upon in making the final results through alternative means in lieu of an on-site verification. Commerce intends to notify parties of its verification procedures, as applicable.
Commerce intends to issue a post-preliminary analysis memorandum subsequent to the publication of this notice to address the issue of compliance with the requirement to eliminate at least 85 percent of the dumping found in the investigation. Case briefs may be submitted no later than seven days after the date on which the last final verification report is issued in this review. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than seven days after the deadline date for case briefs.
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 within 30 days after the date of publication of this notice.
Section 751(a)(3)(A) of the Act, requires Commerce to complete the final results of an administrative review within 120 days after the date on which the preliminary results are published. If it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(2) allow Commerce to extend the time limit for the final results to a maximum of 180 days after the date on which the preliminary results are published. We determine that it is not practicable to complete the final results of this administrative review within 120 days from the date of publication of these preliminary results. Commerce requires additional time to analyze supplemental questionnaire responses and submissions of factual information, complete our examination, issue our post-preliminary analysis, potentially conduct verification of questionnaire responses, and allow for case briefs and rebuttal briefs on our preliminary and post-preliminary results. Accordingly, Commerce is extending the deadline for the final results of this administrative review by 60 days. The final results of the review will now be due no later than 180 days from the date of publication of these preliminary results.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Enforcement & Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) preliminarily determines that the signatory, the Government of Mexico (GOM), and the respondent companies selected for individual examination, respectively, Ingenio Tala S.A. de C.V. and Ingenio Tamazula S.A. de C.V., were in compliance with the Agreement Suspending the Countervailing Duty Investigation on Sugar from Mexico, as amended (CVD Agreement) during the period of review (POR). Commerce also preliminarily determines that the CVD Agreement met the applicable statutory requirements during the POR.
Applicable January 4, 2023.
Sally C. Gannon or David Cordell, Enforcement & Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, telephone: (202) 482-0162 or (202) 482-0408, respectively.
Commerce and the GOM signed the CVD Agreement under section 704(c) of the Act, which suspended the underlying countervailing duty investigation on sugar from Mexico, on December 19, 2014, and which was subsequently amended on January 15, 2020.
On December 23, 2021, the American Sugar Coalition and its members (the petitioners)
On March 15, 2022, Commerce selected two companies as mandatory respondents, listed in alphabetic order: Ingenio Tala S.A. de C.V. and Ingenio Tamazula S.A. de C.V.
The product covered by this CVD Agreement is raw and refined sugar of all polarimeter readings derived from sugar cane or sugar beets. Merchandise covered by this CVD Agreement is typically imported under the following headings of the HTSUS: 1701.12.1000, 1701.12.5000, 1701.13.1000, 1701.13.5000, 1701.14.1020, 1701.14.1040, 1701.14.5000, 1701.91.1000, 1701.91.3000, 1701.99.1015, 1701.99.1017, 1701.99.1025, 1701.99.1050, 1701.99.5015, 1701.99.5017, 1701.99.5025, 1701.99.5050, and 1702.90.4000.
Commerce has conducted this review in accordance with section 751(a)(1)(C) of the Act, which specifies that Commerce shall “review the current status of, and compliance with, any agreement by reason of which an investigation was suspended.” Pursuant to the CVD Agreement, the GOM agrees that subject merchandise is subject to export limits.
After reviewing the information received to date from the GOM and respondent companies in their questionnaire and supplemental questionnaire responses, we preliminarily determine that the GOM and respondent companies have adhered to the terms of the CVD Agreement and that the CVD Agreement is functioning as intended. Further, we preliminarily determine that the CVD Agreement continues to meet the statutory requirements under sections 704(c) and (d) of the Act.
For a full description of the methodology underlying our conclusions,
As provided in section 782(i) of the Act, Commerce may verify the information relied upon in making its final results. Normally, Commerce verifies information using standard procedures, including an on-site examination of original accounting, financial, and sales documentation. While we consider the possibility of conducting an on-site verification for some of the information submitted by the respondents, we may also need to verify the information relied upon in making the final results through alternative means in lieu of an on-site verification. Commerce intends to notify parties of its verification procedures, as applicable.
Case briefs may be submitted no later than seven days after the date on which the last final verification report is issued in this review. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than seven days after the deadline date for case briefs.
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 within 30 days after the date of publication of this notice.
Commerce intends to issue the final results of this administrative review, including the results of its analysis of the issues raised in any written briefs, not later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act, unless extended.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed modification of a Letter of Authorization; request for comments.
NMFS is proposing to modify the Letter of Authorization (LOA) that was issued to the United States Navy (Navy) on January 26, 2022 in association with construction activities related to bulkhead replacement and repairs at Naval Station Newport (NAVSTA Newport) over the course of five years (2022-2027). Necessary additions to the Navy's construction plan include vibratory driving of 30-inch (in) steel pipe piles and Down-The-Hole (DTH) driving when technically required for repairs to the S45 bulkhead facility. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is proposing to modify the Navy's LOA to increase authorized take by Level B harassment for harbor seal, gray seal, and harp seals. NMFS is also proposing to include appropriate, additional shutdown mitigation provisions for all species in the modified LOA. The monitoring and reporting measures remain the same as prescribed in the initial LOA. NMFS will also consider public comments on the requested modification prior to making any final decision and agency responses will be summarized in the final notice of our decision.
Comments and information must be received no later than January 19, 2023.
Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Written comments should be submitted via email to
Cara Hotchkin, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the original application and supporting documents (including NMFS
The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
This action remains consistent with categories of activities identified in Categorical Exclusion B4 (incidental harassment authorizations with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the issuance of the proposed modified LOA continues to qualify to be categorically excluded from further NEPA review.
We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the LOA Modification request.
On December 15, 2021, NMFS issued a final rule to the Navy (86 FR 71162) to incidentally harass, by Level A and Level B harassment only, marine mammals during construction activities associated with bulkhead replacement and repairs at Naval Station Newport (NAVSTA Newport) over the course of 5 years (2022-2027). Subsequently, on January 26, 2022, NMFS issued a Letter of Authorization (LOA) to the Navy (87 FR 6145) associated with the final rule. Species authorized for take included Atlantic white-sided dolphin (
On November 15, 2022, NMFS received a request from the Navy for a modification to the NAVSTA Newport bulkhead construction project due to a change in the construction contractor's plan. On December 15, 2022, the Navy revised their request to incorporate NMFS's DTH source level recommendations (available at:
The modified LOA would include the same construction activities (
A detailed description of the construction activities is found in the aforementioned documents associated with issuance of the initial LOA. The location, time of year, and general nature of the activities are identical to those described in the previous documents. However, as noted in the History of Request section, the Navy anticipates that vibratory installation of 30-in steel pipe piles and DTH hammering will be necessary to complete the S45 phase of the project on time. Differences between the activities analyzed in the final rule and those analyzed in support of the proposed modification are shown in Table 1.
Under the proposed modification, replacement of Section S45 would include the demolition and replacement of approximately 310 ft of existing steel sheet pile bulkhead just south of Pier 1. The existing bulkhead would then be replaced with a new deadman anchored king pile system. The system would consist of approximately 4 (30-in) steel pipe piles; 160 (80 pairs) (22.5-in) Z-shaped sheet piles; and approximately 76 (14-in) H-piles. These piles would be installed approximately 1ft in front of the existing bulkhead using a combination of vibratory and impact hammers, as necessary. In the modification request, the Navy has determined that the four 30-in steel pipe piles will be installed with a vibratory hammer, rather than the impact hammer considered in the final rule. Additionally, the Navy has proposed the limited use of a DTH system on an as needed basis, if obstructions are
A description of the marine mammals in the area of the activities is found in these previous documents, which remains applicable to this modified LOA as well. In addition, NMFS has reviewed the 2021 Stock Assessment Reports (Hayes
A description of the potential effects of the specified activities on marine mammals and their habitat may be found in the documents supporting the final rule, which remains applicable to modification of the LOA. NMFS is not aware of new information regarding potential effects.
A detailed description of the methods and inputs used to estimate authorized take for the specified activity are found in the proposed rule (86 FR 56857; October 13, 2021); the descriptions presented in the proposed rule did not change in the final rule (86 FR 71162; December 15, 2021). The types and sizes of piles, and marine mammal stocks taken remain unchanged from the final rule. The proposed modification addresses the addition of vibratory driving of four 30-in steel pipe piles and ten instances of DTH hammering at the S45 bulkhead, which would result in increased harassment zone sizes. The Navy anticipates that up to four days of vibratory driving (up to two piles per day) and up to eight days of DTH hammering at one hole per day will be required. Acoustic effects on marine mammals during the specified activity can occur from impact and vibratory pile installation and removal, and DTH. The effects of underwater noise from the Navy's proposed activities have the potential to result in Level A and Level B harassment of marine mammals in the action area.
The proposed modification includes the use of DTH hammers, which were not evaluated in the final rule. A DTH hammer is essentially a drill bit that drills through the bedrock using a rotating function like a normal drill, in concert with a hammering mechanism operated by a pneumatic (or sometimes hydraulic) component integrated into to the DTH hammer to increase speed of progress through the substrate (
A detailed description of the operational and environmental parameters of the activity that are used in estimating the area ensonified above the acoustic thresholds, including source levels and transmission loss coefficient, can be found in the proposed rule (86 FR 56857; October 13, 2021), and did not change in the final rule (86 FR 71162; December 15, 2021). The new proposed activities include vibratory driving of 30-in pipe piles and DTH hammering; for those activities, we provide a description of the sound source levels and ensonified areas below.
NMFS recommends treating DTH systems as both impulsive and continuous, non-impulsive sound source types simultaneously. Thus, impulsive thresholds are used to evaluate Level A harassment, and the continuous threshold is used to evaluate Level B harassment. The Navy consulted with NMFS to obtain the appropriate proxy values for DTH mono-hammers. NMFS recommended proxy levels for Level A harassment based on available data regarding DTH systems of similar sized piles and holes (Table 2) (Denes
The methods used to calculate the ensonified areas based on the sound source information in Table 2 are identical to those used in the final rule; details are provided in the Proposed Rule (86 FR 56857; October 13, 2021). The resulting Level A and Level B harassment isopleths are provided in Tables 3 and 4.
A description of the methods used to estimate take anticipated to occur from the project is found in the project's aforementioned documents. The methods of estimating take are identical to those used in the final rule. Table 5 shows the authorized takes at the S45 facility under the initial LOA (all in year 1) and the estimated takes from the proposed modification.
The reporting measures proposed are identical to those included in the initial LOA and the discussion of the least practicable adverse impact included in 2022 final rule. The monitoring and mitigation measures have been updated to include additional hydroacoustic monitoring and conservative shutdown zones. The following measures are proposed for inclusion in the LOA Modification, and are in addition to those described in the Final Rule (86 FR 71162; December 15, 2021):
• Supplemental hydroacoustic monitoring will include:
○ 30-in Steel Pipe—vibratory driving: 2 piles; and
○ Obstruction drilling—DTH hammer: up to 8 holes (if required for pile installation).
• Shutdown zones for the new activities identical to those identified in the Final Rule (86 FR 71162; December 15, 2021):
○
○
With the exception of the revised take numbers and monitoring and mitigation measures, the Navy's in water construction activities as well as reporting requirements are unchanged from those in the initial LOA. The effects of the activity on the affected species and stocks, taking into consideration the modified mitigation and related monitoring measures, remain unchanged, notwithstanding the increase to the authorized amount of harbor seal, gray seal, and harp seal take by Level B harassment.
The additional takes from Level B harassment would be due to potential behavioral disturbance and TTS. No serious injury or mortality is anticipated given the nature of the activity and measures designed to minimize the possibility of injury to marine mammals. The potential for harassment is minimized through the construction method and the implementation of the planned mitigation measures (see Description of Mitigation, Monitoring and Reporting Measures section).
The Navy's proposed pile driving project precludes the likelihood of serious injury or mortality. For all species and stocks, take would occur within a limited, confined area (immediately surrounding NAVSTA Newport in the Narragansett Bay area) of the stock's range. Level A and Level B harassment will be reduced to the level of least practicable adverse impact through use of mitigation measures described herein. Furthermore, the amount of take proposed to be authorized is extremely small when compared to stock abundance.
The additional 72 takes of harbor, gray, and harp seals represents an increase of approximately 5.7 percent of the total take authorized in the initial LOA, and the anticipated impacts are identical to those described in the 2022 final rule. The amount of additional take for each species is also small (less than 1 percent of each stock). The Navy has proposed additional hydro-acoustic monitoring of the new activities, which will improve understanding of the source levels of such activities for future work. The proposed modification to the LOA includes additional required mitigation and monitoring measures (albeit some minor modification to harassment and shutdown distances), and identical reporting measures as the 2022 LOA.
In conclusion, there is no new information suggesting that our analysis or findings should change.
Based on the information contained here and in the referenced documents, NMFS has preliminarily determined the following: (1) the required mitigation measures will effect the least practicable impact on marine mammal species or stocks and their habitat; (2) the proposed authorized takes will have a negligible impact on the affected marine mammal species or stocks; (3) the proposed authorized takes represent small numbers of marine mammals relative to the affected stock abundances; and (4) Navy's activities will not have an unmitigable adverse impact on taking for subsistence purposes as no relevant subsistence uses of marine mammals are implicated by this action, and (5) appropriate monitoring and reporting requirements are included..
Section 7(a)(2) of the ESA (16 U.S.C. 1531
No incidental take of ESA-listed species is proposed for authorization or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.
As a result of these preliminary determinations, NMFS proposes to issue an LOA modification to the United States Navy for conducting construction activities for bulkhead replacement and repairs at the S45 Facility at Naval Station Newport (NAVSTA Newport),
We request comment on our analyses on the proposed modification and supporting analyses described in this notice of Proposed LOA Modification for the proposed construction activities for bulkhead replacement and repairs at the S45 Facility. Please include with your comments any supporting data or literature citations to help inform our final decision on the request for MMPA authorization.
Commodity Futures Trading Commission.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (PRA), this notice announces that the Information Collection Request (ICR) abstracted below has been forwarded to the Office of Information and Regulatory Affairs (OIRA), of the Office of Management and Budget (OMB), for review and comment. The ICR describes the nature of the information collection and its expected costs and burden.
Comments must be submitted on or before February 3, 2023.
Written comments and recommendations for the proposed information collection should be submitted within 30 days of this notice's publication to OIRA, at
In addition to the submission of comments to
Or by either of the following methods:
•
•
All comments must be submitted in English, or if not, accompanied by an English translation. Comments submitted to the Commission should include only information that you wish to make available publicly. If you wish the Commission to consider information that you believe is exempt from disclosure under the Freedom of Information Act, a petition for confidential treatment of the exempt information may be submitted according to the procedures established in § 145.9 of the Commission's regulations.
Isabella Bergstein, Attorney Adviser, Division of Market Oversight, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW, Washington, DC 20581 (202) 993-1384; email:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. On October 24, 2022, the Commission published in the
There are no capital costs or operating and maintenance costs associated with this collection.
Under Secretary of Defense for Personnel and Readiness, Department of Defense (DoD).
Notice of Federal Advisory Committee meeting.
The DoD is publishing this notice to announce that the following Federal Advisory Committee meeting of the Uniform Formulary Beneficiary Advisory Panel (UF BAP) will take place.
Open to the public Wednesday, January 4, 2023, 10 a.m.-1 p.m. (Eastern Standard Time).
The meeting will be held telephonically or via conference call. The phone number for the remote access on January 4, 2023 is: CONUS: 1-800-369-2046; OCONUS: 1-203-827-7030; PARTICIPANT CODE: 8546285.
These numbers and the dial-in instructions will also be posted on the UF BAP website at:
Designated Federal Officer (DFO) Colonel Paul J. Hoerner, USAF, 703-681-2890 (voice),
This meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.140 and 102-3.150.
Due to circumstances beyond the control of the Designated Federal Officer, the Uniform Formulary Beneficiary Advisory Panel was unable to provide public notification required by 41 CFR 102-3.150(a) concerning its January 4, 2023, meeting. Accordingly, the Advisory Committee Management Officer for the Department of Defense, pursuant to 41 CFR 102-3.150(b), waives the 15-calendar day notification requirement.
Department of the Navy (DoN), Department of Defense (DoD).
Notice of availability.
The United States DoN, after carefully weighing the strategic, operational, and environmental consequences of the Proposed Action (Gulf of Alaska Navy Training Activities Final Supplemental Environmental Impact Statement/Overseas Environmental Impact Statement [EIS/OEIS], published in the
The complete text of the Record of Decision (ROD) is available on the project website at
Implementation of Alternative 1, the Preferred Alternative, will allow the DoN to fully meet current and future requirements in the Gulf of Alaska Study Area. Training activities include the use of active sound navigation and ranging, known as sonar, in the Temporary Maritime Activities Area and weapon systems at sea that may use non-explosive or explosive munitions. Training will be conducted in the manner and at the intensity as described in Alternative 1. Implementation of this Preferred Alternative will enable the DoN and other U.S. military services to best meet their respective missions. The DoN's mission, under Title 10 United States Code Section 8062, is to maintain, train, and equip combat-ready military forces capable of winning wars, deterring aggression, and maintaining freedom of the seas. The DoN will continue to implement standard operating procedures and mitigation measures, including the implementation of a new mitigation area within the continental shelf and slope of the Temporary Maritime Activities Area, and adhere to management plans and monitoring requirements to avoid or reduce potential environmental impacts during training activities.
This is a supplemental notice in the above-referenced proceeding of PGR 2022 Lessee 2, 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 17, 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
On December 27, 2022, the Commission issued an order in Docket No. EL23-17-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e, instituting an investigation into whether the existing inputs in AEP Generating Company's unit power service agreement with its affiliate, Indiana Michigan Power Company, as carried over into the revised service agreement are unjust, unreasonable, unduly discriminatory or preferential, or otherwise unlawful and to establish a refund effective date.
The refund effective date in Docket No. EL23-17-000, 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. EL23-17-000 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 Fresh Air Energy XXIII, 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 17, 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
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit an information collection request (ICR), “National Estuary Program (Renewal)” (EPA ICR No. 1500.11, OMB Control No. 2040-0138) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA). Before doing so, EPA is soliciting public comments on specific aspects of the proposed information collection as described below. This is a proposed extension of the ICR, which is currently approved through September 30, 2023. An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information without a currently valid OMB control number.
Comments must be submitted on or before March 6, 2023.
Submit your comments, referencing Docket ID No. EPA-HQ-OW-2006-0369 online using
EPA's policy is that all comments received will be included in the public docket without change, including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Vince Bacalan, Oceans, Wetlands and Communities Division; Office of Wetlands, Oceans and Watersheds, (Mail Code 4504T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-566-0930; fax number: 202-566-1336; email address:
Supporting documents that explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
Prospective grant recipients seek funding to develop and coordinate the implementation of Comprehensive Conservation Management Plans (CCMPs) for estuaries of national significance. To receive funds, grantees must submit annual work plans to EPA, which are used to track performance of each of the 28 estuary program locations currently in the NEP. EPA provides funding to the 28 NEPs to support long-term implementation of CCMPs in the form of assistance agreements, and each NEP is evaluated on its progress every five years. The primary purpose of the program evaluation process is to help EPA determine whether the 28 programs included in the NEP are making adequate progress implementing their CCMPs. EPA also requests that each of the 28 NEPs receiving section 320 funds report annually on a number of performance measures that allow EPA to maintain effective program management, execute its fiduciary responsibility to the program, and summarize environmental results achieved within the overall NEP. Information gathered may be included in agency reports along with other EPA program measures.
The passage of the Infrastructure Investment and Jobs Act, also known as Bipartisan Infrastructure Law (BIL), on November 15, 2021, enhances the work of the NEPs with additional funding to accelerate and more extensively implement CCMPs, ensure that benefits reach disadvantaged communities, and build the adaptive capacity of ecosystems and communities. As part of this expanded investment, the NEP is also required to track certain investments and benefits under the Justice40 Initiative (part II section 223 of 86 FR 7619, February 1, 2021), which will increase the overall burden estimates for this renewal.
Environmental Protection Agency (EPA).
Notice.
EPA has received applications to register pesticide products containing active ingredients not included in any currently registered pesticide products. Pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is hereby providing notice of receipt and opportunity to comment on these applications.
Comments must be received on or before February 3, 2023.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2021-0083, through the
Charles Smith, Biopesticides and Pollution Prevention Division (BPPD) (7511M), main telephone number: (202) 566-1400, email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
1.
2.
EPA has received applications to register pesticide products containing active ingredients not included in any currently registered pesticide products. Pursuant to the provisions of FIFRA section 3(c)(4) (7 U.S.C. 136a(c)(4)), EPA is hereby providing notice of receipt and opportunity to comment on these applications. Notice of receipt of these applications does not imply a decision by the Agency on these applications. For actions being evaluated under EPA's public participation process for registration actions, there will be an additional opportunity for public comment on the proposed decisions. Please see EPA's public participation website for additional information on this process (
Federal Trade Commission.
Proposed consent agreement; request for comment.
The consent agreement in this matter settles alleged violations of Federal law prohibiting unfair or deceptive acts or practices. The attached Analysis of Proposed Consent Order to Aid Public Comment describes both the allegations in the draft complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before February 3, 2023.
Interested parties may file comments online or on paper by following the instructions in the Request for Comment part of the
James Doty (202-326-2628), Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580.
Pursuant to section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule § 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of 30 days. The following Analysis to Aid Public Comment describes the terms of the consent agreement and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained at
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before February 3, 2023. Write “Epic Games, Inc.; File No. 192 3203” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the
Because of heightened security screening, postal mail addressed to the Commission will be subject to delay. We strongly encourage you to submit your comments online through the
If you prefer to file your comment on paper, write “Epic Games, Inc.; File No. 192 3203” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex D), Washington, DC 20580.
Because your comment will be placed on the publicly accessible website at
Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule § 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record.
Visit the FTC Website at
The Federal Trade Commission (“FTC” or “Commission”) has accepted, subject to final approval, an agreement containing a consent order from Epic Games, Inc. (“Respondent”). The proposed consent order has been placed on the public record for 30 days for receipt of comments written by interested persons. Comments received during this period will become part of the public record. After 30 days, the Commission will again review the agreement and the comments received and will decide whether it should withdraw from the agreement or make final the agreement's proposed order.
Respondent is the developer and distributor of the video game Fortnite. Respondent bills users for the purchase of virtual currency (V-bucks) and also bills users' V-bucks for the purchase of items within Fortnite. This matter concerns Epic's (1) billing for charges without having obtained account holders' express, informed consent and (2) deactivating the accounts of consumers who exercise their right to dispute charges.
The Commission's proposed complaint alleges that Epic saved parental credit card information by default and permitted subsequent unauthorized purchases by children. Specifically, children were permitted to make V-bucks purchases simply by pressing buttons, without parental or card holder action or consent (for example, without entry of a pin, password, or CVV number). Epic has also billed users of all ages for unauthorized V-bucks charges within
The proposed consent order contains provisions designed to prevent Respondent from engaging in similar acts or practices in the future. Part I prohibits Respondent from billing consumers for charges without procuring their express, informed consent. Part II bars Respondent from denying consumers access to their accounts based on their exercise of chargeback rights. Part III requires Respondent to pay $245,000,000 in monetary relief. Part IV contains additional requirements regarding monetary relief. Part V requires Respondent to provide sufficient customer information to enable the Commission to administer consumer redress.
Parts VI through X are reporting and compliance provisions. Part VI requires Respondent to acknowledge receipt of the order, to provide a copy of the order to certain current and future principals, officers, directors, and employees, and to obtain an acknowledgement from each such person that he or she has received a copy of the order. Part VII requires Respondent to file a compliance report within one year after the order becomes final and to notify the Commission within 14 days of certain changes that would affect compliance with the order. Part VIII requires Respondent to maintain certain records, including records necessary to demonstrate compliance with the order. Part IX requires Respondent to submit additional compliance reports when requested by the Commission and to permit the Commission or its representatives to interview Respondent's personnel. Finally, Part X is a “sunset” provision, terminating the order after twenty (20) years, with certain exceptions.
The purpose of this analysis is to aid public comment on the proposed order. It is not intended to constitute an official interpretation of the proposed order or to modify its terms in any way.
By direction of the Commission.
Today, the FTC announced a settlement with Epic Games, the creator of the popular online video game Fortnite. I support and applaud this enforcement action, which takes important steps to protect the online privacy of children, including teens. And I am grateful to our talented staff for their excellent work on this case, which incorporates a noteworthy unfairness count and novel but fully warranted injunctive relief. This case clearly exemplifies the harms of insufficient privacy protections, particularly for children. Concerned parents may wish to review the FTC's helpful website with resources about protecting kids online.
I write separately to explain my support both for the unfairness count and the groundbreaking injunctive relief. Section 5 of the FTC Act provides the necessary flexibility to address emerging threats to consumers from new industries and evolving technologies.
I also write separately to underscore the dangers of insufficient privacy protections, particularly for children, including teens. As I write, close to three million gamers around the globe are playing Fortnite.
The results? I offer three examples:
In 2018, a 13-year-old boy (called MV#1 in court pleadings) told his doctor he was stressed because an adult male named “Gavin” whom he met while playing Fortnite planned to travel from “Gavin's” home in Pennsylvania to MV#1's home in Georgia for a visit. MV#1 wrote down a list of things “Gavin” wanted him to do, including “blow job, making out, kissing, cuddling, and fingering.” “Gavin,” later identified as Gregory Mancini, flew to Georgia in November 2018 and proposed to meet MV#1 at a Waffle House, where Mancini was arrested. A subsequent search of Mancini's computer “uncovered . . . child sexual abuse material depicting very young minors, including images involving adult males engaged in sexual abuse of
Also in 2018, Sergeant Christopher S. Gilbert met “Miss MN” online playing Fortnite. Using the voice chat feature in the game, “Miss MN” told Gilbert she was 13 years old, and Gilbert told her he was 22. The two traded Instagram account names and began exchanging private messages through the Instagram text messaging feature. A court subsequently concluded that Gilbert sexually abused “Miss MN” by sending her digital pictures and videos of his penis, engaged in inappropriate sexual conversations with her, and attempted to guilt her into sending nude images of herself. A subsequent search of Gilbert's phone revealed child pornography. Gilbert was convicted of sexual abuse of a child and possession of child pornography.
And in 2019, Juan Carlos Sandoval-Guerrero, using Fortnite, coerced a young child (called Victim B in court pleadings) into sending images that portray Victim B “displaying his penis, masturbating his penis with his hand and penetrating his anus with his finger. In some videos, Victim B can be seen wearing a wireless headset of the type . . . typically associated with video game systems like Xbox. During one of the videos, Victim B can be heard talking about the points he got on a game while he is masturbating his penis.” In 2021, Sandoval-Guerrero pled guilty to the production and attempted production of child pornography in violation of 18 U.S.C. 2251(a), (e).
These examples should concern any parent whose kids enjoy playing online video games. And they should serve as a wake-up call to skeptics who believe that invasions of privacy lead merely to targeted advertising.
Numerous news articles have reported that Fortnite and other online games foster a target-rich hunting ground for sexual predators.
I am not a Luddite. I recognize that children's lives can be enriched through social media, gaming, and other online resources. But online activity comes with risks, especially when internet products have flawed or non-existent safeguards. The FTC's Section 5 authority does not reach, and cannot prevent, every danger facing teens and children on the internet today. Here, however, I am comfortable with this use of our unfairness authority, and I am supportive of the groundbreaking injunctive relief requiring privacy-protective settings for children and teens, because I have reason to believe that Epic Games knew that its products and/or services presented a substantial risk of harm and did not take simple steps to address that risk.
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, and the Determination of the Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, CDC, pursuant to Public Law 92-463. 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.
Carlisha Gentles, PharmD, BCPS, CDCES, Scientific Review Official,
The Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice of request for information.
HRSA's Maternal and Child Health Bureau, Division of Healthy Start and Perinatal Services seeks the perspectives of Healthy Start grantees, community members, people with lived experience, health care providers, community health workers, birthing people, parents, and other members of the public to inform future Healthy Start program development.
Submit comments no later than February 3, 2023.
Submit comments by email to
Mia Morrison, MPH, Supervisory Public Health Analyst, Maternal and Child Health Bureau, Division of Healthy Start and Perinatal Services, HRSA, 5600 Fisher Lane, 18N15, Rockville, MD 20852. Phone: 301-443-2521. Email:
HRSA's Healthy Start Initiative: Eliminating Disparities in Perinatal Health (Healthy Start) program is authorized by 42 U.S.C. 254c-8 (section 330H of the Public Health Service Act). Healthy Start is a community-based program dedicated to reducing disparities in maternal and infant health. HRSA provides Healthy Start grants to communities with infant mortality rates at least 1.5 times the U.S. national average and with high rates of adverse perinatal outcomes (
HRSA currently funds 101 Healthy Start grantees in 35 states, the District of Columbia and Puerto Rico, to improve health outcomes before, during, and after pregnancy and reduce racial/ethnic differences in rates of infant death and adverse perinatal outcomes by: (1) improving access to quality health care and services for parents, birthing people, infants, children, and families through outreach, care coordination, health education, and linkage to health insurance; (2) strengthening the health workforce, specifically those individuals responsible for providing direct services; and (3) building healthy communities and ensuring ongoing, coordinated comprehensive services are provided in the most efficient manner through effective service delivery.
In addition, HRSA funds the Supporting Healthy Start Performance Project to provide grantees with technical assistance and training in order to achieve the goals of the Healthy Start program. Through Healthy Start investments, HRSA has also expanded access to doula care and invested in communities to improve infant health equity by developing data-driven systems level strategies addressing social and structural determinants of health. More information about the portfolio of Healthy Start programs is available online at:
Unacceptably high rates of infant and maternal mortality persist in communities across the country, with notable inequities by race and ethnicity. HRSA seeks to accelerate the elimination of inequities in birth outcomes in communities served by Healthy Start.
(1) Provide input on the types and mix of services (direct
(2) Propose criteria and/or methods for defining applicant project area and target population
(3) Provide recommendations on implementing Healthy Start programs with rural populations and underserved populations experiencing disproportionate adverse maternal and infant health outcomes (
(4) Provide recommendations on the most effective period to enroll Healthy Start participants (
(5) Provide input on the engagement of fathers in Healthy Start programs and recommendations for types of activities and programming. When possible, provide examples of successful community-based fatherhood initiatives (non-Healthy Start examples are welcome).
(6) Provide recommendations for increasing retention of community health workers in Healthy Start programs.
(7) Provide recommendations on culturally responsive approaches for providing Black, American Indian, Alaskan Native, and border populations with maternal and child health education, support navigating resources, and linkages to clinical services including doula, prenatal, well-woman, and pediatric care.
(8) Provide recommendations for strengthening engagement of birthing people, fathers, families, and people with lived experience in Healthy Start program design, implementation, and evaluation.
(9) Provide recommendations on the relevance of the current Healthy Start measures pertaining to the key challenges and inequities experienced in your community and priority population: (a) Which current measures are useful for evaluating program impact and why? (b) Which current measures are not useful for evaluating program impact and why? (c) Are there additional/new measures that would support Healthy Start program evaluation (if applicable provide examples and a rationale)? (For a list of current Healthy Start measures, see page 20 of the Healthy Start Initiative: Eliminating Disparities in Perinatal Health Notice of Funding Opportunity at
(10) HRSA currently provides an optional Healthy Start database to grantees (
Respondents may also provide additional comments or recommendations that are not specifically linked to the questions above. All responses may, but are not required to, identify the individual's name, address, email, telephone number, professional or organizational affiliation, background, or area of expertise (
Whenever possible, respondents are asked to draw their responses from lived experience and/or objective, empirical, and actionable evidence and to cite this evidence within their responses. This RFI is issued solely for information and planning purposes; it does not constitute a Request for Proposal, applications, proposal abstracts, or quotations. This RFI does not commit the government to contract for any supplies or services or make a grant or cooperative agreement award. Further, HRSA is not seeking proposals through this RFI and will not accept unsolicited proposals. HRSA will not respond to questions about the policy issues raised in this RFI. Responders are advised that the U.S. government will not pay for any information or administrative costs incurred in response to this RFI; all costs associated with responding to this RFI will be solely at the interested party's expense. Not responding to this RFI does not preclude participation in any future procurement or program, if conducted.
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 March 6, 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.
The PREP Act created the CICP and provides liability immunity to covered persons for claims of loss caused by, arising out of, relating to, or resulting from the administration or use of covered countermeasures for diseases, threats, and conditions identified in PREP Act declarations. The immunity extended in the PREP Act encourages the development, manufacture, testing, distribution, and administration/use of countermeasures (
To determine whether a requester is eligible for Program benefits (compensation) for a countermeasure injury, CICP staff must review the RFB package which includes the following:
The RFB Form and supporting documentation initiate the CICP claims review process. They also serve as the CICP's mechanism for gathering required information about the requester, documenting the use or administration of a countermeasure, and obtaining medical information about the countermeasure recipient.
The Authorization Form is completed by the requester and gives medical providers permission to disclose the countermeasure recipient's health information via medical records to CICP for the purpose of determining eligibility for CICP benefits.
During the eligibility review, CICP provides requesters with the opportunity to supplement their RFB with additional medical records and supporting documentation before the Program makes a final decision. CICP asks requesters to complete and sign a form indicating whether they intend to submit additional documentation prior to the final determination of their case. After CICP makes a final decision on a case, there are no other opportunities for a requester to submit additional medical records or supporting documents.
A requester who is an injured countermeasure recipient may be eligible to receive benefits for unreimbursed medical expenses and/or lost employment income. The estate of a deceased countermeasure recipient may also be eligible to receive payment for unreimbursed medical expenses and/or lost employment income accrued prior to the injured countermeasure recipient's death. These documents ask the requester to submit documentation of the countermeasure recipient's unreimbursed medical expenses and lost employment income. If death was the result of the administration or use of the countermeasure, certain survivor(s) of eligible deceased countermeasure recipients may be eligible to receive a death benefit, but not unreimbursed medical expenses or lost employment income benefits (42 CFR 110.33). These documents request additional information, such as a marriage license, from the requester to prove that they are a survivor of the deceased countermeasure recipient.
The RFB that CICP sends to requesters who may be eligible for compensation includes certification forms and instructions outlining the supporting documentation needed to determine the type and amount of benefits. This documentation is required under 42 CFR 110.60-110.63 of CICP's implementing regulation to enable the Program to determine the type and amount of benefits the requester may be eligible to receive.
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.
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 March 6, 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 information request collection title for reference.
MUA/P designations are geographic areas, or population groups within geographic areas, that are experiencing a shortage of primary care health care services based on the Index of Medical Underservice. MUAs are designated for the entire population of a particular geographic area. MUA/P designations are limited to particular subset of the population within a geographic area. Both designations were created to aid the federal government in identifying areas with healthcare workforce shortages.
As part of HRSA's cooperative agreement with the state Primary Care Offices (PCOs), the PCOs conduct needs assessment in their states, determine what areas are eligible for designations, and submit designation applications for HRSA review via the Shortage Designation Management System (SDMS). Requests that come from other sources are referred to the PCOs for their review, concurrence, and submission via SDMS. To obtain a federal shortage designation for an area, population, or facility, PCOs must submit a shortage designation application through SDMS for HRSA's review and approval. Both the HPSA and MUA/P application request local, state, and national data on the population that is experiencing a shortage of health professionals and the number of health professionals relative to the population covered by the proposed designation. HRSA uses the information collected on the applications to determine which areas, populations, and facilities have qualifying shortages.
In addition, HRSA notifies interested parties, including the governor, the state primary care association, state professional associations, etc., of each designation request submitted via SDMS for their comments and recommendations.
HRSA reviews the HPSA applications submitted by the PCOs, and—if they meet the designation eligibility criteria—designates the HPSA or MUA/P on behalf of the Secretary. HPSAs are statutorily required to be annually reviewed and revised as necessary after initial designation to reflect current data. HPSA scores, therefore, may and do change from time to time. Currently, MUA/Ps do not have a statutorily mandated review period.
The lists of designated HPSAs are published annually in the
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.
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 March 6, 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 information request collection title for reference.
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.
In accordance with the Federal Advisory Committee Act, this notice announces that the Council on Graduate Medical Education (COGME or Council) will hold public meetings for the 2023 calendar year (CY). Information about the COGME, agendas, and materials for these meetings can be found on the COGME website at
The COGME meetings will be held on:
Meetings will be held virtually and by teleconference. No in-person meetings will be conducted in 2023. For updates on how the meetings will be held, visit the COGME website 30 business days before the date of the meeting, where instructions for joining meetings will be posted. For meeting information updates, go to the COGME website meeting page at
Dr. Curi Kim, Designated Federal Official, Division of Medicine and Dentistry, Bureau of Health Workforce, HRSA, 5600 Fishers Lane, Room 15N35, Rockville, Maryland 20857; 301-945-5827; or
The COGME provides advice and recommendations to the Secretary of HHS on policy, program development, and other matters of significance concerning the issues listed in section 762(a) of the Public Health Service Act. Issues addressed by the COGME include the supply and distribution of the physician workforce in the United States, including any projected shortages or excesses; international medical school graduates; the nature and financing of undergraduate and graduate medical education; appropriation levels for certain programs under Title VII of the Public Health Service Act; and deficiencies in databases of the supply and distribution of the physician workforce and postgraduate programs for training physicians. The COGME submits reports to the Secretary of HHS; the Senate Committee on Health, Education, Labor and Pensions; and the House of Representatives Committee on Energy and Commerce. Additionally, the COGME encourages entities providing graduate medical education to conduct activities to voluntarily achieve the recommendations of the Council related to appropriate efforts to be carried out by hospitals, schools of medicine, schools of osteopathic medicine, and accrediting bodies with respect to the supply and distribution of physicians in the United States; current and future shortages or excesses of physicians in medical and surgical specialties and subspecialties; and issues relating to international medical graduates, including efforts for changes in undergraduate and graduate medical education programs.
Since priorities dictate meeting times, be advised that start times, end times, and agenda items are subject to change. For CY 2023 meetings, agenda items may include, but are not limited to, discussions on team-based health care, underrepresented groups in medicine, and general surgery in rural areas. Refer to the COGME website listed above for all current and updated information concerning the CY 2023 COGME meetings, including draft agendas and meeting materials that will be posted 30 calendar days before the meeting.
Members of the public will have the opportunity to provide comments. Public participants may submit written statements in advance of the scheduled meeting(s). Oral comments will be honored in the order they are requested and may be limited as time allows. Requests to submit a written statement or make oral comments to the COGME should be sent to Dr. Curi Kim using the contact information above at least 5 business days before the meeting date(s).
Individuals who need special assistance or another reasonable accommodation should notify Dr. Curi Kim using the contact information listed above at least 10 business days before the meeting(s) they wish to attend.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and 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 grant applications and 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 the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Heart, Lung, and Blood 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 Videocast 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.
Any member of the public interested in presenting oral comments to the committee may notify the Contact Person listed on this notice at least 10 days in advance of the meeting. Interested individuals and representatives of organizations may submit a letter of intent, a brief description of the organization represented, and a short description of the oral presentation. Only one representative of an organization may be allowed to present oral comments and if accepted by the committee, presentations may be limited to five minutes. Both printed and electronic copies are requested for the record. In addition, any interested person may file written comments with the committee by forwarding their 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.
In the interest of security, NIH has procedures at
Additional Health and Safety Guidance: Before attending a meeting at an NIH facility, it is important that visitors review the NIH COVID-19 Safety Plan at
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 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.
Office of Policy Development and Research, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Anna P. Guido, Reports Management Officer, REE, Department of Housing and Urban Development, 451 7th Street SW, Room 4176, Washington, DC 20410-5000; telephone 202-402-5534 (this is not a toll-free number) or email at
Anna P. Guido, Reports Management Officer, REE, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Anna P. Guido at
Copies of available documents submitted to OMB may be obtained from Ms. Guido.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
1. A “treatment group” that received grant funding to hire a Resident Wellness Director and Wellness Nurse and implement the SSD model (40 properties).
2. An “active control” group that did not receive grant funding but received a stipend to participate in the evaluation (40 properties).
3. A “passive control” group that received neither grant funding nor a stipend (44 properties).
The random assignment permits an evaluation that quantifies the impact of the SSD model by comparing outcomes at the 40 treatment group properties to outcomes at the 84 properties in the active and passive control groups.
Under contract with HUD's Office of Policy Development and Research, Abt Associates Inc. has been conducting a two-part evaluation: a process study to describe the implementation of the demonstration, and an impact study to measure the effect of the SSD model on residents' use of healthcare services and housing stability. The first phase of the demonstration ran from October 2017-October 2020. The Continuing Appropriations Act, 2021 and Other Extensions Act and the Consolidated Appropriations Act, 2021 extended the demonstration for an additional two years. Abt will continue to evaluate the demonstration through September 2026.
During the first phase of the evaluation, Abt Associates Inc. received OMB approval for the following primary data collection activities:
• Questionnaires with staff from the treatment and active control properties.
• Focus groups with residents of treatment and active control properties and caregivers of residents of the treatment properties.
• Interviews with Resident Wellness Directors and Wellness Nurses at the treatment group properties.
• Interviews with Service Coordinators at the active control group properties.
• Interviews with representatives of organizations that own or manage the active control or treatment properties.
This request is for an additional round of data collection for the activities listed below:
• Interviews with Resident Wellness Directors and Wellness Nurses at each of the 40 treatment properties.
• Interviews with property owners or managers at the 40 treatment properties and 40 active control properties.
• Interviews with up to 150 residents of 10 of the treatment properties.
The purpose of these activities is to collect data from demonstration staff, property owners and managers, and residents about the continued implementation of the demonstration, including the model's strengths and weakness, and how resident wellness services and activities compare across treatment and control properties. The evaluation will culminate in a comprehensive report that will be made publicly available.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected, and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35 and title 42 U.S.C. 5424 note, title 13 U.S.C. 8(b), and title 12, U.S.C., section 1701z-
Bureau of Land Management, Interior.
Notice of realty action.
The Bureau of Land Management (BLM) proposes to sell a 5-acre parcel of public land located in the southern portion of the Las Vegas Valley, Nevada, under the authorities of section 203 of the Federal Land Policy and Management Act of 1976, as amended (FLPMA), BLM land sale regulations, and the Southern Nevada Public Land Management Act of 1998, as amended (SNPLMA). The BLM proposes that the parcel be sold by direct sale to the Clark County Department of Social Services (Clark County), a division of the State of Nevada, at less than the appraised fair market value, for affordable housing purposes pursuant to section 7(b) of SNPLMA and applicable BLM policy.
Submit written comments regarding this direct sale until February 21, 2023.
Mail written comments to the BLM Las Vegas Field Office, Assistant Field Manager, Division of Lands, 4701 North Torrey Pines Drive, Las Vegas, Nevada 89130.
Kerri-Anne Thorpe, Supervisory Realty Specialist, Las Vegas Field Office, by email:
Clark County submitted a sale nomination application to the BLM for the proposed affordable housing project called Pebble and Eastern Affordable Housing Development (Pebble and Eastern Project). The sale parcel is in the City of Henderson, north of Pebble Road and west of Eastern Avenue, in the southeast part of the Las Vegas Valley. The parcel is further described as:
The area described contains 5 acres, according to the official plats of the surveys of said land on file with the BLM.
This direct sale is in conformance with the BLM Las Vegas Resource Management Plan Record of Decision LD-1, approved on October 5, 1998. The Las Vegas Valley Disposal Boundary Environmental Impact Statement and Record of Decision issued on December 23, 2004, and the Las Vegas In-Valley Area Multi-Action Analysis Environmental Assessment (DOI-BLM-NV-S010-2016-0054-EA) analyzed the sale of this parcel. A parcel-specific Determination of NEPA Adequacy (DOI-BLM-NV-S010-2020-0034-DNA) was prepared in connection with this notice. The parcel is not required for any Federal purpose.
Under SNPLMA section 7(b), the Secretary of the Interior, in consultation with the Secretary of Housing and Urban Development (HUD), may make BLM-administered public lands available for affordable housing purposes in the State of Nevada at less than the appraised fair market value. Attachment 1 of Instruction Memorandum NV-2006-067 (Authority and Provisions for Land Disposal for Affordable Housing), also referred to as the Nevada Guidance, provides the discount percentages that may be administratively applied to the fair market value for affordable housing sales. For the purposes of SNPLMA, housing is “affordable housing” if it serves low-income families as defined in section 104 of the Cranston-Gonzales National Affordable Housing Act (Cranston-Gonzales Act). The Cranston-Gonzales Act defines “low-income families” as families whose incomes do not exceed 80 percent of the median income for the area as determined by HUD, or as otherwise adjusted by statute. Clark County's proposed Pebble and Eastern Project would use 100 percent of the parcel to serve senior citizens, including seniors with special needs, with income at or below 60 percent of the area median income, which represents extremely low income based on the Nevada Guidance.
Clark County's application includes a comprehensive plan for assessment and evaluation of the need for and feasibility of this affordable housing project. As required by SNPLMA section 7(b), HUD reviewed the Pebble and Eastern Project and provided the BLM with a No Objection letter dated September 9, 2021. HUD's No Objection letter confirmed that the Pebble and Eastern Project, as proposed, will utilize 100 percent of the land to serve low and very low-income families whose income is 60 percent or less of the area median income. HUD further confirmed that the
In accordance with regulations at 43 CFR 2710.0-3(a)(2), “Disposal of such tract shall serve important public objectives, including but not limited to, expansion of communities and economic development, which cannot be achieved prudently or feasibly on lands other than public lands and which outweigh other public objectives and values . . .”. The BLM is offering the identified parcel by direct sale to Clark County pursuant to 43 CFR 2711.3-3(a) because, consistent with SNPLMA 7(b) and the Nevada Guidance, the County proposes to use the parcel for affordable housing purposes, as described in the Pebble and Eastern Project documentation.
The appraised fair market value for the 5-acre parcel is $4,500,000.00. BLM has determined that a 95 percent discount rate is appropriate for this direct sale and that the discounted sale price will be $225,000.00.
According to SNPLMA section 4(c), lands identified within the Las Vegas Valley Disposal Boundary are withdrawn from location and entry under the mining laws and from operation under the mineral leasing and geothermal leasing laws until such time as the Secretary of the Interior terminates the withdrawal or the lands are patented.
Upon publication of this notice in the
The public land would not be offered for sale to Clark County prior to 60 days from the date of publication of this notice in the
The patent, if issued to Clark County, will be subject to the following covenants, terms, and conditions:
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If patented, title to the land will be subject to the following numbered reservations to the United States:
1. All minerals are reserved to the United States. Permittees, licensees, and lessees of the United States retain the right to prospect for, mine, and remove such leasable and saleable minerals owned by the United States under applicable law and any regulations that the Secretary of the Interior may prescribe, together with all necessary access and exit rights;
2. A right-of-way for ditches or canals constructed by the authority of the United States pursuant to the Act of August 30, 1890 (43 U.S.C. 945); and
3. A reversionary interest as further defined in the above terms, covenants, and conditions.
If patented, title to the land will be subject to:
1. Valid existing rights, including but not limited to those documented on the BLM public land records at the time of sale and as defined below;
2. A right-of-way for public county road purposes granted to Clark County, its successors and assigns, by right-of-way number N-55084, pursuant to title V of the Act of October 21, 1976; 43 U.S.C. 1761;
3. A right-of-way for an overhead transmission line granted to NV Energy, its successors and assigns, by right-of-way number N-54735, pursuant to title V of the Act of October 21, 1976 (90 Stat. 2776; 43 U.S.C. 1761);
4. A right-of-way for an electrical distribution line granted to NV Power Co, its successors and assigns, by right-of-way number N-79333, pursuant to title V of the Act of October 21, 1976 (90 Stat. 2776; 43 U.S.C. 1761);
5. A right-of-way for a natural gas pipeline granted to Southwest Gas Corporation, its successors and assigns, by right-of-way number N-57512, pursuant to title V of the Act of October 21, 1976 (90 Stat. 2776; 43 U.S.C. 1761);
6. A right-of-way for an overhead transmission line granted to NV Energy, its successors and assigns, by right-of-way number N-78459, pursuant to title V of the Act of October 21, 1976 (90 Stat. 2776; 43 U.S.C. 1761);
Clark County must remit the remainder of the purchase price within 180 days from the date of receiving the sale offer to the BLM Las Vegas Field Office. Payment must be submitted in the form of a certified check, postal money order, bank draft, cashier's check, or made available by electronic fund transfer made payable in U.S. dollars to the “Department of the Interior—Bureau of Land Management” to the BLM Las Vegas Field Office. The BLM will not accept personal or company checks. Failure to meet conditions established for this sale will void the sale and any funds received will be forfeited. Arrangements for electronic fund transfer to the BLM for payment of the balance due must be made a minimum of 14 days prior to the payment date.
Public comments regarding the sale may be submitted in writing to the address in the
Information concerning the sale parcel, including encumbrances of record, appraisals, reservations, procedures and conditions, Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9620(h) (CERCLA), and other environmental documents that may appear in the BLM public files for the sale parcel, are available for review.
Any comments regarding the proposed sale will be reviewed by the BLM Nevada State Director, who may sustain, vacate, or modify this realty action in response to such comments. In the absence of any comments, this realty action will become the final determination of the Department of the Interior.
Bureau of Land Management, Interior.
Notice of realty action.
The Bureau of Land Management (BLM) proposes a non-competitive (direct) sale of 939.52 acres of public land to the City of Las Vegas (City), Nevada, at no less than fair market value (FMV), pursuant to the Southern Nevada Public Land Management Act of 1998, as amended (SNPLMA) and applicable provisions of the Federal Land Policy and Management Act of 1976, as amended (FLPMA) and the BLM land sale regulations. The appraised FMV for the sale parcel is $94,000,000.00. The City nominated this parcel for disposal to
Submit written comments regarding this direct sale until February 21, 2023.
Mail written comments to the BLM Las Vegas Field Office, Assistant Field Manager, Division of Lands, 4701 North Torrey Pines Drive, Las Vegas, Nevada 89130.
Jayangi Ayesha Gamage, Realty Specialist, BLM Las Vegas Field Office, telephone (702) 515-5189, email at
The land abuts the Las Vegas Paiute Tribe's Snow Mountain Reservation on the west and the Tule Springs Fossil Beds National Monument on the north and east. The parcel is located near the corner of Moccasin Road and Sky Pointe Drive.
The public lands are legally described as:
The areas described contains approximately 939.52 acres, according to the official plat of the survey of the said land on file with the BLM.
The BLM will also publish this Notice of Realty Action once a week for three consecutive weeks in the
This direct sale is in conformance with the BLM Las Vegas Resource Management Plan Record of Decision LD-1, approved on October 5, 1998. The Las Vegas Valley Disposal Boundary Environmental Impact Statement (EIS) and Record of Decision issued on December 23, 2004, and Las Vegas In-Valley Area Multi-Action Analysis Environmental Assessment (EA) (DOI-BLM-NV-S010-2016-0054-EA) analyzed the sale of this parcel. A parcel-specific EA (DOI-BLM-NV-S010-2021-0059-EA), which tiers to the EIS and incorporates by reference the analysis from the EA, was prepared in connection with this Notice of Realty Action.
The City's planned development for the 939.52-acre parcel is designed to strengthen community development opportunities in the northwest part of the Las Vegas Valley, integrating the interests of the neighboring communities and primary stakeholders, including the Las Vegas Paiute Tribe whose lands compose the boundaries of the direct sale parcel. The planned development for the site incorporates residential and commercial uses while providing employment and services for the surrounding population and serves as a gateway to recreational opportunities in the area.
The land meets the criteria for direct sale under FLPMA section 203(f) and 43 CFR 2711.3-3(a), which states, “Direct sales (without competition) may be utilized, when in the opinion of the authorized officer, a competitive sale is not appropriate, and the public interest would best be served by a direct sale.” The direct sale of land to the City will allow the City to retain significant control over the development of the land. The City Council selected Olympia Companies, LLC as the Master Developer for the land on August 21, 2019, during a City Council Meeting. Using the direct sale approach will allow the City to negotiate the Development Agreement with the Master Developer before the land is transferred out of Federal ownership to the City, and subsequently to the Master Developer. A direct sale will also allow the City to meet the terms of the Intergovernmental Agreement between the City and the Las Vegas Paiute Tribe fully executed on April 7, 2021. Accordingly, the parcel will be offered through direct sale procedures pursuant to 43 CFR 2711.3-3.
According to SNPLMA, as amended, Public Law 105-263 section 4(c), lands identified within the Las Vegas Valley Disposal Boundary are withdrawn from location and entry under the mining laws and from operation under the mineral leasing and geothermal leasing laws until such time as the Secretary of the Interior (Secretary) terminates the withdrawal or the lands are patented.
Upon publication of this notice in the
The public land would not be offered for sale to the City prior to 60 days from the date of publication of this notice in the
The parcel is subject to limitations prescribed by law and regulation, and certain encumbrances in favor of third parties. Prior to patent issuance, a holder of any right-of-way (ROW) within the sale parcel will have the opportunity to amend their ROW for conversion to a new term, including in perpetuity if applicable, or to an easement. The BLM will notify valid existing ROW holders of record of their ability to convert their compliant ROWs to perpetual ROWs or easements. In accordance with Federal regulations at 43 CFR 2807.15, once notified, each valid holder may apply for the conversion of their current authorization.
The patent, when issued to the City, will be subject to the following reservations or terms and conditions:
1. All mineral deposits in the lands so patented, and to it, or persons authorized by it, the right to prospect for, mine, and remove such deposits from the same under applicable law and regulations to be established by the Secretary are reserved to the United States, together with all necessary access and exit rights;
2. A right-of-way is reserved for ditches and canals constructed by authority of the United States under the Act of August 30, 1890;
3. The parcel is subject to valid existing rights;
4. The parcel is subject to reservations for roads, public utilities, and flood control purposes, both existing and proposed, in accordance with the local governing entities' transportation plans;
5. An appropriate indemnification clause protecting the United States from
6. Any other reservation or term and condition that the Authorized Officer deems appropriate.
To the extent required by law, the parcel is subject to the requirements of Section 120(h) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9620(h) (CERCLA), as amended. Accordingly, notice is hereby given that the land has been examined and no evidence was found to indicate that any hazardous substances have been stored for one year or more, nor that any hazardous substances have been disposed of or released on the subject properties.
The City will have until 4:30 p.m., Pacific Time (PT), 30 days from the date of receiving the sale offer to accept the offer and submit a deposit of 20 percent of the purchase price along with a completed Certificate of Eligibility form. The City must remit the remainder of the purchase price within 180 days from the date of receiving the sale offer to the BLM Las Vegas Field Office (LVFO). Payment must be submitted in the form of a certified check, postal money order, bank draft, cashier's check, or made available by electronic fund transfer made payable in U.S. dollars to the “Department of the Interior—Bureau of Land Management” to the BLM LVFO. The BLM will not accept personal or company checks. Failure to meet conditions established for this sale will void the sale and any funds received will be forfeited.
Arrangements for electronic fund transfer to the BLM for payment of the balance due must be made a minimum of two weeks prior to the payment date.
In accordance with 43 CFR 2711.3-1(f), the BLM may accept or reject any or all offers to purchase or withdraw any parcel of land or interest therein from sale within 30 days, if the BLM authorized officer determines consummation of the sale would be inconsistent with any law, or for other reasons as may be provided by applicable law or regulations. No contractual or other rights against the United States may accrue until the BLM officially accepts the offer to purchase and the full price is paid.
To determine the FMV through appraisal, certain extraordinary assumptions and hypothetical conditions may have been made concerning the attributes and limitations of the lands and potential effects of local regulations and policies on potential future land uses. Through publication of this notice, the BLM advises that these assumptions may not be endorsed or approved by units of local government.
No warranty of any kind, express or implied, is given by the United States as to the title, whether or to what extent the land may be developed, its physical condition, future uses, or any other circumstance or condition. The conveyance of a parcel will not be on a contingency basis.
It is the City's responsibility to be aware of all applicable Federal, State, and local Government laws, regulations, and policies that may affect the subject land, including any required dedication of lands for public uses. It is also the City's responsibility to be aware of existing or prospective uses of nearby properties. When conveyed out of Federal ownership, the land will be subject to any applicable laws, regulations, and policies of the applicable local government for proposed future uses. It is the responsibility of the City to be aware through due diligence of those laws, regulations, and policies, and to seek any required local approvals for future uses. The City should make itself aware of any Federal or State law or regulation that may impact the future use of the property. Any land lacking access from a public road or highway will be conveyed as such and acquiring future access will be the responsibility of the City.
Information concerning the sale, encumbrances of record, appraisal, reservations, procedures, and conditions, CERCLA, and other environmental documents that may appear in the BLM public files for the sale parcel, is available for review by appointment only, during business hours, from 8 a.m. to 4:30 p.m. PT, Monday through Friday, at the BLM LVFO, except during Federal holidays.
Public comments regarding the sale may be submitted in writing to the address in the
Any comments regarding the proposed sale will be reviewed by the BLM Nevada State Director, who may sustain, vacate, or modify this realty action in response to such comments. In the absence of any comments, this realty action will become the final determination of the Department of the Interior.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Katherine M. Hiner, Acting Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at
The Commission has received a complaint and a submission pursuant to § 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Samsung Display Co., Ltd. on December 28, 2022. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of
Proposed respondents, other interested parties, and members of the public are invited to file comments on any public interest issues raised by the complaint or § 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions on the public interest must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above. Submissions should refer to the docket number (“Docket No. 3661”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of §§ 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
Drug Enforcement Administration, Department of Justice.
60-Day notice.
The Drug Enforcement Administration (DEA), Department of Justice (DOJ), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until March 6, 2023.
If you have comments on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Scott A. Brinks, Diversion Control Division, Drug Enforcement
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 proposed 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 forms of information technology,
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In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation (NSF) announces the following meeting:
Postal Service®.
Notice of modified system of records.
The United States Postal Service® (USPS) is proposing to revise a Customer Privacy Act System of Records (SOR). The proposed modifications will provide additional transparency into the collection and use of records for the USPS to administer and comply with Bank Secrecy Act (BSA), Anti-Money Laundering (AML) and Office of Foreign Assets Control (OFAC) requirements.
The Postal Service is focused on continuous improvement efforts that increase effectiveness and efficiency, such as enhancements to functionality and processing capabilities that support ongoing administrative and compliance activities.
These revisions will become effective without further notice on February 3, 2023, unless responses to comments received on or before that date result in a contrary determination.
Comments may be submitted via email to the Privacy and Records Management Office, United States Postal Service Headquarters (
Janine Castorina, Chief Privacy and Records Management Officer, Privacy and Records Management Office, at 202-268-3069 or
This notice is in accordance with the Privacy Act requirement that agencies publish their systems of records in the
The Postal Service is defined as a money services business (MSB) under the BSA
The Postal Service must also ensure that it is complying with the OFAC requirements and must perform screening for Specially Designated Nationals and Blocked Persons List (SDNs), as defined and mandated by the OFAC. Through strategic monitoring and reporting of financial transactions, the USPS Bank Secrecy Act and Anti-Money Laundering Compliance Program helps the federal government detect and prevent money laundering, terrorist financing, and other illegal activities.
The Postal Service continuously seeks to improve processes to support BSA, AML and OFAC compliance. In the spirit of continuous improvement, planned enhancements to functionality and processing capabilities will be made to support data entry, analysis, queries, and reporting of data, related to potential violations of the BSA, OFAC and AML statutes, regulations, and requirements.
The Postal Service is proposing modifications to USPS SOR 860.000, Financial Transactions, in the summary of changes listed below:
Pursuant to 5 U.S.C. 552a(e)(11), interested persons are invited to submit written data, views, or arguments on this proposal. A report of the proposed revisions has been sent to Congress and to the Office of Management and Budget (OMB) for their evaluations. The Postal Service does not expect this amended system of records to have any adverse effect on individual privacy rights. USPS SOR 860.000, Financial Transactions is provided below in its entirety:
USPS 860.000 Financial Transactions.
None.
USPS Headquarters; Integrated Business Solutions Services Centers; Accounting Service Centers; Bank Secrecy Act (BSA) Anti-Money Laundering (AML) Compliance group; and contractor sites.
Chief Financial Officer and Executive Vice President, United States Postal Service, 475 L'Enfant Plaza SW, Washington, DC 20260.
39 U.S.C. 401, 403, and 404; 31 U.S.C. 5318, 5325, 5331, and 7701.
1. To provide financial products and services.
2. To respond to inquiries and claims related to financial products and services.
3. To fulfill requirements of BSA, AML statutes and regulations and Office of Foreign Assets Control (OFAC).
4. To support investigations related to law enforcement for fraudulent financial transactions.
1. Customers who use online payment or funds transfer services.
2. Customers who file claims or make inquiries related to online payment services, funds transfers, money orders, and stored-value cards.
3. Customers who purchase financial instruments in an amount of $3000 or more per day. Financial instruments are limited to money orders, gift cards and international wire transfer service.
4. Customers who purchase or redeem financial instruments in a manner requiring collection of information as potential suspicious activities under anti-money laundering requirements.
5. Beneficiaries from financial instruments totaling more than $10,000 in 1 day.
6. Specially Designated Nationals and Blocked Persons List (SDNs) as defined and mandated by the OFAC.
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Customers, recipients, financial institutions, and USPS employees.
Standard routine uses 1. through 7., 10., and 11. apply. In addition;
a. Legally required disclosures to agencies for law enforcement purposes include disclosures of information relating to money orders, funds transfers, and stored-value cards as required by BSA, OFAC and anti-money laundering statutes, regulations and requirements.
Automated database, computer storage media, microfiche, and paper.
For online payment and funds transfer services, information is retrieved by customer name, customer ID(s), transaction number, or address.
Claim information is retrieved by name of purchaser or payee, claim number, serial number, transaction number, check number, customer ID(s), or ZIP Code.
Information related to BSA, OFAC and AML is retrieved by customer name; SSN; alien registration, passport, or driver's license number; serial number; transaction number; ZIP Code; transaction date; data entry operator number; and employee comments, and individuals that appear on the Specially Designated Nationals and Blocked Persons List (SDNs) as defined and mandated by the OFAC.
1. Summary records, including bill due date, bill amount, biller information, biller representation of account number, and the various status indicators, are retained 2 years from the date of processing.
2. For funds transfers, transaction records are retained 3 years.
3. Records related to claims are retained up to 3 years from date of final action on the claim.
4. Forms related to fulfillment of BSA, anti-money laundering requirements are retained for a 5-year and one-month period.
5. Related automated records are retained the same 5-year and one-month period and purged from the system quarterly after the date of creation.
6. Enrollment records related to online payment services are retained 7 years after the subscriber's account ceases to be active or the service is cancelled.
7. Account banking records, including payment history, Demand Deposit Account (DDA) number, and routing number, are retained 7 years from the date of processing.
8. Online user information may be retained for 6 months.
9. Records existing on paper are destroyed by burning, pulping, or shredding. Records existing on computer storage media are destroyed according to the applicable USPS media sanitization practice.
Paper records, computers, and computer storage media are located in controlled-access areas under supervision of program personnel. Access to these areas is limited to authorized personnel, who must be identified with a badge.
Access to records is limited to individuals whose official duties require such access. Contractors and licensees are subject to contract controls and unannounced on-site audits and inspections.
Computers are protected by mechanical locks, card key systems, or other physical access control methods. The use of computer systems is regulated with installed security software, computer logon identifications, and operating system controls including access controls, terminal and transaction logging, and file management software. Online data transmissions are protected by encryption.
Requests for access must be made in accordance with the Notification Procedure above and USPS Privacy Act regulations regarding access to records and verification of identity under 39 CFR 266.5.
See Notification Procedure below and Record Access Procedures above.
For online payment services, funds transfers, and stored-value cards, individuals wanting to know if information about them is maintained in this system must address inquiries in writing to the Chief Marketing Officer and Executive Vice President. Inquiries must contain name, address, and other identifying information, as well as the transaction number for funds transfers.
For money order claims, or BSA, OFAC and anti-money laundering documentation, inquiries should be addressed to the Chief Financial Officer and Executive Vice President. Inquiries must include name, address, or other identifying information of the purchaser (such as driver's license, Alien Registration Number, Passport Number, etc.), and serial or transaction number. Information collected for anti-money laundering purposes will only be provided in accordance with Federal BSA, OFAC, anti-money laundering laws, regulations and requirements.
Systems Exempted From Certain Provisions of the Act:
USPS has established regulations at 39 CFR 266.9 that exempt information contained in this system of records from various provisions of the Privacy Act in order to conform to the prohibition in the Bank Secrecy Act, 31 U.S.C. 5318(g)(2), against notification of the individual that a suspicious transaction has been reported.
May 8, 2008, 73 FR 26155; April 29, 2005, 70 FR 22516.
Postal Service®.
Notice of a modified system of records.
The United States Postal Service® (USPS®) proposes revising a General Privacy Act System of Records (SOR). These updates are being made to support the implementation of quick customer experience surveys to be conducted at the end of retail Post Office customer visits.
These revisions will become effective without further notice on February 3, 2023 unless responses to comments received on or before that date result in a contrary determination.
Comments may be submitted via email to the Privacy and Records Management Office, United States Postal Service Headquarters (
Janine Castorina, Chief Privacy and
This notice is in accordance with the Privacy Act requirement that agencies publish their systems of records in the
The Retail Experience team at USPS Headquarters is sponsoring the implementation of quick customer experience surveys administered on customer display units (CDUs) in retail Post Office locations. The anonymous customer survey will consist of one question that will be presented to the customer immediately after the retail customer visit is completed. Participation by the customer in the survey is voluntary, and a set of four to five questions will be rotated randomly across transactions and displayed to the customer at the end of their retail visit.
Upon completion, the anonymous customer survey will create a record in the response file that links employee information and the retail customer visit to the quick customer experience survey results. The employee information captured that is associated with the survey is the Employee Identification Number (EIN) of the employee who performed the transaction during the customer visit.
The Postal Service is proposing to modify USPS SOR 100.600 Personnel Research Records to support the implementation of quick customer experience surveys conducted in retail Post Office locations that link the Employee Identification Number (EIN) of the employee who performed the customer transaction during the Post Office visit to anonymous customer survey responses.
The Postal Service is proposing the following modifications to USPS SOR 100.600 Personnel Research Records in the summary of changes listed below.
Pursuant to 5 U.S.C. 552a(e)(11), interested persons are invited to submit written data, views, or arguments on this proposal. A report of the proposed revisions has been sent to Congress and to the Office of Management and Budget for their evaluations. The Postal Service does not expect this amended system of record to have any adverse effect on individual privacy rights. USPS SOR 100.600 Personnel Research Records is provided below in its entirety.
USPS 100.600 Personnel Research Records.
None.
USPS Headquarters, Integrated Business Solutions Services Centers, and contractor sites.
Vice President, Human Resources, United States Postal Service, 475 L'Enfant Plaza SW, Washington, DC 20260-4135.
39 U.S.C. 401, 410, 1001, and 1005.
1.To support research and development efforts on personnel assessment instruments, recruitment efforts, workforce analysis, and evaluation of Human Resource management practices.
2. To assess the impact of selection decisions on applicants in race, ethnicity, sex, tenure, age, veteran status, and disability categories.
3. To facilitate and support marketing initiatives, advertising campaigns, brand strategy, strategic customer programs, customer experience with products and services, including call centers, and innovation and product improvement development.
4. To create a record in the survey responses file that links Employee Identification Number (EIN) and retail customer visits to quick customer experience surveys results that are administered on customer display units in retail Post Office locations.
1. USPS employees, potential applicants for USPS employment, applicants for USPS employment, USPS employee applicants for reassignment and/or promotion, employees whose work records or solicited responses are used in research projects, and former USPS employees.
2. Employees who voluntarily respond to direct marketing messages, respond to surveys, voluntarily participate in focus groups, interviews, diaries, observational studies, prototype assessments, and A/B comparison tests.
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USPS employees, former employees, applicants, and potential applicants with candidate profiles who provide information to personnel research programs and other systems of records.
Standard routine uses 1 through 9 apply.
Automated database, computer storage media, digital files, and paper files.
By individual name, Social Security Number, Candidate Identification Number, Employee Identification Number, personal email address, respondent identification code, research project identifiers, postal assignment or vacancy/posting information, duty or pay location, or location where data were collected.
1. Retention depends on the type of research project but does not exceed 10 years.
2. Data retained for surveys conducted by Customer insight, market research and survey records will be retained for 3 years.
3. Records for quick customer experience surveys administered on customer display units in Post Office locations will be retained for 3 fiscal years, representing the current fiscal year-to-date, plus the prior 2 fiscal years.
Records existing on paper are destroyed by burning, pulping, or shredding. Records existing on computer storage media are destroyed according to the applicable USPS media sanitization practice.
Paper records, computers, and computer storage media are located in controlled-access areas under supervision of program personnel. Access to these areas is limited to authorized personnel, who must be identified with a badge.
Access to records is limited to individuals whose official duties require such access. Contractors and licensees are subject to contract controls and unannounced on-site audits and inspections.
Computers are protected by mechanical locks, card key systems, or other physical access control methods. The use of computer systems is regulated with installed security software, computer log-on identifications, and operating system controls, which includes access controls, terminal and transaction logging, and file management software.
Requests for access must be made in accordance with the Notification Procedure below and USPS Privacy Act regulations regarding access to records and verification of identity under 39 CFR 266.5.
See Notification Procedure and Record Access Procedures.
Individuals wanting to know if information about them is maintained in this system of records must address inquiries to the Vice President, Employee Resource Management, 475 L'Enfant Plaza SW, Washington, DC 20260.
In cases of studies involving information not collected through an examination, individuals must address inquiries to the system manager. Inquiries must contain full name; Candidate Identification Number, Employee Identification Number, or respondent identification code, and subject or purpose of research/survey; and date and location of their participation.
Pursuant to 5 U.S.C. 552a(j) and (k), USPS has established regulations at 39 CFR 266.9 that exempt records in this system depending on their purpose. The USPS has also claimed exemption from certain provisions of the Act for several of its other systems of records at 39 CFR 266.9. To the extent that copies of exempted records from those other systems are incorporated into this system, the exemptions applicable to the original primary system continue to apply to the incorporated records.
July 5, 2022: 87 FR 39876; July 19, 2013: 78 FR 43247; June 17, 2011: 76 FR 35483; and April 29, 2005: 70 FR 22516.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The proposed rule change of NSCC consists of modifications to Addendum A (Fee Structure) (“Addendum A”) of NSCC's Rules & Procedures (“Rules”) in order to make certain adjustments in the fees for the Positions and Valuations service (“Positions”) in NSCC's Insurance & Retirement Services (“I&RS”) and make certain clarifications to Addendum A, as described below.
In its filing with the Commission, the clearing agency included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The clearing agency has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to increase the fees for Positions, as described below, in order to align those fees more closely with the costs of providing the products and services to Members and Limited Members that use I&RS (collectively, “I&RS Members”). The fee changes are being made to better align fees with the costs of services provided by NSCC by adjusting the fees so that the revenue received by NSCC would be closer to the costs of providing the services consistent with NSCC's cost-based plus markup fee model.
Pursuant to Section 5 of Rule 57, NSCC provides a service to enable Insurance Carrier/Retirement Services Members to transmit data to other I&RS Members relating to positions and valuations specific to I&RS Eligible Products.
NSCC continuously engages in discussions with I&RS Members regarding proposed enhancements, proposed fee changes and potential impacts. As a result of these discussions, I&RS Members have requested enhancements to the current Positions file. The enhancements include modifying current records and adding a new record to accommodate data related to indexed life and annuity products. The proposed pricing increase was developed using a cost-plus pricing methodology and would be an increase in Positions fees of approximately 4% for Positions Full, Positions New and Positions for Retirement Plans and an increase of approximately 9.1% for Positions Focused. The estimated annual revenue increase for Positions fees would cover development cost and maintenance for the proposed enhancements and related system developments.
NSCC is also proposing to add abbreviations in Addendum A of the Rules to match descriptions of Positions Full, Positions New, Positions for Retirement Plans and Positions Focused used in marketing materials and client communications.
NSCC is proposing to increase the fees charged for the Positions Full, Positions New, Positions for Retirement Plans files that are currently set forth in Section IV.H.2.a.(i) of Addendum A as follows: (i) increase fees for 0 to 500,000 items/month from $6.00 to $6.25 per 1,000 items, (ii) increase fees for 500,001 to 2,000,000 items/month from $3.50 to $3.65 per 1,000 items, (iii) increase fees for 2,000,001 to 4,000,000 items/month from $3.00 to $3.10 per 1,000 items and (iv) increase fees for 4,000,001 or more items/month from $1.25 to $1.30 per 1,000 items. NSCC is also proposing to add the abbreviations PVF, PNF and PRP next to Full, New and Retirement Plans, respectively, to reflect the abbreviations used in marketing materials and client communications relating to these services.
NSCC is proposing to increase the fees charged for the Positions Focused file that are currently set forth in Section IV.H.2.a.(ii) of Addendum A as follows: (i) increase fees for 0 to 500,000 items/month from $3.00 to $3.25 per 1,000 items, (ii) increase fees for 500,001 to 2,000,000 items/month from $1.50 to $1.65 per 1,000 items, (iii) increase fees for 2,000,001 to 4,000,000 items/month from $1.00 to $1.10 per 1,000 items and (iv) increase fees for 4,000,001 or more items/month from $0.50 to $0.55 per 1,000 items. NSCC is also proposing to add the abbreviation PFF next to Positions Focused to reflect the abbreviations used in marketing materials and client communications relating to this services.
The proposed fee changes would impact all users of Positions. Based on a review of users in the second quarter of 2022, it is anticipated that approximately 82% of the I&RS Members receive files using Positions Full, Positions New or Positions for Retirement Plans and approximately 63% of I&RS Members receive files using Positions Focused. The proposed pricing increase is expected to result in an increase in Positions fees of approximately 4% for Positions Full, Positions New and Positions for Retirement Plans and an increase of approximately 9.1% for Positions Focused.
The proposed fee increases are designed to cover the costs of enhancing and maintaining I&RS in accordance with NSCC's cost-based plus markup fee model.
NSCC expects to implement the proposed rule change on January 1, 2023. As proposed, a legend would be added to Addendum A stating that changes became effective upon filing with the Commission but have not yet been implemented. The proposed legend also would include January 1, 2023 as the date on which such changes would be implemented and the file number of this proposal, and state that, once this proposal is implemented, the legend would automatically be removed from Addendum A.
NSCC believes this proposal is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a registered clearing agency. Specifically, NSCC believes this proposal is consistent with Sections 17A(b)(3)(D)
Section 17A(b)(3)(D) of the Act requires that the rules of a clearing agency provide for the equitable allocation of reasonable dues, fees, and other charges among its participants. NSCC believes the proposed fees would be allocated equitably among I&RS Members that use Positions.
Section 17A(b)(3)(F) of the Act requires, in part, that the rules of a clearing agency promote the prompt and accurate clearance and settlement of securities transactions.
Rule 17Ad-22(e)(23)(ii) under the Act requires NSCC to establish, implement, maintain and enforce written policies and procedures reasonably designed to provide sufficient information to enable participants to identify and evaluate the risks, fees, and other material costs they incur by participating in the covered clearing agency.
The proposed clarifications to add abbreviations for services, as described above, would improve the transparency of the fees in Addendum A to I&RS Members. Having a clear and transparent Addendum A would help I&RS Members to better understand NSCC's fees and help provide I&RS Members with increased predictability and certainty regarding the fees they incur in participating in NSCC. As such, NSCC believes the proposed rule changes are also consistent with Rule 17Ad-22(e)(23)(ii) under the Act.
NSCC believes the proposed rule change to increase fees for Positions may have an impact on competition. NSCC believes the proposed rule change could burden competition by negatively affecting such I&RS Members' operating costs. While these I&RS Members may experience increases in their fees when compared to their fees under the current fee structure, NSCC does not believe such change in fees would, in and of itself, mean that the burden on competition is significant. The proposed Positions fee increase would not advantage or disadvantage any particular member or user of Positions, or unfairly inhibit access to Positions. Further, the proposal would similarly affect all I&RS Members that utilize Positions based on each I&RS Member's usage of Positions.
Regardless of whether the burden on competition is deemed significant, NSCC believes any burden on competition that is created by the proposed rule change would be necessary and appropriate in furtherance of the purposes of the Act, as permitted by Section 17A(b)(3)(I) of the Act.
NSCC also believes that the fees are appropriate in furtherance of the purposes of the Act because the fees are designed to align NSCC's revenue with the costs of enhancing and providing the services, consistent with NSCC's cost-based plus markup fee model. As noted above, the proposed fees are equitably allocated among I&RS Members.
NSCC has conducted outreach to I&RS Members in order to provide them with notice of the proposed rule change to the affected fees.
NSCC has not received or solicited any written comments relating to this proposal. If any written comments are received by NSCC, they will be publicly filed as an Exhibit 2 to this filing, as required by Form 19b-4 and the General Instructions thereto.
Persons submitting comments are cautioned that, according to Section IV (Solicitation of Comments) of the Exhibit 1A in the General Instructions to Form 19b-4, the Commission does not edit personal identifying information from comment submissions. Commenters should submit only information that they wish to make available publicly, including their name, email address, and any other identifying information.
All prospective commenters should follow the Commission's instructions on how to submit comments,
The foregoing rule change has become effective 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.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is filing a proposal to amend the MIAX Options Fee Schedule (the “Fee Schedule”) to: (1) extend the waiver period for certain non-transaction fees applicable to Market Makers
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend the Fee Schedule to: (1) extend the waiver period for certain non-transaction fees applicable to Market Makers that trade solely in Proprietary Products until June 30, 2023; and (2) extend the Incentive Program until March 31, 2023.
On October 12, 2018, the Exchange received approval from the Commission to list and trade on the Exchange options on the SPIKES® Index, a new index that measures expected 30-day volatility of the SPDR S&P 500 ETF Trust (commonly known and referred to by its ticker symbol, “SPY”).
On May 31, 2019, the Exchange filed its first proposal in a series of proposals with the Commission to amend the Fee Schedule to waive certain non-transaction fees applicable to Market Makers that trade solely in Proprietary Products (including options on the SPIKES Index) beginning September 30, 2019, through December 31, 2022.
The Exchange currently assesses a one-time Membership Application fee for applications of potential Members. The Exchange assesses a one-time Membership Application fee on the earlier of (i) the date the applicant is certified in the membership system, or (ii) once an application for MIAX membership is finally denied. The one-time application fee is based upon the applicant's status as either a Market Maker or an Electronic Exchange Member (“EEM”).
The Exchange proposes that the waiver for the one-time Membership Application fee of $3,000 for Market Makers that trade solely in Proprietary Products (including options on SPIKES) will be extended from December 31, 2022 until June 30, 2023, which the Exchange proposes to state in the Fee Schedule. The purpose of this proposed change is to continue to provide an incentive for potential Market Makers to submit membership applications, which should result in an increase of potential liquidity in Proprietary Products, including options on SPIKES. Even though the Exchange proposes to extend the waiver of this particular fee, the overall structure of the fee is outlined in the Fee Schedule so that there is general awareness that the Exchange intends to assess such a fee after June 30, 2023.
The Exchange issues Trading Permits that confer the ability to transact on the Exchange. MIAX Trading Permits are issued to Market Makers and EEMs. Members receiving Trading Permits during a particular calendar month are assessed monthly Trading Permit fees as set forth in the Fee Schedule. As it relates to Market Makers, MIAX currently assesses a monthly Trading Permit fee in any month the Market Maker is certified in the membership system, is credentialed to use one or more MIAX MEI Ports in the production environment and is assigned to quote in one or more classes. MIAX assesses the monthly Market Maker Trading Permit fee for its Market Makers based on the greatest number of classes listed on MIAX that the MIAX Market Maker was assigned to quote in on any given day within a calendar month and the applicable fee rate is the lesser of either the per class basis or percentage of total national average daily volume measurements. A MIAX Market Maker is assessed a monthly Trading Permit fee according to the following table:
MIAX proposes that the waiver for the monthly Trading Permit fee for Market Makers that trade solely in Proprietary Products (including options on SPIKES) will be extended from December 31, 2022, to June 30, 2023, which the Exchange proposes to state in the Fee Schedule. The purpose of this proposed change is to continue to provide an incentive for Market Makers to provide liquidity in Proprietary Products on the Exchange, which should result in increasing potential order flow and volume in Proprietary Products, including options on SPIKES. Even though the Exchange proposes to extend the waiver of this particular fee, the overall structure of the fee is outlined in the Fee Schedule so that there is general awareness to potential Members seeking a Trading Permit that the Exchange intends to assess such a fee after June 30, 2023.
The Exchange also proposes that Market Makers who trade Proprietary Products (including options on SPIKES) along with multi-listed classes will continue to not have Proprietary Products (including SPIKES) counted toward those Market Makers' class assignment count or percentage of total national average daily volume. This exclusion is noted with the symbol “Ω” following the table that shows the monthly Trading Permit fees currently assessed to Market Makers in Section (3)(b) of the Fee Schedule.
The Exchange assesses an API Testing and Certification fee to all Members depending upon Membership type. An API makes it possible for Members' software to communicate with MIAX software applications, and is subject to Members testing with, and certification by, MIAX. The Exchange offers four types of interfaces: (i) the Financial Information Exchange Port (“FIX Port”),
API Testing and Certification fees for Market Makers are assessed (i) initially per API for CTD and MEI ports in the month the Market Maker has been credentialed to use one or more ports in the production environment for the tested API and the Market Maker has been assigned to quote in one or more classes, and (ii) each time a Market Maker initiates a change to its system that requires testing and certification. API Testing and Certification fees will not be assessed in situations where the Exchange initiates a mandatory change to the Exchange's system that requires testing and certification. The Exchange currently assesses a Market Maker an API Testing and Certification fee of $2,500. The API Testing and Certification fees represent costs incurred by the Exchange as it works with each Member for testing and certifying that the Member's software systems communicate properly with MIAX's interfaces.
MIAX proposes to extend the waiver of the API Testing and Certification fee for Market Makers that trade solely in Proprietary Products (including options on SPIKES) from December 31, 2022 until June 30, 2023, which the Exchange proposes to state in the Fee Schedule. The purpose of this proposed change is to continue to provide an incentive for potential Market Makers to develop software applications to trade in Proprietary Products, including options on SPIKES. Even though the Exchange proposes to extend the waiver of this particular fee, the overall structure of the fee is outlined in the Fee Schedule so that there is general awareness that the Exchange intends to assess such a fee after June 30, 2023.
MIAX assesses monthly MEI Port fees to Market Makers in each month the Member has been credentialed to use the MEI Port in the production environment and has been assigned to quote in at least one class. The amount of the monthly MEI Port fee is based upon the number of classes in which the Market Maker was assigned to quote on any given day within the calendar month, and upon the class volume percentages set forth in the Fee Schedule. The class volume percentage is based on the total national average daily volume in classes listed on MIAX in the prior calendar quarter. Newly listed option classes are excluded from the calculation of the monthly MEI Port fee until the calendar quarter following their listing, at which time the newly listed option classes will be included in both the per class count and the percentage of total national average daily volume. The Exchange assesses MIAX Market Makers the monthly MEI Port fee based on the greatest number of classes listed on MIAX that the MIAX Market Maker was assigned to quote in on any given day within a calendar month and the applicable fee rate that is the lesser of either the per class basis or percentage of total national average daily volume measurement. MIAX assesses MEI Port fees on Market Makers according to the following table:
MIAX proposes to extend the waiver of the monthly MEI Port fee for Market Makers that trade solely in Proprietary Products (including options on SPIKES) from December 31, 2022 until June 30, 2023, which the Exchange proposes to state in the Fee Schedule. The purpose of this proposal is to continue to provide an incentive to Market Makers to connect to MIAX through the MEI Port such that they will be able to trade in MIAX Proprietary Products. Even though the Exchange proposes to extend the waiver of this particular fee, the overall structure of the fee is outlined in the Fee Schedule so that there is general awareness that the Exchange intends to assess such a fee after June 30, 2023.
The Exchange notes that for the purposes of this proposed change, other Market Makers who trade MIAX Proprietary Products (including options on SPIKES) along with multi-listed classes will continue to not have Proprietary Products (including SPIKES) counted toward those Market Makers' class assignment count or percentage of total national average daily volume. This exclusion is noted by the symbol “Ω” following the table that shows the monthly MEI Port Fees currently assessed for Market Makers in Section (5)(d)(ii) of the Fee Schedule.
The proposed extension of the fee waivers are targeted at market participants, particularly market makers, who are not currently members of MIAX, who may be interested in being a Market Maker in Proprietary Products on the Exchange. The Exchange estimates that there are fewer than ten (10) such market participants that could benefit from the extension of these fee waivers. The proposed extension of the fee waivers does not apply differently to different sizes of market participants, however the fee waivers do only apply to Market Makers (and not EEMs).
Market Makers, unlike other market participants, take on a number of obligations, including quoting obligations that other market participants do not have. Further, Market Makers have added market making and regulatory requirements, which normally do not apply to other market participants. For example, Market Makers have obligations to maintain continuous markets, engage in a course of dealings reasonably calculated to contribute to the maintenance of a fair and orderly market, and to not make bids or offers or enter into transactions that are inconsistent with a course of dealing. Accordingly, the Exchange believes it is reasonable and not unfairly discriminatory to continue to offer the fee waivers to Market Makers because the Exchange is seeking additional liquidity providers for Proprietary Products, in order to enhance liquidity and spreads in Proprietary Products, which is traditionally provided by Market Makers, as opposed to EEMs.
On September 30, 2021, the Exchange filed its initial proposal to implement a SPIKES Options Market Maker Incentive Program for SPIKES options to incentivize Market Makers to improve liquidity, available volume, and the quote spread width of SPIKES options beginning October 1, 2021, and ending December 31, 2021.
On December 23, 2021, the Exchange filed its proposal to extend the Incentive Program until March 31, 2022.
The Exchange proposes to extend the Incentive Program for SPIKES options to continue to incentivize Market Makers to improve liquidity, available volume, and the quote spread width of SPIKES options. Currently, to be eligible to participate in the Incentive Program, a Market Maker must meet certain minimum requirements related to quote spread width in certain in-the-money (ITM) and out-of-the-money (OTM) options as determined by the Exchange and communicated to Members via Regulatory Circular.
The first pool (Incentive 1) has a total amount of $40,000 per month, which is allocated to Market Makers that meet the minimum requirements of the Incentive Program. Market Makers are required to meet minimum spread width requirements in a select number of ITM and OTM SPIKES option contracts as determined by the Exchange and communicated to Members via Regulatory Circular.
The second pool (Incentive 2 Pool) is capped at a total amount of $100,000 per month which is used during the Incentive Program to further incentivize Market Makers who meet or exceed the requirements of Incentive 1 (“qualifying Market Makers”) to provide tighter quote width spreads. The Exchange ranks each qualifying Market Maker's quote width spread relative to each other qualifying Market Maker's quote width spread. Market Makers with tighter spreads in certain strikes, as determined by the Exchange and communicated to Members via Regulatory Circular,
The Exchange proposes to extend the Incentive Program until June 30, 2023 [sic]. The Exchange does not propose to make any amendments to how it calculates any of the incentives provided for in Incentive Pools 1 or 2. The details of the Incentive Program can continue to be found in the Regulatory Circular that was published on September 30, 2021 to all Exchange Members.
The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act
The Exchange believes that the proposal to extend the fee waiver period for certain non-transaction fees for Market Makers that trade solely in Proprietary Products is an equitable allocation of reasonable fees because the proposal continues to waive non-transaction fees for a limited period of time in order to enable the Exchange to improve its overall competitiveness and strengthen its market quality for all market participants in MIAX's Proprietary Products, including options on SPIKES. The Exchange believe the proposed extension of the fee waivers is fair and equitable and not unreasonably discriminatory because it applies to all market participants not currently registered as Market Makers at the Exchange. Any market participant may choose to satisfy the additional requirements and obligations of being a Market Maker and trade solely in Proprietary Products in order to qualify for the fee waivers.
The Exchange believes that the proposed extension of the fee waivers is equitable and not unfairly discriminatory for Market Makers as compared to EEMs because Market Makers, unlike other market participants, take on a number of obligations, including quoting obligations that other market participants do not have. Further, Market Makers have added market making and regulatory requirements, which normally do not apply to other market participants. For example, Market Makers have obligations to maintain continuous markets, engage in a course of dealings reasonably calculated to contribute to the maintenance of a fair and orderly market, and to not make bids or offers or enter into transactions that are inconsistent with a course of dealing.
The Exchange believes it is reasonable and equitable to continue to waive the one-time Membership Application Fee, monthly Trading Permit Fee, API Testing and Certification Fee, and monthly MEI Port Fee for Market Makers that trade solely in Proprietary Products (including options on SPIKES) until June 30, 2023, since the waiver of such fees provides incentives to interested market participants to trade in Proprietary Products. This should result in increasing potential order flow and liquidity in MIAX Proprietary Products, including options on SPIKES.
The Exchange believes it is reasonable and equitable to continue to waive the API Testing and Certification fee assessable to Market Makers that trade solely in Proprietary Products (including options on SPIKES) until June 30, 2023, since the waiver of such fees provides incentives to interested Members to develop and test their APIs sooner. Determining system operability with the Exchange's system will in turn provide MIAX with potential order flow and liquidity providers in Proprietary Products.
The Exchange believes it is reasonable, equitable and not unfairly discriminatory that Market Makers who trade in Proprietary Products along with multi-listed classes will continue to not have Proprietary Products counted toward those Market Makers' class assignment count or percentage of total national average daily volume for monthly Trading Permit Fees and monthly MEI Port Fees in order to incentivize existing Market Makers who currently trade in multi-listed classes to also trade in Proprietary Products, without incurring certain additional fees.
The Exchange believes that the proposed extension of the fee waivers constitutes an equitable allocation of reasonable fees and other charges among its Members and issuers and other persons using its facilities. The proposed extension of the fee waivers means that all prospective market makers that wish to become Market Maker Members of the Exchange and quote solely in Proprietary Products may do so and have the above-mentioned fees waived until June 30, 2023. The proposed extension of the fee waivers will continue to not apply to
The Exchange believes that it is reasonable, equitable, and not unfairly discriminatory to extend the Incentive Program for Market Makers in SPIKES options until March 31, 2023. The Incentive Program is reasonably designed because it will continue to incentivize Market Makers to provide quotes and increased liquidity in select SPIKES options contracts. The Incentive Program is reasonable, equitably allocated and not unfairly discriminatory because all Market Makers in SPIKES options may continue to qualify for Incentive 1 and Incentive 2, dependent upon each Market Maker's quoting in SPIKES options in a particular month. Additionally, if a SPIKES Market Maker does not satisfy the requirements of Incentive Pool 1 or 2, then it simply will not receive the rebate offered by the Incentive Program for that month.
The Exchange believes that it is reasonable, equitable and not unfairly discriminatory to continue to offer this financial incentive to SPIKES Market Makers because it will continue to benefit all market participants trading in SPIKES options. SPIKES options is a Proprietary Product on the Exchange and the continuation of the Incentive Program encourages SPIKES Market Makers to satisfy a heightened quoting standard, average quote size, and time in market. A continued increase in quoting activity and tighter quotes may yield a corresponding increase in order flow from other market participants, which benefits all investors by deepening the Exchange's liquidity pool, potentially providing greater execution incentives and opportunities, while promoting market transparency and improving investor protection.
The Exchange believes that the Incentive Program is equitable and not unfairly discriminatory because it will continue to promote an increase in SPIKES options liquidity, which may facilitate tighter spreads and an increase in trading opportunities to the benefit of all market participants. The Exchange believes it is reasonable to operate the Incentive Program for a continued limited period of time to strengthen market quality for all market participants. The resulting increased volume and liquidity will benefit those Members who are eligible to participate in the Incentive Program and will also continue to benefit those Members who are not eligible to participate in the Incentive Program by providing more trading opportunities and tighter spreads.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange believes that the proposal to extend certain of the non-transaction fee waivers until June 30, 2023 for Market Makers that trade solely in Proprietary Products would increase intra-market competition by incentivizing new potential Market Makers to quote in Proprietary Products, which will enhance the quality of quoting and increase the volume of contracts in Proprietary Products traded on MIAX, including options on SPIKES. To the extent that this purpose is achieved, all the Exchange's market participants should benefit from the improved market liquidity for the Exchange's Proprietary Products. Enhanced market quality and increased transaction volume in Proprietary Products that results from the anticipated increase in Market Maker activity on the Exchange will benefit all market participants and improve competition on the Exchange.
The Exchange does not believe that the proposed rule change will impose any burden on intra-market competition that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed changes for each separate type of market participant (new Market Makers and existing Market Makers) will be assessed equally to all such market participants. While different fees are assessed to different market participants in some circumstances, these different market participants have different obligations and different circumstances as discussed above. For example, Market Makers have quoting obligations that other market participants (such as EEMs) do not have.
The Exchange believes that the proposed extension of the Incentive Program to March 31, 2023 would continue to increase intra-market competition by incentivizing Market Makers to quote SPIKES options, which will continue to enhance the quality of quoting and increase the volume of contracts available to trade in SPIKES options. To the extent that this purpose is achieved, all the Exchange's market participants should benefit from the improved market liquidity for SPIKES options. Enhanced market quality and increased transaction volume in SPIKES options that results from the anticipated increase in Market Maker activity on the Exchange will benefit all market participants and improve competition on the Exchange.
The Exchange does not believe that the proposed rule changes will impose any burden on inter-market competition that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed extension of the fee waivers and the extension of the Incentive Program apply only to the Exchange's Proprietary Products (including options on SPIKES), which are traded exclusively on the Exchange.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend ISE's Pricing Schedule at Options 7, Section 4.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend ISE's Pricing Schedule at Options 7, Section 4, Complex Order Fees and Rebates. The Exchange proposes to: (1) increase Complex Order Priority Customer
The Exchange proposes to amend Tiers 6 through 10 of the Complex Order Priority Customer Rebates for Select Symbols and Non-Select Symbols. The Exchange currently offers Members Complex Order Priority Customer Rebates based on a percentage of Total Affiliated Member or Affiliated Entity Complex Order Volume (excluding Crossing Orders
The Exchange proposes to amend Complex Order Priority Customer Rebate Tiers 6 through Tier 10 for both Select Symbols and Non-Select Symbols. With this proposal, the Exchange would increase the Complex Order Priority Customer Rebates for Select Symbols as follows: Tier 6 would increase from $0.47 to $0.48 per contract, Tier 7 would increase from $0.48 to $0.51 per contract, Tier 8 would increase from $0.52 to $0.55 per contract, Tier 9 would increase from $0.52 to $0.56 per contract, and Tier 10 would increase from $0.53 to $0.57 per contract. Also, the Exchange would increase the Complex Order Priority Customer Rebates for Non-Select Symbols as follows: Tier 6 would increase from $0.80 to $0.85 per contract, Tier 7 would increase from $0.80 to $0.92 per contract, Tier 8 would increase from $0.85 to $1.03 per contract, Tier 9 would increase from $0.86 to $1.04 per contract, and Tier 10 would increase from $0.88 to $1.05 per contract. The Exchange believes that these increased Complex Order Priority Customer Rebates will attract more Complex Order flow to ISE.
Today, the Exchange assesses the following Complex Order Maker and Taker Fees:
The Exchange proposes to increase the Complex Order Taker Fees for Non-Select Symbols. Specifically, the Exchange proposes to increase the Complex Order Taker Fees for Non-Select Symbols as follows: Market Maker
The Exchange also proposes to amend notes 3 and 8 within Options 7, Section 4 related to Complex Orders. Currently, note 3 applies to a Market Maker's Maker Fee for Select Symbols when trading against a Priority Customer in Complex Orders and to a Market Maker's Taker Fee for Select Symbols in Complex Orders. Current note 3 provides, “This fee is $0.49 per contract for Market Makers that achieve Priority Customer Complex Tier 8, $0.47 per
The Exchange proposes to eliminate the current note 3 and no longer offer lower Complex Order Maker Fees for Select Symbols when trading against Priority Customer or Complex Order Taker Fees in Select Symbols to Members who achieve Priority Customer Complex Order Rebate Tiers 8, 9 or 10. Instead, the Exchange proposes to offer Members an opportunity to lower the Non-Priority Customer Complex Order Taker Fees in Select Symbols from $0.50 to $0.38 per contract on orders that execute against Priority Customer Complex Orders entered by an Affiliated Member
The Exchange believes that the proposed note 3 reduced Non-Priority Customer Complex Order Taker Fees for Select Symbols will attract order flow to ISE. As proposed, Priority Customers are eligible for increased Complex Order Rebates and continue to pay no Complex Order Taker Fees. The Exchange believes that the increased Complex Order Priority Customer Rebates and $0.00 per contract Complex Order Priority Customer Taker Fee taken together with the opportunity for lower Non-Priority Customer Complex Order Taker Fees for Select Symbols will continue to encourage an active and liquid market in Complex Order Select Symbols on ISE.
The Exchange proposes to amend note 8 within Options 7, Section 4 related to Complex Orders. Currently, note 8 applies to Complex Order Non-Priority Customer Taker Fees for Non-Select Symbols. Current note 8 provides, “A $0.05 per contract surcharge will be assessed to non-Priority Customer Complex Orders that take liquidity from the Complex Order Book, excluding Complex Orders executed in the Facilitation Mechanism, Solicited Order Mechanism, Price Improvement Mechanism and “exposure” auctions pursuant to Options 3, Section 14(c)(3).” The Exchange proposes to amend note 8 to increase the surcharge from $0.05 to $0.12 per contract. The surcharge was originally adopted to offset the costs of providing the Complex Order Priority Customer Rebates. With the proposed increased to Complex Order Priority Customer Rebates described herein, the Exchange proposes to increase the surcharge from $0.05 to $0.12 per contract. The Exchange believes that it is appropriate to revisit this surcharge and increase it at this time. Additionally, the Exchange proposes to continue to assess the surcharge to non-Priority Customer Complex Orders that take liquidity from the Complex Order Book, but now proposes to assess the surcharge when those orders are executed against Priority Customer Complex Orders. The proposed change is intended to align more closely the surcharge to the Complex Order Priority Customer Rebates. Finally, the Exchange proposes to continue to exclude Complex Orders entered in the Facilitation Mechanism, Solicited Order Mechanism, and Price Improvement Mechanism, but include Exposure Complex Orders
The Exchange also proposes to amend “non-Priority Customer” to “Non-Priority Customer” within notes 1 and 8 of Options 7, Section 4. This term is defined within Options 7, Section 1(c).
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The proposed changes to its Pricing Schedule are reasonable in several respects. As a threshold matter, the Exchange is subject to significant competitive forces in the market for options transaction services that constrain its pricing determinations in that market. The fact that this market is competitive has long been recognized by the courts. In
Numerous indicia demonstrate the competitive nature of this market. For example, clear substitutes to the Exchange exist in the market for options transaction services. The Exchange is only one of sixteen options exchanges to which market participants may direct their order flow. Within this environment, market participants can freely and often do shift their order flow among the Exchange and competing venues in response to changes in their respective pricing schedules. Within the foregoing context, the proposal represents a reasonable attempt by the Exchange to attract additional order flow to the Exchange and increase its market share relative to its competitors.
The Exchange's proposal to increase Complex Order Priority Customer Rebate Tiers 6 through 10 for Select Symbols and Non-Select Symbols is reasonable because the increased Priority Customer Rebates would attract additional Complex Order Priority Customer order flow to ISE in both Select Symbols and Non-Select Symbols. All Members may interact with the Complex Order Priority Customer order flow attracted by these higher rebates. Specifically, the Exchange believes that its proposal, which, among other things, increases rebate amounts where Members can qualify for larger rebates, is reasonable as it will encourage Members to increase the amount of Priority Customer Complex Orders that they send to the Exchange instead of sending this order flow to a competing options exchange. The Exchange believes that with the proposed rebate levels, Members who submit the same amount of order flow as they do today for Complex Order Priority Customer Rebate Tiers 6 through 10 for Select Symbols and Non-Select Symbols would receive larger rebates.
The Exchange's proposal to amend Complex Order Tiers 6 through 10 of the Priority Customer Rebates for Select Symbols and Non-Select Symbols is equitable and not unfairly discriminatory. Today, Complex Order Rebates are only offered to Priority Customer Complex Orders. Priority Customer liquidity is the most sought after liquidity. Priority Customer liquidity benefits all market participants by providing more trading opportunities, which attracts Market Makers. An increase in the activity of these market participants in turn facilitates tighter spreads, which may cause an additional corresponding increase in order flow from other market participants. Paying Complex Order Priority Customer Rebates is consistent with the treatment of Priority Customers on MIAX Emerald, LLC.
The Exchange's proposal to increase the Complex Order Taker Fees for Non-Select Symbols is reasonable because the proposal would permit ISE to offer higher Complex Order Priority Customer Rebates to attract additional Priority Customer order flow to ISE in both Select Symbols and Non-Select Symbols. All Members may interact with the Complex Order Priority Customer order flow attracted by these higher rebates. While the Exchange is increasing the Complex Order Taker Fees for Non-Select Symbols, the Exchange believes that market participants will continue to be incentivized to send Complex Order Priority Customer order flow to ISE to obtain the Priority Customer Complex Order Rebates offered by the Exchange. Additionally, the increased Complex Order Taker Fees remain competitive with BOX Exchange LLC (“BOX”).
The Exchange's proposal to increase the Complex Order Taker Fees for Non-Select Symbols is equitable and not unfairly discriminatory. The Exchange
The Exchange's proposal to amend note 3 within Options 7, Section 4 with respect to Complex Order Taker Fees for Select Symbols is reasonable because the Exchange would assess a lower Non-Priority Customer Complex Order Taker Fee ($0.38 vs. $0.50 per contract) in Select Symbols when an order that was entered by an Affiliated Member or Affiliated Entity executes against Priority Customer Complex Orders in Select Symbols. While the proposal would eliminate the current note 3, thereby no longer offering lower Complex Order Maker Fees for Select Symbols when trading against Priority Customers and Taker Fees for Select Symbols to Members who achieve Priority Customer Complex Order Rebate Tiers 8, 9 or 10, the Exchange would offer Members an opportunity to lower Non-Priority Customer Complex Orders Taker Fees in Select Symbols from $0.50 to $0.38 per contract when an order that executed against Priority Customer Complex Orders is entered by an Affiliated Member or Affiliated Entity. Today, Affiliated Members and Affiliated Entities may aggregate certain volume for purposes of receiving increased rebates or discounted fees.
The Exchange's proposal to amend note 3 within Options 7, Section 4 with respect to Complex Order Taker Fees for Select Symbols is equitable and not unfairly discriminatory because all Non-Priority Customers would be assessed a lower Complex Order Taker Fee in Select Symbols when executing against Priority Customer Complex Orders in Select Symbols entered by an Affiliated Member or Affiliated Entity. Priority Customers pay no Complex Order Taker Fees in Select Symbols and, therefore, are not offered the lower fee. Additionally, offering Members the opportunity to lower their Non-Priority Customer Complex Order Taker Fee in Select Symbols provided they execute against Priority Customer Complex Orders in Select Symbols that was entered by an Affiliated Member or Affiliated Entity is equitable and not unfairly discriminatory as it relates to Members who are not Affiliated Members or Affiliated Entities because any Member may enter into such a relationship for the purpose of aggregating volume executed on the Exchange to qualify to reduce their Complex Order Non-Priority Customer Taker Fee in Select Symbols. Finally, the criteria for assessing the lower Non-Priority Customer Complex Orders Taker Fee would be uniformly applied all Members.
The Exchange's proposal to amend note 8 within Options 7, Section 4 related to Complex Orders to increase the surcharge from $0.05 to $0.12 per contract is reasonable because the Exchange is also increasing the Complex Order Priority Customer Rebates. The surcharge was originally adopted to offset the costs of providing the Complex Order Priority Customer Rebates.
Continuing to exclude Complex Orders executed in the Facilitation Mechanism, Solicited Order Mechanism, and Price Improvement Mechanism from the proposed Non-Priority Customer Complex Order surcharge is reasonable because those auction mechanisms are subject to separate pricing. The Exchange desires to continue to encourage participation within those auction mechanisms. Subjecting Exposure Complex Orders and Exposure Only Complex Orders pursuant to Options 3, Section 14(b)(13) and (14) to the note 8 surcharge is reasonable because there is no separate pricing for these order types that are entered into Complex Exposure within Supplementary .01 to Options 3, Section 14. These order types are exposed upon entry and may not be entered on the Complex Order Book. The Exchange believes it is reasonable to subject Exposure Complex Orders and Exposure Only Complex Orders to the same pricing as other orders entered into the Complex Order Book which would include the Non-Priority Customer Complex Order surcharge. With this amendment, the Exchange seeks to fortify Member participation in the Complex Order Priority Customer rebate program and incentivize increased Complex Order volume on the Exchange. Finally, applying note 8 to Taker Fees for Select Symbols as well as Non-Select Symbols is reasonable because the Exchange offers Complex Order Priority Customer Rebates for both Select Symbols and Non-Select Symbols. The surcharge is designed to offset the costs of providing the
The Exchange's proposal to amend note 8 within Options 7, Section 4 related to Complex Orders to increase the surcharge from $0.05 to $0.12 per contract is equitable and not unfairly discriminatory because the surcharge would be uniformly applied to all Members who transact Non-Priority Customer Complex Orders that take liquidity from the Complex Order Book, including Exposure Complex Orders and Exposure Only Complex Orders, when executed against Priority Customer Complex Orders, excluding Complex Orders executed in the Facilitation Mechanism, Solicited Order Mechanism, and Price Improvement Mechanism. Additionally, the criteria for assessing the surcharge would be uniformly applied to all Members for Taker Fees in both Select and Non-Select Symbols. Continuing to exclude Complex Orders executed in the Facilitation Mechanism, Solicited Order Mechanism, and Price Improvement Mechanism from the proposed Non-Priority Customer Complex Order surcharge is equitable and not unfairly discriminatory because those auction mechanisms are subject to separate pricing. The Exchange desires to continue to encourage participation within those auction mechanisms. Subjecting Exposure Complex Orders and Exposure Only Complex Orders pursuant to Options 3, Section 14(b)(13) and (14) to the note 8 surcharge is equitable and not unfairly discriminatory because there is no separate pricing for these order types that are entered into Complex Exposure within Supplementary .01 to Options 3, Section 14. These order types are exposed upon entry and may not be entered on the Complex Order Book. The Exchange believes it is equitable and not unfairly discriminatory to subject Exposure Complex Orders and Exposure Only Complex Orders to the same pricing as other orders entered into the Complex Order Book which would include the Non-Priority Customer Complex Order surcharge. Any Member may utilize the Facilitation Mechanism, the Solicited Order Mechanism, and the Price Improvement Mechanism
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees to remain competitive with other exchanges. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which pricing changes in this market may impose any burden on competition is extremely limited because other options exchanges offer similar rebate programs as well as maker/taker pricing.
Moreover, as noted above, price competition between exchanges is fierce, with liquidity and market share moving freely between exchanges in reaction to fee and rebate changes. In sum, if the changes proposed herein are unattractive to market participants, it is likely that the Exchange will lose market share as a result. Accordingly, the Exchange does not believe that the proposed changes will impair the ability of Members or competing order execution venues to maintain their competitive standing in the financial markets.
The Exchange's proposal to amend Complex Order Tiers 6 through 10 of the Priority Customer Rebates for Select Symbols and Non-Select does not impose an undue burden on competition. Today, Complex Order Rebates are only offered to Priority Customer Complex Orders. Priority Customer liquidity is the most sought after liquidity. Priority Customer liquidity benefits all market participants by providing more trading opportunities, which attracts Market Makers. An increase in the activity of these market participants in turn facilitates tighter spreads, which may cause an additional corresponding increase in order flow from other market participants. Paying Complex Order Priority Customer Rebates is consistent with the treatment of Priority Customers on MIAX Emerald, LLC where orders from Priority Customers are also paid the highest rebates.
The Exchange's proposal to increase the Complex Order Taker Fees for Non-Select Symbols does not impose an undue burden on competition because all Non-Priority Customers would uniformly be assessed a $0.98 per contract Complex Order Taker Fee for Non-Select Symbols. Priority Customers would continue to be assessed no Complex Order Taker Fee for Non-Select Symbols. Priority Customer liquidity is the most sought after liquidity. Priority Customer liquidity benefits all market participants by providing more trading opportunities, which attracts Market Makers. An increase in the activity of these market participants in turn facilitates tighter spreads, which may cause an additional corresponding increase in order flow from other market participants.
The Exchange's proposal to amend note 3 within Options 7, Section 4 with respect to Complex Order Taker Fees for Select Symbols does not impose an undue burden on competition because all Non-Priority Customers would be assessed a lower Complex Order Taker Fee in Select Symbols when executing against Priority Customer Complex Orders in Select Symbols entered by an Affiliated Member or Affiliated Entity. Priority Customers pay no Complex Order Taker Fees in Select Symbols and, therefore, are not offered the lower fee. Additionally, offering Members the opportunity to lower their Non-Priority Customer Complex Order Taker Fee in Select Symbols provided they execute against Priority Customer Complex Orders in Select Symbols that was entered by an Affiliated Member or Affiliated Entity does not impose an undue burden on competition as it relates to Members who are not Affiliated Members or Affiliated Entities because any Member may enter into such a relationship for the purpose of aggregating volume executed on the Exchange to qualify to reduce their Complex Order Non-Priority Customer Taker Fee in Select Symbols. Finally, the criteria for assessing the lower Non-Priority Customer Complex Orders Taker Fee would be uniformly applied all Members.
The Exchange's proposal to amend note 8 within Options 7, Section 4 related to Complex Orders to increase the surcharge from $0.05 to $0.12 per contract does not impose an undue burden on competition because the surcharge would be uniformly applied
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of application and a temporary order under section 22(e)(3) of the Investment Company Act of 1940 (the “Act”).
Applicants request a temporary order to permit each of VanEck Russia ETF and VanEck Russia Small-Cap ETF (each, a “Fund,” and collectively, the “Funds”), series of VanEck ETF Trust (the “Trust”), to suspend the right of redemption of its outstanding redeemable securities and postpone the date of payment of redemption proceeds with respect to redemption orders received but not yet paid.
The Trust, on behalf of the Funds, and Van Eck Associates Corporation, the Funds' investment adviser (“Adviser” and together with the Trust, the “Applicants”).
The application was filed on December 28, 2022.
Interested persons may request a
The Commission:
Christopher D. Carlson, Senior Counsel, Trace W. Rakestraw, Branch Chief, or Daniele Marchesani, 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' application, dated December 28, 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
1. The Trust is registered under the Act as an open-end series management investment company. Adviser is the investment adviser to the Funds, each of which is a series of the Trust. Adviser is registered as an investment adviser under the Investment Advisers Act of 1940.
2. Each Fund is a non-diversified exchange-traded fund (“ETF”) that operates pursuant to Rule 6c-11 under the Act, which provides that shares of an ETF can be purchased or redeemed directly from the ETF at net asset value solely by authorized participants (“APs”) and only in aggregations of a specified number of shares. Shares of each Fund are listed on Cboe BZX Exchange, Inc. (“Cboe”).
3. VanEck Russia ETF's investment objective is to seek to replicate as closely as possible, before fees and expenses, the price and yield performance of the MVIS® Russia Index (the “Russia Index”). VanEck Russia Small-Cap ETF's investment objective is to seek to replicate as closely as possible, before fees and expenses, the price and yield performance of the MVIS® Russia Small-Cap Index (together with the Russia Index, the “Underlying Indexes”). MarketVector Indexes GmbH suspended future rebalances of the Underlying Indexes on March 1, 2022.
4. Applicants state that the request for relief arises from the effect of geopolitical affairs on transactions in the Russian equity markets and on the relevant markets for Russian equity securities generally, and on related clearance and payment systems. As a result of these geopolitical affairs, virtually all of each Fund's direct and indirect holdings of Russian equity securities have become illiquid and are fair valued at or near zero.
5. Effective March 3, 2022 and March 2, 2022, RSX and RSXJ, respectively, temporarily suspended new creations of their shares until further notice due to concerns about newly imposed restrictions impacting the ability of U.S. investors to transact in securities in the applicable Underlying Index, among other reasons.
6. Applicants anticipate that each Fund's shares will be delisted by Cboe on a date 15 days after the requested relief is granted and coinciding with the payment of the initial liquidating distribution by the Fund (or an earlier date if Cboe determines in its discretion to delist shares of the Fund, which may occur even if the requested relief is not granted). If shares of a Fund are delisted by Cboe, the Fund will not be able to continue to operate as an ETF, pursuant to Rule 6c-11.
7. If the order requested in the Application is granted, pursuant to the Plan of Liquidation and Termination of Series (the “Plan of Liquidation”) approved by the Board of Trustees of the Trust (the “Board”), each Fund will distribute in liquidation all of its assets to shareholders, less a reserve in an amount estimated to meet the Fund's outstanding liabilities, the costs of the liquidation, taking into account the political and market uncertainties impacting the sale of Russian securities, and the expenses necessary for the continued limited operation of the Fund through its final termination. Following that distribution, each Fund will have no assets of realizable value (other than the amount so held in reserve), and the Fund's positions in Russian securities will not be transferable by the Fund. If some or all of those Russian securities were at some point before each Fund's final termination determined to have a greater value, it is possible that they would continue not to be transferable at that time. In addition, it is possible that even if Russian securities were able to be sold, local regulations may not permit the proceeds of any such sale(s) to be converted to U.S. dollars which are freely available to a Fund. Each Fund's remaining portfolio assets—the Russian equity securities—will therefore remain in the Fund until they can be sold and converted into U.S. dollars (with the proceeds distributed to the Fund's shareholders) or are permanently written off, in each case as determined by the Adviser and approved by the Board.
8. Applicants believe the requested relief will permit each Fund to liquidate its holdings in the manner described above without the risk that it might be required to meet redemption requests submitted potentially out of the reserve or otherwise when the Fund would have no or few assets to meet the redemption requests. In addition, applicants state that suspension of redemptions prior to the initial distribution in liquidation will ensure that shareholders submitting such redemption requests will participate in the liquidation and also will be entitled to share both in the January 2023 liquidating distribution and any subsequent liquidating distributions. Notwithstanding the present inability to dispose of Russian securities held by each Fund, Applicants have determined to seek the requested order at this time because Applicants believe that liquidation of the Fund is in the best interests of the Fund's shareholders. Without the requested relief, each Fund will be required to satisfy redemption requests
9. In addition, as noted above, the Cboe may determine in its discretion to delist shares of the Funds if the requested relief is not granted. A Fund will not be eligible to rely on Rule 6c-11 once the Fund's shares are delisted by Cboe. As a consequence, to the extent that a Fund is obligated to satisfy any individual redemption requests received from non-AP shareholders of the Fund, the Fund would be unable to accept or process such redemption requests from an operational perspective because the Fund and its service providers do not have the operational infrastructure to enable the Fund to engage in non-AP primary market transactions. Each Fund therefore would not, for its part, initiate delisting of the Fund's shares with Cboe until after the requested relief is granted.
1. Applicants request an order pursuant to section 22(e) of the Act to suspend the right of redemption with respect to shares of each Fund effective December 28, 2022, and postpone the date of payment of redemption proceeds with respect to redemption orders received on or after December 23, 2022 but not yet paid as of December 28, 2022, for more than seven days after the tender of securities to the Fund, until the Fund completes the liquidation of its portfolio and distributes all its assets to the shareholders, or until the Commission rescinds the order granted herein. Applicants believe that the relief requested is appropriate for the protection of shareholders of the Fund.
1. Section 22(e)(1) of the Act provides that a registered investment company may not suspend the right of redemption or postpone the date of payment or satisfaction upon redemption of any redeemable security in accordance with its terms for more than seven days after the tender of such security to the company or its designated agent except for any period during which the New York Stock Exchange (“NYSE”) is closed other than customary week-end and holiday closings, or during which trading on the NYSE is restricted.
2. Section 22(e)(3) of the Act provides that redemptions may be suspended by a registered investment company for such other periods as the Commission may by order permit for the protection of security holders of the registered investment company.
3. Applicants submit that granting the requested relief would be for the protection of the shareholders of each Fund, as provided in section 22(e)(3) of the Act. Applicants assert that, in requesting an order by the Commission, the Applicants' goal is to ensure that all of each Fund's shareholders will be treated appropriately and fairly in view of the otherwise detrimental effect on the Fund of the illiquidity of the Fund's investments and the ongoing uncertainty surrounding the Russian equity markets. The requested relief is intended to permit an orderly liquidation of each Fund's portfolio and ensure that all of the Fund's shareholders are protected in the process.
Applicants agree that any order of the Commission granting the requested relief will be subject to the following conditions:
1. The Board, including a majority of the Independent Trustees,
2. Pending liquidating distributions, each Fund will invest proceeds of cash dispositions of portfolio securities solely in U.S. government securities, money market funds that are registered under the Act and comply with the requirements of Rule 2a-7 under that Act, cash equivalents, securities eligible for purchase by a registered money market fund meeting the requirements of Rule 2a-7 under the Act with legal maturities not in excess of 90 days and, if determined to be necessary to protect the value of a portfolio position in a rights offering or other dilutive transaction, additional securities of the affected issuer.
3. Each Fund's assets will be distributed to the Fund's shareholders solely in accordance with the Plan of Liquidation.
4. Each Fund and the Adviser will make and keep true, accurate, and current all appropriate records, including but not limited to those surrounding the events leading to the requested relief, the Plan of Liquidation, the sale of Fund portfolio securities, the distribution of Fund assets, and communications with shareholders (including any complaints from shareholders and responses thereto).
5. Each Fund and the Adviser will promptly make available to Commission staff all files, books, records and personnel, as requested, relating to the Fund.
6. Each Fund and the Adviser will provide periodic reporting to Commission staff regarding their activities carried out pursuant to the Plan of Liquidation.
7. The Adviser, its affiliates, and its and their associated persons will not receive any fee for managing the Funds.
8. Each Fund will be in liquidation and will not be engaged and does not propose to engage in any business activities other than those necessary for the protection of its assets, the protection of shareholders, and the winding-up of its affairs, as contemplated by the Plan of Liquidation.
9. Each Fund and the Adviser will appropriately convey accurate and timely information to shareholders of the Fund, before or promptly following the effective date of the liquidation, with regard to the status of the Fund and its liquidation (including posting such information on the Fund's website), and will thereafter from time to time do so to reflect material developments relating to the Fund or its status, including, without limitation, information concerning the dates and amounts of distributions, and press releases and periodic reports, and will maintain a toll-free number to respond to shareholder inquiries.
10. Each Fund and the Adviser shall consult with Commission staff prior to making any material amendments to the Plan of Liquidation.
Based on the representations and conditions in the application, the Commission permits the temporary suspension of the right of redemption for the protection of each Fund's shareholders. Under the circumstances described in the application, which require immediate action to protect the Funds' shareholders, the Commission concludes that it is not practicable to give notice or an opportunity to request a hearing before issuing the order.
Accordingly, in the matter of VanEck Russia ETF and VanEck Russia Small-Cap ETF, series of VanEck ETF Trust, and Van Eck Associates Corporation (File No. 812-15420),
By the Commission.
Securities and Exchange Commission (“Commission” or “SEC”).
Notice.
Notice of an application for an order pursuant to section 6(c) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 18(a)(2), 18(c), and 18(i) of the Act, pursuant to sections 6(c) and 23(c) of the Act for certain exemptions from rule 23c-3 under the Act, and pursuant to section 17(d) of the Act and rule 17d-1 thereunder.
Applicants request an order to permit certain registered closed-end management investment companies to issue multiple classes of shares and to impose early withdrawal charges and asset-based distribution and/or service fees.
Monachil Credit Income Fund, Monachil Capital Partners LP, and Foreside Financial Services, LLC.
The application was filed on July 20, 2021, and amended on February 10, 2022, June 9, 2022, and October 6, 2022.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing on any application by emailing the SEC's Secretary at
The Commission:
Christine Y. Greenlees, Senior Counsel, or Lisa Reid Ragen, Branch Chief, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
For Applicants' representations, legal analysis, and conditions, please refer to Applicants' third amended and restated application, dated October 6, 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, 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 (44 U.S.C. 3501
Section 6 of the Act
The respondents to the collection of information are futures markets.
The Commission estimates that the total annual burden for all respondents to provide periodic amendments
Compliance with Rule 6a-4 is mandatory. Information received in response to Rule 6a-4 shall not be kept confidential; the information collected is public information.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following website: >
Department of State.
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the information collection described below to the Office of Management and Budget (OMB) for approval. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 30 days for public comment.
Submit comments up to February 3, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Mr. Dilan Wickrema, Office of Defense Trade Controls Policy, Department of State, telephone (202) 634-4981; email
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We are soliciting public comments to permit the Department to:
Evaluate whether the proposed information is necessary for the proper functions of the Department.
Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
Enhance the quality, utility, and clarity of the information to be collected.
Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note, comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware your comments as submitted, including your personal information, will be available for public review.
This information collection is used for two main purposes: (1) the collection and submission of information required for DDTC approval of a reexport or retransfer; and (2) the collection and retention of certain information for authorizations and other approvals, including for reexports and retransfers under an Open General License (OGL) program. Under § 123.9(a) of the ITAR, unless an exemption applies, DDTC's written approval must be obtained before reselling, transferring, reexporting, retransferring, transshipping, or disposing of a defense article to any end-user, end-use, or destination other than as stated on the export license or in the Electronic Export Information filing in cases where an exemption was claimed. Such approval is normally granted through case-by-case review of requests to authorize specific transfers. In addition, ITAR § 120.22(b) allows DDTC to provide export authorization for DDTC's own initiatives, including pilot programs and other specifically anticipated circumstances for which DDTC considers special authorizations appropriate. DDTC has launched a pilot program pursuant to its authorities in ITAR § 120.22(b) in order to assess the concept of an OGL mechanism by which it may authorize certain transfers of defense articles to predetermined
Under ITAR § 123.1(c), DDTC may require pertinent documentation regarding the proposed transaction and proper completion of the application form, including information about the quantity and value of the defense article proposed for export and information on the proposed end-user, end-use, and ultimate destination. Under ITAR § 123.9(c), persons who seek approval from DDTC to reexport or retransfer defense articles are required to submit a description, quantity, and value of the defense article and a description and identification of the new end-user, end-use, and destination. Under ITAR § 120.15(e) any person engaging in any reexport or retransfer of a defense article pursuant to an exemption must maintain records of each such transfer including the following information: A description of the defense article, including technical data, or defense service; the name and address of the end-user and other available contact information (
DDTC seeks to ensure that persons who rely on any current or future OGLs to conduct reexports and retransfers abroad retain the same records as would be required if their transactions were authorized by either a specific license or an exemption. Accordingly, DDTC has restated the record-keeping requirements articulated in ITAR § 120.15(e) in the OGLs themselves.
Respondents will submit information as attachments to relevant license applications or requests for other approval. Applicants are referred to ITAR § 123.9 for guidance on what information to submit regarding the request to change end-user, end-use and/or destination of hardware. This information may be submitted electronically via a DS-6004, Reexport/Retransfer Application, through DDTC's case management system, the Defense Export Control and Compliance System (DECCS).
Separately, as described in ITAR § 120.15(e) and under the OGL pilot program and as described in each OGL, respondents will be required to retain certain information in their own records for a period of five years from the date of the reexport or retransfer.
Notice is hereby given of the following determinations: I hereby determine that certain objects being imported from abroad pursuant to agreements with their foreign owners or custodians for temporary storage and display in performances of “After SFX” presented alongside the exhibition “Lawrence Abu Hamdan: Walled Unwalled and Other Monologues” at The Museum of Modern Art, New York, New York, and at possible additional exhibitions or venues yet to be determined, are of cultural significance, and, further, that their temporary exhibition or display and storage within the United States as aforementioned is in the national interest. I have ordered that Public Notice of these determinations be published in the
Elliot Chiu, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
Kanawha River Railroad, L.L.C. (KRR), a Class III rail carrier, has filed a verified notice of exemption under 49 CFR 1150.41 to amend its lease with Norfolk Southern Railway Company (NSR) of, and continue to operate, nine rail line segments totaling 309.45 miles in West Virginia and Ohio.
According to the verified notice, KRR has leased and operated the lines since 2016.
KRR certifies that its projected revenues resulting from this transaction will not result in the creation of a Class II or Class I rail carrier but that its current annual revenue does exceed $5 million. Pursuant to 40 CFR 1150.42(e), if a carrier's projected annual revenues will exceed $5 million, it must, at least 60 days before the exemption is to become effective, post a notice of its intent to undertake the proposed transaction at the workplace of the employees on the affected lines, serve a copy of the notice on the national offices of the labor unions with employees on the affected lines, and certify to the Board that it has done so. KRR, however, has petitioned for waiver of the 60-day advance labor notice. KRR's waiver request will be addressed in a separate decision in which the Board will also establish the effective date of the exemption.
KRR further certifies that its amended lease agreement with NSR will include an interchange commitment provision regarding interchange with third-party carriers. KRR verifies that the provision was present in the original lease filed in
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions for stay must be filed no later than January 11, 2023.
All pleadings, referring to Docket No. FD 36028 (Sub-No. 1), must be filed with the Surface Transportation Board either via e-filing on the Board's website or in writing addressed to 395 E Street SW, Washington, DC 20423-0001. In addition, a copy of each pleading must be served on KRR's representative, Bradon J. Smith, Fletcher & Sippel LLC, 29 North Wacker Drive, Suite 800, Chicago, IL 60606-3208.
According to KRR, this action is categorically excluded from environmental review under 49 CFR 1105.6(c) and from historic reporting requirements under 49 CFR 1105.8(b).
Board decisions and notices are available at
By the Board,
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons whose property and interests in property has/have been unblocked and removed from the List of Specially Designated Nationals and Blocked Persons List (SDN List). Their property and interests in property are no longer blocked, and U.S. persons are no longer generally prohibited from engaging in transactions with them.
See
OFAC: Andrea Gacki, Director, tel.: 202-622-2480; Associate Director for Global Targeting, tel: 202-622-2420; Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel.: 202-622-4855; or Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On December 28, 2022, OFAC determined that the following persons, who had been designated pursuant to Executive Order 13315 of August 28, 2003, “Blocking Property of the Former Iraqi Regime, Its Senior Officials and Their Family Members, and Taking Certain Other Actions,” as amended by Executive Order 13350 of July 29, 2004, “Termination of Emergency Declared in Executive Order 12722 With Respect to Iraq and Modification of Executive Order 13290, Executive Order 13303, and Executive Order 13315,” should be removed from the SDN List, and that the property and interests in property subject to U.S. jurisdiction of the following persons are unblocked, and lawful transactions involving U.S. persons are no longer prohibited.
1. AL-DULAIMI, Khalaf (a.k.a. AL-DULAYMI, Khalaf M.M.); DOB 25 Jan 1932; Passport #H0044232 (Iraq) (individual) [IRAQ2].
1. MIDCO FINANCE S.A. (a.k.a. MIDCO FINANCIAL S.A.; a.k.a. MONTANA MANAGEMENT INC.), 57 Rue du Rhone, Geneva CH-1204, Switzerland; Panama; US FEIN CH-660-0-469-982-0 (United States); Switzerland [IRAQ2].
U.S. Citizenship and Immigration Services, DHS.
Proposed rule.
The Department of Homeland Security (DHS) proposes to adjust certain immigration and naturalization benefit request fees charged by U.S. Citizenship and Immigration Services (USCIS). USCIS conducted a comprehensive biennial fee review and determined that its costs have increased considerably since its previous fee adjustment due to expanded humanitarian programs, higher demand, increased processing times, and a need for more USCIS employees. USCIS cannot maintain adequate service levels with the effects of the budget cuts and its current level of spending without lasting impacts on operations. DHS proposes to adjust USCIS fees, add new fees for certain benefit requests, establish distinct fees for petitions for nonimmigrant workers, and limit the number of beneficiaries on certain forms. DHS is also proposing additional fee exemptions for certain humanitarian categories and changes to certain other immigration benefit request requirements. If DHS does not adjust USCIS fees it will not have the resources it needs to provide adequate service to applicants and petitioners or be able to keep pace with incoming benefit request workload, and USCIS processing times and backlogs will not improve. DHS intends for this rulemaking to provide the funding required for USCIS to improve service levels.
Written comments must be submitted on this proposed rule on or before March 6, 2023. The electronic Federal Docket Management System will accept comments before midnight eastern time at the end of that day.
You may submit comments on the entirety of this proposed rule package, identified by DHS Docket No. USCIS-2021-0010, through the Federal eRulemaking Portal:
Carol Cribbs, Deputy Chief Financial Officer, U.S. Citizenship and Immigration Services, Department of Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone 240-721-3000 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone numbers above via TTY by calling the toll-free Federal Information Relay Service at 877-889-5627 (TTY/TDD).
DHS invites you to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this proposed rule. Comments providing the most assistance to DHS will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that supports the recommended change.
• Fiscal Year (FY) 2022/2023 Immigration Examinations Fee Account (IEFA) Fee Review Supporting Documentation (supporting documentation);
• FY 2022/2023 IEFA Fee Schedule Documentation (fee schedule documentation);
• FY 2022/2023 IEFA Fee Review Model Documentation (model documentation);
• FY 2022/2023 Fee Review Regulatory Impact Analysis (RIA); and
• FY 2022/2023 Fee Review Small Entity Analysis (SEA).
You may review these documents on the electronic docket. The software
DHS proposes to adjust the USCIS fee schedule, which specifies the fee amount charged for each immigration and naturalization benefit request.
USCIS is primarily funded by fees charged to applicants and petitioners for immigration and naturalization benefit requests. Fees collected from individuals and entities filing immigration benefit requests are deposited into the Immigration Examinations Fee Account (IEFA). These fee collections fund the cost of fairly and efficiently adjudicating immigration benefit requests, including those provided without charge to refugee, asylum, and certain other applicants or petitioners. The focus of this fee review is the fees that DHS has established and is authorized by INA section 286(m), 8 U.S.C 1356(m), to establish or change, collect, and deposit into the IEFA, which comprised approximately 96 percent of USCIS' total FY 2021 enacted spending authority; this fee review does not focus on fees that USCIS is required to collect but cannot change. This rule also proposes to revise the genealogy program fees established under INA section 286(t), 8 U.S.C. 1356(t), and those funds are also deposited into the IEFA. Premium processing funds
In accordance with the requirements and principles of the Chief Financial Officers Act of 1990 (CFO Act), codified at 31 U.S.C. 901-03, and Office of Management and Budget (OMB) Circular A-25, USCIS conducts biennial reviews of the non-statutory fees deposited into the IEFA. Following such reviews, DHS proposes fee adjustments, if necessary, to ensure that USCIS fees recover the full cost of operating USCIS as authorized by INA section 286(m), 8 U.S.C. 1356(m). USCIS has completed a fee review for the FY 2022/2023 biennial period. The primary objective of any IEFA fee review is to determine whether current immigration and naturalization benefit fees will generate sufficient revenue to fund the anticipated operating costs associated with administering the nation's legal immigration system. The results indicate that current fee levels are insufficient to recover the full cost of operations funded by the IEFA. Therefore, DHS proposes to adjust USCIS fees.
In addition to the requirements of the CFO Act, there are other important reasons for conducting the FY 2022/2023 fee review. The fee review:
• Allows for an assessment of USCIS policy changes, staffing levels, costs, and revenue and other assessments. USCIS evaluates operational requirements and makes informed decisions concerning program scaling, resource planning, and staffing allocations; and
• Provides those served by USCIS with an opportunity to submit comments on the effect of fee changes.
USCIS calculates its fees to recover the full cost of operations funded by the IEFA. These costs do not include limited appropriations provided by Congress. If USCIS continues to operate at current fee levels, it would experience an average annual shortfall (the amount by which expenses exceed revenue) of $1,868.2 million. This projected shortfall poses a risk of degrading USCIS operations funded by the IEFA.
Although this fee schedule represents a 40-percent overall weighted average increase to ensure full cost recovery, more than a million immigration benefit requestors each year would see no increase or a decrease in costs because their benefit requests have no fee, are fee exempt, or are fee waived.
The proposed fees would ensure that IEFA revenue covers USCIS' costs associated with adjudicating immigration benefit requests. The proposed fee schedule accounts for increased costs to adjudicate immigration benefit requests, detect and deter immigration fraud, and vet applicants, petitioners, and beneficiaries. See section V.A. of this preamble for a discussion of IEFA budget history and cost projections for this rulemaking. DHS also proposes to expand fee exemptions for certain applicants and petitioners for humanitarian benefits. Additionally, DHS proposes to establish distinct fees for different categories of petitions for nonimmigrant workers. DHS proposes to set a range of fees that vary by the nonimmigrant classification and to limit petitions for nonimmigrant workers to 25 named beneficiaries. DHS believes the proposed fees more accurately reflect the differing burdens of adjudication and will enable USCIS to adjudicate these petitions more effectively.
The fee adjustments, as well as changes to the forms and fee structures used by USCIS, would result in net costs, benefits, and transfer payments. For the 10-year period of analysis of the rule (FY 2023 through FY 2032), DHS estimates the annualized net costs to the public would be $532,379,138 discounted at 3- and 7-percent. Estimated total net costs over 10 years would be $4,541,302,033, discounted at 3-percent and $3,739,208,286 discounted at 7-percent.
The proposed changes in this rule would also provide several benefits to DHS and applicants/petitioners seeking immigration benefits. For the Government, the primary benefits include reduced administrative burdens and fee processing errors, increased efficiency in the adjudicative process, and the ability to better assess the cost of providing services, which allows for better aligned fees in future regulations. The primary benefits to the applicants/petitioners include the simplification of the fee payment process for some forms, elimination of the $30 returned check fee, USCIS' expansion of the electronic filing system to include more forms, and for many applicants, limited fee increases and additional fee exemptions to reduce fee burdens.
Fee increases and other changes in this proposed rule would result in annualized transfer payments from applicants/petitioners to USCIS of approximately $1,612,133,742 discounted at both 3-percent and 7-percent. The total 10-year transfer payments from applicants/petitioners to USCIS would be $13,751,827,819 at a 3-percent discount rate and $11,322,952,792 at a 7-percent discount rate.
Fee reductions and exemptions in this proposed rule would result in annualized transfer payments from USCIS to applicants/petitioners of approximately $116,372,429 discounted at both 3-percent and 7-percent. The total 10-year transfer payments from USCIS to applicants/petitioners would be $992,680,424 at a 3-percent discount rate and $817,351,244 at a 7-percent discount rate.
The annualized transfer payments from the Department of Defense (DoD) to USCIS would be approximately $222,145 at both 3- and 7-percent discount rates. The total 10-year transfer payments from DoD to USCIS would be $1,894,942 at a 3-percent discount rate and $1,560,254 at a 7-percent discount rate.
This proposed rule includes the following proposals:
• Adjusting fees according to the schedule in Tables 1 and 26.
• Adding new fee exemptions for certain humanitarian programs and preserving the fee waiver requirements that are currently being followed.
• Removing fee exemptions that are based only on the age of the person submitting the request.
• Eliminating the $30 returned check fee.
• Incorporating biometrics costs into the main benefit fee and removing the separate biometric services fee.
• Requiring separate filing fees for Form I-485 and associated Form I-131 and Form I-765 filings.
• Establishing separate fees for Form I-129, Petition for Nonimmigrant Worker, by nonimmigrant classification.
• Revising the premium processing timeframe interpretation from calendar days to business days.
• Revising adoption-related requirements, including adding a Request for Action on Approved Form I-600A/I-600 (Form I-600A/I-600, Supplement 3), and associated fees.
• Revising regulations related to genealogy searches, including establishing a fee for Form G-1566, Request for Certificate of Non-Existence.
• Miscellaneous technical and procedural changes.
• Creating lower fees for forms filed online.
Table 1 summarizes the current and proposed fees. In addition, the proposed fees and exemptions are incorporated into the draft version of USCIS Form G-1055 as part of the docket for this rulemaking. In some cases, the current or proposed fee may be the sum of several fees. For example, several immigration benefit requests require an additional biometric services fee under the current fee structure. The table includes rows with and without the additional biometric services fee added to the Current Fee(s) column. The Current Fee(s) column represents the current fees in effect rather than the enjoined fees from the 2020 fee rule.
DHS is issuing this proposed rule consistent with INA sec. 286(m), 8 U.S.C. 1356(m) (authorizing DHS to charge fees for adjudication and naturalization services at a level to “ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants”),
This proposed rule is also consistent with non-statutory guidance on fees, the budget process, and Federal accounting principles.
Finally, this rulemaking accounts for, and is consistent with, congressional appropriations for specific USCIS programs. FY 2021 appropriations for USCIS provided funding for the E-Verify employment eligibility verification program. Congress provided E-Verify with $117.8 million for operations and support.
In FY 2022, Congress provided USCIS additional appropriations for very specific purposes.
The FY 2022/2023 fee review budget that is the basis for this proposed rule excludes all appropriated funding, including the approximately $529.2 million provided so far in FY 2022. USCIS will use the appropriated funding for the purposes provided by Congress. The appropriations support several DHS priorities, for example, decreasing USCIS application processing times, reducing the backlog of requests already on hand and being adjudicated (and for which a fee may have already been paid). USCIS may also use the appropriations to expand refugee processing efforts, and support vulnerable Afghans, including those who worked alongside Americans in Afghanistan for the past two decades, as they safely resettle in the United States. These appropriations do not overlap with the fee review budget, which will fund immigration adjudication and naturalization services for future incoming receipts. The full costs of operating USCIS that are included in the fee model do not include separate line items budgeted directly for backlog reduction and OAW. Had the appropriation not been received, DHS and USCIS would have been required to use funds budgeted for other uses to fund the costs of OAW. While DHS and USCIS are very focused on reducing backlogs, our efforts to reduce the backlog did not include a significant shift of IEFA non-premium funds from normal operations to that effort. USCIS funded previous backlog reduction efforts with IEFA premium processing revenue and supplemental appropriations.
DHS received appropriations to fund some of the additional spending that USCIS will require for the refugee ceiling increase to 125,000 beginning in FY 2022, as described in section V.A.2.b.
The FY 2022 appropriation laws also require additional services and impose reporting, processing, and monitoring requirements that will add costs for USCIS.
USCIS manages three fee accounts:
• The IEFA (includes premium processing revenues),
• The Fraud Prevention and Detection Account,
• The H-1B Nonimmigrant Petitioner Account.
In 1988, Congress established the IEFA in the Treasury of the United States.
USCIS receives millions of requests each year for immigration benefits. These benefits are funded by DHS, generally, by charging fees for USCIS services. In recent years, however, and as fully explained in this rule preamble and its supporting documents, USCIS costs have surpassed the fees it collects.
As stated earlier, DHS publishes this proposed rule under the Immigration and Nationality Act (“INA”), which establishes the “Immigration Examinations Fee Account” (“IEFA”) for the receipt of fees it charges. INA section 286(m), 8 U.S.C. 1356(m). The INA allows DHS to set “fees for providing adjudication and naturalization services . . . at a level that will ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants.”
DHS proposes this rule to address the projected deficits and unsustainable fiscal situation of USCIS that are explained in this proposal and in the supporting documentation in the docket.
Consistent with these authorities, sources, and needs, this proposed rule would ensure that USCIS recovers its full operating costs and maintains an adequate level of service in two ways:
First, where possible, the proposed rule would set fees at levels sufficient to cover the full cost of the corresponding services associated with fairly and efficiently adjudicating immigration benefit requests.
DHS generally follows OMB Circular A-25, which “establishes federal policy regarding fees assessed for Government services and for sale or use of Government goods or resources.” OMB Circular A-25, section 1, 58 FR 38144. A primary objective of OMB Circular A-25 is to ensure that Federal agencies recover the full cost of providing specific services to users and associated costs.
• Direct and indirect personnel costs, including salaries and fringe benefits such as medical insurance and retirement;
• Physical overhead, consulting, and other indirect costs, including material and supply costs, utilities, insurance, travel, and rents or imputed rents on land, buildings, and equipment;
• Management and supervisory costs; and
• Costs of enforcement, collection, research, establishment of standards, and regulation.
Consistent with the historical position and practice of DHS, this proposed rule would set fees at a level that ensures recovery of the full operating costs of USCIS, the component within DHS that provides almost all immigration adjudication and naturalization services.
Certain functions, including the Systematic Alien Verification for Entitlements (SAVE) program
OMB guidance gives agencies discretion to interpret when additional statutory requirements apply to user fees.
The ABC model distributes indirect costs. Indirect costs are not specifically identifiable with one output because they may contribute to several outputs. The ABC model uses a cause-and-effect relationship to distribute most indirect costs.
Typically, Congressional appropriations and two other small fee accounts represent between 2-5 percent (combined) of USCIS' annual budget.
On October 1, 2020, the Continuing Appropriations Act, 2021 and Other Extensions Act (Continuing Appropriations Act) was signed into law. Public Law 116-159 (Oct. 1, 2020). The Continuing Appropriations Act included the Emergency Stopgap USCIS Stabilization Act (USCIS Stabilization Act), which allows USCIS to establish and collect additional premium processing fees and to use premium processing funds for expanded purposes.
On March 30, 2022, DHS published a final rule, “Implementation of the Emergency Stopgap USCIS Stabilization Act,” implementing part of the authority provided under the USCIS Stabilization Act to offer premium processing for those benefit requests made eligible for premium processing by section 4102(b) of that law.
• Realignment of $25.1 million for IRIS Directorate information technology (IT) functions and support contracts in FY 2021.
• Office of Information Technology GE costs of $363.6 million and $497 million for FY 2021 and FY 2022 respectively.
• $57.5 million in FY 2021 and $58.1 million in FY 2022 for Service Center Operations general expenses.
Therefore, the projected revenue to be collected from future premium processing services established by the premium processing rule is too attenuated to be considered in the current biennial fee study and the ABC full cost recovery model used for this rule without placing USCIS at risk of revenue shortfalls if that revenue did not materialize. DHS has historically excluded premium processing revenue and costs from its IEFA fee reviews and rulemakings to ensure that premium processing funds are available for infrastructure investments largely related to information technology, are available to provide staff for backlog reduction, and to ensure that non-premium fees were set at a level sufficient to cover the base operating costs of USCIS. As noted above, if the revenue collected from premium processing services becomes more significant and certain before DHS publishes a final rule, DHS will consider including premium processing revenue and costs in the final rule. In the next USCIS biennial fee study, DHS will take into consideration the future effects of the premium processing rule and the USCIS Stabilization Act allowing for premium processing revenue to be used for more general uses than what was previously authorized.
On March 15, 2022, the President signed the EB-5 Reform and Integrity Act of 2022, Div. BB of the Consolidated Appropriations Act, 2022, Public Law 117-103. The EB-5 Reform and Integrity Act of 2022 immediately repealed the Regional Center Pilot Program created by the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act 1993, Public Law 102-395, 106 Stat. 1828, sec. 610(b). The law also authorizes a new EB-5 Regional Center Program, effective May 14, 2022, and is authorized through FY 2026 and makes various changes to the program. As discussed more fully in section VIII.O. of this preamble, DHS proposes new fees for the forms used in the EB-5 program in this rule.
The EB-5 Reform and Integrity Act of 2022 requires DHS to conduct a fee study not later than 1 year after the date of the enactment of this Act and, not later than 60 days after the completion of the study, set fees for EB-5 program related immigration benefit requests at a level sufficient to recover the costs of providing such services, and completing the adjudications within certain time frames.
On August 3, 2020, DHS published the 2020 fee rule, with an effective date of October 2, 2020, to adjust the USCIS fee schedule and make changes to certain other immigration benefit request requirements. On September 29, 2020, the United States District Court for the Northern District of California granted a motion for a preliminary injunction of the 2020 fee rule in its entirety and stayed the final rule's effective date in
DHS and the parties in
While DHS is enjoined from implementing or enforcing the 2020 fee rule, the revisions set out in that rule were codified. While 8 CFR part 106 and the other revisions set out in the 2020 fee rule are found in the CFR, DHS did not implement them and continues to charge the fees and follow the fee waiver policies that were, for the most part, in 8 CFR 103.7 as it existed before October 2, 2020. By this rulemaking, DHS will replace the enjoined regulations and correct the currently incorrect USCIS fee regulations in the CFR.
Because the 2020 fee rule was codified, this rule proposes to amend the text of certain changes made by the
This rule proposes relatively minor wording changes to the changes codified by the 2020 fee rule, and, in most cases, DHS is only proposing a new fee amount. However, because DHS could not implement the regulations codified on October 2, 2020, DHS does not believe that describing only the amendments to those sections is adequate to provide the affected public with what it needs to adequately review, understand, and comment on what is being proposed in this rule. Therefore, DHS has published entire portions of the regulatory text being proposed in this rule to provide a clear picture of what DHS is proposing, including sections that are codified in the CFR but were not implemented by USCIS.
Many of the proposed provisions in this rule are verbatim or close to verbatim to what is already codified, although enjoined. However, because those provisions are enjoined, DHS will address them as if they are newly proposed and cite to, for example, “proposed 8 CFR 106.2.” When this preamble discusses the no longer codified but still in effect provisions of title 8 of the CFR, the standard of citing to the CFR print edition date
As stated previously, this rule would replace the changes about which the plaintiffs in
1. Replace “§ 103.7(b)(1) of this chapter” with “8 CFR 103.7(d)(4)” in 8 CFR 217.2.
2. Replace “§ 103.7(b)(1) of this chapter” with “8 CFR 103.7(d)(4)” in 8 CFR 217.2.
3. Remove “8 CFR 103.7,” “8 CFR 103.7(b)” and “8 CFR 103.7(b)(1)” and “§ 103.7 of this chapter” and replace it with “8 CFR 106.2” in 8 CFR 204.6, 204.310, 204.311, 204.313, 211.1, 211.2, 212.2, 212.3, 212.4, 212.7, 212.15, 212.18, 214.1, 214.3, 214.6, 214.11, 214.16. 216.4, 216.5, 216.6, 223.2, 236.14, 236.15, 245.7, 245.10, 245.15, 245.18, 245.21, 245.23, 245a.12, 245a.13, 245a.20, 245a.33, 248.3, 264.2, 264.5, 264.6, 286.9, 301.1, 319.11, 320.5, 322.3, 322.5, 324.2. 334.2, 341.1, 341.5, 343a.1, 343b.1, 392.4.
4. Replace all references to “Form I-129” and any supplements, and adding in its place either “the form prescribed by USCIS,” “application or petition,” as appropriate in 8 CFR 214.1 and 214.2.
5. Replace “§ 103.7(b)(1) of this chapter” with “8 CFR 103.7(d)(4)” in 8 CFR 217.2.
6. In 8 CFR part 235, replace “§ 103.7(b)(1) of this chapter” and § “103.7(b)(1)” with “8 CFR 103.7(d)(3)” in 8 CFR 235.1, with “8 CFR 103.7(d)(7)” in 8 CFR 235.7, “8 CFR 103.7(d)(13)” in 8 CFR 235.12, and “8 CFR 103.7(d)(14)” in 8 CFR 235.13.
7. Remove the second sentence of § 245.21(b) and remove and reserve §§ 245.15(c)(2)(iv)(B) and (h)(2), 245.23(e)(1)(iii), and 245.24(d)(3) and (i)(1)(iv).
8. Replace “Missouri Service Center” with “National Benefit Center” in 8 CFR 245a.18, 245a.19, and 245a.33.
The USCIS IEFA fee schedule that is in effect was published in the DHS FY 2016/2017 fee rule.
The fee schedule had been adjusted previously as well, as follows:
• Before the creation of DHS, the Department of Justice (DOJ) Immigration and Naturalization Service (INS)
• DOJ conducted a comprehensive fee review using ABC and adjusted most IEFA fees in 1998.
• DOJ implemented fees for Nicaraguan Adjustment and Central American Relief Act (NACARA) between 1998 and 1999.
• Following the creation of DHS in 2002, the agency adjusted fees in 2004 and 2005.
• After those incremental changes, DHS published a comprehensive FY 2008/2009 fee rule in 2007.
• DHS further amended USCIS fees in the FY 2010/2011 fee rule.
The supporting documentation accompanying this proposed rule in the
Table 2 summarizes the IEFA and biometric services fee schedule that took effect on December 23, 2016. DHS is proposing to change the current fee schedule as a result of the FY 2022/2023 fee review. The table excludes statutory fees that DHS cannot adjust or can only adjust for inflation.
In the 2020 fee rule NPRM, DHS explained that it was shifting its fees away from an ability-to-pay model to a beneficiary-pays model.
In this new fee rule, DHS proposes to return the focus of its fee-setting away from emphasizing the beneficiary-pays principle towards the historical balance between the beneficiary-pays and ability-to-pay principles. DHS proposes this for several reasons.
First, DHS has been directed by the President to reduce barriers and promote accessibility to the immigration benefits that it administers.
As part of implementing Executive Order 14012, USCIS published a Request for Public Input
Second, DHS has read and considered the many comments that we received on the 2020 fee rule that stated that the increased fees and restrictions on fee waivers in that rule would result in many fewer residents accessing a desired immigration status for which they are eligible, simply because they cannot afford to apply. Others wrote that the proposed naturalization fee increase would make naturalization unaffordable. Thus, many public comments on the 2020 fee rule indicated a preference for DHS placing greater emphasis on the ability-to-pay principle in setting its fees. As a result of these comments, and to encourage full economic and civic participation by immigrants, DHS has also analyzed the effects of this rule in light of its impacts on low-income populations and organizations that assist them in section IX.A, Impact of Fees.
As stated earlier, DHS is operating under two injunctions that preclude it from implementing or following the changes made by the 2020 fee rule, as well as an injunction that precludes it from implementing the 2019 Fee Waiver Revisions. Thus, DHS must consider the concerns expressed and the courts' findings in those cases. For example, in
DHS proposes to set USCIS fees at the level required to recover the full cost of providing immigration adjudication and naturalization services, as permitted or required by law, while providing certain fee exemptions and waivers for low-income immigrants. As USCIS estimates that the current fee structure will not generate sufficient revenue to cover the projected costs of providing immigration adjudication and naturalization services under the ABC methodology, the fees for many immigration benefit requests will by necessity increase. Nevertheless, where DHS has determined that this rule's approach would inequitably impact the ability of those who may be less able to afford the proposed fees to seek an immigration benefit for which they may be eligible, DHS proposes either to maintain the pre-2020 fee rule regulations, fee waivers, and reduced fees that USCIS is following, or to add new fee exemptions to address accessibility and affordability. For example, as detailed more fully later in this preamble, DHS proposes to maintain the fee waiver regulations and eligibility guidance that took effect in 2010. Consistent with previous fee rules, DHS also proposes to limit the fees for certain benefit requests in recognition that fees set at the ABC model output for these forms would be overly burdensome. For example, as detailed later in this preamble, both considering the affordability of naturalization, and to promote naturalization for the benefits it provides to the country, DHS proposes to set the fee for Form N-400 at a level below what is required to recover the estimated full cost of providing naturalization services. In addition, DHS proposes to expand fee exemptions for certain vulnerable populations, as described later in this preamble.
DHS acknowledges that the ability-to-pay principle necessarily requires the shifting of costs. If some customers are exempt from paying fees or have their fees waived, total fee collections cannot cover the total program costs unless other users pay higher fees to cover the costs associated with processing the benefit requests of non-paying users. USCIS follows the principles in OMB Circular A-25 and uses an ABC model to align its fees closely with the estimated cost for the relevant service. When DHS deviates from the ABC model to limit, waive, or exempt certain customers from fees because they are overly burdensome, or to advance a public policy priority, this results in the fees for particular services being set at a level that is higher than the estimated cost of providing those services to fee-paying users. That means that DHS examined each fee in this proposed rule, and the fees proposed represent the Department's best effort to balance of access, affordability, equity, and benefits to the national interest while providing USCIS with the funding necessary to maintain adequate services.
The primary objective of the fee review is to determine whether current immigration and naturalization benefit fees will generate sufficient revenue to fund anticipated operating costs associated with administering USCIS' role in the Nation's legal immigration system. USCIS examines its recent budget history, service levels, and immigration and naturalization trends to forecast costs, revenue, and operational metrics. These data help USCIS identify the difference between anticipated costs and revenue as well as calculate proposed fees. DHS provides a brief summary of how the USCIS budget has evolved from the projections included in the FY 2016/2017 fee rule for context before discussing the elements of the FY 2022/2023 fee review. The FY 2022/2023 fee review encompasses three core elements:
• Cost projections;
• Revenue projections; and
• Cost and revenue differential (the difference between cost and revenue projections).
USCIS' costs have grown beyond the levels projected in the FY 2016/2017 fee rule, which went into effect on December 23, 2016. This cost growth reflects increased USCIS workloads and staffing requirements during that time. The FY 2016/2017 fee rule estimated that an average annual IEFA non-premium cost projection of $3,037.8 million was required to meet USCIS' operational requirements.
Spending grew by $1 billion or 28 percent between FY 2016 and FY 2019, while revenue only grew by $406 million or 12 percent during the same period. Spending was driven by $943 million of one-time and recurring enhancements provided over the same time period due to a leadership directive to reduce carryover to around $800 million. The majority of this increased spending was attributed to an additional 3,800 positions that were added between FY 2017 and FY 2019.
Despite the spending increases between FY 2016 and FY 2019, USCIS did not always spend as much as the plan called for, and carryover remained in a relatively strong position (about $1.2 billion) at the end of both FY 2017 and FY 2018. By the end of FY 2019, however, carryover had decreased to about $850 million. In first half of FY 2020, before the onset of the COVID-19 pandemic, the agency had substantially increased its first and second quarter spending, due to the timing of contracts and on-board levels; this drew carryover down to about $600 million at the end of February, with less than $200 million in non-premium carryover, which funded 80 percent of USCIS operations. Although USCIS had surplus premium funding of about $400 million, those funds were fenced due to statutory restrictions and could not be used to offset the deficit.
In the Spring of 2020, in the wake of the COVID-19 pandemic, USCIS revenue dropped by 40 percent in April and an additional 25 percent in May from the forecasted collections. That created a possibility that USCIS might violate statutory anti-deficiency requirements and led to dramatic cuts in spending through the last half of FY 2020, a hiring freeze, and planned furloughs if revenue did not increase.
Towards the end of June and July of 2020, revenue began to return to normal levels, and in conjunction with major budget cuts, allowed USCIS to avoid the furloughs. In FY 2021, USCIS instituted 32 percent cuts to non-payroll expenses, continued the hiring freeze through April 2021, and did not fund enhancements. While USCIS carryover has stabilized and is projected to be over $600 million from non-premium fees at the end of FY 2022, USCIS is still living with effects of those 32 percent budget cuts. USCIS has a minimum carryover
The FY 2021 non-premium IEFA cost projections, which USCIS uses as the base for its FY 2022/2023 fee review cost projections, totals $3,776.3 million.
The combined average non-payroll or general expenses (GE)
The limited growth in USCIS' GE budget is the result of actions taken by USCIS to constrain cost growth. In response to reduction in applicant volume and associated revenues during the COVID-19 pandemic, USCIS implemented significant GE cost-saving measures in FY 2020 and FY 2021. These cuts enabled USCIS to redirect resources to fund payroll and ensure that USCIS did not have to furlough any employees. These cuts included GE reductions of up to 32 percent across all USCIS offices, including a pause on new GE expenditure, reduced travel, implementing shorter periods of performance for contracts, and a freeze on implementing new contracts. Notable examples of GE budget decreases from FY 2016/2017 to FY 2021 include:
• $103.7 million (32 percent) decrease in IT equipment, software, and related contractor support;
• $36.8 million (52.2 percent) decrease in the USCIS Office of Citizenship and Applicant Information Services' (CAIS) GE budget, which included a reduction to the call center support contract and removal of Office of Citizenship grants that were included in the FY 2016/2017 fee rule budget;
• $27.3 million (59.9 percent) decrease in travel and training across all USCIS offices; and
• $52.4 million (83 percent) decrease in Service Center Operations (SCOPS) contractor support.
While USCIS will need to reverse some of the GE spending cuts it has made to ensure the continuation of its operations, USCIS projects that some of these cuts will be permanent, in an effort to limit cost growth and the increase in fees. Further details of restored GE budget cuts in the FY 2022/2023 fee review cost projections are found in section V.A.2.a of this preamble.
In contrast to the limited growth in non-payroll expenses relative to the FY 2016/2017 fee review budget, USCIS' payroll costs have increased substantially due to an increase in staffing. The combined average IEFA non-premium payroll budget for the FY 2016/2017 fee review of $1,631.3 million increased by 41.6 percent to $2,309.3 million in the FY 2021 OP. USCIS experienced a significant increase in application volume during the FY 2016/2017 to FY 2021 period and adjusted its staffing requirements accordingly. The FY 2016/2017 fee review accounted for 14,543 fully funded positions, while as of pay period 6 of FY 2021 (March 27, 2021) USCIS had 18,840 positions authorized to be funded with IEFA non-premium funds (an increase of 29.5 percent). This greater number of positions reflects increased operational demands on USCIS, including growth in workload volumes, growth in the time required
• New positions across all USCIS offices: $324.2 million (19.9 percent). Due to the operational impact of the COVID-19 pandemic and potential furlough of USCIS employees, FY 2020 and FY 2021 did not have any new authorized positions;
• Pay raises: $167.7 million (10.0 percent). Pay raises were 1.3 percent in FY 2016 and 1.0 percent in FY 2021.
• Significant payroll increases due to an increase in staffing levels in these USCIS offices and directorates:
○ Asylum Division: $49.7 million (40.2 percent);
○ Field Office Directorate: $150.5 million (24.7 percent);
○ FDNS: $91.4 million (73.6 percent); and
○ SCOPS: $184.6 million (68.7 percent).
In developing projected program needs for FY 2022/2023, USCIS used the FY 2021 operating plan (OP) as the starting point. Actual and anticipated changes from the FY 2021 OP are discussed in this section. Enacted funds from FY 2022 are not included in the projections. In addition, there are standard pay adjustments and increases to programs to maintain current services that are fairly standard in budget development. Examples of necessary adjustments include:
• Pay inflation and within-grade pay step increases ($2.67 billion in FY 2022 and an additional $2.76 billion in FY 2023). The assumed Government-wide pay inflation rate for FY 2022 and FY 2023 is 2.7 percent and 1.6 percent respectively.
• Staffing requirements ($315.7 million in FY 2022 and an additional $34.8 million in FY 2023). USCIS models staffing allocations and costs based on projected workload volumes.
Overall, the IEFA cost baseline increases by 35.3 percent in FY 2022 and 37.4 percent in FY 2023 both relative to the FY 2021 OP. A detailed summary of adjustments to the FY 2021 OP that resulted in the projected budget requirements for FY 2022 and FY 2023 follows.
Despite the growth in USCIS' IEFA non-premium budget from the levels projected in the FY 2016/2017 fee review to the levels in the FY 2021 OP, USCIS remains underfunded to accomplish its operational objectives, and processing backlogs continue to grow.
In the USCIS cost projections, GE represent all costs that are not related to pay or benefits of employees. USCIS estimates that its GE budget must increase by $335.8 million (22.9 percent) from $1,467.0 million in FY 2021 to a combined average of $1,802.9 million in the FY 2022/2023 fee review cost projections. Excluding contingency funding, USCIS projects the GE budget must increase from $1,258.0 million in
• SCOPS contractor support is projected to increase $41 million (386.4 percent) above the FY 2021 level. The funding for SCOPS contractor support would revert close to the level projected in the FY 2016/2017 fee rule because the FY 2021 level had been reduced due to funding constraints associated with the COVID-19 pandemic.
• GE is projected to increase by $35 million to support increased refugee processing associated with a proposed increase to the refugee ceiling.
• Immigration Records and Identity Services (IRIS) is projected to have additional FY 2022/2023 Federal Bureau of Investigation (FBI) fingerprint and background check service costs of $16.7 million based on FBI fees and workload estimates.
• In addition to the restoration of $13 million for Application Support Center (ASC) contract support, costs increase as USCIS restores ASC capacity following the COVID-19 pandemic. USCIS temporarily suspended in-person services between March 18, 2020 until June 4, 2020.
• The Office of the Chief Information Officer's GE budget is projected to increase by $35.3 million (16 percent) to support the USCIS staffing requirements in the FY 2022/2023 fee review. The additional funding is required to provide IT support, equipment, and network services. This excludes projects funded from premium processing. As stated earlier, non-premium IEFA cost projections are the basis for the fee review budget.
• The budget includes an increase of $9.8 million at the National Records Center (NRC) to reduce the Freedom of Information Act (FOIA) backlog at the NRC in FY 2022/2023. DHS has requested appropriations to fund this additional spending. If USCIS receives appropriations, USCIS may be able to revise downward the cost projections funded by IEFA fees.
USCIS projects that it must increase its IEFA non-premium pay budget by $1,038.6 million (45 percent) from $2,309.3 million in FY 2021 to $3,347.9 million in the FY 2022/2023 fee review period to meet its operational requirements. The payroll growth includes:
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As stated elsewhere in this preamble with regard to the premium processing rule and the DACA NPRM, simultaneously with this rule, DHS is engaging in multiple rulemaking actions that are in various stages of development.
DHS is proposing changes to the USCIS fee schedule in this rule that may be necessary to implement the rule titled “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers.”
DHS includes an estimated cost of the Asylum Processing IFR in our calculation of the proposed fees to recover full costs of USCIS implementation of the rule. Consistent with the reasoning described in the Asylum Processing IFR, DHS has used the primary estimate of annual costs in the model used to calculate the fees in this rule.
DHS proposes to include the middle of the three Asylum Processing IFR estimates to plan for these additional staff and other resources. Implementation of this rulemaking is subject to resource constraints, including available IEFA non-premium funding and revenue. When USCIS does not have the resources that it needs to meet its goals, processing times increase and the case processing backlog grows. USCIS evaluates its budget and revenue for operational purposes annually, separate from the fee review process. For example, as mentioned above, the OP is a budget for the current year and is separate from the fee review budget estimates for future years. If actual revenue in FY 2022 or FY 2023 is higher than the estimates included in this proposal, then USCIS may dedicate additional staff and resources to the Asylum Processing IFR. If actual revenue is lower than the estimates in this proposal, then USCIS may dedicate fewer resources to implementing the Asylum Processing IFR. Relatedly, if the ultimate costs of implementing the Asylum Processing IFR exceed the estimates included in this proposal, this will strain the resources available to USCIS and processing backlogs may grow. Future fee review budget estimates will consider current and planned DHS and USCIS policies.
If USCIS identifies alternative funding mechanisms or resources for the Asylum Processing IFR other than IEFA non-premium funds, the fee review budget projections may be reduced accordingly. Therefore, with the implementation realities of the Asylum Processing IFR and possible congressional appropriations to fund that rule, DHS may reduce USCIS' estimated resource requirements for FY 2022/2023 and the fees necessary to generate those resources in a final fee rule.
Table 5 below is a crosswalk summary of the FY 2021 OP to the FY 2022 and FY 2023 cost projections. It accounts for payroll and non-payroll for on-board and new staff, other resource requirements or adjustments, and the removal of costs associated with temporary programs. The FY 2022/2023 IEFA non-premium average annual budget requirement is estimated to be $5,150.7 million. This represents a $1,374.4 million, or 36.4 percent, increase over the FY 2021 IEFA non-premium budget of $3,776.3 million. As previously discussed, the primary cost driver is payroll, which accounts for 76 percent of the increase.
USCIS' revenue projections are informed by internal immigration benefit request receipt forecasts agreed to by the USCIS Volume Projection Committee (VPC).
USCIS' current fee schedule is expected to yield $3.28 billion of average annual revenue during the FY 2022/2023 biennial period. This represents an increase of $0.80 billion, or 32 percent, from the FY 2016/2017 fee rule projection of $2.48 billion.
USCIS identifies the difference between anticipated costs and revenue, assuming no changes in fees, to determine whether the existing fee schedule is sufficient to recover the projected full cost of providing immigration adjudication and naturalization services or whether a fee adjustment is necessary. Table 6 summarizes the projected cost and revenue differential. Non-Premium Revenue represents a revenue forecast using the current fees. Non-Premium Cost represents a budget forecast. In any fee review, if the revenue forecast is less than the budget forecast, then USCIS may propose new or increased fees to cover the budget-revenue shortfall. Otherwise, USCIS may reduce certain costs or services to cover the difference. Summary values may vary due to rounding.
Historically, and for the purpose of the fee review, USCIS reports costs and revenue as an average over the 2-year period. In Table 6, USCIS averages FY 2022 and FY 2023 costs and revenue to determine the projected amounts to be recovered through this rule. Based on current immigration benefit and biometric services fees and projected volumes, USCIS expects that if fees remained at their current levels, those fees would generate $3.28 billion in average annual revenue in FY 2022 and FY 2023. For the same period, the average annual cost of processing those immigration benefit requests and providing biometric services is $5.15 billion. This yields an average annual deficit of $1,868.2 million. In other words, USCIS expects the costs of fulfilling its operation requirements in FY 2022/2023 will exceed projected total revenue under its current fee structure.
Because projected costs are higher than projected revenue, USCIS has several options to address the shortfall:
1. Reduce projected costs;
2. Use carryover funds or revenue from the recovery of prior year obligations; or
3. Adjust fees with notice-and-comment rulemaking.
Although USCIS continues to pursue efforts to increase agency efficiency, DHS believes that reducing the projected costs to equal the projected revenue would degrade USCIS operations funded by the IEFA; therefore, this is not a viable alternative to the proposed rule. The projected amount of funding necessary to meet USCIS' operational requirements would exceed USCIS' projected carryover in both FY 2022 and FY 2023, so USCIS is not able to rely on those funds to cover the difference between projected revenue and costs.
When conducting a fee review, USCIS reviews its recent operating environment to determine the appropriate method to assign costs to immigration benefit requests, including biometric services. USCIS uses ABC, a business management tool that assigns resource costs to operational activities and then to products, services, or both. USCIS uses commercially available ABC software to create financial models. These models determine the cost of each major step toward processing immigration benefit requests and providing biometric services. This is the same methodology that USCIS used in the last five fee reviews, and it is the basis for the current fee structure. Following the FY 2016/2017 fee rule, USCIS identified several key methodology changes to improve the accuracy of its ABC model. For more information on these changes, please refer to the Changes Implemented in the FY 2022/2023 Fee Review section of the supporting documentation located in the docket of this rule.
USCIS uses two types of volume data in the fee review: workload and fee-paying volume. Workload volume is a projection of the total number of immigration benefit requests that USCIS will receive in a fiscal year. Fee-paying volume is a projection of the number of customers that will pay a fee when filing requests for immigration benefits. Not all customers pay a fee. Those customers to whom a fee exemption applies or for whom USCIS grants a fee waiver are represented in the workload volume, but not the fee-paying volume. Customers who pay a fee fund the cost of processing requests for fee-waived or fee-exempt immigration benefit requests. Tables 7 and 8 compare the FY 2016/2017 fee rule volume forecasts to the volume forecasts for this rulemaking similar to previous fee rules.
USCIS uses statistical modeling, immigration receipt data, and internal assessments of future developments (such as planned immigration policy initiatives)
Differences between the two sets of workload estimates may be unrelated to any proposed fee or policy change. As mentioned earlier, these estimates are based on historical data, statistical analysis, and subject matter and policy input. For example, the Form I-90 forecast consists of two combined forecasts: renewals and replacements. Both Form I-90 forecasts use a time series model that allows for seasonality. As another example, the VPC establishes two Form N-400 forecasts: civilian and military. The statistical model that the VPC considers for the civilian Form N-400 forecast leverages survival analysis to include individual microdata and reflects the differences in application patterns of previous naturalization applicants. USCIS' statistical model uses multiple factors to determine the likelihood of naturalization of members of the pool of potential applicants, including the length of time an individual has been a lawful permanent resident (LPR), as well as an individual's country of origin, visa type, and age. In contrast, the military naturalization forecast is a time series model that does not use survival analysis. USCIS evaluates a variety of models and methods to determine the best forecast for each workload based on the available data and historical trends.
Some differences in workload are the result of proposed changes, in whole or in part. Part of the large differences for Forms I-131 and I-765 relate to a proposed change to Form I-485 fees and interim benefits.
A comparison of the two sets of forecasts, in isolation, may not illustrate USCIS trends in the several years between fee reviews. For example, when USCIS estimated workload for the FY 2016/2017 fee rule, it had been several years since receipts for Form I-140 were over 100,000. As such, the receipt estimate was reasonable at the time and consistent with receipts from FY 2009 to 2014. Since FY 2015, Form I-140 receipts are routinely over 100,000. There could be a number of reasons for this change, such as availability of employment-based visas or increased demand following economic or policy changes in the intervening years. As another example, filing trends for Form I-539 have changed significantly since the FY 2016/2017 fee rule. The forecast for FY 2022/2023 is based on Student and Exchange Visitor Information System data, which included 225,000 Form I-539 filings annually beginning in January 2021. DHS expects the vast majority of this workload to be optional practical training (OPT) and science, technology, engineering, and mathematics optional practical training (STEM OPT) extensions. As yet another example, the adoption workload has been trending downward for many years. Comparing only two data points in Table 7 does not show that the difference is just the continuation of a gradual trend over many years. Finally, Table 7 does not represent the entirety of USCIS workload. It excludes some workloads without fees. For example, asylum and refugee workloads (credible fear, reasonable fear, Forms I-589 and I-590) and other humanitarian workloads (for example, Forms I-914 and I-918) are excluded from the tables 7 and 8. These omitted workloads are part of the ABC model so that USCIS can estimate their total cost. However, only fee-paying volumes generate revenue for USCIS.
USCIS uses historical revenue and receipt data to determine the number of individuals who paid a fee for each immigration or naturalization benefit request. Fee-paying percentages by form are usually steady year over year. USCIS uses monthly fee-paying percentages in its forecasts to capture seasonality during the year. Additionally, policy changes, legislation, and executive orders are frequently some of the factors that affect fee-paying percentages, so older historical data to calculate the percentages can be counter-productive. In this proposed rule, USCIS therefore referenced revenue and receipts data from August 2019 to July 2020 for fee-paying figures. Total revenue for an immigration benefit request is divided by its fee to determine the historical number of fee-paying immigration benefit requests. Fee-paying receipts are compared to the total number of receipts (workload volume) to determine a fee-paying percentage for each immigration benefit request. When appropriate, projected fee-paying volume is adjusted to reflect filing trends and anticipated policy changes. These projections include the effects of changes that DHS is proposing in this rule.
All fee-paying workload is a subset of total workload, as discussed in the previous section. As such, changes to workload may affect the fee-paying projections. As explained above, USCIS estimates fee-paying receipts by applying a percentage of fee-paying receipts to the workload forecast. For a general explanation on how fee-paying volumes affect fees,
Table 9 is a comparison of fee-paying percentages in the FY 2016/2017 fee rule and this proposed rule. It divides the fee-paying volumes in Table 8 by the workload volumes in Table 7 to calculate the fee-paying percentages. There may be slight differences because of rounding.
USCIS completion rates are the average hours per adjudication of an immigration benefit request. They identify the adjudicative time required to complete (render a decision on) specific immigration benefit requests. The completion rate for each benefit type represents an average. Completion rates reflect what is termed “touch time,” or the time an employee with adjudicative responsibilities actually handles the case. This does not reflect “queue time,” or time spent waiting, for example, for additional evidence or supervisory approval. Completion rates do not reflect the total processing time applicants, petitioners, and requestors can expect to wait for a decision on their case after USCIS accepts it.
USCIS requires most employees who adjudicate immigration benefit requests to report adjudication hours and case completions by benefit type. The reported hours and counts are aggregate information that does not allow USCIS to estimate effects of individual policy changes. USCIS calculates completion rates by dividing the adjudication hours by the number of completions for the same period. As such, completion rates represent an average hours per completion. In addition to using these data to determine fees, completion rates help determine appropriate staffing allocations to handle projected workload. The USCIS Office of Performance and Quality (OPQ), field offices, regional management, and service centers continually review the data to capture updates or implementation of new processes and ensure continued accuracy. The continual availability of the information enables USCIS to update cost information for each fee review. The completion rates may change between fee reviews based on more recently reported hours and counts. Possible reasons for completion rate changes include changes to a form, policy changes, and more recently, effects of the pandemic. USCIS relied on completion rates before the pandemic to remove this effect from the fee review. When employees who adjudicate immigration benefit requests do not report adjudication hours, USCIS uses subject-matter expertise to estimate completion rates.
USCIS does not list completion rates for the following immigration benefit requests, forms, or other services, due to the special nature of their processing, as explained below:
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Historically, as a matter of policy, DHS has used its discretion to limit fee increases for certain immigration benefit request fees that would be overly burdensome on applicants, petitioners, and requestors if set at ABC model output levels. Previous proposed IEFA fee schedules referred to limited fee increases as “low volume reallocation” or “cost reallocation.”
Accordingly, in consideration of the need to balance the beneficiary-pays and ability-to-pay principles and to achieve important policy outcomes (for example, promoting naturalization, funding asylum and other humanitarian programs, and making immigration benefits affordable and accessible), DHS proposes that the increase in the following immigration benefit request fees is limited to 18 percent for the current fees:
• Form I-192, Application for Advance Permission to Enter as Nonimmigrant.
• Form I-193, Application for Waiver of Passport and/or Visa.
• Form I-290B, Notice of Appeal or Motion.
• Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
• Form I-600, Petition to Classify Orphan as an Immediate Relative.
• Form I-600A, Application for Advance Processing of an Orphan Petition.
• Form I-600A/I-600, Supplement 3, Request for Action on Approved Form I-600A/I-600.
• Form I-612, Application for Waiver of the Foreign Residence Requirement (Under Section 212(e) of the INA, as Amended).
• Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative.
• Form I-800A, Application for Determination of Suitability to Adopt a Child from a Convention Country.
• Form I-800A, Supplement 3, Request for Action on Approved Form I-800A.
• Form I-881, Application for Suspension of Deportation or Special Rule Cancellation of Removal.
• Form I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant.
• Form N-300, Application to File Declaration of Intention.
• Form N-336, Request for Hearing on a Decision in Naturalization Proceedings.
• Form N-400, Application for Naturalization.
• Form N-470, Application to Preserve Residence for Naturalization Purposes.
• Form N-600, Application for Certificate of Citizenship.
• Form N-600K, Application for Citizenship and Issuance of Certificate Under Section 322.
The proposed increase of approximately 18 percent may vary slightly due to rounding. DHS rounds
For many of these form types, DHS and DOJ have a long history of special consideration for these immigration and naturalization fees. For example, DOJ did not change fees for Forms I-290B, I-360, N-300, N-336, N-470 in the first IEFA fee rule that used ABC modeling.
To allow the proposed fee schedule to recover full cost, DHS proposes that other fees be increased to offset the difference between the projected cost of adjudicating these benefit requests and the revenue generated by the 18 percent limited fee increase. Similarly, DHS proposes that other fees increase to offset a projected increase in workloads that are exempt from paying fees or that are capped at a fee less than what the ABC model indicates. In this proposed rule, DHS refers to the process of recovering full cost for workloads without fees or the shifting of cost burdens among benefit request fees due to other policy considerations as cost reallocation.
DHS proposes to maintain the current fee for several benefit requests. These proposed fees would have decreased based on the ABC model results. However, DHS proposes to maintain the current fees. This will allow these forms to fund some of the costs of other forms and may limit the fee increase suggested by the fee calculation model for those other forms. In this proposed rule, DHS proposes to not change the following fees:
• Form I-90, Application to Replace Permanent Resident Card when filed online.
• Form I-131A, Application for Travel Document (Carrier Documentation).
• Form I-191, Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA).
• Form I-698, Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of the INA).
• Form N-565, Application for Replacement Naturalization/Citizenship Document.
Some proposed fees are significantly higher than the current fees. In some cases, this is because DHS proposes to not limit those fee increases, as it has done in the past, for policy reasons, as explained below. For example, previous fee schedules limited the increase for the immigration benefit requests associated with Forms I-212, I-601, I-601A, and I-765.
• Form I-601A, Provisional Unlawful Presence Waiver; and
• Form I-765, Application for Employment Authorization.
DHS is not proposing to limit the fee increases for these two immigration benefit requests because, if we did, then other proposed fees would have to increase to recover full cost. For example, DHS limited the fee increase for Form I-765 in the FY 2016/2017 fee rule for humanitarian and practical reasons.
Later in this preamble, DHS discusses the proposal for separate online and paper filing fees. See section VIII.G. DHS bases the proposed separate online and paper fees on ABC model results. When DHS proposes limited fee increases or to continue using the current fee, the calculation is based on the current fee instead of ABC model results. As such, there are not separate proposed fees for online and paper filing for immigration benefit requests with limited fee increases or for those held to the current fee.
DHS proposes a new Asylum Program Fee of $600 to be paid by employers who file either a Form I-129, Petition for a Nonimmigrant Worker, or Form I-140, Immigrant Petition for Alien Worker. Proposed 8 CFR 106.2(c)(13). DHS proposes this new fee as a way to mitigate the scope of the proposed fee increases in this rule for individual applicants and petitioners. DHS has determined that the Asylum Program Fee is an effective way to shift some costs to requests that are generally submitted by petitioners who have more ability to pay, as opposed to shifting those costs to all other fee payers. DHS arrived at the amount of the Asylum Program Fee by calculating the amount that would need to be added to the fees for Form I-129, Petition for a Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Worker, to collect the Asylum Processing IFR estimated annual costs.
This Asylum Program Fee adds a fee for Form I-129 and Form I-140 petitioners of $600 while maintaining lower proposed fees for other immigration benefit requestors than would be proposed if the costs were spread among all other fee payers. For example, charging the Asylum Program Fee only to employer petitions reduces the proposed Form I-485 fee by $170 compared to a fee schedule without the cost shift. Similarly, the proposed fee to file Form I-765 on paper is $70 less than it would be absent the proposed Asylum Program Fee. The proposed fees for Forms I-485, I-765, and others are lower in a scenario with the shift of asylum program costs to employers through the new fee because all IEFA non-premium fees are related. Each fee helps recover the cost of work without fees (Forms I-589, I-590, I-914, I-918, etc.) or work with fees that do not recover full cost (Forms N-400, I-600, I-800, etc.). If Forms I-129 and I-140 recover more of those costs, then that means other forms need not recover as much, resulting in lower proposed fees for Forms I-485, I-765, and others that recover more than full cost in this proposal. Table 12 shows the proposed IEFA non-premium fees for Forms I-129 and I-140, including the Asylum Program Fee. The table excludes additional statutory or premium-processing fees that petitioners may pay for these immigration benefit requests.
The proposed $600 Asylum Program Fee would apply to all fee-paying receipts for Forms I-129, I-129CW, and I-140. For example, it would apply to all initial petitions, changes of status, and extensions of stay that use Form I-129.
DHS acknowledges that the scope of the proposed fee increases in this rule is significant. DHS proposes this cost shifting approach with the Asylum Program Fee to place greater emphasis on the ability-to-pay principle for determining user fees. Petitioners for immigrant and nonimmigrant workers generally are required to have the resources necessary to pay the worker(s) for whom the petition is filed, and the fees that the employer must pay USCIS to file a petition are not significant compared to even a small
DHS considered proposing to transfer the costs of other humanitarian programs, such as the T, U, VAWA, SIJ, and refugee programs, to those who file benefit requests that may be able to better afford to pay fees. DHS recognizes, however, that we have always spread costs of free services that USCIS provides across all other fee-paying requests in the past and we have never directly transferred the costs of one program to another.
DHS does not propose this Asylum Program Fee without having carefully considered its implications and effects. DHS realizes that some petitioners will object to funding the costs of USCIS-administered programs to which they have no connection or from which they receive no direct benefit. DHS is committed to reducing barriers and promoting accessibility to immigration benefits, and knows that the beneficiaries of Forms I-129 and I-140 fuel our economy, contribute to our arts, culture, and government, and have helped the United States lead the world in science, technology, and innovation. DHS is also aware that Forms I-129 and I-140 are submitted by non-profit entities, organizations performing research for government agencies, as well as farms, small businesses, and individuals. DHS appreciates that non-profit or small entities may not have the same level of financial resources as many large, for-profit corporations that also submit petitions for foreign workers. In our Small Entity Analysis (SEA) for this proposed rule, we provide samples of the I-129 and I-140 forms, and how the fees may impact the small entities with the Asylum Program Fee. Within the SEA, DHS determined the average impacts to employers who file a petition based on their total revenue and profits. For Form I-129, approximately 90 percent of the small entities in the sample experienced an economic impact of less than 1 percent of their reported revenue. For Form I-140, approximately 98 percent of the small entities in the sample experienced an economic impact of less than 1 percent of their reported revenue. USCIS acknowledges that those small entities with greater than 1 percent impact may file fewer petitions as a result of this proposed rule. As previously indicated, the success of the USCIS fee model and this rulemaking in generating the necessary revenue depends on the filing volumes not falling short of those projected herein. At the same time, USCIS is charged with administering the asylum program using fee revenue and must make considered judgments about how to fund it using available and appropriate means. Balancing both of those goals, and
As stated in section V.B.1.b. of this preamble, the success of the fees established by this rulemaking in providing the funding necessary to sustain USCIS service levels depends on the projected volume of fee-paying requests filed after this rule takes effect being at or near the level projected. If a program is ended, is partially curtailed, or substantially declines, USCIS is at risk of not achieving the projected and necessary revenue. Therefore, USCIS excludes from the fee calculation model the costs and revenue associated with programs that are temporary by definition or where it is possible that the program will diminish or cease to exist. This exclusion includes Form I-821, Application for Temporary Protected Status, and Form I-821D, Consideration of Deferred Action for Childhood Arrivals, as well as the Form I-765 filings and biometrics fees associated with both programs.
DHS excludes projected revenue from expiring or temporary programs in setting the fees required to support baseline operations due to the uncertainty associated with such programs. For example, the Secretary may designate a foreign country for TPS due to conditions in the country that temporarily prevent the country's nationals from returning safely, or in certain circumstances where the country is temporarily unable to adequately handle the return of its nationals. TPS, however, is a temporary benefit, and TPS designations may be terminated.
DHS excludes the costs and revenue associated with these programs because program eligibility is subject to the discretion of the Department. Because the future of these programs is difficult to predict, as discussed later in this section, USCIS has excluded the cost and workload of these programs from the fee review and does not propose to allocate overhead and other fixed costs to these workload volumes. This mitigates an unnecessary revenue risk. In other words, if DHS established the USCIS fee schedule based on revenue from these programs, and the eligible programs diminish or cease to exist, USCIS will not realize the projected revenue and would not have enough revenue to recover full cost of overhead and other fixed costs. USCIS analyzes variable unit costs associated with processing these benefit types and uses volume forecasts to exclude their costs from the fee review budget and ABC model.
All fee revenue deposited into the IEFA is pooled and collectively used to finance USCIS operations including DACA, TPS, and other temporary programs. USCIS also responds to surges in customer demand for services by realigning resources to cover the cost of processing. Consequently, USCIS is capable of funding these programs even though their costs are not included in the fee review budget or ABC model. By excluding programs that are temporary by nature, DHS maintains the integrity of the ABC model, better ensures recovery of full costs, and mitigates revenue risk from unreliable sources. This approach is consistent with prevailing guidance on the subject as stated by Principle 6 of the Government Accountability Office (GAO) Greenbook, Standards for Internal Control in the Federal Government (“The Greenbook”).
On August 30, 2022, DHS published a final rule, Deferred Action for Childhood Arrivals, 87 FR 53152 (DACA rule). DHS has considered this rule and the DACA rule's possible effects on each other when developing this proposed rule. Because the specific costs and revenue associated with DACA are not separately identified in this proposed rule, each rule is
DHS identified a number of issues that do not affect the FY 2022/2023 fee review but do merit some discussion. DHS does not propose any changes related to the issues discussed in this section. USCIS may discuss these issues in future biennial fee reviews or in conjunction with other USCIS fee rules. To better inform this and future fee-setting policies and rules, DHS welcomes comments on all facets of the FY 2022/2023 fee review, this proposed rule, and USCIS fees in general, regardless of whether changes have been proposed here.
DHS attempts, as it did in the FY 2010/2011 fee rule, FY 2016/2017 fee rule, and the 2020 fee rule, to propose fees based on form titles instead of form numbers to avoid prescribing fees in a manner that could undermine the adoption by USCIS of electronic processing.
Similarly, USCIS may determine that efficiency would be improved by breaking a paper form into separate paper forms. For instance, USCIS could separate Form I-131, Application for Travel Document, into a separate form and form number each for advance parole, humanitarian parole, refugee travel documents, or re-entry permits. In this example, USCIS could continue to charge the current Form I-131 fee for each separate form. This structure permits USCIS to change forms more easily without having to perform a new fee review each time the agency chooses to do so.
As discussed in the Projected Cost and Revenue Differential section of this preamble, USCIS anticipates having insufficient resources to process its projected workload absent this fee rule. For FY 2022/2023, USCIS estimates that backlogs will continue to grow in the absence of additional resources. Although USCIS has implemented measures to reduce the backlog as described in section IX.C., USCIS net processing backlogs have grown from approximately 1.4 million cases in December 2016, when DHS last adjusted IEFA non-premium fees, to approximately 8.0 million cases at the end of September 2021.
USCIS is reviewing its adjudication and administrative policies to find efficiencies, while strengthening the integrity of the immigration system. This entails evaluating the utility of interview requirements, biometrics submission requirements, RFEs, deference to previous decisions, and other efforts that USCIS believes may, when implemented, reduce the amount of adjudication officer time required, on average, per case. Any improvements in these completion rates would, all else equal, reduce the number of staff and financial resources USCIS requires. Furthermore, USCIS is actively striving to use its existing workforce more efficiently, by investigating ways to devote a greater share of adjudication officer time to adjudications, rather than administrative work. All else being equal, increasing the average share of an officer's time spent on adjudication (that is, utilization rate) would increase the number of adjudications completed per officer and reduce USCIS' overall staffing and resource requirements. USCIS based its fee review largely on existing data that do not presume the outcome of these initiatives. USCIS cannot assume significant efficiency gains in this rule, in advance of such efficiency gains being measurably realized. Establishing more limited fees to account for estimated future efficiency could result in a deficient funding, and USCIS would not be able to meet its operational requirements. In contrast, if USCIS ultimately receives the resources identified in this proposed rule and subsequently achieves significant efficiency gains, this could result in backlog reductions and shorter processing times. Those efficiency improvements would then be considered in future fee reviews.
As explained in the FY 2022/2023 Cost Projections section of this preamble, projected workloads for FY 2022 and FY 2023 exceed current processing capacity. Therefore, USCIS requires additional resources and staff to increase its processing capacity to match projected receipt volumes and ensure that backlogs do not continue to grow. Through the adjustments to the fee schedule proposed in this rule, USCIS expects to collect sufficient fee revenue to fund additional staff who will support the estimated FY 2022/2023 processing capacity requirements. While USCIS is committed to reducing processing times and the current backlog, DHS will not compromise the integrity of the immigration system and safeguarding national security.
The fee-setting authority in INA sec. 286(m), 8 U.S.C. 1356(m), states that “[f]ees for providing adjudication and naturalization services may be set at a level that will ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum
Currently, USCIS may waive the fee for certain immigration benefit requests when the individual requesting the benefit is unable to pay the fee.
Following the 2010 fee rule, USCIS also issued guidance to the field to streamline fee waiver adjudications and make them more consistent among offices and form types nationwide.
DHS has always implemented fee waivers for USCIS applicants based on need, and since 2007, has rejected the filing of fee waivers by individuals that have the financial means to pay required fees for the status or benefit sought.
As stated in section IV of this preamble, each fee review plans for a certain level of fee waivers, fee exemptions, and other fee-paying policy decisions. DHS sets IEFA fees to recover estimated full cost, including the estimated cost of fee-waived and fee-exempt work. Applicants, petitioners, and requestors who pay a fee cover the cost of processing their own requests plus the costs of requests that are fee exempt, fee waived, or fee reduced. In prior years, USCIS fees have given significant weight to the ability-to-pay principle. However, on October 25, 2019, DHS revised USCIS fee waiver policies and Form 1-912, including by requiring fee waiver applicants to use the revised Form I-912, requiring waiver applicants to submit tax transcripts to demonstrate income, and not accepting evidence of receipt of a means-tested public benefit as evidence of inability to pay as described (“the 2019 Fee Waiver Revisions”).
Subsequently, in the FY 2019/2020 fee review, DHS limited fee waivers in the 2020 fee rule to immigration benefit requests for which USCIS is required by law to consider a fee waiver or where the USCIS Director exercised favorable discretion. 8 CFR 106.3(a)(1) (Oct. 2, 2020). The 2020 fee rule also limited fee waivers to individuals who have an annual household income of less than 125 percent of the Federal Poverty Guidelines (FPG) as defined by the U.S. Department of Health and Human Services (HHS). 8 CFR 106.3(c) (Oct. 2, 2020). In addition, the USCIS Director's discretion to grant a waiver was limited to: (1) an individual who had an annual household income at or below 125 percent of the FPG as defined by HHS; (2) was seeking an immigration benefit for which they were not required to submit an affidavit of support under INA sec. 213A, 8 U.S.C. 1183a, or were not already a sponsored immigrant as defined in 8 CFR 213a.1; and (3) was seeking an immigration benefit for which they were not subject to the public charge inadmissibility ground under INA sec. 212(a)(4), 8 U.S.C. 1182(a)(4). 8 CFR 106.3(b) (Oct. 2, 2020). The 2020 fee rule required that a person must submit a request for a fee waiver on the form prescribed by USCIS. 8 CFR 106.3(d) (Oct. 2, 2020). Finally, the 2020 fee rule prescribed the acceptable documentation of gross household income that a person submitting a request for a fee waiver must submit. 8 CFR 106.3(f) (Oct. 2, 2020). As noted above, the 2020 fee rule was preliminarily enjoined before its effective date.
As stated in Section IV, DHS has determined that the 2020 fee rule's changes to fee waiver and fee exemption requirements would adversely impact
DHS does not propose to change fee waiver eligibility based on an inability to pay, and will maintain the 2011 Fee Waiver Policy criteria that established a streamlined process where USCIS could waive the entire fee and the biometric services fee (if applicable) for forms listed in the 8 CFR 103.7(c)(3) (Oct. 1, 2020).
• Is receiving a means-tested benefit;
• Had a household income at or below 150 percent of the FPG; or
• Is experiencing extreme financial hardship, such as unexpected medical bills or emergencies.
The FPG, as annually published by the U.S. Department of Health and Human Services
DHS considered the use of other measures of ability to pay for administration of its fee waiver policies based on input provided by stakeholders and due to concerns about the continued upward trend in the number and dollar amounts of fee waivers approved since the three-step eligibility process and Form I-912 were introduced. For example, besides the FPG and increasing the percentage reviewed, DHS looked at using the United States Department of Housing and Urban Development (HUD) Median Family Income (MFI)
The FY 2010/2011 fee rule also authorized the USCIS Director to approve and suspend exemptions from fees or provide that the fee may be waived for a case or class of cases that is not otherwise provided in the 8 CFR 103.7(c) (Oct. 1, 2020).
In addition, DHS proposes that fee waiver requests must be submitted on the form prescribed by USCIS, Form I-912, Request for Fee Waiver. Proposed 8 CFR 106.3(a)(2). Currently, requests for fee waivers may be made via a written request submitted with evidence of eligibility. Less than one percent of the fee waivers requests are submitted through a written request instead of Form I-912.
DHS realizes that requiring the form instead of allowing a written statement with documentation may be an additional burden. Adjudicating ad hoc fee waiver requests, however, has proven to be difficult for USCIS due to the varied quality and information provided in such standalone letter requests. Form I-912 has an estimated time of completion of one hour and ten minutes, and it provides standardization that will assist USCIS in review of requests. Because DHS has determined that requiring the form will reduce rejections, DHS believes that any added burden is warranted and in the long term will assist applicants and limit future burdens.
As discussed in the Paperwork Reduction Act section of this rule, DHS is proposing changes to the information collection requirements
• The burden of proof for inability to pay is based on a preponderance of the evidence. An officer may grant a request for fee waiver in the absence of some of this documentation so long as the available documentation supports that the requestor is more likely than not to be unable to pay the fee.
• A child's receipt of public housing assistance, such as public housing or Section 8, will be acceptable as required evidence of the parent's eligibility for a fee waiver when the parent resides in the same residence.
• The documentary requirements for humanitarian categories of fee waiver requestors will include that:
○ Requestors seeking a fee waiver for any immigration benefit associated with or based on a pending or approved petition or application for VAWA benefits or T or U nonimmigrant status do not need to list the following people as household members or provide income information for:
Any person in the household who is or was the requestor's abuser, human trafficker, or perpetrator; or
A person who is or was a member of the abuser, human trafficker, or perpetrator's household.
○ Financial hardships that qualify an applicant for a fee waiver may result from, but are not limited to the following examples:
A medical emergency or catastrophic illness affecting the noncitizen or the noncitizen's dependents;
Unemployment;
Significant loss of work hours and wages (change in employment status);
Eviction;
Homelessness;
Military deployment of spouse or parent;
Natural disaster;
Loss of home (destruction such as fire, water, or collapse);
Inability to pay basic utilities and rent or mortgage (payments and bills for each month are more than the monthly wages);
Substantial financial losses to a small business that affect personal income;
Victimization;
Divorce or death of a spouse that affects overall income; or
Situations that could not normally be expected in the regular course of life events.
○ A requestor may submit tax returns, a W-2, or pay stubs to establish household income.
○ If the requestor has no income due to unemployment, homelessness, or other factors, the requestor may provide, as applicable:
A detailed description of the financial situation that demonstrates eligibility for the fee waiver;
Hospital bills, or bankruptcy documents;
If the requestor is receiving support services, an affidavit from a religious institution, non-profit, hospital, or community-based organization verifying the person is currently receiving some benefit or support from that entity and attesting to the requestor's financial situation; or
Evidence of unemployment, such as a termination letter or unemployment insurance receipt.
These proposed policy changes are aimed at reducing the public burden and clarifying the types of documents and applicant can provide with the form. These changes are also responsive to the comments and suggestions provided by the public in the RPI. DHS believes that making these policy changes will provide additional guidance to the public on eligibility and will clarify requirements for vulnerable populations.
DHS welcomes comment on the proposed changes to additional fee waivers which may include additional categories of petitioners, applicants or forms.
In addition, while DHS proposes no changes to the fee waiver criteria, the Department specifically requests comments on the appropriate level of income that should be used by an applicant who is unable to pay their fee and data to support that suggested level or measure.
DHS also welcomes comments on requiring Form I-912 for all fee requests and on alternatives for reducing
As stated in section VI.A., DHS may provide services for free and fund those free services with the fees charged to other, unrelated filings. DHS has exercised its discretion to provide free services by providing that a fee may be waived upon request, or by codifying “no fee,” setting a $0 fee, or not codifying a fee for a particular service that USCIS administers. DHS is proposing to maintain fee exemptions currently being applied and provide new fee exemptions in this rule as follows.
DHS proposes to codify several longstanding fee exemptions that are currently provided through policy guidance documents, such as form instructions, the USCIS policy manual, or similar directives, but not in regulations, including the following:
• Form I-90, Application to Replace Permanent Resident Card. No fee if the applicant was issued a card but never received it, or if the applicant's card was issued with incorrect information because of DHS error. Proposed 8 CFR 106.2(a)(1)(iv).
• Form I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Document. No fee for initial filings for a nonimmigrant member of the U.S. armed forces, for a nonimmigrant member of the North Atlantic Treaty Organization (NATO) armed forces or civil component; for a nonimmigrant member of the Partnership for Peace military program under the Status of Forces Agreement; and for replacement for DHS error. Proposed 8 CFR 106.2(a)(2)(i) through (iv).
• Form I-129CWR, Semiannual Report for CW-1 Employers. Proposed 8 CFR 106.2(a)(4)(ii).
• Form I-131, Application for Travel Document. Proposed 8 CFR 106.2(a)(7)(v). No fees for parole requests from current or former U.S. armed forces service members.
• Form I-134, Declaration of Financial Support. Proposed 8 CFR 106.2(a)(9).
• Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. DHS proposes no fee for the following:
○ A petition for Special Immigrant Juvenile (SIJ) classification, Proposed 8 CFR 106.2(a)(16)(iii); and
○ A petition for a person who served honorably on active duty in the U.S. armed forces filing under INA sec. 101(a)(27)(K). Proposed 8 CFR 106.2(a)(16)(v).
• Form I-361, Affidavit of Financial Support and Intent to Petition for Legal Custody for Public Law 97-359 Amerasian. Proposed 8 CFR 106.2(a)(17).
• Form I-363, Request to Enforce Affidavit of Financial Support and Intent to Petition for Legal Custody for Public Law 97-359 Amerasian. Proposed 8 CFR 106.2(a)(18).
• Form I-407, Record of Abandonment of Lawful Permanent Resident Status. Proposed 8 CFR 106.2(a)(19).
• Form I-485J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j). Proposed 8 CFR 106.2(a)(22).
• Form I-508, Request for Waiver of Certain Rights, Privileges, Exemptions, and Immunities. Proposed 8 CFR 106.2(a)(23).
• Form I-539, Application to Extend/Change Nonimmigrant Status for nonimmigrant A, G, and NATO and T nonimmigrant. Proposed 8 CFR 106.2(a)(25)(iii)(A).
• Form I-566, Interagency Record of Request—A, G, or NATO Dependent Employment Authorization or Change/Adjustment To/From A, G, or NATO Status. Proposed 8 CFR 106.2(a)(26).
• Form I-589, Application for Asylum and for Withholding of Removal. Proposed 8 CFR 106.2(a)(27).
• Form I-590, Registration for Classification as a Refugee. Proposed 8 CFR 106.2(a)(28).
• Form I-600, Petition to Classify Orphan as an Immediate Relative. DHS proposes no fee for the first Form I-600 filed for a child based on an approved Form I-600A, Application for Advance Processing of an Orphan Petition, during the Form I-600A approval or extended approval period. Proposed 8 CFR 106.2(a)(29)(i).
• Form I-601, Application for Waiver of Grounds of Inadmissibility. DHS proposes to move the current fee exemption for concurrently filing a Form I-601 for certain reasons in 8 CFR 245.1(f) to the fee provision for the Form I-601. Proposed 8 CFR 106.2(a)(32).
• Form I-602, Application by Refugee for Waiver of Grounds of Inadmissibility. Proposed 8 CFR 106.2(a)(34).
• Form I-693, Report of Medical Examination and Vaccination Record. Proposed 8 CFR 106.2(a)(38).
• Form I-730, Refugee/Asylee Relative Petition. Proposed 8 CFR 106.2(a)(41).
• Form I-765, Application for Employment Authorization. DHS proposes that no fee will be charged for an initial EAD for the following:
○ Dependents of certain Government and international organizations or NATO personnel. Proposed 8 CFR 106.2(a)(43)(iii)(B).
○ N-8 (Parent of noncitizen classified as SK3) and N-9 (Child of N-8) nonimmigrants; Proposed 8 CFR 106.2(a)(43)(iii)(C).
○ Persons granted asylee status (AS1, AS6). Proposed 8 CFR 106.2(a)(43)(iii)(D).
○ Citizens of Micronesia, Marshall Islands, or Palau. Proposed 8 CFR 106.2(a)(43)(iii)(E).
○ Persons Granted Withholding of Deportation or Removal. Proposed 8 CFR 106.2(a)(43)(iii)(F).
○ Applicants for Asylum and Withholding of Deportation or Removal including derivatives. Proposed 8 CFR 106.2(a)(43)(iii)(G).
○ Taiwanese dependents of Taipei Economic and Cultural Representative Office E-1 employees. Proposed 8 CFR 106.2(a)(43)(iii)(H).
○ A Request for replacement EAD based on USCIS error. Proposed 8 CFR 106.2(a)(43)(iv).
○ For a renewal or replacement EAD for the following:
Dependents of certain foreign government, international organization, or NATO personnel. Proposed 8 CFR 106.2(a)(43)(v)(B);
Citizens of Micronesia, Marshall Islands, or Palau. Proposed 8 CFR 106.2(a)(43)(v)(C); and
Persons Granted Withholding of Deportation or Removal. Proposed 8 CFR 106.2(a)(43)(v)(D).
• Form I-765V, Application for Employment Authorization for Abused Nonimmigrant Spouse. Proposed 8 CFR 106.2(a)(43)(vi) and 8 CFR 106.3(a)(3)(iii).
• Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative, for the first Form I-800 filed for a child based on an approved Form I-800A, Application for Determination of Suitability to Adopt a Child from a Convention Country, during the Form I-800A approval period or extended approval period. Proposed 8 CFR 106.2(a)(44)(i)(A).
• Form I-821, Application for Temporary Protected Status. There is no fee for re-registration. Proposed 8 CFR 106.2(a)(48)(ii).
• Form I-854, Inter-Agency Alien Witness and Informant Record. Proposed 8 CFR 106.2(a)(52).
• Form I-864, Affidavit of Support Under Section 213A of the INA. Proposed 8 CFR 106.2(a)(53).
• Form I-864A, Contract Between Sponsor and Household Member. Proposed 8 CFR 106.2(a)(53)(i).
• Form I-864EZ, Affidavit of Support Under Section 213A of the INA. Proposed 8 CFR 106.2(a)(53)(ii).
• Form I-864W, Request for Exemption for Intending Immigrant's Affidavit of Support. Proposed 8 CFR 106.2(a)(53)(iii).
• Form I-865, Sponsor's Notice of Change of Address. Proposed 8 CFR 106.2(a)(53)(iv).
• Form I-912, Request for Fee Waiver. Proposed 8 CFR 106.2(a)(58).
• Supplement A to Form I-914, Application for Immigrant Family Member of a T-1 Recipient, and Supplement B to Form I-914, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons. Proposed 8 CFR 106.2(a)(59).
• Supplement A to Form I-918, Petition for Qualifying Family Member of U-1 Recipient, and Supplement B to Form I-918, U Nonimmigrant Status Certification. Proposed 8 CFR 106.2(a)(60).
• Form I-942, Request for Reduced Fee, requesting a reduced fee for the naturalization application Form N-400. Proposed 8 CFR 106.2(a)(65).
• Form N-4, Monthly Report on Naturalization Papers. Proposed 8 CFR 106.2(b)(1).
• Form N-476, Request for Certification of Military or Naval Service. Proposed 8 CFR 106.2(b)(5).
• Form N-644, Application for Posthumous Citizenship. Proposed 8 CFR 106.2(b)(10).
• Form N-648, Medical Certification for Disability Exceptions. Proposed 8 CFR 106.2(b)(11).
• Claimant under INA sec. 289. Proposed 8 CFR 106.2(c)(9).
The TVPRA
There is no fee for filing Form I-914, Application for T Nonimmigrant Status; Form I-914, Supplement A, Application for Family Member of T-1 Recipient; and Form I-914, Supplement B, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons; under former 8 CFR 103.7(b)(1)(i)(UU) (Oct. 1, 2020), and DHS will continue to have no filing fee for these forms under proposed 8 CFR 106.2(a)(59). Principal applicants for T nonimmigrant status currently also do not file Form I-765 or pay a fee when an EAD is requested on Form I-914 and is issued incident to status. Any principal applicant who does not request employment authorization on Form I-914 must file Form I-765 but is fee exempt. Derivative beneficiaries must file Form I-765 and must submit a fee or fee waiver request. Currently, T nonimmigrants may request fee waivers for all forms up to and including a Form I-485 and associated forms.
In this proposed rule, DHS is proposing to expand fee exemptions for all persons seeking or granted T nonimmigrant status, including principals and derivatives, for all forms associated with an initial application for T nonimmigrant status through final adjudication of the T nonimmigrant's application for adjustment of status to LPR.
There is no fee for filing Form I-918, Petition for U Nonimmigrant Status; Form I-918, Supplement A, Petition for Qualifying Family Member of U-1 Recipient; or Form I-918, Supplement B U Nonimmigrant Status Certification.
DHS is now proposing to expand fee exemptions for persons seeking or granted U nonimmigrant status for all
DHS is proposing that any form associated with U nonimmigrant status be fee exempt up until the filing of a Form I-485. A fee would be due (or a fee waiver requested) for a U nonimmigrant to file a Form I-485 and any Form I-929, Petition for Qualifying Family Member. The fee exemption for U nonimmigrants would not extend to the Form I-485, unlike the fee exemption proposed for a Form I-485 filed by T nonimmigrants. DHS acknowledges that, like T nonimmigrants, U nonimmigrants are a particularly vulnerable population as victims of crimes and may have similar financial resources or employment prospects. However, DHS is proposing to treat them differently with regard to their respective Form I-485 fees. U nonimmigrants may have a longer time with work authorization than T nonimmigrants given the ability of U nonimmigrant petitioners to receive work authorization as part of the bona fide determination (BFD) process or with placement on the waiting list and the lengthy waiting period before a U visa becomes available. While some T nonimmigrant applicants may have work authorization during the pendency of their application pursuant to a grant of Continued Presence by U.S. Immigration and Customs Enforcement (ICE), there has not been a BFD process implemented in the T visa program, nor has a waiting list ever been used. The annual cap of 5,000 visas for the T visa program has also never been met, whereas the annual cap of 10,000 visas for the U visa program is consistently reached. Given current T nonimmigrant status processing times, which are much shorter than in the U visa context, the issuance of T nonimmigrant status may occur before a U petitioner is issued a BFD or waiting list-based work authorization. Some T nonimmigrants are also able to adjust much more quickly than a U visa petitioner given their ability to adjust upon the completion of the trafficking investigation or prosecution if certified by the U.S. Attorney General. In some cases, the investigation or prosecution is already complete at the time the individual receives T nonimmigrant status, rendering them immediately eligible to adjust status. For all of these reasons, U nonimmigrants are likely to have had work authorization much longer than T nonimmigrants, and thus are less likely to need a fee exemption for filing Form I-485.
In addition, USCIS receives a large number of petitions for U nonimmigrant status each year and the cost of administering the U nonimmigrant program is already largely funded by other fee-paying requests. The T nonimmigrant program is also funded by other fee-paying requests, but the costs of the T program are much lower because the volume of T-based requests that USCIS must adjudicate is significantly lower. DHS has determined that extending fee exemptions to the low volume of T nonimmigrants filing Form I-485 could be absorbed with very little impact. In contrast, providing a fee exemption for U nonimmigrants filing Form I-485 would result in substantial adjudication costs being shifted to fee payers because of the much larger number of U nonimmigrants who file Form I-485. Thus, while the populations have many similar characteristics, because of the different levels of cost shifting required, DHS decided that the different treatments for the Form I-485 fee were justified as proposed in this rule.
Violence Against Women Act (VAWA) self-petitioners currently pay no fee for filing Form I-360 and would continue to not pay a fee under this proposed rule.
DHS is now proposing to expand fee exemptions for persons seeking or granted immigrant classification as VAWA self-petitioners.
Like T and U nonimmigrants, VAWA self-petitioners are a particularly vulnerable population as victims of abuse and may not have the financial resources or employment authorization needed to pay for fees when initially filing for immigrant classification as VAWA self-petitioners. When passing VAWA, Congress gave individuals the ability to independently seek immigrant classification without the abusive U.S. citizen or LPR's participation or knowledge. VAWA self-petitioners may still be living with their abuser or may have recently fled their abusive relationship when filing the self-petition. According to the National Network to End Domestic Violence, abusers often maintain control over financial resources to further the abuse, and victims may have to choose between staying in an abusive relationship and poverty and homelessness.
Conditional permanent residents (CPRs) filing a waiver of the joint filing requirement based on battery or extreme cruelty (abuse waiver) are considered VAWA self-petitioners as defined in INA sec. 101(a)(51)(C) and currently may request a fee waiver when filing Form I-751.
Abused spouses and children seeking benefits under the Cuban Adjustment Act (CAA) and the Haitian Refugee Immigration Fairness Act (HRIFA) are considered VAWA self-petitioners as defined in INA sec. 101(a)(51)(D) and (E). As such, they are currently eligible for fee waivers for any forms filed through adjustment of status to LPR, including associated forms.
DHS proposes to provide fee exemptions for these persons for all forms filed through final adjudication for adjustment of status to LPR, including Form I-485 and associated forms. Proposed 8 CFR 106.3(b)(4). For abused spouses and children filing under CAA and HRIFA, they will be fee exempt for Form I-485 and associated forms, as they file for VAWA benefits on Form I-485. Proposed 8 CFR 106.3(b)(4). Associated forms include any forms filed before the individual adjusts their status to LPR, such as a Form I-131; Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal; Form I-290B, Form I-601, and Form I-765.
Abused spouses and children seeking benefits under the Nicaraguan Adjustment and Central American Relief Act (NACARA) are considered VAWA self-petitioners as defined in INA sec. 101(a)(51)(F). As such, they are currently eligible for fee waivers for any forms filed through adjustment of status, including associated forms.
DHS proposes to provide fee exemptions for abused spouses and children seeking benefits under NACARA for all forms filed through final adjudication for adjustment of status to LPR, including the Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to Section 203 of Public Law 105-100 (NACARA)) (Form I-881) and associated forms. Proposed 8 CFR 106.3(b)(7). For abused spouses and children under NACARA, they must file for VAWA benefits while in immigration proceedings, so they will be fee exempt for the Form I-881, Form I-601, and Form I-765, which are forms that may be filed with USCIS. Victims of abuse who file for VAWA benefits in immigration court proceedings are a particularly vulnerable population of applicants as mentioned previously. Therefore, DHS proposes to provide fee exemptions for Form I-881 and Form I-765, which are forms that may be filed with USCIS.
Currently, abused spouses and children of LPRs and U.S. citizens seeking cancellation of removal and adjustment of status under INA sec. 240A(b)(2) are eligible for fee waivers for any forms filed with USCIS through adjustment of status to LPR, including associated forms.
The National Defense Authorization Act for FY 2008
As part of Operation Allies Welcome, beginning in July 2021, DHS authorized filing fee exemptions, including for Form I-485, Form I-601, and Form I-765, for certain Afghan nationals and their derivative beneficiaries meeting certain criteria, who were evacuated from Afghanistan due to the humanitarian crisis in that country.
DHS currently fee exempts Form I-360
The fee for an Application for Temporary Protected Status (Form I-821) for TPS registrations is limited to $50 by statute.
DHS, however, is proposing to remove the fee exemption for Form I-765 filed by initial TPS applicants under age 14 and over age 65 for initial EAD requests.
USCIS no longer requires TPS applicants to file Form I-765 for information collection purposes, and only requires it if the TPS applicant wants an EAD. Persons applying for TPS who do not wish to request employment authorization need only file Form I-821.
DHS is not proposing any changes to fee exemptions or fee waivers for asylum seekers or asylees and is proposing to codify that there is no fee for an Application for Asylum and for Withholding of Removal (Form I-589). Proposed 8 CFR 106.2(a)(27).
After further consideration of the comments received on the 2020 fee rule's asylum fee, asylum applicants' lack of resources and the burdens that they face, DHS proposes to remove the $50 fee for Form I-589. Proposed 8 CFR 106.2(a)(27). DHS currently does not collect the $50 fee for Form I-589 as a result of the injunction against the 2020 Fee Rule discussed above. While INA sec. 208(d)(3), 8 U.S.C. 1158(d)(3), specifically authorizes a fee for the consideration of an asylum application in the discretion of the Secretary, it does not require such fees, and further provides that the Secretary may set adjudication and naturalization fees in accordance with INA sec. 1356(m), 8 U.S.C. 1356(m). DHS believes that the fee could deter asylum seekers from seeking protection because of an inability to pay the fee. Asylum applicants, many of whom arrive in the United States with few resources and lack financial support, may be unable to pay the fee (particularly considering that most are unable to legally seek employment until after the approval of their application for employment authorization based on their pending asylum application, which cannot be filed together), or would choose between paying the fee and paying for basic needs with the few resources they may have arrived with or can attain before being allowed to legally seek employment in the United States. DHS recognizes the vulnerable situations of individuals who apply for asylum and has decided not to impose an asylum application fee, so as to not make affordability a consideration for a person requesting asylum.
DHS will also continue to provide a fee exemption for the initial filing of Form I-765 for persons with pending asylum applications and those who were granted asylum (asylees). Proposed 8 CFR 106.2(a)(43)(iii)(D) and (G).
Many commenters on the 2020 fee rule opposed the change to charge asylum applicants for their first Form I-765, Application for Employment Authorization. 85 FR 46851-46853. The commenters wrote that: people who cannot work cannot afford to pay their asylum fees and may work illegally; charging individuals who are not authorized to work to pay a fee to acquire work authorization is counterintuitive; asylum seekers are in dire financial situations; requiring a fee for authorization to work will worsen the already precarious situation of a vulnerable population; and the fee will act as an unjust deterrent for asylum seekers. As a result of the economic challenges faced by asylum seekers, DHS has determined that it agrees that charging asylum seekers for an initial work authorization application could prevent them from obtaining lawful employment, and that the EAD fee is unduly burdensome for asylum seekers. Therefore, DHS proposes to retain the fee exemption for applicants who have applied for asylum or withholding of removal before EOIR (defensive asylum) or filed Form I-589 with USCIS (affirmative asylum) for initial filings of Form I-765.
As explained below, DHS also proposes that the fee for refugee travel documents for asylees and LPRs who obtained such status as asylees will be linked to the DOS fee for a U.S. passport. Proposed 8 CFR 106.2(a)(7)(i) and (ii). DHS also proposes to continue charging a fee for asylees with pending adjustment of status applications who are requesting advance parole. Proposed 8 CFR 106.2(a)(7)(iii). Although asylees and refugees are in some respects similarly situated populations, certain differences justify DHS's decision not to exempt asylees from paying the fee for refugee travel documents or advance parole. Unlike refugees, who are required to apply to adjust status after they have been physically present in the United States for at least one year, asylees are not required to apply for adjustment of status, although they may do so. In addition, because asylees are a larger population than refugees, DHS determined that transferring to other applicants and petitioners the costs of adjudicating requests from asylees for refugee travel documents and advance parole would be overly burdensome to other fee payers. DHS believes that asylees are better able to time the filing of Form I-485 for adjustment of status to LPR or an associated benefit request with their ability to pay the fees or request a fee waiver.
DHS proposes to continue fee waiver eligibility for asylees filing Forms I-290B, I-765 for EAD renewal, and I-485. Proposed 8 CFR 106.3(a)(3)(ii)(C) and (E) and (a)(3)(iv)(C). DHS does not propose new fee exemptions or fee waivers for asylum applicants or asylees in this rulemaking because most forms used by this population are already fee exempt or fee waiver eligible. DHS also considered the number of asylum-based filings made each year and decided that the transfer of the costs of such filings
DHS is continuing to provide a fee exemption for the initial filing of Form I-765 for persons who were admitted or paroled as refugees. Proposed 8 CFR 106.3(b)(9)(iii). This long-standing policy is consistent with Article 17(1) of the 1951 Convention Relating to the Status of Refugees (as incorporated in the 1967 Protocol Relating to the Status of Refugees), which states, “The Contracting State shall accord to refugees lawfully staying in their territory the most favorable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage-earning employment.”
DHS also proposes to provide a fee exemption for persons admitted or paroled as refugees who submit Form I-765 to renew or replace their EAD. Proposed 8 CFR 106.3(b)(9)(iii). Currently, refugees may request a fee waiver for such renewal and replacement applications. EAD renewal and replacement filing volume is low, and DHS must expend effort to adjudicate fee waiver requests, which are generally approved. DHS believes that exempting all refugee Form I-765 filings is consistent with the principles of the 1951 Refugee Convention cited above.
DHS further proposes to provide a fee exemption for the filing of Form I-131, Application for Travel Document, for persons admitted or paroled as refugees, including LPRs who obtained such status as refugees in the United States. Proposed 8 CFR 106.3(b)(9)(i). Refugees are by definition a vulnerable population.
An immigrant who has served honorably on active duty in the U.S. armed forces of the United States after October 15, 1978, after original lawful enlistment outside the United States (under a treaty or agreement in effect on October 1, 1991) for a certain period of time and the spouses and children of such immigrants may be granted special immigrant status upon recommendation under the executive department. INA sec. 101(a)(27)(K), 8 U.S.C. 1101(a)(27). These applicants may file for naturalization under INA sec. 328, 8 U.S.C 1439. USCIS does not charge a fee to military naturalization applicants because such fees are prohibited by statute.
On July 2, 2021, Secretary Mayorkas and Secretary of Veterans Affairs Denis McDonough announced a new initiative to support our Nation's noncitizen service members, veterans, and the immediate family members of service members. The initiative recognizes the profound commitment and sacrifice that service members and their families have made to the United States and that DHS agencies would review the policies to remove barriers to naturalization for those eligible, and improve access to immigration services.
As part of this initiative on November 19, 2021, USCIS issued guidance to provide fee exemptions for Form I-131 concurrently filed with N-400 for applicants who are residing outside the United States and seeking naturalization.
The following Table 13A provides a summary of current fee exemptions under INA sec. 245(l)(7). Table 13B provides a list of proposed additional fee exemptions, and the impact on forms that no longer require a fee waiver for these categories of requestors because they will be fee exempt. Table 13C provides a list of all fee exemptions and waivers that includes both the current provisions and the proposed additions.
DHS welcomes comment on the proposed changes to which categories of petitioners and applicants are exempt from the fees or which forms should be fee exempt, the annual and cumulative estimated transfer cost, requests to which costs should be shifted, and the reason as to why the particular group should be fee exempt.
USCIS is proposing to clarify that it will not redeposit financial instruments returned as unpayable for a reason other than insufficient funds.
In addition, DHS proposes two changes to address stale or expired checks. First, DHS proposes that that it may reject a request that is accompanied by a check that is dated more than 365 days before the receipt date. Proposed 8 CFR 103.2(a)(7)(ii)(D). Second, DHS proposes that it will not be responsible for financial instruments that expire before they are deposited and USCIS may reject any filing for which a required payment cannot be processed due to expiration of the financial instrument. Proposed 8 CFR 106.1(d).
Currently, USCIS policy is to reject a check that is dated more than a year before it is submitted. However, that policy is not codified, and DHS has been sued or threatened with litigation multiple times when a check that was dated more than a year before it was submitted was the basis of a rejection that caused the requestor to miss an important deadline. For example, USCIS has permitted an applicant to submit Form I-821 after the deadline
Currently, USCIS uses the following payment methods:
• For forms accepted at USCIS lockboxes
• For online filing—
• For fees paid at a field office—
• For immigrant fees paid by immigrants seeking entry into the United States with a visa—
DHS also proposes to codify that USCIS may require that certain fees be paid using a certain payment method or that certain fees cannot be paid using a particular method. Proposed 8 CFR 106.1(b). For example, USCIS may require that a request be submitted by using
For the 2020 fee rule, commenters wrote that requiring online or electronic payments would restrict immigration benefits for individuals who lack computer and internet access, that it is important to permit cashier's checks and money orders because they are available to individuals without banking services such as a credit card, and that many immigrant households lack access to checking and savings accounts or they are unbanked or underbanked. 85 FR 46877. DHS has determined that any person who can purchase a cashier's check or money order from a retailer can similarly purchase a prepaid debit card that can be used to pay their benefit request fee using USCIS Form G-1450 or the
Lockboxes that specialize in the intake and deposit of multiple payment types receive about 53 percent of all USCIS filings. However, the requirements and circumstances for the filing of some requests do not permit lockbox submission and intake, and the request must be filed at a particular office or in person. Various offices, such as field offices, embassies, and consulates, are limited in the method of payment that they can receive or process. Additionally, certain payment methods, such as checks or cash, require time-intensive procedures for cashiers and their supervisors to input, reconcile, and verify their daily receipts and deposits. Generally, Federal agency offices must deposit money that they receive on the same day that it is received.
Currently, USCIS filing fees generally are non-refundable and must be paid when the benefit request is filed.
Because fees are non-refundable, DHS further proposes to clarify that fees paid to USCIS using a credit card are not subject to dispute, chargeback, forced refund, or return to the cardholder for any reason except at the discretion of USCIS. USCIS continues to expand the acceptance of credit cards for the payment of USCIS fees. The increased acceptance of credit cards for the payment of USCIS fees has resulted in a sizeable increase in the number of disputes filed with credit card companies challenging USCIS' retention of the fee. Disputes are generally filed by requestors whose request was denied, who have changed their mind about the request, or assert that the service was not provided or was unreasonably delayed. USCIS records show that credit card companies generally side with their cardholders in these disputes and they determine that USCIS fails to adequately warn the cardholder that the fee is not refundable and due regardless of the result of the case or the time required to adjudicate it.
When USCIS performs services for which a fee has not been paid, such as when the fee is charged-back by a credit card company, the costs incurred must
DHS also proposes to amend its regulations to remove the $30 charge for dishonored payments.
Although agencies may prescribe regulations establishing the charge for a service or thing of value provided by the agency
DHS proposes to incorporate the biometric services cost into the underlying immigration benefit request fees based on the applicable biometric services for each benefit request and the associated costs as estimated in the ABC model. Currently, a separate $85 biometric services fee may apply depending on the immigration benefit request
DHS has broad statutory authority to collect biometric information when such information is “necessary” or “material and relevant” to the administration and enforcement of the INA.
In previous fee rules, USCIS evaluated the biometric activity cost as a single biometric services fee separate from the underlying application, petition, or request. In the FY 2016/2017 fee review, USCIS called the activity Perform Biometric Services.
• FBI Name Checks;
• FBI fingerprints;
• Application Support Center (ASC) contractual support; and
• Biometric service management overall, including Federal employees at the ASC locations.
In the FY 2022/2023 fee review, USCIS identified each of these four costs as distinct activities in the ABC model. These four activities replace the single biometric activity that USCIS used in previous fee reviews.
The proposed changes in this rule may assist USCIS as it shifts to enterprise-wide person-centric identity management. A person-centric view of the data allows adjudicators to see relevant information for an individual across multiple benefits requests and systems. USCIS aims to improve how it acquires, stores, manages, shares, and uses identity data—making all relevant information accessible and usable in support of adjudications. For example, if USCIS modifies the types of background checks conducted, then DHS may propose to increase the fee as appropriate for the affected immigration benefit requests. This approach may ensure that the affected customers would pay the appropriate fee rather than pass the cost burden of all other biometric services to other unrelated customers.
USCIS forecasts biometric workload volumes by immigration benefit request type in order to assign biometrics costs to the appropriate immigration benefit request. Assigning costs to the underlying immigration benefit request type may reduce the administrative burden on USCIS to administer the separate fee and make it easier for applicants, petitioners, and beneficiaries to calculate the total payment that is due. However, USCIS proposes to retain the separate biometric services fee for specific workloads, as described in the next section.
DHS has excluded from USCIS' ABC model for this proposed rule the costs and revenue associated with TPS, consistent with the previous fee rule.
While the TPS registration fee is capped by INA sec. 244a(c)(1)(B), 8 U.S.C. 1254a(c)(1)(B) at $50, DHS has specific statutory authority to collect “fees for fingerprinting services, biometric services, and other necessary services” when administering the TPS program.
To reduce the costs of TPS that USCIS must recover from fees charged to other immigration benefit requests, DHS proposes to require a $30 biometric services fee for TPS initial applications and re-registrations.
Similarly, DHS is maintaining the current requirement that applicants filing certain requests with EOIR
Under this proposed rule, DHS proposes to adjust the biometric services fee for those requests filed with and processed by USCIS. DHS proposes to use the same $30 fee using the same estimates as described for the proposed TPS biometrics fee above. Consequently, DHS proposes a biometric services fee of $30 for certain forms for which it performs intake and biometrics services on behalf of EOIR.
Aside from updating the fees for naturalization and citizenship-related forms, DHS proposes to continue offering fee waivers for the naturalization forms.
The fee-paying unit costs represent the estimated cost per fee-paying applicant as calculated in the USCIS
DHS further proposes separate online and paper fees for some benefit types. Proposed online filing fees are lower than proposed paper filing fees, when available.
DHS proposes to increase the fee for Form N-400, Application for Naturalization, from $640 to $760, a $120 or 19 percent increase.
Prior fee rules shifted a portion of the Form N-400 cost to other fee-paying immigration benefit requestors, and DHS proposes to maintain that approach. In the FY 2010/2011 and the FY 2016/2017 fee rules, the Form N-400 fee was set below the ABC model output; in other words, the fee was less than the estimated cost per fee-paying receipt. The FY 2010/2011 fee rule held the fee to $595, the amount set in the FY 2008/2009 fee rule.
The FY 2010/2011 proposed rule explained that holding the fee for the Form N-400 to the FY 2008/2009 fee raised all other proposed fees by approximately $8 each.
In crafting prior fee rules, DHS reasoned that setting the Form N-400 fee at an amount less than its estimated costs and shifting those costs to other fee payers was appropriate in order to promote naturalization and immigrant integration.
In addition to updating the Form N-400 fee waiver requests, as previously explained, DHS proposes to keep the reduced fee option for those naturalization applicants with family incomes not more than 200 percent of the FPG.
Currently, qualifying applicants pay a fee of $320 plus an additional $85 for biometric services, for a total of $405. To qualify for a reduced fee, the eligible applicant must submit Form I-942, Request for Reduced Fee, along with their Form N-400. Form I-942 requires the names of everyone in the household and documentation of the household income to determine if the applicant's household income is greater than 150 and not more than 200 percent of the FPG.
DHS eliminated the Form I-942 and reduced fee in the 2020 fee rule to recover the estimated full cost for naturalization services and to reduce the administrative burden on the agency to process the Form I-942.
DHS implemented this reduced fee option in the FY 2016/2017 fee rule to limit potential economic disincentives that some eligible naturalization applicants may face when deciding whether to seek U.S. citizenship.
In FY 2020, 3,430 people submitted a reduced fee Form N-400.
DHS does not propose any changes to fee exemptions for current and former military service members who file a Form N-400 under the military naturalization provisions.
As discussed earlier in this preamble, DHS bases most proposed fees on fee-paying unit costs from the ABC model.
In the 2020 fee rule, fees for Forms N-600 and N-600K decreased.
The current fees represent a combined fee for both Forms N-600 and N-600K.
DHS recognizes that increasing fees for Forms N-600 and N-600K to account for the full cost of adjudication may adversely impact applicants who are generally children and are already citizens by law. DHS has determined that the combined effect of high cost and low fee-paying volume would otherwise place an inordinate fee burden on individuals requesting certificates of citizenship. Also, DHS has decided that limiting the fee increase will promote citizenship and immigrant integration.
Therefore, DHS proposes to limit the increase of the fee for these forms and apply the cost reallocation methodology as described in section VIII.F.5., Proposed Changes to Other Naturalization-Related Application Fees. This proposed fee remains below the estimated cost from the USCIS ABC model. By limiting the fee increase, DHS may reduce the financial burden on these applicants. In addition, limiting the N-600 fees does not appreciably increase other fees by shifting an inordinate amount of costs of adjudicating the N-600 to them. The increase to other forms is only $5 in many cases, compared to an increase of hundreds of dollars to the N-600 and N-600K fees to recover full cost. For example, if DHS proposed to recover full cost on Form N-600 and N-600K, then proposed fees for Form N-600 would range from $1,835 when filed online to $2,080 when filed on paper. These hypothetical proposed fees are $450 and $695 more than the respective proposed fees in this rulemaking. Thus, DHS concludes that the proposed Form N-600 and N-600K fees represent a reasonable balance between the beneficiary-pays and ability-to-pay fee-setting models being employed to calculate the fees in this proposed rule.
There are other naturalization and citizenship related forms that may be submitted in coordination with the naturalization or certificate of citizenship application. Other forms may be submitted before or after such applications for other benefits. In some cases, such as Form N-565, DHS proposes to recover full cost; however, proposed fees for most naturalization services remain below estimated cost. See Table 14.
DHS uses its fee setting discretion to adjust certain immigration request fees that would be overly burdensome on applicants, petitioners, and requestors. Historically, as a matter of policy, DHS has chosen to limit USCIS fee adjustments for certain benefit requests to the weighted average fee increase represented by the model output costs for fee-paying benefit types.
DHS has continuously limited the fees for the following forms:
• Form N-300, Application to File Declaration of Intention;
• Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA); and
• Form N-470, Application to Preserve Residence for Naturalization Purposes.
DHS recognizes that charging less than the full cost of adjudicating an immigration benefit request requires USCIS to increase fees for other immigration benefit requests to ensure full cost recovery.
DHS further proposes to maintain the current fee for Form N-565, Application for Replacement Naturalization/Citizenship Document despite the FY 2022/2023 USCIS ABC model calculating a lower fee for it. The current fee for Form N-565 is $555. There is no fee when this application is submitted under 8 CFR 338.5(a) or 343a.1 to request correction of a certificate that contains an error. DHS considered lowering the fee as provided in the model, but decided that the revenue above the costs of adjudicating that would be generated by maintaining the current N-565 fee would help to mitigate the fee increases for other forms.
While DHS proposes no changes to the Request for Reduced Fee (Form I-942) income threshold for the naturalization application, DHS specifically requests comments on the appropriate level of income that USCIS should use to determine eligibility for the reduced fee and data to support that suggested level or measure. DHS also requests comments on limiting the increase of some fees and applying the cost reallocation methodology.
The June 2018 OMB report, “Delivering Government Solutions in the 21st Century,” recognized that an overarching source of Government inefficiency is the outdated reliance on paper-based processes, and prioritized the transition of Federal agencies' business processes and recordkeeping to a fully electronic environment.
The FY 2022 President's Budget also noted the need for effective, efficient, and modern Federal information technology to improve service delivery.
DHS understands that while USCIS has embraced technology in adjudication and recordkeeping, it remains bound to the significant administrative and operational burdens associated with benefit requests that are submitted on paper. The intake, storage, and handling of paper require tremendous operational resources, and information recorded on paper cannot be as effectively standardized or used for fraud and national security, information sharing, and system integration purposes. However, technological advances have allowed USCIS to develop accessible, digital alternatives to traditional paper methods for intaking and adjudicating benefit requests. Every benefit request submitted online instead of on paper provides direct and immediate cost savings and operational efficiencies to both USCIS and filers—benefits that will increase throughout an individual's immigration lifecycle as more benefit requests become available for online filing and case management.
Even as benefit requests become available for online filing, USCIS continues to provide the option of engaging with USCIS on paper. DHS recognizes that people adopt new technology at varying rates and have different levels of access to technology resources.
DHS agrees that transitioning to online filing for benefit requests is an important step in improving USCIS service and financial stewardship while promoting the objectives of the Government Paperwork Elimination Act
DHS recognizes that the international COVID-19 pandemic may have increased the level of online filing versus paper filing for benefit requests where online filing is available. To encourage continued use of online filing at the same or a higher rate after the pandemic, DHS proposes a lower fee for online filing of immigration benefit requests for which both paper and online filing options are available.
DHS bases the proposed separate online and paper fees on ABC model results. When DHS proposes limited fee increases or to continue using the current fee, the calculation is based on the current fee instead of ABC model results. As such, there are not separate proposed fees for online and paper filing for immigration benefit requests with limited fee increases or held to the current fee.
USCIS will further evaluate the effects of these changes in future biennial fee reviews. For example, if the level of online filing increases or as more benefit requests become available for online filing, then USCIS will incorporate that information into future fee reviews.
Usually, a primary immigration benefit request must be approved before an applicant can receive associated benefits such as employment authorization or a travel document or both. That is, USCIS only grants associated benefits after or at the same time as it grants the primary immigration benefit request. However, in some situations, an applicant may qualify for an associated immigration benefit while the primary benefit request is still pending adjudication. For example, in certain instances, a person with a pending adjustment of status application may apply for employment authorization or a travel document or both.
DHS proposes to require separate filing fees for Form I-765, Application for Employment Authorization, and Form I-131, Application for Travel Document, when filed concurrently with Form I-485, Application to Register Permanent Residence or Adjust Status, or as interim benefit requests on the basis of a pending Form I-485 filed on or after the effective date of this rule.
Before the FY 2008/2009 fee rule, applicants paid separate fees for Form I-765 and Form I-131 while waiting for USCIS to adjudicate Form I-485. Applicants who had not yet received a permanent residence card (PRC, also known as a “Green Card” or Form I-551), but who had to renew these interim benefits, paid any associated fees for the renewals.
In the FY 2016/2017 fee review, USCIS calculated the workload volume and fee-paying percentage for Forms I-
DHS proposes to charge separate fees for Form I-765 and Form I-131 when filed concurrently with Form I-485 or as interim benefit requests while Form I-485 is pending adjudication.
DHS proposes this change to reduce the proposed fee increases for Form I-485 and other forms. For example, in the FY 2016/2017 fee rule, USCIS isolated the workload volume and fee-paying percentage of Forms I-765 and I-131 that are not associated with Form I-485.
In the proposed fee schedule, USCIS assumes these interim benefit applicants will pay the applicable fees for Forms I-485, I-765, and I-131. If applicants continued to only pay a bundled fee, then the proposed fee for Form I-485 would be $1,715, which is $175 or approximately 37 percent more than the actual proposed fee of $1,540.
In a bundled scenarios, USCIS only counts Form I-485 as a fee-paying receipt. In a scenario without bundled interim benefits, USCIS may count Forms I-485, I-765, and I-131 each as up to three fee-paying receipts. In general, fees are higher in a fee schedule with bundled fee interim benefits because it has lower fee-paying volumes than the proposed fee schedule. This means there are fewer immigration benefit requests from which USCIS can recover projected costs in a fee schedule with bundled fee interim benefits. For example, USCIS estimates that approximately 65 percent of Form I-765 applicants may pay the Form I-765 fee in a scenario without bundled interim benefits; this is the proposed fee scenario with higher fee-paying volumes overall. In a bundled scenario, approximately 45 percent of Form I-765 applicants may pay the fee for Form I-765. While Form I-485 applicants would not have to pay the fee for Form I-765 in a bunded scenario, the fee for all other Form I-765 applicants would be higher because a bundled scenario reduces fee-paying receipts overall. In the bundled scenario, people would pay more to recover the cost of Form I-765 because of the approximate 20 percent difference between the two scenarios. These points of comparison ignore additional fee exemptions that are also part of the proposed fees. Put another way, if USCIS performs less bundled work, then applicants pay lower fees for that work because it will increase fee-paying volumes for Forms I-485, I-765, and I-131. If USCIS continues to offer bundled interim benefits, then other immigration benefit request fees will be higher. DHS proposes separate fees for interim benefit applications and Form I-485 applications in order to lower the proposed fees for most other applicants, petitioners, and requestors, and to tailor applicants' costs more directly to the benefits for which they apply.
DHS proposes to increase the Form I-485 fee to $1,540, which is $400 or 35 percent more than the current $1,140 fee that includes interim benefits. USCIS did not realize the efficiency gains anticipated when it originally bundled interim benefits in the FY 2008/2009 fee rule.
As a result of this proposal, new Form I-485 applicants would only pay for the benefits that they request. In the FY 2008/2009 and FY 2010/2011 fee rules, some commenters stated they did not want to pay for additional benefits they did not want, need, or receive, which was a consequence of the bundled fee approach.
DHS acknowledges that applicants and petitioners may face additional difficulties in paying the proposed fees, and may be required to request a fee waiver if eligible, save money longer to afford the fees, or resort to credit cards or borrowing to pursue their or their family members' immigration benefit. DHS has weighed these impacts and interests and considered alternatives to the proposals in this rule as described in this preamble. DHS is committed to affordability and access for all and acknowledges that the increase in some fees may appear contrary to this commitment. As discussed above, however, bundled interim benefits are currently making other immigration
Currently, Form I-485 has two fees: the fee for an adult is $1,140, and the fee for a child under the age of 14 concurrently filing with a parent is $750.
DHS no longer believes there is a cost basis for the two different Form I-485 fees. As explained in the FY 2016/2017 fee rule, USCIS does not track the adjudication time for Form I-485 based on the age of the applicant, so there are no data showing a cost difference correlated to the difference in applicant age.
In the proposed Form I-485 fee, USCIS assumes the same completion rate and biometric services for adults and children to reflect USCIS data and processes, and because DHS proposes to separate interim benefit request fees from the fee for Form I-485. DHS believes that a single fee for Form I-485 will reduce the burden of administering separate fees and better reflect the cost of adjudication. This proposal will affect a small percentage of Form I-485 applicants. In FY 2019 and FY 2020, approximately five to six percent of Form I-485 applicants paid the $750 fee.
In addition, DHS is proposing to clarify the statutory sum for applicants for adjustment of status under INA sec. 245(i).
Consistent with U.S. obligations under Article 28 of the 1951 Convention relating to the Status of Refugees,
DHS proposes to separate the fee for Form I-131A, Application for Carrier Documentation, from other travel document fees and maintain the current Form I-131A fee.
Currently, certain LPRs may use Form I-131A to apply for a travel document (carrier documentation) if their PRC, also known as a “Green Card” or Form I-551, or their re-entry permit is lost, stolen, or destroyed while outside of the United States. Carrier documentation allows an airline or other transportation carrier to board the LPR without any penalty for permitting an individual to board without a visa or travel document.
DHS proposes that the fee for Form I-131A does not change. While the result of the ABC model indicated that the fee should decrease, Form I-131A requires a different adjudicative process than Form I-131, including processing by DOS personnel outside of the United States, which affects the projected cost for Form I-131A. Other travel documents may be adjudicated inside or outside of the United States, while the DOS Bureau of Consular Affairs, located outside of the United States, will process Form I-131A following the closure of most USCIS international offices.
Currently, employers and other qualified filers, such as agents, sponsoring organizations and investors (collectively referred to as a “benefit requestor” or separately referred to as a “petitioner” or “applicant,” as applicable) may use Form I-129, Petition for a Nonimmigrant Worker, to submit a benefit request on behalf of a current or future nonimmigrant worker to temporarily perform services or labor, or to receive training in the United States.
In the 2020 fee rule, DHS separated Form I-129 into the following forms: Form I-129E&TN, Petition for Nonimmigrant Worker: E and TN Classifications; Form I-129H1, Petition for Nonimmigrant Worker: H-1 Classifications; Form I-129H2A, Petition for Nonimmigrant Worker: H-2A Classification; Form I-129H2B, Petition for Nonimmigrant Worker: H-2B Classification; Form I-129L, Petition for Nonimmigrant Worker: L Classifications; Form I-129O, Petition for Nonimmigrant Worker: O Classifications; and Form I-129MISC, Petition for Nonimmigration Worker: H-3, P, Q, or R Classifications. 8 CFR 106.2(a)(3) (Oct. 2, 2020). DHS and USCIS believed that splitting the form and proposing several different fees would simplify or consolidate the information requirements for petitioners and applicants as well as better reflect the cost to adjudicate each specific nonimmigrant classification. 84 FR 62307.
In the 2020 fee rule, DHS also limited the number of multiple beneficiaries that could be requested on a single petition for nonimmigrant worker, provided a different fee for petitions for up to 25 named beneficiaries versus petitions for more than 25 named beneficiaries, and required that if a petition includes more than 25 beneficiaries, an additional petition is required. 8 CFR 214.2(h)(2)(ii) (Oct. 2, 2020). DHS estimated that it requires less time and resources to adjudicate a petition with unnamed workers than one with named workers. USCIS runs background checks on named workers, but it cannot do so for unnamed workers. After a petition for unnamed workers is approved, the petitioner finds workers and then the workers apply for nonimmigrant visas with DOS, who will then vet the worker before adjudicating the visa application. Therefore, USCIS believes that it takes less time for USCIS immigration services officers to adjudicate a petition with unnamed workers. 84 FR 62309.
In this rule, DHS proposes different fees for Form I-129 based on the nonimmigrant classification being requested in the petition, the number of beneficiaries on the petition, and, in some cases, according to whether the petition includes named or unnamed beneficiaries. The proposed fees are calculated to better reflect the costs associated with processing the benefit requests for the various categories of nonimmigrant worker. The current base filing fee for Form I-129 is $460.
In 2017, the DHS Office of Inspector General (OIG) released a report on H-1B visa participants.
Additionally, USCIS now captures adjudication hours for nonimmigrant worker petitions based on the classification for which the petition is filed (
The H-1B nonimmigrant program is for individuals who will perform services in a specialty occupation, services relating to a Department of Defense cooperative research and development project or coproduction project, or services as a fashion model who is of distinguished merit and ability, while the H-1B1 nonimmigrant program is for nationals of Singapore or Chile engaging in specialty occupations.
The H-2A visa program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary agricultural jobs.
• Separate fees for petitions with named workers and petitions with unnamed workers;
• Limit the number of named workers that may be included on a single petition to 25.
DHS proposes separate H-2A and H-2B fees for petitions with named workers and unnamed workers. Currently, petitions for H-2A or H-2B workers may include named or unnamed workers. Petitioners must name workers when: (1) the petition is filed for a worker who is a national of a country not designated by the Secretary of Homeland Security as eligible to participate in the H-2A or H-2B programs; or (2) the beneficiary is in the United States.
USCIS proposes to implement a limit of 25 named beneficiaries per petition. Proposed 8 CFR 214.2(h)(2)(ii), (h)(5)(i)(B). Currently, there is no limit on the number of named or unnamed workers that may be on a single petition. USCIS currently charges a flat fee regardless of whether a petition includes one or hundreds of named temporary nonimmigrant workers. However, because USCIS completes a background check for each named beneficiary, petitions with more named beneficiaries require more time and resources to adjudicate than petitions with fewer named beneficiaries. This means the cost to adjudicate a petition increases with each additional named beneficiary. In one case, a petitioner included more than 600 named workers in one petition.
OIG's interviews of USCIS immigration services officers indicated that a maximum of 10 nonimmigrant workers could usually be processed within a normal workday.
The proposed fees would address the imbalances in the current fee structure identified by the OIG audit. For example, the proposed $530 fee for an H-2A petition without named workers is $560 less than the proposed $1,090 fee for an H-2A petition with named workers because the adjudication of petitions requesting unnamed workers requires less time.
Under current requirements, petitioners sponsoring L nonimmigrant workers, who are intracompany transferees,
DHS proposes a fee of $1,055 for Form I-129 petitions filed to request O classifications. Similar to some other proposed changes to Form I-129, DHS proposes to limit each Form I-129 filed for O classifications to 25 named beneficiaries.
DHS proposes a fee of $1,015 for Form I-129 petitions filed for Treaty Trader (E-1), Treaty Investor (E-2), E-3, and TN classifications. The Treaty Trader (E-1) and Treaty Investor (E-2) classifications are for citizens of countries with which the United States maintains treaties of commerce and navigation. The applicant must be coming to the United States to engage in substantial trade principally between the United States and the treaty country (E-1), to develop and direct the operations of an enterprise in which the applicant has invested or is in the process of investing a substantial amount of capital (E-2), or to work in the enterprise as an executive, supervisor, or essentially skilled employee.
DHS proposes to create a fee of $1,015 for the remaining nonimmigrant worker classifications: H-3, P, Q, and R.
DHS proposes to republish a paragraph of regulatory text that incorporates statutory changes and longstanding practices that allow petitions for multiple P nonimmigrants.
DHS is not separating Form I-129 into multiple forms in this rule as it did in the 2020 fee rule, but may take that action separately as a revision of the currently approved Form I-129 information collection under the PRA.
DHS proposes to create a fee of $1,015 for Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker.
DHS proposes a $10 adjustment to the $200 CNMI education funding fee based on the methodology described in the authorizing statute.
In addition to authorizing inflation adjustments for the CNMI education funding fee, the 2018 CNMI Act created a new $50 CNMI fraud prevention and detection fee. 2018 CNMI Act, sec. 3 (amending 48 U.S.C. 1806(a)(6)(A)(iv)). The new $50 fraud prevention and detection fee is in addition to other fees that employers must pay for petitions to employ CNMI-only transitional workers.
DHS also proposes conforming edits to CNMI regulations regarding fee waivers and biometric services. Currently, some CNMI applicants and beneficiaries may qualify for a fee waiver based on inability to pay or other reasons.
DHS does not propose to limit the number of named beneficiaries included in a single I-129CW filing. USCIS does not have separate completion rates for CNMI petitions. Currently, USCIS adjudicators report hours for Form I-129CW in a catch-all Form I-129 category.
In 2019, DHS established a $10 registration fee per beneficiary for H-1B petitions.
USCIS lacks information on the direct cost of H-1B registration, but USCIS estimated the indirect costs of the H-1B registration program using the same methods as it did to calculate other fees. The methodology for estimating the cost provides results that are similar to the USCIS Immigrant Fee, which was established as part of the FY 2010/2011 fee rule.
As such, the proposed fee is based on the estimated cost of these two activities. See the supporting documentation included in the docket for this rulemaking for more information on USCIS fee review activities. The proposed fee does not include activity costs for paper intake because registration is only available online. It does not include the cost of any adjudication activities because the fee is only for registration, not a decision. If selected, the petitioner must file Form I-129 separately.
DHS understands that an increase from $10 to $215 may appear to be exorbitant at first glance. However, the $10 fee was established simply to cover a small portion of the costs of the program rather than perpetually leaving 100 percent of those costs to be funded by the fees paid for other unrelated requests. As stated in the rule setting the fee, “DHS proposed a $10 fee to provide an initial stream of revenue to mitigate potential fiscal effects on USCIS. Following implementation of the registration fee provided for in this rule, USCIS will gather data on the costs and burdens of administering the registration process in its next biennial fee review to determine whether a fee adjustment is necessary to ensure full cost recovery.” 84 FR 60309. DHS sees no reasons why U.S. employers who wish to temporarily employ foreign workers in specialty occupations should not cover the expenses of the H-1B registration program, which is a prerequisite to being able to file a nonimmigrant petition for a foreign worker in the H-1B nonimmigrant classification. Even with the higher registration fee requirement, the registration process is still expected to result in a net cost-savings to USCIS and petitioners due to cost savings associated with unselected petitions in DHS' Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens.
DHS proposes to define the premium processing timeframe for all immigration benefit request types designated for premium processing to only include business days.
DHS has re-examined the District of Columbia Appropriations Act of 2001 and found that it did not define the timeframe by which INS was required to process applications under the Premium Processing Service and was, in fact, silent on the issue.
When USCIS is unable to complete premium processing within the required timeframe, USCIS must suspend premium processing. When USCIS suspends premium processing, it must refund the fees for the premium processing requests it cannot complete. In recent years, USCIS has suspended for certain categories of employment-based petitions when it determines that it has inadequate resources to devote to premium processing requests, and might otherwise refund a large number of Form I-907 fees for failure to meet the required processing timeframe.
In certain instances, USCIS has been unable to maintain existing premium processing timeframes due to the high volume of incoming petitions and a significant surge in premium processing requests.
USCIS also had to suspend premium processing due to the COVID-19 pandemic.
USCIS employees are limited in the hours they are available to work by collective bargaining agreements and contracted staff are limited to the hours provided by contract, and both Federal employees and contracted staff are prohibited from working outside regular business hours or while not in a pay status. If USCIS needs its employees to work overtime to process these petitions and applications within a certain timeframe, it must of course pay them the applicable overtime pay rate. Because USCIS adjudication operations are fee funded, USCIS does not always have sufficient funds to support overtime; therefore, it must calculate the premium processing timeframes based on the days in which it can actually process petitions and applications (business days). USCIS is not asserting that all adjudications will increase to the full allowance of business days, however this change provides needed flexibility for holidays, weather emergencies, and other circumstances outside the agency's control.
In addition, the USCIS Stabilization Act prohibits USCIS from making premium processing available if it adversely affects processing times for immigration benefit requests not designated for premium processing or the regular processing of immigration benefit requests so designated.
USCIS cannot expand premium processing, which was specifically requested by many commentors in the previous fee rule, until it has sufficient staff to consistently adjudicate within the timeframes. However, it is difficult to estimate the staff needed to process petitions during a certain timeframe using calendar days. In 2018, premium processing was suspended in April, then the suspension was extended until after the Federal holidays in December and January. In the last 2 weeks of December 2018, USCIS lost 3 days of processing to Federal holidays and 4 days to weekends. USCIS cannot hire additional staff in short periods of time, nor can it reallocate staff without affecting other processing times. DHS's proposed solution to consistently offer and expand (as Congress has authorized) premium processing services is to calculate the timeframe in business days. Calculating the premium processing timeframes based on the days in which USCIS is actually processing petitions and applications (business days) will enable USCIS to make premium processing more consistently available and expand it to the newly designated classifications and categories as intended by the USCIS Stabilization Act. This avoids USCIS having to suspend premium processing, which limits access to more applicants and petitioners and extends the pending period for adjudication.
DHS has determined that it is more appropriate for the premium processing timeframes to be calculated using business days rather than calendar days and proposes to apply this interpretation to all premium processing timeframes.
Separate from this rulemaking, USCIS is providing more flexibility in paying the premium processing fee. For example, USCIS piloted and expanded credit card payments for Forms I-129, I-140, and I-907.
DHS proposes to permit the fee to request premium processing service to be paid with the same remittance as other filing fees. Proposed 8 CFR 106.4(b). DHS currently requires the fee to request premium processing service to be paid in a separate remittance from other filing fees. 8 CFR 106.4(b). DHS has found in its application of the new premium processing regulations (87 FR 18260) that mandating a separate payment in all premium processing submissions may impose unnecessary burdens on petitioners, applicants and DHS. For example, any limitation on fee intake that must be enforced by USCIS adds a business requirement for the immigration benefit to be accepted. Each rule requires system programming and may result in unnecessary rejections. Thus, DHS proposes, instead of mandating the separate payment, to provide that USCIS may require the fee to request premium processing service to be paid in a separate remittance from other filing fees. Proposed 8 CFR 106.4(b). DHS will maintain the authority to require separate payments when combined payments need to be precluded because they cause intake and acceptance problems. USCIS may require the premium processing service fee be paid in a separate remittance from other filing fees and preclude combined payments in the applicable form instructions.
DHS made several changes in the 2020 fee rule related to intercountry adoptions.
DHS proposes to limit the increase of adoption-related fees in this rule consistent with previous fee rules.
DHS greatly values its role in intercountry adoptions and places high priority on the accurate and timely processing of immigration applications and petitions that enable U.S. families to provide permanent homes for adopted children from around the world. It also recognizes that the financial costs, both foreign and domestic, involved in intercountry adoptions can have significant impacts on these families. DHS has a history of modifying policies to ease burdens associated with international adoption. Before 2007, USCIS required prospective adoptive parents who had not found a suitable child for adoption within 18 months after approval of their Application for Advance Processing of an Orphan Petition, Form I-600A, to submit a fee with their request to extend their approval. Since 2007, USCIS has permitted adoptive parents to request one extension of their Form I-600A approval without charge, including the biometric fee.
DHS also has a history of setting adoption-related fees lower than the amount suggested by the fee-setting methodology. In the 2010 fee rule, the calculated fee for adoption petitions and applications (Forms I-600/I-600A and I-800/I-800A) was $1,455, based on
DHS proposes to revise and republish amendments to 8 CFR 106.2, 204.3, and 204.313 to clarify the regulations and align them with current practice that prospective adoptive parents with a valid Form I-600A or Form I-800A approval are not required to pay a fee for the first Form I-600 or Form I-800 petition. If they are approved to adopt more than one child, they are required to pay the filing fee for additional Form I-600 or Form I-800 petitions unless the beneficiaries are birth siblings.
To align with current and historical practice, DHS proposes to clarify in the regulations that this exception is limited to “birth” siblings. This approach is consistent with the special treatment afforded in the INA to “natural siblings,” which allows a Form I-600 or Form I-800 petition to be filed for a child up to age 18, rather than up to age 16, only if the beneficiary is the “natural sibling” of another foreign-born child who has immigrated (or will immigrate) based on adoption by the same adoptive parents. INA sec. 101(b)(1)(F)(ii) and (G)(iii); 8 U.S.C. 1101(b)(1)(F)(ii) and (G)(iii). While the INA uses the term “natural sibling,” DHS generally uses the term “birth sibling” synonymously, which includes half-siblings but does not include adoptive siblings.
DHS also proposes to remove fee-related language from 8 CFR 204.3(h)(3)(i)(C) and (D) because this language will be covered in 8 CFR 106.2.
DHS proposes to revise and republish the amendments to 8 CFR 204.3 relating to orphan cases under INA sec. 101(b)(1)(F), 8 U.S.C. 1101(b)(1)(F) (non-Convention cases). The proposed revised and republished revisions to the orphan regulations are necessary to eliminate disparity between the 18-month approval period for the Form I-600A, Application for Advance Processing of an Orphan Petition, the 15-month validity period of FBI fingerprint clearances, and the 15-month approval period for a Form I-800A, Application for Determination of Suitability to Adopt a Child from a Convention Country, and any approved extension.
Currently, the approval of a Form I-600A in an orphan case is valid for 18 months.
DHS proposes to remove fee-related language from 8 CFR 204.3(h)(3)(ii) because that language would be unnecessarily redundant with the fee language in proposed 8 CFR 106.2.
DHS proposes to revise and republish the regulation that creates a new form
Currently, prospective adoptive parents face different processes for requests for action on approved suitability applications in Hague cases than they do in non-Hague cases. USCIS uses Forms I-800, I-800A, and I-800A Supplement 3 for Hague cases. USCIS uses Forms I-600 and I-600A for orphan cases. A fee for Form I-600A/I-600 Supplement 3 would further align the Form I-600A/I-600 request for action process with the existing Form I-800A process in four key areas:
1. Suitability and eligibility extensions.
2. New approval notices.
3. Change of country; and
4. Duplicate approval notices.
USCIS adjudicators must reassess whether prospective adoptive parents are still suitable and eligible to adopt if the prospective adoptive parents' circumstances have changed after the initial USCIS suitability determination. The proposed fee would help recover some of the cost for this work.
Requirements related to a prospective adoptive parent's change in marital status for the orphan process are similar to the Hague process, but not identical. This is because the orphan process provides an option for combination filing, unlike the Hague process. In the orphan process, a prospective adoptive parent can file their Form I-600 petition on behalf of a specific child together with the supporting documents for Form I-600A, Application for Advance Processing of an Orphan Petition, to request that USCIS decide their suitability and eligibility to adopt at the same time as the child's eligibility. This is referred to as combination filing.
For Hague cases, prospective adoptive parents cannot use Form I-800 Supplement 3 if their marital status
Similarly, a prospective adoptive parent will not be able to use Form I-600A/I-600 Supplement 3 for the orphan process if their marital status changes. If the prospective adoptive parent's marital status changes before they complete the intercountry adoption process, they must submit a new a Form I-600A or Form I-600 combination filing (referred to in this preamble as a “suitability application”) with an updated home study. If the prospective adoptive parent already filed a Form I-600 based on the approval of the prior Form I-600A, they must also file a new Form I-600. They must pay a new application or petition fee unless their suitability application is still pending. This is consistent with longstanding practices, as reflected in prior versions of the Form I-600A and Form I-600 instructions, which has required that prospective adoptive parents file a new suitability application with an updated home study if their marital status changes, rather than relying on the previously filed suitability application, regardless of whether the suitability application is pending or approved. With the addition in this proposed rule of the Supplement 3 for the orphan process, DHS proposes to codify this longstanding practice at 8 CFR 204.3(h)(14), consistent with the Hague process at 8 CFR 204.312(e)(2).
Table 20 and the following sections summarize the current process and the proposed changes.
Currently, prospective adoptive parents pursuing an intercountry adoption from non-Hague countries may request a no-fee initial extension of their Form I-600A approval.
Currently, if an applicant needs to extend their Form I-600A approval, they may file a written request for an extension no more than 90 days before their Form I-600A suitability approval expires, but on or before its expiration date. DHS now proposes that an applicant must file a Supplement 3 to seek an extension before their Form I-600A suitability approval expires. A Supplement 3 seeking an extension cannot be filed more than 90 days before the Form I-600A suitability approval expires and must be filed before the approval expires if they need to extend their validity period. A Supplement 3 may be denied if filed sooner.
DHS proposes to remove 8 CFR 204.3(h)(3)(ii) (Oct. 1, 2020). This regulation that provides for DHS to extend suitability approvals without the prospective adoptive parents requesting one in certain scenarios would no longer be necessary because applicants would have a form (Supplement 3) they can file to request unlimited extension requests for non-Hague cases. Currently, DHS does not have a form for applicants to request extensions for non-Hague cases, and only allows one written extension request. In association with this rule, DHS proposes to create a form that prospective adoptive parents can use to file unlimited extension requests for non-Hague cases. In addition, this proposed change also aligns the non-Hague adoptions regulations with the Hague Adoption Convention regulations, which do not contain a parallel provision that provides DHS authority to extend suitability approvals in the event of such emergency because prospective adoptive parents can file a form to request an extension and can do so an unlimited number of times. Finally, DHS has an obligation to ensure applicants remain suitable for intercountry adoption and must update our suitability determination before extending approvals. For this reason, DHS proposes to remove 8 CFR 204.3(h)(3)(ii) (Oct. 1, 2020).
Currently, prospective adoptive parents using the non-Hague process may request a new approval notice based on a significant change in circumstances at no cost.
Currently, prospective adoptive parents may change the proposed country of adoption once without fee. They may make subsequent country changes by filing Form I-824, Application for Action on an Approved Application or Petition, with fee.
Currently, prospective adoptive parents may request a duplicate approval notice by filing Form I-824, Application for Action on an Approved Application or Petition, with its $465 fee. DHS proposes that prospective adoptive parents make duplicate approval notice requests by filing the proposed Form I-600A/I-600 Supplement 3, with the proposed fee of $455.
DHS proposes to clarify the processes for requesting an extension of the Form I-600A approval and other actions on an approved Form I-600A or Form I-600 as they pertain to adoptions from countries that newly become a party to the Hague Adoption Convention. When the Hague Adoption Convention enters into force for a country, cases that meet certain criteria are generally permitted by the new Convention country to proceed as “transition cases” under the non-Hague Adoption Convention process (Form I-600A and Form I-600 process). Provided that the new Convention country agrees with the transition criteria, USCIS will generally consider a case to be a transition case if, before the date the Convention entered into force for the country, the prospective adoptive parents: (1) filed a Form I-600A that designated the transition country as the intended country of adoption or did not designate a specific country and filed the Form I-600 while the Form I-600A approval was still valid; (2) filed a Form I-600 on behalf of a beneficiary from the transition country; or (3) completed the adoption of a child from the transition country. If the case does not qualify as a transition case, the prospective adoptive parents will generally need to follow the Hague Adoption Convention process with the filing of Form I-800A and Form I-800. With the addition of the new Form I-600A/I-600 Supplement 3, DHS proposes to codify certain limitations on when the Supplement 3 can be used in the context of transition cases.
If a case qualifies as a transition case based on the filing of Form I-600A before the entry into force date, to continue as a transition case, the prospective adoptive parents must file the Form I-600 petition while the Form I-600A approval remains valid. Currently, prospective adoptive parents are permitted to request a one-time, no-fee extension of their Form I-600A approval to remain a transition case. As discussed in section a.) above, DHS proposes that prospective adoptive parents may request more than one extension of their Form I-600A approval outside of the transition context. DHS proposes that prospective adoptive parents may only be permitted to request a one-time extension of their Form I-600A approval as a qualified transition case.
The transition criteria were generally designed to permit prospective adoptive parents who had taken certain steps to begin the intercountry adoption process with a country before the Convention entered into force to be able to continue under the non-Hague process, rather than requiring them to begin again
Outside of the transition context, prospective adoptive parents are generally permitted to request an updated Form I-600A approval notice to increase the number of children they are approved to adopt. In the transition context, however, prospective adoptive parents with transition cases generally have not been permitted to request an increase in the number of children they are approved to adopt from a transition country.
DHS also proposes a fee of $455 at 8 CFR 106.2 and revises and republishes a clarification to 8 CFR 204.312 to align with the current process for adjudicating Form I-800A Supplement 3. Currently, prospective adoptive parents may request a first extension of the Form I-800A approval, and a first-time change in the proposed country of adoption, by filing Form I-800A Supplement 3 without a fee. Second or subsequent requests for an extension, change of country, or duplicate approval notice can currently be made by filing Form I-800A Supplement 3 with a fee. Additionally, prospective adoptive parents can currently request a new approval notice based on a significant change and updated home study by filing Form I-800A Supplement 3. A request for a new approval notice must be submitted with a fee unless the prospective adoptive parents are also filing a first-time request for either an extension or change of country on the same Supplement 3. When DHS implemented the Hague Adoption Convention, as a matter of operational efficiency USCIS decided to accept Form I-800A Supplement 3 extension requests regardless of whether the Form I-800 petition was already filed, rather than requiring prospective adoptive parents to file a new Form I-800A to begin the process anew. That procedure generally shortens the subsequent suitability and eligibility adjudication process for prospective adoptive parents seeking an extension of their Form I-800A approval, as Supplement 3 adjudications are generally prioritized over new Form I-800A filings, allowing for a new decision on the prospective adoptive parents' suitability and eligibility to occur more quickly. Therefore, DHS proposes to republish 8 CFR 204.312(e)(3)(i) to permit the filing of Form I-800A Supplement 3 regardless of whether Form I-800 has been filed.
DHS proposes to revise 8 CFR 204.312(e)(3)(ii) to clarify the evidentiary requirements for updates due to significant changes. The Supplement 3 can be filed for an extension request, a change of country, a duplicate approval notice, or an update due to a significant change. The evidentiary requirements are the same regardless of which type of request the applicant makes. However, the current regulation only describes the evidence required for a Supplement 3 for an extension request or a change of country. The current regulations do not include updates when listing evidentiary requirements for Supplement 3. This proposed clarification mirrors current practices and form instructions.
DHS proposes to remove the fee language from 8 CFR 204.312(e)(3)(i), including amending paragraph (e)(3)(i)(A) and striking paragraphs (e)(3)(i)(C) and (D), because this language is unnecessarily redundant with the fees in 8 CFR 106.2.
DHS proposes changes to various fees for regional centers and related immigration benefit requests related to Employment-Based Immigrant Visa, Fifth Preference (EB-5). As explained in section III.F. above, on March 15, 2022, the President signed the EB-5 Reform and Integrity Act of 2022, Div. BB of the Consolidated Appropriations Act, 2022 (Public Law 117-103). The EB-5 Reform and Integrity Act of 2022 repealed the prior authorizing statute for the EB-5 “regional center program” and codified a substantially reformed regional center program in the INA, effective 60 days after enactment on May 14, 2022. The EB-5 Reform and Integrity Act of 2022 has no immediate impact on the staffing levels of the USCIS Immigrant Investor Program Office. Nevertheless, and despite the changes in the law and program, DHS has proposed fees in this rule based on the currently projected staffing needs to meet the adjudicative and administrative burden of the Immigrant Investor Program Office pending the fee study required by section 106(a) of the EB-5 Reform and Integrity Act of 2022.
Congress created the EB-5 program in 1990 to stimulate the U.S. economy through job creation and capital investment by immigrant investors. The EB-5 regional center program was later added in 1992 by the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993. Public Law 102-395, sec. 610, 106 Stat. 1828 (Oct. 6, 1992). As amended by the EB-5 Reform and Integrity Act of 2022, the EB-5 program makes approximately 10,000 visas available annually to foreign nationals (and their dependents) who invest at least $1,050,000 or a
USCIS is committed to strengthening the integrity and improving the overall administration of the EB-5 program. There is perennial and increasing media attention around the EB-5 Program, largely created around the exploitation of the program by abusive actors.
The proposed fee for Forms I-526, Immigrant Petition by Alien Entrepreneur, and Form I-526E, Immigrant Petition by Regional Center Investor, is $11,160, a $7,485 or 204 percent increase from the current $3,675 fee.
In the FY 2016/2017 fee rule, USCIS planned for 204 positions in IPO. In the FY 2022/2023 fee review, USCIS estimates an annual average requirement of 245 positions in IPO. As discussed earlier, projected volumes and completion rates are two of the main drivers in the fee review.
IPO staffing did not decrease from the levels estimated in the FY 2016/2017 fee rule despite lower workload volumes because the amount of work required per form increased (in other words, completion rates increased) and USCIS increased the number of other positions to strengthen the program integrity, resulting in increased staffing overall. In some cases, there was adjudicative work that was required even if there was no petition and associated filing fee filed. In addition to reviewing Form I-956G (formerly Form I-924A), USCIS also incurs costs associated with regional centers that fail to file Form I-956G. USCIS will sanction or terminate the designation of a regional center in the program if a regional center fails to submit information annually.
The reduced EB-5 workload volume contributes to significantly higher fee-paying unit costs in the ABC model because there are fewer paying customers from whom USCIS recovers the cost of processing the EB-5 workloads. As discussed in earlier in this preamble, DHS bases most proposed fees on fee-paying unit costs from the ABC model.
The proposed fees represent consistent application of the methodology discussed earlier in this preamble. In each case, the EB-5 proposed fees are based on the ABC model outputs. As explained earlier in the preamble, the fees for benefit requests with higher fee-paying volume or model outputs, such as the EB-5 forms, are set higher than the model outputs via the process called cost reallocation.
DHS revised the regulations governing genealogical research requests in the 2020 fee rule.
The FY 2022/2023 IEFA fee review has determined that USCIS needs additional funds for its Genealogy Search and Records Requests program. Therefore, DHS again proposes changes to the genealogy search and request program. These proposals will allow USCIS to send pre-existing digital records as part of a response to requestors who have filed Form G-1041, Genealogy Index Search Request, recover the costs of the genealogy program, and may otherwise help USCIS improve genealogy processes.
Congress provided specific authority for establishing USCIS genealogy program fees.
The USCIS genealogy program processes requests for historical records of deceased individuals.
In the FY 2016/2017 fee rule, USCIS adopted the first change to the genealogy search and records requests fees since they had been established.
After more than ten years of operating the genealogy program, DHS proposes to make several changes to the process. Ultimately, DHS expects these changes may allow USCIS to provide genealogy search results and historic records more quickly when pre-existing digital records exist.
First, DHS proposes to revise genealogy regulations to encourage requestors to submit the electronic versions of Form G-1041, Genealogy Index Search Request, and Form G-1041A, Genealogy Records Request, through the online portal at
Second, DHS proposes to change the search request process so that USCIS may provide requestors with pre-existing digital records, if they exist, in response to a Form G-1041, Genealogy Index Search Request. When requestors submit Form G-1041, Genealogy Index Search Request, on paper or electronically, USCIS searches for available records. If no record is found,
Lastly, DHS proposes to change the genealogy fees to reflect these operational changes and recover the full cost of providing genealogical services.
The proposed fees are based on results from the same ABC model used to calculate other immigration benefit request fees proposed in this NPRM. However, the proposed increase reflects changes in USCIS' methodology for estimating the costs of the genealogy program to improve the accuracy of its estimates. In the FY 2016/2017 fee rule, DHS estimated the costs of the genealogy program indirectly using projected volumes and other information.
In the 2020 fee rule, USCIS created a new activity for this workload, called Research Genealogy, in the ABC model.
USCIS used historical information to calculate completion rates for genealogy search and records requests. The completion rates allow for separate search and record request fees based on the average time to complete a request. As such, the proposed fees each represent the average staff time required to complete the request, similar to most other fees proposed in this rule. The completion rates in the 2020 fee rule documentation did not reflect the workload transfer. Updated data that reflects the change were used for this fee review and shows that completion rates decreased.
In addition to genealogy staffing, USCIS also incurs overhead costs associated with storing and managing genealogy records, including the cost of facilities and information technology. The projected costs included a portion of these overhead costs. The paper filing fee includes a portion of lockbox costs for genealogy requests filed on paper. Requests filed online do not include lockbox costs. USCIS estimates that over 90 percent of genealogy customers may file online.
The proposed fees for Form G-1041 are $100 for online and $120 for paper filing. The proposed fees for Form G-1041A are $240 for online and $260 for paper filing. See Table 23 for a summary of current and proposed genealogy fees. As explained earlier in this section, the proposal may allow some customers to file a single search request with a single fee and still receive the genealogy information that they requested. The proposal to include pre-existing digital records, if they exist, via email in response to the initial search request would also be more efficient than the current process, as described earlier in this section. USCIS estimates that genealogy fees may provide $1.9 million in revenue or approximately 0.04 percent of the USCIS total $5,163.7 million in revenue from the proposed fee structure.
USCIS allows individuals to request a Certificate of Non-Existence to document that USCIS has no records indicating that an individual became a naturalized citizen of the United States.
DHS proposes a fee of $330 for a request for a Certificate of Non-Existence. DHS calculated the fee to recover the estimated full cost of processing these requests. If finalized, the fee will be established in this rule and will be required for submission of Form G-1566 if it is approved before this rule takes effect. If the form is not approved before this rule is to take effect, the fee will be due with the submission of a non-form request until the form is prescribed as provided in 8 CFR 299.1. DHS proposes this fee consistent with the full cost recovery model used for this rule to generate revenue to mitigate the need for other fee payers to fund the costs of providing certificates.
The proposed fee for a request for a Certificate of Non-Existence is based on the same ABC model used to calculate the other proposed fees. USCIS created a new activity for this workload, called Certify Nonexistence, in the ABC model. Similar to the genealogy fee, previous fee reviews captured this work as part of the Records Management activity.
CBP shares the workload with USCIS in adjudicating the following immigration benefit requests:
• Form I-192, Application for Advance Permission to Enter as a Nonimmigrant.
• Form I-193, Application for Waiver of Passport and/or Visa.
• Form I-212, Application for Permission to Reapply for Admission into the U.S. after Deportation or Removal.
• Form I-824, Application for Action on an Approved Application or Petition.
USCIS and CBP each keep the revenue for the applications that they adjudicate. Tables 20 and 21 summarize CBP and USCIS information for these shared workloads. Table 24 provides revenue information for both DHS components. CBP provided revenue collections from FY 2014 to FY 2020 for these immigration benefit requests. Travel restrictions in FY 2020 likely lowered revenue collections. DHS believes that pre-pandemic data is likely to be more representative of reasonable expectations for FY 2022 and FY 2023 and so DHS decided to use FY 2019 amounts to reflect costs and revenue before the pandemic. USCIS divided the
DHS proposes to move to a single fee for each of these four immigration benefit requests. The proposed fee is the same whether CBP or USCIS adjudicates the application. To calculate the proposed fees for these four forms, DHS combined the estimated cost and volume information for these applications that both USCIS and CBP adjudicate. DHS adds together the fee-paying receipt and cost data for both components, as shown in Table 25, when calculating overall estimated costs and projected receipts. USCIS calculated proposed fees using the same methodology as other proposed fees and then added information from CBP into the USCIS fee schedule. CBP estimated the total cost for Forms I-192 and I-193 in FY 2019. As stated earlier, DHS used FY 2019 CBP data because it is likely more representative of a typical year than more recent data. CBP did not estimate the total cost of Forms I-212 or I-824 in FY 2019. Based on CBP revenue collections in Table 24, fee-paying receipts for Forms I-212 and I-824 appear to be very low. USCIS incorporated the total costs and derived fee-paying volume for the respective CBP workloads into the USCIS fee schedule and added the CBP estimated costs to the USCIS estimated total cost from the ABC model. USCIS added the CBP-derived fee-paying volume to the USCIS fee-paying volume estimates. We divided the combined total cost by the combined total fee-paying volumes for these immigration benefits. Table 25 details the estimated cost data, fee-paying receipts, fee-paying unit cost, and proposed fees for combined USCIS and CBP workloads.
The proposed fees represent single DHS fees for each of these workloads by combining the estimated costs and fee-paying volumes of USCIS and CBP. DHS believes that a single fee for each of these shared workloads will reduce confusion for individuals interacting with CBP and USCIS. DHS used the combined CBP and USCIS fee-paying unit cost to calculate the proposed fees. DHS proposes to limit the fee increases for Forms I-192 and I-193.
DHS proposes to adjust the fee for Form I-881, Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to Section 203 of Public Law 105-100 (NACARA)). The IEFA fees for this application have not changed since 2005. The proposed fee remains less than USCIS' estimated costs associated with adjudicating the application. Additionally, DHS proposes to combine the current multiple fees into a single Form I-881 fee because we have no data that supports limiting the amount charged to a family.
INS implemented two fees for this benefit request in 1999.
1. $285 for individuals,
2. $570 maximum for families, and
3. $165 at EOIR, whether an individual or family.
In FY 2020, Form I-881 fees generated $107,640 in IEFA revenue. Approximately 53 percent of applicants paid the $285 fee.
In prior fee rules, DHS has not changed the Form I-881 fees.
DHS proposes a single $340 fee for any Form I-881 filed with USCIS.
In section 402(g) of Div. O of the Consolidated Appropriations Act, 2016 (Pub. L.114-113)
DHS is proposing to codify a provision that will authorize it to adjust the fees prescribed in proposed 8 CFR 106.2 by the rate of inflation. Proposed 8 CFR 106.2(c). Before DHS removed it with the 2020 fee rule, 8 CFR 103.7(b)(3)(Oct. 1, 2020) provided that DHS may adjust USCIS immigration benefit fees annually by publication of an inflation adjustment notice in the
DHS has reconsidered the value of codifying an inflationary adjustment provision. Regardless of the CFO Act requirements, and although DHS has completed its biennial fee reviews as required, the time required to propose and finalize new full cost recovery fee schedules does not allow DHS to make timely adjustments to USCIS fees to keep up with the effects of changes in immigration laws, policy, or the costs of services. DHS has not calculated what the effects of an inflation adjustment of fees in intervening years between fee rules would have been. However, while we assume that inflationary adjustments would not have provided USCIS with sufficient revenue to fully cover costs, we think intermittent adjustments would have ameliorated the size of fee adjustments when they were made via rulemaking.
DHS proposes to use the Consumer Price Index for All Urban Consumers (CPI-U), as published by the U.S. Department of Labor, U.S. Bureau of Labor Statistics, as the inflation index for these fee adjustments.
The impacts of such an adjustment would be analyzed in a future rule should DHS decide to use this proposed authority. In such a case, the inflation adjusted fees may be higher or lower than proposed here. For example and as a point of comparison only, if DHS adjusted the Form N-400 and biometric services fee by inflation as of March 22, 2022, then the inflation-adjusted fees would be at least $865, $140 more than the current fees for Form N-400 of $725 ($640 + $85), and $105 more than the proposed N-400 fee of $760, but less than the fee set in the 2020 fee rule of $1,170.
DHS proposes several technical or procedural changes. This rule proposes to move the fee regulations for USCIS to a separate part of chapter I of title 8 of the CFR. It moves them from 8 CFR part 103 to 8 CFR part 106 to reduce the length and density of part 103 as well as to make it easier to locate specific fee provisions. In addition to the renumbering and redesignating of paragraphs, this proposed rule has reorganized and reworded some sections to improve readability. However, as noted earlier in this preamble, DHS is proposing to adopt the changes made by the 2020 fee rule as proposed for revision or republication in this rule.
DHS also proposes to republish the amended title of 8 CFR part 103 to make it more descriptive of its contents.
In addition, DHS is proposing and republishing a severability provision in new 8 CFR part 106. As stated repeatedly in this preamble, the fees DHS is proposing in this rule are essential to USCIS being able to fund its operations without further deterioration of its services. While all of the proposed fees and other changes in this rule are needed to ensure adequate resources, partially achieving the objectives of this rule is preferable to achieving none of them. DHS believes that some of the provisions of each new part can function sensibly independent of other provisions. As explained in this preamble, ABC and the full cost recovery fee model that DHS uses to calculate the fees in this rule results in most of the fees being dependent on policy decisions that affect the level of other fees. For example, when DHS shifts the cost of benefit request fees due to policy considerations, exempts requests from fees, or if fees are capped by law, most other fees must/then increase to compensate to recover full cost. On the other hand, certain fees, like the Asylum Program Fee and genealogy fees, could be removed entirely without affecting all other fees generally, although they would reduce USCIS projected revenue or carryover balances. For example, absent the Asylum Program Fee or appropriations, USCIS may continue to implement the Asylum Processing IFR, perhaps at a reduced level. Such a funding decision may be similar to when USCIS anticipated appropriations to fund RAIO, SAVE, and the Office of Citizenship when it finalized fees in the FY 2010/2011 fee rule.
At current fee levels, projected USCIS costs for FY 2022 and FY 2023 exceed projected revenue by an average of $1,262.3 million each year.
After resource costs are identified, the ABC model distributes them to USCIS' primary processing activities. Table 27 outlines total IEFA costs by activity. See the supporting documentation in the docket of this rulemaking for more information on the ABC model, activities, and results described in this section. While not an activity, the table lists the Asylum Processing IFR as a separate row to be transparent.
Next, the ABC model distributes activity costs to immigration benefit requests. Each total cost result is based on the resources, activities, and various drivers which contribute to the estimated cost of its completion. The ABC model estimates total cost before calculating unit costs. For total cost by activity as unit costs, see Appendix VIII of the supporting documentation included in this docket. Table 28 summarizes total cost estimates by immigration benefit request based on the ABC model results. As explained earlier in the preamble, the ABC model excludes costs for TPS and DACA. The table includes benefit requests without fees. This table includes USCIS costs in the 2-year average for FY 2022/2023. It also includes CBP costs; as such, the total in Table 28 is higher than in Table 27.
Table 29 depicts the current and proposed USCIS fees for immigration benefit requests and biometric services. Current USCIS fees are available to the public as part of the current Form G-1055, Fee Schedule, available at
For
DHS notes that the success of this rulemaking in funding USCIS services depends on the fee-paying request filing volume meeting or exceeding the projections used in the fee model as described in section V.B.1.b of this preamble and the supporting documents. Many commenters on the FY 2020 Fee Rule stated that DHS was increasing USCIS fees to deter demand for immigration benefits and to discourage immigration in general. As stated earlier with regard to E.O. 14012, DHS is committed to encouraging access to immigration benefits. DHS appreciates the concerns of these earlier commenters, and sincerely hopes that this rulemaking does not discourage or impede individuals from obtaining the benefits for which they are eligible. This is true not only as a policy matter but as a practical necessity. If a USCIS fee rule were to cause a significant reduction in the demand for USCIS services in its administration of the legal immigration system, it would not meet DHS objectives and would cause USCIS serious fiscal problems. A large reduction in the number of immigration benefit filings on USCIS caused by the COVID-19 pandemic had enormous detrimental effects on the fiscal health of USCIS. Thus, taking any actions that could result in fewer requests being filed would be self-defeating to the purposes of a rule that adjusts USCIS fees.
DHS also acknowledges that USCIS fees and fee policies affect the operations of organizations that assist applicants and petitioners with the preparation and submission of USCIS benefit requests. Assistance organizations generally do not pay the fees that would be established by this rule (unless they independently apply to hire a foreign national employee), and aside from those organizations to which USCIS provides citizenship and integration grants, DHS has no role in regulating the functions of such groups. Nonetheless, this rule could indirectly affect the population and mix of the people who will want to avail themselves of the services of such organizations; thus, these groups may choose to obtain additional funding or alter their programs. As discussed earlier in this proposed rule, absent a fee increase, USCIS anticipates having insufficient resources to process its projected workload. Providing USCIS with the funding necessary to maintain adequate services would benefit our customers and stakeholders with more timely processing. After considering the impacts on the affected groups and the objectives of this proposed rule, DHS has decided to move forward with this rulemaking despite such groups choosing to adjust their business model to the proposed fees and policies.
As a fee-funded agency, USCIS was directly and adversely affected by the global pandemic.
USCIS is pursuing efficiencies that will streamline the adjudication of immigration benefits along with increasing adjudication capacity without adding additional costs. It is important to note that these efficiencies are not included in this fee rule; however, they will be reflected in future fee rules. USCIS expects that future customers will be able to see the benefits in more quickly adjudicated cases. DHS plans to address the challenge of the large volume of pending cases and the associated growth in processing times by focusing the efforts of the USCIS workforce to process pending cases and by using policy and operational improvements to reduce both the number of pending cases and overall processing times.
The USCIS Stabilization Act requires a five-year plan to (1) establish electronic filing procedures for all applications and petitions for immigration benefits, (2) accept electronic payment of fees at all filing locations, (3) issue correspondence, including decisions, requests for evidence, and notices of intent to deny, to immigration benefit requestors electronically, and (4) improve processing times for all immigration and naturalization benefit requests.
There are multiple factors that contribute to calculating the number of staff needed to adjudicate projected receipt volume. One such factor is the utilization rate, the amount of time throughout a fiscal year that an officer spends doing core adjudicative work. Further, USCIS has broken down utilization rates to “manageable” and “un-manageable” time; un-manageable time includes weekends, Federal holidays, sick and annual leave, while manageable time includes meetings, reporting, training, and other non-adjudicative work an officer is required to complete. Since FY 2015, USCIS has seen utilization rates decrease to below 60 percent. Beginning in FY 2022, USCIS has set a target utilization rate of 60 percent. While this certainly provides for more adjudications without the need for additional staff, it is not factored into this rule because of a nearly year-long hiring freeze at USCIS, which ended in April of 2021. USCIS is working to staff back up. Given the efforts within USCIS to staff up for current vacancies, it is imprudent to account for efficiencies that USCIS may not realize, because a goal of this rule is to achieve full cost recovery. However, USCIS expects to achieve a 60 percent utilization rate as it reduces vacancies by hiring and training the new staff.
While the volume of immigration benefit requests that USCIS receives has increased substantially in recent years, DHS recognizes that USCIS fees have increased at a higher rate than have the annual number of workload receipts that USCIS receives. In the short run, absent funding from other sources such as Congressional appropriations, USCIS must obtain the fees that will result from this proposed rule to maintain an acceptable level of service. In the longer term, USCIS is implementing several measures that are intended to assist in increasing efficiency and reducing costs.
USCIS has examined our processes and begun making changes to improve efficiency and allow officers to devote more time to work that requires their expertise and provides the greatest value to the public. For example, USCIS has taken the following actions:
• Made interviews more efficient and effective by ensuring we are interviewing cases only where an interview will add appreciative value to the adjudication, and relying on officer judgment to decide when an interview is necessary to determine eligibility and admissibility and should not be waived.
• Eliminated the need for individuals who have applied for a change of status (COS) to F-1 student to apply to change or extend their nonimmigrant status while their initial F-1 COS application is pending.
• Suspended the biometrics submission requirement for certain applicants filing Form I-539, Application To Extend/Change Nonimmigrant Status, requesting an extension of stay in or change of status to H-4, L-2, and E nonimmigrant status.
• Allowed fingerprint and photograph reuse while ASC services and/or operations were at reduced capacity as a result of the COVID-19 pandemic and when there was no need for an in-person identity verification at an ASC.
• Extended the time that receipt notices can be used to show evidence of status from 18 months to 24 months for petitioners who properly file Form I-751, Petition to Remove Conditions on Residence, or Form I-829, Petition by
• Returned to adjudicating asylum workload on a last-in-first-out basis.
In addition, USCIS has transitioned non-adjudicative work from adjudicators to other staff, has centralized the delivery of information services through the policies and processes in place to allow USCIS Contact Center, and is leveraging electronic processing and automation. Applicants, petitioners, and requestors also can track the status of their immigration benefit requests online by using their receipt number or by creating an online account at
USCIS expects to improve the user experience as it continues to transition to online filing and electronic processing of immigration applications and petitions. With a new person-centric electronic case processing environment, USCIS will possess the data necessary to provide near-real-time processing updates on the status of a case and the time that has elapsed between actions for each individual case. This provides greater transparency to the public on how long it will take to process each case effective as it moves from stage to stage (for example, biometrics submission, interview, decision). In addition, USCIS has adjusted how it calculates and posts processing time information to improve the timeliness of such postings, and to achieve greater transparency. USCIS will continue to provide processing times in an accurate and transparent fashion.
Finally, as discussed in section V.A.2.b., DHS proposes to fund with IEFA non-premium funds 1,127 staff positions currently supported by premium processing funds. Realigning the cost of these staff to non-premium funds will free up an equivalent amount of premium processing funding for use by USCIS as it pursues additional investments in its online filing and electronic processing capabilities. Furthermore, these premium processing funds also may fund additional staff for backlog reduction efforts, which may result in reduced backlog sizes and decreased processing times.
Executive Order (E.O.) 12866 and E.O. 13563 direct agencies to assess the costs and benefits of available alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, and public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Office of Information and Regulatory Affairs (OIRA), within the Office of Management and Budget (OMB), has designated this proposed rule a significant regulatory action that is economically significant under section 3(f)(1) of E.O. 12866. Accordingly, OIRA has reviewed this regulation.
The fee adjustments, as well as changes to the forms and fee structures used by USCIS, would result in net costs, benefits, and transfer payments. For the 10-year period of analysis of the rule (FY 2023 through FY 2032), DHS estimates the annualized net costs to the public would be $532,379,138 discounted at 3- and 7-percent. Estimated total net costs over 10 years would be $4,541,302,033 discounted at 3-percent and $3,739,208,286 discounted at 7-percent.
The proposed changes in this rule would also provide several benefits to DHS and applicants/petitioners seeking immigration benefits. For the Government, the primary benefits include reduced administrative burdens and fee processing errors, increased efficiency in the adjudicative process, and the ability to better assess the cost of providing services, which allows for better aligned fees in future regulations. The primary benefits to the applicants/petitioners include simplification of the fee payment process for some forms, elimination of the $30 returned check fee, USCIS' expansion of the electronic filing system to include more forms, and for many applicants, limited fee increases and additional fee exemptions to reduce fee burdens.
Fee increases and other changes in this proposed rule would result in annualized transfer payments from applicants/petitioners to USCIS of approximately $1,612,133,742 discounted at both 3-percent and 7-percent. The total 10-year transfer payments from applicants/petitioners to USCIS of approximately $13,751,827,819 at a 3-percent discount rate and $11,322,952,792 at a 7-percent discount rate.
Fee reductions and exemptions in this proposed rule would result in annualized transfer payments from USCIS to applicants/petitioners of approximately $116,372,429 discounted at both 3-percent and 7-percent. The total 10-year transfer payments from USCIS to applicants/petitioners would be $992,680,424 at a 3-percent discount rate and $817,351,244 at a 7-percent discount rate.
The annualized transfer payments from the Department of Defense (DoD) to USCIS would be approximately $222,145 at 3- and 7-percent discount rates. The total 10-year transfer payments from DoD to USCIS would be $1,894,942 at a 3-percent discount rate and $1,560,254 at a 7-percent discount rate. These costs, transfers, and cost savings (qualitative benefits) are briefly described below in Table 30, and in more detail in a separate Regulatory Impact Analysis.
DHS has
The Regulatory Flexibility Act of 1980 (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires Federal agencies to consider the potential impact of regulations on small businesses, small governmental jurisdictions, and small organizations during the development of their rules. 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. DHS nonetheless welcomes comments regarding potential impacts on small entities, which DHS may consider as appropriate in a final rule.
In addition, the courts have held that the RFA requires an agency to perform an initial regulatory flexibility analysis (IRFA) of small entity impacts only when a rule directly regulates small entities. Below is a summary of the Small Entity Analysis (SEA). The complete detailed SEA
Individuals, rather than small entities, submit the majority of immigration and naturalization benefit applications and petitions, but this proposed rule would affect entities that file and pay fees for certain immigration benefit requests. Consequently, there are six categories of USCIS benefits that are subject to a small entity analysis for this proposed rule: Petition for a Nonimmigrant
DHS does not believe that the increase in fees proposed in this rule would have a significant economic impact on a substantial number of small entities that file I-140, I-910, or I-360. DHS does not have sufficient data on the revenue collected through administrative fees by regional centers to definitively determine the economic impact on small entities that may file Form I-956 or Form I-956G.
DHS also does not have sufficient data on the requestors that file genealogy forms, Forms G-1041 and G-1041A, to determine whether such filings were made by entities or individuals and, thus, is unable to determine if the fee increase for genealogy searches is likely to have a significant economic impact on a substantial number of small entities.
DHS is publishing this IRFA to aid the public in commenting on the small entity impact of its proposed adjustment to the USCIS fee schedule. In particular, DHS requests information and data that would help to further assess the impact of the fee changes on the genealogy forms or the regional center forms on small entities.
DHS proposes to adjust fees USCIS charges for certain immigration and naturalization benefits. DHS has determined that current fees would not recover the full costs of services provided. Adjustment to the fee schedule is necessary to recover costs and maintain adequate service.
DHS's objectives and legal authority for this proposed rule are discussed in the preamble.
As noted above, below is a summary of the Small Entity Analysis (SEA). The complete detailed SEA is available in the rulemaking docket at
Entities affected by this proposed rule are those that file and pay fees for certain immigration benefit applications and petitions on behalf of a foreign national. These applications include Form I-129, Petition for a Nonimmigrant Worker; Form I-140, Immigrant Petition for an Alien Worker; Form I-910, Civil Surgeon Designation; Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant; Genealogy Forms G-1041 and G-1041A, Index Search and Records Requests; Form I-956 (formerly Form I-924), Application for Regional Center Designation Under the EB-5 Regional Pilot Program, and Form I-956G (formerly Form I-924A), Regional Center Annual Statement. Annual numeric estimates of the small entities impacted by this fee increase total (in parentheses): Form I-129 (75,269 entities), Form I-140 (17,417 entities), Form I-910 (382 entities), and Form I-360 (465 entities).
This rule applies to small entities, including businesses, non-profit organizations, and governmental jurisdictions filing for the above benefits. Forms I-129 and I-140 would see a number of industry clusters impacted by this rule (see Appendix A of the Small Entity Analysis (SEA) for a list of impacted industry codes for Forms I-129, I-140, I-910, and I-360). The fee for civil surgeon designation would apply to physicians requesting such designation. The fee for Amerasian, widow(er), or special immigrants would apply to any entity petitioning on behalf of a religious worker. Finally, DHS is creating these new forms as stated above, as part of the EB-5 Reform and Integrity Act of 2022. Since Form I-956/I-956G will be new forms and historical data does not exist; therefore, DHS will use historical data of the previous Form I-924, Application for Regional Center Designation Under the Immigrant Investor Program and Form I-924A, Annual Certification of Regional Center as a proxy for the analysis. The Form I-956 would impact any entity seeking designation as a regional center under the Immigrant Investor Program or filing an amendment to an approved regional center application. Captured in the dataset for Form I-956 is also Form I-956G, which regional centers must file annually to establish continued eligibility for regional center designation for each fiscal year.
DHS does not have sufficient data on the requestors for the genealogy forms, Forms G-1041 and G-1041A, to determine if entities or individuals submitted these requests. DHS has previously determined that requests for historical records are usually made by individuals.
In this proposed rule, DHS proposes a new Asylum Program Fee of $600 be paid by any employers who file either a Form I-129, Petition for a Nonimmigrant Worker, or Form I-140, Immigrant Petition for Alien Worker. Proposed 8 CFR 106.2(c)(13). DHS has determined that the Asylum Program
DHS is not separating Form I-129 into multiple forms in this proposed rule as it did in the 2020 fee rule, but it is taking that action separately as a revision of the currently approved Form I-129 information collection under the Paperwork Reduction Act. In this proposed rule, DHS proposes different fees for Form I-129 based on the nonimmigrant classification being requested in the petition, the number of beneficiaries on the petition, and, in some cases, according to whether the petition includes named or unnamed beneficiaries. The proposed fees are calculated to better reflect the costs associated with processing the benefit requests for the various categories of nonimmigrant worker. The current base filing fee for Form I-129 is $460. DHS proposes separate H-2A and H-2B fees for petitions with named workers and unnamed workers.
In Table 32a, as stated above, the Asylum Program Fee of $600 would be included with each Form 1-129 Petition for a Nonimmigrant Worker classification. It would apply to all fee-paying receipts for Forms I-129, I-129CW, and I-140. For example, it would apply to all initial petitions, changes of status, and extensions of stay that use Form I-129.
For petitioners filing Form I-129, DHS proposes increasing the fee filed for all worker types. The fee adjustments and percentage increases are summarized, shown in Table 32b. For petitioners filing Form I-129, DHS proposes increasing the fee filed for all worker types. The fee adjustments and percentage increases are summarized below. H-1B classification cap-subject petitions will include a $215 registration fee, an increase of $205 from the original $10 fee. Non-cap subject petitions (
To calculate
Using a 12-month period of data on the number of Form I-129 petitions filed from October 1, 2019, through September 31, 2020, DHS collected internal data for each filing organization including the name, Employer Identification Number (EIN), city, state, zip code, and number/type of filings. Each entity may make multiple filings. For instance, there were receipts for 553,889 Form I-129 petitions, but only 86,715 unique entities that filed those petitions. Since the filing statistics do not contain information such as the revenue of the business, DHS used third-party sources of data to collect this information. DHS used a business provider database—Data Axle—as well as three open-access databases—Manta, Cortera, and Guidestar—to help determine an organization's small entity status and then applied Small Business Administration (SBA) size standards to the entities under examination.
The method DHS used to conduct the SEA was based on a representative sample of the impacted population with respect to each form. To identify a representative sample, DHS used a standard statistical formula to determine a minimum sample size of 384 entities, which included using a 95 percent confidence level and a 5 percent confidence interval for a population of 86,715 unique entities filing Form I-129 petitions. Based on previous experience conducting small entity analyses, DHS expects to find 40 to 50 percent of the filing organizations in the online subscription and public databases. Accordingly, DHS selected a sample size that was approximately 69 percent larger than the necessary minimum to allow for non-matches (filing entities that could not be found in any of the four databases). Therefore, DHS conducted searches on 650 randomly selected entities from a population of 86,715 unique entities that filed Form I-129 petitions.
Of the 650 searches for small entities that filed Form I-129 petitions, 439 searches returned a successful match of a filing entity's name in one of the databases and 211 searches did not match a filing entity. Based on previous experience conducting regulatory flexibility analyses, DHS assumes filing entities not found in the online database are likely to be small entities. As a result, to prevent underestimating the number of small entities this rule would affect, DHS conservatively considers all of the non-matched entities as small entities for the purpose of this analysis. Among the 439 matches for Form I-129, DHS determined 353 to be small entities based on revenue or employee count and according to their assigned North American Industry Classification System (NAICS) code. Therefore, DHS was able to classify 564 of 650 entities as small entities that filed Form I-129 petitions, including combined non-matches (211), matches missing data (0), and small entity matches (353). Using the online databases mentioned above (Data Axle, Manta, Cortera, and Guidestar), the 0 matches missing data found in the databases lacked applicable revenue or employee count data.
DHS determined that 564 of 650 (86.8 percent) of the entities filing Form I-129 petitions were small entities. Furthermore, DHS determined that 353 of the 650 entities searched were small entities based on sales revenue or employee data, which were needed to estimate the economic impact of the proposed rule. Since these 353 small entities were a subset of the random sample of 650 entity searches, they were considered statistically significant in the context of this research. To calculate the economic impact of this rule, DHS estimated the total costs associated with the proposed fee increase for each entity and divided that amount by the sales revenue of that entity.
Among the 353 matched small entities, 289 small entities had reported revenue data, 90.4 percent experienced
With an aggregated total of 564 out of a sample size of 650, DHS inferred that a majority, or 86.8 percent, of the entities filing Form I-129 petitions were small entities. Small entities filing petitions could be for-profit businesses or not-for-profit entities. To understand the extent to which not-for-profits were included in the samples selected for each form DHS categorized entities as for-profit or not-for-profit. The business data provider databases do not distinguish if entities are for-profit or not-for-profit, so DHS used the assumption that entities with NAICS codes 712 (Museums, Historical Sites, and Similar Institutions), 813 (Religious, Grantmaking, Civic, Professional, and Similar Organizations), and 6241 (Family Social Services) were not-for-profit. The NAICS code 611 (Educational Services) may have for-profit entities. Most of the sample consisted of small businesses when looked at by type of small entity. There are no small governmental jurisdictions in the sample and 38 small not-for-profits.
As explained in section X.B.1., Petition for a Nonimmigrant Worker, Form I-129 Funding the Asylum Program with Employer Form I-129 by Visa Classification Petition Fees, DHS proposes a new Asylum Program Fee of $600 to be paid by any Form I-140, Immigrant Petition for Alien Worker. This Asylum Program Fee adds a fee for Form I-140 petitioners of $600 while maintaining the fees other immigration benefit requestors that this rule proposes lower than would be proposed if the costs were spread among all other fee payers. For example, by charging the Asylum Program Fee to I-140 petitioners as well as the I-129 petitioners, it helps recover the cost of the Asylum Program work while minimizing fee increases on forms that do not recover full cost (Forms N-400, I-600, I-800, etc.), or without adding a fee to forms that currently have none (Forms I-589, I-590, I-914, I-918, etc.). If Forms I-129 and I-140 recover more of those costs, then that means other forms need not recover as much. This results in lower proposed fees for certain forms, and others that recover more than full cost in this proposal. It would apply to all fee-paying receipts for Form I-140 and Form I-129.
DHS proposes to increase the fee to file Immigrant Petition for an Alien Worker, Form I-140, from $700 to $715, an increase of $15 (2 percent). The total proposed fee would include the $600 Asylum Program Fee for a total of $1,315, an overall increase of $615 (88 percent) per petition. Using a 12-month period of data on the number of Form I-140 petitions filed from October 1, 2019, through September 31, 2020, DHS collected internal data similar to that of Form I-129. The total number of Form I-140 petitions was 129,531, with 25,279 unique entities that filed petitions. DHS used the same databases previously mentioned to search for information on revenue and employee count.
DHS used the same method as with Form I-129 to conduct the SEA based on a representative sample of the impacted population. To identify a representative sample, DHS used a standard statistical formula to determine a minimum sample size of 383 entities, which included using a 95 percent confidence level and a 5 percent confidence interval on a population of 25,279 unique entities for Form I-140 petitions. Based on previous experience conducting small entity analyses, DHS expected to find 40 to 50 percent of the filing organizations in the online subscription and public databases. Accordingly, DHS selected a sample size that was approximately 44 percent larger than the necessary minimum to allow for non-matches (filing entities that could not be found in any of the four databases). Therefore, DHS conducted searches on 550 randomly selected entities from a population of 25,279 unique entities that filed Form I-140 petitions.
Of the 550 searches for small entities that filed Form I-140 petitions, 464 searches successfully matched the name of the filing entity to names in the databases and 86 searches did not match the name of a filing entity. Based on previous experience conducting regulatory flexibility analyses, DHS assumes filing entities not found in the online databases are likely to be small entities. As a result, in order to prevent underestimating the number of small entities this rule would affect, DHS conservatively considers all of the non-matched entities as small entities for the purpose of this analysis. Among the 464 matches for Form I-140, DHS determined 292 to be small entities based on revenue or employee count and according to their NAICS code. Therefore, DHS was able to classify 379 of 550 entities as small entities that filed Form I-140 petitions, including combined non-matches (86), matches missing data (1), and small entity matches (292). Using the online databases mentioned above (Data Axle, Manta, Cortera, and Guidestar), one matched entity found in the databases lacked applicable revenue statistics.
DHS determined that 379 out of 550 (68.9 percent) entities filing Form I-140 petitions were small entities. Furthermore, DHS determined that 292 of the 550 searched were small entities based on sales revenue data, which were needed to estimate the economic impact of the proposed rule. Since these 292 were a small entity subset of the random sample of 550 entity searches, they were considered statistically significant in the context of this research based on sales revenue information. Similar to Form I-129, DHS calculated the economic impact of this rule on entities that filed Form I-140 by estimating the total costs associated with the proposed fee increase for each entity and divided that amount by the sales revenue of that entity.
Among the 292 small entities with reported revenue data, 98 percent experienced an economic impact of less than 1 percent, with the exception of 2 percent of the small entities. Using the above methodology, the greatest economic impact proposed by this fee change was 2.71 percent and the smallest was 0.006 percent per entity. Because of the fee increase, these small entities would see a cost increase per application in filing fees based on petitions. The average impact on all 292 small entities with revenue data was 0.16 percent.
With an aggregated total of 379 out of a sample size of 550, DHS inferred that
In addition to the individual Form I-129 and Form I-140 analyses, USCIS analyzed any cumulative impacts of these form types to determine if there were any impacts to small entities when analyzed together. Based on the samples in the individual analyses, USCIS isolated those entities that overlapped in both samples of Forms I-129 and I-140 by EIN and revenue. Only 1 entity had an EIN that overlapped in both samples; this was a large entity that submitted 3 Form I-129 petitions and 1 Form I-140 petition. Due to little overlap in entities in the samples, and the relatively minor impacts on revenue of fee increases of Forms I-129 and I-140, USCIS does not expect the combined impact of these 2 forms to be an economically significant burden on a number of small entities.
DHS proposes to increase the fee for Civil Surgeon Designations, Form I-910, from $785 to $1,230, an increase of $445 (57 percent). To calculate the economic impact of this increase, USCIS estimated the total costs associated with the fee increase for each entity and divided that amount by the sales revenue of that entity.
Using the same methodology as for the Forms I-129 and I-140, USCIS conducted the SEA based on a representative sample of the impacted population. To identify a representative sample, DHS used a standard statistical formula to determine a minimum sample size of 203 entities, which included using a 95 percent confidence level and a 5 percent confidence interval on a population of 428 unique entities for Form I-910. USCIS conducted searches on 300 randomly selected entities from a population of 428 unique entities for Form I-910 petitions, a sample size approximately 48-percent larger than the minimum necessary.
Of the 300 searches for small entities that filed Form I-910 petitions, 244 searches successfully matched the name of the filing entity to names in the databases and 56 searches did not match the name of a filing entity. DHS assumes filing entities not found in the online databases are likely to be small entities. DHS also considers all of the non-matched entities as small entities for the purpose of this analysis. Among the 244 matches for Form I-910, DHS determined 207 to be small entities based on their revenue or employee count and according to their NAICS code. Therefore, DHS was able to classify 268 of 300 entities as small entities that filed Form I-910 petitions, including combined non-matches (5), matches missing data (56), and small entity matches (207). DHS also used the online databases mentioned above (Data Axle, Manta, Cortera, and Guidestar), and the five matches missing data that were found in the databases lacked revenue data and associated employment threshold.
DHS determined that 268 out of 300 (89.3 percent) entities filing Form I-910 applications were small entities. Furthermore, DHS determined that 207 of the 300 entities searched were small entities based on sales revenue data, which were needed to estimate the economic impact of the proposed rule. Since these 207 were a small entity subset of the random sample of 300 entity searches, they were considered statistically significant in the context of this research, based on sales revenue information.
Similar to the Forms I-129 and I-140, DHS calculated the economic impact of this rule on entities that filed Form I-910 by estimating the total impact associated with the proposed fee increase for each entity and divided that amount by the sales revenue of that entity. Among the 207 small entities with reported revenue data, 97.6 percent experienced an economic impact considerably less than 1 percent, with the exception of 2.4 percent of the small entities. The greatest economic impact imposed by this proposed fee change was 1.85 percent and the smallest was 0.004 percent per entity. The average impact on all 207 small entities with revenue data was 0.15 percent. The increased fee will increase individual applicants' cost by $445.
With an aggregated total of 268 out of a sample size of 300, DHS inferred that a majority, or 89.3 percent, of the entities filing Form I-910 petitions were small entities. Small entities filing petitions could be for-profit businesses or not-for-profit entities. To understand the extent to which not-for-profits were included in the samples selected for each form DHS categorized entities as for-profit or not-for-profit. The business data provider databases do not distinguish if entities are for-profit or not-for-profit, so DHS used the assumption that entities with NAICS codes 712 (Museums, Historical Sites, and Similar Institutions), 813 (Religious, Grantmaking, Civic, Professional, and Similar Organizations), and 6241 (Family Social Services) were not-for-profit. The NAICS code 611 (Educational Services) may have for-profit entities. The sample of Form I-910 consisted mainly of small businesses, with no small governmental jurisdictions in the sample and 5 small not-for-profits.
DHS proposes to increase the fee for entities petitioning on behalf of foreign religious workers who file using Form I-360 from $435 to $515, an increase of $80 (18 percent), including entities who petition on behalf of foreign religious workers. To calculate the impact of the increase, DHS estimated the total costs
Using a 12-month period of data on the number of Form I-360 petitions filed from October 1, 2019, to September 31, 2020, DHS collected internal data on filings of Form I-360 for religious workers. The total number of Form I-360 petitions was 2,388, with 489 unique entities that filed petitions. DHS used the same databases mentioned previously to search for information on revenue and employee count.
DHS used the same method as with Forms I-129 and I-140 to conduct the SEA based on a representative sample of the impacted population. To identify a representative sample, DHS used a standard statistical formula to determine a minimum sample size of 215 entities, which included using a 95 percent confidence level and a 5 percent confidence interval on a population of 489 unique entities for Form I-360 petitions. To account for missing organizations in the online subscription and public databases, DHS selected a sample size that was approximately 95 percent larger than the necessary minimum to allow for non-matches (filing entities that could not be found in any of the four databases). Therefore, DHS conducted searches on 420 randomly selected entities from a population of 489 unique entities that filed Form I-360 petitions.
Of the 420 searches for small entities that filed Form I-360 petitions, 248 searches successfully matched the name of the filing entity to names in the databases and 172 searches did not match the name of a filing entity in the databases. DHS assumes that filing entities not found in the online databases are likely to be small entities. As a result, to prevent underestimating the number of small entities this rule would affect, DHS conservatively considers all of the non-matched entities as small entities for the purpose of this analysis. Among the 248 matches for Form I-360, DHS determined 208 to be small entities based on revenue or employee count and according to their NAICS code. Therefore, DHS was able to classify 399 of 420 entities as small entities that filed Form I-360 petitions, including combined non-matches (172), matches missing data (19), and small entity matches (208). DHS also used the online databases mentioned above (Data Axle, Manta, Cortera, and Guidestar), and the 19 matches missing data that were found in the databases lacked revenue or employee count data.
DHS determined that 399 out of 420 (95.0 percent) entities filing Form I-360 petitions were small entities. Furthermore, DHS determined that 208 of the 420 searched were small entities based on sales revenue data, which were needed to estimate the economic impact of the proposed rule. Since these 208 small entities were a subset of the random sample of 420 entity searches, they were considered statistically significant in the context of this research.
Similar to other forms analyzed in this IRFA, DHS calculated the economic impact of this rule on entities that filed Form I-360 on behalf of religious workers by estimating the total costs associated with the proposed fee increase for each entity. Among the 208 small entities with reported revenue data, 99.5 percent experienced an economic impact of less than 1 percent, with the exception of 0.5 percent of the small entities. The greatest economic impact imposed by this proposed fee change was 4.11 percent and the smallest was 0.0008 percent per entity. The average impact on all 208 small entities with revenue data was 0.08 percent.
DHS also analyzed the proposed costs of this rule on the petitioning entities relative to the costs of the typical employee's salary. Guidelines suggested by the SBA's Office of Advocacy indicate that the impact of a rule could be significant if the cost of the regulation exceeds 5 percent of the labor costs of the entities in the sector.
With an aggregated total of 399 out of a sample size of 420, DHS inferred that a large majority, or 95.0 percent, of the entities filing Form I-360 petitions were small entities. Small entities filing petitions could be for-profit businesses or not-for-profit entities. To understand the extent to which not-for-profits were included in the samples selected for each form DHS categorized entities as for-profit or not-for-profit. The business data provider databases do not distinguish if entities are for-profit or not-for-profit, so DHS used the assumption that entities with NAICS codes 712 (Museums, Historical Sites, and Similar Institutions), 813 (Religious, Grantmaking, Civic, Professional, and Similar Organizations), and 6241 (Family Social Services) were not-for-profit. The NAICS code 611 (Educational Services) may have for-profit entities. The sample of Form I-360 consists of a majority not-for-profit entities, primarily composed of religious institutions. There were no small governmental jurisdictions in the sample and 221 small not-for-profits.
In this proposed rule, DHS establishes an increase in the fee for the Genealogy Index Search Request, Form G-1041, from $65 to $120, an increase of $55 (85 percent) for those who mail in this request on paper. This proposed rule increases the fee for requestors who use the online electronic Form G-1041 version from the current $65 to $100, an increase of $35 (54 percent).
In this proposed rule, DHS establishes a fee for Form G-1041A that would increase from $65 to $260, an increase of $195 (300 percent) for those who mail
Finally, DHS is proposing to charge a fee for requests for a Certificate of Non-Existence. Currently, USCIS allows individuals to request a Certificate of Non-Existence to document that USCIS has no records indicating that an individual became a naturalized citizen of the United States. This service is often used by individuals gathering genealogical records to claim the citizenship of another nation. USCIS operates the Certificate of Non-Existence request process informally and at no cost to individuals while absorbing the costs to provide this service.
The population affected by this provision includes individuals who use Form G-1041 to request a search of USCIS historical indices and individuals who use Form G-1041A to obtain copies of USCIS historical records found through an index request. The affected population also includes individuals who request a Certificate of Non-Existence to document that USCIS has no records indicating that an individual became a naturalized citizen of the United States. Based on the DHS records, Table 33 shows the estimated number of genealogy index search requests and historical records requests that were submitted to USCIS using Forms G-1041 and G-1041A for FY 2016 through FY 2020. DHS estimates that an annual average of 5,250 Form G-1041 index search requests and 3,352 Form G-1041A records requests were received during that time. For both forms, more than 90 percent of the requests were submitted electronically.
Table 33 depicts the FY 2016 through FY 2020 filing receipts of the certificate of non-existence. DHS bases the estimate for the Form G-1566 on these receipts and estimates that the average annual receipts for Form G-1566 would be approximately 1,266.
DHS has previously determined that requests for historical records are usually made by individuals.
For this proposed rule, DHS is expanding the use of electronic genealogy requests to encourage requestors to use the electronic versions of Form G-1041 and Form G-1041A. DHS is also changing the search request process so that USCIS may provide requestors with electronic records, if they exist, in response to the initial index request. These changes may reduce the time it takes to request and receive genealogy records, and, in some cases, it will eliminate the need to make multiple search requests and submit separate fees. Moreover, DHS notes that providing digital records in response to a Form G-1041 request may reduce the number of Form G-1041A requests that
Congress created the EB-5 program in 1990 to stimulate the U.S. economy through job creation and capital investment by immigrant investors. The EB-5 regional center program was later added in 1992 by the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993. Public Law 102-395, sec. 610, 106 Stat 1828 (Oct. 6, 1992). As amended, the EB-5 program makes approximately 10,000 visas available annually to foreign nationals (and their dependents) who invest at least $1,050,00 or a discounted amount of $800,000 if the investment is in a targeted employment area (TEA) (which includes certain rural areas and areas of high unemployment) or infrastructure project in a U.S. business that will create at least 10 full-time jobs in the United States for qualifying employees.
On March 5, 2022, the President signed the EB-5 Reform and Integrity Act of 2022, Div. BB of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103). The EB-5 Reform and Integrity Act of 2022 immediately repealed the Regional Center (RC) Pilot Program created by the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act 1993, Public Law 102-395, 106 Stat. 1828, sec. 610(b). The law also authorizes a new EB-5 Regional Center Program, which will become effective May 14, 2022 and is authorized through FY 2026 and makes various changes to the program. As discussed more fully in section VIII.N. of the NPRM, DHS proposes new fees for the forms used in the EB-5 program in this proposed rule.
DHS proposes changes to various fees for regional centers and related immigration benefit requests related to Employment-Based Immigrant Visa, Fifth Preference (EB-5). The EB-5 Reform and Integrity Act of 2022 immediately repealed and replaced the prior EB-5 “regional center program.” The EB-5 Reform and Integrity Act of 2022 has no immediate impact on the staffing levels of the USCIS Immigrant Investor Program Office, although each existing Regional Center will be required to submit a request to be re-approved under the law, which could greatly increase the program workload initially. Nevertheless, and despite the changes in the law and program, DHS has proposed fees in this rule based on the currently projected staffing needs to meet the adjudicative and administrative burden of the Immigrant Investor Program Office pending the fee study required by section 106(a) of the EB-5 Reform and Integrity Act of 2022. Thus, the annual filing volume projections in this rule are based on historical volumes and trends because the EB-5 Reform and Integrity Act of 2022 is too new for DHS to accurately estimate its impacts on filing volumes. DHS welcomes comments from the public on the number of forms for the EB-5 program that will be submitted annually and how that number will be changed by the recent legislation. DHS may adjust the estimated filing volumes in the final rule based on additional analysis and comments on this rule.
DHS is proposing a fee for Form I-956, Application for Regional Center Designation, is $47,695, a $29,900 (168 percent) increase from the $17,795 fee for Form I-924, Application for Regional Center Designation under the Immigrant Investor Program.
DHS is creating these new forms as stated above, as part of the EB-5 Reform and Integrity Act of 2022. Since Form I-956/I-956A will be new forms and historical data does not exist. Because the immigration benefit adjudications previously performed using Form I-924 will now be administered using Forms I-956 and I-956G, DHS will use historical data of the previous Form I-956 (formerly Form I-924) Application for Regional Center Designation and Form I-956G (formerly Form I-924A), Annual Certification of Regional Center as a proxy for the analysis. Under the Regional Center Program, foreign nationals based their EB-5 petitions on investments in new commercial enterprises located within “regional centers.” DHS regulations define a regional center as an economic unit, public or private, that promotes economic growth, regional productivity, job creation, and increased domestic capital investment.
The application process would require the same information from applicants that is currently required. As shown in Table 34, during the 5-year period from FY 2016 through FY 2020, USCIS received a total of 951 annual Form I-956 (formerly Form I-924) regional centers applications and 4,091
Regional centers are difficult to assess because there is a lack of official USCIS data on employment, income, and industry classification for these entities. It is difficult to determine the small entity status of regional centers without such data. Such a determination is also difficult because regional centers can be structured in a variety of different ways, and can involve multiple business and financial activities, some of which may play a direct or indirect role in linking investor funds to NCEs and job-creating projects or entities. Regional centers also pose a challenge for analysis as their structure is often complex and can involve many related business and financial activities not directly involved with EB-5 activities. Regional centers can be made up of several layers of business and financial activities that focus on matching foreign investor funds to development projects to capture above-market return differentials.
While DHS attempted to treat regional centers similar to the other entities in this analysis, DHS was not able to identify most of the entities in any of the public or private online databases. Furthermore, while regional centers are an integral component of the EB-5 program, DHS does not collect data on the administrative fees the regional centers charge to the foreign investors who are investing in one of their projects. DHS did not focus on the bundled capital investment amounts (either a discounted $500,000 if the investment is in a TEA project, which includes certain rural areas and areas of high unemployment, or $1 million for a non-TEA project per investor, in a U.S. business that will create or preserve at least 10 full-time jobs in the United States for qualifying employees)
DHS did consider the information provided by regional center applicants as part of the Forms I-956 (formerly Form I-924) and I-956G (formerly Form I-924A); however, it does not include adequate data to allow DHS to reliably identify the small entity status of individual applicants. Although regional center applicants typically report the NAICS codes associated with the sectors they plan to direct investor funds toward, these codes do not necessarily apply to the regional centers themselves. In addition, information provided to DHS concerning regional centers generally does not include regional center revenues or employment.
DHS was able to obtain some information under some specific assumptions in an attempt to analyze the small entity status of regional centers. In the DHS proposed rule “EB-5 Immigrant Investor Program Modernization,” DHS analyzed estimated administrative fees and revenue amounts for regional centers.
DHS welcomes comments from the public on the impacts to small entities of the proposed fee increases to Form I-956G (formerly Form I-924A) and requests information from the public on data sources on the average revenues collected by regional centers in the form of administrative fees and the extent to which regional centers may pass along the fee increases to the individual investors.
d. A description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities that will be subject to the requirement and the types of professional skills necessary for preparation of the report or record.
The proposed rule does not directly impose any new or additional “reporting” or “recordkeeping” requirements on filers of Form I-129, I-140, I-910, I-360, G-1041, G-1041A, I-956 (formerly Form I-924), or I-956G (formerly I-924A). The proposed rule does not require any new professional skills for reporting.
e. An identification, to the extent practical, of all relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule.
DHS is unaware of any duplicative, overlapping, or conflicting Federal rules, but invites any comment and information regarding any such rules.
f. Description of any significant alternatives to the proposed rule that accomplish the stated objectives of applicable statutes and that minimize any significant economic impact of the proposed rule on small entities, including alternatives considered as:
(1) Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;
(2) Clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities;
(3) Use of performance rather than design standards; and
(4) Any exemption from coverage of the rule, or any part thereof, for such small entities.
The INA provides for the collection of fees at a level that will ensure recovery of the full costs of providing adjudication and naturalization services, including services provided without charge to asylum applicants and certain other immigrant applicants. In addition, DHS must fund the costs of providing services without charge by using a portion of the filing fees that are collected for other immigration benefits. Without an adjustment in fees, USCIS would not be able to sustain the current level of service for immigration and naturalization benefits. While most immigration benefit fees are paid by individuals, as described above, some also are paid by small entities. USCIS seeks to minimize the impact on all parties, and in particular small entities. An alternative to the increased economic burden of the proposed rule is to maintain fees at their current level for small entities. The strength of this alternative is that it assures no additional fee burden is placed on small entities; however, this alternative also would cause negative impacts to small entities.
Without the fee adjustments proposed in this proposed rule, significant operational changes would be necessary in order for USCIS to provide current immigration and naturalization benefits to the public. These changes would include reductions in Federal and contract staff, infrastructure spending on information technology and facilities, travel, and training. Depending on the actual level of workload received, these operational changes could result in longer application processing times, a degradation in service to applicants and petitioners, and reduced efficiency over time. DHS is therefore not proposing to exempt small entities from the fee increases outlined in this proposed rule.
g. Questions for Comment to Assist Regulatory Flexibility Analysis.
• DHS seeks comment on the numbers of small entities that may be impacted by this proposed rulemaking.
• DHS seeks comment on any or all of the provisions in the proposed rule with regard to the economic impact of this proposed rule, paying specific attention to the effect of the rule on small entities in light of the above analysis, as well as the full small entity analysis on regulations.gov.
• DHS seeks comment on any significant alternatives DHS should consider in lieu of the changes proposed by this proposed rule.
• DHS seeks ways in which the rule could be modified to reduce burdens for small entities consistent with the Immigration and Nationality Act and the Chief Financial Officers Act requirements.
• Please identify all relevant Federal, State, or local rules that may duplicate, overlap, or conflict with the proposed rule.
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and Tribal governments. Title II of UMRA requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed rule, or final rule for which the agency published a proposed rule, that includes any Federal mandate that may result in $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and Tribal governments, in the aggregate, or by the private sector.
While this proposed rule is expected to exceed the $100 million in 1995 expenditure in any one year when adjusted for inflation ($178 million in 2021 dollars based on the Consumer Price Index for All Urban Consumers (CPI-U)),
The Congressional Review Act (CRA) was included as part of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) by section 804 of SBREFA, Public Law 104-121, 110 Stat. 847, 868,
This proposed rule would not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of E.O. 13132, it is determined that this proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This proposed rule was drafted and reviewed in accordance with E.O. 12988, Civil Justice Reform. This proposed rule was written to provide a clear legal standard for affected conduct and was carefully reviewed to eliminate drafting errors and ambiguities to minimize litigation and undue burden on the Federal court system. DHS has determined that this proposed rule meets the applicable standards provided in section 3(a) and 3(b)(2) of E.O. 12988.
This proposed rule would not have “Tribal implications” under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, 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, E.O. 13175, Consultation and Coordination with Indian Tribal Governments, requires no further agency action or analysis.
Under the PRA of 1995, 44 U.S.C. 3501-12, DHS must submit to OMB, for review and approval, any reporting requirements inherent in a rule, unless they are exempt. In accordance with the PRA, the information collection notice is published in the
USCIS is consolidating all information related to Form fees, fee exemptions, and how to submit fee payments into Form G-1055, Fee Schedule. Most fee-related language, including language from sections
This rulemaking will also require non-substantive edits to some USCIS information collections, which are indicated in Table 35 as “No material/non-substantive change to a currently approved collection” in the Type of PRA Action column. The USCIS Form I-854A, Inter-Agency Alien Witness and Informant Record, edits include updating general instructions language. As stated previously in this preamble, DHS has recently created Forms I-526, Immigrant Petition by Alien Entrepreneur, and Form I-526E, Immigrant Petition by Regional Center Investor, Form I-956, Application for Regional Center Designation, Form I-956F, Application for Approval of Investment in a Commercial Enterprise, Form I-956G, Regional Center Annual Statement, Form I-956H, Bona Fides of Persons Involved with Regional Center Program, and Form I-956K Registration for Direct and Third-Party Promoters, to implement the EB-5 Reform and Integrity Act of 2022. USCIS continues to use Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, to adjudicate requests from investors under the previous statute and regulations, and as authorized by the EB-5 Reform and Integrity Act of 2022. Those forms are not subject to the Paperwork Reduction Act.
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0096 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
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DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0156 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
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(4) Affected public who will be asked or required to respond, as well as a brief abstract:
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DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0079 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
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DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0009 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
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DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0079 in the body of the letter and the agency
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
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Form I-129CWR, Semiannual Report for CW-1 Employers, is used by employers to comply with the reporting requirements imposed by the Workforce Act. Form I-129CWR captures data USCIS requires to help verify the continuing employment and payment of the CW-1 worker. DHS may provide such semiannual reports to other Federal partners, including the U.S. Department of Labor (DOL) for investigative or other use as DOL may deem appropriate. Congress expressly provided for these semiannual reports to be shared with DOL. 48 U.S.C. 1806(d)(3)(D)(ii).
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DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0001 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0010 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0012 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0013 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0135 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0015 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0016 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0017 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0018 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0095 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0020 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0023 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0003 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0027 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0028 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0029 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0123 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0069 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0030 in the body of the letter and the agency name. Comments on this information
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0032 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0035 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0038 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0040 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0137 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0005 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0043 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0124 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0044 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0072 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0082 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0048 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0114 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0116 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0099 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0104 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0106 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0136 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0050 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0052 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0056 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0091 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0057 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0087 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0144 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
DHS notes that the estimates of annual filing volume in the PRA section of this preamble are not the same as those used in the model used to calculate the fee amounts proposed in this rule. For example, the fee calculation model projects 1,666,500 Form I-765 filings while the estimated total number of respondents for the information collection I-765 is 2,179,494. As stated in section V.B.1.a of this preamble, the VPC forecasts USCIS workload volume based on short- and long-term volume trends and time series models, historical receipts data, patterns (such as level, trend, and seasonality), or correlations with historical events to forecast receipts. Workload volume is used to determine the USCIS resources needed to process benefit requests and is the primary cost driver for assigning activity costs to immigration benefits and biometric services in the USCIS ABC model. DHS uses a different method for estimating the average annual number of respondents for the information collection over the 3-year OMB approval of the control number, generally basing the estimate on the average filing volumes in the previous 3 of 5-year period, with less consideration of the volume effects on planned or past policy changes. Nevertheless, when the information collection request is nearing expiration USCIS will update the estimates of annual respondents based on actual results in the submission to OMB. The PRA burden estimates are generally updated at least every 3 years. Thus, DHS expects that the PRA estimated annual respondents will be updated to reflect the actual effects of this proposed rule within a relatively short period after a final rule takes effect.
DHS Directive 023-01 Rev. 01 (Directive) and Instruction Manual 023-01-001-01 Rev. 01 (Instruction Manual) establish the policies and procedures that DHS and its components use to comply with the National Environmental Policy Act (NEPA) and the Council on Environmental Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500 through 1508.
The CEQ regulations allow Federal agencies to establish, with CEQ review and concurrence, categories of actions (“categorical exclusions”) that experience has shown do not have a significant effect on the human environment and, therefore, do not require an Environmental Assessment or Environmental Impact Statement. 40 CFR 1507.3(e)(2)(ii), 1501.4.
The Instruction Manual establishes categorical exclusions that DHS has found to have no such effect.
This proposed rule implements the authority in the INA to establish fees to fund immigration and naturalization services of USCIS.
DHS has determined that this proposed rule does not individually or cumulatively have a significant effect on the human environment because it clearly fits within categorical exclusions A3(a) and (d) in Appendix A of the Instruction Manual established for rules of a strictly administrative or procedural nature and actions that interpret or amend an existing regulation without changing its environmental effect.
This proposed rule is not part of a larger action and presents no extraordinary circumstances creating the potential for significant environmental effects. Therefore, this proposed rule is categorically excluded from further NEPA review.
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. Agencies must assess whether the regulatory action: (1) Impacts the stability or safety of the family, particularly in terms of marital commitment; (2) impacts the authority of parents in the education, nurture, and supervision of their children; (3) helps the family perform its functions; (4) affects disposable income or poverty of families and children; (5) if the regulatory action financially impacts families, are justified; (6) may be carried out by State or local government or by the family; and (7) establishes a policy concerning the relationship between the behavior and personal responsibility of youth and the norms of society. If the determination is affirmative, then the Agency must prepare an impact assessment to address criteria specified in the law. DHS has no data that indicate that this proposed rule will have any impacts on disposable income or the poverty of certain families and children, including U.S. citizen children. DHS acknowledges that this proposal would increase the fees that families must submit and thus it may affect the disposable income for certain families. DHS has provided a process to waive fees for immigration benefits when the person submitting the request is unable to pay the fee. In addition, the proposed rule may provide USCIS with the funds necessary to provide free services to certain disadvantaged populations, including abused children and spouses, refugees, and victims of criminal activity or human trafficking. DHS believes that the benefits of the new fees justify the financial impact on the family, that this rulemaking's impact is justified, and no further actions are required. DHS also determined that this proposed rule will not have any impact on the autonomy or integrity of the family as an institution.
Administrative practice and procedure, Authority delegations (Government agencies), Freedom of information, Privacy, Reporting and recordkeeping requirements, Surety bonds.
Immigration, User fees.
Administrative practice and procedure, Immigration, Reporting and recordkeeping requirements.
Administrative practice and procedure, Aliens, Immigration, Passports and visas, Reporting and recordkeeping requirements.
Administrative practice and procedure, Aliens, Cultural exchange program, Employment, Foreign officials, Health professions, Reporting and recordkeeping requirements, Students.
Administrative practice and procedure, Aliens.
Administrative practice and procedure, Immigration.
Aliens, Immigration, Reporting and recordkeeping requirements.
Aliens, Immigration, Reporting and recordkeeping requirements.
Aliens, Reporting and recordkeeping requirements.
Administrative practice and procedure, Aliens, Employment, Penalties, Reporting and recordkeeping requirements.
Accordingly, DHS proposes to amend chapter I of title 8 of the Code of Federal Regulations as follows:
5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304, 1356, 1356b, 1372; 31 U.S.C. 9701; Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 101
(a) * * *
(1) * * * Filing fees generally are non-refundable regardless of the outcome of the benefit request, or how much time the adjudication requires, and any decision to refund a fee is at the discretion of USCIS. * * *
(7) * * *
(ii) * * *
(D) Submitted with the correct fee(s). If a check or other financial instrument used to pay a fee is returned as unpayable because of insufficient funds, USCIS will resubmit the payment to the remitter institution one time. If the instrument used to pay a fee is returned as unpayable a second time, the filing may be rejected. Financial instruments returned as unpayable for a reason other than insufficient funds will not be redeposited. Credit cards that are declined will not be submitted a second time. If a check or other financial instrument used to pay a fee is dated more than one year before the request is received, the payment and request may be rejected.
(b) * * *
(19) * * *
(iii) * * *
(A) USCIS will send secure identification documents, such as a Permanent Resident Card or Employment Authorization Document, only to the applicant or self-petitioner unless the applicant or self-petitioner specifically consents to having his or her secure identification document sent to a designated agent or their attorney or accredited representative of record, as specified on the form instructions.
(a)
(1)
(2)
(3)
(b)
(c)
(d)
(1)
(i) $80.00; or
(ii) $160.00 for a family (applicant, spouse and minor children); plus,
(iii) $42 for each additional vehicle enrolled.
(iv) The fee is due after approval of the application but before use of the DCL.
(v) This fee is non-refundable, but may be waived by DHS.
(2)
(ii) For filing a petition for school recertification: $1,250, plus a site visit fee of $655 for each new location required to be listed on the form.
(3)
(i) $16.00; or
(ii) $32 for a family (applicant, spouse, and unmarried children under 21 years of age, and parents of either spouse).
(4)
(5)
(6)
(7)
(i) $25.00; or
(ii) $50.00 for a family (applicant, spouse, and minor children).
(iii) The application fee may be waived by DHS.
(iv) If fingerprints are required, the inspector will inform the applicant of the current Federal Bureau of Investigation fee for conducting fingerprint checks before accepting the application fee.
(v) The application fee (if not waived) and fingerprint fee must be paid to CBP before the application will be processed. The fingerprint fee may not be waived.
(vi) For replacement of PORTPASS documentation during the participation period: $25.00.
(8)
(i) For F and M students: $350.
(ii) For J-1 au pairs, camp counselors, and participants in a summer work or travel program: $35.
(iii) For all other J exchange visitors (except those participating in a program sponsored by the Federal Government): $220.
(iv) There is no Form I-901 fee for J exchange visitors in federally funded programs with a program identifier designation prefix that begins with G-1, G-2, G-3, or G-7.
(9)
(10)
(ii) For after 1975: Contact: U.S. Department of Transportation, Transportation Systems Center, Kendall Square, Cambridge, MA 02142.
(11)
(12)
(13)
(14)
(15)
DHS may charge a fee to collect biometric information, to provide biometric collection services, to conduct required national security and criminal history background checks, to verify an individual's identity, and to store and maintain this biometric information for reuse to support other benefit requests. When a biometric services fee is required, USCIS may reject a benefit request submitted without the correct biometric services.
(a)
(b)
(c)
(1) Full name (including variant spellings of the name and/or aliases, if any).
(2) Date of birth, at least as specific as a year.
(3) Place of birth, at least as specific as a country and preferably the country name at the time of the individual's immigration or naturalization.
(d)
(1) Date of arrival in the United States.
(2) Residence address at time of naturalization.
(3) Names of parents, spouse, and children if applicable and available.
(e)
(1) C-Files must be identified by a naturalization certificate number.
(2) Forms AR-2 and A-Files numbered below 8 million must be identified by Alien Registration Number.
(3) Visa Files must be identified by the Visa File Number. Registry Files must be identified by the Registry File Number (for example, R-12345).
(f)
(2) Search subjects will be presumed deceased if their birth dates are more than 100 years before the date of the request. In other cases, the subject is presumed to be living until the requestor establishes to the satisfaction of USCIS that the subject is deceased.
(3) Documentary evidence of the subject's death is required (including but not limited to death records, published obituaries or eulogies, published death notices, church or bible records, photographs of gravestones, and/or copies of official documents relating to payment of death benefits).
(g)
(h)
8 U.S.C. 1101, 1103, 1254a, 1254b, 1304, 1356; 48 U.S.C. 1806; Pub. L. 107- 296, 116 Stat. 2135 (6 U.S.C. 101 note); Pub. L. 115-218, 132 Stat. 1547; Pub. L. 116-159, 134 Stat. 709.
(a) Fees must be submitted with any USCIS request in the amount and subject to the conditions provided in this part and remitted in the manner prescribed in the relevant form instructions, on the USCIS website, or in a
(b) Fees must be remitted from a bank or other institution located in the United States and payable in U.S. currency. The fee must be paid using the method that USCIS prescribes for the request, office, filing method, or filing location, as provided in the form instructions or by individual notice.
(c) If a remittance in payment of a fee or any other matter is not honored by the bank or financial institution on which it is drawn:
(1) The provisions of 8 CFR 103.2(a)(7)(ii) apply, no receipt will be issued, and if a receipt was issued, it is void and the benefit request loses its receipt date; and
(2) If the benefit request was approved, the approval may be revoked upon notice. If the approved benefit request requires multiple fees, this paragraph (c) would apply if any fee submitted is not honored. Other fees that were paid for a benefit request that is revoked under this paragraph (c) will be retained and not refunded. A revocation of an approval because the fee submitted is not honored may be appealed to the USCIS Administrative Appeals Office, in accordance with 8 CFR 103.3 and the applicable form instructions.
(d) DHS is not responsible for financial instruments that expire before they are deposited. USCIS may reject any filing for which required payment cannot be processed due to expiration of the financial instrument.
(e) Fees paid to USCIS using a credit card are not subject to dispute, chargeback, forced refund, or return to the cardholder for any reason except at the discretion of USCIS.
(a)
(i) When filed online: $455.
(ii) When filed on paper: $465.
(iii) If the applicant was issued a card but never received it: No fee.
(iv) If the applicant's card was issued with incorrect information because of DHS error and the applicant is filing for a replacement: No fee.
(v) If the applicant has reached their 14th birthday and their existing card will expire after their 16th birthday: No fee.
(2)
(i) For nonimmigrant member of the U.S. armed forces: No fee for initial filing;
(ii) For a nonimmigrant member of the North Atlantic Treaty Organization (NATO) armed forces or civil component: No fee for initial filing;
(iii) For nonimmigrant member of the Partnership for Peace military program under the Status of Forces Agreement (SOFA): No fee for initial filing; and
(iv) For replacement for DHS error: No fee.
(3)
(i) Petition for H-1B Nonimmigrant Worker or H-1B1 Free Trade Nonimmigrant Worker: $780.
(ii) Petition for H-2A Nonimmigrant Worker with 1 to 25 named beneficiaries: $1,090.
(iii) Petition for H-2A Nonimmigrant Worker with only unnamed beneficiaries: $530.
(iv) Petition for H-2B Nonimmigrant Worker with 1 to 25 named beneficiaries: $1,080.
(v) Petition for H-2B Nonimmigrant Worker with only unnamed beneficiaries: $580.
(vi) Petition for L Nonimmigrant Worker: $1,385.
(vii) Petition for O Nonimmigrant Worker with 1 to 25 named beneficiaries: $1,055.
(viii) Petition or Application for E, H-3, P, Q, R, or TN Nonimmigrant Worker with 1 to 25 named beneficiaries: $1,015.
(4)
(i) Additional fees in paragraph (c) of this section may apply.
(ii) Semiannual Report for CW-1 Employers (Form I-129CWR): No fee.
(5)
(ii) For a K-3 spouse as designated in 8 CFR 214.1(a)(2) who is the beneficiary of an immigrant petition filed by a U.S. citizen on a “Petition for Alien Relative,” Form I-130: No fee.
(6)
(i) When filed online: $710.
(ii) When filed on paper: $820.
(7)
(ii) Refugee Travel Document for asylee and lawful permanent resident who obtained such status as an asylee under the age of 16: $135.
(iii) Advance Parole, Reentry Permit, and other travel documents: $630.
(iv) There are no fees for a travel document for applicants who filed USCIS Form I-485 on or after July 30, 2007, and before [EFFECTIVE DATE OF THE FINAL RULE], and paid the Form I-485 fee.
(v) There are no fees for parole requests from current or former U.S. armed forces service members.
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(i) A petition seeking classification as an Amerasian;
(ii) A petition seeking immigrant classification as a Violence Against Women Act (VAWA) self-petitioner;
(iii) A petition for Special Immigrant Juvenile classification;
(iv) A petition seeking special immigrant classification as Afghan or Iraqi translator or interpreter, Iraqi national employed by or on behalf of the U.S. Government, or Afghan national employed by or on behalf of the U.S. Government or employed by the International Security Assistance Force (ISAF); or a surviving spouse or child of such a person; or
(v) A petition for a person who served honorably on active duty in the U.S. armed forces filing under section 101(a)(27)(K) of the Act.
(17)
(18)
(19)
(20)
(i) An applicant who is in deportation, exclusion, or removal proceedings before an immigration judge, and the court waives the application fee.
(ii) An applicant who served honorably on active duty in the U.S. armed forces who is filing under section 101(a)(27)(K) of the Act.
(21)
(i) If applicant is unmarried and under 17 years of age: No fee.
(ii) If the applicant is the spouse or unmarried child under 21 years of age of a legalized alien and attaches a copy of a USCIS receipt or approval notice for a properly filed Form I-817, “Application for Family Unity Benefits”: No fee.
(22)
(23)
(24)
(ii) Immigrant Petition by Regional Center Investor, Form I-526E: $11,160.
(25)
(ii) When filing on paper: $620.
(iii) There is no fee for the following:
(A) Nonimmigrant A, G, and NATO;
(B) T nonimmigrant; and
(C) U nonimmigrant if filed before the petitioner files an Application to Register Permanent Residence or Adjust Status (Form I-485).
(26)
(27)
(28)
(29)
(i) There is no fee for the first Form I-600 filed for a child on the basis of an approved Application for Advance Processing of an Orphan Petition, Form I-600A, during the Form I-600A approval or extended approval period.
(ii) Except as specified in paragraph (a)(29)(iii) of this section, if more than one Form I-600 is filed during the Form I-600A approval period, the fee is $920 for the second and each subsequent Form I-600 petition submitted.
(iii) If more than one Form I-600 is filed during the Form I-600A approval period on behalf of beneficiary birth siblings, no additional fee is required.
(30)
(31)
(i) This filing fee:
(A) Is not charged if Form I-600A/I-600 Supplement 3 is filed to obtain a first-time extension of the approval of the Form I-600A or to obtain a first-time change of non-Hague Adoption Convention country during the Form I-600A approval period.
(B) Is charged if Form I-600A/I-600 Supplement 3 is filed to request a new approval notice based on a significant change and updated home study unless a first-time extension of the Form I-600A approval or first-time change of non-Hague Adoption Convention country is also being requested on the same Supplement 3.
(C) Is charged for second or subsequent extensions of the approval of the Form I-600A, second or subsequent changes of non-Hague Adoption Convention country, requests for a new approval notice based on a significant change and updated home study, and requests for a duplicate approval notice permitted with Form I-600A/I-600 Supplement 3 with the filing fee.
(ii) Form I-600A/I-600 Supplement 3 cannot be used to:
(A) Extend eligibility to proceed as a Hague Adoption Convention transition case beyond the first extension once the Convention enters into force for the new Convention country.
(B) Request a change of country to a Hague Adoption Convention transition country for purposes of becoming a transition case if another country was already designated on the Form I-600A or the applicant previously changed countries.
(iii) Form I-600A/I-600 Supplement 3 may only be used to request an increase in the number of children the applicant/petitioner is approved to adopt from a transition country if the additional child is a birth sibling of a child whom the applicant/petitioner has adopted or is in the process of adopting, as a transition case, and is identified and petitioned for while the Form I-600A approval is valid, unless the new Convention country prohibits such birth sibling cases from proceeding as transition cases.
(32)
(33)
(34)
(35)
(36)
(37)
(38)
(39)
(40)
(41)
(42)
(43)
(ii) When filed on paper: $650.
(iii) There is no fee for an initial Employment Authorization Document for the following:
(A) An applicant who filed USCIS Form I-485 on or after July 30, 2007, and before [EFFECTIVE DATE OF THE FINAL RULE], and paid the Form I-485 fee;
(B) Dependents of certain government and international organizations or NATO personnel;
(C) N-8 (Parent of alien classed as SK3) and N-9 (Child of N-8) nonimmigrants;
(D) Persons granted asylee status (AS1, AS6);
(E) Citizen of Micronesia, Marshall Islands, or Palau;
(F) Granted Withholding of Deportation or Removal;
(G) Applicant for Asylum and Withholding of Deportation or Removal including derivatives;
(H) Taiwanese dependents of Taipei Economic and Cultural Representative Office (TECRO) E-1 employees; and
(I) Current or former U.S. armed forces service members.
(iv) Request for replacement Employment Authorization Document based on USCIS error: No fee.
(v) There is no fee for a renewal or replacement Employment Authorization Document for the following:
(A) Any current Adjustment of Status or Registry applicant who filed for adjustment of status on or after July 30, 2007, and before [EFFECTIVE DATE OF THE FINAL RULE], and paid the appropriate Form I-485 filing fee;
(B) Dependent of certain foreign government, international organization, or NATO personnel;
(C) Citizen of Micronesia, Marshall Islands, or Palau; and
(D) Granted withholding of deportation or removal.
(vi) There is no fee for the
(44)
(i) There is no fee for the first Form I-800 filed for a child on the basis of an approved
(ii) Except as specified in paragraph (a)(44)(iii) of this section, if more than one Form I-800 is filed during the Form I-800A approval period, the fee is $920 for the second and each subsequent Form I-800 petition submitted.
(iii) If more than one Form I-800 is filed during the Form I-800A approval period on behalf of beneficiary birth siblings, no additional fee is required.
(45)
(46)
(i) Is not charged if Form I-800A Supplement 3 is filed to obtain a first-time extension of the approval of the Form I-800A or to obtain a first-time change of Hague Adoption Convention country during the Form I-800A approval period.
(ii) Is charged if Form I-800A Supplement 3 is filed to request a new approval notice based on a significant change and updated home study unless a first-time extension of the Form I-800A approval or first-time change of Hague Adoption Convention country is also being requested on the same Supplement 3.
(iii) Is $455 for second or subsequent extensions of the Form I-800A approval, second or subsequent changes of Hague Adoption Convention country, requests for a new approval notice based on a significant change and updated home study, and requests for a duplicate approval notice, permitted with the filing of a Form I-800A, Supplement 3 and the required filing fee.
(47)
(48)
(ii) There is no fee for re-registration.
(iii) A Temporary Protected Status (TPS) applicant or re-registrant must pay $30 for biometric services.
(49)
(50)
(51)
(52)
(53)
(i)
(ii)
(iii)
(iv)
(54)
(ii) $165 for adjudication by EOIR. If the Form I-881 is referred to the immigration court by DHS: No fee.
(iii) If filing Form I-881 as a VAWA self-petitioner, including derivatives, as defined under section 101(a)(51)(F) of the Act: No fee.
(55)
(56)
(57)
(58)
(59)
(i)
(ii)
(60)
(i)
(ii)
(61)
(62)
(63)
(64)
(65)
(66)
(b)
(2)
(3)
(4)
(i) No fee is charged an applicant who meets the requirements of section 328 or 329 of the Act with respect to military service.
(ii) The fee for an applicant with an approved
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(c)
(i) When filed online: $100.
(ii) When filed on paper: $120.
(2)
(i) When filed online: $240.
(ii) When filed on paper: $260.
(3)
(4)
(5)
(ii) For filing certain H-2B petitions as described in 8 U.S.C. 1184(c) and USCIS form instructions: $150.
(6)
(7)
(i) The fee amount must be paid in addition to, and in a separate remittance from, other filing fees;
(ii) Every employer who is issued a permit must pay the education funding fee every year;
(iii) An employer who is issued a permit with a validity period of longer than 1 year must pay the fee for each year of requested validity at the time the permit is requested; and
(iv) Beginning in FY 2020, the fee may be adjusted once per year by notice in the
(8)
(9)
(10)
(11)
(12)
(13)
(d)
(a)
(i) The party requesting the benefit is unable to pay the prescribed fee.
(ii) A waiver based on inability to pay is consistent with the status or benefit sought, including benefits that require demonstration of the applicant's ability to support himself or herself, or individuals who seek immigration status based on a substantial financial investment.
(2)
(3)
(i) The following fees for the following forms may be waived without condition:
(A) Application to Replace Permanent Resident Card (Form I-90);
(B) Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (Form I-191);
(C) Petition to Remove the Conditions of Residence (Form I-751);
(D) Application for Family Unity Benefits (Form I-817);
(E) Application for Temporary Protected Status (Form I-821);
(F) Application for Suspension of Deportation or Special Rule Cancellation of Removal (Form I-881)
(G) Application to File Declaration of Intention (Form N-300);
(H) Request for a Hearing on a Decision in Naturalization Proceedings (Form N-336) (under section 336 of the INA);
(I) Application for Naturalization (Form N-400);
(J) Application to Preserve Residence for Naturalization Purposes (N-470);
(K) Application for Replacement Naturalization/Citizenship Document (N-565);
(L) Application for Certificate of Citizenship (N-600); and
(M) Application for Citizenship and Issuance of Certificate under section 322 of the Act (N-600K).
(ii) The following form fees may be waived based on the conditions described in paragraphs (a)(3)(ii)(A) through (F) of this section:
(A) Petition for a CNMI-Only Nonimmigrant Transitional Worker, or an Application to Extend/Change Nonimmigrant Status (Form I-539), only in the case of a noncitizen applying for CW-2 nonimmigrant status;
(B) Application for Travel Document (Form I-131), when filed to request humanitarian parole;
(C) Notice of Appeal or Motion (Form I-290B), when there is no fee for the underlying application or petition or that fee may be waived;
(D) Notice of Appeal of Decision Under Sections 245A or 210 of the Immigration and Nationality Act (Form I-694), if the underlying application or petition was fee exempt, the filing fee was waived, or was eligible for a fee waiver;
(E) Application for Employment Authorization (Form I-765), except persons filing under category (c)(33), Deferred Action for Childhood Arrivals (DACA); and
(F) Petition for Nonimmigrant Worker (Form I-129) or Application to Extend/Change Nonimmigrant Status (Form I-539), only in the case of an alien applying for E-2 CNMI Investor for an extension of stay.
(iii) Any fees associated with the filing of any benefit request under 8 U.S.C. 1101(a)(51) and those otherwise self-petitioning under 8 U.S.C. 1154(a)(1) (VAWA self-petitioners), 8 U.S.C. 1101(a)(15)(T) (T visas), 8 U.S.C. 1101(a)(15)(U) (U visas), 8 U.S.C. 1105a (battered spouses of A, G, E-3, or H nonimmigrants), 8 U.S.C. 1229(b)(2) (special rule cancellation for battered spouse or child), and 8 U.S.C. 1254a(a) (Temporary Protected Status).
(iv) The following fees may be waived only if the person is exempt from the public charge grounds of inadmissibility under section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4):
(A) Application for Advance Permission to Enter as Nonimmigrant (Form I-192);
(B) Application for Waiver for Passport and/or Visa (Form I-193);
(C) Application to Register Permanent Residence or Adjust Status (Form I-485); and
(D) Application for Waiver of Grounds of Inadmissibility (Form I-601).
(4)
(5)
(b)
(1) Persons seeking or granted Special Immigrant Juvenile classification who file the following forms related to the Special Immigrant Juvenile classification or adjustment of status pursuant to section 245(h) of the Act, 8 U.S.C. 1255(h):
(i) Application for Travel Document (Form I-131).
(ii) Notice of Appeal or Motion (Form I-290B), if filed for any benefit request filed before adjustment of status or a motion filed for an Application to Register Permanent Residence or Adjust Status (Form I-485).
(iii) Application to Register Permanent Residence or Adjust Status (Form I-485).
(iv) Application for Waiver of Ground of Inadmissibility (Form I-601).
(v) Application for Employment Authorization (Form I-765).
(2) Persons seeking or granted T nonimmigrant status who file the following forms related to the T nonimmigrant classification or adjustment of status pursuant to INA section 245(l), 8 U.S.C. 1255(l):
(i) Application for Travel Document (Form I-131).
(ii) Application for Advance Permission to Enter as a Nonimmigrant (Form I-192).
(iii) Application for Waiver of Passport and/or Visa (Form I-193).
(iv) Notice of Appeal or Motion (Form I-290B), if filed for any benefit request filed before adjustment of status or a motion or appeal filed for an Application to Register Permanent Residence or Adjust Status (Form I-485) if applicable.
(v) Application to Register Permanent Residence or Adjust Status (Form I-485).
(vi) Application to Extend/Change Nonimmigrant Status (Form I-539).
(vii) Application for Waiver of Ground of Inadmissibility (Form I-601).
(viii) Application for Employment Authorization (Form I-765).
(3) Persons seeking or granted special immigrant visa or status as Afghan or Iraqi translators or interpreters, Iraqi nationals employed by or on behalf of the U.S. Government, or Afghan nationals employed by or on behalf of the U.S. Government or employed by the ISAF and their derivative beneficiaries, who file the following forms related to the Special Immigrant classification or adjustment of status pursuant to such classification:
(i) Application for Travel Document (Form I-131).
(ii) Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal (Form I-212).
(iii) Notice of Appeal or Motion (Form I-290B), if filed for any benefit request filed before adjustment of status or a motion filed for an Application to Register Permanent Residence or Adjust Status (Form I-485).
(iv) Application to Register Permanent Residence or Adjust Status (Form I-485).
(v) Application for Waiver of Ground of Inadmissibility (Form I-601).
(vi) Application for initial Employment Authorization (Form I-765).
(4) Persons seeking or granted adjustment of status as abused spouses and children under the Cuban Adjustment Act (CAA) and the Haitian Refugee Immigration Fairness Act (HRIFA) are exempt from paying the following fees for forms related to those benefits:
(i) Application for Travel Document (Form I-131).
(ii) Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal (Form I-212).
(iii) Notice of Appeal or Motion (Form I-290B), if filed for any benefit request filed before adjustment of status or a motion filed for an Application to Register Permanent Residence or Adjust Status (Form I-485).
(iv) Application to Register Permanent Residence or Adjust Status (Form I-485).
(v) Application for Waiver of Ground of Inadmissibility (Form I-601).
(vi) Application for Employment Authorization (Form I-765).
(5) Persons seeking U nonimmigrant status who file the following forms related to the U nonimmigrant status are exempt from paying fees if filed before the petitioner files an Application to Register Permanent Residence or Adjust Status (Form I-485):
(i) Application for Advance Permission to Enter as a Nonimmigrant (Form I-192).
(ii) Application for Waiver of Passport and/or Visa (Form I-193).
(iii) Notice of Appeal or Motion (Form I-290B).
(iv) Application to Extend/Change Nonimmigrant Status (Form I-539).
(v) Application for Employment Authorization (Form I-765) for their initial request for principals and derivatives submitted under 8 CFR 274a.12(a)(19) and (20) and (c)(14).
(6) Person seeking or granted immigrant classification as VAWA self-petitioners and derivatives as defined in section 101(a)(51)(A) and (B) of the Act or those otherwise self-petitioning for immigrant classification under section 204(a)(1) of the Act, 8 U.S.C. 1154(a)(1), are exempt from paying the following fees for forms related to the benefit:
(i) When the Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) and Application to Register Permanent Residence or Adjust Status (Form I-485) are concurrently filed or pending:
(A) Application for Travel Document (Form I-131).
(B) Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal (Form I-212).
(C) Notice of Appeal or Motion (Form I-290B) if filed for any benefit request filed before adjustment of status or a motion filed for an Application to Register Permanent Residence or Adjust Status (Form I-485).
(D) Application for Waiver of Grounds of Inadmissibility (Form I-601).
(E) Application for Employment Authorization (Form I-765) for initial requests submitted under 8 CFR 274a.12(c)(9) and (14) and section 204(a)(1)(K) of the Act.
(ii) When the Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) is filed as a standalone self-petition:
(A) Notice of Appeal or Motion (Form I-290B) for a motion or appeal of a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360).
(B) Application for Employment Authorization (Form I-765) for initial requests submitted under 8 CFR 274a.12(c)(14) and section 204(a)(1)(K) of the Act, 8 U.S.C 1154(a)(1)(K).
(7) Abused spouses and children applying for benefits under the Nicaraguan Adjustment and Central American Relief Act (NACARA) are exempt from paying the following fees for forms related to the benefit:
(i) Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to Section 203 of Public Law 105-100 (NACARA)) (Form I-881).
(ii) Application for Waiver of Grounds of Inadmissibility (Form I-601).
(iii) Application for Employment Authorization (Form I-765) submitted under 8 CFR 274a.12(c)(10).
(8) Battered spouses and children of a lawful permanent resident (LPR) or U.S. citizen applying for cancellation of removal and adjustment of status under section 240A(b)(2) of the Act are exempt from paying the following fees for forms related to the benefit:
(i) Application for Waiver of Ground of Inadmissibility (Form I-601).
(ii) Application for Employment Authorization (Form I-765) for their initial request under 8 CFR 274a.12(c)(10).
(9) Refugees, persons paroled as refugees, or lawful permanent residents who obtained such status as refugees in the United States are exempt from paying the following fees:
(i) Application for Travel Document (Form I-131).
(ii) Application for Carrier Documentation (Form I-131A).
(iii) Application for Employment Authorization (Form I-765).
(iv) Application to Register Permanent Residence or Adjust Status (Form I-485).
(c)
(a)
(b)
(c)
(1) Application for classification of a nonimmigrant described in section 101(a)(15)(E)(i), (ii), or (iii) of the INA, 8 U.S.C. 1101(a)(15)(E)(i), (ii), or (iii): $2,500.
(2) Petition for classification of a nonimmigrant described in section 101(a)(15)(H)(i)(b) of the INA, 8 U.S.C. 1101(a)(15)(H)(i)(b), or section 222(a) of the Immigration Act of 1990, Public Law 101-649: $2,500.
(3) Petition for classification of a nonimmigrant described in section 101(a)(15)(H)(ii)(b) of the INA, 8 U.S.C. 1101(a)(15)(H)(ii)(b): $1,500.
(4) Petition for classification of a nonimmigrant described in section 101(a)(15)(H)(iii) of the INA, 8 U.S.C. 1101(a)(15)(H)(iii): $2,500.
(5) Petition for classification of a nonimmigrant described in section 101(a)(15)(L) of the INA, 8 U.S.C. 1101(a)(15(L): $2,500.
(6) Petition for classification of a nonimmigrant described in section 101(a)(15)(O)(i) or (ii) of the INA, 8 U.S.C. 1101(a)(15)(O)(i): $2,500.
(7) Petition for classification of a nonimmigrant described in section 101(a)(15)(P)(i), (ii), or (iii) of the INA, 8 U.S.C. 1101(a)(15)(P)(i): $2,500.
(8) Petition for classification of a nonimmigrant described in section 101(a)(15)(Q) of the INA, 8 U.S.C. 1101(a)(15)(Q): $2,500.
(9) Petition for classification of a nonimmigrant described in section 101(a)(15)(R) of the INA, 8 U.S.C. 1101(a)(15)(R): $1,500.
(10) Application for classification of a nonimmigrant described in section 214(e) of the INA, 8 U.S.C. 1184(e): $2,500.
(11) Petition for classification under section 203(b)(1)(A) of the INA, 8 U.S.C. 1153(b)(1)(A): $2,500.
(12) Petition for classification under section 203(b)(1)(B) of the INA, 8 U.S.C. 1153(b)(1)(B): $2,500.
(13) Petition for classification under section 203(b)(2)(A) of the INA, 8 U.S.C. 1153(b)(2)(A) not involving a waiver under section 203(b)(2)(B) of the INA, 8 U.S.C. 1153(b)(2)(B): $2,500.
(14) Petition for classification under section 203(b)(3)(A)(i) of the INA, 8 U.S.C. 1153(b)(3)(A)(i): $2,500.
(15) Petition for classification under section 203(b)(3)(A)(ii) of the INA, 8 U.S.C. 1153(b)(3)(A)(ii): $2,500.
(16) Petition for classification under section 203(b)(3)(A)(iii) of the INA, 8 U.S.C. 1153(b)(3)(A)(iii): $2,500.
(17) Petition for classification under section 203(b)(1)(C) of the INA, 8 U.S.C. 1153(b)(1)(C): $2,500.
(18) Petition for classification under section 203(b)(2) of the INA, 8 U.S.C. 1153(b)(2), involving a waiver under section 203(b)(2)(B) of the INA, 8 U.S.C. 1153(b)(2)(B): $2,500.
(19) Application under section 248 of the INA, 8 U.S.C. 1258, to change status to a classification described in section 101(a)(15)(F), (J), or (M) of the INA, 8 U.S.C. 1101(a)(15)(F), (J), or (M): $1,750.
(20) Application under section 248 of the INA, 8 U.S.C. 1258, to change status to be classified as a dependent of a nonimmigrant described in section 101(a)(15)(E), (H), (L), (O), (P), or (R) of the INA, 8 U.S.C. 1101(a)(15)(E), (H), (L), (O), (P), or (M), or to extend stay in such classification: $1,750.
(21) Application for employment authorization: $1,500.
(d)
(e)
(1) Application for classification of a nonimmigrant described in section 101(a)(15)(E)(i), (ii), or (iii) of the INA: 15 business days.
(2) Petition for classification of a nonimmigrant described in section 101(a)(15)(H)(i)(b) of the INA or section 222(a) of the Immigration Act of 1990, Public Law 101-649: 15 business days.
(3) Petition for classification of a nonimmigrant described in section 101(a)(15)(H)(ii)(b) of the INA: 15 business days.
(4) Petition for classification of a nonimmigrant described in section 101(a)(15)(H)(iii) of the INA: 15 business days.
(5) Petition for classification of a nonimmigrant described in section 101(a)(15)(L) of the INA: 15 business days.
(6) Petition for classification of a nonimmigrant described in section 101(a)(15)(O)(i) or (ii) of the INA: 15 business days.
(7) Petition for classification of a nonimmigrant described in section 101(a)(15)(P)(i), (ii), or (iii) of the INA: 15 business days.
(8) Petition for classification of a nonimmigrant described in section 101(a)(15)(Q) of the INA: 15 business days.
(9) Petition for classification of a nonimmigrant described in section 101(a)(15)(R) of the INA: 15 business days.
(10) Application for classification of a nonimmigrant described in section 214(e) of the INA: 15 business days.
(11) Petition for classification under section 203(b)(1)(A) of the INA: 15 business days.
(12) Petition for classification under section 203(b)(1)(B) of the INA: 15 business days.
(13) Petition for classification under section 203(b)(2)(A) of the INA not involving a waiver under section 203(b)(2)(B) of the INA: 15 business days.
(14) Petition for classification under section 203(b)(3)(A)(i) of the INA: 15 business days.
(15) Petition for classification under section 203(b)(3)(A)(ii) of the INA: 15 business days.
(16) Petition for classification under section 203(b)(3)(A)(iii) of the INA: 15 business days.
(17) Petition for classification under section 203(b)(1)(C) of the INA: 45 business days.
(18) Petition for classification under section 203(b)(2) of the INA involving a waiver under section 203(b)(2)(B) of the INA: 45 business days.
(19) Application under section 248 of the INA to change status to a classification described in section 101(a)(15)(F), (J), or (M) of the INA: 30 business days.
(20) Application under section 248 of the INA to change status to be classified as a dependent of a nonimmigrant described in section 101(a)(15)(E), (H), (L), (O), (P), or (R) of the INA, or to extend stay in such classification: 30 business days.
(21) Application for employment authorization: 30 business days.
(22) For the purpose of this section a business day is a day that the Federal Government is open for business, and does not include weekends, federally observed holidays, or days on which Federal Government offices are closed, such as for weather-related or other reasons. The closure may be nationwide or in the region where the adjudication of the benefit for which premium processing is sought will take place.
(f)
(2) Premium processing timeframes will commence:
(i) For those benefits described in paragraphs (e)(1) through (16) of this section, on the date the form prescribed by USCIS, together with the required fee(s), are received by USCIS.
(ii) For those benefits described in paragraphs (e)(17) through (21) of this section, on the date that all prerequisites for adjudication, the form prescribed by USCIS, and fee(s) are received by USCIS.
(3) In the event USCIS issues a notice of intent to deny or a request for evidence, the premium processing timeframe will stop and will recommence with a new timeframe as specified in paragraphs (e)(1) through (21) of this section on the date that USCIS receives a response to the notice of intent to deny or the request for evidence.
(4) Except as provided in paragraph (f)(5) of this section, USCIS will refund the premium processing service fee but continue to process the case if USCIS does not take adjudicative action described in paragraph (f)(1) of this section within the applicable processing timeframe as required in paragraph (e) of this section.
(5) USCIS may retain the premium processing fee and not take an adjudicative action described in paragraph (f)(1) of this section on the request within the applicable processing timeframe, and not notify the person who filed the request, if USCIS opens an investigation for fraud or misrepresentation relating to the immigration benefit request.
(g)
(2) USCIS may suspend the availability of premium processing for immigration benefit requests designated for premium processing if circumstances prevent the completion of processing of a significant number of such requests within the applicable processing timeframe.
The Director of USCIS, or such officials as he or she may designate, may certify records when authorized under 5 U.S.C. 552 or any other law to provide such records.
The provisions of this part are separate and severable from one another. If any provision is stayed or determined to be invalid, the remaining provisions will continue in effect.
8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1184, 1186a, 1255, 1324a, 1641; 8 CFR part 2.
The revisions and republications read as follows:
(b) * * *
(d)
(h) * * *
(3)
(i) The prospective adoptive parents will be advised in writing. A notice of approval expires 15 months after the date on which USCIS received the Federal Bureau of Investigation (FBI) response on the applicant's, and any additional adult member of the household's, biometrics, unless approval is revoked. If USCIS received the responses on different days, the 15-month period begins on the earliest response date. The notice of approval will specify the expiration date.
(ii) USCIS may extend the validity period for the approval of a Form I-600A if requested in accordance with 8 CFR 106.2(a)(31). An applicant may not file a Form I-600A Supplement 3 seeking extension of an approval notice more than 90 days before the expiration of the validity period for the Form I-600A approval but must do so on or before the date on which the validity period expires if the applicant seeks an extension.
(iii) If the Form I-600A approval is for more than one orphan, the prospective adoptive parents may file a petition for each of the additional children, to the maximum number approved.
(iv) It does not guarantee that the orphan petition will be approved.
(7)
(i) The application will be deemed abandoned;
(ii) Supporting documentation will be returned to the prospective adoptive parents, except for documentation submitted by a third party which will be returned to the third party, and documentation relating to the biometric checks;
(iii) The director will dispose of documentation relating to biometrics checks in accordance with current policy; and
(iv) Such abandonment will be without prejudice to a new filing at any time with fee.
(13)
(14)
(ii) The approval of a Form I-600A or Form I-600 combination filing is automatically revoked if before the final decision on a beneficiary's application for admission with an immigrant visa or for adjustment of status:
(A) The marriage of the applicant terminates; or
(B) An unmarried applicant marries.
(iii) Revocation is without prejudice to the filing of a new Form I-600A or Form I-600 combination filing, with fee, accompanied by a new or updated home study, reflecting the change in marital status. If a Form I-600 had already been
(p) * * *
(4)
(A) File an application for employment authorization (Form I-765), with USCIS, in accordance with 8 CFR 274a.13(a) and the form instructions.
(B) Submit biometric information as may be provided in the applicable form instructions.
(e) * * *
(3)(i) If the 15-month validity period for a Form I-800A approval is about to expire, the applicant:
(A) May file Form I-800A Supplement 3 as described in 8 CFR 106.2(a)(31) to request an extension.
(B) May not file a Form I-800A Supplement 3 seeking extension of an approval notice more than 90 days before the expiration of the validity period for the Form I-800A approval, but must do so on or before the date on which the validity period expires if the applicant seeks an extension.
(ii) Any Form I-800A Supplement 3 that is filed to obtain an extension or update of the approval of a Form I-800A or to change of Hague Convention countries must be accompanied by:
(a)
6 U.S.C. 111, 202(4) and 271; 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 1184, 1185 note (sec. 7209, Pub. L. 108-458, 118 Stat. 3638), 1187, 1223, 1225, 1226, 1227, 1255, 1359; 8 CFR part 2. Section 212.1(q) also issued under sec. 702, Pub. L. 110-229, 122 Stat. 754, 854.
(b) * * *
(1)
(c) * * *
(1)
(e)
(h) * * *
(1) The entrepreneur's spouse and children who are seeking parole as derivatives of such entrepreneur must individually file Form I-131, Application for Travel Document. Such application must also include evidence that the derivative has a qualifying relationship to the entrepreneur and otherwise merits a grant of parole in the exercise of discretion. Such spouse or child will be required to appear for collection of biometrics in accordance with the form instructions or upon request.
(j)
6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305, 1357, and 1372; sec. 643, Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-386, 114 Stat. 1477-1480; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note and 1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 115-218, 132 Stat. 1547 (48 U.S.C. 1806).
(c) * * *
(5)
The revisions and republications read as follows:
(e) * * *
(8) * * *
(iii)
(iv)
(A) Present a letter from the treaty-qualifying company through which the alien attained E classification explaining the nature of the change;
(B) Request a new approval notice reflecting the non-substantive change by filing an application with a description of the change; or
(C) Apply directly to Department of State for a new E visa reflecting the change. An alien who does not elect one of the three options contained in paragraphs (e)(8)(iv)(A) through (C) of this section, is not precluded from demonstrating to the satisfaction of the immigration officer at the port-of-entry in some other manner, his or her admissibility under section 101(a)(15)(E) of the Act.
(v)
(23) * * *
(viii)
(h) * * *
(2) * * *
(i) * * *
(A)
(ii)
(5) * * *
(i) * * *
(B)
(19) * * *
(i) A United States employer (other than an exempt employer defined in paragraph (h)(19)(iii) of this section, or an employer filing a petition described in paragraph (h)(19)(v) of this section) who files a petition or application must include the additional American Competitiveness and Workforce Improvement Act (ACWIA) fee referenced in 8 CFR 106.2, if the petition is filed for any of the following purposes:
(m) * * *
(14) * * *
(ii)
(o) * * *
(2) * * *
(iv) * * *
(F)
(p) * * *
(2) * * *
(iv) * * *
(F)
(q) * * *
(5) * * *
(ii)
(r) * * *
(3) * * *
(5)
(w) * * *
(5)
(15) * * *
(iii) If the eligible spouse and/or minor child(ren) are present in the CNMI, the spouse or child(ren) may apply for CW-2 dependent status on Form I-539 (or such alternative form as USCIS may designate) in accordance with the form instructions. The CW-2 status may not be approved until approval of the CW-1 petition.
(16)
(c) * * *
(1)
8 U.S.C. 1103; 1182, 1186a, 1224, 1225, 1226, 1227, 1251, 1252 note, 1252a, 1252b, 1362; secs. 202 and 203, Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277 (112 Stat. 2681); 8 CFR part 2.
(a)
8 U.S.C. 1103, 1254, 1254a note, 8 CFR part 2.
(a) An application for Temporary Protected Status must be submitted in accordance with the form instructions, the applicable country-specific
(b) An applicant for TPS may also request an employment authorization document pursuant to 8 CFR part 274a by filing an Application for Employment Authorization in accordance with the form instructions and in accordance with 8 CFR 106.2 and 106.3.
(a) Aliens granted Temporary Protected Status must re-register periodically in accordance with USCIS instructions. Such registration applies to nationals of those foreign states designated for more than one year by DHS or where a designation has been extended for a year or more. Applicants for re-registration must apply during the period provided by USCIS. Re-registration applicants do not need to pay the fee that was required for initial registration except the biometric services fee, unless that fee is waived in the applicable form instructions, and if requesting an employment authorization document, the application fee for an Application for Employment Authorization. By completing the application, applicants attest to their continuing eligibility. Such applicants do not need to submit additional
8 U.S.C. 1101, 1103, 1182, 1252, 1255; Pub. L. 105-100, section 202, 111 Stat. 2160, 2193; Pub. L. 105-277, section 902, 112 Stat. 2681; Pub. L. 110-229, tit. VII, 122 Stat. 754; 8 CFR part 2.
The revision reads as follows:
(f)
8 U.S.C. 1101, 1103, 1255a and 1255a note.
(e) * * *
(3) A separate application must be filed by each applicant with the fees required by 8 CFR 106.2.
(d) * * *
(3) A separate application must be filed by each applicant with the fees required by 8 CFR 106.2.
(b) * * *
(5) * * *
(iii) A separate application must be filed by each applicant with the fees required by 8 CFR 106.2.
(d)
8 U.S.C. 1103, 1201, 1303-1305; 8 CFR part 2.
(a)
8 U.S.C. 1101, 1103, 1324a; 48 U.S.C. 1806; Pub. L. 101-410, 104 Stat. 890 (28 U.S.C. 2461 note); Pub. L. 114-74, 129 Stat. 599 (28 U.S.C. 2461 note); 8 CFR part 2.
(b) * * *
(9) A temporary worker or trainee (H-1, H-2A, H-2B, or H-3), pursuant to 8 CFR 214.2(h), or a nonimmigrant specialty occupation worker pursuant to section 101(a)(15)(H)(i)(b)(1) of the Act. An alien in this status may be employed only by the petitioner through whom the status was obtained. In the case of a professional H-2B athlete who is traded from one organization to another organization, employment authorization for the player will automatically continue for a period of 30 days after acquisition by the new organization, within which time the new organization is expected to file a new petition for H-2B classification. If a new petition is not filed within 30 days, employment authorization will cease. If a new petition is filed within 30 days, the professional athlete's employment authorization will continue until the petition is adjudicated. If the new petition is denied, employment authorization will cease. In the case of a nonimmigrant with H-1B status, employment authorization will automatically continue upon the filing of a qualifying petition under 8 CFR 214.2(h)(2)(i)(H) until such petition is adjudicated, in accordance with section 214(n) of the Act and 8 CFR 214.2(h)(2)(i)(H).
(13) An alien having extraordinary ability in the sciences, arts, education, business, or athletics (O-1), and an accompanying alien (O-2), pursuant to 8 CFR 214.2(o). An alien in this status may be employed only by the petitioner through whom the status was obtained. In the case of a professional O-1 athlete who is traded from one organization to another organization, employment authorization for the player will automatically continue for a period of 30 days after the acquisition by the new organization, within which time the new organization is expected to file a new petition for O nonimmigrant classification. If a new petition is not filed within 30 days, employment authorization will cease. If a new petition is filed within 30 days, the professional athlete's employment authorization will continue until the petition is adjudicated. If the new petition is denied, employment authorization will cease.
(14) An athlete, artist, or entertainer (P-1, P-2, or P-3), pursuant to 8 CFR 214.2(p). An alien in this status may be employed only by the petitioner through whom the status was obtained. In the case of a professional P-1 athlete who is traded from one organization to another organization, employment authorization for the player will automatically continue for a period of 30 days after the acquisition by the new
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS, upon request from the U.S. Navy (Navy), issues these regulations pursuant to the Marine Mammal Protection Act (MMPA) to govern the taking of marine mammals incidental to the training activities conducted in the Gulf of Alaska (GOA) Study Area. The Navy's activities qualify as military readiness activities pursuant to the MMPA, as amended by the National Defense Authorization Act for Fiscal Year 2004 (2004 NDAA). These regulations, which allow for the issuance of Letters of Authorization (LOA) for the incidental take of marine mammals during the described activities and timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species and their habitat, and establish requirements pertaining to the monitoring and reporting of such taking.
Effective February 3, 2023 through February 2, 2030.
A copy of the Navy's application, NMFS' proposed and final rules and subsequent LOAs for the existing regulations, and other supporting documents and documents cited herein may be obtained online at
Leah Davis, Office of Protected Resources, NMFS, (301) 427-8401.
These regulations, issued under the authority of the MMPA (16 U.S.C. 1361
NMFS received an application from the Navy requesting 7-year regulations and an authorization to incidentally take individuals of multiple species of marine mammals (Navy's rulemaking/LOA application or Navy's application). Take is anticipated to occur by Level A harassment and Level B harassment incidental to the Navy's training activities. No lethal take is anticipated or proposed for authorization.
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity, as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I, provide the legal basis for issuing this final rule and the subsequent LOAs. As directed by this legal authority, this final rule contains mitigation, monitoring, and reporting requirements.
The 2004 NDAA (Pub. L. 108-136) removed the “small numbers” and “specified geographical region” limitations indicated above and amended the definition of “harassment” as applied to a “military readiness activity.” The activity for which incidental take of marine mammals is being requested addressed here qualifies as a military readiness activity.
The following is a summary of the primary provisions of this final rule regarding the Navy's activities. These provisions include, but are not limited to:
• The use of defined powerdown and shutdown zones (based on activity);
• Measures to reduce the likelihood of ship strikes;
• Activity limitations in certain areas and times that are biologically important (
• Implementation of a Notification and Reporting Plan (for dead or live stranded marine mammals); and
• Implementation of a robust monitoring plan to improve our understanding of the environmental effects resulting from the Navy training activities.
Additionally, the rule includes an adaptive management component that allows for timely modification of mitigation or monitoring measures based on new information, when appropriate.
The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of proposed authorization is provided to the public for review and the opportunity to submit comments.
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stocks and will not have an unmitigable adverse impact on the availability of the species or stocks for taking for subsistence uses where relevant, including by Alaska Natives. Further, NMFS must prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses
The NDAA for Fiscal Year 2004 (2004 NDAA) (Pub. L. 108-136) amended section 101(a)(5) of the MMPA to remove the “small numbers” and “specified geographical region” provisions indicated above and amended the definition of “harassment” as applied to a “military readiness activity.” The definition of harassment for military readiness activities (Section 3(18)(B) of the MMPA) is (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild (Level A Harassment); or (ii) Any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered (Level B harassment). In addition, the 2004 NDAA amended the MMPA as it relates to military readiness activities such that the least practicable adverse impact analysis shall include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
More recently, Section 316 of the NDAA for Fiscal Year 2019 (2019 NDAA) (Pub. L. 115-232), signed on August 13, 2018, amended the MMPA to allow incidental take rules for military readiness activities under section 101(a)(5)(A) to be issued for up to 7 years. Prior to this amendment, all incidental take rules under section 101(a)(5)(A) were limited to 5 years.
On October 9, 2020, NMFS received an adequate and complete application from the Navy requesting authorization for take of marine mammals, by Level A harassment and Level B harassment, incidental to training from the use of active sonar and other transducers and explosives (in-air, occurring at or above the water surface) in the TMAA over a 7-year period. On March 12, 2021, the Navy submitted an updated application that provided revisions to the Northern fur seal take estimate and incorporated additional best available science. In August 2021, the Navy communicated to NMFS that it was considering an expansion of the GOA Study Area and an expansion of the Portlock Bank Mitigation Area proposed in its previous applications. On February 2, 2022, the Navy submitted a second updated application that described the addition of the WMA to the GOA Study Area (which previously just consisted of the TMAA) and the replacement of the Portlock Bank Mitigation Area with the Continental Shelf and Slope Mitigation Area. The GOA Study Area supports opportunistic experimentation and testing activities when conducted as part of training activities and when considered to be consistent with the proposed training activities. These activities could occur as part of large-scale exercises or as independent events. Therefore, there is no separate discussion or analysis for testing activities that may occur as part of the proposed military readiness activities in the GOA Study Area.
On January 8, 2021 (86 FR 1483), we published a notice of receipt (NOR) of application in the
The following types of training, which are classified as military readiness activities pursuant to the MMPA, as amended by the 2004 NDAA, will be covered under the regulations and LOA, if issued: Surface Warfare (detonations at or above the water surface) and Anti-Submarine Warfare (sonar and other transducers). The Navy is also conducting Air Warfare, Electronic Warfare, Naval Special Warfare, Strike Warfare, and Support Operations, but these activities do not involve sonar and other transducers, detonations at or above the water surface, or any other stressors that could result in the take of marine mammals. (See the 2022 GOA Final Supplemental Environmental Impact Statement (FSEIS)/Overseas Environmental Impact Statement (OEIS) (2022 GOA FSEIS/OEIS) for more detail on those activities.) The activities will not include in-water explosives, pile driving/removal, or use of air guns.
This is the third time NMFS has promulgated incidental take regulations pursuant to the MMPA relating to similar military readiness activities in the GOA, following regulations that were effective beginning May 4, 2011 (76 FR 25479; May 4, 2011) and April 26, 2017 (82 FR 19530; April 27, 2017). For this third round of rulemaking, the activities the Navy is planning to conduct are largely a continuation of ongoing activities conducted for more than a decade. While the specified activities have not changed, there are changes in the platforms and systems used in those activities, as well as changes in the bins (source classifications) used to analyze the activities. For example, two new sonar bins were added (MF12 and ASW1) and another bin was eliminated (HF6). This was due to changes in platforms and systems. Further, the Navy expanded the GOA Study Area to include the WMA, though the vast majority of the training activities will still occur only in the TMAA.
The Navy's mission is to organize, train, equip, and maintain combat-ready naval forces capable of winning wars, deterring aggression, and maintaining freedom of the seas. This mission is mandated by Federal law (10 U.S.C. 8062), which requires the readiness of the naval forces of the United States. The Navy executes this responsibility by establishing and executing training programs, including at-sea training and exercises, and ensuring naval forces have access to the ranges, operating areas (OPAREA), and airspace needed to develop and maintain skills for conducting naval activities.
The Navy has conducted training activities in the TMAA portion of the GOA Study Area since the 1990s. Since the 1990s, the Department of Defense has conducted a major joint training exercise in Alaska and off the Alaskan coast that involves the Departments of the Navy, Army, Air Force, and Coast Guard participants reporting to a unified or joint commander who coordinates the activities. These activities are planned to demonstrate and evaluate the ability of the services to engage in a conflict and successfully carry out plans in response to a threat to national security. The Navy's planned activities for the period of these regulations would be a continuation of the types and level of training activities that have been ongoing for more than a decade.
The Navy's rulemaking/LOA application reflects the most up-to-date compilation of training activities deemed necessary by senior Navy leadership to accomplish military readiness requirements. The types and
A detailed description of the specified activity was provided in our
Training activities will be conducted intermittently in the GOA Study Area over a maximum time period of up to 21 consecutive days annually from April to October to support a major joint training exercise in Alaska and off the Alaskan coast that involves the Departments of the Navy, Army, Air Force, and Coast Guard. The participants report to a unified or joint commander who coordinates the activities planned to demonstrate and evaluate the ability of the services to engage in a conflict and carry out plans in response to a threat to national security. The specified activities will occur over a maximum time period of up to 21 consecutive days each year during the 7-year period of validity of the regulations. The planned number of training activities are described in the Detailed Description of Proposed Activities section (Table 3).
The GOA Study Area is entirely at sea and is comprised of the TMAA and a warning area in the Gulf of Alaska, and the WMA. The term “at-sea” refers to training activities in the Study Area (both the TMAA and WMA) that occur (1) on the ocean surface, (2) beneath the ocean surface, and (3) in the air above the ocean surface. Navy training activities occurring on or over the land outside the GOA Study Area are not included in this rule, and are covered under separate environmental documentation prepared by the U.S. Air Force and the U.S. Army. As depicted in Figure 1 of the proposed rule (87 FR 49656; August 11, 2022), the TMAA is a polygon roughly resembling a rectangle oriented from northwest to southeast, approximately 300 nmi (556 km) in length by 150 nmi (278 km) in width, located south of Montague Island and east of Kodiak Island. The GOA Study Area boundary was intentionally designed to avoid Endangered Species Act (ESA)-designated Steller sea lion critical habitat. The WMA is located south and west of the TMAA, and provides an additional 185,806 nmi
The Navy categorizes many of its training activities into functional warfare areas called primary mission areas. The Navy's planned activities for the GOA Study Area generally fall into the following six primary mission areas: Air Warfare; Surface Warfare; Anti-Submarine Warfare; Electronic Warfare; Naval Special Warfare; and Strike Warfare. Most activities conducted in the GOA are categorized under one of these primary mission areas; activities that do not fall within one of these areas are listed as “support operations” or “other training activities.” Each warfare community (aviation, surface, and subsurface) may train in some or all of these primary mission areas. A description of the sonar, munitions, targets, systems, and other materials used during training activities within these primary mission areas is provided in Appendix A (Navy Activities Descriptions) of the 2022 GOA FSEIS/OEIS.
The Navy describes and analyzes the effects of its training activities within the 2022 GOA FSEIS/OEIS. In its assessment, the Navy concluded that of the activities to be conducted within the GOA Study Area, sonar use and in-air explosives occurring at or above the water surface were the stressors resulting in impacts on marine mammals that could rise to the level of harassment as defined under the MMPA. (The Navy is not proposing to conduct any activities that use in-water or underwater explosives.) These activities are limited to the TMAA. No activities involving sonar use or explosives would occur in the WMA or the portion of the warning area that extends beyond the TMAA. Therefore, the Navy's rulemaking/LOA application provides the Navy's assessment of potential effects from sonar use and explosives occurring at or above the water surface in terms of the various warfare mission areas they are associated with. Those mission areas include the following:
• Surface Warfare (in-air detonations at or above the water surface);
• Anti-Submarine warfare (sonar and other transducers).
The Navy's activities in Air Warfare, Electronic Warfare, Naval Special Warfare, Strike Warfare, Support Operations, and Other Training Activities do not involve sonar and other transducers, detonations at or near the surface, or any other stressors that could result in harassment, serious injury, or mortality of marine mammals. Therefore, the activities in these warfare areas are not discussed further in this rule, but are analyzed fully in the 2022 GOA FSEIS/OEIS. Additional detail regarding the primary mission areas was provided in our
The training activities in the GOA Study Area are considered to be a major training exercise (MTE). An MTE, for purposes of this rulemaking, is comprised of several unit-level activities conducted by several units operating together, commanded and controlled by a single Commander, and potentially generating more than 100 hours of active sonar. These exercises typically employ an exercise scenario developed to train and evaluate the exercise participants in tactical and operational
The Navy uses a variety of sensors, platforms, weapons, and other devices, including ones used to ensure the safety of Sailors and Marines, to meet its mission. Training with these systems may introduce sound and energy into the environment. The following subsections describe the acoustic and explosive stressors for marine mammals and their habitat (including prey species) within the GOA Study Area. Because of the complexity of analyzing sound propagation in the ocean environment, the Navy relied on acoustic models in its environmental analyses and rulemaking/LOA application that considered sound source characteristics and varying ocean conditions across the GOA Study Area. Stressor/resource interactions that were determined to have de minimis or no impacts (
Acoustic stressors include acoustic signals emitted into the water for a specific purpose, such as sonar, other transducers (devices that convert energy from one form to another—in this case, into sound waves), incidental sources of broadband sound produced as a byproduct of vessel movement, aircraft transits, and use of weapons or other deployed objects. Explosives also produce broadband sound but are characterized separately from other acoustic sources due to their unique hazardous characteristics. Characteristics of each of these sound sources are described in the following sections.
In order to better organize and facilitate the analysis of approximately 300 sources of underwater sound used by the Navy, including sonar and other transducers and explosives, a series of source classifications, or source bins, were developed. The source classification bins do not include the broadband noise produced incidental to vessel movement, aircraft transits, and weapons firing. Noise produced from vessel movement, aircraft transits, and use of weapons or other deployed objects is not carried forward because those activities were found to have de minimis or no impacts, as described above.
The use of source classification bins provides the following benefits:
• Provides the ability for new sensors or munitions to be covered under existing authorizations, as long as those sources fall within the parameters of a “bin”;
• Improves efficiency of source utilization data collection and reporting requirements anticipated under the MMPA authorizations;
• Ensures a precautionary approach to all impact estimates, as all sources within a given class are modeled as the most impactful source (highest source level, longest duty cycle, or largest net explosive weight) within that bin;
• Allows analyses to be conducted in a more efficient manner, without any compromise of analytical results; and
• Provides a framework to support the reallocation of source usage (hours/explosives) between different source bins, as long as the total numbers of takes remain within the overall analyzed and authorized limits. This flexibility is required to support evolving Navy training and testing requirements, which are linked to real world events.
Active sonar and other transducers emit non-impulsive sound waves into the water to detect objects, navigate safely, and communicate. Passive sonars differ from active sound sources in that they do not emit acoustic signals; rather, they only receive acoustic information about the environment, or listen. In this rule, the terms sonar and other transducers will be used to indicate active sound sources unless otherwise specified.
The Navy employs a variety of sonars and other transducers to obtain and transmit information about the undersea environment. Some examples are mid-frequency hull-mounted sonars used to find and track enemy submarines; high-frequency small object detection sonars used to detect mines; high-frequency underwater modems used to transfer data over short ranges; and extremely high-frequency (greater than 200 kilohertz (kHz)) doppler sonars used for navigation, like those used on commercial and private vessels. The characteristics of these sonars and other transducers, such as source level, beam width, directivity, and frequency, depend on the purpose of the source. Higher frequencies can carry more information or provide more information about objects off which they reflect, but attenuate more rapidly. Lower frequencies attenuate less rapidly, so they may detect objects over a longer distance, but with less detail.
Additional detail regarding sound sources and platforms and categories of acoustic stressors was provided in our
Sonars and other transducers are grouped into classes that share an attribute, such as frequency range or purpose of use. As detailed below, classes are further sorted by bins based on the frequency or bandwidth; source level; and, when warranted, the application in which the source would be used. Unless stated otherwise, a reference distance of 1 meter (m) is used for sonar and other transducers.
• Frequency of the non-impulsive acoustic source:
○ Low-frequency sources operate below 1 kHz;
○ Mid-frequency sources operate at and above 1 kHz, up to and including 10 kHz;
○ High-frequency sources operate above 10 kHz, up to and including 100 kHz;
○ Very-high-frequency sources operate above 100 kHz but below 200 kHz;
• Sound pressure level of the non-impulsive source;
○ Greater than 160 decibels (dB) re 1 micro Pascal (µPa), but less than 180 dB re: 1 µPa;
○ Equal to 180 dB re: 1 µPa and up to 200 dB re: 1 µPa;
○ Greater than 200 dB re: 1 µPa;
• Application in which the source would be used:
○ Sources with similar functions that have similar characteristics, such as pulse length (duration of each pulse), beam pattern, and duty cycle.
The bins used for classifying active sonars and transducers that are quantitatively analyzed for use in the TMAA are shown in Table 1 below. While general parameters or source characteristics are shown in the table, the actual source parameters are classified. Acoustic source bins used in the planned activities will vary annually. The seven-year totals for the planned training activities take into account that annual variability.
This section describes the characteristics of explosions during naval training. The activities analyzed in the Navy's rulemaking/LOA application that use explosives are described in additional detail in Appendix A (
The near-instantaneous rise from ambient to an extremely high peak pressure is what makes an explosive shock wave potentially damaging. Farther from an explosive, the peak pressures decay and the explosive waves propagate as an impulsive, broadband sound. Several parameters influence the effect of an explosive: the weight of the explosive in the warhead, the type of explosive material, the boundaries and characteristics of the propagation medium, the detonation depth, and the depth of the receiver (
Explosive detonations during training activities are from the use of explosive bombs and naval gun shells; however, no in-water explosive detonations are included as part of the training activities. For purposes of the analysis in this rule, detonations occurring in air at a height of 33 ft (10 m) or less above the water surface, and detonations occurring directly on the water surface, were modeled to detonate at a depth of 0.3 ft (0.1 m) below the water surface since there is currently no other identified methodology for modeling potential effects to marine mammals that are underwater as a result of detonations occurring in-air at or above the surface of the ocean (within 10 m above the surface). This conservative approach over-estimates the potential underwater impacts due to low-altitude and surface explosives by assuming that all explosive energy is released and remains under the water surface.
Explosive stressors resulting from the detonation of some munitions, such as missiles and gun rounds used in air-air and surface-air scenarios, occur at high altitude. The resulting sound energy from those detonations in air would not impact marine mammals. The explosive energy released by detonations in air has been well studied, and basic methods are available to estimate the explosive energy exposure with distance from the detonation (
In order to organize and facilitate the analysis of explosives, explosive classification bins were developed. The use of explosive classification bins provides the same benefits as described for acoustic source classification bins discussed above and in Section 1.4.1 (Acoustic Stressors) of the Navy's rulemaking/LOA application.
The explosive bin types and the number of explosives detonating at or above the water surface in the TMAA are shown in Table 2.
Propagation of explosive pressure waves in water is highly dependent on environmental characteristics such as bathymetry, bottom type, water depth, temperature, and salinity, which affect how the pressure waves are reflected, refracted, or scattered; the potential for reverberation; and interference due to multi-path propagation. In addition, absorption greatly affects the distance over which higher-frequency components of explosive broadband noise can propagate. Appendix B (
For in-air explosives detonating at or above the water surface, the model estimating acoustic impacts assumes that all acoustic energy from the detonation is underwater with no loss of sound or energy into the air. Important considerations must be factored into the analysis of results with these modeling assumptions, given that the peak pressure and sound from a detonation in air significantly decreases across the air-water interface as it is partially reflected by the water's surface and partially transmitted underwater, as detailed in the following paragraphs.
Detonation of an explosive in air creates a supersonic high-pressure shock wave that expands outward from the point of detonation (Kinney and Graham, 1985; Swisdak, 1975). The near-instantaneous rise from ambient to an extremely high peak pressure is what makes the explosive shock wave potentially injurious to an animal experiencing the rapid pressure change (U.S. Department of the Navy, 2017a). As the shock wave-front travels away from the point of detonation, it slows and begins to behave as an acoustic wave-front traveling at the speed of sound. Whereas a shock wave from a detonation in-air has an abrupt peak pressure, that same pressure disturbance when transmitted through the water surface results in an underwater pressure wave that begins and ends more gradually compared with the in-air shock wave, and diminishes with increasing depth and distance from the source (Bolghasi
To more completely analyze the results predicted by the Navy's acoustic effects model from detonations occurring in-air above the ocean surface, it is necessary to consider the transfer of energy across the air-water interface. Much of the scientific literature on the transferal of shock wave impulse across the air-water interface has focused on energy from sonic booms created by fast moving aircraft flying at low altitudes above the ocean (Chapman and Godin, 2004; Cheng and Edwards, 2003; Moody, 2006; Sawyers, 1968; Waters and Glass, 1970). The shock wave created by a sonic boom is similar to the propagation of a pressure wave generated by an explosion (although having a significantly slower rise in peak pressure) and investigations of sonic booms are somewhat informative. Waters and Glass (1970) were also investigating sonic booms, but their methodology involved actual in-air detonations. In those experiments, they detonated blasting caps elevated 30 ft (9 m) above the surface in a flooded quarry and measured the resulting pressure at and below the surface to determine the penetration of the shock wave across the air-water interface. Microphones above the water surface recorded the peak pressure in-air, and hydrophones at various shallow depths underwater recorded the unreflected remainder of the pressure wave after transition across the air-water interface. The peak pressure measurements were compared and the results supported the theoretical expectations for the penetration of a pressure wave from air into water,
NMFS also considered the chance that a vessel utilized in training activities could strike a marine mammal in the GOA Study Area, including both the TMAA and WMA portions of the Study Area. Vessel strikes have the potential to result in incidental take from serious injury and/or mortality. Vessel strikes are not specific to any particular training activity, but rather are a limited, sporadic, and incidental result of Navy vessel movement within a study area. NMFS' detailed analysis of the likelihood of vessel strike was provided in the “Potential Effects of Vessel Strike” section of our proposed rulemaking (87 FR 49656; August 11, 2022); please see that notice of proposed rulemaking or the Navy's application for more information. No additional information has been received since publication of the proposed rule that substantively changes the agency's analysis or conclusions. Therefore, the information and analysis included in the proposed rule supports NMFS' concurrence with the Navy's conclusion and our final determination that vessel strikes of marine mammals, and associated serious injury or mortality, are not likely to result from the Navy's activities included in this seven-year rule, and vessel strikes are not discussed further.
The Navy's Operational Commands have identified activity levels that are needed in the GOA Study Area to ensure naval forces have sufficient training, maintenance, and new technology to meet Navy missions in the Gulf of Alaska. Training prepares Navy personnel to be proficient in safely operating and maintaining equipment, weapons, and systems to conduct assigned missions.
The Navy plans to conduct a single carrier strike group (CSG) exercise, which will last for a maximum of 21 consecutive days in a year. The CSG exercise is comprised of several individual training activities. Table 3 lists and describes those individual activities that may result in takes of marine mammals. The events listed will occur intermittently during the 21 days and could be simultaneous and in the same general area within the TMAA or could be independent and spatially separate from other ongoing activities. The table is organized according to primary mission areas and includes the activity name, associated stressor(s), description and duration of the activity, sound source bin, the areas where the activities are conducted in the GOA Study Area, the maximum number of events per year in the 21-day period, and the maximum number of events over 7 years. For further information regarding the primary platform used (
Not all sound sources are used with each activity. The “Annual # of Events” column indicates the maximum number of times that activity could occur during any single year. The “7-Year # of Events” is the maximum number of times an activity would occur over the 7-year period of the regulations if the training occurred each year and at the maximum levels requested. The events listed will occur intermittently during the exercise over a maximum of 21 days. The maximum number of activities may not occur in some years, and historically, training has occurred only every other year. However, to conduct a conservative analysis, NMFS analyzed the maximum times these activities could occur over one year and 7 years. (Note the Navy proposes no low-frequency active sonar (LFAS) use for the activities in this rulemaking.)
For training to be effective, personnel must be able to safely use their sensors and weapon systems as they are intended to be used in military missions and combat operations and to their optimum capabilities. Standard operating procedures applicable to training have been developed through
Because standard operating procedures are essential to safety and mission success, the Navy considers them to be part of the planned specified activities, and has included them in the environmental analysis in the 2022 GOA FSEIS/OEIS. Additional details on standard operating procedures were provided in our
We published the proposed rule in the
NMFS has reviewed and considered all public comments received on the proposed rule and issuance of the LOA, including comments received from CBD after the public comment period ended. All substantive comments and our responses are described below. We organize our comment responses by major categories.
The impulse mortality/injury equations are depth dependent, with thresholds increasing with depth due to increasing hydrostatic pressure in the model for both the previous 2015-2020 phase of rulemaking (Phase II) and Phase III. The underlying experimental data used in Phase II and Phase III remain the same, and two aspects of the Phase III revisions explain the relationships the commenter notes:
(1) The numeric coefficients in the equations are computed by inserting the Richmond
(2) The rate of increase for the Phase II thresholds with depth is greater than the rate of increase for Phase III thresholds with depth because the Phase III equations take into account the corresponding reduction in lung size with depth (making an animal more vulnerable to injury per the Goertner model), as the commenter notes.
The Commission stated that in addition, the circumstances of the deaths of multiple common dolphins during one of the Navy's underwater detonation events in March 2011 (Danil and St. Leger, 2011) indicate that the Navy's mitigation measures are not fully effective, especially for explosive activities. Recently, Oedekoven and Thomas (2022) also confirmed the ineffectiveness of Navy lookouts to sight marine mammals at various distances
If the Navy does not implement the Commission's recommendation, the Commission further recommended that NMFS (1) specify why it bases explosive thresholds for Level A harassment on onset PTS and Level B harassment on onset TTS and onset behavioral response, while the explosive thresholds for mortality and Level A harassment are based on the 50-percent criteria for mortality, slight lung injury, and GI tract injury, (2) provide scientific justification supporting the assumption that slight lung and GI tract injuries are less severe than PTS and thus the 50-percent rather than onset criteria are more appropriate for estimating Level A harassment for those types of injuries, and (3) justify why the number of estimated mortalities should be predicated on at least 50 percent rather than 1 percent of the animals dying, particularly given the ineffectiveness of lookouts.
While the approaches for evaluating non-auditory injury and mortality are based on different types of data and analyses from the evaluation of PTS and behavioral disturbance, and are not identical, NMFS disagrees with the commenter's assertion that the approaches are inconsistent, as both approaches consider a combination of thresholds and mitigation (where applicable) to inform take estimates. For the same reasons, it is not necessary for NMFS to “provide scientific justification supporting the assumption that slight lung and GI tract injuries are less severe than PTS,” as that assumption is not part of NMFS' rationale for the methods used. NMFS has explained in detail its justification for the number of estimated mortalities, which is based on both the 50 percent threshold and the mitigation applied at the one percent threshold. Further, we note that many years of Navy monitoring following explosive exercises has not detected evidence that any injury or mortality has resulted from Navy explosive exercises with the exception of one incident with dolphins in California, after which mitigation was adjusted to better account for explosives with delayed detonations (
Furthermore, for these reasons, the methods used for estimating mortality and non-auditory injury are appropriate for estimating take, including determining the “significant potential” for non-auditory injury consistent with the statutory definition of Level A harassment for military readiness activities, within the limits of the best available science. Using the one percent threshold would be inappropriate and result in an overestimation of effects, whereas given the mitigation applied within this larger area, the 50 percent threshold results in an appropriate mechanism for estimating the significant potential for non-auditory injury.
While the Lookout Effectiveness Study suggests that detection of marine mammals is less certain than previously assumed, given the modeling results, this does not affect whether use of the 50 percent threshold is appropriate for calculating mortality from explosives. For explosives in bin E12, the bin with the largest net explosive weight (NEW; >650-1,000 lb.) planned for use by the Navy in the GOA Study Area, the average range to 50 percent non-auditory injury for all marine mammal hearing groups (Table 30) is 190 m. The range to 50 percent mortality risk for all marine mammal hearing groups (Table 31) for the same bin (E12) and the smallest (
Regarding the assertion in the Commission's letter that the approaches for assessing the impacts from a single underwater detonation and a single in-air detonation are inconsistent, we disagree. Both approaches/thresholds are based on the best available data. As noted above, we are unaware of data suggesting that marine mammals will respond to single underwater explosive detonation below the TTS threshold in a manner that would qualify as a take. Conversely, for single in-air events such as missile launch noise and sonic booms, there are extensive data supporting the application of the lower behavioral thresholds,
Clarification on the incorporation of uncertainty in density estimates is provided in the Density Technical Report “U.S. Navy Marine Species Density Database Phase III for the Gulf of Alaska Temporary Maritime Activities Area,” as cited in the 2022 GOA FSEIS/OEIS and available at
Using a mean density estimate that incorporates appropriate measures of uncertainty, as was done for the species listed in the Commission's comment, is a commonly used and scientifically valid method of estimating a value (
Regarding pinnipeds, NMFS and the Navy continue to seek appropriate methods for incorporating uncertainty into density estimates for pinnipeds, and by extension, into the Navy's estimates of exposures. As the Commission noted in its comment, of the six pinniped species for which the Navy calculates densities, only the northern fur seal incorporated a CV as a measure of uncertainty in the density estimate. The CV was provided in the SAR (Muto
NMFS concurs with the Navy's use of uncertainty, where available, in the densities applied through their model and reiterates that the best available science was used and applied appropriately to estimate marine mammal take.
The Commission further states that Rone
Given their nearshore distribution, it would not be appropriate to use an overall harbor porpoise density estimate of 0.1956 animal/km
GOA TMAA depth distribution:
Based on the Hobbs and Waite (2010) density estimate of 0.1956 animal/km
The Navy adopted new methodologies and densities based on the best available science to improve the Navy's pinniped
The percentages of northern fur seals occurring in the GOA LME presented in Table 10-2 are consistent with the information presented in the text of the Density Technical Report (U.S. Department of the Navy, 2021). The percentages for January through March were not shown in Table 10-2 because the Navy only presented densities for the period relevant to the planned training in the GOA Study Area (April through October). The percentages for January through April (equivalent to the data in Table 10-2) are provided in the table below.
As described in the text of the Density Technical Report, the average percentage from January through April is 29 percent for juvenile females and 16 percent for juvenile males. Those averages were used for May and June for females and males, respectively. The process for estimating juvenile abundances, as presented in Table 10-2, is described in the text of the Density Technical Report. For example, the abundance of juvenile females is calculated as:
Abundance = 620,660 × 0.085 × 0.35 = 18,456 juvenile female fur seals; where 8.5 percent is the class percentage of the stock (Density Technical Report Table 10-1, see footnote 2) and 35 percent is the portion of the class occurring in the Study Area in April (Table 10-2).
The estimates of monthly abundances, including for juveniles, were validated by pinniped scientists at the Alaska Fisheries Science Center's Marine Mammal Lab, several of whom are co-authors on the paper by Zeppelin
While the SARs do reference more recent surveys (Sweeney
A small area east of the 144° W longitude line, which defines the DPS boundary for Steller sea lions, overlapped with a conservatively sized area used by the Navy to delineate where species' densities were needed for modeling. The “density area” extended well beyond the TMAA and the Navy's area of potential effects; however, only densities inside the TMAA were reported in the Density Technical Report. The Navy estimated two seasonal densities for the Eastern DPS of Steller sea lions in the portion of the density area defined by the 144° W longitude line and the 500 m isobath (see table below).
The portion of the Eastern DPS that overlaps with the density area and is in waters less than 500 m is approximately 100 km north of the TMAA. The portion of the Eastern DPS (east of the 144° W longitude line) that overlaps with the TMAA is farther offshore and considerably deeper than 500 m and therefore has a zero density. Table 10-6 in the Density Technical Report specifically indicates densities are only provided inside the TMAA. Therefore, only a zero density for the Eastern DPS is reported in Table 10-6 for areas inside the TMAA. Additional text has been added to the Density Technical Report to explain this in greater detail. Prior to Navy analysis, NMFS reviewed and concurred with all densities used in the Density Technical Report.
The Navy does not “forward project” abundances for any species, and NMFS concurs with this decision. A growth rate was applied to project an abundance to the present time (
Further, as explained in more detail in response to Comments 10 and 14, take estimation is not an exact science, and updating the density using the most recent northern elephant seal abundance estimate of 187,386 rather than 179,000 is not required in order to have an equally valid and supportable analysis. The change would be minor in nature within the context of our analysis, and recalculating the estimated take using the commenter's recommended changes would not change NMFS' assessment of impacts on the rates of recruitment or survival of any of these stocks, or the negligible impact determinations.
The abundances for the four stocks used in the density calculations are the abundances in the 2019 final SAR (Muto
The haulout factors used to estimate the number of harbor seals in the water were adapted from Withrow and Loughlin (1995), who estimated that harbor seals were hauled out 58 percent of the time (42 percent in water) during molting season (August-September) on Grand Island in southeast Alaska; Pitcher and McAllister (1981), who estimated seals were in the water 50 percent of the time during pupping season and 59 percent during molting season on Kodiak Island; and Withrow
Further, the comparison of the take estimate for the Navy's GOA training activities to take authorizations for other activities in Alaska is not appropriate given the differences in location among these activities and the likelihood of occurrence of various species at these project sites. The Navy's Gulf of Alaska activities are planned for the GOA Study Area, an offshore area in the Gulf of Alaska (see Figure 1 of the proposed rule; 87 FR 49656; August 11, 2022), while the projects that the commenter has referenced are occurring either at a location on the Alaska shoreline or in the Arctic Ocean. Given that occurrence of marine mammals at shoreline locations is site specific, and the distance of the Arctic Ocean from the GOA Study Area, it is incorrect to assume that occurrence of marine mammals would be similar at all project sites. For the reasons described above, including in the responses to Comments 6 through 13re, authorizing additional takes of marine mammals beyond that proposed for authorization in the proposed rule is not warranted, and the authorized takes will have a negligible impact on the relevant species and stocks as described in the Analysis and
Additionally, given the increased use of active sonar during major CSG exercises, the commenter recommended the Combat Acoustics Division, ASWO, and Surface Ship Anti-Submarine Warfare Specialist conduct Sonar Positional Reporting System training prior to any major CSG exercises. The commenter asserted that this will ensure that active sonar use is properly documented and can be later reviewed if a marine mammal is significantly injured to determine if active sonar was a likely cause.
MSAT, PMAP, and SPORTS training are required for personnel both upon reporting aboard (
When practicable, NMFS sometimes recommends the inclusion of buffers around areas specifically delineated to contain certain important habitat or high densities of certain species, to allow for further reduced effects on specifically identified features/species. However, buffers are not always considered necessary or appropriate in combination with more generalized and inclusive measures, such as coastal offsets or other areas that are intended to broadly contain important features for a multitude of species. In the case of this rulemaking, NMFS and the Navy have included two protective areas that will reduce impacts on multiple species and habitats and, as described above, limitations in additional areas is not practicable.
Mitigation within the North Pacific Right Whale Mitigation Area is primarily designed to avoid or further reduce potential impacts to North Pacific right whales within important feeding habitat. The mitigation area fully encompasses the portion of the BIA identified by Ferguson
Additionally, the North Pacific Right Whale Mitigation Area overlaps with a small portion of the humpback whale critical habitat Unit 5, in the southwest
The mitigation in this area would also help avoid or reduce potential impacts on fish and invertebrates that inhabit the mitigation area and which marine mammals prey upon. As described in Section 5.4.1.5 (Fisheries Habitats) of the 2022 GOA FSEIS/OEIS, the productive waters off Kodiak Island support a strong trophic system from plankton, invertebrates, small fish, and higher-level predators, including large fish and marine mammals.
As described in further detail in response to Comment 19, the Continental Shelf and Slope Mitigation Area is expected to reduce the probability, number, and/or severity of takes of humpback whales, North Pacific right whales, and gray whales in this important area (noting that no takes are predicted for gray whales). Additionally, mitigation in this area will likely reduce the number and severity of potential impacts to marine mammals in general, by reducing the likelihood that feeding is interrupted, delayed, or precluded for some limited amount of time.
The main driver for ship speed reduction is reducing the possibility and severity of ship strikes to large whales. However, even given the wide ranges of speeds from slow to fast that Navy ships have used in training in the GOA Study Area, there have been no documented vessel strikes of marine mammals by the Navy.
As discussed in the 2016 GOA FSEIS/OEIS Section 5.1.2 (Vessel Safety), Navy standard operating procedures require that ships operated by or for the Navy have personnel assigned to stand watch at all times, day and night, when moving through the water (
When developing Phase III mitigation measures, the Navy analyzed the potential for implementing additional types of mitigation, such as vessel speed restrictions within the GOA Study Area.
• clearly separate its application of the least practicable adverse impact requirement from its negligible impact determination;
• adopt a clear decision-making framework that recognizes the species and stock component and the marine mammal habitat component of the least practicable adverse impact provision and always consider whether there are potentially adverse impacts on marine mammal habitat and whether it is practicable to minimize them;
• rework its evaluation criteria for applying the least practicable adverse impact standard to separate the factors used to determine whether a potential impact on marine mammals or their habitat is adverse and whether possible mitigation measures would be effective;
• address these concerns by adopting a simple, two-step analysis that more closely tracks the statutory provisions being implemented and, if NMFS is using some other legal standard to implement the least practicable adverse impact requirements, provide a clear and concise description of that standard and explain why it believes it to be “sufficient” to meet the statutory legal requirements; and
• adopt general regulations to govern the process and set forth the basic steps and criteria that apply across least practicable adverse impact determinations.
In the Mitigation Measures section of this rule, NMFS has explained in detail our interpretation of the least practicable adverse impact standard, the rationale for our interpretation, and how we implement the standard. The method the agency is using addresses all of the necessary components of the standard and produces effective mitigation measures that result in the least practicable adverse impact on both the species or stocks and their habitat. The commenter has failed to illustrate why NMFS' approach is inadequate or why the commenter's proposed approach would be better, and we therefore decline to accept the recommendation.
Also, in the Mitigation Measures section, NMFS has explained in detail our interpretation and application of the least practicable adverse impact standard. The commenter has recommended an alternate way of interpreting and implementing the least practicable adverse impact standard, in which NMFS would consider the effectiveness of a measure in our evaluation of its practicability. The commenter erroneously asserts that NMFS currently considers the effectiveness of a measure in a determination of whether the potential effects of an activity are adverse, but the commenter has misunderstood NMFS' application of the standard—rather, NMFS appropriately considers the effectiveness of a measure in the evaluation of the degree to which a measure will reduce adverse impacts on marine mammal species or stocks and their habitat, as a less effective measure will less successfully reduce these impacts on marine mammals. Further, the commenter has not provided information that shows that their proposed approach would more successfully evaluate mitigation under the least practicable adverse impact standard, and we decline to accept it.
Further, NMFS disagrees with the commenter's assertion that analysis of the rule's mitigation measures under the least practicable adverse impact standard remains unclear or that the suggested shortcomings exist. The commenter provides no rationale as to why the two-step process they describe is better than the process that NMFS uses to evaluate the least practicable adverse impact that is described in the rule, and therefore we decline to accept the recommendation.
Regarding the assertion that the standard shifts on a case-by-case basis, the commenter misunderstands the agency's process. Neither the least practicable adverse impact standard nor NMFS' process for evaluating it shifts on a case-by-case basis. Rather, as the commenter suggests should be the case, the evaluation itself is case-specific to the proposed activity, the predicted impacts, and the mitigation under consideration.
Regarding the recommendation to adopt general regulations, we appreciate the recommendation and may consider the recommended approach in the future. However, providing directly relevant explanations of programmatic
In a related comment, a commenter recommended installing passive acoustic monitoring in the TMAA to inform mariners about the presence of marine mammals.
The Navy does employ passive acoustic devices (
Furthermore, adding a passive acoustic monitoring capability to additional explosive activities (either by adding a passive acoustic monitoring device to a platform already participating in the activity, or by adding an additional platform to the activity) for mitigation is not practical. For example, all platforms participating in an explosive bombing exercise (
As noted in the comment, the Navy conducted a Lookout Effectiveness Study in association with the University of St. Andrews for several years to assess the ability of shipboard Lookouts to observe marine mammals while conducting hull-mounted sonar training activities at sea. The University of St. Andrews' report was provided to NMFS on April 1, 2022 as required by a Term and Condition in the Endangered Species Act (ESA) Incidental Take Statements for the Biological Opinions associated with NMFS' 2020 final rule for Navy training and testing activities in the NWTT and Mariana Islands Training and Testing (MITT) Study Areas. The Lookout Effectiveness Study is available at
Regarding how NMFS concluded that the Navy's mitigation measures based on visual monitoring do not need to be supplemented for those activities involving injury considering Oedekoven and Thomas (2022), NMFS implemented the least practicable adverse impact standard as described in the
Neither NMFS nor the Navy signed a Record of Decision (the decision document through which NMFS adopted the 2022 GOA FSEIS/OEIS) until the comments received in both the NEPA and MMPA processes were considered. During this rulemaking process, had comments been received on the proposed rule that warranted changes or additional analysis in the NEPA process, NMFS and the Navy would have addressed these comments through each agency's Record of Decision, or otherwise amended the analysis to address the issues raised by any such comments.
It is unclear what the commenter means by “add mitigation for environmental justice impacts,” and the commenter did not provide sufficient information in order to incorporate such a recommendation. However, the Portlock Bank Mitigation Area that was included in the 2020 Draft SEIS/OEIS was developed for the purpose of reducing potential impacts on fishery resources in a location important to Alaska Native Tribes. That mitigation area was expanded, as included in NMFS' proposed rule (87 FR 49656; August 11, 2022), this final rule, and in the 2022 GOA FSEIS/OEIS, to cover the entire continental shelf and slope in a new area called the Continental Shelf and Slope Mitigation Area. (Please see the
The MMPA requires that ITAs must not have an unmitigable adverse impact on subsistence uses (16 U.S.C. 1371(a)(5)(A)(i)), and NMFS has determined that the total taking of affected species or stocks will not have an unmitigable adverse impact on the availability of the species or stocks for taking for subsistence purposes. The Navy's training activities are not expected to impact the ability of Alaska Natives to conduct subsistence hunts or the availability of marine mammals to those hunts. There is no spatial and temporal overlap between the Navy's proposed activities and subsistence whaling or sealing areas. The GOA Study Area is located over 12 nautical miles offshore with the nearest inhabited land being the Kenai Peninsula (24 nautical miles from the GOA Study Area). Information provided by Tribes in harvest reports indicates that harvests tend to occur nearshore, and they do not use the GOA Study Area for subsistence hunting of marine mammals. Please see the Subsistence Harvest of Marine Mammals section for more information.
Our 1989 final rule for the MMPA implementing regulations also addressed how cumulative effects from unrelated activities would be considered. There we stated that such effects are not separately considered in making findings under section 101(a)(5) concerning negligible impact, but that NMFS would consider cumulative effects that are reasonably foreseeable when preparing a NEPA analysis and also that reasonably foreseeable cumulative effects would be considered under section 7 of the ESA for ESA-listed species.
The cumulative effects of the incremental impact of the proposed action when added to other past, present, and reasonably foreseeable future actions (as well as the effects of climate change) were evaluated against the appropriate resources and regulatory baselines in the 2022 GOA FSEIS/OIES. The best available science and a comprehensive review of past, present, and reasonably foreseeable actions (including construction and oil and gas activities) was used to develop the Cumulative Impacts analysis. This analysis is contained in Chapter 4 of the 2022 GOA FSEIS/OIES. As required under NEPA, the level and scope of the analysis is commensurate with the scope of potential impacts of the action and the extent and character of the potentially-impacted resources (
Further, cumulative effects to listed species of the specified activity in combination with other activities are analyzed in the ESA biological opinion. This analysis is contained in section 9 (Cumulative Effects). The opinion states that it assumes effects in the future would be similar to those in the past and, therefore, are reflected in the anticipated trends described in the Species and Designated Critical that May be Affected and Environmental Baseline sections of the biological opinion (Sections 0 and 7, respectively).
As discussed in the proposed rule, this final rule, and the Navy's report, animats in the Navy's acoustic effects model do not move horizontally or “react” to sound in any way. Specifically, this means that the Navy's model does not take into account either the likelihood of avoidance or any consideration of mitigation effectiveness. Accordingly, NMFS and the Navy's analysis appropriately applies a quantitative adjustment to the exposure results calculated by the model to consider avoidance and mitigation.
Regarding avoidance, sound levels diminish quickly below levels that could cause PTS. Specifically, behavioral response literature, including the recent 3S studies (multiple controlled sonar exposure experiments on cetaceans in Norwegian waters) and Southern California behavioral response studies (SOCAL BRS) (multiple cetacean behavioral response studies in Southern California), indicate that multiple species from different cetacean suborders do in fact avoid approaching sound sources by a few hundred meters or more, which would reduce received sound levels for individual marine mammals to levels below those that could cause PTS (see Appendix B of the “Criteria and Thresholds for U.S. Navy Acoustic and Explosive Impacts to Marine Mammals and Sea Turtles Technical Report” (U.S. Department of the Navy, 2017) and Southall
As discussed in the Navy's report, the Navy's acoustic effects model does not consider procedural mitigations (
The Navy assumes that Lookouts will not be 100 percent effective at detecting all individual marine mammals within the mitigation zones for each activity. This is due to the inherent limitations of observing marine species and because the likelihood of sighting individual animals is largely dependent on observation conditions (
The adjustment made for mitigation effectiveness is small (no more than
The g(0) values used by the Navy for their mitigation effectiveness adjustments take into account the differences in sightability with sea state, and utilize averaged g(0) values for sea states of 1-4 and weighted as suggested by Barlow (2015). Using g(0) values is an appropriate and conservative approach (
While use of the estimated mitigation effectiveness scores from Oedekoven and Thomas (2022) to reduce Level A harassment takes may be more conservative than the current scores, using the Oedekoven and Thomas (2022) scores would not necessarily be more accurate, given the assumptions made in the report. For small cetaceans in particular, as stated in the report, “the [Oedekoven and Thomas (2022)] model assumed no horizontal movement, while some small cetaceans are attracted to ships and can move quickly” or show avoidance behaviors, though, the report does note that despite that limitation, the probability of small cetaceans going undetected is still high. The Navy's mitigation effectiveness adjustments also assume a high probability that an animal would go undetected.
In addition to the differences in assumptions highlighted above, the p(detection) in the Oedekoven and Thomas (2022) takes into account the portion of time an animal or pod is at the surface. For availability, Oedekoven and Thomas (2022) used assumptions about dive behavior based on several representative species (the most sighted species in the study) and applied these assumptions across entire animal groups (rorqual, sperm, and small cetacean). Alternatively, the Navy's analysis uses specific g(0) values for the species in the study area. Given the differences in assumptions between the Navy's methods and those outlined in Oedekoven and Thomas (2022), NMFS does not find it appropriate to modify the mitigation effectiveness adjustment based on the Oedekoven and Thomas (2022) results at this time. However, NMFS and the Navy are continuing to evaluate the report results in order to determine how to best apply mitigation effectiveness moving forward.
Although NAEMO predicted PTS takes from the GOA activities, no mortality or non-auditory injuries were predicted by NAEMO. Therefore, as detailed in the Estimated Take of Marine Mammals section of this rule, and in Section 3.8.3.2.2.1 (Methods for Analyzing Impacts from Explosives) of the 2022 GOA FSEIS/OEIS, the Navy Acoustic Effects Model estimated zero takes by mortality for all marine mammal species in the TMAA. Therefore, mitigation for explosives is discussed qualitatively but was not factored into the quantitative analysis for marine mammals (
The commenter did not provide sufficient information regarding “other technological techniques to better training their personnel” in order to incorporate such a recommendation.
Regarding caution around marine mammals, the Navy is required to implement mitigation measures, including procedural mitigation measures, such as required shutdowns and delays of activities if marine mammals are sighted within certain distances, and geographic area mitigation measures, including limitations on activities such as sonar in areas that are important for certain behaviors such as feeding. These mitigation measures were designed to lessen the frequency and severity of impacts from the Navy's activities on marine mammals and their habitat, and ensure that the Navy's activities have the least practicable adverse impact on species and stocks. See the Mitigation Measures section of this final rule for additional detail on specific procedural mitigation measures and measures in mitigation areas.
This final rule includes no substantive changes from the proposed rule. However, this final rule includes a minor addition to reporting requirements. The new measure requires the Navy to coordinate with NMFS prior to conducting exercises within the GOA Study Area. This may occur as a part of coordination the Navy does with other local stakeholders.
Marine mammal species and their associated stocks that have the potential to occur in the GOA Study Area are presented in Table 6. The Navy anticipates the take of individuals of 16 marine mammal species by Level A harassment and Level B harassment, and NMFS has conservatively analyzed and authorized incidental take of two additional species. The Navy does not request authorization for any serious injuries or mortalities of marine mammals, and NMFS agrees that serious injury and mortality is unlikely to occur from the Navy's activities. NMFS recently designated critical habitat under the Endangered Species Act (ESA) for humpback whales in the TMAA portion of the GOA Study Area, and this designated critical habitat is considered below (86 FR 21082; April 21, 2021). The WMA portion of the GOA Study Area does not overlap ESA-designated critical habitat for humpback whales or any other species.
The GOA proposed rule included additional information about the species in this rule, all of which remains valid and applicable but has not been reprinted in this final rule, including a subsection entitled
Information on the status, distribution, abundance, population trends, habitat, and ecology of marine mammals in the GOA Study Area may be found in Chapter 4 of the Navy's rulemaking/LOA application. NMFS reviewed this information and found it to be accurate and complete. Additional information on the general biology and ecology of marine mammals is included in the 2022 GOA FSEIS/OEIS. Table 6 incorporates the best available science, including data from the 2021 U.S. Pacific and the Alaska Marine Mammal Stock Assessment Reports (SARs; Carretta
To better define marine mammal occurrence in the TMAA, the portion of the GOA Study Area where take of marine mammals is anticipated to occur, four regions within the TMAA were defined (and are depicted in Figure 3-1 of the Navy's rulemaking/LOA application), consistent with the survey strata used by Rone
Below, we include additional information about the marine mammals in the area of the specified activities that informs our analysis, such as identifying known areas of important habitat or behaviors, or where Unusual Mortality Events (UME) have been designated.
On April 21, 2021 (86 FR 21082), NMFS published a final rule designating critical habitat for the endangered Western North Pacific DPS, the endangered Central America DPS, and the threatened Mexico DPS of humpback whales, including specific marine areas located off the coasts of California, Oregon, Washington, and Alaska. Based on consideration of national security, economic impacts, and data deficiency in some areas, NMFS excluded certain areas from the designation for each DPS.
NMFS identified prey species, primarily euphausiids and small pelagic schooling fishes (see the final rule for particular prey species identified for each DPS; 86 FR 21082; April 21, 2021) of sufficient quality, abundance, and accessibility within humpback whale feeding areas to support feeding and population growth, as an essential habitat feature. NMFS, through a critical habitat review team (CHRT), also considered inclusion of migratory corridors and passage features, as well as sound and the soundscape, as essential habitat features. However, NMFS did not include either, as the CHRT concluded that the best available science did not allow for identification of any consistently used migratory corridors or definition of any physical, essential migratory or passage conditions for whales transiting between or within habitats of the three DPSs. The best available science also currently does not enable NMFS to identify a sound-related habitat feature that is essential to the conservation of humpback whales.
NMFS considered the co-occurrence of this designated humpback whale critical habitat and the GOA Study Area. Figure 4-1 of the Navy's rulemaking/LOA application shows the overlap of the humpback whale critical habitat with the TMAA. As shown in the Navy's rulemaking/LOA application, the TMAA overlaps with humpback whale
BIAs include areas of known importance for reproduction, feeding, or migration, or areas where small and resident populations are known to occur (Van Parijs, 2015). Unlike ESA critical habitat, these areas are not formally designated pursuant to any statute or law, but are a compilation of the best available science intended to inform impact and mitigation analyses. An interactive map of BIAs may be found here:
The WMA does not overlap with any known BIAs. BIAs in the GOA that overlap portions of the TMAA include the following feeding and migration areas: North Pacific right whale feeding BIA (June-September); Gray whale migratory corridor BIA (November—January, southbound; March—May, northbound) (Ferguson
A portion of the North Pacific right whale feeding BIA overlaps with the western side of the TMAA by approximately 2,051 square kilometers (km
A UME is defined under Section 410(6) of the MMPA as a stranding that is unexpected; involves a significant die-off of any marine mammal population; and demands immediate response. There is one UME that is applicable to our evaluation of the Navy's activities in the GOA Study Area. The gray whale UME along the west coast of North America is active and involves ongoing investigations in the GOA that inform our analysis are discussed below.
Since January 1, 2019, elevated gray whale strandings have occurred along the west coast of North America, from Mexico to Canada. As of September 21, 2022, there have been a total of 606 strandings along the coasts of the United States, Canada, and Mexico, with 300 of those strandings occurring along the U.S. coast. Of the strandings on the U.S. coast, 133 have occurred in Alaska, 70 in Washington, 16 in Oregon, and 81 in California. Full or partial necropsy examinations were conducted on a subset of the whales. Preliminary findings in several of the whales have shown evidence of emaciation. These findings are not consistent across all of the whales examined, so more research is needed. As part of the UME investigation process, NOAA has assembled an independent team of scientists to coordinate with the Working Group on Marine Mammal Unusual Mortality Events to review the data collected, sample stranded whales, consider possible causal-linkages between the mortality event and recent ocean and ecosystem perturbations, and determine the next steps for the investigation. Please refer to:
There has been no change in the species unlikely to be present in the GOA Study Area since the last MMPA rulemaking process (82 FR 19530; April 27, 2017). The species carried forward for analysis (and described in Table 6) are those likely to be found in the GOA Study Area based on the most recent data available and do not include species that may have once inhabited or transited the area but have not been sighted in recent years (
One species of marine mammal, the Northern sea otter, occurs in the Gulf of Alaska but is managed by the U.S. Fish and Wildlife Service and is not considered further in this document.
We provided a detailed discussion of the potential effects of the specified activities on marine mammals and their habitat in our
NMFS has also reviewed new relevant information from the scientific literature since publication of the proposed rule. Summaries of the new key scientific literature reviewed since publication of the proposed rule are presented below.
Branstetter and Sills (2022) reviewed direct laboratory (
Tougaard
Von Benda-Beckmann
Sweeney
An analysis subsequent to Varghese
Manzano-Roth
Königson
Pirotta
Having considered the new information, along with information provided in public comments on the proposed rule, we have determined that there is no new information that substantively affects our analysis of potential impacts on marine mammals and their habitat that appeared in the proposed rule, all of which remains applicable and valid for our assessment of the effects of the Navy's activities during the seven-year period of this rule.
This section indicates the number of takes that NMFS is authorizing, which is based on the amount of take that NMFS anticipates could occur or the maximum amount that is reasonably likely to occur, depending on the type of take and the methods used to estimate it, as described in detail below. NMFS coordinated closely with the Navy in the development of their incidental take application and agrees that the methods the Navy has put forth described herein to estimate take (including the model, thresholds, and density estimates) and the resulting numbers are based on the best available science and appropriate for authorization.
Takes are in the form of harassment only. For a military readiness activity, the MMPA defines “harassment” as (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild (Level A Harassment); or (ii) Any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered (Level B Harassment).
Authorized takes will primarily be in the form of Level B harassment, as use of the acoustic and explosive sources (
Generally speaking, for acoustic impacts NMFS estimates the amount and type of harassment by considering: (1) acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be taken by behavioral disturbance (in this case, as defined in the military readiness definition of Level B harassment included above) or incur some degree of temporary or permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day or event; (3) the density or occurrence of marine mammals within these ensonified areas; and (4) the number of days of activities or events. Below, we describe these components in more detail and present the take estimates.
Using the best available science, NMFS, in coordination with the Navy, has established acoustic thresholds that identify the most appropriate received level of underwater sound above which marine mammals exposed to these sound sources could be reasonably
Despite the rapidly evolving science, there are still challenges in quantifying expected behavioral responses that qualify as take by Level B harassment, especially where the goal is to use one or two predictable indicators (
NMFS' Acoustic Technical Guidance (NMFS, 2018) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). The Acoustic Technical Guidance also identifies criteria to predict TTS, which is not considered injury and falls into the Level B harassment category. The Navy's planned activity includes the use of non-impulsive (sonar) and impulsive (explosives) sources.
These thresholds (Table 7 and Table 8) were developed by compiling and synthesizing the best available science and soliciting input multiple times from both the public and peer reviewers. The references, analysis, and methodology used in the development of the thresholds are described in the Acoustic Technical Guidance, which may be accessed at:
Based on the best available science, the Navy (in coordination with NMFS) used the acoustic and pressure thresholds indicated in Table 8 to predict the onset of TTS, PTS, non-auditory tissue damage, and mortality for explosives (impulsive) and other impulsive sound sources.
The criteria used to assess the onset of TTS and PTS due to exposure to sonars (non-impulsive, see Table 7 above) are discussed further in the Navy's rulemaking/LOA application (see Hearing Loss from Sonar and Other Transducers in Chapter 6, Section 6.4.2.1, Methods for Analyzing Impacts from Sonars and Other Transducers). Refer to the “Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis (Phase III)” report (U.S. Department of the Navy, 2017c) for detailed information on how the criteria and thresholds were derived, and to Section 3.8.3.1.1.2 of the 2022 GOA FSEIS/OEIS for a review of TTS research published following development of the criteria and thresholds applied in the Navy's analysis and in NMFS' Acoustic Technical Guidance. NMFS is aware of more recent papers (
NMFS will continue to review and evaluate new relevant data as it becomes available and consider the impacts of those studies on the Acoustic Technical Guidance to determine what revisions/updates may be appropriate. However, any such revisions must undergo peer and public review before being adopted, as described in the Acoustic Guidance methodology. While some of the relevant data may potentially suggest changes to TTS/PTS thresholds for some species, any such changes would not be expected to change the predicted take estimates in a manner that would change the necessary determinations supporting the issuance of these regulations, and the data and values used in this rule reflect the best available science.
Non-auditory injury (
Though significantly driven by received level, the onset of Level B harassment by behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source (
As noted above, the Navy coordinated with NMFS to develop, and propose for use in this rule, thresholds specific to their military readiness activities utilizing active sonar that identify at what received level and distance Level B harassment by behavioral disturbance would be expected to result. These thresholds are referred to as “behavioral harassment thresholds” throughout the rest of this rule. These behavioral harassment thresholds consist of BRFs and associated cutoff distances, and are also referred to, together, as “the criteria.” These criteria are used to estimate the number of animals that may exhibit a behavioral response that rises to the level of a take when exposed to sonar and other transducers. The way the criteria were derived is discussed in detail in the “Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis (Phase III)” report (U.S. Department of the Navy, 2017c). Developing these behavioral harassment criteria involved multiple steps. All peer-reviewed published behavioral response studies conducted both in the field and on captive animals were examined in order to understand the breadth of behavioral responses of marine mammals to tactical sonar and other transducers. NMFS has carefully reviewed the Navy's criteria,
As discussed above, marine mammal responses to sound (some of which are considered disturbances that rise to the level of a take) are highly variable and context specific,
In its analysis of impacts associated with sonar acoustic sources (which was coordinated with NMFS), the Navy used an updated conservative approach that likely overestimates the number of takes by Level B harassment due to behavioral disturbance and response. Many of the behavioral responses identified using the Navy's quantitative analysis are most likely to be of moderate severity as described in the Southall
In the Navy's acoustic impact analyses during Phase II (the previous phase of Navy testing and training, 2017-2022; see also Navy's “Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis (Phase III)” technical report, 2012), the likelihood of Level B harassment by behavioral disturbance in response to sonar and other transducers was based on a probabilistic function (BRF), that related the likelihood (
Developing the behavioral harassment criteria for Phase III (the current phase of Navy training and testing activities) involved multiple steps. All available behavioral response studies conducted both in the field and on captive animals were examined to understand the breadth of behavioral responses of marine mammals to sonar and other transducers (see also Navy's “Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis (Phase III)” Technical Report, 2017). Six behavioral response field studies with observations of 14 different marine mammal species reactions to sonar or sonar-like signals and 6 captive animal behavioral studies with observations of 8 different species reactions to sonar or sonar-like signals were used to provide a robust data set for the derivation of the Navy's Phase III marine mammal behavioral response criteria. The current criteria have been rigorously vetted within the Navy community, among scientists during expert elicitation, and then reviewed by the public before being applied. All behavioral response research that has been published since the derivation of the Navy's Phase III criteria (December 2016) has been considered, and NMFS will continue to review and evaluate new relevant data as it becomes available and consider the impacts of those studies on the Acoustic Technical Guidance to determine what revisions/updates may be appropriate. However, any such revisions must undergo peer and public review before being adopted, as described in the Acoustic Guidance methodology. In consideration of the available data, any such changes would not be expected to change the predicted take estimates in a manner that would change the necessary determinations supporting the issuance of these regulations, and the data and values used in this rule reflect the best available science.
Marine mammal species were placed into behavioral criteria groups based on their known or suspected behavioral sensitivities to sound. In most cases these divisions were driven by taxonomic classifications (
The Navy used cutoff distances beyond which the potential of significant behavioral responses (and therefore Level B harassment) is considered to be unlikely (see Table 9 below). These distances were determined by examining all available published field observations of behavioral reactions to sonar or sonar-like signals that included the distance between the sound source and the marine mammal. The longest distance, rounded up to the nearest 5-km increment, was chosen as the cutoff distance for each behavioral criteria group (
The range to received sound levels in 6-dB steps from three representative sonar bins and the percentage of animals that may be taken by Level B harassment under each BRF are shown in Table 10 through Table 12. Cells are shaded if the mean range value for the specified received level exceeds the distance cutoff distance for a particular group and therefore are not included in the estimated take. See Chapter 6, Section 6.4.2.1 (Methods for Analyzing Impacts from Sonars and Other Transducers) of the Navy's rulemaking/LOA application for further details on the derivation and use of the BRFs, thresholds, and the cutoff distances to identify takes by Level B harassment, which were coordinated with NMFS. As noted previously, NMFS carefully reviewed, and contributed to, the Navy's behavioral harassment thresholds (
Table 10 through Table 12 identify the maximum likely percentage of exposed individuals taken at the indicated received level and associated range (in which marine mammals would be reasonably expected to experience a disruption in behavior patterns to a point where they are abandoned or significantly altered) for mid-frequency active sonar (MFAS).
Phase III explosive thresholds for Level B harassment by behavioral disturbance for marine mammals is the hearing groups' TTS threshold (in SEL) minus 5 dB (see Table 13 below and Table 8 for the TTS thresholds for explosives) for events that contain multiple impulses from explosives underwater. This was the same approach as taken in Phase II for explosive analysis. See the “Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis (Phase III)” report (U.S. Department of the Navy, 2017c) for detailed information on how the criteria and thresholds were derived. NMFS continues to concur that this approach represents the best available science for determining impacts to marine mammals from explosives. As noted previously, detonations occurring in air at a height of 33 ft (10 m) or less above the water surface, and detonations occurring directly on the water surface were modeled to detonate at a depth of 0.3 ft (0.1 m) below the water surface. There are no detonations of explosives occurring underwater as part of the planned activities.
The Navy's Acoustic Effects Model calculates sound energy propagation from sonar and other transducers and explosives during naval activities and the sound received by animat dosimeters. Animat dosimeters are virtual representations of marine mammals distributed in the area around the modeled naval activity and each dosimeter records its individual sound “dose.” The model bases the distribution of animats over the TMAA, the portion of the GOA Study Area where sonar and other transducers and explosives are planned for use, on the density values in the Navy Marine Species Density Database and distributes animats in the water column proportional to the known time that species spend at varying depths.
The model accounts for environmental variability of sound propagation in both distance and depth when computing the sound level received by the animats. The model conducts a statistical analysis based on multiple model runs to compute the estimated effects on animals. The number of animats that exceed the thresholds for effects is tallied to provide an estimate of the number of marine mammals that could be affected.
Assumptions in the Navy model intentionally err on the side of overestimation when there are unknowns. Naval activities are modeled as though they would occur regardless of proximity to marine mammals, meaning that no mitigation is considered (
The model estimates the impacts caused by individual training exercises. During any individual modeled event, impacts to individual animats are considered over 24-hour periods. The animats do not represent actual animals, but rather they represent a distribution of animals based on density and abundance data, which allows for a statistical analysis of the number of instances that marine mammals may be exposed to sound levels resulting in an effect. Therefore, the model estimates the number of instances in which an effect threshold was exceeded over the course of a year, but does not estimate the number of individual marine mammals that may be impacted over a year (
The following section provides range to effects for sonar and other active acoustic sources as well as explosives to specific acoustic thresholds determined using the Navy Acoustic Effects Model. Marine mammals exposed within these ranges for the shown duration are predicted to experience the associated effect. Range to effects is important information in not only predicting acoustic impacts, but also in verifying the accuracy of model results against real-world situations and determining adequate mitigation ranges to avoid higher level effects, especially physiological effects to marine mammals.
The ranges to received sound levels in 6-dB steps from three representative sonar bins and the percentage of the total number of animals that may exhibit a significant behavioral response (and therefore Level B harassment) under each BRF are shown in Table 10 through Table 12 above, respectively. See Chapter 6, Section 6.4.2.1 (Methods for Analyzing Impacts from Sonars and Other Transducers) of the Navy's rulemaking/LOA application for additional details on the derivation and use of the BRFs, thresholds, and the cutoff distances that are used to identify Level B harassment by behavioral disturbance. NMFS has reviewed the range distance to effect data provided by the Navy and concurs with the analysis.
The ranges to PTS for three representative sonar systems for an exposure of 30 seconds is shown in Table 14 relative to the marine mammal's functional hearing group. This period (30 seconds) was chosen based on examining the maximum amount of time a marine mammal would realistically be exposed to levels that could cause the onset of PTS based on platform (
The tables below illustrate the range to TTS for 1, 30, 60, and 120 seconds from three representative sonar systems (see Table 15 through Table 17).
The following section provides the range (distance) over which specific physiological or behavioral effects are expected to occur based on the explosive criteria (see Chapter 6, Section 6.5.2 (Impacts from Explosives) of the Navy's rulemaking/LOA application and the “Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis (Phase III)” report (U.S. Department of the Navy, 2017c)) and the explosive propagation calculations from the Navy Acoustic Effects Model (see Chapter 6, Section 6.5.2.2 (Impact Ranges for Explosives) of the Navy's rulemaking/LOA application). The range to effects are shown for a range of explosive bins, from E5 (greater than 5-10 lbs (2.3-4.5 kg) net explosive weight) to E12 (greater than 650 lbs to 1,000 lbs (294.8-453.6 kg) net explosive weight) (Table 18 through Table 31). Ranges are determined by modeling the distance that noise from an explosion would need to propagate to reach exposure level thresholds specific to a hearing group that would cause behavioral response (to the degree of Level B harassment), TTS, PTS, and non-auditory injury. NMFS has reviewed the range distance to effect data provided by the Navy and concurs with the analysis. Range to effects is important information in not only predicting impacts from explosives, but also in verifying the accuracy of model results against real-world situations and determining adequate mitigation ranges to avoid higher level effects, especially physiological effects to marine mammals. For additional information on how ranges to impacts from explosions were estimated, see the technical report “Quantifying Acoustic Impacts on Marine Mammals and Sea Turtles: Methods and Analytical Approach for Phase III Training and Testing” (U.S. Navy, 2018).
Table 18 through 29 show the minimum, average, and maximum ranges to onset of auditory and likely behavioral effects that rise to the level of Level B harassment based on the developed thresholds. Ranges are provided for a representative source depth and cluster size (the number of rounds fired, or buoys dropped, within a very short duration) for each bin. For events with multiple explosions, sound from successive explosions can be expected to accumulate and increase the range to the onset of an impact based on SEL thresholds. Ranges to non-auditory injury and mortality are shown in Table 30 and Table 31, respectively.
No underwater detonations are planned as part of the Navy's activities, but marine mammals could be exposed to in-air detonations at or above the water surface. The Navy Acoustic Effects Model cannot account for the highly non-linear effects of cavitation and surface blow off for shallow underwater explosions, nor can it estimate the explosive energy entering the water from a low-altitude detonation. Thus, for this analysis, sources detonating in-air at or above (within 10 m above) the water surface are modeled as if detonating completely underwater at a depth of 0.1 m, with all energy reflected into the water rather than released into the air. Therefore, the amount of explosive and acoustic energy entering the water, and consequently the estimated ranges to effects, are likely to be overestimated.
Table 18 shows the minimum, average, and maximum ranges to onset of auditory and likely behavioral effects that rise to the level of Level B harassment for high-frequency cetaceans based on the developed thresholds.
Table 19 shows the minimum, average, and maximum ranges to onset of auditory effects for high-frequency cetaceans based on the developed thresholds.
Table 20 shows the minimum, average, and maximum ranges to onset of auditory and likely behavioral effects that rise to the level of Level B harassment for low-frequency cetaceans based on the developed thresholds.
Table 21 shows the minimum, average, and maximum ranges to onset of auditory effects for low-frequency cetaceans based on the developed thresholds.
Table 22 shows the minimum, average, and maximum ranges to onset of auditory and likely behavioral effects that rise to the level of Level B harassment for mid-frequency cetaceans based on the developed thresholds.
Table 23 shows the minimum, average, and maximum ranges to onset of auditory effects for mid-frequency cetaceans based on the developed thresholds.
Table 24 shows the minimum, average, and maximum ranges to onset of auditory and likely behavioral effects that rise to the level of Level B harassment for otariid pinnipeds based on the developed thresholds.
Table 25 shows the minimum, average, and maximum ranges to onset of auditory effects for otariid pinnipeds based on the developed thresholds.
Table 26 shows the minimum, average, and maximum ranges to onset of auditory and likely behavioral effects that rise to the level of Level B harassment for phocid pinnipeds, excluding elephant seals, based on the developed thresholds.
Table 27 shows the minimum, average, and maximum ranges to onset of auditory effects for phocids pinnipeds, excluding elephant seals, based on the developed thresholds.
Table 28 shows the minimum, average, and maximum ranges to onset of auditory and likely behavioral effects that rise to the level of Level B harassment for elephant seals based on the developed thresholds.
Table 29 shows the minimum, average, and maximum ranges to onset of auditory effects for elephant seals, based on the developed thresholds.
Table 30 shows the minimum, average, and maximum ranges due to varying propagation conditions to non-auditory injury as a function of animal mass and explosive bin (
Ranges to mortality, based on animal mass, are shown in Table 31 below.
A quantitative analysis of impacts on a species or stock requires data on their abundance and distribution that may be affected by anthropogenic activities in the potentially impacted area. The most appropriate metric for this type of analysis is density, which is the number of animals present per unit area. Marine species density estimation requires a significant amount of effort to both collect and analyze data to produce a reasonable estimate. Unlike surveys for terrestrial wildlife, many marine species spend much of their time submerged, and are not easily observed. In order to collect enough sighting data to make reasonable density estimates, multiple observations are required, often in areas that are not easily accessible (
For most cetacean species, abundance is estimated using line-transect surveys or mark-recapture studies (
Ideally, density data would be available for all species throughout the study area year-round, in order to best estimate the impacts of Navy activities on marine species. However, in many places, ship availability, lack of funding, inclement weather conditions, and high sea states prevent the completion of comprehensive year-round surveys. Even with surveys that are completed, poor conditions may result in lower sighting rates for species that would typically be sighted with greater frequency under favorable conditions. Lower sighting rates preclude having an acceptably low uncertainty in the density estimates. A high level of uncertainty, indicating a low level of confidence in the density estimate, is typical for species that are rare or difficult to sight. In areas where survey data are limited or non-existent, known or inferred associations between marine habitat features and the likely presence of specific species are sometimes used to predict densities in the absence of actual animal sightings. Consequently, there is no single source of density data for every area, species, and season because of the fiscal costs, resources, and effort involved in providing enough survey coverage to sufficiently estimate density.
To characterize marine species density for large oceanic regions, the Navy reviews, critically assesses, and prioritizes existing density estimates from multiple sources, requiring the development of a systematic method for selecting the most appropriate density estimate for each combination of species/stock, area, and season. The selection and compilation of the best available marine species density data resulted in the Navy Marine Species Density Database (NMSDD). NMFS vetted all cetacean densities by the Navy prior to use in the Navy's acoustic analysis for the current rulemaking process.
A variety of density data and density models are needed in order to develop a density database that encompasses the entirety of the TMAA (densities beyond the TMAA were not considered because sonar and other transducers and explosives would not be used in the GOA Study Area beyond the TMAA). Because this data is collected using different methods with varying amounts of accuracy and uncertainty, the Navy has developed a hierarchy to ensure the most accurate data is used when available. The “U.S. Navy Marine Species Density Database Phase III for the Gulf of Alaska Temporary Maritime Activities Area” (U.S. Department of the Navy, 2021), hereafter referred to as the Density Technical Report, describes these models in detail and provides detailed explanations of the models applied to each species density estimate. The list below describes models in order of preference.
1. Spatial density models are preferred and used when available because they provide an estimate with the least amount of uncertainty by deriving estimates for divided segments of the sampling area. These models (see Becker
2. Stratified design-based density estimates use line-transect survey data with the sampling area divided (stratified) into sub-regions, and a density is predicted for each sub-region (see Barlow, 2016; Becker
3. Design-based density estimations use line-transect survey data from land and aerial surveys designed to cover a specific geographic area (see Carretta
Relative environmental suitability (RES) models provide estimates for areas of the oceans that have not been surveyed using information on species occurrence and inferred habitat associations and have been used in past density databases, however, these models were not used in the current quantitative analysis.
The Navy describes some of the challenges of interpreting the results of the quantitative analysis summarized above and described in the Density Technical Report: “It is important to consider that even the best estimate of marine species density is really a model representation of the values of concentration where these animals might occur. Each model is limited to the variables and assumptions considered by the original data source provider. No mathematical model representation of any biological population is perfect, and with regards
Models may be based on different data sets or may generate different temporal predictions, and in this instance, the Navy's estimate of abundance (based on the density estimates used) in the TMAA may differ from population abundances estimated in NMFS' SARs in some cases for a variety of reasons. The SARs are often based on single years of NMFS surveys, whereas the models used by the Navy generally include multiple years of survey data from NMFS, the Navy, and other sources. To present a single, best estimate, the SARs often use a single season survey where they have the best spatial coverage (generally summer). Navy models often use predictions for multiple seasons, where appropriate for the species, even when survey coverage in non-summer seasons is limited, to characterize impacts over multiple seasons as Navy activities may occur outside of the summer months. Predictions may be made for different spatial extents. Many different, but equally valid, habitat and density modeling techniques exist and these can also be the cause of differences in population predictions. Differences in population estimates may be caused by a combination of these factors. Even similar estimates should be interpreted with caution and differences in models fully understood before drawing conclusions.
In particular, the global population structure of humpback whales, with 14 DPSs all associated with multiple feeding areas at which individuals from multiple DPSs convene, is another reason that SAR abundance estimates can differ from other estimates and be somewhat confusing. For some species, the stock assessment for a given species may exceed the Navy's density prediction because those species' home range extends beyond the GOA Study Area or TMAA boundaries. The primary source of density estimates are geographically specific survey data and either peer-reviewed line-transect estimates or habitat-based density models that have been extensively validated to provide the most accurate estimates possible.
These factors and others described in the Density Technical Report should be considered when examining the estimated impact numbers in comparison to current population abundance information for any given species or stock. For a detailed description of the density and assumptions made for each species, see the Density Technical Report.
NMFS coordinated with the Navy in the development of its take estimates and concurs that the Navy's approach for density appropriately utilizes the best available science. Later, in the Analysis and Negligible Impact Determination section, we assess how the estimated take numbers compare to stock abundance in order to better understand the potential number of individuals impacted, and the rationale for which abundance estimate is used is included there.
The 2022 GOA FSEIS/OEIS considered all training activities planned to occur in the GOA Study Area. The Navy's rulemaking/LOA application described the activities that are reasonably likely to result in the MMPA-defined take of marine mammals, all of which will occur in the TMAA portion of the GOA Study Area. The Navy determined that the two stressors below could result in the incidental taking of marine mammals. NMFS has reviewed the Navy's data and analysis and determined that it is complete and accurate and agrees that the following stressors have the potential to result in takes by harassment of marine mammals from the Navy's planned activities:
• Acoustics (sonar and other transducers);
• Explosives (explosive shock wave and sound, assumed to encompass the risk due to fragmentation).
The quantitative analysis process used for the 2022 GOA FSEIS/OEIS and the Navy's take request in the rulemaking/LOA application to estimate potential exposures to marine mammals resulting from acoustic and explosive stressors is described above and further detailed in the technical report titled “Quantifying Acoustic Impacts on Marine Mammals and Sea Turtles: Methods and Analytical Approach for Phase III Training and Testing” (U.S. Department of the Navy, 2018). The Navy Acoustic Effects Model (NAEMO) brings together scenario simulations of the Navy's activities, sound propagation modeling, and marine mammal distribution (based on density and group size) by species to model and quantify the exposure of marine mammals above identified thresholds for behavioral harassment, TTS, PTS, non-auditory injury, and mortality.
NAEMO estimates acoustic and explosive effects without taking mitigation into account; therefore, the model overestimates predicted impacts on marine mammals within mitigation zones. To account for mitigation for marine species in the take estimates, the Navy conducts a quantitative assessment of mitigation. The Navy conservatively quantifies the manner in which procedural mitigation is expected to reduce the risk for model-estimated PTS for exposures to sonars and for model-estimated mortality for exposures to explosives, based on species sightability, observation area, visibility, and the ability to exercise positive control over the sound source. See the proposed rule (87 FR 49656; August 11, 2022) for a description of the process for assessing the effectiveness of procedural mitigation measures, along with the process for assessing the potential for animal avoidance. Where the analysis indicates mitigation would effectively reduce risk, the model-estimated PTS takes are considered reduced to TTS and the model-estimated mortalities are considered reduced to injury, though, for training activities in the GOA Study Area, no mortality or non-auditory injury is anticipated, even without consideration of planned mitigation measures. For a complete explanation of the process for assessing the effects of mitigation, see the Navy's rulemaking/LOA application (Section 6: Take Estimates for Marine Mammals, and Section 11: Mitigation Measures) and the technical report titled “Quantifying Acoustic Impacts on Marine Mammals and Sea Turtles: Methods and Analytical Approach for Phase III Training and Testing” (U.S. Department of the Navy, 2018). The extent to which the mitigation areas reduce impacts on the affected species is addressed separately in the Analysis and Negligible Impact Determination section.
NMFS coordinated with the Navy in the development of this quantitative method to address the effects of procedural mitigation on acoustic and explosive exposures and takes, and NMFS independently reviewed and concurs with the Navy that it is appropriate to incorporate the quantitative assessment of mitigation into the take estimates based on the best available science. We reiterate, however, that no mortality was modeled for the GOA TMAA activities, and, as stated above, the Navy does not propose the use of sonar and other transducers and explosives in the WMA. Therefore, this method was not applied here, as it
As a general matter, NMFS does not prescribe the methods for estimating take for any applicant, but we review and ensure that applicants use the best available science, and methodologies that are logical and technically sound. Applicants may use different methods of calculating take (especially when using models) and still get to a result that is representative of the best available science and that allows for a rigorous and accurate evaluation of the effects on the affected populations. There are multiple pieces of the Navy take estimation methods—propagation models, animat movement models, and behavioral thresholds, for example. NMFS evaluates the acceptability of these pieces as they evolve and are used in different rules and impact analyses. Some of the pieces of the Navy's take estimation process have been used in Navy incidental take rules since 2009 and have undergone multiple public comment processes; all of them have undergone extensive internal Navy review, and all of them have undergone comprehensive review by NMFS, which has sometimes resulted in modifications to methods or models.
The Navy uses rigorous review processes (verification, validation, and accreditation processes; peer and public review) to ensure the data and methodology it uses represent the best available science. For instance, the NAEMO model is the result of a NMFS-led Center for Independent Experts (CIE) review of the components used in earlier models. The acoustic propagation component of the NAEMO model (CASS/GRAB) is accredited by the Oceanographic and Atmospheric Master Library (OAML), and many of the environmental variables used in the NAEMO model come from approved OAML databases and are based on in-situ data collection. The animal density components of the NAEMO model are base products of the NMSDD, which includes animal density components that have been validated and reviewed by a variety of scientists from NMFS Science Centers and academic institutions. Several components of the model, for example the Duke University habitat-based density models, have been published in peer reviewed literature. Others like the Atlantic Marine Assessment Program for Protected Species, which was conducted by NMFS Science Centers, have undergone quality assurance and quality control (QA/QC) processes. Finally, the NAEMO model simulation components underwent QA/QC review and validation for model parts such as the scenario builder, acoustic builder, scenario simulator,
In summary, we believe the Navy's methods, including the underlying NAEMO modeling and the method for incorporating mitigation and avoidance, are the most appropriate methods for predicting non-auditory injury, PTS, TTS, and behavioral disturbance. But even with the consideration of mitigation and avoidance, given some of the more conservative components of the methodology (
Based on the methods discussed in the previous sections and the Navy's model and quantitative assessment of mitigation, the Navy provided its take estimate and request for authorization of takes incidental to the use of acoustic and explosive sources for training activities both annually (based on the maximum number of activities that could occur per 12-month period) and over the 7-year period covered by the Navy's rulemaking/LOA application. The following species/stocks present in the TMAA were modeled by the Navy and estimated to have 0 takes of any type from any activity source: Western North Pacific stock of humpback whale; Eastern North Pacific and Western North Pacific stocks of gray whales; Eastern North Pacific Alaska Resident and AT1 Transient stocks of killer whales; Gulf of Alaska and Southeast Alaska stocks of harbor porpoises; U.S. stock of California sea lion; Eastern U.S. and Western U.S. stock of Steller sea lion; Cook Inlet/Shelikof Strait, North Kodiak, Prince William Sound, and South Kodiak stocks of harbor seals, and Alaska stock of Ribbon seals.
The Phase II rule (82 FR 19530; April 26, 2017), valid from April 2017 to April 2022, authorized Level B harassment take of the Eastern North Pacific Alaska Resident stock of killer whales, Gulf of Alaska and Southeast Alaska stocks of harbor porpoise, California sea lion, Eastern U.S. and Western U.S. stock of Steller sea lion, and South Kodiak and Prince William Sound stocks of harbor seal. Takes of these stocks in Phase II were all expected to occur as a result of exposure to sonar activity, rather than explosive use. Inclusion of new density/distribution information and updated BRFs and corresponding cut-offs resulted in 0 estimated takes for these species and stocks in this rulemaking for Phase III.
NMFS has reviewed the Navy's data, methodology, and analysis for the current phase of rulemaking (Phase III) and determined that it is complete and accurate. However, NMFS has conservatively authorized incidental take of the Western North Pacific stock of humpback whale and Eastern North Pacific stock of gray whale, for the following reasons. For the Western North Pacific stock of humpback whale, in calculating takes by Level B harassment from sonar in Phase III, the application of the Phase III BRFs with corresponding cut-offs (20 km for mysticetes), in addition to the stock guild breakout, which assigns 0.05 percent of the take of humpback whales to the Western North Pacific stock, generated a near-zero result, which the Navy rounded to zero in its rulemaking/LOA application. However, NMFS authorized take of one Western North Pacific humpback whale in the Phase II LOA, and given that they do occur in the area, NMFS is conservatively authorizing take by Level B harassment of one group (3 animals) annually in this Phase III rulemaking. The annual take estimate of 3 animals reflects the average group size of on and off-effort survey sightings of humpback whales reported in Rone
For all other species and stocks, NMFS agrees that the estimates for incidental takes by harassment from all sources requested for authorization are the maximum number of instances in which marine mammals are reasonably expected to be taken. NMFS also agrees that no mortality or serious injury is anticipated to occur, and no lethal take is authorized.
For the Navy's training activities, Table 32 summarizes the Navy's take estimate and request and the maximum annual and 7-year total amount and type of Level A harassment and Level B harassment for the 7-year period that NMFS anticipates is reasonably likely to occur (including the incidental take of Western North Pacific stock of humpback whale and Eastern North Pacific stock of gray whale, discussed above) by species and stock. Note that take by Level B harassment includes both behavioral disturbance and TTS. Tables 6-10 through 6-24 (sonar and other transducers) and 6-41 through 6-49 (explosives) in Section 6 of the Navy's rulemaking/LOA application provide the comparative amounts of TTS and behavioral disturbance for each species and stock annually, noting that if a modeled marine mammal was “taken” through exposure to both TTS and behavioral disturbance in the model, it was recorded as a TTS.
Under section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable adverse impact on the species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for subsistence uses (“least practicable adverse impact”). NMFS does not have a regulatory definition for least practicable adverse impact. The 2004 NDAA amended the MMPA as it relates to military readiness activities and the incidental take authorization process such that a determination of “least practicable adverse impact” shall include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
In
Before NMFS can issue incidental take regulations under section 101(a)(5)(A) of the MMPA, it must make a finding that the total taking will have a “negligible impact” on the affected “species or stocks” of marine mammals. NMFS' and U.S. Fish and Wildlife Service's implementing regulations for section 101(a)(5) both define “negligible impact” as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103 and 50 CFR 18.27(c)). Recruitment (
As stated in the preamble to the proposed rule for the MMPA incidental take implementing regulations, not every population-level impact violates the negligible impact requirement. The negligible impact standard does not require a finding that the anticipated take will have “no effect” on population numbers or growth rates: The statutory standard does not require that the same recovery rate be maintained, rather that no significant effect on annual rates of recruitment or survival occurs. The key factor is the significance of the level of impact on rates of recruitment or survival. (54 FR 40338, 40341-42; September 29, 1989).
While some level of impact on population numbers or growth rates of a species or stock may occur and still satisfy the negligible impact requirement—even without consideration of mitigation—the least practicable adverse impact provision separately requires NMFS to prescribe means of effecting the least practicable adverse impact on the species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, 50 CFR 216.102(b), which are typically identified as mitigation measures.
The negligible impact and least practicable adverse impact standards in the MMPA both call for evaluation at the level of the “species or stock.” The MMPA does not define the term “species.” However, Merriam-Webster Dictionary defines “species” to include “related organisms or
This interpretation is consistent with Congress' statutory findings for enacting the MMPA, nearly all of which are most applicable at the species or stock (
Recognizing this common focus of the least practicable adverse impact and negligible impact provisions on the “species or stock” does not mean we conflate the two standards; despite some common statutory language, we recognize the two provisions are different and have different functions. First, a negligible impact finding is required before NMFS can issue an incidental take authorization. Although it is acceptable to use the mitigation measures to reach a negligible impact finding (see 50 CFR 216.104(c)), no amount of mitigation can enable NMFS to issue an incidental take authorization for an activity that still would not meet the negligible impact standard. Moreover, even where NMFS can reach a negligible impact finding—which we emphasize does allow for the possibility of some “negligible” population-level impact—the agency must still prescribe measures that will effect the least practicable amount of adverse impact upon the affected species or stocks.
Section 101(a)(5)(A)(i)(II) requires NMFS to issue, in conjunction with its authorization, binding—and enforceable—restrictions (in the form of regulations) setting forth how the activity must be conducted, thus ensuring the activity has the “least practicable adverse impact” on the affected species or stocks. In situations where mitigation is specifically needed to reach a negligible impact determination, section 101(a)(5)(A)(i)(II) also provides a mechanism for ensuring compliance with the “negligible impact” requirement. Finally, the least practicable adverse impact standard also requires consideration of measures for marine mammal habitat, with particular attention to rookeries, mating grounds, and other areas of similar significance, and for subsistence impacts, whereas the negligible impact standard is concerned solely with conclusions about the impact of an activity on annual rates of recruitment and
We have carefully reviewed and considered the Ninth Circuit's opinion in
Given the
Our evaluation of potential mitigation measures includes consideration of two primary factors:
(1) The manner in which, and the degree to which, implementation of the potential measure(s) is expected to reduce adverse impacts to marine mammal species or stocks, their habitat, and their availability for subsistence uses (where relevant). This analysis considers such things as the nature of the potential adverse impact (such as likelihood, scope, and range), the likelihood that the measure will be effective if implemented, and the likelihood of successful implementation; and
(2) The practicability of the measures for applicant implementation. Practicability of implementation may consider such things as cost, impact on the specified activities, and, in the case of a military readiness activity, specifically considers personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity (when evaluating measures to reduce adverse impact on the species or stocks).
While the language of the least practicable adverse impact standard calls for minimizing impacts to affected species or stocks, we recognize that the reduction of impacts to those species or stocks accrues through the application of mitigation measures that limit impacts to individual animals. Accordingly, NMFS' analysis focuses on measures that are designed to avoid or minimize impacts on individual marine mammals that are likely to increase the probability or severity of population-level effects.
While direct evidence of impacts to species or stocks from a specified activity is rarely available, and additional study is still needed to understand how specific disturbance events affect the fitness of individuals of certain species, there have been improvements in understanding the process by which disturbance effects are translated to the population. With recent scientific advancements (both marine mammal energetic research and the development of energetic frameworks), the relative likelihood or degree of impacts on species or stocks may often be inferred given a detailed understanding of the activity, the environment, and the affected species or stocks—and the best available science has been used here. This same information is used in the development of mitigation measures and helps us understand how mitigation measures contribute to lessening effects (or the risk thereof) to species or stocks. We also acknowledge that there is always the potential that new information, or a new recommendation could become available in the future and necessitate reevaluation of mitigation measures (which may be addressed through adaptive management) to see if further reductions of population impacts are possible and practicable.
In the evaluation of specific measures, the details of the specified activity will necessarily inform each of the two primary factors discussed above (expected reduction of impacts and practicability), and are carefully considered to determine the types of mitigation that are appropriate under the least practicable adverse impact standard. Analysis of how a potential mitigation measure may reduce adverse impacts on a marine mammal stock or species, consideration of personnel safety, practicality of implementation, and consideration of the impact on effectiveness of military readiness activities are not issues that can be meaningfully evaluated through a yes/no lens. The manner in which, and the degree to which, implementation of a measure is expected to reduce impacts, as well as its practicability in terms of these considerations, can vary widely. For example, a time/area restriction could be of very high value for decreasing population-level impacts (
1.
The ultimate impact on any individual from a disturbance event (which informs the likelihood of adverse species- or stock-level effects) is dependent on the circumstances and associated contextual factors, such as duration of exposure to stressors. Though any proposed mitigation needs to be evaluated in the context of the specific activity and the species or stocks affected, measures with the following types of effects have greater value in reducing the likelihood or severity of adverse species- or stock-level impacts: avoiding or minimizing injury or mortality; limiting interruption of known feeding, breeding, mother/young, or resting behaviors; minimizing the abandonment of important habitat (temporally and spatially); minimizing the number of individuals subjected to these types of disruptions; and limiting degradation of habitat. Mitigating these types of effects is intended to reduce the likelihood that the activity will result in energetic or other types of impacts that are more likely to result in reduced reproductive success or survivorship. It is also important to consider the degree of impacts that are expected in the absence of mitigation in order to assess the added value of any potential measures. Finally, because the least practicable adverse impact standard gives NMFS discretion to weigh a variety of factors when determining appropriate mitigation measures and because the focus of the standard is on reducing impacts at the species or stock level, the least practicable adverse impact standard does not compel mitigation for every kind of take, or every individual taken, if that mitigation is unlikely to meaningfully contribute to the reduction of adverse impacts on the species or stock and its habitat, even when practicable for implementation by the applicant.
The status of the species or stock is also relevant in evaluating the appropriateness of potential mitigation measures in the context of least practicable adverse impact. The following are examples of factors that may (either alone, or in combination) result in greater emphasis on the importance of a mitigation measure in reducing impacts on a species or stock: the stock is known to be decreasing or status is unknown, but believed to be declining; the known annual mortality (from any source) is approaching or exceeding the potential biological removal (PBR) level (as defined in MMPA section 3(20)); the affected species or stock is a small, resident population; or the stock is involved in a UME or has other known vulnerabilities, such as recovering from an oil spill.
Habitat mitigation, particularly as it relates to rookeries, mating grounds, and areas of similar significance, is also relevant to achieving the standard and can include measures such as reducing impacts of the activity on known prey utilized in the activity area or reducing impacts on physical habitat. As with species- or stock-related mitigation, the emphasis given to a measure's ability to reduce impacts on a species or stock's habitat considers the degree, likelihood, and context of the anticipated reduction of impacts to habitat. Because habitat value is informed by marine mammal presence and use, in some cases there may be overlap in measures for the species or stock and for use of habitat.
We consider available information indicating the likelihood of any measure to accomplish its objective. If evidence shows that a measure has not typically been effective or successful, then either that measure should be modified or the potential value of the measure to reduce effects should be lowered.
2.
Section 216.104(a)(11) of NMFS' implementing regulations requires an applicant for incidental take authorization to include in its request, among other things, “the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, their habitat, and [where applicable] on their availability for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance.” Thus NMFS' analysis of the sufficiency and appropriateness of an applicant's measures under the least practicable adverse impact standard will always begin with evaluation of the mitigation measures presented in the application.
NMFS has fully reviewed the specified activities together with the mitigation measures included in the Navy's rulemaking/LOA application and the 2022 GOA FSEIS/OEIS to determine if the mitigation measures would result in the least practicable adverse impact on marine mammals and their habitat. NMFS worked with the Navy in the development of the Navy's initially proposed measures, which are informed by years of implementation and monitoring. A complete discussion of the Navy's evaluation process used to develop, assess, and select mitigation measures, which was informed by input from NMFS, can be found in Section 5 (
As a general matter, where an applicant proposes measures that are likely to reduce impacts to marine mammals, the fact that they are included in the application indicates that the measures are practicable, and it is not necessary for NMFS to conduct a detailed analysis of the measures the applicant proposed (rather, they are simply included). However, it is still necessary for NMFS to consider whether there are additional practicable measures that would meaningfully reduce the probability or severity of impacts that could affect reproductive success or survivorship.
Overall, the Navy has agreed to procedural mitigation measures that will reduce the probability and/or severity of impacts expected to result
The Navy assessed the practicability of these measures in the context of personnel safety, practicality of implementation, and their impacts on the Navy's ability to meet their Title 10 requirements and found that the measures are supportable. NMFS has independently evaluated the measures the Navy proposed in the manner described earlier in this section (
The Navy also evaluated numerous measures in the 2022 GOA FSEIS/OEIS that were not included in the Navy's rulemaking/LOA application, and NMFS independently reviewed and concurs with the Navy's analysis that their inclusion was not appropriate under the least practicable adverse impact standard based on our assessment. The Navy considered these additional potential mitigation measures in two groups. First, Section 5 (
Second, in Chapter 5 (
Last, Chapter 5 (
NMFS has reviewed the Navy's analysis in Chapter 5 (
The following sections describe the mitigation measures that will be implemented in association with the training activities analyzed in this document. These are the mitigation measures that NMFS has determined will ensure the least practicable adverse impact on all affected species and their habitat, including the specific considerations for military readiness activities. The mitigation measures are organized into two categories: procedural mitigation and mitigation areas.
Procedural mitigation is mitigation that the Navy will implement whenever and wherever an applicable training activity takes place within the GOA Study Area. Procedural mitigation is customized for each applicable activity category or stressor. Procedural mitigation generally involves: (1) the use of one or more trained Lookouts to diligently observe for specific biological resources (including marine mammals)
Mitigation measures for acoustic stressors are provided in Table 34 and Table 35.
Mitigation measures for explosive stressors are provided in Table 36 and Table 37.
Mitigation measures for physical disturbance and strike stressors are provided in Table 38 through Table 41.
In addition to procedural mitigation, the Navy will implement mitigation measures within mitigation areas to avoid or minimize potential impacts on marine mammals. NMFS and the Navy took into account public comments received on the 2020 GOA DSEIS/OEIS, 2022 Supplement to the 2020 GOA DSEIS/OEIS, and the 2022 GOA proposed rule, best available science, and the practicability of implementing additional mitigation measures and has enhanced the mitigation measures beyond the 2017-2022 regulations, to further reduce impacts to marine mammals. Of note specifically, as noted in the preamble to the 2017-2022 regulations (82 FR 19530; April 27, 2017), the Navy committed during that rulemaking to mitigation that precluded the use of explosives in the Portlock Bank area. In this rule, this mitigation has been expanded into the Continental Shelf and Slope Mitigation Area, as described in further detail below.
Descriptions of the mitigation measures that the Navy will implement within mitigation areas is provided in Table 42 (see below).
NMFS conducted an independent analysis of the mitigation areas that the Navy will implement and that are included in this rule. NMFS' analysis indicates that the measures in these mitigation areas will reduce the likelihood or severity of adverse impacts to marine mammal species or their habitat in the manner described in this rule and are practicable for the Navy.
Specifically, below we describe how certain activities are limited in feeding areas, migratory corridors, or other important habitat. To avoid repetition in those sections, we describe here how these measures reduce the likelihood or severity of effects on marine mammals and their habitat. As described previously, exposure to active sonar and explosive detonations (in-air, occurring at or above the water surface) has the potential to both disrupt behavioral patterns and reduce hearing sensitivity (temporarily or permanently, depending on the intensity and duration of the exposure). Disruption of feeding behaviors can have negative energetic consequences as a result of either obtaining less food in a given time or expending more energy (in the effort to avoid the stressor) to find the necessary food elsewhere, and extensive disruptions of this sort (especially over multiple sequential days) could accumulate in a manner that could negatively impact reproductive success or survival (though no impacts to reproductive success or survival are anticipated to occur as a result of the specified activity). By limiting impacts in known feeding areas, the overall severity of any take in those areas is reduced and the likelihood of impacts on reproduction or survival is further lessened. Similarly, reducing impacts on prey species, either by avoiding causing mortality or changing their expected distribution, can also lessen these sorts of detrimental energetic consequences. In migratory corridors, training activities can result in additional energetic expenditures to avoid the loud sources—lessening training in these areas also reduces the likelihood of detrimental energetic effects. In all of the mitigation areas, inasmuch as the density of certain species may be higher at certain times, a selective reduction of training activities in those higher-density areas
Regarding operational practicability, NMFS is heavily reliant on the Navy's description and conclusions, since the Navy is best equipped to describe the degree to which a given mitigation measure affects personnel safety or mission effectiveness and is practical to implement. The Navy considers the measures in this rule to be practicable, and NMFS concurs.
Mitigation within the North Pacific Right Whale Mitigation Area is primarily designed to avoid or further reduce potential impacts to North Pacific right whales within important feeding habitat. The mitigation area fully encompasses the portion of the BIA identified by Ferguson
Additionally, the North Pacific Right Whale Mitigation Area overlaps with a small portion of the humpback whale critical habitat Unit 5, in the southwest corner of the TMAA. While the overlap of the two areas is limited, mitigation in the North Pacific Right Whale Mitigation Area may reduce the number and/or severity of takes of humpback whales in this important area.
The mitigation in this area will also help avoid or reduce potential impacts on fish and invertebrates that inhabit the mitigation area and which marine mammals prey upon. As described in Section 5.4.1.5 (Fisheries Habitats) of the 2022 GOA FSEIS/OEIS, the productive waters off Kodiak Island support a strong trophic system from plankton, invertebrates, small fish, and higher-level predators, including large fish and marine mammals.
The Continental Shelf and Slope Mitigation Area encompasses the portion of the continental shelf and slope that overlaps the TMAA (the entire continental shelf and slope out to the 4,000 m depth contour; see Figure 2 of the proposed rule; 87 FR 49656; August 11, 2022). Navy personnel will not detonate explosives below 10,000 ft. altitude (including at the water surface) in the Continental Shelf and Slope Mitigation Area during training. (As stated previously, the Navy does not plan to use in-water explosives anywhere in the GOA Study Area.) Mitigation in the Continental Shelf and Slope Mitigation Area was initially designed to avoid or reduce potential impacts on fishery resources for Alaska Natives. However, the area includes highly productive waters where marine mammals, including humpback whales (Lagerquist
The Navy will issue awareness messages prior to the start of TMAA training activities to alert vessels and aircraft operating within the TMAA to the possible presence of concentrations of large whales, including but not limited to, fin whale, blue whale, humpback whale, gray whales, North Pacific right whale, sei whale, minke whale, and sperm whale, especially when traversing on the continental shelf and slope where densities of these species may be higher. To maintain safety of navigation and to avoid interactions with marine mammals, the Navy will instruct vessels to remain vigilant to the presence of large whales that may be vulnerable to vessel strikes or potential impacts from training activities. Navy personnel will use the information from the awareness notification messages to assist their visual observation of applicable mitigation zones during training activities and to aid in the implementation of procedural mitigation.
This mitigation will help avoid any potential impacts from vessel strikes and training activities on large whales within the TMAA.
The nature of subsistence activities by Alaska Natives in the GOA Study Area are discussed below, in the Subsistence Harvest of Marine Mammals section of this rule.
NMFS has carefully evaluated the mitigation measures—many of which were developed with NMFS' input during the previous phases of Navy training authorizations but several of which are new since implementation of the 2017 to 2022 regulations. NMFS has also considered a broad range of other measures (
Based on our evaluation of the Navy's proposed measures, as well as other measures considered by the Navy and NMFS, NMFS has determined that the mitigation measures included in this final rule are the appropriate means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and considering specifically personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity. Additionally, an adaptive management provision ensures that mitigation is regularly assessed and provides a mechanism to improve the mitigation, based on the factors above, through modification as appropriate. Thus, NMFS concludes that the mitigation measures outlined in this final rule satisfy the statutory standard and that any adverse impacts that remain cannot be practicably further mitigated.
Section 101(a)(5)(A) of the MMPA states that in order to authorize incidental take for an activity, NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for incidental take authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present.
Although the Navy has been conducting research and monitoring for over 20 years in areas where it has been training, it developed a formal marine species monitoring program in support of the GOA Study Area MMPA and ESA processes in 2009. Across all Navy training and testing study areas, the robust marine species monitoring program has resulted in hundreds of technical reports and publications on marine mammals that have informed Navy and NMFS analyses in environmental planning documents, MMPA rules, and ESA Biological Opinions. The reports are made available to the public on the Navy's marine species monitoring website (
The Navy will continue collecting and reporting monitoring data to inform our understanding of the occurrence of marine mammals in the GOA Study Area; the likely exposure of marine mammals to stressors of concern in the GOA Study Area; the response of marine mammals to exposures to stressors; the consequences of a particular marine mammal response to their individual fitness and, ultimately, populations; and the effectiveness of implemented mitigation measures. Taken together, mitigation and monitoring comprise the Navy's integrated approach for reducing environmental impacts from the specified activities. The Navy's overall monitoring approach seeks to leverage and build on existing research efforts whenever possible.
As agreed upon between the Navy and NMFS, the monitoring measures presented here, as well as the mitigation measures described above, focus on the protection and management of potentially affected marine mammals. A well-designed monitoring program can provide important feedback for validating assumptions made in analyses and allow for adaptive management of marine resources.
The Navy's ICMP is intended to coordinate marine species monitoring efforts across all regions and to allocate the most appropriate level and type of effort for each range complex based on a set of standardized objectives, and in acknowledgement of regional expertise and resource availability. The ICMP is designed to be flexible, scalable, and adaptable through the adaptive management and strategic planning processes to periodically assess progress and reevaluate objectives. This process includes conducting an annual adaptive management review meeting, at which the Navy and NMFS jointly consider the prior-year goals, monitoring results, and related scientific advances to determine if monitoring plan modifications are warranted to more effectively address program goals. Although the ICMP does not specify actual monitoring field work or individual projects, it does establish a matrix of goals and objectives that have been developed in coordination with NMFS. As the ICMP is implemented through the Strategic Planning Process (see the section below), detailed and specific studies that support the Navy's and NMFS' top-level monitoring goals will continue to be developed. In essence, the ICMP directs that monitoring activities relating to the effects of Navy training and testing activities on marine species should be designed to contribute towards one or more of the following top-level goals:
• An increase in the understanding of the likely occurrence of marine mammals and/or ESA-listed marine species in the vicinity of the action (
• An increase in the understanding of the nature, scope, or context of the likely exposure of marine mammals and/or ESA-listed species to any of the potential stressors associated with the action (
• An increase in the understanding of how individual marine mammals or ESA-listed marine species respond (behaviorally or physiologically) to the specific stressors associated with the action (in specific contexts, where possible,
• An increase in the understanding of how anticipated individual responses, to individual stressors or anticipated combinations of stressors, may impact either (1) the long-term fitness and survival of an individual; or (2) the population, species, or stock (
• An increase in the understanding of the effectiveness of mitigation and monitoring measures;
• A better understanding and record of the manner in which the Navy complies with the incidental take regulations and LOAs and the ESA Incidental Take Statement;
• An increase in the probability of detecting marine mammals (through improved technology or methods), both specifically within the mitigation zones (thus allowing for more effective implementation of the mitigation) and in general, to better achieve the above goals; and
• Ensuring that adverse impact of activities remains at the least practicable level.
The Navy also developed the Strategic Planning Process for Marine Species Monitoring, which establishes the guidelines and processes necessary to develop, evaluate, and fund individual projects based on objective scientific study questions. The process uses an underlying framework designed around intermediate scientific objectives and a conceptual framework incorporating a progression of knowledge spanning occurrence, exposure, response, and consequence. The Strategic Planning Process for Marine Species Monitoring is used to set overarching intermediate scientific objectives; develop individual monitoring project concepts; identify potential species of interest at a regional scale; evaluate, prioritize, and select specific monitoring projects to fund or continue supporting for a given fiscal year; execute and manage selected
The monitoring program has undergone significant changes since the first rule was issued for the TMAA in 2011, which highlights the monitoring program's evolution through the process of adaptive management. The monitoring program developed for the first cycle of environmental compliance documents (
Progress has also been made on the conceptual framework categories from the Scientific Advisory Group for Navy Marine Species Monitoring (U.S. Department of the Navy, 2011), ranging from occurrence of animals, to their exposure, response, and population consequences. The Navy continues to manage the Atlantic and Pacific program as a whole, including what is now the GOA Study Area, with monitoring in each range complex taking a slightly different but complementary approach. The Navy has continued to use the approach of layering multiple simultaneous components in many of the range complexes to leverage an increase in return of the progress toward answering scientific monitoring questions. In the GOA, the Navy conducts three types of monitoring: (1) Passive acoustic monitoring (including technologies such as stationary moored high-frequency acoustic recording packages or non-stationary (
Numerous publications, dissertations, and conference presentations have resulted from research conducted under the marine species monitoring program, including research conducted in what is now the GOA Study Area (
Furthermore, collaboration between the monitoring program and the Navy's research and development (
NMFS and the Navy also consider data collected during procedural mitigations as monitoring. Data are collected by shipboard personnel on hours spent training, hours of observation, hours of sonar, and marine mammals observed within the mitigation zones when mitigations are implemented. These data are provided to NMFS in both classified and unclassified annual exercise reports, which will continue under this rule.
NMFS has received multiple years' worth of annual exercise and monitoring reports addressing active sonar use and explosive detonations within the TMAA and other Navy range complexes. The data and information contained in these reports have been considered in developing mitigation and monitoring measures for the training activities within the GOA Study Area. The Navy's annual training and monitoring reports may be viewed at
The Navy's marine species monitoring program typically supports monitoring projects in the GOA Study Area. Additional details on the scientific objectives for each project can be found at
Specific monitoring under the previous regulations included the following projects:
• The continuation of the Navy's collaboration with NOAA on the
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Future monitoring efforts in the GOA Study Area are anticipated to continue along the same objectives: determining the species and populations of marine mammals present and potentially exposed to Navy training activities in the GOA Study Area, through tagging, passive acoustic monitoring, refined modeling, photo identification, biopsies, and visual monitoring, as well as characterizing spatial and temporal distribution of salmonids, including Chinook salmon.
Projects that are currently under consideration for the 2022-2029 rule are listed below. Monitoring projects are typically planned one year in advance; therefore, this list does not include all projects that will occur over the entire period of the rule.
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The regulations governing the take of marine mammals incidental to Navy training activities in the GOA Study Area contain an adaptive management component. Our understanding of the effects of Navy training and testing activities (
The reporting requirements associated with this rule are designed to provide NMFS with monitoring data from the previous year to allow NMFS to consider whether any changes to existing mitigation and monitoring requirements are appropriate. The use of adaptive management allows NMFS to consider new information from different sources to determine (with input from the Navy regarding practicability) on an annual or biennial basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications will have a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring and if the measures are practicable. If the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of the planned LOA in the
The following are some of the possible sources of applicable data to be considered through the adaptive management process: (1) results from monitoring and exercise reports, as required by MMPA authorizations; (2) compiled results of Navy funded research and development studies; (3) results from specific stranding investigations; (4) results from general marine mammal and sound research; and (5) any information which reveals that marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or subsequent LOAs. The results from monitoring reports and other studies may be viewed at
In order to issue incidental take authorization for an activity, section 101(a)(5)(A) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring. Reports from individual monitoring events, results of analyses, publications, and periodic progress reports for specific monitoring projects will be posted to the Navy's Marine Species Monitoring web portal:
There were several different reporting requirements pursuant to the 2017-2022 regulations. All of these reporting requirements will continue under this rule for the 7-year period; however, the reporting schedule for the GOA Annual Training Report has been slightly changed to align the reporting schedule with the activity period (see the
Notification of Injured, Live Stranded, or Dead Marine Mammals
The Navy will consult the Notification and Reporting Plan, which sets out notification, reporting, and other requirements when injured, live stranded, or dead marine mammals are detected. The Notification and Reporting Plan is available at
The Navy will submit an annual report to NMFS of the GOA Study Area monitoring, which will be included in a Pacific-wide monitoring report and include results specific to the GOA Study Area, describing the implementation and results of monitoring from the previous calendar year. Data collection methods will be standardized across Pacific Range Complexes including the MITT, HSTT, NWTT, and GOA Study Areas to the best extent practicable, to allow for comparison among different geographic locations. The report will be submitted to the Director, Office of Protected Resources, NMFS, either within 3 months after the end of the calendar year, or within 3 months after the conclusion of the monitoring year, to be determined by the Adaptive Management process. NMFS will submit comments or questions on the draft monitoring report, if any, within 3 months of receipt. The report will be
Each year in which training activities are conducted in the GOA Study Area, the Navy will submit one preliminary report (Quick Look Report) to NMFS detailing the status of applicable sound sources within 21 days after the completion of the training activities in the GOA Study Area. Each year in which activities are conducted, the Navy will also submit a detailed report (GOA Annual Training Report) to the Director, Office of Protected Resources, NMFS within 3 months after completion of the training activities. The Phase II rule required the Navy to submit the GOA Annual Training Report within 3 months after the anniversary of the date of issuance of the LOA. NMFS will submit comments or questions on the report, if any, within one month of receipt. The report will be considered final after the Navy has addressed NMFS' comments, or one month after submittal if NMFS does not provide comments on the report. The annual reports will contain information about the MTE, (exercise designator, date that the exercise began and ended, location, number and types of active and passive sonar sources used in the exercise, number and types of vessels and aircraft that participated in the exercise,
The annual report (which, as stated above, will only be required during years in which activities are conducted) will also contain cumulative sonar and explosive use quantity from previous years' reports through the current year. Additionally, if there were any changes to the sound source allowance in the reporting year, or cumulatively, the report will include a discussion of why the change was made and include analysis to support how the change did or did not affect the analysis in the GOA SEIS/OEIS and MMPA final rule. The analysis in the detailed report will be based on the accumulation of data from the current year's report and data collected from previous annual reports. The final annual/close-out report at the conclusion of the authorization period (year seven) would also serve as the comprehensive close-out report and include both the final year annual use compared to annual authorization as well as a cumulative 7-year annual use compared to 7-year authorization. This report will also note any years in which training did not occur. NMFS will submit comments on the draft close-out report, if any, within 3 months of receipt. The report will be considered final after the Navy has addressed NMFS' comments, or 3 months after the submittal of the draft if NMFS does not provide comments. Information included in the annual reports may be used to inform future adaptive management of activities within the GOA Study Area. See the regulations below for more detail on the content of the annual report.
The Navy will continue to report and coordinate with NMFS for the following:
• Annual marine species monitoring technical review meetings that also include researchers and the Marine Mammal Commission (currently, every two years a joint Pacific-Atlantic meeting is held); and
• Annual Adaptive Management meetings (in-person or remote, as circumstances allow and agreed upon by NMFS and the Navy) that also include the Marine Mammal Commission (and occur in conjunction with the annual monitoring technical review meetings).
Further, the Navy will coordinate with NMFS prior to conducting exercises within the GOA Study Area. This may occur as a part of coordination the Navy does with other local stakeholders.
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
In the Estimated Take of Marine Mammals section, we identified the subset of potential effects that are expected to rise to the level of takes both annually and over the seven-year period covered by this rule, and then identified the maximum number of harassment takes that are reasonably expected to occur based on the methods described. The impact that any given take will have on an individual, and ultimately the species or stock, is dependent on many case-specific factors that need to be considered in the negligible impact analysis (
As explained in the Estimated Take of Marine Mammals section, no take by serious injury or mortality is authorized or anticipated to occur.
The specified activities reflect representative levels of training activities. The Description of the Specified Activities section describes annual activities. There may be some flexibility in the exact number of hours, items, or detonations that may vary from year to year, but take totals will not exceed the maximum annual totals and 7-year totals indicated in Table 32. (Further, as noted previously, the GOA Study Area training activities will not occur continuously throughout the year, but rather, for a maximum of 21 days once annually between April and October.) We base our analysis and negligible impact determination on the maximum number of takes that are reasonably expected to occur annually and are authorized, although, as stated before, the number of takes are only a part of the analysis, which includes extensive qualitative consideration of other contextual factors that influence the degree of impact of the takes on the affected individuals. To avoid repetition, we provide some general analysis in this
The Navy's harassment take request is based on a model and quantitative assessment of procedural mitigation, which NMFS reviewed and concurs appropriately predicts the maximum amount of harassment that is likely to occur, with the exception of the Eastern North Pacific stock of gray whale, and the Western North Pacific stock of humpback whale, for which NMFS has proposed authorizing 4 and 3 Level B harassment takes annually, respectively, as described in the Estimated Take of Marine Mammals section. The model calculates sound energy propagation from sonar, other active acoustic sources, and explosives during naval activities; the sound or impulse received by animat dosimeters representing marine mammals distributed in the area around the modeled activity; and whether the sound or impulse energy received by a marine mammal exceeds the thresholds for effects. Assumptions in the Navy model intentionally err on the side of overestimation when there are unknowns. Naval activities are modeled as though they would occur regardless of proximity to marine mammals, meaning that no mitigation is considered (
Generally speaking, the Navy and NMFS anticipate more severe effects from takes resulting from exposure to higher received levels (though this is in no way a strictly linear relationship for behavioral effects throughout species, individuals, or circumstances) and less severe effects from takes resulting from exposure to lower received levels. However, there is also growing evidence of the importance of distance in predicting marine mammal behavioral response to sound—
In the ocean, the Navy's use of sonar and other active acoustic sources is often transient and is unlikely to repeatedly expose the same individual animals within a short period, for example within one specific exercise. However, for some individuals of some species or stocks repeated exposures across different activities could occur over the 21-day period. In short, for some species or stocks we expect that the total anticipated takes represent exposures of a smaller number of individuals of which some will be exposed multiple times, but based on the nature of the Navy activities and the movement patterns of marine mammals, it is unlikely that individuals from most stocks will be taken over more than a few non-sequential days and, as described elsewhere, the nature of the majority of the exposures is expected to be of a less severe nature and based on the numbers and duration of the activity (no more than 21 days) any individual exposed multiple times is still only taken on a small percentage of the days of the year. We also note that, in the unlikely event that an individual is taken on two or three sequential days (and the total number of days in which the individual was taken in a year remained low), such takes would not be expected to impact an individual's (of any hearing sensitivity) reproduction or survival.
Some of the lower level physiological stress responses (
The estimates calculated using the BRF do not differentiate between the different types of behavioral responses that rise to the level of take by Level B harassment. As described in the Navy's application, the Navy identified (with NMFS' input) the types of behaviors that would be considered a take: moderate behavioral responses as characterized in Southall
Use of sonar and other transducers would typically be transient and temporary. The majority of acoustic effects to individual animals from sonar and other active sound sources during training activities would be primarily from ASW events. It is important to note that although ASW is one of the warfare areas of focus during Navy training, there are significant periods when active ASW sonars are not in use. Behavioral reactions are assumed more likely to be significant during MTEs than during other ASW activities due to the use of high-powered ASW sources as well as the duration (
On the less severe end, exposure to comparatively lower levels of sound at a detectably greater distance from the animal, for a few or several minutes, could result in a behavioral response such as avoiding an area that an animal would otherwise have moved through or fed in, or breaking off one or a few feeding bouts. More severe effects could occur when the animal gets close enough to the source to receive a comparatively higher level of sound, is exposed continuously to one source for a longer time, or is exposed intermittently to different sources throughout a day. Such effects might result in an animal having a more severe flight response and leaving a larger area for a day or more or potentially losing feeding opportunities for a day. However, such severe behavioral effects are expected to occur infrequently.
To help assess this, for sonar (MFAS/high frequency active sonar (HFAS)) used in the TMAA, the Navy provided information estimating the percentage of animals that may be taken by Level B harassment under each BRF that would occur within 6-dB increments (percentages discussed below in the
Many animals perform vital functions, such as feeding, resting, traveling, and socializing on a diel cycle (24-hour cycle). Behavioral reactions to noise exposure, when taking place in a
Durations of Navy activities utilizing tactical sonar sources and explosives vary and are fully described in Appendix A (Navy Activity Descriptions) of the 2020 GOA FSEIS/OEIS. Sonar used during ASW would impart the greatest amount of acoustic energy of any category of sonar and other transducers analyzed in the Navy's rulemaking/LOA application and include hull-mounted, towed array, sonobuoy, and helicopter dipping sonars. Most ASW sonars are MFAS (1-10 kHz); however, some sources may use higher frequencies. ASW training activities using hull mounted sonar planned for the TMAA generally last for only a few hours (see Appendix A (Navy Activity Descriptions) of the 2022 GOA FSEIS/OEIS). Some ASW training activities typically last about 8 hours. Because of the need to train in a large variety of situations, the Navy does not typically conduct successive ASW exercises in the same locations. Given the average length of ASW exercises (times of sonar use) and typical vessel speed, combined with the fact that the majority of the cetaceans would not likely remain in proximity to the sound source, it is unlikely that an animal would be exposed to MFAS/HFAS at levels or durations likely to result in a substantive response that would then be carried on for more than 1 day or on successive days (and as noted previously, no LFAS use is planned by the Navy).
Most planned explosive events are scheduled to occur over a short duration (1-3 hours); however, the explosive component of these activities only lasts for minutes. Although explosive exercises may sometimes be conducted in the same general areas repeatedly, because of their short duration and the fact that they are in the open ocean and animals can easily move away, it is similarly unlikely that animals would be exposed for long, continuous amounts of time, or demonstrate sustained behavioral responses. All of these factors make it unlikely that individuals would be exposed to the exercise for extended periods or on consecutive days, though some individuals may be exposed on multiple days.
As described previously, Navy modeling uses the best available science to predict the instances of exposure above certain acoustic thresholds, which are equated, as appropriate, to harassment takes (and, for PTS, further corrected to account for mitigation and avoidance). As further noted, for active acoustics it is more challenging to parse out the number of individuals taken by Level B harassment and the number of times those individuals are taken from this larger number of instances. One method that NMFS uses to help better understand the overall scope of the impacts is to compare these total instances of take against the abundance of that species (or stock if applicable). For example, if there are 100 estimated harassment takes in a population of 100, one can assume either that every individual will be exposed above acoustic thresholds in no more than one day, or that some smaller number will be exposed in one day but a few of those individuals will be exposed multiple days within a year and a few not exposed at all. Where the instances of take exceed 100 percent of the population (
In the ocean, unlike a modeling simulation with static animals, the use of sonar and other active acoustic sources is often transient, and is unlikely to repeatedly expose the same individual animals within a short period, for example within one specific exercise. However, some repeated exposures across different activities could occur over the year with more resident species. Nonetheless, the episodic nature of activities in the TMAA (21 days per year) will mean less frequent exposures as compared to some other ranges. In short, we expect that for some stocks, the total anticipated takes represent exposures of a smaller number of individuals of which some could be exposed multiple times, but based on the nature of the Navy's activities and the movement patterns of marine mammals, it is unlikely that individuals of most species or stocks would be taken over more than a few non-sequential days within a year.
When comparing the number of takes to the population abundance, which can be helpful in estimating both the proportion of the population affected by
The stock abundance estimates in NMFS' SARs are typically generated from the most recent shipboard and/or aerial surveys conducted. In some cases, NMFS' abundance estimates show substantial year-to-year variability. However, for highly migratory species (
NMFS and the Navy have estimated that multiple species and stocks of marine mammals in the TMAA may sustain some level of TTS from active sonar. As discussed in the proposed rule in the Potential Effects of Specified Activities on Marine Mammals and their Habitat section, in general, TTS can last from a few minutes to days, be of varying degree, and occur across various frequency bandwidths, all of which determine the severity of the impacts on the affected individual, which can range from minor to more severe. Table 43 to Table 48 indicate the number of takes by TTS that may be incurred by different species and stocks from exposure to active sonar and explosives. The TTS sustained by an animal is primarily classified by three characteristics:
1. Frequency—Available data (of mid-frequency hearing specialists exposed to mid- or high-frequency sounds; Southall
2. Degree of the shift (
In short, given the anticipated duration and levels of sound exposure, we would not expect marine mammals to incur more than relatively low levels of TTS (
3. Duration of TTS (recovery time)—In the TTS laboratory studies (as
Based on the range of degree and duration of TTS reportedly induced by exposures to non-pulse sounds of energy higher than that to which free-swimming marine mammals in the field are likely to be exposed during MFAS/HFAS training exercises in the TMAA, it is unlikely that marine mammals would ever sustain a TTS from MFAS that alters their sensitivity by more than 20 dB for more than a few hours—and any incident of TTS would likely be far less severe due to the short duration of the majority of the events during the 21 days and the speed of a typical vessel, especially given the fact that the higher power sources resulting in TTS are predominantly intermittent, which have been shown to result in shorter durations of TTS. Also, for the same reasons discussed in the Analysis and Negligible Impact Determination—
Tables 43 to 48 indicate the maximum number of incidental takes by TTS for each species or stock that are likely to result from the Navy's activities. As a general point, the majority of these TTS takes are the result of exposure to hull-mounted MFAS (MF narrower band sources), with fewer from explosives (broad-band lower frequency sources), and even fewer from HFAS sources (narrower band). As described above, we expect the majority of these takes to be in the form of mild (single-digit), short-term (minutes to hours), narrower band (only affecting a portion of the animal's hearing range) TTS. This means that for one to several times within the 21 days, for several minutes to maybe a few hours at most each, a taken individual will have slightly diminished hearing sensitivity (slightly more than natural variation, but nowhere near total deafness). More often than not, such an exposure would occur within a narrower mid- to higher frequency band that may overlap part (but not all) of a communication, echolocation, or predator range, but sometimes across a lower or broader bandwidth. The significance of TTS is also related to the auditory cues that are germane within the time period that the animal incurs the TTS. For example, if an odontocete has TTS at echolocation frequencies, but incurs it at night when it is resting and not feeding, it is not impactful. In short, the expected results of any one of these limited number of mild TTS occurrences could be that (1) it does not overlap signals that are pertinent to that animal in the given time period, (2) it overlaps parts of signals that are important to the animal, but not in a manner that impairs interpretation, or (3) it reduces detectability of an important signal to a small degree for a short amount of time—in which case the animal may be aware and be able to compensate (but there may be slight energetic cost), or the animal may have some reduced opportunities (
The ultimate potential impacts of masking on an individual (if it were to occur) are similar to those discussed for TTS, but an important difference is that masking only occurs during the time of the signal, versus TTS, which continues beyond the duration of the signal. Fundamentally, masking is referred to as a chronic effect because one of the key potential harmful components of masking is its duration—the fact that an animal would have reduced ability to hear or interpret critical cues becomes much more likely to cause a problem the longer it is occurring. Also inherent in the concept of masking is the fact that the potential for the effect is only present during the times that the animal and the source are in close enough proximity for the effect to occur (and further, this time period would need to coincide with a time that the animal was utilizing sounds at the masked frequency). As our analysis has indicated, because of the relative movement of vessels and the sound sources primarily involved in this rule, we do not expect the exposures with the potential for masking to be of a long duration. Masking is fundamentally more of a concern at lower frequencies, because low frequency signals propagate significantly further than higher frequencies and because they are more likely to overlap both the narrower low-frequency (LF) calls of mysticetes, as well as many non-communication cues such as fish and invertebrate prey, and geologic sounds that inform navigation (although the Navy is not planning to use LFAS for the activities in this rulemaking). Masking is also more of a concern from continuous sources (versus intermittent sonar signals) where there is no quiet time between pulses within which auditory signals can be detected and interpreted. For these reasons, dense aggregations of, and long exposure to, continuous LF activity are much more of a concern for masking, whereas comparatively short-term exposure to the predominantly intermittent pulses of often narrow frequency range MFAS or HFAS, or explosions are not expected to result in a meaningful amount of masking. While the Navy occasionally uses LF and more continuous sources (although, as noted above, the Navy proposes no LFAS use for the activities in this rulemaking), it is not in the contemporaneous aggregate amounts that would accrue to a masking concern. Specifically, the nature of the activities and sound sources used by the Navy do not support the likelihood of a level of masking accruing that would have the potential to affect reproductive success or survival. Additional detail is provided below.
Standard hull-mounted MFAS typically pings every 50 seconds. Some hull-mounted anti-submarine sonars can also be used in an object detection mode known as “Kingfisher” mode (
Most ASW sonars and countermeasures use MF frequencies and a few use HF frequencies. Most of these sonar signals are limited in the temporal, frequency, and spatial domains. The duration of most individual sounds is short, lasting up to a few seconds each. A few systems operate with higher duty cycles or nearly continuously, but they typically use lower power, which means that an animal would have to be closer, or in the vicinity for a longer time, to be masked to the same degree as by a higher-level source. Nevertheless, masking could occasionally occur at closer ranges to these high-duty cycle and continuous active sonar systems, but as described previously, it would be expected to be of a short duration when the source and animal are in close proximity. While data are limited on behavioral responses of marine mammals to continuously active sonars (Isojunno
Other sources used in Navy training that are not explicitly addressed above, many of either higher frequencies (meaning that the sounds generated attenuate even closer to the source) or lower amounts of operation, are similarly not expected to result in masking. For the reasons described here, any limited masking that could potentially occur would be minor and short-term.
In conclusion, masking is more likely to occur in the presence of broadband, relatively continuous noise sources such as from vessels, however, the duration of temporal and spatial overlap with any individual animal and the spatially separated sources that the Navy uses are not expected to result in more than short-term, low impact masking that will not affect reproduction or survival.
Tables 43 to 48 indicate the number of individuals of each species or stock for which Level A harassment in the form of PTS resulting from exposure to active sonar and/or explosives is estimated to occur. The Northeast Pacific stock of fin whale, Alaska stock of Dall's porpoise, and California stock of Northern elephant seal are the only stocks which may incur PTS (from sonar and explosives). For all other species/stocks only take by Level B harassment (behavioral disturbance and/or TTS) is anticipated. No species/stocks have the potential to incur non-auditory tissue damage from training activities. No species/stocks have the potential to incur non-auditory tissue damage from training activities.
Data suggest that many marine mammals would deliberately avoid exposing themselves to the received levels of active sonar necessary to induce injury by moving away from or at least modifying their path to avoid a close approach. Additionally, in the unlikely event that an animal approaches the sonar-emitting vessel at a close distance, NMFS has determined that the mitigation measures (
If a marine mammal is able to approach a surface vessel within the distance necessary to incur PTS in spite of the mitigation measures, the likely speed of the vessel (nominally 10-15 kn (19-28 km/hr)) and relative motion of the vessel would make it very difficult for the animal to remain in range long enough to accumulate enough energy to result in more than a mild case of PTS. As discussed previously in relation to TTS, the likely consequences to the health of an individual that incurs PTS can range from mild to more serious dependent upon the degree of PTS and the frequency band it is in. The majority of any PTS incurred as a result of exposure to Navy sources would be expected to be in the 2-20 kHz range (resulting from the most powerful hull-mounted sonar) and could overlap a small portion of the communication frequency range of many odontocetes, whereas other marine mammal groups have communication calls at lower frequencies. Regardless of the frequency band, the more important point in this case is that any PTS accrued as a result of exposure to Navy activities would be expected to be of a small amount (single digits of dB hearing loss). Permanent loss of some degree of hearing is a normal occurrence for older animals, and many animals are able to compensate for the shift, both in old age or at younger ages as the result of stressor exposure. While a small loss of hearing sensitivity may include some degree of energetic costs for compensating or may mean some small loss of opportunities or detection capabilities, at the expected scale it would be unlikely to impact behaviors, opportunities, or detection capabilities to a degree that would interfere with reproductive success or survival.
The Navy implements mitigation measures (described in the Mitigation
In this section, we build on the general analysis that applies to all marine mammals in the GOA Study Area from the previous section, and include first information and analysis that applies to mysticetes or, separately, odontocetes, or pinnipeds, and then within those three sections, more specific information that applies to smaller groups, where applicable, and the affected species or stocks. The specific authorized take numbers are also included in the analyses below, and so here we provide some additional context and discussion regarding how we consider the authorized take numbers in those analyses.
The maximum amount and type of incidental take of marine mammals reasonably likely to occur and therefore authorized from exposures to sonar and other active acoustic sources and in-air explosions at or above the water surface during the 7-year training period are shown in Table 32. The vast majority of predicted exposures (greater than 99 percent) are expected to be non-injurious Level B harassment (TTS and behavioral reactions) from acoustic and explosive sources during training activities at relatively low received levels. A small number of takes by Level A harassment (PTS only) are predicted for three species (Dall's porpoise, fin whales, and Northern elephant seals).
In the discussions below, the estimated takes by Level B harassment represent instances of take, not the number of individuals taken (the less frequent Level A harassment takes are far more likely to be associated with separate individuals), and in some cases individuals may be taken more than one time. Below, we compare the total take numbers (including PTS, TTS, and behavioral disturbance) for species or stocks to their associated abundance estimates to evaluate the magnitude of impacts across the species or stock and to individuals. Generally, when an abundance percentage comparison is below 100, it suggests the following: (1) that not all of the individuals will be taken; (2) that, barring specific circumstances suggesting repeated takes of individuals (such as in circumstances where all activities resulting in take are focused in one area and time where the same individual marine mammals are known to congregate, such as pinnipeds at a haulout), the average or expected number of days for those individuals taken is one per year; and (3) that we would not expect any individuals to be taken more than a few times in a year, or for those days to be sequential. When it is more than 100 percent, it means there will definitely be some number of repeated takes of individuals. For example, if the percentage is 300, the average would be each individual is taken on 3 days in a year if all were taken, but it is more likely that some number of individuals will be taken more than three times and some number of individuals fewer or not at all. While it is not possible to know the maximum number of days across which individuals of a stock might be taken, in acknowledgement of the fact that it is more than the average, for the purposes of this analysis, we assume a number approaching twice the average. For example, if the percentage of take compared to the abundance is 800, we estimate that some individuals might be taken as many as 16 times. Those comparisons are included in the sections below.
To assist in understanding what this analysis means, we clarify a few issues related to estimated takes and the analysis here. An individual that incurs a PTS or TTS take may sometimes, for example, also be subject to behavioral disturbance at the same time. As described above in this section, the degree of PTS, and the degree and duration of TTS, expected to be incurred from the Navy's activities are not expected to impact marine mammals such that their reproduction or survival could be affected. Similarly, data do not suggest that a single instance in which an animal accrues PTS or TTS and is also subjected to behavioral disturbance would result in impacts to reproduction or survival. Alternately, we recognize that if an individual is subjected to behavioral disturbance repeatedly for a longer duration and on consecutive days, effects could accrue to the point that reproductive success is jeopardized, although those sorts of impacts are generally not expected to result from these activities. Accordingly, in analyzing the number of takes and the likelihood of repeated and sequential takes, we consider the total takes, not just the takes by Level B harassment by behavioral disturbance, so that individuals potentially exposed to both threshold shift and behavioral disturbance are appropriately considered. The number of Level A harassment takes by PTS are so low (and zero in most cases) compared to abundance numbers that it is considered highly unlikely that any individual would be taken at those levels more than once.
Occasional, milder behavioral reactions are unlikely to cause long-term consequences for individual animals or populations, and even if some smaller subset of the takes are in the form of a longer (several hours or a day) and more severe response, if they are not expected to be repeated over sequential days, impacts to individual fitness are not anticipated. Nearly all studies and experts agree that infrequent exposures of a single day or less are unlikely to impact an individual's overall energy budget (Farmer
If impacts to individuals are of a magnitude or severity such that either repeated and sequential higher severity impacts occur (the probability of this goes up for an individual the higher total number of takes it has) or the total number of moderate to more severe impacts occurs across sequential days, then it becomes more likely that the aggregate effects could potentially interfere with feeding enough to reduce energy budgets in a manner that could impact reproductive success via longer cow-calf intervals, terminated pregnancies, or calf mortality. It is important to note that these impacts only accrue to females, which only comprise a portion of the population (typically approximately 50 percent). Based on energetic models, it takes energetic impacts of a significantly greater magnitude to cause the death of an adult marine mammal, and females will always terminate a pregnancy or stop lactating before allowing their health to deteriorate. Also, the death of an adult female has significantly more impact on population growth rates than reductions in reproductive success,
The analyses below in some cases address species collectively if they occupy the same functional hearing group (
Thus, our analysis below considers the effects of the Navy's activities on each affected species or stock even where discussion is organized by functional hearing group and/or information is evaluated at the group level. Where there are meaningful differences between a species or stock that would further differentiate the analysis, they are either described within the section or the discussion for those species or stocks is included as a separate subsection. Specifically, below we first provide broad discussion of the expected effects on the mysticete, odontocete, and pinniped groups generally, and then differentiate into further groups as appropriate.
This section builds on the broader discussion above and brings together the discussion of the different types and amounts of take that different species and stocks will likely incur, the applicable mitigation, and the status of the species and stocks to support the negligible impact determinations for each species or stock. We have described above (in the
For mysticetes, there is no predicted non-auditory tissue damage from explosives for any species, and only two fin whales could be taken by PTS by exposure to in-air explosions at or above the water surface. Much of the discussion below focuses on the behavioral effects and the mitigation measures that reduce the probability or severity of effects. Because there are species-specific and stock-specific considerations, at the end of the section we break out our findings on a species-specific and, for one species, stock-specific basis.
In Table 43 below for mysticetes, we indicate for each species and stock the total annual numbers of take by Level A harassment and Level B harassment, and a number indicating the instances of total take as a percentage of abundance.
The majority of takes by harassment of mysticetes in the TMAA are caused by ASW activities. Anti-submarine activities include sources from the MFAS bin (which includes hull-mounted sonar). They are high level, narrowband sources in the 1-10 kHz range, which intersect what is estimated to be the most sensitive area of hearing for mysticetes. They also are used in a large portion of exercises (see Table 1 and Table 3). Most of the takes (88 percent) from the MF1 bin in the TMAA would result from received levels between 166 and 178 dB SPL, while another 11 percent would result from exposure between 160 and 166 dB SPL. For the remaining active sonar bin types, the percentages are as follows: MF4 = 97 percent between 142 and 154 dB SPL and MF5 = 97 percent between 118 and 142 dB SPL. For mysticetes, exposure to explosives would result in comparatively smaller numbers of takes
Research and observations show that if mysticetes are exposed to sonar or other active acoustic sources they may react in a number of ways depending on the characteristics of the sound source, their experience with the sound source, and whether they are migrating or on seasonal feeding or breeding grounds. Behavioral reactions may include alerting, breaking off feeding dives and surfacing, diving or swimming away, or no response at all (Department of Defense, 2017; Nowacek, 2007; Richardson, 1995; Southall
As noted in the Potential Effects of Specified Activities on Marine Mammals and Their Habitat section of the proposed rule, while there are multiple examples from behavioral response studies of odontocetes ceasing their feeding dives when exposed to sonar pulses at certain levels, blue whales were less likely to show a visible response to sonar exposures at certain levels when feeding than when traveling. However, Goldbogen
Richardson
At most, only one MTE would occur per year (over a maximum of 21 days), and additionally, MF1 mid-frequency active sonar is prohibited from June 1 to September 30 within the North Pacific Right Whale Mitigation Area. Explosives detonated below 10,000 ft. altitude (including at the water surface) are prohibited in the Continental Shelf and Slope Mitigation Area, including in the portion that overlaps the North Pacific Right Whale Mitigation Area. In the open waters of the Gulf of Alaska, the use of Navy sonar and other active acoustic sources is transient and is unlikely to expose the same population of animals repeatedly over a short period of time, especially given the broader-scale movements of mysticetes and the 21-day duration of the activities.
The implementation of procedural mitigation and the sightability of mysticetes (especially given their large size) further reduces the potential for a significant behavioral reaction or a threshold shift to occur (
As noted previously, when an animal incurs a threshold shift, it occurs in the frequency from that of the source up to one octave above. This means that the vast majority of threshold shifts caused by Navy sonar sources will typically occur in the range of 2-20 kHz (from the 1-10 kHz MF bin, though in a specific narrow band within this range as the sources are narrowband), and if resulting from hull-mounted sonar, will be in the range of 3.5-7 kHz. The majority of mysticete vocalizations occur in frequencies below 1 kHz, which means that TTS incurred by mysticetes will not interfere with conspecific communication. Additionally, many of the other critical sounds that serve as cues for navigation and prey (
All the mysticete species discussed in this section would benefit from the procedural mitigation measures described earlier in the Mitigation Measures section. Additionally, the Navy will issue awareness messages prior to the start of TMAA training activities to alert vessels and aircraft operating within the TMAA to the possible presence of concentrations of large whales, including mysticetes, especially when traversing on the continental shelf and slope where densities of these species may be higher. To maintain safety of navigation and to avoid interactions with marine mammals, the Navy will instruct vessels to remain vigilant to the presence of large whales that may be vulnerable to vessel strikes or potential impacts from training activities. Further, the Navy will limit activities and employ other measures in mitigation areas that would avoid or reduce impacts to mysticetes. Where these mitigation areas are expected to mitigate impacts to particular species or stocks (North Pacific right whale, humpback whale, gray whale), they are discussed in detail below.
Below we compile and summarize the information that supports our determinations that the Navy's activities would not adversely affect any mysticete species or stock through effects on annual rates of recruitment or survival.
North Pacific right whales are listed as endangered under the ESA, and this species is currently one of the most endangered whales in the world
Regarding the magnitude of takes by Level B harassment (TTS and behavioral disturbance), only 3 instances of take by Level B harassment (2 TTS, and 1 behavioral disturbance) are estimated, which equate to about 10 percent of the very small estimated abundance. Given this very small estimate, repeated exposures of individuals are not anticipated. Regarding the severity of individual takes by Level B harassment by behavioral disturbance, we have explained that the duration of any exposure is expected to be between minutes and hours (
Altogether, North Pacific right whales are listed as endangered under the ESA, and the current population trend is unknown. Only three instances of take are estimated to occur (a small portion of the stock), and any individual North Pacific right whale is likely to be disturbed at a low-moderate level. This low magnitude and severity of harassment effects is not expected to result in impacts on the reproduction or survival of any individuals, let alone have impacts on annual rates of recruitment or survival of this stock. No mortality or Level A harassment is anticipated or authorized. For these reasons, we have determined, in consideration of all of the effects of the Navy's activities combined, that the authorized take will have a negligible impact on the Eastern North Pacific stock of North Pacific right whales.
The California/Oregon/Washington (CA/OR/WA) stock of humpback whales includes individuals from three ESA DPSs: Central America (endangered), Mexico (threatened), and Hawaii (not listed). A small portion of ESA-designated critical habitat overlaps with the TMAA portion of the GOA Study Area (see Figure 4-1 of the Navy's rulemaking/LOA application). The ESA-designated critical habitat does not overlap with any portion of the WMA. No other BIAs are identified for this species in the GOA Study Area. The SAR identifies this stock as stable (having shown a long-term increase from 1990 and then leveling off between 2008 and 2014). Navy personnel will not use surface ship hull-mounted MF1 mid-frequency active sonar from June 1 to September 30 within the North Pacific Right Whale Mitigation Area, which overlaps 18 percent of the humpback whale critical habitat in the TMAA. Further, Navy personnel will not detonate explosives below 10,000 ft altitude (including at the water surface) during training at all times in the Continental Shelf and Slope Mitigation Area (including in the portion that overlaps the North Pacific Right Whale Mitigation Area), which fully overlaps the portion of the humpback whale critical habitat in the TMAA. These measures will reduce the severity of impacts to humpback whales by reducing interference in feeding that could result in lost feeding opportunities or necessitate additional energy expenditure to find other good opportunities.
Regarding the magnitude of takes by Level B harassment (TTS and behavioral disturbance), the number of estimated total instances of take is 10 (8 TTS and 2 behavioral disturbance), which is less than 1 percent of the abundance. Given the very low number of anticipated instances of take, only a very small portion of individuals in the stock are likely impacted and repeated exposures of individuals are not anticipated. Regarding the severity of those individual takes by Level B harassment by behavioral disturbance, we have explained that the duration of any exposure is expected to be between minutes and hours (
Altogether, this population is stable (even though two of the three associated DPSs are listed as endangered or threatened under the ESA), only a very small portion of the stock is anticipated to be impacted, and any individual humpback whale is likely to be disturbed at a low-moderate level. No mortality or serious injury and no Level A harassment is anticipated or authorized. This low magnitude and severity of harassment effects is not expected to result in impacts on the reproduction or survival of any individuals, let alone have impacts on annual rates of recruitment or survival of this stock. For these reasons, we have determined, in consideration of all of the effects of the Navy's activities combined, that the authorized take will have a negligible impact on the California/Oregon/Washington stock of humpback whales.
The Central North Pacific stock of humpback whales consists of winter/spring humpback whale populations of the Hawaiian Islands which migrate
Regarding the magnitude of takes by Level B harassment (TTS and behavioral disturbance), the number of estimated instances of take compared to the abundance is less than 1 percent. This information and the complicated far-ranging nature of the stock structure indicates that only a very small portion of the stock is likely impacted. While no BIAs have been identified in the GOA Study Area, highest densities in the nearby Kodiak Island feeding BIA (July to September) and Prince William Sound feeding BIA (September to December) overlap with much of the potential window for the Navy's exercise in the GOA Study Area (April to October). Given that some whales may remain in the area surrounding these BIAs for some time to feed during the Navy's exercise, there may be a few repeated exposures of a few individuals, most likely on non-sequential days. Regarding the severity of those individual takes by Level B harassment by behavioral disturbance, we have explained that the duration of any exposure is expected to be between minutes and hours (
Altogether, this population is increasing and the associated DPS is not listed as endangered or threatened under the ESA. Only a very small portion of the stock is anticipated to be impacted and any individual humpback whale is likely to be disturbed at a low-moderate level. This low magnitude and severity of harassment effects is not expected to result in impacts on individual reproduction or survival, let alone have impacts on annual rates of recruitment or survival of this stock. No mortality or Level A harassment is anticipated or authorized. For these reasons, we have determined, in consideration of all of the effects of the Navy's activities combined, that the authorized take will have a negligible impact on the Central North Pacific stock of humpback whales.
The Western North Pacific stock of humpback whales includes individuals from the Western North Pacific DPS, which is ESA-listed as endangered. A relatively small portion of ESA-designated critical habitat overlaps with the TMAA (2,708 km
Regarding the magnitude of takes by Level B harassment (behavioral disturbance only), the number of estimated total instances of take is three, which is less than 1 percent of the abundance. Given the very low number of anticipated instances of take, only a very small portion of individuals in the stock are likely impacted and repeated exposures of individuals are not anticipated. Regarding the severity of those individual takes by Level B harassment by behavioral disturbance, we have explained that the duration of any exposure is expected to be between minutes and hours (
Altogether, the status of this stock is unknown, only a very small portion of the stock is anticipated to be impacted (3 individuals), and any individual humpback whale is likely to be disturbed at a low-moderate level. No mortality, serious injury, Level A harassment, or TTS is anticipated or authorized. This low magnitude and severity of harassment effects is not expected to result in impacts on the reproduction or survival of any individuals, let alone have impacts on annual rates of recruitment or survival of this stock. For these reasons, we have determined, in consideration of all of the effects of the Navy's activities combined, that the authorized take will have a negligible impact on the Western North Pacific stock of humpback whales.
Blue whales are listed as endangered under the ESA throughout their range, but there is no ESA designated critical habitat and no BIAs have been identified for this species in the GOA Study Area. The current population trend for the Central North Pacific stock is unknown, and the Eastern North Pacific stock is stable.
Regarding the magnitude of takes by Level B harassment (TTS and behavioral disturbance), the number of estimated total instances of take compared to the abundance is 2 percent for both the Central North Pacific stock, and the Eastern North Pacific stock. For the Central North Pacific stock, only 3 instances of take (TTS) are anticipated.
Given the range of both blue whale stocks, the absence of any known feeding or aggregation areas, and the very low number of anticipated instances of take of the Central North Pacific stock, this information indicates that only a small portion of individuals in the stock are likely impacted and repeated exposures of individuals are not anticipated. Regarding the severity of those individual takes by Level B harassment by behavioral disturbance, we have explained that the duration of any exposure is expected to be between minutes and hours (
Altogether, blue whales are listed as endangered under the ESA throughout their range, the current population trend for the Central North Pacific stock is unknown, and the Eastern North Pacific stock is stable. Only a small portion of the stocks are anticipated to be impacted, and any individual blue whale is likely to be disturbed at a low-moderate level. The low magnitude and severity of harassment effects is not expected to result in impacts on the reproduction or survival of any individuals, let alone have impacts on annual rates of recruitment or survival of this stock. No mortality and no Level A harassment is anticipated or authorized. For these reasons, we have determined, in consideration of all of the effects of the Navy's activities combined, that the authorized take will have a negligible impact on the Central North Pacific stock and the Eastern North Pacific stock of blue whales.
Fin whales are listed as endangered under the ESA throughout their range, but there is no ESA designated critical habitat and no BIAs have been identified for this species in the GOA Study Area. The SAR identifies this stock as increasing.
Regarding the magnitude of takes by Level B harassment (TTS and behavioral disturbance), the number of estimated total instances of take compared to the abundance is 39 percent (though, as noted in Table 43, the SAR reports the stock abundance assessment as provisional and notes that it is an underestimate for the entire stock because it is based on surveys which covered only a small portion of the stock's range, and therefore 39 percent is likely an overestimate). Given the large range of the stock and short duration of the Navy's activities in the GOA Study Area, this information suggests that notably fewer than half of the individuals of the stock will likely be impacted, and that most affected individuals will likely be disturbed on a few days within the 21-day exercise, with the days most likely being non-sequential. Regarding the severity of those individual takes by Level B harassment by behavioral disturbance, we have explained that the duration of any exposure is expected to be between minutes and hours (
For these same reasons (low level and frequency band), while a small permanent loss of hearing sensitivity (PTS) may include some degree of energetic costs for compensating or may mean some small loss of opportunities or detection capabilities, at the expected scale the estimated two takes by Level A harassment by PTS will be unlikely to impact behaviors, opportunities, or detection capabilities to a degree that would interfere with reproductive success or survival of those individuals. Thus, the two takes by Level A harassment by PTS are unlikely to affect rates of recruitment and survival for the stock.
Altogether, fin whales are listed as endangered under the ESA, though this population is increasing. Only a small portion of the stock is anticipated to be impacted, and any individual fin whale is likely to be disturbed at a low-moderate level. This low magnitude and severity of harassment effects is not expected to result in impacts on reproduction or survival of any individuals, let alone have impacts on annual rates of recruitment or survival of this stock. No mortality or serious injury and no Level A harassment from non-auditory tissue damage is anticipated or authorized. For these reasons, we have determined, in consideration of all of the effects of the Navy's activities combined, that the authorized take will have a negligible impact on the Northeast Pacific stock of fin whales.
The population trend of this stock is unknown, however sei whales are listed as endangered under the ESA throughout their range. There is no ESA designated critical habitat and no BIAs have been identified for this species in the GOA Study Area.
Regarding the magnitude of takes by Level B harassment (TTS and behavioral disturbance), the number of estimated total instances of take compared to the abundance is 7 percent. This information and the rare occurrence of sei whales in the TMAA suggests that only a small portion of individuals in the stock will likely be impacted and repeated exposures of individuals are not anticipated. Regarding the severity of those individual takes by Level B harassment by behavioral disturbance, we have explained that the duration of any exposure is expected to be between minutes and hours (
Altogether, the status of the stock is unknown and the species is listed as endangered, only a small portion of the stock is anticipated to be impacted, and any individual sei whale is likely to be disturbed at a low-moderate level. This low magnitude and severity of harassment effects is not expected to result in impacts on individual reproduction or survival, much less annual rates of recruitment or survival. No mortality and no Level A harassment is anticipated or authorized. For these reasons, we have determined, in consideration of all of the effects of the Navy's activities combined, that the authorized take will have a negligible impact on the Eastern North Pacific stock of sei whales.
The status of this stock is unknown and the species is not listed under the ESA. No BIAs have been identified for this species in the GOA Study Area.
Regarding the magnitude of takes by Level B harassment (TTS and behavioral disturbance), the number of estimated total instances of take compared to the abundance is 13 percent for the Alaska stock (based on, to be conservative, the smallest available provisional estimate in the SAR, which is derived from surveys that cover only a portion of the stock's range). Given the range of the Alaska stock of minke whales, this information indicates that only a small portion of individuals in this stock are likely to be impacted and repeated exposures of individuals are not anticipated. Regarding the severity of those individual takes by Level B harassment by behavioral disturbance, we have explained that the duration of any exposure is expected to be between minutes and hours (
Altogether, although the status of the stock is unknown, the species is not listed under the ESA as endangered or threatened, only a small portion of the stock is anticipated to be impacted, and any individual minke whale is likely to be disturbed at a low-moderate level. This low magnitude and severity of harassment effects is not expected to result in impacts on individual reproduction or survival, let alone have impacts on annual rates of recruitment or survival of this stock. No mortality, serious injury, or Level A harassment is anticipated or authorized. For these reasons, we have determined, in consideration of all of the effects of the Navy's activities combined, that the authorized take will have a negligible impact on the Alaska stock of minke whales.
The Eastern North Pacific stock of gray whale is not ESA-listed, and the SAR indicates that the stock is increasing. However, recent (2021-2022) surveys conducted by NMFS' Southwest Fisheries Science Center estimated that the population has declined to 16,650 whales, though the authors note that this stock has historically shown a pattern of population growth and decline that has not impacted the population in the long term (Eguchi
Regarding the magnitude of takes by Level B harassment (behavioral disturbance only), the number of estimated total instances of take is four, which is less than 1 percent of the abundance, regardless of whether the number of takes is compared to the abundance in the SAR or Eguchi
Altogether, while we have considered the impacts of the gray whale UME, this population of gray whales is not endangered or threatened under the ESA. No mortality, Level A harassment, or TTS is anticipated or authorized. Only a very small portion of the stock is anticipated to be impacted, and any individual gray whale is likely to be disturbed at a low-moderate level. This low magnitude and severity of harassment effects is not expected to result in impacts on the reproduction or survival of any individuals, let alone have impacts on annual rates of recruitment or survival of this stock. For these reasons, we have determined, in consideration of all of the effects of the Navy's activities combined, that the authorized take will have a negligible impact on the Eastern North Pacific stock of gray whales.
This section builds on the broader discussion above and brings together the discussion of the different types and amounts of take that different species and stocks will likely incur, the applicable mitigation, and the status of the species and stocks to support the negligible impact determinations for each species or stock. We have described (above in the
The majority of takes by harassment of odontocetes in the TMAA are caused by sources from the MFAS bin (which includes hull-mounted sonar) because they are high level, typically narrowband sources at a frequency (in the 1-10 kHz range) that overlaps a more sensitive portion (though not the most sensitive) of the MF hearing range and they are used in a large portion of exercises (see Table 1 and Table 3). For odontocetes other than beaked whales (for which these percentages are indicated separately in that section), most of the takes (95 percent) from the MF1 bin in the TMAA will result from received levels between 160 and 172 dB SPL. For the remaining active sonar bin types, the percentages are as follows: MF4 = 98 percent between 142 and 160 dB SPL and MF5 = 94 percent between 118 and 142 dB SPL. Based on this information, the majority of the takes by Level B harassment by behavioral disturbance are expected to be low to sometimes moderate in nature, but still of a generally shorter duration.
For all odontocetes, takes from explosives (Level B harassment by behavioral disturbance, TTS, or PTS) comprise a very small fraction (and low number) of those caused by exposure to active sonar. For the following
Because the majority of harassment takes of odontocetes result from the sources in the MFAS bin, the vast majority of threshold shift would occur upon receipt of a single frequency within the 1-10 kHz range and, therefore, the vast majority of threshold shift caused by Navy sonar sources would be at a single frequency within the range of 2-20 kHz. The frequency range within which any of the anticipated narrowband threshold shift would occur would fall directly within the range of most odontocete vocalizations (2-20 kHz) (though phocoenids generally communicate at higher frequencies (Soerensen
The range of potential behavioral effects of sound exposure on marine mammals generally, and odontocetes specifically, has been discussed in detail previously. There are behavioral patterns that differentiate the likely impacts on odontocetes as compared to mysticetes. First, odontocetes echolocate to find prey, which means that they actively send out sounds to detect their prey. While there are many strategies for hunting, one common pattern, especially for deeper diving species, is many repeated deep dives within a bout, and multiple bouts within a day, to find and catch prey. As discussed above, studies demonstrate that odontocetes may cease their foraging dives in response to sound exposure. If enough foraging interruptions occur over multiple sequential days, and the individual either does not take in the necessary food, or must exert significant effort to find necessary food elsewhere, energy budget deficits can occur that could potentially result in impacts to reproductive success, such as increased cow/calf intervals (the time between successive calving). However, the relatively low impact of the Navy's activities on odontocetes in the TMAA indicate this is not likely to occur. Second, while many mysticetes rely on seasonal migratory patterns that position them in a geographic location at a specific time of the year to take advantage of ephemeral large abundances of prey (
All the odontocete species and stocks discussed in this section would benefit from the procedural mitigation measures described earlier in the Mitigation Measures section.
This section builds on the broader odontocete discussion above and brings together the discussion of the different types and amounts of take that sperm whales would likely incur, the applicable mitigation, and the status of the species/stock to support the negligible impact determination for the stock.
Sperm whales are listed as endangered under the ESA. No critical habitat has been designated for sperm whales under the ESA and no BIAs for sperm whales have been identified in the GOA Study Area. The stock's current population trend is unknown. The Navy will issue awareness messages prior to the start of TMAA training activities to alert Navy ships and aircraft operating within the TMAA to the possible presence of increased concentrations of large whales, including sperm whales. This measure would further reduce any possibility of ship strike of sperm whales.
In Table 44 below for sperm whales, we indicate the total annual numbers of take by Level A harassment and Level B harassment, and a number indicating the instances of total take as a percentage of abundance.
Regarding the magnitude of takes by Level B harassment (TTS and behavioral disturbance), the number of estimated total instances of take compared to the abundance is 33 percent. Given the range of this stock, and the fact that the abundance estimate is an underestimate for the entire stock given that it is based on surveys of a small portion of the stock's extensive range and does not account for animals missed on the trackline or for females and juveniles in tropical and subtropical waters, this information indicates that fewer than half of the individuals in the stock are likely to be impacted, with those individuals disturbed on likely one, but not more than a few non-sequential days within the 21 days per year. Additionally, while interrupted feeding bouts are a known response and concern for odontocetes, we also know that there are often viable alternative habitat options in the relative vicinity. Regarding the severity of those individual takes by Level B harassment by behavioral disturbance, we have explained that the duration of any exposure is expected to be between minutes and hours (
Altogether, sperm whales are listed as endangered under the ESA, and the current population trend is unknown. Fewer than half of the individuals of the stock are anticipated to be impacted, and any individual sperm whale is likely to be disturbed at a low-moderate level. This low magnitude and severity of harassment effects is not expected to result in impacts on reproduction or survival for any individuals, let alone have impacts on annual rates of recruitment or survival of this stock. No mortality, serious injury, or Level A harassment is anticipated or authorized. For these reasons, we have determined, in consideration of all of the effects of the Navy's activities combined, that the authorized take will have a negligible impact on the North Pacific stock of sperm whales.
This section builds on the broader odontocete discussion above and brings together the discussion of the different types and amounts of take that different beaked whale species and stocks would likely incur, the applicable mitigation, and the status of the species and stocks to support the negligible impact determinations for each species or stock. For beaked whales, no mortality or Level A harassment is anticipated or authorized.
In Table 45 below for beaked whales, we indicate the total annual numbers of take by Level A harassment and Level B harassment, and a number indicating the instances of total take as a percentage of abundance.
This first paragraph provides specific information that is in lieu of the parallel information provided for odontocetes as a whole. The majority of takes by harassment of beaked whales in the TMAA will be caused by sources from
Research has shown that beaked whales are especially sensitive to the presence of human activity (Pirotta
Beaked whales have been documented to exhibit avoidance of human activity or respond to vessel presence (Pirotta
Research and observations show that if beaked whales are exposed to sonar or other active acoustic sources, they may startle, break off feeding dives, and avoid the area of the sound source to levels of 157 dB re: 1 µPa, or below (McCarthy
Populations of beaked whales and other odontocetes on the Bahamas and other Navy fixed ranges that have been operating for decades appear to be stable. Behavioral reactions (avoidance of the area of Navy activity) seem most likely in cases where beaked whales are exposed to anti-submarine sonar within a few tens of kilometers, especially for prolonged periods (a few hours or more) since this is one of the most sensitive marine mammal groups to anthropogenic sound of any species or group studied to date and research indicates beaked whales will leave an area where anthropogenic sound is present (De Ruiter
Below we compile and summarize the information that supports our determinations that the Navy's activities would not adversely affect any of the beaked whale stocks through effects on annual rates of recruitment or survival.
Baird's beaked whale, Cuvier's beaked whale, and Stejneger's beaked whale are not listed as endangered or threatened species under the ESA, and the 2019 Alaska SARs indicate that trend information is not available for any of the Alaska stocks. No BIAs for beaked whales have been identified in the GOA Study Area.
As indicated in Table 45, no abundance estimates are available for any of the stocks. However, the ranges of all three stocks are large compared to the GOA Study Area (Cuvier's is the smallest, occupying all of the Gulf of Alaska, south of the Canadian border and west along the Aleutian Islands. Baird's range even farther south and Baird's and Stejneger's also cross north over the Aleutian Islands).
Regarding abundance and distribution of these species in the vicinity of the TMAA, passive acoustic data indicate spatial overlap of all three beaked whales; however, detections are spatially offset, suggesting some level of habitat portioning in the Gulf of Alaska (Rice
Data from a satellite-tagged Baird's beaked whale off Southern California recently documented movement north along the shelf-edge for more than 400 nmi over a six-and-a-half-day period (Schorr
Regarding Stejneger's beaked whale, passive acoustic monitoring detected the whales most commonly at the slope and offshore in the TMAA (Rice
Regarding Cuvier's beaked whale, passive acoustic monitoring at five sites in the TMAA (Rice
Regarding the magnitude of takes by Level B harassment (TTS and behavioral disturbance), the anticipated takes would occur within a small portion of the stocks' ranges (including that none of the stocks are expected to occur in the far western edge of the TMAA; U.S. Department of the Navy, 2021) and will occur within the 21-day window of the annual activities. In consideration of these factors and the passive acoustic monitoring data described in this section, which indicates relatively low beaked whale presence in the TMAA during the Navy's planned training period, it is likely that a portion of the stocks would be taken, and a subset of them may be taken on a few days, with no indication that these days will be sequential.
Regarding the severity of those individual takes by Level B harassment by behavioral disturbance, we have explained that the duration of any exposure is expected to be between minutes and hours (
Altogether, none of these species are ESA-listed, only a portion of the stocks are anticipated to be impacted, and any individual beaked whale is likely to be disturbed at a moderate or sometimes low level. This low magnitude and moderate to lower severity of harassment effects is not expected to result in impacts on individual reproduction or survival, let alone have impacts on annual rates of recruitment or survival of this stock. No mortality, serious injury, or Level A harassment is anticipated or authorized. For these reasons, we have determined, in consideration of all of the effects of the Navy's activities combined, that the authorized take will have a negligible
This section builds on the broader odontocete discussion above and brings together the discussion of the different types and amounts of take that different dolphin and small whale species and stocks are likely to incur, the applicable mitigation, and the status of the species and stocks to support the negligible impact determinations for each species or stock. For all dolphin and small whale stocks discussed here, no mortality or Level A harassment is anticipated or authorized.
In Table 46 below for dolphins and small whales, we indicate the total annual numbers of take by Level A harassment and Level B harassment, and a number indicating the instances of total take as a percentage of abundance.
As described above, the large majority of Level B harassment by behavioral disturbance to odontocetes, and thereby dolphins and small whales, from hull-mounted sonar (MFAS) in the TMAA will result from received levels between 160 and 172 dB SPL. Therefore, the majority of takes by Level B harassment are expected to be in the form of low to occasionally moderate responses of a generally shorter duration. As mentioned earlier in this section, we anticipate more severe effects from takes when animals are exposed to higher received levels or for longer durations. Occasional milder occurrences of Level B harassment by behavioral disturbance are unlikely to cause long-term consequences for individual animals, much less have any effect on annual rates of recruitment or survival. No mortality, serious injury, or Level A harassment is expected or authorized.
Research and observations show that if delphinids are exposed to sonar or other active acoustic sources they may react in a number of ways depending on their experience with the sound source and what activity they are engaged in at the time of the acoustic exposure. Delphinids may not react at all until the sound source is approaching within a few hundred meters to within a few kilometers depending on the environmental conditions and species. Some dolphin species (the more surface-dwelling taxa—typically those with “dolphin” in the common name, such as bottlenose dolphins, spotted dolphins, spinner dolphins, rough-toothed dolphins,
Below we compile and summarize the information that supports our determinations that the Navy's activities will not adversely affect any of the dolphins and small whales through effects on annual rates of recruitment or survival.
No killer whale stocks in the TMAA are listed as DPSs under the ESA, and no BIAs for killer whales have been identified in the GOA Study Area. The Eastern North Pacific Offshore stock is reported as “stable,” and the population trend of the Eastern North Pacific Gulf of Alaska, Aleutian Islands, and Bering Sea Transient stock is unknown.
Regarding the magnitude of takes by Level B harassment (TTS and behavioral disturbance), the number of estimated total instances of take compared to the abundance is 27 percent for the Eastern North Pacific Offshore stock and 24 percent for the Eastern North Pacific Gulf of Alaska, Aleutian Islands, and Bering Sea Transient stock. This information indicates that only a portion of each stock is likely impacted, with those individuals disturbed on likely one, but not more than a few non-sequential days within the 21 days per year. Regarding the severity of those individual takes by Level B harassment by behavioral disturbance, we have explained that the duration of any exposure is expected to be between minutes and hours (
Altogether, these killer whale stocks are not listed under the ESA. The Eastern North Pacific Offshore stock is reported as “stable,” and the population trend of the Eastern North Pacific Gulf
Pacific white-sided dolphins are not listed under the ESA and the current population trend of the North Pacific stock is unknown. No BIAs for this stock have been identified in the GOA Study Area.
Regarding the magnitude of takes by Level B harassment (TTS and behavioral disturbance), the number of estimated total instances of take compared to the abundance is 6 percent. Given the number of takes, only a small portion of the stock is likely impacted, and individuals are likely disturbed between one and a few days, most likely non-sequential, within a year. Regarding the severity of those individual takes by Level B harassment by behavioral disturbance, we have explained that the duration of any exposure is expected to be between minutes and hours (
Altogether, though the status of this stock is unknown, this stock is not listed under the ESA. Any individual is likely to be disturbed at a low-moderate level, and those individuals likely disturbed on one to a few non-sequential days within a year. This low magnitude and severity of harassment effects is not expected to result in impacts on individual reproduction or survival, let alone have impacts on annual rates of recruitment or survival of this stock. No mortality, serious injury, or Level A harassment is anticipated or authorized. For these reasons, we have determined, in consideration of all of the effects of the Navy's activities combined, that the authorized take will have a negligible impact on the North Pacific stock of Pacific white-sided dolphins.
This section builds on the broader odontocete discussion above and brings together the discussion of the different types and amounts of take that this porpoise stock would likely incur, the applicable mitigation, and the status of the stock to support the negligible impact determination.
In Table 47 below for Dall's porpoise, we indicate the total annual numbers of take by Level A harassment and Level B harassment, and a number indicating the instances of total take as a percentage of abundance.
Dall's porpoise is not listed under the ESA and the current population trend for the Alaska stock is unknown. No BIAs for Dall's porpoise have been identified in the GOA Study Area.
While harbor porpoises have been observed to be especially sensitive to human activity, the same types of responses have not been observed in Dall's porpoises. Dall's porpoises are typically notably longer than, and weigh more than twice as much as harbor porpoises, making them generally less likely to be preyed upon and likely differentiating their behavioral repertoire somewhat from harbor porpoises. Further, they are typically seen in large groups and feeding aggregations, or exhibiting bow-riding behaviors, which is very different from the group dynamics observed in the more typically solitary, cryptic harbor porpoises, which are not often seen bow-riding. For these reasons, Dall's porpoises are not treated as an especially sensitive species (versus harbor porpoises which have a lower behavioral harassment threshold and more distant cutoff) but, rather, are analyzed similarly to other odontocetes (with takes from the sonar bin in the TMAA resulting from the same received levels reported in the
We note that Dall's porpoise, as a HF-sensitive species, has a lower PTS threshold than other groups and therefore is generally more likely to experience TTS and PTS, and potentially occasionally to a greater degree, and NMFS accordingly has evaluated and authorized higher numbers. Also, however, regarding PTS from sonar exposure, porpoises are still likely to avoid sound levels that would cause higher levels of TTS (greater than 20 dB) or PTS. Therefore, even though the number of TTS takes are higher than for other odontocetes, any PTS is
Regarding the magnitude of takes by Level B harassment (TTS and behavioral disturbance), the number of estimated total instances of take compared to the abundance is 11 percent. This indicates that only a small portion of this stock is likely to be impacted, and a subset of those individuals will likely be taken on no more than a few non-sequential days within a year. Regarding the severity of those individual takes by Level B harassment by behavioral disturbance, we have explained that the duration of any exposure is expected to be between minutes and hours (
For the same reasons explained above for TTS (low to occasionally moderate level and the likely frequency band), while a small permanent loss of hearing sensitivity may include some degree of energetic costs for compensating or may mean some small loss of opportunities or detection capabilities, the estimated annual takes by Level A harassment by PTS for this stock (64 takes) are unlikely to impact behaviors, opportunities, or detection capabilities to a degree that will interfere with reproductive success or survival of any individuals.
Altogether, the status of the Alaska stock of Dall's porpoise is unknown, however Dall's porpoise are not listed as endangered or threatened under the ESA. Only a small portion of this stock is likely to be impacted, any individual is likely to be disturbed at a low-moderate level, and a subset of taken individuals will likely be taken on a few non-sequential days within a year. This low magnitude and severity of Level B harassment effects is not expected to result in impacts on individual reproduction or survival, much less annual rates of recruitment or survival. Some individuals (64 annually) could be taken by PTS of likely low to occasionally moderate severity. A small permanent loss of hearing sensitivity (PTS) may include some degree of energetic costs for compensating or may mean some small loss of opportunities or detection capabilities, but at the expected scale the estimated takes by Level A harassment by PTS for this stock are unlikely, alone or in combination with the Level B harassment take by behavioral disturbance and TTS, to impact behaviors, opportunities, or detection capabilities to a degree that will interfere with reproductive success or survival of any individuals, let alone have impacts on annual rates of recruitment or survival of this stock. No mortality or serious injury and no Level A harassment from non-auditory tissue damage is anticipated or authorized. For these reasons, we have determined, in consideration of all of the effects of the Navy's activities combined, that the authorized take will have a negligible impact on the Alaska stock of Dall's porpoise.
This section builds on the broader discussion above and brings together the discussion of the different types and amounts of take that different species and stocks will likely incur, the applicable mitigation, and the status of the species and stocks to support the negligible impact determinations for each species or stock. We have described (earlier in this section) the unlikelihood of any masking having effects that will impact the reproduction or survival of any of the individual marine mammals affected by the Navy's activities. We have also described above in the Potential Effects of Specified Activities on Marine Mammals and their Habitat section of the proposed rule that the specified activities would not have adverse or long-term impacts on marine mammal habitat, and therefore the unlikelihood of any habitat impacts affecting the reproduction or survival of any of the individual marine mammals affected by the Navy's activities. For pinnipeds, there is no mortality or serious injury and no Level A harassment from non-auditory tissue damage from sonar or explosives anticipated or authorized for any species.
Regarding behavioral disturbance, research and observations show that pinnipeds in the water may be tolerant of anthropogenic noise and activity (a review of behavioral reactions by pinnipeds to impulsive and non-impulsive noise can be found in Richardson
While no take of Steller sea lion is anticipated or authorized, we note that the GOA Study Area boundary was intentionally designed to avoid ESA-designated Steller sea lion critical habitat.
All the pinniped species discussed in this section will benefit from the procedural mitigation measures described earlier in the Proposed Mitigation Measures section.
In Table 48 below for pinnipeds, we indicate the total annual numbers of take by Level A harassment and Level B harassment, and a number indicating the instances of total take as a percentage of abundance.
The majority of takes by harassment of pinnipeds in the TMAA are caused by sources from the MFAS bin (which includes hull-mounted sonar) because they are high level sources at a frequency (1-10 kHz) which overlaps the most sensitive portion of the pinniped hearing range, and of the sources expected to result in take, they are used in a large portion of exercises (see Table 1 and Table 3). Most of the takes (>99 percent) from the MF1 bin in the TMAA would result from received levels between 166 and 178 dB SPL. For the remaining active sonar bin types, the percentages are as follows: MF4 = 97 percent between 148 and 172 dB SPL and MF5 = 99 percent between 130 and 160 dB SPL. Given the levels they are exposed to and pinniped sensitivity, most responses would be of a lower severity, with only occasional responses likely to be considered moderate, but still of generally short duration.
As mentioned earlier in this section, we anticipate more severe effects from takes when animals are exposed to higher received levels. Occasional milder takes by Level B harassment by behavioral disturbance are unlikely to cause long-term consequences for individual animals or populations, especially when they are not expected to be repeated over sequential multiple days. For all pinnipeds except Northern elephant seals, no take is expected to occur from explosives. For Northern elephant seals, harassment takes from explosives (behavioral disturbance, TTS, and PTS) comprise a very small fraction of those caused by exposure to active sonar.
Because the majority of harassment takes of pinnipeds result from narrowband sources in the range of 1-10 kHz, the vast majority of threshold shift caused by Navy sonar sources will typically occur in the range of 2-20 kHz. This frequency range falls within the range of pinniped hearing, however, pinniped vocalizations typically span a somewhat lower range than this (<0.2 to 10 kHz) and threshold shift from active sonar will often be in a narrower band (reflecting the narrower band source that caused it), which means that TTS incurred by pinnipeds will typically only interfere with communication within a portion of a pinniped's range (if it occurred during a time when communication with conspecifics was occurring). As discussed earlier, it would only be expected to be of a short duration and relatively small degree. Many of the other critical sounds that serve as cues for navigation and prey (
Neither of these species are ESA-listed and the SAR indicates that the status of the Eastern Pacific stock of Northern fur seal is stable, the California stock of Northern fur seal is increasing, and the California stock of Northern elephant seal is increasing. BIAs have not been identified for pinnipeds.
Regarding the magnitude of takes by Level B harassment (TTS and behavioral disturbance) for the Eastern Pacific and California stocks of Northern fur seals, the estimated instances of takes as compared to the stock abundance is <1 percent for each stock. For the California stock of Northern elephant seal, the number of estimated total instances of take compared to the abundance is 1 percent. This information indicates that only a very small portion of individuals in these stocks are likely impacted, particularly given the large ranges of the stocks. Impacted individuals would be disturbed on likely one, but not more than a few non-sequential days within a year.
Regarding the severity of those individual takes by Level B harassment by behavioral disturbance for all pinniped stocks, we have explained that the duration of any exposure is expected to be between minutes and hours (
Regarding the severity of TTS takes, they are expected to be low-level, of short duration, and mostly not in a frequency band that would be expected to interfere with pinniped communication or other important low-frequency cues. Therefore, the associated lost opportunities and capabilities are not at a level that will impact reproduction or survival. For these same reasons (low level and frequency band), while a small permanent loss of hearing sensitivity may include some degree of energetic costs for compensating or may mean some small loss of opportunities or detection capabilities, the 8 estimated Level A harassment takes by PTS for the California stock of Northern elephant seal would be unlikely to impact behaviors, opportunities, or detection capabilities to a degree that will
Altogether, none of these species are listed under the ESA, and the SARs indicate that the status of the Eastern Pacific stock of Northern fur seal is stable, the California stock of Northern fur seal is increasing, and the California stock of Northern elephant seal is increasing. No mortality or serious injury and no Level A harassment from non-auditory tissue damage for pinnipeds is anticipated or authorized. Level A harassment by PTS is only anticipated for the California stock of Northern elephant seal (8 takes by Level A harassment). For all three pinniped stocks, only a small portion of the stocks are anticipated to be impacted and any individual is likely to be disturbed at a low-moderate level. This low magnitude and severity of harassment effects is not expected to result in impacts on individual reproduction or survival, let alone have impacts on annual rates of recruitment or survival of these stocks. For these reasons, in consideration of all of the effects of the Navy's activities combined, we have determined that the authorized take would have a negligible impact on all three stocks of pinnipeds.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total marine mammal take from the specified activities will have a negligible impact on all affected marine mammal species or stocks.
In order to issue an incidental take authorization, NMFS must find that the specified activity will not have an “unmitigable adverse impact” on the subsistence uses by Alaska Natives. NMFS has defined “unmitigable adverse impact” in 50 CFR 216.103 as an impact resulting from the specified activity: (1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (i) Causing the marine mammals to abandon or avoid hunting areas; (ii) Directly displacing subsistence users; or (iii) Placing physical barriers between the marine mammals and the subsistence hunters; and (2) That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.
When applicable, NMFS must prescribe means of effecting the least practicable adverse impact on the availability of the species or stocks for subsistence uses. As discussed in the Mitigation Measures section, evaluation of potential mitigation measures includes consideration of two primary factors: (1) The manner in which, and the degree to which, implementation of the potential measure(s) is expected to reduce adverse impacts on the availability of species or stocks for subsistence uses, and (2) the practicability of the measure(s) for applicant implementation.
The Navy has met with and will continue to engage in meaningful consultation and communication with several federally recognized Alaska Native tribes that have traditional marine mammal harvest areas in the GOA (though, as noted below, these areas do not overlap directly with the GOA Study Area). Further, the Navy will continue to keep the Tribes informed of the timeframes of future joint training exercises.
To our knowledge, subsistence hunting of marine mammals does not occur in the GOA Study Area where training activities would occur. To date, neither the Navy nor NMFS have received correspondence from Alaska Native groups regarding subsistence use, or any other concern with the MMPA rulemaking and authorizations. As described below in the Tribal Engagement section, NMFS requested input from Tribes on its proposed regulations to govern the take of marine mammals incidental to the U.S. Navy Training Activities in the Gulf of Alaska Study Area (87 FR 49656; August 11, 2022), and as part of that request, NMFS specifically requested feedback on whether the proposed rule raised any concerns regarding effects on the Tribe or potential impacts to the Tribe's subsistence uses of marine mammals.
The TMAA portion of the GOA Study Area is located over 12 nmi from shore with the nearest inhabited land being the Kenai Peninsula (24 nmi from the TMAA portion of the GOA Study Area). The landward border of the WMA portion of the GOA Study Area is generally farther offshore than the TMAA. The WMA is approximately 45 nmi (84 km) from Kodiak (the border's closest point to land), and approximately 117 nmi (216 km) from Chignik on the Alaska Peninsula (the border's farthest point from land). Information provided by Tribes in previous conversations with the Navy, and according to Alaska Department of Fish and Game (1995), indicates that harvest of pinnipeds occurs nearshore, and the Tribes do not use the GOA Study Area for subsistence hunting of marine mammals. The TMAA portion of the GOA Study Area is the closest to the area of nearshore subsistence harvest conducted by the Sun'aq Tribe of Kodiak, the Native Village of Eyak, and the Yakutat Tlingit Tribe (Alaska Department of Fish and Game, 1995). The WMA is offshore of subsistence harvest areas that occur in Unalaska, Akutan, False Pass, Sand Point, and King Cove (Alaska Department of Fish and Game, 1997). The Tribes listed above harvest harbor seals and sea lions (Alaska Department of Fish and Game, 1995, 1997).
In addition to the distance between subsistence hunting areas and the GOA Study Area, which will ensure that the Navy's activities do not displace subsistence users or place physical barriers between the marine mammals and the subsistence hunters, there is no reason to believe that any behavioral disturbance or limited TTS or PTS of pinnipeds that occurs offshore in the GOA Study Area would affect their subsequent behavior in a manner that would interfere with subsistence uses should those pinnipeds later interact with hunters, particularly given that neither harbor seals, Steller sea lions, or California sea lions are expected to be taken by the Navy's training activities. The specified activity will be a continuation of the types of training activities that have been ongoing for more than a decade, and as discussed in the 2011 GOA FEIS/OEIS and 2016 GOA FSEIS/OEIS, no impacts on traditional subsistence practices or resources are predicted to result from the specified activity.
Based on the information above, NMFS has determined that the total taking of affected species or stocks will not have an unmitigable adverse impact on the availability of the species or stocks for taking for subsistence purposes.
NMFS invited Tribes in the Gulf of Alaska region to a virtual Tribal engagement meeting on September 20, 2022 to seek Tribal input on the proposed regulations to govern the take of marine mammals incidental to the U.S. Navy Training Activities in the Gulf of Alaska Study Area (87 FR 49656; August 11, 2022). One Tribe attended the meeting. NMFS gave a presentation on the proposed regulations and invited the Tribe to ask questions and provide recommendations. NMFS specifically requested feedback on whether the proposed rule raised any concerns regarding effects on the Tribe or
There are eight marine mammal species under NMFS jurisdiction that are listed as endangered or threatened under the ESA (16 U.S.C. 1531
The Navy consulted with NMFS pursuant to section 7 of the ESA for GOA Study Area activities, and NMFS also consulted internally on the promulgation of this rule and the issuance of an LOA under section 101(a)(5)(A) of the MMPA. NMFS issued a biological opinion concluding that the promulgation of the rule and issuance of a subsequent LOA are not likely to jeopardize the continued existence of threatened and endangered species under NMFS' jurisdiction and are not likely to result in the destruction or adverse modification of designated or proposed critical habitat in the GOA Study Area. The biological opinion is available at
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
The Office of Management and Budget has determined that this rule is not significant for purposes of Executive Order 12866.
Pursuant to the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
Exports, Fish, Imports, Incidental take, Indians, Labeling, Marine mammals, Navy, Penalties, Reporting and recordkeeping requirements, Seafood, Sonar, Transportation.
For reasons set forth in the preamble, 50 CFR part 218 is amended as follows:
16 U.S.C. 1361
(a) Regulations in this subpart apply only to the U.S. Navy (Navy) for the taking of marine mammals that occurs in the area described in paragraph (b) of this section and that occurs incidental to the activities listed in paragraph (c) of this section.
(b) The Gulf of Alaska (GOA) Study Area is entirely at sea and is comprised of three areas: a TMAA, a warning area, and the WMA located south and west of the TMAA. The TMAA and WMA are temporary areas established within the GOA for ships, submarines, and aircraft to conduct training activities. The TMAA is a polygon roughly resembling a rectangle oriented from northwest to southeast, approximately 300 nautical miles (nmi; 556 km) in length by 150 nmi (278 km) in width, located south of Montague Island and east of Kodiak Island. The warning area overlaps and extends slightly beyond the northern corner of the TMAA. The WMA provides an additional 185,806 nmi
(c) The taking of marine mammals by the Navy is only authorized if it occurs incidental to the Navy conducting training activities, including:
(1) Anti-Submarine Warfare; and
(2) Surface Warfare.
(a) Regulations in this subpart are effective February 3, 2023 through February 2, 2030.
(b) In additions to the definitions contained in section 2 of the Marine Mammal Protection Act (MMPA), 16 U.S.C. 1362, and § 218.103, the following definitions apply to this subpart:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(a) Under an LOA issued pursuant to §§ 216.106 of this chapter and 218.156, the Navy may incidentally, but not intentionally, take marine mammals within the TMAA only, by Level A harassment and Level B harassment associated with the use of active sonar and other acoustic sources and explosives, provided the activity is in compliance with all terms, conditions, and requirements of this subpart and the applicable LOA.
(b) The incidental take of marine mammals by the activities listed in § 218.150(c) is limited to the following species:
(a) Except for incidental takings contemplated in § 218.152(a) and authorized by an LOA issued under §§ 216.106 of this chapter and 218.156, it shall be unlawful for any person to do any of the following in connection with the activities listed in § 218.150(c):
(1) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or an LOA issued under §§ 216.106 of this chapter and 218.156;
(2) Take any marine mammal not specified in § 218.152(b);
(3) Take any marine mammal specified in § 218.152(b) in any manner other than as specified in the LOA; or
(4) Take a marine mammal specified in § 218.152(b) if the National Marine Fisheries Service (NMFS) determines such taking results in more than a negligible impact on the species or stocks of such marine mammal.
(b) [Reserved]
(a) When conducting the activities identified in § 218.150(c), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 218.156 must be implemented. If Navy contractors are serving in a role similar to Navy personnel, Navy contractors will follow the mitigation applicable to Navy personnel. These mitigation measures include, but are not limited to:
(1)
(i)
(ii)
(A)
(B)
(C)
(D)
(
(
(E)
(F)
(
(
(
(
(
(iii)
(A)
(B)
(C)
(D)
(E)
(
(
(
(
(iv)
(A)
(B)
(C)
(D)
(E)
(
(
(
(
(F)
(v)
(B)
(C)
(D)
(E)
(
(
(
(
(F)
(vi)
(A)
(B)
(
(C)
(D)
(vii)
(A)
(B)
(C)
(viii)
(A)
(B)
(C)
(D)
(E)
(
(
(
(
(ix)
(B)
(C)
(D)
(E)
(
(
(
(
(2)
(i)
(A)
(B)
(ii)
(A)
(B)
(iii)
(b) [Reserved]
(a)
(b)
(c)
(d)
(e)
(1)
(i)
(B) Date that exercise began and ended.
(C) Location.
(D) Number and types of active sources used in the exercise.
(E) Number and types of passive acoustic sources used in exercise.
(F) Number and types of vessels, aircraft, etc., participating in exercise.
(G) Total hours of observation by Lookouts.
(H) Total hours of all active sonar source operation.
(I) Total hours of each active sonar source bin.
(J) Wave height (high, low, and average during exercise).
(ii)
(B) Species (if not possible, indication of whale/dolphin/pinniped).
(C) Number of individuals.
(D) Initial detection sensor (
(E) Indication of specific type of platform observation made from (including, for example, what type of surface vessel or testing platform).
(F) Length of time observers maintained visual contact with marine mammal.
(G) Sea state.
(H) Visibility.
(I) Sound source in use at the time of sighting.
(J) Indication of whether animal was less than 200 yd (182.9 m), 200 to 500 yd (182.9 to 457.2 m), 500 to 1,000 yd (457.2 to 914.4 m), 1,000 to 2,000 yd (914.4 to 1,828.8 m), or greater than 2,000 yd (1,828.8 m) from sonar source.
(K) Whether operation of sonar sensor was delayed, or sonar was powered or shut down, and how long the delay was.
(L) If source in use is hull-mounted, true bearing of animal from ship, true direction of ship's travel, and estimation of animal's motion relative to ship (opening, closing, parallel).
(M) Lookouts shall report, in plain language and without trying to categorize in any way, the observed behavior of the animals (such as animal closing to bow ride, paralleling course/speed, floating on surface and not swimming,
(iii) An evaluation (based on data gathered during all of the MTEs) of the effectiveness of mitigation measures designed to minimize the received level to which marine mammals may be exposed. This evaluation shall identify the specific observations that support any conclusions the Navy reaches about the effectiveness of the mitigation.
(2)
(A)
(B)
(f)
(a) To incidentally take marine mammals pursuant to this subpart, the Navy must apply for and obtain an LOA in accordance with § 216.106 of this chapter.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of this subpart.
(c) If an LOA expires prior to the expiration date of this subpart, the Navy may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision of § 218.157(c)(1)) required by an LOA issued under this subpart, the Navy must apply for and obtain a modification of the LOA as described in § 218.157.
(e) Each LOA will set forth:
(1) Permissible methods of incidental taking;
(2) Geographic areas for incidental taking;
(3) Means of effecting the least practicable adverse impact (
(4) Requirements for monitoring and reporting.
(f) Issuance of the LOA will be based on a determination that the level of taking is consistent with the findings made for the total taking allowable under this subpart.
(g) Notice of issuance or denial of the LOA will be published in the
(a) An LOA issued under §§ 216.106 of this chapter and 218.156 for the activity identified in § 218.150(c) may be renewed or modified upon request by the applicant, provided that:
(1) The planned specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA were implemented.
(b) For LOA modification or renewal requests by the applicant that include changes to the activity or to the mitigation, monitoring, or reporting measures (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for this subpart or result in no more than a minor change in the total estimated number of takes (or distribution by species or stock or years), NMFS may publish a notice of the proposed changes to the LOA in the
(c) An LOA issued under §§ 216.106 of this chapter and 218.156 may be modified by NMFS under the following circumstances:
(1) After consulting with the Navy regarding the practicability of the modifications, NMFS may modify (including adding or removing measures) the existing mitigation, monitoring, or reporting measures if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring.
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA include:
(A) Results from the Navy's monitoring from the previous year(s);
(B) Results from other marine mammal and/or sound research or studies; or
(C) Any information that reveals marine mammals may have been taken in a manner, extent, or number not authorized by this subpart or a subsequent LOA.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are more than minor, NMFS will publish a notice of the proposed changes to the LOA in the
(2) If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 218.156, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the
Surface Transportation Board.
Final rule.
The Surface Transportation Board (STB or Board) adopts a final rule modifying its regulations to establish a voluntary arbitration program for small rate disputes.
This rule is effective February 3, 2023.
Amy Ziehm at (202) 245-0391. Assistance for the hearing impaired is available through the Federal Relay Service at (800) 877-8339.
The Board issued a notice of proposed rulemaking on November 15, 2021, published in the
In a related proceeding, the Board issued a supplemental notice of proposed rulemaking proposing a new rate case procedure for smaller cases called Final Offer Rate Review (FORR),
For the reasons discussed below, the Board adopts a final rule establishing a new arbitration program for resolution of small rate disputes. Under certain circumstances, participating carriers will be exempted from challenges under the FORR process, which are also being adopted today in a separate decision.
The Board has had a voluntary arbitration process available to parties to resolve disputes since 1997.
In section 13 of the Surface Transportation Board Reauthorization Act of 2015 (STB Reauthorization Act), Public Law 114-110 § 13, 129 Stat. 2228, 2235-38, codified at 49 U.S.C. 11708, Congress required the Board to promulgate new regulations establishing a voluntary and binding arbitration process, including adding disputes involving rates to the list of arbitration-eligible matters. To fulfill the requirements of section 13, the Board adopted changes to its arbitration process in
In January 2018, the Board established the Rate Reform Task Force (RRTF), with the objective of, among other things, determining how best to provide a rate review process for small cases. After holding informal meetings throughout 2018, the RRTF issued a report on April 25, 2019 (RRTF Report). With respect to small rate disputes, the RRTF recommended, among other things: (1) legislation by Congress to permit mandatory arbitration of small rate disputes and (2) establishment by the Board of a new rate reasonableness decision-making process under which a shipper and railroad would each submit a “final offer” of what it believes a reasonable rate to be, subject to short, non-flexible deadlines, with the Board selecting one party's offer without revision. RRTF Report 14-20.
In September 2019, the Board proposed FORR as a new procedure for challenging the reasonableness of railroad rates in smaller cases.
The Board subsequently issued a decision in that proceeding to permit post-comment-period ex parte discussions with stakeholders regarding FORR.
On July 31, 2020, five of the Class I carriers—CN,
Several parties representing shipper interests opposed Petitioners' request for the Board to adopt a new arbitration program; instead, they urged the Board to adopt FORR.
As an initial matter, in
The Board stated that it decided to pursue a new arbitration program focused exclusively on small rate disputes for the following reasons. First, the Board noted that Congress required rate disputes to be included as an arbitration-eligible matter and that the agency's own long-stated policy had been to favor the resolution of disputes through the use of mediation and arbitration procedures rather than formal Board proceedings whenever possible.
The Board's proposal in
• First, the Board decided to defer final action in the FORR docket so that it could jointly consider adoption of a small rate case arbitration program and the FORR process as avenues of regulatory relief.
• Second, the ultimate decision on whether to adopt a new arbitration program would be influenced by whether all Class I carriers agreed to participate for a term of five years.
• Third, if the carriers chose to participate in the arbitration program, they would be exempt from having their rates challenged under the FORR process.
• Fourth, under the carriers' agreement to participate for a five-year term, carriers would be permitted to withdraw from the program only if there is a material change in the law.
Comments in response to
For the reasons set forth below, the Board will adopt regulations implementing a new arbitration program devoted exclusively to resolving small rate disputes. In Part I, the Board explains the fundamental aspects of the new arbitration program. In Part II, the Board explains the limits on the number of arbitrations that may be brought under the new program. In Part III, the Board discusses the procedural aspects of the arbitration process. The text of the final rule is set forth below.
In this final rule, the Board will make certain modifications to its proposal in
As noted, in a decision being issued concurrently in
For the reasons discussed below, the Board will adopt a final rule implementing a new small rate case arbitration program. However, to incentivize railroad participation in the arbitration program, the Board will allow carriers to be exempt from rate challenges under the FORR process during their participation in the arbitration program.
In addition, the Board finds that it is important that shippers across the rail network have access to the same means of rate relief. Accordingly, for the arbitration program to become operable, the Board will require that all Class I carriers agree to participate in the program. If all Class I carriers agree, the Board will issue a notice that commences the new arbitration program, allowing it to be used and initiating the FORR exemption.
Class I carriers will have a limited window—20 days from the effective date of these regulations—to decide whether to participate in the new arbitration program. If not all Class I carriers participate, the Board will not issue the notice commencing the new arbitration program, resulting in the program being inoperable, and all Class I carriers will be subject to rate challenges under the FORR process. By agreeing to participate, carriers would commit to participate in any arbitrations brought against them under this program for a five-year term.
Lastly, if the arbitration program becomes operable, the Board will allow carriers to withdraw on an individual basis during the five-year term if there is a material change in the law affecting regulation of railroad rates. The withdrawal of one or more carriers on the basis of a material change in law will not terminate the arbitration program once it has become effective but will subject the withdrawing carrier to challenges under the FORR process.
Several parties representing shipper interests argue that the Board should not adopt an arbitration program in place of adopting FORR because the new arbitration process does not accomplish the goal of making rate relief more accessible to shippers than it is under the Board's existing rate case methodologies. Similarly, several of the shipper interests claim that FORR is the superior process in terms of providing more accessibility to rate relief. As such, they argue that if the Board does adopt the arbitration program, it should eliminate the FORR exemption so that shippers have the choice of whether to bring challenges under arbitration or FORR.
In their reply, Coalition Associations argue that the Board should adopt FORR, but if it also chooses to adopt the arbitration program, it should eliminate the FORR exemption. (Coalition Ass'ns Reply 5.) They maintain that if the new arbitration program was the best path forward for stakeholders, there would be no need to exempt participating railroads from rate challenges under FORR. (
Coalition Associations argue that carriers will still have a strong incentive to participate in the arbitration program even if the Board eliminates these features. In particular, they argue that the non-precedential nature of arbitration decisions would be attractive to carriers. (
NGFA states that its members generally do not support an arbitration program that would eliminate the ability of a rail shipper to file a formal complaint to test the reasonableness of rail rates using any of the Board's legally available rate-reasonableness methodologies. However, NGFA states that it also favors arbitration to resolve disputes. (
USDA argues that, between the proposals for a new arbitration program and FORR, FORR is the better and more necessary of the two. However, it states that the “differences [between the two proposals] are small relative to the benefits that would be provided by either FORR alone or” jointly adopting both proposals. (USDA Comment 2.) USDA emphasizes the need for at least finalizing FORR because participation in a new arbitration program will not be compelling without an effective litigatory backstop. (
USDA's key concern with the
The railroad interests support adoption of the arbitration program over FORR, as well as the adoption of an exemption from the FORR process for carriers that choose to participate in the arbitration program.
Joint Carriers also oppose the idea of eliminating the FORR exemption. They also oppose NGFA's suggestion that the FORR exemption last three years. Instead, they argue that the FORR exemption should last for as long as carriers participate in the arbitration program. (Joint Carriers Reply 15.)
AAR also disputes Olin's assertion that arbitration is not necessarily more
AAR states that if the Board does move ahead with FORR, it should adhere to its proposed approach of allowing participating carriers to be exempt from FORR. (
The Board has explained the need for a new process that makes rate relief more accessible to shippers, particularly those with small disputes.
Accordingly, both the arbitration program and the FORR process are appropriate means for improving access to rate relief for shippers with small disputes. Nonetheless, the Board has decided to pursue the implementation of the arbitration program as its first step. As the Board has said in this proceeding and others, it favors the resolution of disputes through the use of mediation and arbitration procedures, in lieu of formal Board proceedings, “whenever possible.”
The Board has considered giving complainants the ability to choose whether to challenge a rate using either arbitration or FORR, as most of the shipper interests urge. However, the Board concludes that such a structure is unlikely to lead to a successful launch of the arbitration program. Participation in arbitration must be voluntary,
However, as explained in
The Board recognizes that it is possible that not all Class I carriers will agree to voluntarily participate in the new arbitration program, even with the incentive of an exemption from FORR. FORR will therefore serve as an available avenue of rate relief in the event that one or more of the carriers chooses not to participate in the arbitration program at the initial phase or withdraws from the program after it becomes operable. Regardless of which option the Class I carriers choose—opting into arbitration or being immediately subject to FORR—either process will provide shippers with smaller disputes a new avenue of rate relief that is more accessible than the Board's existing rate case processes.
One theme in the shipper interests' comments is that the arbitration process is not more accessible than the existing rate case processes and therefore should either not be adopted or be significantly modified. (
The procedural schedule for a Three-Benchmark case is 240 days (or eight months).
The arbitration process should also create opportunities for litigants to reduce litigation costs. First, there will be limits on the amount of discovery permitted in arbitration, which will force parties to use discovery requests only to obtain essential evidence, which in turn should limit the number of discovery disputes and save parties litigation costs.
A key example of how the arbitration process could be less costly than the existing rate review methodologies involves the “other relevant factors” component of the Three-Benchmark methodology, in which defendant carriers can argue that the maximum reasonable rate should be higher or lower than the level derived using the Three-Benchmark approach. The RRTF Report noted that shippers had indicated that a concern with the Three-Benchmark methodology was the other relevant factors part of the analysis. RRTF Report 49-51. Specifically, the report stated that shippers “confirmed that a potential complainant, faced with the prospect of having to respond to an open-ended, voluminous collection of arguments and evidence proposing `other relevant factors'—including attorneys' and consultants' fees for reviewing and responding to these arguments and evidence—would not find the Three-Benchmark test to be `relatively simple and inexpensive.' ”
Some of the shipper interests point out that parties will have to pay for the cost of the arbitrators, (IMA-NA Comment 18; Indorama Comment 18; AFPM Comment 12), which is an expense that does not exist in formal cases. Nevertheless, the other cost savings that arbitration will produce are intended to more than offset this added expense. Unfortunately, it is not possible to make an actual comparison of costs because there is no evidence in the record here, or any recent Board proceedings, on the cost to litigate a Three-Benchmark case, and the Board will not know the cost to arbitrate until cases are actually arbitrated.
Another theme in the shipper interests' comments is that arbitration will not be as effective as FORR and, as a result, the Board either should not adopt the arbitration program or, alternatively, should eliminate the FORR exemption. (Olin Comment 2; Coalition Ass'ns Comment 5.) The Board also finds these arguments unpersuasive.
Despite the fact that FORR is a rate reasonableness adjudicatory process and arbitration is an alternative dispute resolution process, they share a number of key features. (
The arbitration process will also have a timeline for resolution similar to FORR. The FORR process adopted today will take 149 day or 169 days (depending on whether the streamlined market dominance approach is used), while the arbitration process will take approximately 180 days (though often less) from initiation of the process until the arbitration panel issues its decision. IMA-NA, Indorama, and AFPM argue that the arbitration process will take longer than FORR because arbitration decisions will almost always be appealed to the Board, whereas FORR decisions would be appealed directly to a court. (IMA-NA Comment 18; Indorama Comment 18; AFPM Comment 12.) However, it is not at all certain that every arbitration will be appealed to the Board, given the relatively small awards available (compared to other rate reasonableness adjudicatory procedures), the fact that appeals would not be confidential, and that there are limited grounds on which parties can appeal.
IMA-NA, Indorama, and AFPM argue that the arbitration process could be
In Part III, the Board explains why it is adopting each of the arbitration procedures, including those that differ from FORR. In doing so, the Board has taken the comments of the parties into account and modified the regulatory text to develop an arbitration process that aims to be fair and equitable to both complainants and carriers. For example, as discussed below,
Some of the shipper interests and USDA oppose the FORR exemption because they argue that complainants should have the ability to decide whether to challenge rates using arbitration or FORR. (Olin Comment 13; AFPM Comment 1-2; USDA Comment 3.) However, the Board addressed this concern in
Coalition Associations assert that carriers will have an incentive to participate in the arbitration program even without the FORR exemption citing, in particular, the fact that arbitration decisions would be non-precedential. (Coalition Ass'ns Reply 10-11.) But parties have not used the Board's existing voluntary arbitration program, notwithstanding the fact that decisions under that program would also be non-precedential.
The railroads discussed the reasons why they believed that voluntary arbitration would be attractive for both railroads and customers and a better alternative than other proposals that have been suggested for determining the maximum lawful rate in small rate cases. The railroads suggested that as an incentive to encourage a Class I railroad to opt into such a voluntary arbitration program, the Board could consider a waiver from other rail rate review methodologies, such as FORR or the revenue adequacy constraint.
In any event, the fact that arbitration decisions would be non-precedential would not by itself address Joint Carriers' concern that such decisions could be used in future rate negotiations, as complainants could still use these decisions in future rate negotiations. (
The Board finds that implementation of NGFA's suggestion that the FORR exemption last only until the agency conducts the programmatic review is unnecessary. As noted, the Board will conduct a programmatic review no later than three years after the program becomes effective, at which point the Board will consider whether the program should continue and, if so, whether any modifications should be made, including whether the FORR exemption should remain intact. Barring unforeseen difficulties, that would be the appropriate time for the Board to consider the effectiveness of the FORR exemption and other program features.
The shipper interests raise arguments disputing the Board's authority to establish this arbitration program and the propriety of such a program. The Board addresses these arguments below.
Olin argues the proposal in
Joint Carriers dispute assertions that the FORR exemption is tantamount to a de facto arbitration mandate. They argue that the Board specifically rejected this argument in
The Board disagrees with assertions that the arbitration process (including an exemption from FORR for participating carriers) would not be voluntary or that it creates a mandate to arbitrate. Although the Board has raised concerns about the efficiency and practical accessibility of its existing rate case processes for instances when the amount in dispute is small relative to the cost of bringing a case,
Accordingly, a shipper's options would not be limited to bringing an arbitration or doing nothing.
Olin regards the Board's statement that a FORR exemption would incentivize railroads to participate in the arbitration program as “inconsistent with the interests of small shippers, and contrary to the STB's statutory duties.” (Olin Comment 13.) It further states that “[t]he Board should not evaluate potential regulations as though it were engaged in deal-making” and that “[r]ailroads should not be permitted to excuse themselves from Board regulation because a select group of railroads would prefer to be `regulated' in a preferred manner of their own choosing.” (
AAR disputes Olin's contention that it is improper for the Board to try to incentivize parties to resolve their disputes through arbitration. Because the Board cannot require parties to arbitrate, AAR argues that it is entirely proper for the Board to identify ways of encouraging parties to volunteer for arbitration. AAR argues that this is not “deal-making” or “trading away the FORR process,” as Olin describes it. (AAR Reply 11.)
Olin's characterization of the agency's approach is off the mark. Because 49 U.S.C. 11708(a) requires that any arbitration process offered by the Board be voluntary, any such process by its nature will always involve creating incentives for stakeholders to participate. The Board modified the arbitration program in 2013 to try to encourage greater use of the program.
Olin further states that even though it does not oppose arbitration per se, the Board “exists as an expert governmental agency chiefly in order to resolve disputes between railroads and shippers in a public, on-the-record manner.” (Olin Comment 10.) But the establishment of this arbitration procedure is not inconsistent with the Board's role in resolving rate disputes through the adjudicatory process. Congress has given the Board statutory authority to resolve disputes using both adjudication and arbitration. As noted above, the Board favors use of alternative dispute resolution processes wherever possible and has had an arbitration process available to stakeholders since 1997. Additionally, as the Board stated in
Olin argues that the language of the Board's proposed FORR exemption is unnecessarily broad. (Olin Comment 15-16.) Olin states that the carriers want a FORR exemption because they are concerned that the standard for appellate review of arbitration decisions by the Board would be limited, even in cases where the arbitration decision is based on a new methodology such as FORR. Olin argues that the more appropriate remedy would be to restrict the use of FORR solely in the context of an arbitration. (
Olin's argument (and its proposal to prohibit arbitrators from using final-offer style procedures) is based on a misunderstanding of the purpose of the FORR exemption. In
NGFA notes the railroads have not pledged to forgo an appeal of the decision adopting FORR if they are exempt from FORR rules. (NGFA Comment 3 n.3.) However, the purpose of the FORR exemption was not to foreclose an appeal of the FORR decision. In fact, as noted in
AFPM also argues that the RRTF advocated for mandatory arbitration, which this rule is not proposing, and that the Board should therefore adopt FORR instead of the arbitration program. (AFPM Comment 7.) However, as explained in this decision, if Class I carriers agree to participate in the new arbitration program, they are committing to do so for a five-year term with the right to withdraw only if there is a material change in law. As such, a Class I carrier that has opted into the new program could not refuse to participate in an arbitration if one is initiated against it.
In
Providing shippers with access to the same avenues of rate relief against Class I carriers is important, particularly at the start of the arbitration program. If the Board were to adopt both processes but one turned out not to function as efficiently as the Board anticipates, shippers that are required to challenge rates under that process could perceive that they will be placed at a market disadvantage. The Board has concluded that fairness is best achieved by ensuring that shippers served by Class I carriers have access to the same avenues of rate relief as the new arbitration program begins. Although narrow circumstances may result in individual carriers withdrawing from the program after its start, requiring uniformity—at least at the beginning—provides the best chance of achieving this fairness. The final rule will therefore include the requirement that all Class I carriers agree to participate for the arbitration program to become operable.
As for Class II and III carriers, in
The Board proposed in
Joint Carriers state they are concerned that the Board suggested in
The Board reiterates that it will not require carriers to commit to participate in the arbitration program before knowing the content of the final rule being adopted.
The Board notes that, as a result of this change, Class I carriers will have only a limited opportunity—beginning immediately after this decision is issued—to decide whether to participate in the new arbitration program. In the original petition for rulemaking, most of the Class I carriers stated that an arbitration process would provide a better means of addressing concerns about the availability of rate reasonableness review for smaller rate cases than would FORR. (Pet. 1-2; CP Letter 1.) As noted above, the Board agrees that alternative dispute resolution is generally preferrable to formal adjudication. Accordingly, the purpose of the 50-day window is to give Class I carriers the option to decide if they will voluntarily participate in the adopted arbitration program as an alternative to FORR. The duration of this window gives the carriers sufficient time to decide but also ensures that there is certainty for all stakeholders within a reasonable amount of time as to whether and when the new arbitration program will commence.
Lastly, the Board notes that it will also adopt, without modification, the procedures for Class II and III carriers to participate on case-by-case basis as proposed in
As proposed in
In
Joint Carriers claim that there is an inconsistency in
NGFA notes that it appears that the FORR exemption would last beyond the initial five-year participation period (unless terminated by the Board). They argue that this could unfairly result in a scenario where the Board terminates the arbitration program after a period of years but allows carriers to continue being exempt from FORR challenges. (NGFA Comment 5.)
AFPM supports the five-year term, provided it is paired with shippers having the option to challenge a rate using FORR. It states that the voluntary nature of the arbitration program and the lack of certainty beyond the initial five-year term reinforces the need for FORR. (AFPM Comment 5.)
The Board will keep the initial participation period for the arbitration program at five years. However, given the confusion about when the five-year period begins and what happens at the end of this period, the Board will provide more specificity in the regulatory text.
In
The Board indicated that the carriers' ability to withdraw from the program should be narrow, as participation from all of the Class I carriers would be important to the success of the arbitration program.
No commenter specifically addressed whether carriers' right to withdraw should be contingent on the existence of another readily accessible rate review process to serve as a backstop. In any event, the issue is now moot because the Board is adopting FORR, which would serve as an additional regulatory backstop for similar types of small rate disputes. Accordingly, the Board will allow participating carriers to withdraw from the program if there is a material change in the law.
However, the final rule will also specify that the termination or modification of any part of the FORR process, should it occur, will not be considered a change in law for which carriers can opt out. In
Joint Carriers argue in their comment that the time proposed by the Board for carriers to indicate whether they intend to withdraw—10 days after an event that qualifies as a basis for withdrawal—is too short. They argue that, contrary to the Board's assertion in
The Board understands Joint Carriers' concern that 10 days may be too short a time-period to properly assess the impact of a material change in law. However, carriers should generally be aware of the potential for a change in law before such changes ultimately occur. Changes would either be through a Board decision, a court decision, or passage of a new law by Congress. These are actions that stakeholders as sophisticated and well-resourced as Class I carriers would have knowledge of in a timely manner. Additionally, the status of pending arbitrations will depend on whether carriers agree to remain in the program, so it is also important that this period of uncertainty not last longer than necessary. Accordingly, the Board will extend the period for carriers to decide whether to withdraw to 20 days.
AFPM supports allowing railroads to withdraw due to a material change in the law, but it urges the Board to clarify what would constitute a material change. Specifically, it argues that the Board should identify which open rulemakings may be considered a material change. (AFPM Comment 6.) Under the language of the final rule, the right to withdraw would be triggered if there is a material change to the arbitration program itself, if there is a material change to the Board's existing rate reasonableness methodologies, or if a new rate reasonableness methodology is created.
As noted, the final rule being adopted here will require that all Class I carriers participate in the arbitration program as a prerequisite to the program becoming effective. However, the Board has decided that it will allow the arbitration program to continue if one or more carriers choose to withdraw from the program due to a material change in the law—though carriers that withdraw will lose their exemption from FORR. The Board has stated that ensuring shippers have similar access to rate review procedures is important, particularly at the outset of the program.
In
Coalition Associations argue this limit should be removed because it will foreclose shippers with multiple unreasonable rates from timely access to rate review. They note that shippers negotiate rates for multiple lanes simultaneously and that a one-case limit will force complainants to either aggregate claims (thus obtaining less relief on a per-lane basis) or pay higher rates that cannot be challenged. (Coalition Ass'ns Comments 11-12.) Coalition Associations also note that shippers that delay bringing additional rate challenges under the arbitration process will have to continue paying the higher rate during the delay. (
They contend that the one-case limit also creates an incentive for carriers to seek higher rate increases in negotiations when they know the complainant is engaged in a pending arbitration. (
IMA-NA and Indorama state that they also do not support the one-case-per-complainant limit. They state that this limit would constrain shippers' ability to challenge rates, given their view that the Board's other existing rate case procedures are ineffective. (IMA-NA Comment 17-18; Indorama Comment 17-18;
Joint Carriers and AAR argue that the one-case-per-complainant limit is needed to prevent improper disaggregation of cases and, as the Board recognized, preventing a single shipper from using all the capacity under the 25-case/12-month limit. (Joint Carriers Reply 16-17; AAR Reply 13-14.) AAR states that several of the shipper interests admit in their comments that they want to bring multiple arbitrations concurrently against the same carrier, which could lead to improper disaggregation of cases, and so the one-case limit is necessary. (AAR Reply 13-14.)
While the one-case-per-shipper limit would prevent improper disaggregation of cases that should be brought as a single case into a number of smaller arbitrations, the Board agrees with the shipper interests that the delays it could create are equally, if not more, problematic. As Coalition Associations note, if a shipper challenging a rate through arbitration is charged additional rates that it believes are unreasonable, the shipper could not use arbitration until the initial arbitration is resolved. Once a carrier is aware of that situation, the carrier could be more aggressive in rate negotiations or even consider imposing a short-term rate increase while the arbitration is pending, especially if the carrier believes that the shipper is unlikely to use one of the available rate methodologies. Accordingly, the Board will remove the one-case per shipper limit from the final rule.
In
In addition, the purpose of this rulemaking is to make rate relief more accessible to shippers with small disputes. As explained above, carriers that participate in the arbitration program will be exempt from FORR challenges during the period of
However, the Board agrees that, without the one-case limit, there needs to be some safeguard against the possibility of complainants improperly disaggregating claims. Accordingly, as part of the final rule, the Board will mandate that a complainant may not bring separate arbitrations for traffic with the same origin-destination or shipments where facilities are shared. The Board proposed this alternative in
At the urging of Petitioners, the Board limited the number of arbitrations that could be brought against an individual rail carrier to 25 cases within a 12-month time period.
Coalition Associations oppose the 25-case/12-month limit. They argue that, by requiring shippers to queue up to arbitrate against the carrier on a first-come/first-serve basis, shippers would incur unpredictable and costly delays. (Coalition Ass'ns Comment 15.) Coalition Associations also argue that if the arbitration process is confidential, shippers would not know if an arbitration would be postponed when they initiate the process, nor would they know how long they would have to wait until the arbitration can begin. Moreover, they argue that the shipper will have to continue paying the unreasonable rate during the delay. (
AFPM states that it supports the 25-case/12-month limit, but it suggests the Board closely monitor this cap to see if it needs to be adjusted in the future. (AFPM Comment 6.)
Joint Carriers oppose removing the 25-case/12-month limit. They argue that they do not have unlimited resources and so they will not voluntarily put themselves in a position where they could potentially be overwhelmed by too many arbitrations at one time. (Joint Carriers Reply 16.) They argue that this case limit is reasonable given that there are thousands of rail customers. (
As with the one-case limit, the Board agrees that the shipper interests have raised valid concerns about the delays that could be created under the 25-case/12-month limit. For example, if 25 arbitrations were brought within the first month after the program becomes effective and all the arbitrations were concluded after four months, a potential complainant whose arbitration exceeds the limit would need to wait an additional eight months before its case could proceed—even though the carrier would not be handling any pending arbitrations during this time. However, the new arbitration program entails a process that will be new and untested; as such, the Board finds that it is reasonable to limit the number of arbitrations to which rail carriers are subject until the Board and stakeholders have a practical understanding of how well the program works.
To balance both the carriers' and shippers' concerns, the Board will adopt a 25-case limit, but it will remove the 12-month component. Without the 12-month component, Class I carriers participating in the arbitration program will be subject to no more than 25 arbitration cases
In the petition for rulemaking, Petitioners proposed allowing carriers to withdraw from the arbitration program if they were subject to 10 simultaneous arbitrations. The Board, however, did not propose this as a feature of the program in
Joint Carriers urge the Board to reconsider including this limit in the final rule. They argue that the one-case-per-shipper and 25-cases/12-month limits do not sufficiently protect carriers from “being overwhelmed by a high number of arbitrations, all with expedited schedules.” (Joint Carriers Comment 27.) However, Petitioners now propose that the limit result in postponement of cases, rather than triggering a withdrawal right. (
In response, Coalition Associations argue that postponing cases above a 10-simultaneous-case limit would place shippers at a disadvantage. For one, it would increase the costs to shippers whose cases are postponed, particularly since the shipper would be paying the challenged rate while waiting for its arbitration to proceed. (Coalition Ass'ns Reply 24.) They argue that this delay would put pressure on shippers to settle claims, due to the fact that the railroad's conduct has led to multiple claims against it. (
The Board appreciates Joint Carriers' concern about having sufficient resources to handle simultaneous arbitrations. However, there is no limit on the number of rate cases that can be brought against a carrier, so a carrier could just as easily be subject to the same number of rate cases as arbitrations. The Board acknowledges that, because the new arbitration process should be less time-consuming and less costly than a formal rate case, shippers may bring more challenges through the arbitration process than they otherwise would through formal cases. But that would indicate that the arbitration process is providing shippers with better access to potential rate relief, which is the goal of this proceeding. In other words, if the reason carriers today are subject to very few rate cases is that the formal rate case processes are too costly to be worth pursuing, that is not a justification for protecting them from a somewhat larger number of challenges under the arbitration program as well. Finally, in the event that there are a greater number of arbitrations than the Board anticipates that create concerns about the fairness of the program, it will stand ready to take appropriate action.
The Board acknowledges that in
As proposed by the Board, the arbitration process under the new program would begin with the shipper submitting a copy of a written notice of its intent to arbitrate (Initial Notice) to the rail carrier and OPAGAC (though OPAGAC would not be permitted to share this information outside of that office).
NGFA and AFPM support the Board's proposed mediation provisions, with AFPM stating that it will allow parties to avoid unnecessary delays for disputes that are clearly not likely to be resolved through mediation. (NGFA Comment 8-9; AFPM Comment 8.) However, Joint Carriers argue that the Board should require brief mediation before the actual arbitration phase, unless
Coalition Associations take issue with Joint Carriers' insistence on mandatory mediation. They argue that it would increase costs on shippers and lengthen the procedural schedule by 25%, during which time the shipper would be subject to the challenged rate. (Coalition Ass'ns Reply 22-23.) Coalition Associations also argue that allowing parties to forgo mediation upon mutual consent is not helpful because it causes delay and, therefore, it is unlikely a railroad would ever consent to opt out. (
The Board will deny the requests from rail carriers to make mediation mandatory. Although the Board requires parties to mediate under its other rate case processes, the goal of arbitration is to create a process that is particularly expeditious and less costly than existing processes. Despite carriers' assertion, the time and expense of engaging in mediation is not insignificant (particularly since it would be the parties, not the Board, providing the mediator). By not requiring mediation as part of the arbitration process, the Board will give parties the option to decide whether they want to mediate before arbitrating their rate dispute.
The Board recognizes that, although it is not requiring mediation here, it is requiring it for FORR cases.
The Board notes that if a carrier genuinely believes that mediation would be beneficial, it is free to speak directly with the complainant and encourage the complainant to participate in mediation.
In
As for the lead arbitrator, the Board proposed that the two party-appointed arbitrators would make a selection from a joint list provided by the parties but, if the arbitrators are unable to agree, that they shall select from the Board's roster using the alternate-strike method (as set forth in § 1108.6(c)). The Board did not propose requiring the lead arbitrator to meet any qualification requirements (as is required for individuals wanting to be on the Board's arbitration roster), but it did request parties to comment on whether there should be such a requirement.
Both Joint Carriers and AAR object to requiring the party-appointed arbitrators to select the lead arbitrator from the Board's roster when there is disagreement. Joint Carriers argue that the roster is too small a pool, while AAR argues that selecting from the roster is problematic because it favors whichever side is more represented on the roster. (Joint Carriers Comment 20; AAR Comment 7.) Accordingly, Joint Carriers and AAR propose that an ALJ select the lead arbitrator when there is disagreement. (Joint Carriers Comment 20; AAR Comment 7.) Joint Carriers specifically propose the ALJ select from a joint list submitted by the parties, in which each party would select three arbitrators for a total of six arbitrators,
Coalition Associations oppose the idea of having an ALJ select the lead arbitrator from a list generated by the parties. They propose that the parties generate a list, but instead of having the ALJ select the lead arbitrator, the parties use the alternating-strike method. They argue this would allow parties to have more control over the selection of the lead arbitrator, as opposed to an ALJ who would likely be unfamiliar with the individuals on the list. (Coalition Ass'ns Reply 26-27.) Finally, AFPM argues that the lead arbitrator should meet the 49 CFR 1108.6 qualifications, particularly since the panel will have to make a determination on market dominance. (AFPM Comment 8.)
The Board will require that any individuals on the list meet the qualification requirements of 49 CFR 1108.6(b). In particular, the Board will require the lead arbitrator to be a person “with rail transportation, economic regulation, professional or business experience, including agriculture, in the private sector,” and that has “training in dispute resolution and/or experience in arbitration or other forms of dispute resolution.” 49 CFR 1108.6(b). Such a requirement will ensure that the lead arbitrator will be able to carry out his or her responsibilities for handling evidentiary matters and that the panel will have addressed the appropriate legal criteria in reaching its decision.
Commenters all oppose selecting from the Board-maintained roster in situations where parties cannot agree on a lead arbitrator. Accordingly, the Board will modify the final rule to instead allow the parties to develop a joint list. To develop the joint list, the Board will require each side to include the names of three individuals who meet the qualification requirement of 49 CFR 1108.6(b). Both sides will then be permitted to strike the names of two individuals proposed by the opposing side. The parties will then contact the Director of OPAGAC, who shall select from the two remaining names using a random selection process. The Board finds using this method of selecting the lead arbitrator would be easier and faster than relying on an ALJ or other substantive decisionmaker. While this approach has certain advantages, the Board acknowledges that selection approaches that do not rely on the roster, which commenters uniformly opposed, also have certain built-in incentives that may be disadvantageous.
Under 49 U.S.C. 11708(e)(2), “[t]he evidentiary process of the voluntary and binding arbitration process shall be completed not later than 90 days after the date on which the arbitration process is initiated unless—(A) a party requests an extension; and (B) the arbitrator or panel of arbitrators, as applicable, grants such extension request.” The Board proposed that the arbitration program would have a 90-day evidentiary phase composed of a 45-day discovery sub-phase and a 45-day sub-phase for submission of pleadings or evidence (beginning from the formal commencement of the arbitration phase).
AAR proposes that there should be a full 45-day submission sub-phase, even if the discovery period is extended. (AAR Comment 7.) It argues that a party is equipped to weigh the benefit of seeking additional discovery against the risk that the proceeding will be extended. (
Coalition Associations argue that the arbitration proposal has a longer evidentiary phase than the
Upon further consideration, the Board will modify the final rule so that it is left to the arbitration panel's discretion whether to extend the submission sub-phase upon an extension of the discovery sub-phase and, if so, for how long. The arbitration panel will be in the best position to weigh whether an extension of the discovery period warrants an extension of the submission sub-phase, based on input from the parties.
Coalition Associations' argument that the longer schedule in arbitration relative to FORR will increase costs for litigants is overstated. As described above, arbitration is an inherently efficient process. There is no certain mechanism to determine whether a particular arbitration would be more expensive than a particular proceeding under FORR. And, as discussed above, the regulations will allow parties to request, and the arbitration panel to adopt, procedures that are more efficient or less costly. In addition, the discovery limits—discussed in the following section—will require parties to streamline their litigation strategy.
The Board proposed that each side be allowed 20 written document requests, five interrogatories, and no depositions. However, the Board invited comment on whether the limits should be raised in cases where the non-streamlined market dominance approach is used. The Board also proposed that the lead arbitrator be responsible for managing discovery.
IMA-NA, Indorama, and Coalition Associations do not support limits on discovery. They argue that, because railroads generally control most of the information needed to bring a case, these limitations will have a disproportionately adverse effect on complainants. They argue that this, in turn, could deter shippers from using the arbitration program, particularly if they feel a case requires more information than it can obtain under these limited discovery procedures. They also note that there are no such discovery limitations in FORR. (IMA-NA Comment 18; Indorama Comment 18; Coalition Ass'ns Reply 9.) AFPM does not object to the discovery limits, though it notes that the proposed limits may need to be higher for cases in which the non-streamlined market dominance approach is used. (AFPM Comment 10.)
The discovery limits are a key feature of the arbitration program because they will ensure that parties streamline their requests and that the process does not become overly costly or time-consuming. Although the shipper interests argue that shippers require more discovery in rate cases than do carriers, they do not claim that the limited discovery proposed by the Board would be insufficient for purposes of obtaining the evidence needed to present a case to the arbitration panel. However, in response to the concern from the shipper interests that the discovery limits may be too restrictive, the Board will modify the final rule to allow parties to make requests for additional interrogatories and documents, which the lead arbitrator can grant for exceptional circumstances. This will allow parties to obtain additional discovery in cases where it is warranted. In addition, the limits proposed in
As part of the proposed small rate case arbitration program, the Board proposed that each party automatically receive the confidential Waybill data of the defendant carrier for the preceding four years, as in Three-Benchmark cases.
Coalition Associations argue the scope of Waybill data to be released should be expanded to include all rail carriers and commodities, as “commodities can have comparable transportation characteristics at higher STCC levels and transportation characteristics can be similar across railroads.” (Coalition Ass'ns Comment 18.) They also claim that the Board permits four years of Waybill data in Three-Benchmark cases without restricting the data to specific commodities. (
Joint Carriers oppose expanded access to Waybill data beyond what was proposed in
The Board will modify the final rule to allow complainants to have access to the defendant carrier's Waybill data for all movements without restriction on commodity type. The agency's practice in Three-Benchmark cases has been to provide complainants with data for all commodities.
For the same reason, the Board will also amend the regulatory text so that the Waybill data provided to complainants is not limited only to movements with revenue to variable cost (R/VC) ratio above 180%.
The Board will not expand the automatic Waybill data release requirements to include non-defendant carriers. Coalition Associations argue that access to other railroads could be needed in some rate comparison analyses. In
The Board will also clarify that a defendant carrier's outside attorneys and consultants should be given access to any non-defendant carrier Waybill data that is provided to the complainant. Doing so is necessary to avoid creating informational asymmetry. Accordingly, if the Director grants a complainant's request for access to non-defendant carrier data, the Director will inform the defendant carrier so that the carrier's outside attorneys and consultants can obtain the same data, pursuant to the required confidentiality agreement and undertakings.
Coalition Associations argue that the process of requesting additional data is itself problematic. Under the proposal in
• Demonstrate that “[t]he STB Waybill Sample is the only single source of the data or obtaining the data from other sources is burdensome or costly, and the data is relevant to issues” in a pending arbitration; and
• Include a request that meets the requirements of 49 CFR1244.9(e), which states that applicants must provide “(i) A complete and detailed explanation of the purpose for which the requested data are needed[;] (ii) A description of the specific waybill data or fields actually required (including pertinent geographic areas)[; and] (iii) A detailed justification as to why the specified waybill data are needed.”
Coalition Associations' arguments are misplaced. The revised text of § 1244.9(b)(4) being adopted here sets forth clear requirements for seeking the release of Waybill data in arbitrations (and other STB proceedings): a complainant needs to demonstrate that there is reasonable need for the data relating to the methodology that it intends to use in a formal case or an arbitration and the Waybill Sample is the only source of this data. Thus, contrary to Coalition Associations' assertion, the Director would not be prejudging the complainant's methodology, but instead, merely assessing whether the data being sought is relevant to that methodology and whether the data is the only source of the information. Complainants in arbitration matters would be similarly situated to other complainants that seek confidential Waybill data in Board
The Board also notes that—in contrast to “other user” requests under 49 1244.9(c)—under 49 CFR 1244.9(b)(4), which will be the process for requesting Waybill data for arbitrations, there are no notice-and-objection procedures. Accordingly, the Board does not expect that there would be adversarial litigation regarding the scope of an arbitration complainant's initial waybill request.
Appeals of the Director's orders may be brought to the Board pursuant to 49 CFR 1115.1.
As discussed below,
As proposed in
In
In addition, the Board proposed that complainants in a small rate case arbitration could attempt to establish market dominance using either the streamlined
NGFA supports the ability to demonstrate market dominance using the streamlined or traditional approach, as well as the prohibitions on product and geographic competition and the limit price test. (NGFA Comment 8-9.) AFPM also supports allowing the arbitration panel to decide market dominance, but only if the lead arbitrator meets the qualification requirements of 49 CFR 1108.6. It argues that such a determination may be too complex for an arbitrator that does not have these qualifications. (AFPM Comment 11.)
BNSF argues that the Board should allow consideration of product and geographic competition as part of the market dominance inquiry. (BNSF Comment 4.) It argues there is a “significant asymmetry” in allowing shippers to pursue novel rate methodologies yet refusing to allow carriers to present evidence of product and geographic competition and that the new arbitration program could be an “incubator” for more efficient ways to present evidence of product and geographic competition. (
Coalition Associations oppose BNSF's request to allow carriers to present evidence of product and geographic competition as part of the market dominance inquiry. They note that the Board has previously excluded such evidence because it places a substantial burden on the agency by having to address materials outside its area of expertise. (Coalition Ass'ns Reply 25.) They also argue that BNSF has failed to explain how parties could address these complex matters in an abbreviated proceeding. (
No commenters addressed the Board's proposal to allow the arbitration panel to rule on market dominance. Accordingly, the Board will adopt this aspect of
The Board declines to adopt BNSF's proposal to allow consideration of product and geographic competition as part of the market dominance analysis. Although the Board has recognized that product and geographic competition may impact competitive options, the Board does not currently consider product and geographic competition in its market dominance determinations due to the complexity such an analysis would add to the process.
In
BNSF argues that some of the features of the alternative dispute resolution program it jointly developed with Montana grain interests (Montana ADR Program) should be incorporated into the Board's proposed arbitration program. Specifically, BNSF notes that the Board proposed only that market-based factors “may” be considered by the arbitration panel, but BNSF argues that such factors should be mandatory considerations. (BNSF Comment 2.) BNSF claims this will encourage settlements, or at least make the arbitration process more efficient, by forcing parties to rely more on commercial representatives than on lawyers and consultants. (
BNSF also notes that not all of the market-based factors included in the Montana ADR Program were included in the text of the proposed regulations and suggests that they be added. These include “consideration of the capital requirements of the rail system used by the complainant's traffic and the revenue available to sustain the network” and “relief would not be justified in the event a truck rate that is lower than the contested rail rate is available to the complainant from origin to destination for the same commodity for the specific mileage segment.” (
Coalition Associations oppose BNSF's proposal to add more market-based factors to the decisional criteria or to make them mandatory, arguing that doing so would inhibit the shipper's ability to have flexibility in making its case and that railroads are free to rebut a shipper's evidence by presenting market-based factors. (Coalition Ass'ns Reply 25.) They also argue that the existence of a lower truck rate is not necessarily indicative that a rail carrier's rate is reasonable. (
In its comment, USDA argues that while the process for deciding rate reasonableness in FORR is clear, the process for arbitration is unclear. In particular, it argues that there is no explanation of whether the arbitration panel will tend to choose a mid-point between the shipper and railroad positions; create its own, independent measure of what is a reasonable rate; or use some other process. (USDA Comment 3.) USDA notes that railroads have criticized FORR for involving uncertainty; yet, USDA claims, the railroads' proposed arbitration process has even more uncertainty than FORR, which is designed to produce reasonable outcomes. (
The Board will not make the modifications proposed by BNSF. To the extent that parties believe that market-based factors are relevant to the reasonableness of the rate, they are free to raise them, and arbitrators are free to consider them, but there is no need to make it a mandatory requirement. The proposed regulations already include a long list of criteria that the arbitration panel must consider in rendering its decision—the need for differential pricing, statutory authorities, and sound economics. These criteria entail aspects of market-based pricing, even if that concept is not specifically addressed. Indeed, differential pricing—charging shippers different rates based on demand—is a market-oriented concept. Requiring the panel to separately address market-based factors in its decision, in addition to the similar criteria it must already address, would merely add unnecessary complication.
In response to USDA's argument that the process for deciding rates is unclear, the Board clarifies that the arbitration program adopted here is not limited to a final offer structure. Accordingly, the arbitration panel is not required to set the rate only at an amount proposed by one of the parties. The decision of the arbitration panel must be consistent with § 11708 (and related requirements) and sufficient to survive review under 49 CFR 1108.29(b)(2). The criteria for a decision set forth in the statute and this regulation should provide the parties with a sufficient degree of certainty as to how the rate in an arbitration decision will be determined.
The Board in
Joint Carriers indicate that their primary concern with the new arbitration program proposed by the Board is the allowance of claims based on the revenue adequacy constraint. They argue that the Board should not let the controversy surrounding the revenue adequacy constraint be the demise of what is otherwise a workable forum for resolving rate disputes. (Joint Carriers Reply 3.) Joint Carriers intimate that they would not participate if revenue adequacy constraint claims can be arbitrated. (
Joint Carriers state that they understand the concerns raised by the Board in
For these reasons, Joint Carriers request that the Board require that any claims based on the revenue adequacy constraint be filed in a formal rate case, at least until the Board has addressed the ambiguities surrounding it. (Joint Carriers Comment 8; Joint Carriers Reply 9.)
NGFA and APFM both support permitting evidence and claims based on revenue adequacy to be used in arbitrations. (NGFA Comment 9; AFPM Comment 11.)
Coalition Associations object to the Joint Carriers' arguments for banning revenue adequacy evidence. Coalition Associations argue that 49 U.S.C. 11708(c)(3) contains a Congressional directive for the Board to consider revenue adequacy in Board-established arbitration programs. (Coalition Ass'ns Reply 13.) They also argue that the purpose of the revenue adequacy constraint is to identify the extent to which differential pricing is necessary to permit a carrier to collect adequate revenues pursuant to the concept of revenue adequacy defined at 49 U.S.C. 10704(a)(2). (
Coalition Associations also state that a ban on revenue adequacy claims in arbitration would make formal cases the only option for shippers to bring a small claim asserting revenue adequacy. They argue that, because formal rate cases are widely recognized as inaccessible to shippers with small claims, there would essentially be no revenue adequacy constraint for small claims. (
USDA agrees with the Board that revenue adequacy is already embedded in a variety of rate reasonableness considerations and that the methodological flexibility of the arbitration program necessitates its inclusion. (USDA Comment 4.)
The Board will not modify the final rule to prohibit revenue adequacy constraint claims or evidence, as requested by Joint Carriers. In
In their comment, Joint Carriers only vaguely address the Board's concerns with a prohibition on revenue adequacy claims. They state, “[w]ith the high level of uncertainty surrounding the use of `revenue adequacy' in rate challenges—and the highly contentious nature of those questions—the Board should reserve the use of any so-called revenue adequacy constraint under
Joint Carriers also provide no other specific comments on how to administer a partial revenue adequacy evidentiary prohibition. They argue that the Board's concerns with revenue adequacy in
Joint Carriers also argue that the Board, not arbitrators, should be ruling on the undefined issues surrounding revenue adequacy. However, if an arbitration decision is not appealed, the decision will remain confidential and non-precedential and so would have no impact outside of the arbitration in question. On the other hand, if an arbitration decision is appealed, the Board will be able to review the arbitration panel's decision pursuant to the standard set forth in 49 U.S.C. 11708(h), including that the decision is consistent with sound principles of rail regulation economics.
Joint Carriers argue that the carriers' appellate rights are limited under this statutorily prescribed standard of review. However, as discussed below,
Joint Carriers also express concern that claims based on revenue adequacy are too complex to be properly litigated within the structural confines of the arbitration process. However, the very purpose of the arbitration process is to force parties to streamline their cases to reduce this complexity. When deciding whether to initiate an arbitration based on a revenue adequacy constraint claim, a complainant will need to weigh the fact that it will be limited by the requirements of the arbitration process. Conversely, the same structural confines will force a defendant carrier to streamline its arguments in response to a revenue adequacy constraint claim.
Finally, the Board finds Joint Carriers' argument that shippers would still gain significant benefits from an arbitration program that prohibits revenue adequacy evidence and methodologies to be highly speculative. At this time, there is no reason to deprive shippers of the opportunity to try out revenue adequacy approaches that would clearly be permissible in a FORR case.
Consistent with the requirements of 49 U.S.C. 11708(h), the Board proposed procedures allowing parties to appeal the arbitration panel's decision to the Board and established the standard of review the agency would apply in reviewing such decisions.
(1) the decision is consistent with sound principles of rail regulation economics;
(2) a clear abuse of arbitral authority or discretion occurred;
(3) the decision directly contravenes statutory authority; or
(4) the award limitation . . . was violated.
Joint Carriers argue that Board decisions resolving appeals of arbitration decisions should be non-precedential and binding only on the parties—the same as the arbitration decision itself. (Joint Carriers Comment 21.) Joint Carriers argue that Board decisions on appeal, if made precedential, could create law and policy. This outcome, they assert, will disincentivize parties from participating and encourage the high-stakes litigation tactics that arbitration is intended to avoid, thus undermining the entire purpose for making the arbitration decisions themselves non-precedential. (
Although the Board modified the language of 49 CFR 1108.10 in
Additionally, Joint Carriers propose that the Board add a disclaimer to its decisions on appeal of arbitration decisions, similar to the digests the Board includes with full Board decisions, and as is done by other agencies. (
Coalition Associations oppose Joint Carriers' proposal that the Board's decisions on appeal be non-precedential for several reasons. First, they argue that if these Board decisions are non-precedential, carriers would likely appeal every adverse arbitration decision and, therefore, the cost to litigate an appeal to the Board would need to be considered an automatic expense. (Coalition Ass'ns Reply 21.) Second, Coalition Associations argue that non-precedential decisions on appeal will not discourage parties from using “high-cost, high-stakes” tactics during arbitration. Coalition Associations note that the appellate standard of review is focused only on fundamental issues of decisional fairness and quality, not an opportunity to relitigate the merits. (
The Board rejects Joint Carriers' request to make Board decisions on appeal non-precedential. Contrary to Joint Carriers' argument, the “disclaimer” footnote appended to the digests in full Board decisions is not analogous to a Board decision resolving an arbitration appeal. The digest merely reflects a practice that the Board has developed for the purpose of “increasing transparency in government and to foster public understanding of Board decisions.”
Board decisions, even in arbitrations, have always been public and precedential.
The Board also agrees with Coalition Associations that Joint Carriers' argument about “high-cost, high-stake tactics” is flawed. If a carrier loses an arbitration, the appeal of that decision to the Board would not serve as an opportunity for the carrier to make new arguments on the merits of rate reasonableness. Accordingly, the arguments made by the carrier in the arbitration should be rooted in the same issues regardless of whether the Board decision on appeal is precedential or non-precedential. It is unlikely that the fact that the Board's decision on appeal of the arbitration panel's decision would be precedential would materially change the nature of the defendant carrier's arguments.
Because Board decisions on appeal of arbitration decisions would be precedential, Joint Carriers are correct that such Board decisions could, in principle, effect a material change in law. Accordingly, as requested by Joint Carriers, the Board clarifies here that a Board decision on an appeal of an arbitration decision could constitute a material change in the law for which a carrier could withdraw from the arbitration program. However, notwithstanding the fine distinctions that can be drawn between the terms “precedential” and “non-precedential,” a decision ruling on an appeal of an arbitration decision would not by default establish any type of broad precedent that dictates or affects the outcome in future arbitrations or rate cases. The Board expects to review an arbitration decision under the § 11708(h) factors based on the context of that specific arbitration. The four criteria by which the Board must review the arbitration decision are limited. The most expansive of these, and the one under which most appeals will likely be argued under, is the first criterion: that the decision is consistent with sound principles of rail regulation economics. There are multiple outcomes that an arbitration panel might reach in deciding whether a rate is reasonable that would be considered “consistent with sound principles of railroad economics.” Just because the Board affirms one of those possible outcomes in a particular arbitration decision as consistent with sound principles would not, by itself, create or alter a rate reasonableness methodology and therefore constitute a material change in law.
Lastly, as a procedural matter, the Board will add regulatory language stating that the parties to an appeal of an arbitration decision may attach excerpts from any materials from the underlying arbitration record that are relevant to its petition or reply. In addition, the regulatory language will provide that such materials will be treated as confidential and will not count toward the page limit for such filings.
The Board proposed that relief under the new arbitration program would be capped at $4 million over a two-year relief period, which could be a combination of retroactive relief (
Coalition Associations argue in the FORR proceeding that the relief cap for that process should be adjusted to match the cap currently in use in Three-Benchmark cases; as such, they state that the relief cap for the arbitration program should correspondingly be adjusted to maintain parity between the FORR and arbitration processes. (Coalition Ass'ns Comment 19-20.) They also propose that the Board allow the two-year relief period to begin on a date set by the complainant.
AFPM and NGFA support the $4 million relief cap. (AFPM Comment 12; NGFA Comment 8.) However, AFPM also urges the Board to adopt a second tier of available relief in the FORR docket of ten years with no monetary limit and states that, if the Board were to do so, it should also do so for the new arbitration program. (AFPM Comment 12.)
Joint Carriers do not oppose the Coalition Associations' request that the relief cap be raised to match the current amount of relief available in Three-Benchmark cases. (Joint Carriers Reply 21.) However, Joint Carriers oppose creating a two-tiered system of relief for FORR and the arbitration program and allowing shippers to determine the date on which the relief period starts. (
The Board will keep the relief period at two years. However, the Board will increase the dollar cap on rate relief to the same amount as for Three-Benchmark cases, which today is $4,471,013.
In various filings, the parties addressing this issue have stated that the Board should index the relief cap using the Consumer Price Index, which the Board cited as the appropriate index in the proposed regulations in
In the initial petition for rulemaking, Petitioners proposed that the new arbitration process be confidential, a significant change from the existing arbitration program. The Board agreed that confidentiality would incentivize carriers to participate in the new program and therefore proposed that all aspects of the arbitration process from initiation of the case (
However, the Board noted that decisions from the Director of OE on requests for access to the confidential data from the Waybill Sample might be a possible exception. The Board proposed that the Director's determinations not be posted in a formal docket,
The Board also proposed that any telephonic or virtual conference between the parties and the ALJ to resolve an objection to a party-appointed arbitrator, and rulings by the ALJ on for-cause objections, would be deemed confidential as part of the arbitration process. However, it invited parties to comment on whether such communications would constitute “dispute resolution communications” as defined by 5 U.S.C. 571(5), and as such would be exempt from disclosure under the Freedom of Information Act (FOIA) pursuant to 5 U.S.C. 574(j).
Lastly, the Board determined that appeals of the arbitration decision to the Board could not be kept confidential, as Petitioners had requested.
The Board provided several reasons why it proposed that the arbitration process be kept confidential to the maximum extent possible. First, if carriers were faced with the choice of formally adjudicating or arbitrating a rate dispute where the outcome would be public, carriers would be more likely to choose formal adjudication.
The shipper interests and USDA object to this aspect of the Board's proposal on the following grounds.
USDA raises the same concern about informational asymmetry. However, instead of making arbitration decisions public, USDA encourages the Board to seek more information in the confidential case summaries and provide as much information as possible in the agency's quarterly reports, including descriptions of the types of evidence or arguments that were made (including what methodologies were relied upon). (USDA Comment 4.)
Joint Carriers and AAR oppose calls from the shipper interests to eliminate confidentiality. Joint Carriers explicitly state that they will not participate in the arbitration program unless the decisions remain confidential (to the extent permissible by law). (Joint Carriers Reply 15.) Joint Carriers also argue that making the arbitration decisions public would disincentivize settlements. (Joint Carriers Reply 14.) Similarly, AAR disputes NGFA's assertion that a public decision will incentivize dealmaking. Instead, AAR claims that the threat of a public decision—even if non-precedential—will incentivize each side to “dig in on its position.” (AAR Reply 12.) Joint Carriers and AAR both note that the need for confidentiality is highlighted by IMA-NA and Indorama's comments, in which those parties expressly state that they desire public arbitration decisions to use as leverage in other commercial negotiations. (Joint Carriers Reply 14-15; AAR Reply 12-13.)
The Board continues to find that confidentiality is necessary to the success of the arbitration program. Accordingly, as proposed in
Some of the shipper interests argue that public arbitration decisions would have benefits, including putting more pressure on the parties to reach a settlement. The Board does not dispute this argument, having already stated in
Despite the Coalition Associations' assertions, it is likely that a public arbitration decision adverse to a railroad would be used by other shippers in future rate negotiations. The fact that arbitration decisions are non-precedential would not lessen this concern. IMA-NA and Indorama expressly state that this is their motivation in requiring that arbitration decisions be public. (IMA-NA Comment 18; Indorama Comment 18.) Similarly, AFPM states that “transparency may lead to a change in ratemaking behavior that could lead to more reasonable rates and therefore less need for dispute resolution.” (AFPM Comment 13.) Again, the Board does not dispute that making arbitration decisions public would have benefits; however, as it stated in
Coalition Associations and NGFA also argue that confidentiality will not impact how vigorously carriers litigate
The Board also finds that the informational asymmetry concern raised by Coalition Associations and USDA is overstated. Although complainants in arbitration would be afforded more flexibility in the arguments and methodologies they can present, those arguments and methodologies should still be based on the same fundamental principles of railroad economics underlying existing methodologies.
Coalition Associations also argue that there is no expectation of confidentiality for arbitration decisions under the ADR Act.
The Board notes that in
As a result of this provision, the confidentiality requirements for the new arbitration process will be broader than what is provided for in the ADR Act (as noted, settlement agreements and arbitral awards are not considered confidential “dispute resolution communications” under the ADR Act). However, the Board concludes that parties may enter into confidentiality agreements that include provisions that are broader than the ADR Act.
Moreover, the Senate Committee report explained that settlement agreements and arbitral awards “do not create reasonable expectations of confidentiality since they involve United States policy and actions.” S. Rep. No. 101-543 (1990), 1990 U.S.C.C.A.N. 3931, 1990 WL 201792. But under 49 U.S.C. 11708(d)(5), arbitration decisions are non-precedential; as such, they do not become policy. The Board is similarly requiring that settlement agreements be kept confidential to ensure that they too do not inadvertently become policy. Board decisions ruling on appeals of arbitration decisions could be precedential and thus establish agency policy.
Finally, as noted above, the Board explained in
After further considering whether decisions by the Director of OE on Waybill requests must be disclosed, the Board finds that it should err in favor of transparency. Under FOIA, “[e]ach agency, in accordance with published rules, shall make available for public
The Board finds that the publication requirement, however, does not extend to the ALJ decisions ruling on for-cause objections to party-appointed arbitrators. Although the ALJ is appointed by the Board, the ALJ would not be acting in an adjudicatory capacity but as a “neutral.”
As noted above, the Board is aware that publication of the Director's rulings on Waybill requests will result in the disclosure of the existence of the arbitration and the identity of the participating parties prior to any arbitration appeal. As with other features of the program, carriers will need to assess this risk of disclosure when deciding whether to participate in the arbitration program.
To ensure that the arbitration program is working as intended and proving effective, the Board proposed including within the regulations a requirement for the agency to conduct a programmatic review after a reasonable number of arbitrations have been conducted, though not later than three years after start of the program.
In its comments, NGFA urges the Board to consider feedback not just from parties that have used the arbitration program, but parties that considered using the program and elected not to do so. (NGFA Comment 6.) NGFA also encourages the Board to incorporate service data it collects from the Class I carriers into its evaluation of the arbitration program. NGFA argues this would allow the Board to determine if a carrier is retaliating against shippers that have brought arbitrations and for the Board to take action if necessary. NGFA states that this protection against potential retaliation will encourage shippers to use the arbitration program. (
AFPM suggests that, as part of the three-year review, meetings with shippers and railroads would be most beneficial. It also notes that the confidentiality provisions may make the review difficult. (AFPM Comment 14.)
The Board agrees that, as part of the programmatic review, it would be useful to obtain feedback not just from parties that actually used the program, but also from those that considered using the program but chose not to. Accordingly, the Board will modify the regulatory language to allow for feedback from all interested parties. Additionally, as noted above, a significant consideration in evaluating the success of the arbitration program will be whether the cost to arbitrate is less than the cost to litigate. The Board will therefore also specify that the cost to arbitrate will be an area of focus in the programmatic review.
As for NGFA's concern about retaliation, there is no need for shippers to wait until the programmatic review is conducted to raise such concerns with the Board. If a shipper believes it is being retaliated against for pursuing permissible regulatory relief—be it through arbitration or another process—the Board strongly encourages shippers to contact the Board's Rail Customer and Public Assistance program or file a formal complaint with the agency. That said, there is no need to require the impacts of arbitration on service to be specifically delineated as part of the programmatic review of the arbitration program. The regulation as proposed is sufficiently worded to allow the Board flexibility to consider any issues relevant to the effectiveness of the arbitration program, including service impacts.
Finally, the Board acknowledges AFPM's concern that arbitration decisions will be confidential and thus unavailable to the Board as part of its programmatic review. The Board would only have access to an arbitration decision if it has been appealed to the Board (and even then, the confidential information would be redacted) or if the parties agree to waive confidentiality. If the Board determines that it needs access to additional confidential arbitration decisions to properly conduct the programmatic review, it will consider methods of obtaining that information without breaching confidentiality, such as requesting parties to jointly and voluntarily provide redacted versions of the decisions or having a third-party review the decisions and provide an assessment.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, generally requires a description and analysis of new rules that would have a significant economic impact on a substantial number of small entities. In drafting a rule, an agency is required to: (1) assess the effect that its regulation will have on small entities, (2) analyze effective alternatives that may minimize a regulation's impact, and (3) make the analysis available for public comment. §§ 601-604. In its final rule, the agency must either include a final regulatory flexibility analysis, § 604(a), or certify that the proposed rule would not have a “significant impact on a substantial number of small entities,” § 605(b). Because the goal of the RFA is to reduce the cost to small entities of complying with federal regulations, the RFA requires an agency to perform a regulatory flexibility analysis of small entity impacts only when a rule directly regulates those entities. In other words, the impact must be a direct impact on small entities “whose conduct is circumscribed or mandated” by the
In
In
Accordingly, the Board certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities as defined by the RFA. This decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration, Washington, DC 20416.
In the NPRM, the Board sought comments pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3521, Office of Management and Budget (OMB) regulations at 5 CFR 1320.8(d) about the impact of the new collection for an Arbitration Program for Small Rate Disputes (OMB Control No. 2140-0039), concerning (1) whether the proposed collection of information is necessary for the proper performance of the functions of the Board, including whether the collection has practical utility; (2) the accuracy of the Board's burden estimates; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology, when appropriate.
The Board estimated in the NPRM that the proposed new requirements would include a total annual hourly burden of 273 hours. There were no proposed non-hourly burdens associated with this collection. No comments were received pertaining to the collection of this information under the PRA. The new collection will be submitted to OMB for review as required under the PRA, 44 U.S.C. 3507(d), and 5 CFR 1320.11.
Pursuant to the Congressional Review Act, 5 U.S.C. 801-808, the Office of Information and Regulatory Affairs has designated this rule non-major, as defined by 5 U.S.C. 804(2).
1. The Board adopts the final rule as set forth in this decision and below. Notice of the final rule will be published in the
2. The final rule is effective February 3, 2023.
3. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration.
By the Board, Board Members Fuchs, Hedlund, Oberman, Primus, and Schultz. Board Member Fuchs concurred with a separate expression. Board Member Schultz commented with a separate expression.
I agree with today's decision (
Though
By pursuing its ideal of universal participation by Class I carriers,
Though the program includes features that may dissuade a carrier from participating,
The Board issued two decisions today to create two new rate review processes. The goals of both Final Offer Rate Review (FORR) in Docket No. EP 755 and the small rate case arbitration program (Arbitration) in this docket are to reduce the cost and complexity of small rate disputes. I am writing separately to underscore that in my opinion, the Board's intended goals are only met through the issuance of Arbitration. I am also writing to express my concern with one of the aspects of Arbitration—the requirement that all Class I carriers must participate for the program to become effective.
Arbitration exempts participating carriers from FORR, but Arbitration as a program is only available if all Class I carriers agree to participate.
But beyond that, the requirement that all Class I carriers participate unnecessarily increases the risk that, in
Although I strongly disagree with the requirement that all Class I carriers participate in order for Arbitration to take effect, I am voting to create the Arbitration program because it resolves several deficiencies inherent in FORR. If Arbitration takes effect, it will provide the opportunity for an expedited rate review process for small rate cases that permits decision makers to set maximum reasonable rates that deviate from the two submitted proposals and greatly reduces the risk of inconsistent and unpredictable rate setting across the network.
Administrative practice and procedure, Authority delegations (Government agencies), Organization and functions (Government agencies).
Administrative practice and procedure, Railroads.
Administrative practice and procedure.
Freight, Railroads, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Surface Transportation Board amends parts 1011, 1108, 1115, and 1244 of title 49, chapter X, of the Code of Federal Regulations as follows:
5 U.S.C. 553; 31 U.S.C. 9701; 49 U.S.C. 1301, 1321, 11123, 11124, 11144, 14122, and 15722.
(a) * * *
(2) * * *
(xix) To order arbitration of program-eligible matters under the Board's regulations at 49 CFR part 1108, subpart A, or upon the mutual request of parties to a proceeding before the Board.
(b) * * *
(7) Perform any arbitration duties specifically assigned to the Office of Public Assistance, Governmental Affairs, and Compliance or its Director in 49 CFR part 1108, subpart B.
49 U.S.C. 11708, 49 U.S.C. 1321(a), and 5 U.S.C. 571
As used in this subpart:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(a)
(1) The Small Rate Case Arbitration Program serves as an alternative to, and is separate and distinct from, the broader arbitration program set forth in subpart A of this part.
(2) By participating in the Small Rate Case Arbitration Program, parties consent to arbitrate rail rate disputes subject to the limits on potential liability set forth in § 1108.28.
(3) The Small Rate Case Arbitration Program will become operative only if all Class I carriers initially commit to participate in the program. Class I carriers that participate in the program agree to arbitrate rate disputes that meet the requirements of this subpart for a term of five years from the date the program becomes effective.
(4) In the event the Small Rate Case Arbitration program becomes operative, Class I carriers that participate will be exempt from having their rates challenged under Final Offer Rate Review, pursuant to § 1108.33, as long as they remain in the program.
(b)
(2) The Board will promptly issue the notice commencing the arbitration program upon receipt of the required opt-in notices specified in § 1108.23(a) from all existing Class I carriers. If the Board does not receive opt-in notices from all existing Class I carriers, the notice will not be issued and the regulations in this subpart will not become operable, including any exemption from FORR. The notice will establish an initial five-year term for the program, beginning from the date the notice is issued.
(3) Class I carriers must indicate whether they choose to voluntarily participate in the Small Rate Case Arbitration Program by February 23, 2023, by filing the notice specified in § 1108.23(a) with the Board.
(c)
(2) The Small Rate Case Arbitration Program will become operative for an additional 5-year period only if all Class I carriers again commit to participate in the program. This requirement will apply even if one or more of the Class I carriers has previously withdrawn from the program pursuant to § 1108.23(c).
(3) The Board will promptly issue a notice in the
(4) The Board will repeat this process to renew the arbitration program every five years for as long as the program remains in effect.
(5) At the end of any five-year period, if the arbitration program is not renewed, any pending arbitrations will continue until they are completed.
(d)
(e)
(a)
(i) A statement that the carrier agrees to an extension of the timelines set forth in 49 U.S.C. 11708(e) for any arbitrations initiated under this subpart; and
(ii) A statement that the carrier agrees to the appointment of arbitrators that may not be on the STB-maintained roster of arbitrator established under § 1108.6(b).
(2)
(3)
(4)
(b)
(c)
(2)
(i) The notice of withdrawal for change in law shall state the basis or bases under paragraph (c)(1) of this section for the party's withdrawal of its consent to arbitrate under this part. A copy of the notice must be served on any parties with which the carrier is currently engaged in arbitration. A copy of the notice will also be posted on the Board's website.
(ii) Any party may challenge the withdrawing party's withdrawal for change in law on the ground that the change is not material by filing a petition with the Board within 10 days of the filing of the notice of withdrawal being challenged. The withdrawing party may file a reply to the petition within 5 days from the filing of the petition. The petition shall be resolved by the Board within 14 days from the filing deadline for the withdrawing party's reply.
(iii) Subject to the stay provision of paragraph (c)(3)(ii) of this section, the notice of withdrawal for change in law shall be effective on the day of its filing.
(3)
(ii)
(iii)
(d)
(1) A carrier that has reached the limit shall notify the Board's Office of Public Assistance, Governmental Affairs, and Compliance by email (to
(2) For purposes of this paragraph (d), an arbitration will count toward the 25-arbitration limit only upon commencement of the first mediation session or, where one or both parties elect to forgo mediation, submission of the joint notice of intent to arbitrate to the Board under § 1108.25(c). For purposes of this paragraph (d), an arbitration under this subpart is final when the arbitration panel issues its arbitration decision, or if an arbitration is dismissed or withdrawn, including due to settlement.
(a)
(1) Rate disputes involving shipments of regulated commodities not subject to a rail transportation contract are eligible to be arbitrated under this subpart. If the parties dispute whether a challenged rate was established pursuant to 49 U.S.C. 10709, the parties must petition the Board to resolve that dispute, which must be resolved before the parties initiate the arbitration process under this part.
(2) A complainant may challenge rates for multiple traffic lanes within a single arbitration under this part, subject to the relief cap in § 1108.28 for all lanes.
(3) For movements in which more than one carrier participates, arbitration under this subpart may be used only if all carriers agree to participate (pursuant to § 1108.23(a)(1) or (4)).
(b)
(c)
(d)
(a)
(b)
(2) Such mediation will not be conducted by the STB. The parties to the dispute must jointly designate a mediator and schedule the mediation session(s).
(3) If the parties mutually agree to mediate, the parties must schedule mediation promptly and in good faith. The mediation period shall end 30 days after the date of the first mediation session, unless both parties agree to a different period.
(c)
(2) The joint notice shall set forth the following information:
(i) The basis for the Board's jurisdiction; and
(ii) The basis for the parties' eligibility to use the Small Rate Case Arbitration Program, including: that the dispute being arbitrated is solely a rate dispute involving shipments of regulated commodities not subject to a rail transportation contract; that the carrier has opted into the Small Rate Case Arbitration Program; that the complainant has elected to use the Small Rate Case Arbitration Program for this particular rate dispute; and that the complainant does not have any other pending arbitrations at that time against the defendant carrier.
(3) The joint notice shall be confidential and will not be published on the Board's website and specific information regarding pending arbitrations, including the identity of the parties, will not be disseminated within the Board beyond the alternative dispute resolution functions within the Office of Public Assistance, Governmental Affairs, and Compliance.
(4) Unless the parties have agreed not to request the Waybill Sample data pursuant allowed under § 1108.27(g), the parties must also submit a copy of the Joint Notice of Intent to Arbitrate to the Director of the Board's Office of Economics. Parties may submit the letter and copy of the joint notice by email to
(a)
(b)
(1)
(i) The parties must confer over the objection within two business days.
(ii) If the objection remains unresolved after the parties confer, the objecting party shall immediately file an Objection to Party-Appointed Arbitrator with the Office of Public Assistance, Governmental Affairs, and Compliance. The Office of Public Assistance, Governmental Affairs, and Compliance shall arrange for a telephonic or virtual conference to be held before an Administrative Law Judge within two business days, or as soon as is practicable, to hear arguments regarding the objection(s). The Administrative Law Judge will provide its ruling in an order to all parties by the next business day after the telephonic or virtual conference.
(iii) The Objection to Party-Appointed Arbitrator filed with Office of Public Assistance, Governmental Affairs, and Compliance and the telephonic or virtual conference, including any ruling on the objection, shall be confidential.
(2)
(c)
(2)
(3)
(4)
(5)
(d)
(e)
(1) If the incapacitated arbitrator was a party-appointed arbitrator, the appointing party shall, without delay, appoint a replacement arbitrator pursuant to the procedures set forth in paragraph (b) of this section.
(2) If the incapacitated arbitrator was the lead arbitrator, a replacement lead arbitrator shall be appointed pursuant to the procedures set forth in paragraph (c) of this section.
(f)
(a)
(b)
(c)
(2)
(3)
(d)
(2) Each party is permitted an additional 3 written document request and 3 interrogatories if the defendant carrier(s) does not concede market dominance and the complainant elects to use a non-streamlined market dominance analysis.
(3) Parties may request permission from the arbitration panel to seek additional written document requests and interrogatories. The arbitration panel may grant such requests for exceptional circumstances.
(e)
(2)
(i) On the issue of market dominance, any evidence that would be inadmissible before the Board; and
(ii) Any non-precedential decisions, including prior decisions issued by an arbitration panel.
(f)
(g)
(2) Parties may request additional Waybill Sample data from the Director of the Office of Economics pursuant to § 1244.9(b)(4) of this chapter. Parties must make such requests by submitting a formal filing (with a “WB” docket prefix). The decision of the Director may be appealed to the Board pursuant to § 1115.1. In the event of an appeal, the party filing the appeal shall immediately inform the other parties to the arbitration and the arbitration panel. The arbitration panel shall immediately stay the arbitration proceeding. After the Board issues a decision ruling on the appeal of the Director's decision, the arbitration panel shall lift the stay, the arbitration shall continue, and all procedural time limits will be tolled. The Director's decision (and, if necessary, the Board's decision ruling on appeal of the Director's decision) will be published as part of the separate Waybill docket, but the decision(s) will not be published until the Board receives the confidential summary the parties are required to file pursuant to § 1108.29(e).
(a)
(b)
(c)
(d)
(a)
(2)
(b)
(1)
(ii) Subject to § 1108.27(e)(2), in determining the issue of market dominance, the arbitration panel under this subpart shall follow, at the complainant's discretion, either the streamlined market dominance test or the non-streamlined market dominance test.
(iii) The arbitration panel shall issue its decision on market dominance as part of its final arbitration decision.
(iv) The arbitration panel shall not consider evidence of product and geographic competition when deciding market dominance.
(v) The arbitration panel shall not consider evidence on the Limit Price Test when deciding market dominance.
(vi) If a carrier concedes that it possesses market dominance, the arbitration panel need not make a determination on market dominance and need only address the maximum lawful rate in the arbitration decision. Additionally, the parties may jointly request that the Board determine market dominance prior to initiating arbitration under this part.
(2)
(3)
(c)
(1) No copy of the arbitration decision shall be served on the Board except as is required under § 1108.31(a)(1).
(2) The arbitrators and parties shall have a duty to maintain the confidentiality of the arbitration decision, whether redacted or unredacted, and shall not disclose any details of the arbitration decision unless, and only to the extent, required by law.
(d)
(2) An arbitration decision under this subpart shall preclude the complainant(s) from filing any rate complaint for the movements at issue in the arbitration or instituting any other proceeding regarding the rates for the movements at issue in the arbitration, with the exception of appeals under § 1108.31. This preclusion shall last until the later of:
(i) Two years after the Joint Notice of Intent to Arbitrate; or
(ii) The expiration of the term of any prescription imposed by the arbitration decision.
(3) The preclusion will cease if the carrier increases the rate either: after a complainant is unsuccessful in arbitration or after a complainant has been awarded a prescription and the prescription has expired.
(e)
(1)
(i) Geographic region of the movement(s) at issue;
(ii) Commodities shipped;
(iii) Number of calendar days from the commencement of the arbitration proceeding to the conclusion of the arbitration;
(iv) Resolution of the arbitration, limited to the following descriptions: settled, withdrawn, dismissed on market dominance, challenged rate(s) found unreasonable/reasonable; and
(v) Any agreement to a different relief cap or period than set forth in § 1108.28(b).
(2)
(i) If issued, the Board's quarterly reports on the Small Rate Case Arbitration Program shall disclose only the five categories of information listed in paragraph (e)(1) of this section. The parties to the arbitration who filed the confidential summary shall not be disclosed.
(ii) If issued, the Board's quarterly reports on the Small Rate Case Arbitration Program shall be posted on the Board's website.
Arbitration decisions under this subpart shall have no precedential value, and their outcomes and reasoning may not be submitted into evidence or argued in subsequent arbitration proceedings conducted under this subpart or in any Board proceeding, except an appeal of the arbitration decision under § 1108.31.
(a)
(2)
(3)
(4)
(b)
(1) The decision is consistent with sound principles of rail regulation economics;
(2) A clear abuse of arbitral authority or discretion occurred;
(3) The decision directly contravenes statutory authority; or
(4) The award limitation was violated.
(c)
(d)
(2)
(i) A request for redaction may be filed under seal within 5 days after the date on which the Board serves the parties with the confidential version of its decision.
(ii) The Board will publish its decision(s) on any requests for redaction in a way that maintains the confidentiality of any information the Board determines should be redacted.
(e)
(f)
(g)
(h)
The Board will conduct an assessment of the Small Rate Case Arbitration Program to determine if the program is providing an effective means of resolving rate disputes for small cases. The Board's assessment will occur upon the completion of a reasonable number of arbitration proceedings such that the Board can conduct a comprehensive assessment, though not later than three years after start of the program. In conducting this assessment, the Board will obtain feedback from relevant parties. As part of the Board's assessment, it will study the cost to arbitrate a rate dispute as compared to the cost of adjudicating a formal rate case. Depending on the outcome of such review, the Board may determine that the arbitration program will be terminated, modified, and/or extended beyond the initial 5-year period.
Carriers that opt into the arbitration program under § 1108.23(a) will be exempt from having their rates challenged under Final Offer Rate Review if the program becomes operative. The exemption from Final Offer Rate Review will become operative upon publication of the Board's notice commencing the arbitration program required under § 1108.22(b) in the
5 U.S.C. 559; 49 U.S.C. 1321; 49 U.S.C. 11708.
* * * For arbitrations authorized under part 1108, subparts A and B, of this chapter, the Board's standard of
49 U.S.C. 1321, 10707, 11144, 11145.
(b) * * *
(4)
(i) The STB Waybill Sample is the only single source of the data or obtaining the data from other sources is burdensome or costly, and the data is relevant to issues in a pending formal proceeding before the Board or in arbitration matters under part 1108, subpart B, of this chapter (when seeking data beyond the automatic waybill data release under § 1108.27(g) of this chapter).
(ii) The requestor submits to the STB a written waybill request that complies with paragraph (e) of this section or is part of the automatic waybill data release under § 1108.27(g) of this chapter for use in arbitrations pursuant to part 1108, subpart B, of this chapter.
(iii) All waybill data must be returned to the STB, and the practitioner or firm must not keep any copies.
(iv) A transportation practitioner, consulting firm, or law firm must submit any evidence drawn from the STB Waybill Sample only to the Board or to an arbitration panel impaneled under part 1108, subpart B, of this chapter, unless the evidence is aggregated to the level of at least three shippers and will prevent the identification of an individual railroad. Nonaggregated evidence submitted to the Board will be made part of the public record only if the Board finds that it does not reveal competitively sensitive data. However, evidence found to be sensitive may be provided to counsel or other independent representatives for other parties subject to the usual and customary protective order issued by the Board or appropriate authorized official.
(v) When waybill data is provided for use in a formal Board proceeding, a practitioner or firm must sign a confidentiality agreement with the STB agreeing to the restrictions specified in paragraphs (b)(4)(i) through (iv) of this section before any data will be released. This agreement will govern access and use of the released data for a period of one year from the date the agreement is signed by the user. If the data is required for an additional period of time because a proceeding is still pending before the Board or a court, the practitioner or firm must sign a new confidentiality agreement covering the data needed for each additional year the proceeding is opened.
(vi) When waybill data is provided for use in arbitrations pursuant to part 1108, subpart B, of this chapter, the transportation practitioners, consulting firms, or law firms representing parties to the arbitration and each arbitrator must sign a confidentiality agreement with the STB agreeing to the restrictions specified in paragraphs (b)(4)(i) through (iv) of this section before any data will be released. The agreement with practitioners and firms will govern access and use of the released data for a period of one year from the date the agreement is signed by the user. If the data is required for an additional period of time because an arbitration or appeal of an arbitration is still pending before the Board or a court, the practitioner or firm must sign a new confidentiality agreement covering the data needed for each additional year the arbitration or appeal is pending. The agreement with each arbitrator will allow that arbitrator to review any evidence that includes confidential waybill data in a particular arbitration matter.
The following appendix will not appear in the Code of Federal Regulations.