Forest Service
International Trade Administration
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Air Force Department
Federal Energy Regulatory Commission
Food and Drug Administration
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U.S. Citizenship and Immigration Services
U.S. Immigration and Customs Enforcement
Fish and Wildlife Service
National Park Service
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Occupational Safety and Health Administration
Copyright Royalty Board
Federal Aviation Administration
National Highway Traffic Safety Administration
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Area Navigation (RNAV) route T-465 in the northcentral United States. The new RNAV route expands the availability of RNAV routing within the National Airspace System (NAS) in support of transitioning it from a ground-based to satellite-based navigation system.
Effective date 0901 UTC, April 20, 2023. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11 and publication of conforming amendments.
FAA Order JO 7400.11G, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Colby Abbott, Rules and Regulations Group, Office of Policy, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the route structure as necessary to preserve the safe and efficient flow of air traffic within the NAS.
The FAA published a notice of proposed rulemaking (NPRM) for Docket No. FAA-2022-1260 in the
United States Area Navigation Routes are published in paragraph 6011 of FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The RNAV route action listed in this document will be published subsequently in FAA Order JO 7400.11.
Subsequent to the NPRM, the FAA recognized the NPRM was published using Docket No. FAA-2202-1260, in error. The correct Docket No. is FAA-2022-1260. This rule corrects the Docket No. typographical error and changes the Docket No. for this action from “FAA-2202-1260” to “FAA-2022-1260”.
This document amends FAA Order JO 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the
This action amends 14 CFR part 71 by establishing RNAV route T-465 between the Des Moines, IA, area and the Minneapolis, MN, terminal area. The new RNAV route is described below.
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant
The FAA has determined that this action of establishing RNAV route T-465 between the Des Moines, IA, VORTAC and the NITZR, MN, WP qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Pension Benefit Guaranty Corporation.
Final rule; response to comments.
The Pension Benefit Guaranty Corporation (PBGC) published a final rule in the
This final rule is effective on January 26, 2023.
Daniel S. Liebman (
On July 9, 2021, the Pension Benefit Guaranty Corporation (PBGC) issued an interim final rule with a request for comment, adding to its regulations a new part 4262 to implement the requirements under section 9704 of the American Rescue Plan Act of 2021, “Special Financial Assistance Program for Financially Troubled Multiemployer Plans.”
PBGC's legal authority for this rulemaking comes from section 4262 of the Employee Retirement Income
Section 4262 of ERISA creates a program to enhance retirement security for millions of Americans by providing SFA to certain financially troubled multiemployer pension plans upon application for assistance. Section 4262 of ERISA sets forth the provisions for SFA, including which plans are eligible to apply, the cutoff date for applications, rules relating to actuarial assumptions and PBGC's determinations on applications, and restrictions on the use of SFA. It also provides that certain plans with suspended benefits must reinstate those benefits prospectively and provide make-up payments to restore previously suspended benefits. A plan receiving SFA under section 4262 has no obligation to repay SFA.
On July 9, 2021, PBGC issued an interim final rule on Special Financial Assistance by PBGC (29 CFR part 4262). Part 4262 provides guidance to multiemployer pension plan sponsors on eligibility for SFA, determining the amount of SFA, content of an application for SFA, the process of applying, PBGC's review of applications, restrictions and conditions, and reporting and notice requirements. On July 8, 2022, with the approval of PBGC's board of directors, PBGC published a final rule implementing changes to the SFA program, including changes to the methodology to calculate SFA, permissible investments for SFA funds (SFA received and any earnings thereon), the application of conditions on a plan that merges with a plan that receives SFA, and the withdrawal liability conditions that apply to a plan that receives SFA.
In the July 2022 final rule, PBGC provided for a 30-day comment period solely on the condition requiring a phased recognition of SFA in a plan's determination of withdrawal liability in § 4262.16(g)(2). PBGC invited comments on whether the condition requiring a phased recognition of SFA in a plan's determination of withdrawal liability strikes the correct balance among stakeholders, or if a different condition might work better. Additionally, PBGC expressed its interest in hearing from stakeholders about what the expected impact of such a condition is likely to be and whether additional clarification or guidance would be useful.
PBGC received six comment letters on the conditions relating to the calculation of withdrawal liability. PBGC received one comment letter on permissible investments that was not relevant to the request for comments and, consequently, is not discussed in this document. The next section of this preamble discusses the conditions under § 4262.16(g), the six comment letters on the conditions relating to the calculation of withdrawal liability, PBGC's responses to the comments, and a summary of changes made in this final rule.
To ensure that SFA is used to pay benefits and the expenses related to those benefit payments, section 4262(m)(1) of ERISA expressly authorizes PBGC, in consultation with the Secretary of the Treasury, to impose reasonable conditions on an eligible multiemployer plan that receives special financial assistance relating to certain aspects of plan terms or operations. These conditions are described in § 4262.16 and include conditions that relate to withdrawal liability.
Under sections 4201 through 4225 of ERISA, when a contributing employer withdraws from an underfunded multiemployer plan, the plan sponsor assesses withdrawal liability against the employer. Withdrawal liability represents a withdrawing employer's proportionate share of the plan's unfunded benefit obligations and is an important source of income for the plan. To assess withdrawal liability, the plan sponsor must determine the withdrawing employer's (1) allocable share of the plan's unfunded vested benefits (UVBs) (the value of nonforfeitable benefits that exceeds the value of plan assets) as of the end of the plan year before the employer's withdrawal, or as otherwise provided under section 4211, and (2) annual withdrawal liability payment and amortization period under section 4219.
Under § 4262.16(g)(1), the interest assumptions used in determining UVBs for purposes of calculating withdrawal liability under section 4213(c) of ERISA must be the interest assumptions in appendix B to 29 CFR part 4044. The prescribed interest assumptions must be used until the later of: (1) 10 years after the end of the plan year in which the plan first receives payment of SFA; and (2) the last day of the plan year by which the plan projects that it will exhaust any SFA assets as determined under § 4262.4(b) (under which benefits and expenses are assumed to be paid exclusively from SFA assets until exhausted), extended by the number of years, if any, that the first plan year of payment is after the plan year that includes the SFA measurement date. The beginning of the 10-year period is the last day of the plan year in which the plan receives payment of SFA. For example, if a calendar year plan's SFA measurement date is in 2022, the plan receives payment of SFA in 2023, and had projected that it would exhaust SFA assets in 2051, the exhaustion year for the plan to use the prescribed interest assumptions would be 2052 (29 years + 1 year). Under this example, employers withdrawing before 2054 would have UVBs determined using the prescribed interest rates. While a plan is not required to use mass withdrawal interest assumptions beyond the specified period, the regulation does not preclude the use of settlement rates thereafter to determine withdrawal liability, as otherwise permitted by ERISA.
Under § 4262.16(g)(2), a plan that receives SFA is required to recognize over time the amount of SFA received by the plan for the purpose of determining the plan's UVBs for calculating withdrawal liability.
Section 4262.16(g)(2) provides the procedures for determining the amount of SFA that is phased in for withdrawal liability purposes each year over the projected life of the SFA assets (determined as if SFA assets,
To calculate the amount of SFA assets excluded for each plan year during the phase-in period, the plan must take the total amount of SFA paid to the plan and multiply that by a fraction, the numerator of which is the number of years remaining in the phase-in period as of the date that the UVBs are being determined, and the denominator is the total number of years in the phase-in period. For a plan that receives payment of SFA under the interim final rule and receives a supplemental payment, the total amount (payment under the interim final rule and supplemental payment) will be included in the phased recognition of SFA assets in determining UVBs for withdrawals occurring in plan years after the plan year the supplemental payment is received by the plan. For withdrawals that occur after the date the supplemented application is filed and before the plan year after the plan year in which the supplemental payment is made, only the payment of SFA under the interim final rule is included in the phased recognition of SFA assets.
As provided in § 4262.16(g)(2)(xv), this condition is applicable to a plan in determining withdrawal liability for withdrawals occurring after the plan year in which the plan receives payment of SFA. However, for a plan that received SFA under the terms of the interim final rule, this condition will not apply unless the plan files a supplemented application. If the plan files a supplemented application, this condition applies to the plan in determining withdrawal liability for withdrawals occurring on or after the date the plan files the supplemented application. A plan may choose to file a supplemented application if it has already received SFA under the terms of the interim final rule.
Three examples are included in § 4262.16(g)(2) to illustrate the procedures for the phased recognition of SFA assets.
PBGC determined that requiring phased recognition of SFA as a plan asset is a reasonable condition under section 4262(m) of ERISA because SFA does not result from employer contributions, but is a transfer of taxpayer funds to statutorily eligible financially distressed plans for the purpose of enabling these plans to pay benefits and expenses. That purpose is reflected in sections 4262(j)(1) and 4262(
The phased recognition of SFA as a plan asset is consistent with ERISA, the Internal Revenue Code (the Code), and actuarial practice. It is conceptually similar to the smoothed recognition of plan assets for purposes of calculating a plan's minimum funding requirements. The Department of the Treasury regulation at 26 CFR 1.412(c)(2)-1(b) permits multiemployer plans to “smooth” plan asset values when determining minimum funding by averaging the value of plan assets over up to 5 years rather than using the current fair market value of plan assets. It is also roughly comparable to the gradual recognition of SFA in determining minimum funding. Section 432(k)(2)(D) of the Code requires that SFA be disregarded in determining required contributions. Internal Revenue Service (IRS) Notice 2021-38, 2021-30 IRB 155, provides that SFA is recognized in the plan's funding standard account over time, in that any benefit or plan expense paid from the SFA account generates an actuarial gain that is amortized over 15 years.
In response to the July 2022 final rule, three commenters generally supported the added withdrawal liability condition under § 4262.16(g)(2) or said that the phased recognition of SFA funds as a plan asset was an improvement over the interim final rule that required a plan that received SFA to immediately recognize the SFA funds as a plan asset. One commenter opposed the condition because of separation-of-powers principles. PBGC disagrees with this comment. As explained in the July 2022 final rule, Congress chose to expressly delegate authority in section 4262(m) of ERISA to PBGC to impose reasonable conditions on a plan that receives SFA relating to withdrawal liability. This grant by Congress expands PBGC's authority beyond its existing authority under section 4002(b)(3) and sections 4201 through 4225 of ERISA to regulate withdrawal liability and authorizes PBGC to provide rules that define how SFA should be treated in the calculation of withdrawal liability. The condition in § 4262.16(g)(2) reflects the authority Congress delegated to PBGC to oversee the SFA program and ensure that SFA is preserved for the payment of benefits and expenses.
One commenter was concerned that the phased recognition of SFA will not be effective after the first few years following a plan's receipt of SFA and suggested several ways of strengthening the condition. One suggestion was to apply the condition to all plans that receive SFA (including plans that have already applied for and received SFA under the terms of the interim final rule without requiring that the plan file a supplemented application) because contributing employers to these plans should not be treated more favorably in the calculation of withdrawal liability than employers in plans that have not yet been able to apply for SFA. Alternatively, the commenter suggested permitting a plan that received SFA before August 8, 2022, the option to adopt the condition without having to file a supplemented application. Another suggestion was for PBGC to affirm that the amount of excluded SFA should include the investment return on SFA for each year in the phase-in period. An additional suggestion was to apply the condition over the full 30-year period that SFA is intended to cover, but that a compromise might be to amortize the SFA over no fewer than a stated period of years, such as 20 years.
PBGC considered these suggestions but decided not to adopt them. PBGC provided a process in the July 2022 final rule for a plan that receives SFA under the terms of the interim final rule to have the withdrawal liability condition in § 4262.16(g)(2) apply to the plan. The condition applies to a plan in determining withdrawal liability for a withdrawal occurring on or after the date the plan files a supplemented application. The supplemented application used for this purpose is not burdensome for a plan to file. Regarding the amount to be phased-in, PBGC provided examples in the July 2022 final rule that make it clear that investment returns are not included in the calculation of the amount excluded. PBGC also considered requiring the condition to cover a longer period of time, but decided not to adopt this suggestion. A longer period, such as requiring the condition to cover 20 or 30
Another commenter who supported the phased-recognition of SFA over the projected payout period recognized that the length of that period may vary based on characteristics of the SFA-recipient plan. PBGC agrees with this comment. The condition in § 4262.16(g)(2) is reasonable and appropriate for plans because it applies only through the end of the plan year by which each plan projects it will exhaust SFA assets.
Some of the suggestions made by commenters are beyond the scope of this rulemaking. For example, one commenter suggested that PBGC impose a condition so that an employer that has an obligation to contribute to a plan for work performed in the building and construction industry that ceases operations or transfers operations outside the jurisdiction of its collective bargaining unit will incur withdrawal liability. Under section 4203(b) of ERISA, such employers are not considered to have withdrawn from the plan.
Two commenters requested that PBGC review the impact on the assessment of withdrawal liability when a plan that receives SFA is deemed to be in critical status through 2051. Under the Multiemployer Pension Reform Act of 2014, critical status plans must ignore certain contribution increases in calculating UVBs and withdrawal liability. One of these commenters suggested that PBGC add a condition to require plans that receive SFA to include contribution increases under a rehabilitation plan for withdrawal liability purposes. This issue raises interpretive issues about sections 305(g)(3), 305(d)(1)(B), and 305(f)(1)(B) of ERISA over which the Secretary of the Treasury has interpretive jurisdiction pursuant to section 101 of Reorganization Plan No. 4 of 1978 (5 U.S.C. App.). PBGC is continuing to examine these issues with the Department of the Treasury and, if appropriate, may issue additional guidance.
PBGC received two comment letters requesting exceptions from the withdrawal liability conditions. One commenter requested an exception for single-owner professional employers stating that the phase-in of SFA does not provide sufficient relief from the withdrawal liability such employers could be assessed. The commenter proposed that PBGC provide for full consideration of SFA in the calculation of withdrawal liability for single-owner professional employers and relax the condition in § 4262.16(g)(1) requiring the use of a specific interest rate assumption. PBGC declines to add an exception for single-owner professional employers. The purpose of SFA is to help plans pay for benefits and plan expenses and not to indirectly subsidize employers to withdraw from these plans. PBGC is not making this change because if PBGC provided an exception for a special class, such as, single-owner professional employers, it would subsidize the withdrawal of these employers rather than discourage employer withdrawal.
Another commenter requested that PBGC grant exceptions from or modifications to the withdrawal liability conditions under § 4262.16(g)(1) and (2) for plans that have unique facts and circumstances, such as a plan that uses an alternative withdrawal liability allocation method, if applying the condition to the plan would result in a lower assessment of withdrawal liability, thereby incentivizing contributing employers to withdraw.
After considering the comment, PBGC determined that adding a process for a plan to request an exception from the withdrawal liability conditions in § 4262.16(g)(1) and (2) under narrow circumstances is reasonable. The conditions on withdrawal liability are intended to ensure that SFA is preserved for the payment of benefits and expenses and not used to subsidize employer withdrawals. If application of the conditions would result in an increase in employer withdrawals, the plan would be negatively impacted and the purpose of the conditions would not be met. Accordingly, PBGC is adding § 4262.16(g)(3), which provides a process for a plan sponsor to request approval from PBGC for an exception from the withdrawal liability conditions in § 4262.16(g)(1) and (2) under specific circumstances.
Under the exception process, a plan sponsor may request an exception from the withdrawal liability conditions by demonstrating to the satisfaction of PBGC that the exception lessens the risk of loss to plan participants and beneficiaries and does not increase expected employer withdrawals. The plan sponsor must also demonstrate that the exception does not increase the amount of the plan's SFA or unreasonably increase PBGC's risk of loss. A request for PBGC approval of an exception must be submitted by the plan sponsor or its duly authorized representative and must contain identifying, actuarial, and financial information described in § 4262.16(g)(3).
The exception process added by this final rule is separate from the SFA application process. A request for an exception from the withdrawal liability conditions may be submitted to PBGC either before the plan's initial application for SFA is filed or before a revised application is filed. A plan sponsor requesting an exception is encouraged to have a pre-submission consultation with PBGC.
When an application for SFA is prepared, a plan is required to take into account plan assets in determining the amount of requested SFA. Under § 4262.4(c)(4), this includes withdrawal liability payments made and expected to be made to the plan during the SFA coverage period taking into account a reasonable allowance for amounts considered uncollectible. Accordingly, if a plan sponsor submits a request for an exception from the withdrawal liability conditions, the plan's application for SFA must take the exception into account in the determination of the withdrawal liability payments expected to be made to the plan and the amount of requested SFA.
As described in the July 2022 final rule, PBGC's adoption of a condition requiring a phased recognition of SFA in a plan's determination of withdrawal liability under § 4262.16(g)(2) is consistent with PBGC's statutory authority to impose reasonable conditions on plans that receive SFA under section 4262(m) of ERISA. It is also more effective, along with the other conditions, for achieving the intended purposes of that statutory authority—to help enable plans that receive SFA to pay benefits due through 2051 and to preclude or disincentivize plans and employers from taking actions that have the potential to accelerate plan insolvencies. This condition was adopted after consideration of comments received on the withdrawal liability condition requiring the use of specified interest assumptions included in the interim final rule. PBGC provided for a comment period of 30 days on the new withdrawal liability condition in § 4262.16(g)(2) because it is an area of complexity that PBGC recognized may benefit from additional public comment. PBGC noted this additional opportunity for public comment on the condition would allow PBGC to assess the effectiveness of the withdrawal liability
As discussed earlier in the preamble, in response to this comment solicitation, PBGC received comments on the phase-in condition in § 4262.16(g)(2) as well as on the condition requiring the use of specified interest assumptions in § 4262.16(g)(1). Following consideration of these comments, PBGC determined that it would be appropriate to provide a process for plans to apply for an exception to the conditions in § 4262.16(g)(1) and (2), that would be available where application of the conditions would result in an increase in employer withdrawals. Enabling a plan to apply for an exception from the withdrawal liability conditions based on the specific facts and circumstances of the plan will provide flexibility to ensure that the statutory purposes of SFA to pay for benefits and administrative expenses, as described earlier in this preamble, are met.
The Administrative Procedure Act provides at 5 U.S.C. 553(b) that notice and comment requirements do not apply when an agency, for good cause, finds that they are impracticable, unnecessary, or contrary to the public interest. An exception is also provided at 5 U.S.C. 553(d)(3) to the requirement of a 30-day delay before the effective date of a rule “for good cause found and published with the rule.” As described in PBGC's interim final rule and July 2022 final rule, Congress expressed a clear urgency for PBGC to implement an SFA program to get appropriate assistance to eligible plans as quickly as possible. Congress authorized PBGC to prioritize the filing of applications for eligible plans with the greatest need, during the first 2 years after March 11, 2021, and PBGC provided for such a process. PBGC is receiving and processing applications filed by these plans. Under this final rule, a plan eligible for SFA may apply for an exception to the withdrawal liability conditions before the plan files its SFA application. It is in the interest of a plan eligible to apply during the priority period to be able to determine if the plan should apply for an exception to the withdrawal liability conditions. Any delay in the effective date of the final rule would be contrary to the interests of the plan's participants and beneficiaries and could cause a delay in the submission of the plan's application and the plan's receipt of SFA. Accordingly, PBGC has determined that the public interest is best served by issuing this final rule expeditiously, without further opportunity for notice and comment, and that good cause exists for making the exception process set forth in this amendment effective less than 30 days after publication.
PBGC is making this rule effective on January 26, 2023.
Pursuant to Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (also known as the Congressional Review Act or CRA) (5 U.S.C. 801
Because of the urgent need for the SFA program to distribute appropriate financial assistance to eligible plans quickly, PBGC has determined that this final rule must take effect January 26, 2023. As described earlier in the preamble, this effective date allows eligible plans to apply for an exception from the withdrawal liability conditions and apply for SFA without unnecessary delay. Under the circumstances, PBGC has determined that public interest is best served by making this final rule effective on January 26, 2023. PBGC does not want to unduly delay providing financial assistance to plans.
Under Executive Order (E.O.) 12866, OMB reviews any regulation determined to be a “significant regulatory action.” Section 3(f) of E.O. 12866 defines a “significant regulatory action” as an action that is likely to result in a rule that: (1) has an annual effect on the economy of $100 million or more, or adversely affects in a material way a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as economically significant); (2) creates serious inconsistency or otherwise interferes with an action taken or planned by another agency; (3) materially alters the budgetary impacts of entitlement grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the E.O.
OMB has determined that this final rule is economically significant under section 3(f)(1) and has therefore reviewed this rule under E.O. 12866.
E.O. 13563 supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review that were established in E.O. 12866, emphasizing the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. It directs agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, and public health and safety effects, distributive impacts, and equity).
PBGC has provided an assessment of the potential benefits, costs, and transfers associated with the final rule.
As discussed earlier in the preamble, PBGC published a final rule on July 8, 2022, to modify its regulations under part 4262, which implement the requirements under ARP. It is through this program that PBGC is providing SFA to eligible multiemployer pension plans from a fund established by ARP for SFA purposes and credited with transfers from the general fund of the Department of the Treasury.
In the Regulatory Impact Analysis of the July 2022 final rule, PBGC provided estimates of the transfer amounts of the SFA program using Multiemployer Pension Insurance Modeling System (ME-PIMS), PBGC's stochastic modeling tool. The aggregate SFA was estimated to be approximately $82.3 billion in assistance payments paid to approximately 200 plans and $150 million to PBGC to administer the SFA program. PBGC further estimated that plans that received financial assistance from PBGC under section 4261 of ERISA
The addition of § 4262.16(g)(3), to provide plans with an exception process for the withdrawal liability conditions is expected in rare circumstances to impact the assumptions selected by the plan for projecting future withdrawal liability payments and ongoing employer contributions for purposes of determining the SFA amount in the plan's application. In the absence of an exception process under § 4262.16(g)(3), some plans may expect an increase in employer withdrawals and a decrease in employer contributions following receipt of SFA. Consequently, without the exception, these plans would be expected to incorporate these anticipated employer withdrawals into their withdrawal liability payment assumption, which could increase the SFA requested in their applications. Although this circumstance would be expected to be limited to very few plans, PBGC estimates that the addition of § 4262.16(g)(3) could decrease overall SFA program transfers by $1 to $2 billion.
As discussed earlier in the preamble, PBGC considered regulatory alternatives based on the public comments provided during the 30-day comment period on the withdrawal liability condition in § 4262.16(g)(2) included in the July 2022 final rule. Under one such regulatory alternative, PBGC considered extending the period of time for the phased recognition of SFA in a plan's determination of withdrawal liability. PBGC decided not to adopt this suggestion because a longer period, such as requiring the condition to cover 20 or 30 years, may not be reasonable for plans that receive a small amount of SFA and for the contributing employers to those plans. PBGC also considered leaving the withdrawal liability condition unchanged. However, it was decided that the addition of a narrow exception process under § 4262.16(g)(3) will enhance the ability of plans, based on their specific facts and circumstances, to retain employers and minimize the likelihood that the receipt of SFA could induce employers to withdraw from these plans.
Because PBGC is not publishing a general notice of proposed rulemaking under 5 U.S.C. 553(b), the regulatory flexibility analysis requirements of the Regulatory Flexibility Act do not apply. See 5 U.S.C. 601(2).
With this final rule, PBGC is submitting changes to the collection of information, previously approved under control number 1212-0074, to the Office of Management and Budget (OMB) for review and approval under the Paperwork Reduction Act. OMB's decision regarding this information collection request will be available at
Under § 4262.16(g)(3), PBGC is adding a request for a determination from PBGC for approval of an exception from the withdrawal liability conditions under § 4262.16(g)(1) and (2). PBGC estimates that, beginning in 2023, it will receive an average of only one request per year with an average annual hour burden of 8 hours and an average annual cost burden of $25,000. In addition, under the circumstances described in § 4262.16(d), (f), and (h), a plan sponsor may file a request for a determination from PBGC for approval of an exception from SFA conditions relating to reductions in contributions, transfers or mergers, and settlement of withdrawal liability. PBGC estimates that beginning in 2023, PBGC will receive an average of 2.2 requests per year for these additional determinations. PBGC needs the information required for a request for determination to determine whether to approve an exception from each of the specified conditions of receiving SFA. PBGC estimates that, beginning in 2023, PBGC will receive an average of 3.2 requests per year for all determinations. PBGC estimates an average annual hour burden of 15.6 hours and average annual cost burden of $44,000.
The estimated aggregate average annual hour burden for the next 3 years for the information collection in part 4262 is 878.6 hours for employer and fund office administrative, clerical, and supervisory time. The estimated aggregate average annual cost burden for the next 3 years for the information collection request in part 4262 is $2,130,400, for approximately 5,326 contract hours assuming an average hourly rate of $400 for work done by outside actuaries and attorneys. The actual hour burden and cost burden per plan will vary depending on plan size and other factors.
Employee benefit plans, Pension insurance, Pensions, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, PBGC is amending 29 CFR part 4262 as follows:
29 U.S.C. 1302(b)(3), 1432.
(g) * * *
(3)
(i) Name, address, email, and telephone number of the plan sponsor and the plan sponsor's authorized representatives, if any.
(ii) The nine-digit employer identification number (EIN) assigned to the plan sponsor by the IRS and the three-digit plan identification number (PN) assigned to the plan by the plan sponsor, and, if different, the EIN and PN last filed with PBGC. If an EIN or PN has not been assigned, that should be indicated.
(iii) Most recent plan document or restatement of the plan document and all subsequent amendments adopted (if any) and most recent Declaration of Trust.
(iv) Administrative manuals and other documents governing the plan's assessment or administration of withdrawal liability.
(v) A copy of the most recent actuarial valuation performed for the plan before the date of the plan's submission of a request for approval under this paragraph (g)(3), and the actuarial valuation performed for each of the 2 plan years immediately preceding the most recent actuarial valuation.
(vi) A copy of the plan actuary's most recent certification under section 305(b)(3) of ERISA, including a detailed description of the assumptions used in the certification, and the basis under which they were determined. The description must include information about the assumptions used for the projection of future contributions, withdrawal liability payments, and investment returns, and any other assumption that may have a material effect on projections.
(vii) A statement of whether the plan sponsor is requesting an exception from the condition under paragraph (g)(1) or (2) of this section or both and a demonstration of how the proposed exception lessens the risk of loss to plan participants and beneficiaries and does not increase expected employer withdrawals. The statement must also include a demonstration that the exception does not increase the amount of the plan's special financial assistance or unreasonably increase PBGC's risk of loss.
(viii) A list of employers contributing greater than 5 percent of plan contributions in a plan year.
(ix) A certification by the plan's actuary that the amount of special financial assistance that will be requested in the plan's application for special financial assistance will be determined assuming the exception will be approved.
(x) A detailed statement certified by an enrolled actuary of the effect of the proposed exception, and a demonstration for 30 years that the estimated withdrawal liability payments and contributions with the proposed exception exceed the estimated withdrawal liability payments and contributions without the proposed exception. The demonstration must show an aggregate of all withdrawal liability payments and an aggregate of all contributions for each year in the 30-year period and include representative examples of employer withdrawal liability payments and contributions. An individual employer's withdrawal liability assessment reflecting the proposed exception must be no less than what would be assessed without the proposed exception.
(xi) Any additional information PBGC determines it needs to review a request for approval of a proposed exception.
Issued in Washington, DC.
United States Patent and Trademark Office, Department of Commerce.
Final rule.
This final rule adopts, without change, an interim final rule with a request for comments published in the
Will Covey, Deputy General Counsel and Director for the Office of Enrollment and Discipline (OED Director), at 571-272-4097.
The USPTO adopts a final rule amending 37 CFR 11.11(a)(1) and (a)(3) to eliminate provisions concerning the voluntary CLE certification for registered patent practitioners and persons granted limited recognition to practice in patent matters before the USPTO under 37 CFR 11.9.
Effective August 3, 2020, 37 CFR 11.11(a)(3) provided that patent practitioners could voluntarily certify completion of CLE to the OED Director (Setting and Adjusting Patent Fees During Fiscal Year 2020, 85 FR 46932). Section 11.11(a)(1) provided that the OED Director may publish whether each registered patent practitioner or person granted limited recognition under 37 CFR 11.9 has voluntarily certified that they completed the specified amount of CLE in the preceding 24 months.
On October 9, 2020, the USPTO published proposed CLE guidelines with a request for comments (Proposed Continuing Legal Education Guidelines, 85 FR 64128). The USPTO received public comments through January 7, 2021. On June 10, 2021, the USPTO published a
After receiving and considering stakeholder feedback on the certification process and possible details regarding implementation, the USPTO determined that it will not implement the voluntary CLE certification program at this time. Accordingly, on November 14, 2022, the USPTO published an interim final rule (IFR) eliminating voluntary CLE certification and recognition provisions from the rules governing practice in patent matters before the Office. The IFR provided an opportunity for interested persons to submit comments on or before December 14, 2022. The USPTO did not receive any comments. Based on the rationale set forth in the IFR, the USPTO adopts the IFR without change.
In the future, the Office may reconsider CLE reporting for patent practitioners, and nothing in this notice is intended to restrict or prohibit such action at a later time.
The USPTO amends § 11.11 to remove the last sentence in paragraph (a)(1) to reflect the elimination of the voluntary CLE certification for registered patent practitioners and individuals granted limited recognition to practice in patent matters before the USPTO under 37 CFR 11.9, and to remove the entirety of paragraph (a)(3).
Accordingly, prior notice and an opportunity for public comment for the changes in this rulemaking are not required pursuant to 5 U.S.C. 553(b) or (c), or any other law.
Moreover, the Office, pursuant to the authority at 5 U.S.C. 553(b)(B), finds good cause to adopt this final rule without prior notice and an opportunity for public comment, as such procedures would be contrary to the public interest. This rule will make final the removal of provisions related to voluntary CLE certification from the regulations at 37 CFR 11.11(a) to avoid any confusion as to the status of the program. Although the voluntary CLE certification program was codified in the regulations, it was never implemented, and no patent practitioner participated in the program. Implementing this interim rule without prior notice and an opportunity for public comment is in the public interest because the time needed to do so would further delay the removal of the regulations and could lead to confusion as to the current status of the program among practitioners who practice before the USPTO.
This final rule will eliminate the provisions related to voluntary CLE certification. Because the voluntary CLE certification program was never implemented, no registered patent practitioners or persons granted limited recognition to practice in patent matters before the USPTO will be affected. Accordingly, the changes are expected to be of minimal or no additional burden to those practicing before the Office, and this rulemaking will not have a significant economic impact on a substantial number of small entities.
Administrative practice and procedure, Inventions and patents, Lawyers, Reporting and recordkeeping requirements.
Fish and Wildlife Service, Interior.
Final rule; delay of effective date.
We, the U.S. Fish and Wildlife Service (Service), are delaying the effective date of a final rule we published on November 30, 2022, reclassifying the northern long-eared bat (
The effective date of the final rule amending 50 CFR part 17, published November 30, 2022, at 87 FR 73488, is delayed until March 31, 2023.
This final rule is available on the internet at
Shauna Marquardt, Field Supervisor, U.S. Fish and Wildlife Service, Minnesota—Wisconsin Ecological Services Field Office, 4101 American Boulevard East, Bloomington, MN 55425; telephone 952-252-0092. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States.
On November 30, 2022, we published in the
Currently, the northern long-eared bat is listed as a threatened species under the Act (see 80 FR 17974; April 2, 2015) with a species-specific rule issued under section 4(d) of the Act (hereafter, “section 4(d) rule”) (see 81 FR 1900; January 14, 2016). When the November 30, 2022, final rule goes into effect, the reclassification of the northern long-eared bat to an endangered species will nullify the section 4(d) rule that currently tailors prohibitions and exceptions to the prohibitions necessary and advisable for the species. We recognize that the change to endangered status will result in questions and concerns about establishing compliance under the Act for forestry, wind energy, infrastructure, and many other projects within the 37 States that comprise the range of the northern long-eared bat. We are committed to working proactively with stakeholders to conserve and recover northern long-eared bats while reducing impacts to landowners, where possible and practicable. Thus, we are working to finalize tools that will help guide project managers through section 7 consultation once the reclassification of the northern long-eared bat takes effect to prevent delay for projects currently reviewed under the section 4(d) rule. We are also developing an online determination key that will provide predetermined consultation outcomes and automatic project concurrence for some projects as well as voluntary guidance for wind facilities and private activities that involve habitat modification. Delaying the effective date will allow us to finalize these documents and communicate with external partners.
Over the last 3 years, we have completed consultation under section 7(a)(2) of the Act on 24,480 projects across the 37-State range for the northern long-eared bat. Many of these projects are not complete. Under the 4(d) rule, incidental take of the northern long-eared bat was not prohibited except in certain situations. With the final rule reclassifying the northern long-eared bat as endangered, incidental take of the species that is reasonably certain to occur as a result of some of these actions would now be prohibited, absent an incidental take statement (ITS) from the Service in accordance with section 7(o)(2) of the Act. Therefore, when the final rule becomes effective, numerous Federal agencies will need to reinitiate consultation with the Service, and the Service must develop and provide biological opinions and incidental take statements with terms and conditions to ensure any taking of the northern long-eared bat that occurs as a result of each of the subject actions is not a prohibited taking
To date, we are aware of 3,095 projects for which we will need to provide an ITS when the November 30, 2022, reclassification rule goes into effect and the section 4(d) rule is nullified. These projects include road and bridge construction and maintenance projects across the 37-State range and forest management activities intended to prevent wildfires and sustain the health, diversity, and productivity of the Nation's forests, which also provide important northern long-eared bat habitat. This number does not include new projects or ongoing projects, of the 24,480 previously mentioned, that may be impacted by a lack of the conservation tools and guidance documents that are currently under development. Without these final tools in place, many new and existing projects that require consultation will likely experience project delays. The tools and guidance documents will also help private landowners evaluate their risk of taking northern long-eared bats; therefore, non-Federal projects may also be delayed as entities determine whether or not they need take coverage for their activities under section 10(a)(1)(B) of the Act. We would not be meeting the intent of the Act to provide required protections for listed species, and our agency's “due and timely execution of its functions” under the Act would be unavoidably prevented.
This 60-day delay of the effective date of the November 30, 2022, final rule (87 FR 73488)—based on the good cause articulated below—is for the purpose of preventing confusion and disruption for Federal agencies in the implementation of section 7 of the Act. During this period, we will finalize the guidance and tools that are under development and communicate with external partners to minimize project delays. We are, therefore, delaying the effective date of the final rule from January 30, 2023, to March 31, 2023.
Our delay of the effective date of the reclassification of the northern long-eared bat as an endangered species from January 30, 2023, to March 31, 2023, without opportunity for public comment, effective immediately upon publication of this document in the
As noted above, we are currently developing tools that will aid in the conservation and recovery of the northern long-eared bat. These tools are necessary to for the Service to review a large number of projects in a short period of time and ensure that projects proceed while necessary and appropriate conservation measures are implemented. Our agency's “due and timely execution of its functions” under the Act would be unavoidably prevented if we allow the effective date to be triggered without the conservation tools and guidance described above. See S. Doc. No. 248, 79th Cong., 2d Sess. At 200 (1946). That is, if the November 30, 2022, final rule reclassifying the northern long-eared bat as an endangered species under the Act (87 FR 73488) becomes effective on January 30, 2023, the 4(d) rule will be nullified and a large number of projects will require re-initiation of consultation under section 7(a)(2) of the Act without proper guidance in place to streamline consultation while ensuring consistent application of measures for the conservation of the northern long-eared bat. Thus, at least 3,095 ongoing projects will be suspended and planned projects delayed, and we will not have met our obligations under the Act to provide required protections for listed species. See
Specifically, once the reclassification becomes effective, Federal agencies will have to work with the Service to determine whether and for which actions we need to provide an ITS per 50 CFR 402.14(i)(1) while also ensuring that these actions are not likely to jeopardize the species. The ITS would include terms and conditions for the Federal agencies to implement to ensure that the taking of the northern long-eared bat that occurs is not a prohibited taking when the November 30, 2022, final rule becomes effective. A lack of tools and guidance that would streamline consultations could lead to confusion and disruption for Federal agencies with follow-on effects to Federal contractors and any project receiving Federal funds. Even if the November 30, 2022, final rule were to become effective only briefly during a public comment period, the level of uncertainty with respect to the Service's conservation direction would cause significant confusion and disruption in the section 7(a)(2) consultation process and impede the Federal agencies from executing their conservation mandates. We also expect confusion and project delays for non-Federal projects as entities determine whether or not they need take coverage for their activities under section 10(a)(1)(B) of the Act. The tools and guidance documents will also help private landowners evaluate their risk of taking northern long-eared bats.
In sum, we find that the totality of the circumstances here—the potential for many projects to be delayed and the threat to the Service's execution of its statutory functions, among other issues—indicate that there is good cause to forgo notice and comment procedures. It is impractical and contrary to the public interest for the Service to provide notice and an opportunity to comment on a 60-day delay of the effective date of January 30, 2023, for the November 30, 2022, final rule (87 FR 73488).
We also find that there is good cause to make this rule effective immediately instead of waiting until 30 days after publication for it to become effective. The APA normally requires this 30-day “grace period” to give affected parties time to adjust their behavior before a final rule takes effect. See,
We, therefore, conclude that we have good cause to issue this final rule, effective immediately, delaying the effective date of the November 30, 2022, final rule (87 FR 73488) from January 30, 2023, to March 31, 2023.
The authorities for this action are 16 U.S.C. 1361-1407, 1531-1544, and 4201-4245, unless otherwise noted; and 5 U.S.C. 551
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; inseason adjustments to biennial groundfish management measures.
This final rule announces routine inseason adjustments to management measures in commercial and recreational groundfish fisheries. This action is intended to allow fishing vessels to access more abundant groundfish stocks while protecting rebuilding stocks.
This final rule is effective January 26, 2023.
Dr. Sean Matson, phone: 206-526-6187 or email:
The Pacific Coast Groundfish Fishery Management Plan (PCGFMP) and its implementing regulations at title 50 in the Code of Federal Regulations (CFR), part 660, subparts C through G, regulate fishing for over 90 species of groundfish seaward of Washington, Oregon, and California. The Pacific Fishery Management Council (Council) develops groundfish harvest specifications and management measures for 2-year periods (biennia). NMFS published the final rule to implement harvest specifications and management measures for the 2023-2024 biennium for most species managed under the PCGFMP on December 16, 2022 (87 FR 77007). The management measures set at the start of the biennial harvest specifications cycle help the various sectors of the fishery attain, but not exceed, the catch limits for each stock. The Council, in coordination with Pacific Coast Treaty Indian Tribes and the States of Washington, Oregon, and California, recommends adjustments to the management measures during the fishing year to achieve this goal.
At its November 2022 meeting, the Council recommended modifying fixed gear trip limits for limited entry (LE) and open access (OA) sablefish, north of 36° N latitude, for LE canary rockfish north and south of 40°10′ N latitude, and for LE and OA lingcod north of 42° N latitude; as well as modifying bag limits in the Oregon recreational long-leader fishery, after updated information regarding projected catch and attainment became available, as well as requests from industry. Pacific Coast groundfish fisheries are managed using harvest specifications or limits (
Sablefish is an important commercial species on the West Coast with vessels targeting sablefish with both trawl and fixed gear (longlines and pots/traps). Sablefish is managed with separate ACLs for the two areas north and south of 36° N lat. The 2023 ACLs for the North and South are 8,486 mt and 2,338 mt, respectively.
At the November 2022 Council meeting, the Council's Groundfish Management Team (GMT) received requests from industry members and members of the Council's Groundfish Advisory Subpanel (GAP) to examine the potential to increase sablefish trips limits for the fixed gear, LE and OA fisheries north of 36° N lat. The intent of increasing trip limits is to increase harvest opportunities for vessels targeting sablefish. To evaluate potential increases to sablefish trip limits for the LE and OA fisheries, the GMT made model-based landings projections under current regulations and alternative sablefish trip limits, including the limits ultimately recommended by the Council, through the remainder of 2023. Table 1 shows the projected sablefish landings by fishery, relevant sablefish allocations, and the projected attainment as a percentage of the landing target, under both the current trip limits and the Council's recommended adjusted trip limits. These projections were based on the most recent catch information available through late October 2022. Since industry did not request changes to sablefish trip limits for either the LE or
As shown in Table 1, under the current trip limits, the models predict landings of sablefish will be at 36 percent, or 151 mt of the 417 mt landing target (the target is the allocation share converted to landings, reduced for discard mortality) for LE fishery north of 36° N lat.; and 47 percent, or 322 mt of the 687 mt landing target, for the OA fishery north of 36° N lat. Under the Council's recommended trip limits, sablefish attainment is projected to increase in the LE and OA fisheries north of 36° N lat., to 61 and 65 percent, respectively.
Trip limit increases for sablefish are intended to increase attainment of the non-trawl HG. The proposed trip limit increases do not change projected impacts to co-occurring overfished species compared to the impacts anticipated in the 2023-2024 harvest specifications because the projected impacts to those species assume that the entire sablefish ACL is harvested. Therefore, the Council recommended and NMFS is implementing, by modifying Tables 2 North and South to part 660, subpart E, and Tables 3 North and South to part 660, subpart F, trip limit changes for the LE sablefish fishery north of 36° N lat. and trip limit changes for the OA sablefish fishery north of 36° N lat. as shown above in Table 1. These changes will start with Period 1 (January and February) and remain in place through the end of 2023 and beyond, unless otherwise modified.
Prior to the November 2022 meeting, the GMT received a request from the GAP to increase the canary rockfish OA north of 40°10′ N lat. trip limit both to enable a viable alternative to potentially limited Dungeness crab fishing opportunities at the beginning of the year, and to better align with the yellowtail rockfish trip limit in order to reduce regulatory discarding of canary rockfish. The 2023 coastwide ACL for canary rockfish is 1,284 mt.
To evaluate potential increases to canary rockfish trip limits, the GMT made model-based landings projections under current regulations and alternative trip limits, including the limits ultimately recommended by the Council, for the LE and OA fisheries throughout the 2023 fishing year. The GMT evaluated changes to the trip limits for canary rockfish both north and south of 40°10′ N lat. Table 2 shows the projected canary rockfish landings, the canary rockfish allocations, and the projected attainment percentage by fishery under both the current trip limits and the Council's recommended adjusted trip limits for north of 40°10′ N lat. and Table 3 shows the same metrics for south of 40°10′ N lat. These projections were based on the most recent catch information available through late October 2022.
Under the current trip limits, the model predicts catches of canary rockfish coastwide will total 27.5 mt (including discard mortality), which is 23 percent of the 2023 non-trawl commercial share of canary rockfish (121.2 mt). Under the Council's recommended trip limits, canary rockfish mortality is expected to increase to 39 mt coastwide (including discard mortality), which is 32 percent of the 2023 non-trawl commercial share of canary rockfish.
Trip limit increases for canary rockfish are intended to increase attainment of the non-trawl commercial share. The proposed trip limit increases do not change projected impacts to co-occurring overfished species compared to the impacts anticipated in the 2023-2024 harvest specifications because the projected impacts to those species assume that the entire canary rockfish ACL is harvested. Therefore, the Council recommended and NMFS is implementing, by modifying Tables 2 North and South to part 660, subpart E, and Tables 3 North and South to part 660, subpart F, trip limit changes for LE canary rockfish north and south of 40°10′ N lat. and trip limit changes for OA canary rockfish fishery north and south of 40°10′ N lat. as shown above in Tables 2 and 3. These changes will start with Period 1 (January and February) and remain in place through the end of 2023 and beyond, unless otherwise modified.
For the November 2022 meeting, the GMT also received a request to continue the lingcod trip limits north of 42° N lat. at the same levels from Period 6 of 2022, in order to continue the effect of reduced regulatory discarding and increased economic opportunity. Lingcod is managed with an ACL north of 40°10′ N lat. and an ACL south of 40°10′ N lat. The 2023 ACL for lingcod north of 40°10′ N lat. is 4,378 mt.
To evaluate potential impacts of the requested increases to lingcod trip limits north of 42° N lat., the GMT made model-based landings projections under current regulations and alternative trip limits, including the limits ultimately recommended by the Council, for the LE and OA fisheries for 2023. Table 4 shows the projected lingcod landings, the lingcod allocations, the projected attainment percentage, and accompanying estimated yelloweye rockfish impacts by fishery, under both the current trip limits and the Council's recommended adjusted trip limits for north of 42° N lat. These projections were based on the most recent catch information available through October 2022.
Under the current trip limits, the model predicts catches of lingcod north of 42° N lat. will total 134.7 mt, which is 5.2 percent of the 2023 non-trawl allocation of lingcod (2,573.8 mt). Under the Council's recommended trip limits, lingcod mortality north of 42° N lat. is expected to increase to 159.4 mt, which is 6.2 percent of the 2023 non-trawl allocation of lingcod (2,573.8 mt).
Trip limit increases for lingcod are intended to marginally increase attainment of the non-trawl allocation. The proposed trip limit increases do not appreciably change projected impacts to co-occurring rebuilding species (yelloweye rockfish) compared to the impacts anticipated in the 2023-2024 harvest specifications (Table 4). At the higher level of the lingcod non-trawl allocation, projected impacts to yelloweye rockfish are still projected to be the same under either current or recommended trip limits (3.9 mt), due a projection of yelloweye bycatch levels assuming the entire lingcod allocation is attained, in the harvest specifications analysis.
Therefore, the Council recommended and NMFS is implementing, by modifying Table 2 North to part 660, subpart E, and Table 3 North to part 660, subpart F, trip limit changes for LE and OA lingcod north of 42° N lat. as shown above in Table 4. These changes will start with Period 1 (January and February) and remain in place through the end of 2023 and beyond, unless otherwise modified.
At the November 2022 Council meeting, the GMT and ODFW received requests from members of industry and
ODFW staff presented an analysis in which they deterministically projected 2023 catch by expanding results of the long-leader EFP (2018-2022), to simulate potential catch under a 15 fish per day limit. The results appear in Table 5. ODFW staff found that the increases in catch were small and well within relevant harvest specifications.
Using a conservative approach (risk averse), using the difference between the expanded (1.5x) maximum annual actual catch from the 5-year period, and subtracting the average actual catch from the same period, ODFW staff provided an estimate of “Potential maximum additional impacts” (far right column, Table 5), as projections of maximum potential additional catch as a result of increasing the bag limit from 10 to 15 fish. As evidence of inconsequential impacts to the ACLs, the analysis also compared the “potential maximum additional impacts”, with the amount of uncaught fish for each species, in the most recent fishing year (2021), noting that for species other than yellowtail, canary, widow, and yelloweye rockfish, the projected maximum impacts were less than 0.3 mt, and thus were not presented (Table 6). For those species with projected maximum catch greater than 0.3 mt, 2021 catch statistics (most recent complete data year available) showed sizable buffers in attainment of the non-trawl allocation, which would easily absorb the projected additional mortality of this action (Table 6).
The proposed bag limit increases do not appreciably change projected impacts to co-occurring rebuilding species (yelloweye rockfish) compared to the impacts anticipated in the 2023-2024 harvest specifications (Table 6). Therefore the Council recommended, and NMFS is implementing, trip limit changes for the Oregon recreational long-leader fishery from 10 to 15 fish per day, by modifying 50 CFR part 660.360, subpart G, paragraph (c)(2)(iii)(A)(Marine fish) to maintain the previous restrictions, and place a separate bag limit on the long-leader
This final rule makes routine inseason adjustments to groundfish fishery management measures, based on the best scientific information available, consistent with the PCGFMP and its implementing regulations.
This action is taken under the authority of 50 CFR 660.60(c) and is exempt from review under Executive Order 12866.
The aggregate data upon which these actions are based, are available for public inspection by contacting Dr. Sean Matson in NMFS West Coast Region (see
Pursuant to 5 U.S.C. 553(b), NMFS finds good cause to waive prior public notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest. The adjustments to management measures in this document increase trip limits for fisheries in Washington, Oregon, and California to allow additional economic opportunity while keeping catch within allocations established by the 2023-2024 harvest specifications. The trip limit increases are for the LE and OA sectors for sablefish north of 36° N lat., canary rockfish, and lingcod north of 42° N lat. Over the year 2023, these changes are projected to potentially increase economic value of the fisheries by $989,793 for sablefish, $71,025 for canary, and $122,777 for lingcod, as well as reduce regulatory discards in these fisheries. The increases to bag limits in the Oregon recreational long-leader fishery are needed to encourage seaward effort redistribution, in order to prevent conservation issues in the nearshore. No aspect of this action is controversial, and changes of this nature were anticipated in the final rule for the 2023-2024 harvest specifications and management measures which published on December 16, 2022 (87 FR 77007).
Delaying implementation to allow for public comment would likely reduce the economic benefits to the commercial fishing industry and the businesses that rely on that industry, because it is unlikely the new regulations would publish and could be implemented in time to realize the projected benefits to fishing communities and the resource. A delay in implementation could also contribute to conservation issues with nearshore rockfish species, without swift implementation incentives for seaward redistribution of recreational fishing effort in the Oregon recreational long-leader fishery. Therefore, providing a comment period for this action could significantly limit the economic benefits to the fishery, and would hamper the achievement of optimum yield from the affected fisheries.
Therefore, the NMFS finds reason to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(1) so that this final rule may become effective upon publication in the
Fisheries, Fishing, and Indian Fisheries.
16 U.S.C. 1801
For the reasons set out in the preamble, 50 CFR part 660 is amended as follows:
16 U.S.C. 1801
(c) * * *
(2) * * *
(iii) * * *
(A)
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for all The Boeing Company Model 757 airplanes. This proposed AD was prompted by the potential for cracks to start in hidden areas underneath the scuff plates in the fuselage skin and bear strap of certain doors. This proposed AD would require an inspection or a maintenance records check for repairs in the areas around the fuselage skin door cutout lower corners of certain doors, and applicable on-condition actions. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by March 13, 2023.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
• For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; website
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available at
Peter Jarzomb, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712 4137; phone: 562-627-5234; email:
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Peter Jarzomb, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712 4137; phone: 562-627-5234; email:
The FAA has received a report indicating operators of Model 767 airplanes have reported cracks in the fuselage skin and bear strap under the No. 1 and No. 2 passenger entry door scuff plates at the aft lower corners of the fuselage skin door cutout. Although no cracks have been reported at these locations on Model 757 airplanes in service, both Model 757 and 767 airplanes have the potential for cracks to start in hidden areas underneath the scuff plates caused by higher fatigue stresses at the fuselage skin door cutout lower corners. In addition, similar lower door corner skin and bear strap cracks were found on the Model 757 fatigue test article at the No. 2 and No. 4 passenger entry doors, and the forward cargo door. Certain maintenance inspections do not include a step to remove the scuff plates, which also contributes to the inability to find cracks before they become critical. Cracks underneath the scuff plates in the fuselage skin and bear strap, if not addressed, could adversely affect the structural integrity of the airplane.
The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.
The FAA reviewed Boeing Alert Requirements Bulletin 757-53A0119 RB, dated October 12, 2022. This service information specifies procedures for either a general visual inspection or a maintenance records check for repairs in the areas around the fuselage skin door cutout lower corners of the No. 1, No. 2, and No. 4 passenger entry doors; crew entry door; No. 1, No. 2, and No. 3 cargo doors; and main deck cargo door; and applicable on-condition actions, including repetitive low frequency and high frequency eddy current inspections for cracks in the skin or bear strap in the unrepaired areas, and crack repair. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
This proposed AD would require accomplishing the actions specified in the service information already described except for any differences identified as exceptions in the regulatory text of this proposed AD. For information on the procedures and compliance times, see this service information at r
The FAA estimates that this AD, if adopted as proposed, would affect 482 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
The FAA estimates the following costs to do any necessary on-condition actions that would be required based on the results of the proposed inspection. The agency has no way of determining the number of aircraft that might need these on-condition actions:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by March 13, 2023.
None.
This AD applies to all The Boeing Company Model 757-200, -200PF, -200CB, and -300 series airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by the potential for cracks to start in hidden areas underneath the scuff plates in the fuselage skin and bear strap of certain doors. The FAA is issuing this AD to address cracks caused by higher fatigue stresses at the fuselage skin door cutout lower corners. This unsafe condition, if not addressed, could adversely affect the structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as specified by paragraph (h) of this AD: At the applicable times specified in the “Compliance” paragraph of Boeing Alert Requirements Bulletin 757-53A0119 RB, dated October 12, 2022, do all applicable actions identified in, and in accordance with, the Accomplishment Instructions of Boeing Alert Requirements Bulletin 757-53A0119 RB, dated October 12, 2022.
(1) Where the Compliance Time column and notes of the tables in the “Compliance” paragraph of Boeing Alert Requirements Bulletin 757-53A0119 RB, dated October 12, 2022, use the phrase “the original issue date of Requirements Bulletin 757-53A0119 RB,” this AD requires using “the effective date of this AD.”
(2) Where Boeing Alert Requirements Bulletin 757-53A0119RB, dated October 12, 2022, specifies “General Visual Inspection (GVI) or a maintenance records check for any existing repair”, if only a Maintenance Records Check is accomplished with no GVI, then any directly follow-on condition actions that specify a compliance time “Before further flight” are required prior to the accumulation of 30,000 total flight cycles, or within 3,000 flight cycles after the effective date of this AD, whichever occurs later.
(3) Where Boeing Alert Requirements Bulletin 757-53A0119 RB, dated October 12, 2022, specifies contacting Boeing for repair instructions or for alternative inspections: This AD requires doing the repair, or doing the alternative inspections and applicable on-condition actions, before further flight using a method approved in accordance with the procedures specified in paragraph (i) of this AD.
(1) The Manager, Los Angeles ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or responsible Flight Standards Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (j) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the responsible Flight Standards Office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by The Boeing Company Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO Branch, FAA, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
For more information about this AD, contact Peter Jarzomb, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712 4137; phone: 562-627-5234; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing Alert Requirements Bulletin 757-53A0119 RB, dated October 12, 2022.
(ii) [Reserved]
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; website
(4) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA,
Office of the Secretary (OST), Department of Transportation (DOT or the Department).
Denial of Request for Extension of Comment Period.
The U.S. Department of Transportation (Department or DOT) declines to extend the comment period beyond January 23, 2023 for its proposed rule on Enhancing Transparency of Airline Ancillary Service Fees.
Comments on the rulemaking should be filed by January 23, 2023. Late-filed comments will be considered to the extent practicable. Petitions for a hearing pursuant to 14 CFR 399.75(b)(1) must also be filed by January 23, 2023.
You may file comments identified by the docket number DOT-OST-2022-0109 by any of the following methods:
•
•
•
•
Ryan Patanaphan or Blane Workie, Office of Aviation Consumer Protection, U.S. Department of Transportation, 1200 New Jersey Ave. SE, Washington, DC 20590, 202-366-9342 (phone),
On September 26, 2022, the Department of Transportation (DOT or Department) publicly announced and posted to its website a notice of proposed rulemaking (NPRM) that proposed several disclosure requirements to enhance the transparency of ancillary service fees that consumers pay for when they purchase airline tickets. (See 87 FR 63718; October 20, 2022). In the NPRM, the Department proposed to require U.S. air carriers, foreign air carriers, and ticket agents to clearly disclose passenger-specific or itinerary-specific baggage fees, change fees, and cancellation fees to consumers whenever fare and schedule information is provided to consumers for flights to, within, and from the United States. The Department also proposed requiring similar disclosures for fees for a child 13 or under to be seated adjacent to an accompanying adult, as well as the transactability of such seating fees. The proposed rule would require carriers to provide useable, current, and accurate information regarding fees to ticket agents that sell or display the carrier's fare and schedule information.
The NPRM initially provided for a comment period of 60 days after publication of the NPRM in the
On January 18, 2023, the Travel Technology Association (Travel Tech) requested an extension to file comments on the NPRM, writing that commenters would not have a sufficient opportunity to review and respond to the ACPAC's recommendations that resulted from its January 12 meeting.
While materials from the ACPAC's January 12 meeting, including a video recording of the full meeting, have been posted publicly and can be viewed on the Department's website or on regulations.gov (Docket DOT-OST-2018-0190), the meeting was publicly viewable on the date it was held. Stakeholders were provided sufficient notice of the meeting in advance, and the
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Development (HUD); Office of the Assistant Secretary for Public and Indian Housing, HUD.
Proposed rule.
HUD's Housing Counseling Program provides, through HUD-approved counseling agencies and State housing finance agencies, counseling to individuals seeking information about financing, maintaining, renting, or owning a home. The Dodd-Frank Wall Street Reform and Consumer Protection Act amended the Housing and Urban Development Act of 1968 to improve the effectiveness of the housing counseling program by, among other things, requiring that entities and individual counselors be certified by HUD as competent to provide such counseling services. In 2016, HUD implemented these requirements for most HUD programs but agreed to conduct consultation with Tribes before implementing the new housing counselor certification requirement for Tribes. After consulting with Tribes, HUD proposes a housing counselor certification option for employees of Tribes, Tribally Designated Housing Entities (TDHE), and other Tribal entities conducting housing counseling required or provided in connection with the Indian Housing Block Grant (IHBG) and the Indian Community Development Block Grant (ICDBG) programs. The proposed rule provides an alternative regulatory standard for compliance with the Dodd-Frank Act's counselor certification requirement that recognizes Tribal sovereignty and self-determination, and accounts for the
Interested persons are invited to submit comments regarding this proposed rule 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 above docket number and title.
1.
2.
3.
Copies of all comments submitted are available for inspection and downloading at
David Valdez, Office of Housing Counseling, Office of Housing, Department of Housing and Urban Development, 1331 Lamar St. Suite 550, Houston, TX 77002; telephone number 713-718-3178 (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 or communication disabilities. To learn more about how to make an accessible telephone call, please visit
In 2010, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub. L. 111-203, 124 Stat. 1376, approved July 21, 2010) amended section 106 of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701x), hereinafter referred to as section 106, established the Office of Housing Counseling (OHC) and directed HUD to issue regulations necessary to carry out the testing and certification of housing counselors in HUD programs. The section 106 amendments require that individuals providing housing counseling required under or provided in connection with HUD programs be certified by taking and passing an examination administered by HUD's Office of Housing Counseling (HUD certified housing counselors) (12 U.S.C. 1701x(e)).
On December 14, 2016, HUD published a final rule implementing the section 106 certification requirements, including the requirement that, as explained in the rule preamble, “`housing counseling' . . . that is `required by or in connection with' HUD programs, may only be provided by HUD-certified housing counselors working for HUD-approved [housing counseling agencies] that are approved to provide such housing counseling by HUD's Office of Housing Counseling.”
HUD-approved housing counseling agencies must be (1) nonprofit organizations as described under section 501(c) of the Internal Revenue Code of 1986 (IRC) that are exempt from taxation under section 501(a) of the IRC; and (2) approved by HUD, in accordance with 24 CFR part 214 and section 106(e) of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701x(e)), to provide housing counseling services to clients directly, or through their affiliates or branches. To become a certified housing counselor, one must be employed by a participating agency, including a HUD-approved housing counseling agency or a unit of State or local government, and pass a standardized, written housing counseling certification examination to demonstrate competency in the following areas: (1) Financial management; (2) property maintenance; (3) responsibilities of homeownership and tenancy; (4) fair housing laws and requirements; (5) housing affordability; and (6) avoidance of, and response to, rental or mortgage delinquency and avoidance of eviction or mortgage default. 24 CFR 214.103(n).
Today, only a small number of Tribal entities participate in HUD's housing counseling program. These Tribal entities have been recognized as unit of local, county, or state government or have formed a tax-exempt non-profit organization and applied to be a HUD-approved housing counseling agency and employ housing counselors directly to provide the counseling required under HUD programs. Most Tribes, TDHEs, and Tribal entities, however, remain ineligible to become HUD-approved housing counseling agencies. As such, Tribes are generally not eligible to receive HUD housing counseling grants.
In 2021, HUD hosted two virtual Tribal consultations and six listening sessions to obtain feedback on the implementation of the counselor certification requirements as it applies to the IHBG and ICDGB programs. During HUD consultation sessions, Tribes raised concerns regarding a perceived lack of consideration for Tribal sovereignty and expressed concerns with applying the HUD housing counselor certification requirements to Tribes. Tribes also
Another area of concern raised by the Tribes was the irrelevancy of some questions and lack of important content in the current counselor certification exam. For example, counseling on Tribal land requires knowledge of unique property and administrative requirements that apply to trust land and other restricted Tribal lands held in trust by the Department of the Interior. Similarly, civil rights laws pursuant to statutes like the Native American Housing Assistance and Self-Determination Act of 1996 (25 U.S.C. 4101
To account for these issues, Tribes suggested HUD allow them to use another organization's Native American counseling training and exam certification (
As required by the Dodd-Frank Act and after consultation with Tribes, HUD proposes to implement the certification requirements for Tribes, TDHEs, and other Tribal entities conducting housing counseling required or provided in connection with the IHBG and ICDBG programs. Housing Counseling is independent, expert advice customized to the need of the consumer to address the consumer's housing barriers and to help achieve their housing goals and must include the following processes: intake; financial and housing affordability analysis; an action plan, except for reverse mortgage counseling; and a reasonable effort to have follow-up communication with the client when possible. HUD believes this proposed rule implements counselor certification for IHBG and ICDBG, two Native American programs, in a way that considers the substantial Tribal feedback provided by Tribes during consultation while also still complying with the requirement in the Dodd-Frank Act that counseling conducted under the IHBG and ICDBG programs be carried out by HUD-certified counselors.
This proposed rule would amend 24 CFR part 214 by adding a new subpart F to establish certification requirements that apply only for the IHBG and ICDBG programs. Specifically, for counseling “required by or in connection with” the IHBG and ICDBG programs, an individual may become a “HUD-certified housing counselor” by working for a participating agency and meeting all requirements of part 214, including passing a housing counseling certification examination under § 214.103(n), or, by working for an Indian tribe, TDHE, or other Tribal entity, and passing a housing counseling certification examination under paragraph (c) of the new § 214.6 (subpart F). The housing counseling certification examination under § 214.6(c) will be the housing counseling certification examination under § 214.103(n) with adjustments to certain exam components for tribes in a manner that comports with section 106(e)(2). Under § 214.6(d), if an individual working for an Indian tribe, TDHE, or other Tribal entity provides housing counseling for other HUD programs, however, that individual would still need to comply with the existing housing counseling certification requirement of 24 CFR 214.103(n) (
With respect to any housing counselor that is providing housing counseling required by or in connection with the IHBG and ICDBG programs and qualifies to do so based on the criterion in proposed 24 CFR 214.600(b)(1), HUD strongly recommends additional training. Such training should help the counselor become knowledgeable of Federal Indian law, the unique status of trust land, the role of the Bureau of Indian Affairs in mortgage and realty-related transactions and matters, the role played by Indian tribes to grant leases on trust land, and more.
Section 106 of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701x) in relevant part requires that the housing counselor demonstrate competence through a written examination showing competency in “fair housing laws and requirements.” 12 U.S.C. 1701x(e)(2)(D). Section 201(b)(6) of NAHASDA states that Title VI of the Civil Rights Act of 1964, and the Fair Housing Act “shall not apply to actions by federally recognized tribes and the tribally designated housing entities of those tribes under this Act.” The regulations at 24 CFR 1000.12 and 1003.601 state which nondiscrimination requirements apply to the IHBG and ICDBG programs, respectively. The housing counseling examination required under the new subpart F will account for this distinction of fair housing laws pertaining to Tribes. The examination will also be appropriately tailored to reflect the unique status of trust land.
HUD recognizes that costs will be incurred as a result of the written examination requirement. In the past, HUD has been able to present the examination in the most cost-efficient way feasible and offered both on-line and in-person examinations at a low cost. In addition, HUD has offered free study materials for individuals to use in preparation for the examination. HUD will seek to modify these materials to account for any tailored exam components that it develops to implement this rule.
To conform to the change in the new subpart F, this proposed rule would amend the definition of “HUD certified housing counselor” at § 214.3. Under the current definition, certification requires passing the HUD Certification exam and working for a participating housing counseling agency. Given the proposal to expand a certified counselor to include one who is certified by HUD as competent to provide housing counseling services pursuant to the new § 214.600, this definition would include that additional process for becoming a certified housing counselor. This
This proposed rule would amend IHBG program regulations by adding § 1000.66 to require that housing counseling, as defined in 24 CFR 5.100, that is funded with or provided in connection with IHBG funds must be carried out in accordance with 24 CFR 5.111. In addition, this paragraph would provide that housing counseling conducted in connection with the IHBG program may only be conducted by individuals who are HUD-certified in accordance with 24 CFR part 214, including the new requirements promulgated by this proposed rule at § 214.3 and the new § 214.600.
This proposed rule would amend ICDBG program regulations by adding § 1003.609 to require that housing counseling, as defined in 24 CFR 5.100, that is funded with or provided in connection with ICDBG funds must be carried out in accordance with 24 CFR 5.111. In addition, this paragraph would provide that housing counseling conducted in connection with the ICDBG program may only be conducted by individuals who are HUD-certified in accordance with 24 CFR part 214, including the new requirements promulgated by this proposed rule at § 214.3 and the new § 214.600.
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's Housing Counseling Program provides, through HUD-approved counseling agencies and state housing finance agencies, counseling to individuals seeking information about financing, maintaining, renting, or owning a home. In 2010, the Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203 (“Dodd-Frank Act”), amended section 106 of the Housing and Urban Development Act of 1968, 12 U.S.C. 1701x, to improve the effectiveness of the housing counseling program by, among other things, requiring that entities and individual counselors be certified by HUD as competent to provide such counseling services. In 2016, HUD published a final rule implementing these requirements for most HUD programs but agreed to conduct consultation with Tribes before applying the new housing counselor certification requirement to HUD's Native American Housing Programs, pursuant to HUD's Government-to-Government Tribal Consultation Policy. As a result, the counselor certification requirement currently applies to all HUD programs except the Indian Housing Block Grant (IHBG) and Indian Community Development Block Grant (ICDBG) programs.
HUD consulted with Tribes in 2021 in accordance with HUD's Government-to-Government Tribal Consultation Policy and the January 26, 2021, Presidential Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships. As a result of this Tribal consultation, HUD is proposing a more streamlined housing counselor certification option for employees of Tribes, Tribally Designated Housing Entities (TDHE), and other Tribal entities conducting housing counseling required or provided in connection with the IHBG and ICDBG programs. The proposed rule would amend HUD's existing Housing Counseling Program regulations at 24 CFR part 214 to allow the relatively small number of 435 IHBG and ICDBG grantees in total to either use an existing HUD-approved housing counseling agency or to have an employee complete the housing counseling certification examination that is currently required of all counselors at HUD-approved housing counseling agencies. The proposed rule would similarly amend the IHBG and ICDBG program regulations at §§ 1000.66 and 1003.609 to require that housing counseling that is funded with or provided in connection with IHBG or ICDBG funds be carried out in accordance with existing § 5.111, and that housing counseling for these programs may only be conducted by individuals certified in accordance with 24 CFR part 214.
This proposed rule brings HUD's IHBG and ICDBG Programs into compliance with the section 106 statutory requirements, which were added by the Dodd-Frank Act and have applied to other HUD programs since 2016. This proposed rule would provide a streamlined compliance option consistent with the statutory requirement and responsive to tribal consultation. This rule was not subject to OMB review. This 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
As discussed in this preamble, to date, HUD's Housing Counseling Program, under 24 CFR part 214, has not approved certification criteria for Tribes, TDHEs, and Tribal entities conducting housing counseling exclusively funded under or in connection with the IHBG and ICDBG programs. The key change made to the Housing Counseling Program by this proposed rule is the requirement to certify counselors providing counseling funded under or in connection with these two programs.
HUD has determined that the requirement for individual counselors to be certified, as proposed to be implemented by this proposed rule, will not have a significant economic impact on small entities. The rule provides a three-year transition period after the effective date of the final rule for individual counselors to be certified. This three-year period provides ample notice of the need to be skilled in the required areas. Notwithstanding HUD's determination that this proposed rule will not have a significant economic
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 Executive order. This proposed rule would not have federalism implications and would not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive order.
The information collection requirements contained in this proposed rule have been submitted to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). In accordance with the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection displays a currently valid OMB control number.
The burden of the information collections in this proposed rule is estimated as follows:
In accordance with 5 CFR 1320.8(d)(1), HUD is soliciting comments from members of the public and affected agencies concerning this collection of information to:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information;
(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 collection techniques or other forms of information technology,
Interested persons are invited to submit comments regarding the information collection requirements in this rule. Comments must refer to the proposal by name and docket number (FR-6322-P-01) and must be sent to:
This proposed rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction; or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this proposed rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; approved March 22, 1995) (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments, and on the private sector. This proposed rule does not impose any Federal mandates on any State, local, or Tribal government, or on the private sector, within the meaning of the UMRA.
Administrative practice and procedure, Loan program—housing and community development, Organization and functions (government agencies), Reporting and record-keeping requirements.
Aged, Community development block grants, Grant programs—housing and community development, Grant programs—Indians, Indians, Individuals with disabilities, Low and moderate income housing, Public housing, Reporting and recordkeeping.
Alaska, Community development block grants, Grant programs—housing and community development, Indians, Reporting and recordkeeping requirements.
Accordingly, for the reasons stated above, HUD proposes to amend 24 CFR parts 214, 1000, and 1003 as follows:
12 U.S.C. 1701x, 1701x-1; 42 U.S.C. 3535(d).
(1) Works for a participating agency and is certified by HUD as competent to provide housing counseling services pursuant to this part; or
(2) Works for an Indian tribe, tribally designated housing entity (TDHE), or other tribal entity and is certified by HUD as competent to provide housing counseling services pursuant to § 214.600.
(a) This subpart applies only to housing counseling required under or provided in connection with the Indian Housing Block Grant (IHBG) program or the Indian Community Development Block Grant (ICDBG) program. Indian tribes, tribally designated housing entities (TDHEs), and other tribal entities funding housing counseling required under or provided in connection with IHBG or ICDBG programs shall not be subject to the requirements of this part, except as otherwise provided in this section.
(b) Housing counseling required under or provided in connection with IHBG or ICDBG programs must be provided by a HUD-certified housing counselor. A HUD-certified housing counselor must be certified either:
(1) By working for a participating agency and complying with all the requirements of this part to include passing a housing counseling certification examination under § 214.103(n); or
(2) By working for an Indian Tribe, TDHE, or other tribal entity and passing a housing counseling certification examination under paragraph (c) of this section.
(c) HUD will certify an individual housing counselor to provide housing counseling required under or provided in connection with IHBG or ICDBG programs upon verification that the person:
(1) Passes a standardized written examination to demonstrate competency in each of the following areas:
(i) Financial management;
(ii) Property maintenance;
(iii) Responsibilities of homeownership and tenancy;
(iv) Fair housing laws and requirements;
(v) Housing affordability; and
(vi) Avoidance of, and response to, rental or mortgage delinquency and avoidance of eviction or mortgage default; and
(2) Works for an Indian tribe, TDHE, or other tribal entity.
(d) To provide housing counseling required under or provided in connection with HUD programs other than the IHBG and ICDBG programs, an individual working for an Indian tribe, TDHE, or other tribal entity must meet the housing counseling certification requirement under § 214.103(n) (
25 U.S.C. 4101
Housing counseling, as defined in 24 CFR 5.100, that is required under or provided in connection with IHBG funds must be carried out in accordance with 24 CFR 5.111. Housing counseling conducted in connection with the IHBG program may only be conducted by individuals who are HUD-certified in accordance with 24 CFR part 214.
42 U.S.C. 3535(d) and 5301
Housing counseling, as defined in 24 CFR 5.100, that is funded with or provided in connection with ICDBG funds must be carried out in accordance with 24 CFR 5.111. Housing counseling conducted in connection with the ICDBG program may only be conducted by individuals who are HUD-certified in accordance with 24 CFR part 214.
Copyright Royalty Board (CRB), Library of Congress.
Proposed rule.
The Copyright Royalty Judges solicit comments on proposed rates and terms for use of certain works in connection with noncommercial broadcasting for the period from January 1, 2023, through December 31, 2027.
Comments and objections, if any, are due on or before February 27, 2023.
You may submit comments and objections, identified by docket number 21-CRB-0002-PBR (2023-2027), online through eCRB at
Anita Brown, CRB Program Specialist, (202) 707-7658,
Section 118 of the Copyright Act, title 17 of the United States Code, establishes a statutory license for the use of certain copyrighted works in connection with noncommercial television and radio broadcasting. Chapter 8 of the Copyright Act requires the Copyright Royalty Judges (Judges) to conduct proceedings every five years to determine the rates and terms for the section 118 license. 17 U.S.C. 801(b)(1), 804(b)(6). In accordance with section 804(b)(6), the Judges commenced the proceeding to set rates and terms for the period 2023-2027 on January 5, 2021. (86 FR 325).
In the
The Judges set the timetable for the three-month negotiation period,
There are two ways copyright owners and public broadcasting entities
Second, copyright owners and public broadcasting entities may negotiate rates and terms for categories of copyrighted works and uses that would be binding on all owners and entities using the same license and submit them to the Judges for approval. Section 801(b)(7)(A) of the Copyright Act authorizes the Judges to adopt rates and terms negotiated by “some or all of the participants in a proceeding at any time during the proceeding” provided they are submitted to the Judges for approval. This section provides that the Judges shall provide notice and an opportunity to comment on the agreement to (1) those that would be bound by the terms, rates, or other determination set by the agreement and (2) participants in the proceeding that would be bound by the terms, rates, or other determination set by the agreement. In addition, the Judges shall provide participants in the proceeding the opportunity to object to its adoption as a basis for statutory rates and terms. See section 801(b)(7)(A). The Judges may decline to adopt the agreement as a basis for statutory terms and rates for participants not party to the agreement if any participant objects and the Judges conclude that the agreement does not provide a reasonable basis for setting statutory terms or rates.
The Judges received negotiated rates and terms from ASCAP (Jul. 2, 2021), BMI (May 17, 2021), GMR (Sept. 9, 2021) and SESAC (Sept. 3, 2021), and jointly from all four (Dec. 7, 2022) regarding rates for compositions in their repertories by certain public broadcasters
The joint proposal of ASCAP,
The GMR proposals add a section for compositions in its repertory that provide for an initial rate for 2023; provide for adjusting that rate, starting in 2024, by the change in the Consumer Price Index or one-and-a-half percent, whichever is greater; add a term providing rate options for certain entities broadcasting primarily in a religious format; and add references to GMR in paragraphs related to the rates.
The joint proposals entered into by NRBNMLC and each of ASCAP, BMI, GMR, and SESAC
Three of the four joint proposals (those from NRBNMLC and ASCAP, SESAC, and GMR) propose a revision to 381.6(4) to add the words “in the aggregate”. All participants proposing the revision later agree that the revision is not necessary, NRBNMLC being the only one bound by that provision. NRBNMLC supports the language change, but would not object to maintaining the current language if the
The Judges received a joint proposal from PBE and HFA to modify the fees in § 381.7 for uses that would be binding on all owners and entities using the same license.
The Judges received a joint proposal from CPB and PBS to continue the existing rates in § 381.8 for the use of and making reproductions of published pictorial, graphic, and sculptural works, and to make changes to the terms regarding when those rates apply and related reporting requirements.
The Judges propose technical revisions to §§ 381.7(e) and 381.8(e)(1) to require online filing of cue sheets or summaries in lieu of submissions of electronic copies on compact disk or floppy diskette. This change would conform these sections with § 303.5(a) that generally requires online filing of documents in eCRB.
As noted above, the members of the public may comment on, and participants in this rate proceeding may comment on and object to, any or all of the proposed regulations and the proposed technical revision contained in this document.
Copyright, Music, Radio, Television, Rates.
For the reasons set forth in the preamble, the Copyright Royalty Judges propose to amend part 381 to chapter III of title 37 of the Code of Federal Regulations as set forth below:
17 U.S.C. 118, 801(b)(1) and 803.
(a)
(c)
(c)
(1) For all such compositions in the repertory of ASCAP, the royalty rates shall be as follows:
(i)
(ii) Level 1 rates as set forth in paragraph (c)(1)(i) of this section, shall also apply to College Radio Stations with an authorized effective radiated power (ERP), as that term is defined in 47 CFR 73.310(a), of 100 Watts or less, as specified on its current (Federal Communications Commission (FCC) license, regardless of the size of the student population.
(2) For all such compositions in the repertory of BMI, the royalty rates shall be as follows:
(i)
(ii) Level 1 rates, as set forth in paragraph (c)(2)(i) of this section, shall also apply to College Radio Stations with an authorized effective radiated power (ERP), as that term is defined in 47 CFR 73.310(a), of 100 Watts or less, as specified on its current FCC license, regardless of the size of the student population.
(3) For all such compositions in the repertory of SESAC, the royalty rates shall be as follows:
(i) 2023: The 2022 rate, subject to an annual cost of living adjustment in accordance with paragraph (c)(3)(vi) of this section.
(ii) 2024: The 2023 rate, subject to an annual cost of living adjustment in accordance with paragraph (c)(3)(vi) of this section.
(iii) 2025: The 2024 rate, subject to an annual cost of living adjustment in accordance with paragraph (c)(3)(vi) of this section.
(iv) 2026: The 2025 rate, subject to an annual cost of living adjustment in accordance with paragraph (c)(3)(vi) of this section.
(v) 2027: The 2026 rate, subject to an annual cost of living adjustment in accordance with paragraph (c)(3)(vi) of this section.
(vi) Such cost of living adjustment to be made in accordance with the greater of:
(A) The change, if any, in the Consumer Price Index (all consumers, all items) published by the U.S. Department of Labor, Bureau of Labor Statistics during the twelve (12) month period from the most recent Index, published before December 1 of the year immediately prior to the applicable year; or
(B) One and one-half percent (1.5%).
(4) For all such compositions in the repertory of GMR, the royalty rates shall be as follows:
(i) 2023: $174.00 per station, subject to an annual cost of living adjustment in accordance with § 381.10.
(ii) 2024: The 2023 rate, subject to an annual cost of living adjustment in accordance with § 381.10.
(iii) 2025: The 2024 rate, subject to an annual cost of living adjustment in accordance with § 381.10.
(iv) 2026: The 2025 rate, subject to an annual cost of living adjustment in accordance with § 381.10.
(v) 2027: The 2026 rate, subject to an annual cost of living adjustment in accordance with § 381.10.
(vi) For stations broadcasting primarily in a religious format (including, without limitation, Contemporary Christian music, praise and worship, Gospel, Southern Gospel, Spanish religious music, inspirational, religious, etc.), at their option for 2023-2027, either the rates set forth in paragraph (c)(4) of this section or the rates set forth in § 381.6(d)(4).
(5) For the performance of all other such compositions: $1.
(d)
(e)
(d)
(1) For all such compositions in the repertory of ASCAP, the royalty rates shall be as follows:
(i) Music Fees (Stations with 20% or more programming containing Feature Music):
(ii) Talk Format Station Fees (Stations with <20% Feature Music programming):
(2) For all such compositions in the repertory of BMI, the royalty rates shall be as follows:
(i) Music Fees (Stations with 20% or more programming containing Feature Music):
(ii) Talk Format Station Fees (Stations with <20% Feature Music programming):
(3) For all such compositions in the repertory of SESAC, the royalty rates shall be as follows:
(i) Music fees for stations with >=20% Feature Music programming:
(ii) Talk fees for stations with <20% Feature Music programming:
(4) For all such compositions in the repertory of GMR, the royalty rates shall be as follows:
(i) For a public broadcasting entity within the scope of this section that is broadcasting one or more radio stations as of January 1, 2023, a single $50 fee for each such station for the entire five-year license term from 2023 through 2027; and
(ii) For a public broadcasting entity within the scope of this section that begins broadcasting a radio station after January 1, 2023 but before December 31, 2027, a pro-rated amount equal to $10 multiplied by the number of full or partial years remaining in the 2023-2027 license term as of the date on which the radio station begins broadcasting (
(5) For the performance of all other such compositions, from 2023 through 2027, $1.
(e)
(2)
(f)
(a)
(b)
(ii) For such uses other than in a PBS-distributed television program, the royalty fee shall be calculated by multiplying the following per-composition rates by the number of different compositions in that program:
(iii) In the event the work is first recorded other than in a PBS-distributed program, and such program is subsequently distributed by PBS, an additional royalty payment shall be made equal to the difference between the rate specified in this section for other than a PBS-distributed program and the rate specified in this section for a PBS-distributed program.
(2) For uses licensed herein of a musical work in a NPR program, the royalty fees shall be calculated by multiplying the following per-composition rates by the number of different compositions in any NPR program distributed by NPR. For purposes of this schedule “National Public Radio” programs include all programs produced in whole or in part by NPR, or by any NPR station or organization under contract with NPR.
(3) For purposes of this schedule, a “Concert Feature” shall be deemed to be the nondramatic presentation in a program of all or part of a symphony, concerto, or other serious work originally written for concert performance, or the nondramatic presentation in a program of portions of a serious work originally written for opera performance.
(4) For such uses other than in an NPR-produced radio program:
(5) The schedule of fees covers use for a period of three years following the first use. Succeeding use periods will require the following additional payment: Additional one-year period—25 percent of the initial three-year fee; second three-year period—50 percent of the initial three-year fee; each three-year fee thereafter—25 percent of the initial three-year fee; provided that a 100 percent additional payment prior to the expiration of the first three-year period will cover use during all subsequent use periods without limitation. Such succeeding uses which are subsequent to December 31, 2022, shall be subject to the royalty rates established in this schedule.
(6) For each use licensed herein pursuant to paragraphs (b)(1)(i) and (b)(2) of this section for transmission via the internet, the royalty fees shall include a pro-rata share of $2,000 per calendar year, which share shall be determined by calculating the aggregate amount of royalty fees earned during that calendar year and dividing the sum by the amount of royalty fees earned for each use.
(c)
(e)
(a) On or before December 1, 2023, the Copyright Royalty Judges shall publish in the
(b) On the same date of the notices published pursuant to paragraph (a) of this section, the Copyright Royalty Judges shall publish in the
(1) The change in the cost of living determined as provided in paragraph (a) of this section; or
(2) One-and-a-half percent (1.5%).
(3) Such royalty rates shall be fixed at the nearest dollar.
(c) The adjusted schedule for the rates for § 381.5(c)(3) and (4) shall become effective thirty (30) days after publication in the
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve, under the Clean Air Act (CAA), revised sulfur dioxide (SO
Comments must be received on or before February 27, 2023.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2022-0477 at
Tyler Salamasick, Life Scientist, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6206,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
Ohio law requires a five-year review of all regulations in which the state cleans up and clarifies existing rules. Ohio conducted a review of OAC Chapter 3745-18 “Sulfur Dioxide Regulations” that contains Ohio's air emission regulations for SO
EPA has reviewed Ohio's submitted revised SO
Ohio revised OAC 3745-18-01 “Definitions and incorporation by reference” to update the Code of Federal Regulations publication dates. Throughout the rule, Ohio updated facility information, such as names and addresses, and revised rule language to reflect changes in style. These updates are merely administrative and do not change the requirements of the rule.
Ohio promulgated a new chapter, OAC 3745-18-02, “General countywide emission limits.” This rule does not create new requirements, but rather consolidates the countywide emission limits previously contained in county specific rules. Correspondingly, Ohio rescinded the county specific rules that had been incorporated into the general countywide emission limits and contained no facility specific information. These revisions do not change the applicable requirements of the rules.
Ohio removed facility information for the facilities and emissions units that were permanently shut down. The removal of obsolete emission limits for units that have permanently closed and for which the permits to operate have been revoked does not indicate permission to increase emissions. If the facilities were to restart operations, Ohio would require a new permit-to-install, which would establish new emissions limits based on the current SO
Ohio removed the facility-specific requirements in OAC 3745-18-37(GG) for the DTE St. Bernard facility. These requirements were originally promulgated to regulate sulfur emissions from coal fired boilers in use at the facility. DTE St. Bernard removed the remaining coal fired boiler and replaced it with a natural gas boiler. DTE St. Bernard's state permit now requires the facility to only use natural
Ohio also updated OAC 3745-18-37(KK) for the Veolia Fort Hill facility to comply with best available control technology (BACT) and set a lower short-term emission limit and mass cap, as required by an EPA consent decree. Ohio performed air dispersion modeling which demonstrated lower SO
CAA section 110(l) states that SIP revisions cannot be approved if they interfere with applicable requirements concerning attainment of an air quality standard or making reasonable further progress. Ohio's revisions to OAC 3745-18 do not allow for an increase in emissions and are expected to be protective of the NAAQS. Therefore, this proposed revision to the SIP is consistent with the requirements of CAA section 110(l).
EPA is proposing to approve the revisions to OAC 3745-18 SO
EPA is proposing not to act on OAC 37-18-04(D)(2), (D)(3), (D)(6), (E)(2), (E)(3), and (E)(4). These paragraphs have not been previously approved by EPA and are outside the intent of this proposed SIP revision—to improve the clarity of the rules.
In this action, EPA is proposing to include final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference Ohio rules OAC 3745-18-01 through OAC 3745-18-06 [with the exception of OAC 3745-18-04(D)(2), (D)(3), (D)(6), (E)(2), (E)(3), and (E)(4)], OAC 3745-18-08, OAC 3745-18-10, OAC 3745-18-11, OAC 3745-18-15, OAC 3745-18-23, OAC 3745-18-24, OAC 3745-18-26, OAC 3745-18-28, OAC 3745-18-31, OAC 3745-18-33, OAC 3745-18-35, OAC 3745-18-37, OAC 3745-18-47, OAC 3745-18-49, OAC 3745-18-53, OAC 3745-18-54, OAC 3745-18-56, OAC 3745-18-61, OAC 3745-18-63, OAC 3745-18-68, OAC 3745-18-69, OAC 3745-18-77, OAC 3745-18-78, OAC 3745-18-80, OAC 3745-18-82 through OAC 3745-18-85, OAC 3745-18-91, and OAC 3745-18-92, as effective on February 2, 2022, discussed in section II of this preamble. EPA has made, and will continue to make, these documents generally available through
Also in this document, EPA is proposing to remove EPA-Approved Ohio rules OAC 3745-18-07, OAC 3745-18-09, OAC 3745-18-12 through OAC 3745-18-14, OAC 3745-18-16 through OAC 3745-18-22, OAC 3745-18-25, OAC 3745-18-27, OAC 3745-18-29, OAC 3745-18-30, OAC 3745-18-32, OAC 3745-18-34, OAC 3745-18-36, OAC 3745-18-38 through OAC 3745-18-46, OAC 3745-18-48, OAC 3745-18-50 through OAC 3745-18-52, OAC 3745-18-55, OAC 3745-18-57 through OAC 3745-18-60, OAC 3745-18-62, OAC 3745-18-64, OAC 3745-18-65, OAC 3745-18-67, OAC 3745-18-70 through OAC 3745-18-76, OAC 3745-18-79, OAC 3745-18-81, OAC 3745-18-86 through OAC 3745-18-89, OAC 3745-18-93, and OAC 3745-18-94 from the Ohio SIP, which is incorporated by reference in accordance with the requirements of 1 CFR part 51.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Sulfur oxides.
Environmental Protection Agency (EPA).
Proposed rule.
Under the Toxic Substances Control Act (TSCA), EPA is proposing a significant new use rule (SNUR) for those per- and poly-fluoroalkyl substances (PFAS) that have not been manufactured (including imported) or processed for many years and are consequently designated as inactive on the TSCA Chemical Substance Inventory. PFAS are a group of chemicals that have been used in industry and consumer products since the 1940s because of their useful properties, such as water and stain resistance. Many PFAS break down very slowly and can build up in people, animals, and the environment over time. Exposure at certain levels to specific PFAS can adversely impact human health and other living things. Persons subject to the SNUR would be required to notify EPA at least 90 days before commencing any manufacture (including import) or processing of the chemical substance for a significant new use. Once EPA receives a notification, EPA must review and make an affirmative determination on the notification, and take such action as is required by any such determination before the manufacture (including import) or processing for the significant new use can commence. Such a review will assess whether the use may present unreasonable risk to health or the environment and ensure that EPA can prevent future unsafe environmental releases of the PFAS subject to this SNUR.
Comments must be received on or before March 27, 2023.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2022-0867, using the Federal eRulemaking Portal at
You may be potentially affected by this action if you manufacture (including import), process, or distribute in commerce chemical substances and mixtures. 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:
• NAICS 324—Petroleum and Coal Product Manufacturing;
• NAICS 221210—Natural Gas Distribution;
• NAICS 236220—Commercial and Institutional Building Construction;
• NAICS 324—Petroleum and Coal Product Manufacturing;
• NAICS 32419—Petroleum Lubricating Oil and Grease Manufacturing;
• NAICS 325—Chemical Manufacturing;
• NAICS 325120—Industrial Gas Manufacturing;
• NAICS 325180—Other Basic Inorganic Chemical Manufacturing;
• NAICS 325199—All Other Basic Organic Chemical Manufacturing;
• NAICS 325211—Plastics Material and Resin Manufacturing;
• NAICS 325212—Synthetic Rubber Manufacturing;
• NAICS 325220—Artificial and Synthetic Fibers and Filaments Manufacturing;
• NAICS 325320—Pesticide and Other Agricultural Chemical Manufacturing;
• NAICS 325411—Medicinal and Botanical Manufacturing;
• NAICS 325412—Pharmaceutical Preparation Manufacturing;
• NAICS 325612—Polish and Other Sanitation Good Manufacturing;
• NAICS 325613—Surface Active Agent Manufacturing;
• NAICS 325998—All Other Miscellaneous Chemical Product and Preparation Manufacturing;
• NAICS 326113—Unlaminated Plastics Film and Sheet (except Packaging) Manufacturing;
• NAICS 327910—Abrasive Product Manufacturing;
• NAICS 333999—All Other Miscellaneous General Purpose Machinery Manufacturing;
• NAICS 334511—Search, Detection, Navigation, Guidance, Aeronautical, and Nautical System and Instrument Manufacturing;
• NAICS 336111—Automobile Manufacturing;
• NAICS 423120—Motor Vehicle Supplies and New Parts Merchant Wholesalers;
• NAICS 423420—Office Equipment Merchant Wholesalers;
• NAICS 423510—Metal Service Centers and Other Metal Merchant Wholesalers;
• NAICS 423740—Refrigeration Equipment and Supplies Merchant Wholesalers;
• NAICS 423990—Other Miscellaneous Durable Goods Merchant Wholesalers;
• NAICS 424690—Other Chemical and Allied Products Merchant Wholesalers;
• NAICS 424720—Petroleum and Petroleum Products Merchant Wholesalers (except Bulk Stations and Terminals);
• NAICS 424950—Paint, Varnish, and Supplies Merchant Wholesalers;
• NAICS 441110—New Car Dealers;
• NAICS 447190—Other Gasoline Stations;
• NAICS 551112—Offices of Other Holding Companies; and
• NAICS 562—Waste Management and Remediation Services.
This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Persons who import any chemical substance governed by a final SNUR are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements and the corresponding regulations at 19 CFR 12.118 through 12.127; see also 19 CFR 127.28. Those persons must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA, including any SNUR requirements. The EPA policy in support of import certification appears
If you have any questions regarding the applicability of this action to a particular entity, consult the technical information contact listed under
TSCA section 5(a)(2) (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including those listed in TSCA section 5(a)(2) (see Unit IV). Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1) requires persons to submit a significant new use notice (SNUN) to EPA at least 90 days before they manufacture (including import) or process the chemical substance for that use (15 U.S.C. 2604(a)(1)(B)(i)). TSCA further provides that such manufacturing (including import) or processing may not commence until EPA has conducted a review of the notice, made an appropriate determination on the notice, and taken such actions as are required in association with that determination (15 U.S.C. 2604(a)(1)(B)(ii)). As described in Unit V., the general SNUR provisions are found at 40 CFR part 721, subpart A.
TSCA section 26(c) (15 U.S.C. 2625(c)) authorizes EPA to take action under other sections of TSCA with respect to categories of chemical substances.
To protect health and the environment and ensure EPA review of significant new uses of certain PFAS, EPA is proposing a SNUR for those PFAS that are currently on the TSCA Inventory but which have not been actively manufactured (including imported) or processed in the U.S. since 2006 and are consequently designated as inactive on the TSCA Chemical Substance Inventory. PFAS are a group of synthetic chemicals that have been in use since the 1940s and are still used in a wide range of consumer products and industrial applications. This proposed action is part of the comprehensive approach outlined in the Agency's “PFAS Strategic Roadmap: EPA's Commitments to Action 2021-2024” to proactively prevent PFAS from entering air, land, and water at levels that can adversely impact human health and the environment (Ref. 1).
If a chemical is on the TSCA Chemical Substance Inventory (“TSCA Inventory”), that chemical substance is considered an “existing” chemical substance in U.S. commerce. In some instances, the chemicals listed on the TSCA Inventory have not been actively manufactured for many years and are designated as “inactive” on the TSCA Inventory. The chemical substances for which EPA is proposing a SNUR are those PFAS that are both currently designated as inactive on the TSCA Inventory and not subject to an existing SNUR, including the existing SNURs cited at 40 CFR 721.9582 and 721.10536. This category of PFAS chemical substances (“inactive PFAS”) is described further in Unit II.A. There are 330 inactive PFAS that are not subject to an existing SNUR. The specific chemical identities for 30 of these substances that have been claimed as CBI have generic names (the nonconfidential substitute for the specific chemical name) that do not contain “fluor” or “fluorine.”
The proposed significant new uses are manufacture (including import) or processing for any use. The proposed significant new uses EPA has identified in this unit are based on reasonably available information that indicates that these uses are not ongoing at the time of this proposed rule; according to the TSCA Inventory they are inactive, meaning that those chemicals have not been manufactured (including imported) or processed in the United States since June 21, 2006. EPA is requesting public comment on this proposal, and specifically on the Agency's description of the significant new uses for the chemicals identified, including specific documentation of ongoing uses, if any.
This proposed SNUR would require persons that intend to manufacture (including import) or process any of these chemicals for a significant new use, consistent with the requirements at 40 CFR 721.25, to notify EPA at least 90 days before commencing such manufacture (including import) or processing. Once EPA receives a notification, EPA must either determine that the significant new use is not likely to present an unreasonable risk of injury to health or the environment, or take such regulatory action as is associated with an alternative determination, before the manufacture or processing for the significant new use could commence.
As noted previously, this action is part of the comprehensive approach outlined in the Agency's “PFAS Strategic Roadmap: EPA's Commitments to Action 2021-2024” to proactively prevent PFAS from entering air, land, and water at levels that can adversely impact human health and the environment (Ref. 1). When TSCA was first passed, thousands of chemicals, including some PFAS, were grandfathered in under the statute and allowed to remain in commerce without additional EPA review. Before TSCA was amended in 2016, EPA completed formal reviews on only about 20% of new chemicals and had no authority to address new chemicals about which the Agency lacked sufficient information, which is part of the reason why many chemicals, including PFAS, were allowed into commerce without a complete review. Under the new law, the agency has to formally review the safety of 100% of new chemicals before they are allowed into commerce. One common characteristic of concern of PFAS is that many break down very slowly and can build up in people, animals, and the environment over time. This proposed SNUR is necessary to ensure that EPA receives timely advance notice of any future manufacturing (including import) or processing of inactive PFAS for new uses that may produce changes in human or environmental exposures, and to ensure that an appropriate determination (relevant to the risks associated with such manufacturing (including import), processing, distribution in commerce, use and disposal) has been issued prior to the commencement of such manufacturing (including import) or processing. The proposed action is necessary to ensure that manufacturing (including importing) or processing for the significant new use cannot proceed in the event that EPA determines that: (1) The significant new use presents an unreasonable risk under the conditions of use (without consideration of costs or other nonrisk factors, and including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by EPA); (2) The information available to EPA is insufficient to permit a reasoned evaluation of the health and environmental effects of the significant new use; (3) In the absence of sufficient information, the manufacture (including import), processing, distribution in commerce, use, or disposal of the substance, or any combination of such
With respect to the chemical substances listed in the proposed regulatory text, all manufacturing (including importing) and processing ceased on or before June 21, 2006, as discussed in Unit II.A. Any new manufacturing (including importing) or processing for any use following that date would thus significantly change the volume of production, which is believed to be negligible.
EPA is proposing to exempt from the notice requirement PFAS present as impurities, certain byproducts, and the importing or processing of inactive PFAS-containing articles defined at 40 CFR 721.45(d) through (f) because notification for the commercial activity designation (as active or inactive) on the TSCA Inventory is not required for such substances (see 40 CFR 710.27(a)).
The rationale and objectives for this proposed SNUR are further explained in Unit III.
EPA has evaluated the potential costs of establishing SNUR reporting requirements for potential manufacturers (including importers) and processors of the chemical substances included in this proposed rule. This analysis (Ref. 2), which is available in the docket, is discussed in Unit IX., and is briefly summarized here.
In the event that a SNUN is submitted, costs are estimated to be approximately $26,737 per SNUN submission for large business submitters and $11,047 for small business submitters. In addition, for persons exporting a substance that is the subject of a SNUR, a one-time notice to EPA must be provided for the first export or intended export to a particular country, which is estimated to be approximately $106 per notification.
1.
2.
3.
This proposed SNUR would apply to chemical substances designated as inactive on the TSCA Inventory that are also PFAS. However, EPA is proposing that inactive PFAS already subject to a significant new use rule, including but not limited to the significant new use rules cited at 40 CFR 721.9582 and 721.10536, are not subject to notice requirements under this section to avoid potential redundancies or conflicts between the SNURs. Inactive chemical substances on the TSCA Inventory are those chemical substances that have not been manufactured (including imported) or processed since June 21, 2006.
TSCA section 8(b) requires EPA to compile, keep current and publish a list of each chemical substance that is manufactured (including imported) or processed in the United States for uses under TSCA. Also called the “TSCA Inventory” or simply “the Inventory,” it plays a central role in the regulation of most industrial chemicals in the United States. TSCA also requires EPA to designate each chemical substance on the TSCA Inventory as either “active” or “inactive” in U.S. commerce (15 U.S.C. 2607(b)(4)(A)). To accomplish that, EPA finalized a rule requiring industry to notify the Agency of each chemical substance manufactured (including imported) or processed in the U.S. over a 10-year period ending on June 21, 2016 (with certain exemptions from reporting at 40 CFR 710.27(a)) (Ref. 3). This reporting was completed on October 5, 2018 and, combined with data received under the Chemical Data Reporting (CDR) rule in 2012 and 2016, was used to designate each chemical substance on the TSCA Inventory as active or inactive in U.S. commerce. Starting August 5, 2019, manufacturers (including importers) and processors have been required to notify EPA before reintroducing inactive substances into U.S. commerce. Moving a chemical substance from an inactive designation to an active designation on the TSCA Inventory does not require review by EPA, only that EPA be notified via a Notice of Activity form.
EPA has published several SNURs covering certain perfluoroalkyl sulfonates (67 FR 11007, March 11, 2002 (FRL-6823-6); 67 FR 72854, December 9, 2002 (FRL-7279-1); 72 FR 57222, October. 9, 2007 (FRL-8150-4); 78 FR 62443, October 22, 2013 (FRL-9397-1)) and long-chain perfluoroalkyl carboxylate chemical substances (85 FR 45124, July 27, 2020 (FRL-10010-44)), that use a structural definition, as opposed to a discrete list, for the PFAS covered in the SNURs. Additionally, other SNURs (85 FR 45124, July 27, 2020 (FRL-10010-44; 58 FR 27944, May 12, 1993 (FRL-4077-7), as amended at 58 FR 34204, June 23, 1993 (FRL-4587-1)) and the polymer exemption rule for pre-manufacture notices (PMNs) (60 FR 16316-16336, March 29, 1995 (FRL-4929-8)) define covered PFAS polymers using structural definitions (40 CFR 723.250)). Other scientific and regulatory bodies such as the Organization of Economic Cooperation and Development (OECD) (Ref.
For the purposes of this proposed SNUR, the definition of “PFAS” includes chemicals that contain at least one of these three structures:
• R-(CF2)-CF(R′)R″, where both the CF2 and CF moieties are saturated carbons;
• R-CF2OCF2-R′, where R and R′ can either be F, O, or saturated carbons; or
• CF3C(CF3)R′R″, where R′ and R″ can either be F or saturated carbons.
While this proposed definition was developed to focus on substances most likely to be persistent in the environment while excluding those substances that are “lightly” fluorinated (
EPA notes that this definition may not be identical to other definitions of PFAS used within EPA or by other domestic or international organizations. The term “PFAS” has been used broadly for varying research and/or regulatory needs. Various EPA programs may have distinct needs or purposes from this proposed SNUR, and therefore, different definitions of the term “PFAS” may be appropriate for other purposes. EPA does not have one Agency-wide definition of PFAS. For example, a definition from EPA's Office of Water might focus on PFAS that have been detected in water, whereas a definition for TSCA might be one for PFAS that are expected the be manufactured and processed for uses subject to TSCA. The Agency notes that this perspective, that different entities may have very different needs and no single PFAS characterization or definition meets all needs, is shared by other organizations, including the OECD (Ref.
Chemical substances that fall within the scope of this proposed definition of PFAS encompass chemical substances that meet the structural definitions used in existing SNURs covering PFAS. However, the proposed regulatory text clarifies that PFAS subject to an existing SNUR would be excluded from this proposed SNUR. The Agency is proposing to exclude these substances from the scope of this proposed rule to avoid potential redundancies or conflicts between the SNURs. Such conflicts may arise because of chemical or use-specific exemptions from the existing significant new uses or because EPA had a reason to lift general exemptions from an existing SNUR that would still apply under this proposed SNUR.
The chemical substances for which EPA is proposing a SNUR are the 330 PFAS that are both currently designated as inactive on the TSCA Inventory and not subject to an existing SNUR. The specific chemical identities for 30 of these substances that have been claimed as CBI have generic names (the nonconfidential substitute for the specific chemical name) that do not contain “fluor” or “fluorine.” EPA is providing a list of the 300 inactive PFAS that do not mask “fluor” or “fluorine” in the generic name in the public docket for this proposed rule (Ref. 6). Because EPA is proposing to use a structural definition of PFAS for this SNUR, EPA need not take additional steps to ensure that the SNUR lists the 30 inactive PFAS that are not subject to an existing SNUR and whose generic names do not contain “fluor” or “fluorine”. The specific chemical identities of these substances have been claimed as CBI, and their generic names are the nonconfidential substitute for the specific chemical name that is treated as confidential. TSCA section 14(c)(1)(C) requires that generic names describe the chemical structure of the chemical substance as specifically as practicable while protecting those features of the chemical structure that are claimed as confidential; and the disclosure of which would be likely to cause substantial competitive harm. Generic names are intended to reveal information about the chemical identity while masking those structural elements that are confidential. The lack of “fluor” or “fluorine” in a generic name masks that the chemical substance is a PFAS and information masked by a generic name is considered to be subject to a CBI claim. Therefore, listing the generic names of these substances on a list of PFAS would disclose structural information for these substances that has been claimed CBI. As a courtesy, EPA is also providing a list of 300 inactive PFAS that do not mask “fluor” or “fluorine” in the generic name in the public docket for this proposed rule (Ref. 6).
EPA seeks comment on whether the Agency should take further action to list out in the regulation either the specific chemical identity or generic name of all of the chemicals that fall within the scope of the proposed SNUR, including those with generic names that mask that the chemical substance as PFAS, since this proposed rule covers a specific list of substances. EPA describes two approaches that it could take to make such a list available below and seeks public input on each such approach.
First, EPA could determine that there are no applicable CBI claims for the generic names of the masked PFAS substances using the process described in 40 CFR 2.204(c). In other words, EPA could use that process to determine that the limited structural information that would be disclosed by identifying substances whose generic names do not include “fluor” or “fluorine” as PFAS is not CBI. EPA proposes making a good faith effort to identify and contact the original submitters of each such PFAS and/or document that EPA cannot find a successor entity to a submitter that does not continue to operate, then determining that the generic names that do not include “fluor” or “fluorine” are not entitled to confidential treatment under 40 CFR 2.204(c)(3).
Alternatively, EPA could use the process under TSCA section 14(d)(7) and 40 CFR 2.306(i)/2.301(g)(2), whereby the Agency may disclose information claimed CBI if the Administrator determines that disclosure is relevant in a proceeding under TSCA and the disclosure preserves confidentiality to the extent practicable without impairing the proceeding. Under this alternative, EPA would not disclose the specific chemical identity as part of the rulemaking. Rather, EPA would list the generic names that lack fluor or fluorine, disclosing that the chemical is a PFAS. EPA believes this is a limited form of disclosure that would be consistent with TSCA section 14(d)(7).
As discussed previously, the term inactive PFAS refers to PFAS that EPA designated as “inactive” in U.S. commerce on the TSCA Inventory (15 U.S.C. 2607(b)(4)(A)). Starting August 5, 2019, manufacturers (including importers) and processors have been required to provide notice to EPA to
The Active-Inactive Rule also includes an exemption from notification for the manufacturing or processing of a chemical substance as described in 40 CFR 720.30(g) or (h) (40 CFR 710.27(a)(3)). Relevant to this proposed rule, the exemption at 40 CFR 720.30(h) covers “[a]ny byproduct which is not used for commercial purposes.” Thus, there may be inactive PFAS that were not reported under the Active-Inactive Rule because they were only manufactured or processed as byproducts that are not used for commercial purposes. There is no such broad exemption for byproducts in EPA's general SNUR regulations at 40 CFR 721.45. Rather, EPA has only exempted byproducts from SNUR notification requirements in the limited circumstances where:
Due to their widespread use and persistence in the environment, most people in the United States have been exposed to PFAS. Biological sampling has discovered the presence of certain PFAS in fish and in fish-eating birds across the United States and in locations in Canada, Sweden, and the South Pacific. The wide distribution of the chemicals in high trophic levels is strongly suggestive of the potential for bioaccumulation and/or bioconcentration. Based on currently available information, EPA believes that in addition to persistence, the length of the perfluorinated chain may also have an effect on bioaccumulation and toxicity, which are characteristics of concern for these chemicals (Ref. 7). EPA expects that there are likely limited potential routes and sources of exposure to the inactive PFAS covered by the proposed SNUR because these substances have not been manufactured or processed for nonexempt uses in the United States since 2006. However, exposure may be possible because some PFAS are known to persist in the environment and have been shown to bioaccumulate in wildlife and humans (Refs. 7 and 8).
When TSCA was first passed, thousands of chemicals, including some PFAS, were grandfathered in under the statute and allowed to remain in commerce without additional EPA review. Before TSCA was amended in 2016, EPA completed formal reviews on only about 20% of new chemicals and had no authority to address new chemicals about which the Agency lacked sufficient information, which is part of the reason why many chemicals, including PFAS, were allowed into commerce without a complete review. Under the new law, the agency has to formally review the safety of 100% of new chemicals before they are allowed into commerce. On October 18, 2021, EPA issued the “PFAS Strategic Roadmap: EPA's Commitments to Action 2021-2024” (Ref. 1). This proposed action is part of a comprehensive approach to proactively prevent PFAS from entering air, land, and water at levels that can adversely impact human health and the environment. In the Roadmap, EPA committed to considering how to apply TSCA section 5(a)(2) authority to help address abandoned uses of PFAS as well as future uses of PFAS designated as inactive on the TSCA Inventory.
In the absence of a SNUR, manufacturing (including importing) or processing for the significant new uses proposed in this rule may begin at any time after a manufacturer submits a Notice of Activity under section 8 of TSCA and the substance becomes “active” on the TSCA Inventory; EPA would not be provided prior notice under section 5 or an opportunity to review and address potential risks associated with the proposed new use. EPA believes that the manufacture (including import) or processing for any use of inactive PFAS would increase the magnitude and duration of exposure to humans and the environment to these chemicals that are persistent and bioaccumulate. Given the concerns described in Unit II., EPA believes that notification and EPA's required review are warranted for these chemicals prior to their potential reintroduction into commerce.
Consistent with EPA's past practice for issuing SNURs under TSCA section 5(a)(2), EPA's decision to propose a SNUR for a particular chemical use need not be based on an extensive evaluation of the hazard, exposure, or potential risk associated with that use. If a person decides to begin manufacturing (including importing) or processing any of these chemicals for the use, the notice to EPA allows the Agency to evaluate the use according to the specific parameters and circumstances surrounding the conditions of use at the time it receives such a notification.
Based on the considerations in Unit III.A., EPA wants to achieve the following objectives with regard to the significant new use(s) of inactive PFAS that are designated in this proposed rule:
1. EPA would receive notice of any person's intent to manufacture (including import) or process the chemical substances for the described significant new use before that activity begins.
2. EPA would have an opportunity to review and evaluate information submitted in a SNUN before the notice submitter begins manufacturing (including importing) or processing the chemical substances for the described significant new use.
3. EPA must either determine that the significant new use is not likely to present an unreasonable risk of injury or take such regulatory action as is associated with an alternative determination under TSCA section 5 before the manufacture or processing for the significant new use could commence.
TSCA section 5(a)(2) states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors including:
• The projected volume of manufacturing and processing of a chemical substance.
• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.
• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.
• The reasonably anticipated manner and methods of manufacturing (including importing), processing, distribution in commerce, and disposal of a chemical substance.
In addition to these factors enumerated in TSCA section 5(a)(2), the statute authorizes EPA to consider any other relevant factors.
To determine what would constitute a significant new use of an inactive PFAS, EPA considered relevant information about the toxicity or expected toxicity of these substances, likely human exposures and environmental releases associated with possible uses, and the four factors listed in section 5(a)(2) of TSCA. Since the manufacture (including import) and processing of inactive PFAS has been discontinued in the United States see Unit II., exposure will decrease over time. As such, EPA expects their presence in humans and the environment to decline over time. If any new uses of inactive PFAS were to resume after having been phased out, EPA believes that such uses could both change the type and form and increase the magnitude and duration of human and environmental exposure to the substances, constituting a significant new use. Based on consideration of the statutory factors discussed herein, EPA has preliminarily determined as significant new uses: manufacture (including import) or processing of inactive PFAS for any use.
General provisions for SNURs appear under 40 CFR part 721, subpart A. These provisions describe persons subject to the proposed rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the proposed rule to uses occurring before the effective date of the final rule.
Provisions relating to user fees appear at 40 CFR part 700. According to 40 CFR 721.1(c), persons subject to SNURs must comply with the same notice requirements and EPA regulatory procedures as submitters of PMNs under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA sections 5(b) and 5(d)(1), the exemptions authorized by TSCA sections 5(h)(1), (h)(2), (h)(3), and (h)(5), and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA must either determine that the significant new use is not likely to present an unreasonable risk of injury or take such regulatory action as is associated with an alternative determination under TSCA section 5 before the manufacturing (including importing) or processing for the significant new use could commence. If EPA determines that the significant new use is not likely to present an unreasonable risk, EPA is required under TSCA section 5(g) to make public, and submit for publication in the
Persons who export or intend to export a chemical substance identified in a proposed or final SNUR are subject to the export notification provisions of TSCA section 12(b). The regulations that interpret TSCA section 12(b) appear at 40 CFR part 707, subpart D. Persons who import a chemical substance identified in a final SNUR are subject to the TSCA section 13 import certification requirements, codified at 19 CFR 12.118 through 12.127; see also 19 CFR 127.28. Those persons must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA, including any SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B.
As discussed in the
Persons who begin commercial manufacturing (including importing) or processing of the chemical substances for a significant new use identified as of January 26, 2023 would have to cease any such activity upon the effective date of the final rule. To resume their activities, these persons would have to first comply with all applicable SNUR notification requirements and wait until all TSCA prerequisites for the commencement of manufacturing (including importing) or processing have been satisfied. Consult the
EPA recognizes that TSCA section 5 does not usually require developing new information (
In the absence of a section 4 test rule or order covering the chemical substance, persons are required to submit only information in their possession or control and to describe any other information known to or reasonably ascertainable by them (15 U.S.C. 2604(d); 40 CFR 721.25, and 40 CFR 720.50). However, as a general matter, EPA recommends that SNUN submitters include information that would permit a reasoned evaluation of risks posed by the chemical substance during its manufacture (including import), processing, distribution in
Submitting a SNUN that does not include information sufficient to permit a reasoned evaluation may increase the likelihood that EPA will either respond with a determination that the information available to the Agency is insufficient to permit a reasoned evaluation of the health and environmental effects of the significant new use or, alternatively, that in the absence of sufficient information, the manufacture, processing, distribution in commerce, use, or disposal of the chemical substance may present an unreasonable risk of injury.
SNUN submitters should be aware that EPA will be better able to evaluate SNUNs and define the terms of any potentially necessary controls if the submitter provides detailed information on human exposure and environmental releases that may result from the significant new use of the chemical substances.
EPA recommends that submitters consult with the Agency prior to submitting a SNUN to discuss what information may be useful in evaluating a significant new use notice. Discussions with the Agency prior to submission can afford ample time to conduct any tests that might be helpful in evaluating risks posed by the substance. According to 40 CFR 721.1(c), persons submitting a SNUN must comply with the same notice requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in 40 CFR 720.50. SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 721.25 and 40 CFR 720.40. E-PMN software is available electronically at
EPA has evaluated the potential costs of establishing SNUR reporting requirements for potential manufacturers (including importers) and processors of the chemical substances included in this proposed rule (Ref. 2). In the event that a SNUN is submitted, costs are estimated at approximately $26,737 per SNUN submission for large business submitters and $11,047 for small business submitters. These estimates include the cost to prepare and submit the SNUN, and the payment of a user fee. Businesses that submit a SNUN would be subject to either a $19,020 user fee required by 40 CFR 700.45(b)(2)(iii), or, if they are a small business as defined at 13 CFR 121.201, a reduced user fee of $3,300 (40 CFR 700.45(b)(1)). Additionally, these estimates reflect the costs and fees as they are known at the time this rule is promulgated. EPA's complete economic analysis is available in the public docket for this proposed rule (Ref. 2).
Under TSCA section 12(b) and the implementing regulations at 40 CFR part 707, subpart D, exporters must notify EPA if they export or intend to export a chemical substance or mixture for which, among other things, a rule has been proposed or promulgated under TSCA section 5. For persons exporting a substance that is the subject of a SNUR, a one-time notice to EPA must be provided for the first export or intended export to a particular country. The total costs of export notification will vary by chemical, depending on the number of required notifications (
EPA is also requesting public comment on the alternative of lifting the article exemption at 40 CFR 721.45(f). Under this alternative, the import and processing of articles containing inactive PFAS would be designated as a significant new use. EPA is not proposing this regulatory alternative, at this time, because it cannot currently determine whether or what types of articles containing PFAS covered by the definition in this proposed SNUR are ongoing or not. The import or processing of substances solely as part of articles is exempt from the notification requirements under the Active-Inactive Rule (Ref. 3). Consequently, the TSCA Inventory does not list chemical substances that are solely processed or imported as part of articles. The TSCA Inventory list of inactive PFAS therefore does not take into account ongoing importation or processing of PFAS in articles. EPA's SNURs are often amended, however, as ongoing uses of the chemical substances are phased out. Therefore, as EPA collects evidence and determines that the importing or processing of inactive PFAS into articles is no longer ongoing, EPA may consider whether to make inapplicable the articles exemption at 40 CFR 721.45(f).
EPA also seeks comment on the potential impact on firms that plan to import or process articles containing inactive PFAS, because, while not required by the proposed SNUR, these parties may take additional steps to determine whether inactive PFAS are part of the articles that they are considering to import or process.
EPA has used scientific information, technical procedures, measures, methods, protocols, methodologies, and models consistent with the best available science, as applicable. These information sources supply information relevant to whether a particular use would be a significant new use, based on relevant factors including those listed under TSCA section 5(a)(2). As noted in Unit III., EPA's decision to promulgate a SNUR for a particular chemical use need not be based on an extensive evaluation of the hazard, exposure, or potential risk associated with that use.
The clarity and completeness of the data, assumptions, methods, quality assurance, and analyses employed in EPA's decision are documented, as applicable and to the extent necessary for purposes of this proposed significant new use rule, in Unit II. and in the references cited throughout the preamble of this proposed rule. EPA recognizes, based on the available information, that there is variability and uncertainty in whether any particular significant new use would actually present an unreasonable risk. For precisely this reason, it is appropriate to secure a future notice and review process for these uses, at such time as they are known more definitely. The
The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not physically located in the docket. For assistance in locating these other documents, please consult the technical person listed under
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action under Executive Order 12866 (58 FR 51735, October 4, 1993) and was therefore not submitted to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).
This action does not impose any new information collection burden under the PRA, 44 U.S.C. 3501
I certify this action will not have a significant economic impact on a substantial number of small entities under the RFA, 5 U.S.C. 601
A SNUR applies to any person (including small or large entities) who intends to engage in any activity described in the proposed rule as a “significant new use.” By definition of the word “new” and based on all information currently available to EPA, it appears that no small or large entities presently engage in such activities. Since this SNUR will require a person who intends to engage in such activity in the future to first notify EPA by submitting a SNUN, no economic impact will occur unless someone files a SNUN to pursue a significant new use in the future or forgoes profits by avoiding or delaying the significant new use. Although some small entities may decide to conduct such activities in the future, EPA cannot presently determine how many, if any, there may be. However, EPA's experience to date is that, in response to the promulgation of SNURs covering over 1,000 chemical substances, the Agency receives only a handful of notices per year (Ref. 2). EPA believes the cost of submitting a SNUN is relatively small compared to the cost of developing and marketing a chemical new to a firm or marketing a new use of the chemical and that the requirement to submit a SNUN generally does not have a significant economic impact.
Therefore, EPA believes that the potential economic impact of complying with this proposed SNUR is not expected to be significant or adversely impact a substantial number of small entities. In a SNUR that published as a final rule on August 8, 1997 (62 FR 42690), the Agency presented its general determination that proposed and final SNURs are not expected to have a significant economic impact on a substantial number of small entities.
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 as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). It will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Thus,
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997), as applying only to those regulatory actions that concern environmental health or safety risks that the Agency has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.
This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution or use of energy and has not otherwise been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action.
This rulemaking does not involve any technical standards under section 12(d) of NTTAA, 15 U.S.C. 272 note.
Executive Order 12898 (59 FR 7629, February 16, 1994) directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations (people of color and/or Indigenous peoples) and low-income populations.
EPA believes that the human health and environmental conditions that exist prior to this action do not result in disproportionate and adverse effects on people of color, low-income populations, and/or Indigenous peoples because the Agency believes that the inactive PFAS included in this action are no longer being manufactured (including imported) or processed for any uses in the United States.
EPA believes that it is not practicable to assess whether this action is likely to result in new disproportionate and adverse effects on people of color, low-income populations and/or Indigenous peoples because the Agency is not able anticipate which chemical substances and uses, if any, will be submitted for a significant new use notice under this action.
Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.
Therefore, for the reasons set forth in the preamble, it is proposed that 40 CFR chapter I be amended as follows:
15 U.S.C. 2604, 2607, and 2625(c).
(a)
(b)
(i) R-(CF2)-CF(R′)R″, where both the CF2 and CF moieties are saturated carbons;
(ii) R-CF2OCF2-R′, where R and R′ can either be F, O, or saturated carbons; and
(iii) CF3C(CF3)R′R″, where R′ and R″ can either be F or saturated carbons.
(2) The significant new uses for the chemical substances identified in paragraph (b)(1) of this section are: manufacture (including import) or processing for any use.
(c)
(d)
Corporation for National and Community Service.
Proposed rule with request for comments.
The Corporation for National and Community Service (operating as AmeriCorps) is proposing to update its regulations to reflect current position titles and roles, define the statutory phrase “direct cost of supporting volunteers,” revise provisions that no longer reflect AmeriCorps' practice, and make technical changes. The position titles must be updated because VISTA now operates through Regional Administrators, rather than State Program Directors. The statutory phrase interpretation is necessary because under its authorizing statute, AmeriCorps may not provide a non-competitive grant for the “direct cost of supporting volunteers” to projects less than one year old. This proposed rule would define the phrase to include those funds paid directly for the support of VISTA volunteers, such as living allowances, travel reimbursements, and end-of-service benefits, but not funds paid for the support of the VISTA sponsor organization. This change would make VISTA projects more accessible to organizations in underserved communities that may not have otherwise been able to secure the resources to devote a supervisor or certain administrative costs to a new project.
Written comments must be submitted by March 27, 2023.
You may send your comments electronically through the Federal government's one-stop rulemaking website at
Carly Bruder, Acting Director, AmeriCorps VISTA, at
AmeriCorps VISTA is a national service program designed to provide needed resources to nonprofit organizations and public agencies to strengthen and supplement efforts to address poverty and poverty-related problems in the United States and certain U.S. territories. The VISTA program provides opportunities for individuals to join as volunteers (“members”) who perform, on a full-time basis, service with an organization (“sponsor”) to create, strengthen, or expand initiatives designed to assist individuals and communities in addressing poverty. Each year, the AmeriCorps VISTA program awards non-grant (
The Domestic Volunteer Service Act of 1973 (DVSA) states that AmeriCorps may not provide a grant for the “direct cost of supporting volunteers” to any project that is less than one year old unless that grant is awarded competitively.
This proposed rule would define “direct cost of supporting volunteers” to include only the funds paid directly for the support of VISTA members, such as living allowances, travel reimbursements, and end-of-service benefits. With this definition, the proposed rule would make clear that AmeriCorps can provide noncompetitive grants to support a VISTA sponsor organization, including funds to support the sponsor organization's supervisor, for a VISTA project that is less than one year old. Over the past few years, sponsors with projects less than a year old have not been able to access noncompetitive support grants because of AmeriCorps' previous broad interpretation of the phrase “direct cost of supporting volunteers” to include not only the costs of supporting members but also the costs of supporting the sponsor's supervisor. The proposed rule would make VISTA projects more accessible to sponsor organizations in underserved communities who may not have otherwise been able to secure the resources to devote a supervisor or certain administrative costs to a new project. The limitations on VISTA sponsors receiving funding for the direct cost of supporting volunteers are set out in proposed § 2556.180.
This proposed rule would also update position titles and roles to reflect current agency organization, revise provisions that no longer reflect current practice, and make technical changes. Specifically, the proposed rule would:
• In the definitions section, at § 2556.5:
○ Delete the definitions of “Area Manager” and “State Program Director”
○ Add definitions for “Deputy Regional Administrator,” “Portfolio Manager,” “Regional Administrator,” “Senior Portfolio Manager,” “VISTA Case Manager,” and “VMSU Director.”
○ Replace the definition of “CNCS” with a definition of “AmeriCorps” to reflect that the Agency operates as AmeriCorps.
• In § 2556.200, clarify that both the age and citizenship status of the individual entering VISTA service are determined at the time they take their oath or affirmation of service, and delete “lawful permanent resident” as an example of individuals legally residing in a State because there may be additional categories of individuals legally residing in a State that are not technically “lawful permanent residents” (
• In § 2556.305(c), delete the requirement for VISTA members to actively seek opportunities to engage with the low-income community because the nature of modern service requirements may not provide for those opportunities, and delete “without regard to regular working hours” because paragraph (a) already addresses that point.
• In § 2556.320(d) and § 2556.505(b)(2), replace reference to a “baggage allowance” benefit to transport personal effects to the project site with reference to a “location travel allowance” to offset the cost of relocating from the home of record to the project site, to more accurately describe what the allowance is provided for.
• In § 2556.350(b)(3), add “the content of” to clarify that matters excluded from the VISTA program grievance procedures include those related to the content of any law, published rule, regulation, policy or procedure.
• In § 2556.500, delete paragraph (a), which provides that the State Program Director invites sponsors in the State to apply for positions for individuals to serve as summer associates at the sponsor's VISTA project, because the current process does not include a separate invitation outside of the annual award-making process.
• In § 2556.610, remove the list of specific components of a sponsor recommendation, to allow sponsors greater flexibility in drafting their recommendations, and instead clarify the criteria that AmeriCorps relies upon when selecting leaders as including consideration of the individual's experience, special skills, and leadership.
• Make the following updates to position titles and agency organization:
○ In § 2556.320(i), change “State Program Director” to “VISTA Case Manager” for the role of determining if a VISTA did not successfully complete a full term of service because of a compelling personal circumstance;
○ In § 2556.360(a), change “State Program Director” to “Deputy Regional Administrator” for the role of receiving and issuing a determination on a grievance brought by a VISTA;
○ In § 2556.365, change “Area Manager” to “Regional Administrator” as the official who will receive an appeal of a VISTA grievance, and change “State Program Director” to “Deputy Regional Administrator”;
○ In § 2556.410, change “State Program Director” to “Portfolio Manager” for handling requests of sponsoring organizations to remove a VISTA member from its project;
○ In § 2556.420(a), (b), and (d), change “State Program Director” and “State Program Director or other CNCS State Office Staff” to “AmeriCorps” generally, to allow the agency to determine and address in policy the appropriate personnel to handle termination for cause proceedings. In paragraphs (c) and (d), change “State Program Director” to “VISTA Case Manager” to specify that the VISTA Case Manager will be the person who sends a VISTA member a proposal to terminate, and to whom the member addresses any answer to the proposal;
○ In § 2556.425(a), change “State Program Director” to “the appropriate AmeriCorps Director” as the issuer of a termination decision and change “appropriate Area Manager” to “VMSU Director” as the official to whom a VISTA may submit an appeal of the termination decision, and in paragraph (d) change “Area Manager” to “VMSU Director” as the official issuing a written appeal determination.
○ In § 2556.625(k), change “State Office” to “Regional Office.”
• Throughout the regulation:
○ Change “CNCS” to “AmeriCorps” to reflect that the Agency operates as AmeriCorps;
○ Change “he or she” and “his or her” to gender-neutral “they” and “their”;
○ Change “shall” to “will” or “must” or other language as appropriate to more clearly convey in plain language what is required and allowed, and change “shall not” to “may not” in accordance with plain language guidelines in §§ 2556.105(b), 2556.120(a)-(b), 2556.125(b), 2556.130(a)-(e), 2556.135(b)-(e), 2556.140(c)-(f), 2556.145, 2556.150(f), 2556.155(d)-(e), 2556.160(a)-(b), 2556.165, 2556.170(d)(2), 2556.175(a), 2556.305(c), 2556.320(i)-(j), 2556.345(b)-(c), 2556.360(a)(3) and (b)(3), 2556.365(e), 2556.410(c), 2556.420(c)-(d), 2556.425(b) and (d), 2556.610(c), 2556.625(b), 2556.760(a)-(b), 2556.770(b), and 2556.780(a)-(b).
Other non-substantive changes were made to the text throughout to improve readability. Together, these changes are easiest to see in their context, with a reprinting of the entire part 2556.
Executive Orders (E.O.) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). 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 in the Office of Management and Budget does not anticipate that this will be a significant regulatory action.
As required by the Congressional Review Act (5 U.S.C. 801-808) before an interim or final rule takes effect, AmeriCorps will submit for an interim or final rule a report to each House of the Congress and to the Comptroller General of the United States. A major rule cannot take effect until 60 days after it is published in the
As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 601
For purposes of Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538, as well as Executive Order 12875, this regulatory action does not contain any Federal mandate that may result in increased expenditures in either Federal, State, local, or Tribal Governments in the aggregate, or impose an annual burden exceeding $100 million on the private sector.
Under the PRA, an agency may not conduct or sponsor a collection of information unless the collections of information display valid control numbers. This proposed rule does not affect any information collections.
Executive Order 13132, Federalism, prohibits an agency from publishing any rule that has federalism implications if the rule imposes substantial direct compliance costs on State and local Governments and is not required by statute, or the rule preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This rulemaking does not have any federalism implications, as described above.
This proposed rule does not affect a taking of private property or otherwise have taking implications under Executive Order 12630 because this proposed rule does not affect individual property rights protected by the Fifth Amendment or involve a compensable “taking.” A takings implication assessment is not required.
This proposed rule complies with the requirements of Executive Order 12988. Specifically, this rulemaking: (a) meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and (b) meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
AmeriCorps recognizes the inherent sovereignty of Indian Tribes and their right to self-governance. We have evaluated this rulemaking under our consultation policy and the criteria in E.O. 13175 and determined that this proposed rule does not impose substantial direct effects on federally recognized Tribes.
We are required by Executive Orders 12866 (section 1(b)(12)), and 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each proposed rule we publish must: (a) be logically organized; (b) use the active voice to address readers directly; (c) use clear language rather than jargon; (d) be divided into short sections and sentences; and (e) use lists and tables wherever possible. If you feel that we have not met these requirements, please send us comments by one of the methods listed in the
Grant programs—social programs, Volunteers.
For the reasons stated in the preamble, the Corporation for National and Community Service is proposing to amend title 45 of the Code of Federal Regulations by revising part 2556 to read as follows:
42 U.S.C. 4951-4953; 5 CFR part 734, 42 U.S.C. 4953(a), (f), 4954(b), (e), 4955(b), 4956, 5043(a)-(c), 5044(a)-(c), (e), 5046, 5052, 5056, and 5057; 42 U.S.C. 12651b (g)(10); 42 U.S.C. 12651c(c); E.O. 13279, 67 FR 77141, 3 CFR, 2002 Comp., p. 2156, 42 U.S.C. 4954(a), (b), (d), 4955, 5044(e), 5055, and 5059; 42 U.S.C. 12602(c), 42 U.S.C. 4953(b), (c), (f), and 5044(e).
(a) The purpose of the VISTA program is to strengthen and supplement efforts to eliminate and alleviate poverty and poverty-related problems throughout the United States and certain U.S.
(b) The VISTA program objectives are to:
(1) Generate private sector resources;
(2) Encourage volunteer service at the local level;
(3) Support efforts by local agencies and community organizations to achieve long-term sustainability of projects; and
(4) Strengthen local agencies and community organizations to carry out the purpose of the VISTA program.
This part may be of interest to:
(a) Private nonprofit organizations, public nonprofit organizations, State government agencies, local government agencies, Federal agencies, and Tribal government agencies who are participating in the VISTA program as sponsors, or who are interested in participating in the VISTA program as sponsors.
(b) Individuals 18 and older who are serving as a VISTA, or who are interested in serving as a VISTA.
(1) An election in which none of the candidates for nomination or election represents a political party for which candidates for Presidential elector received votes in the last preceding election at which Presidential electors were selected; or
(2) An election involving a question or issue which is not specifically identified with a political party, such as a constitutional amendment, referendum, approval of a municipal ordinance, or any question or issue of a similar character.
Upon a determination of good cause, the Chief Executive Officer of AmeriCorps may, subject to statutory limitations, waive any provisions of this part.
The following types of entities are eligible to apply to become VISTA sponsors and thereby undertake projects in the U.S. and certain U.S. territories:
(a) Private nonprofit organizations.
(b) Public nonprofit organizations.
(c) State government or State government agencies.
(d) Local government or local government agencies.
(e) Tribal government or Tribal government agencies.
(a) An entity is prohibited from being a VISTA sponsor or from otherwise receiving VISTA assistance if a principal purpose or activity of the entity includes any of the following:
(1)
(2)
(3)
(b) Any organization that, subsequent to the receipt of VISTA assistance, makes as one of its principal purposes or activities any of the activities described in paragraph (a) of this section is subject to the procedures in §§ 2556.125 through 2556.145.
(a) A sponsor may be approved for one or more VISTA positions.
(b) A sponsor, upon review and approval by AmeriCorps to establish a leader position or positions, and in accordance with criteria set forth at subpart G of this part, may be approved for one or more leader positions.
(c) A sponsor, upon approval by AmeriCorps to establish a summer associate position or positions, and in accordance with criteria set forth at subpart F of this part, may be approved for one or more summer associate positions.
(d) A sponsor may be eligible to receive certain grant assistance under the terms determined and prescribed by AmeriCorps.
(e) A sponsor may receive training and technical assistance related to carrying out the purposes of title I of the DVSA.
(a) A sponsor is not required to provide a cash match for any of the assistance listed in § 2556.110.
(b) A sponsor must provide supervision, workspace, service-related transportation, and any other materials necessary to operate and complete the VISTA project and support the VISTA.
(a) To the maximum extent practicable, the people of the communities to be served by VISTA members must participate in planning, developing, and implementing programs.
(b) The sponsor must articulate in its project application how it will engage or continue to engage relevant communities in the development and implementation of programs.
(a) AmeriCorps may deny or reduce VISTA assistance where a denial or reduction is based on:
(1) Legislative requirement;
(2) Availability of funding;
(3) Failure to comply with applicable term(s) or condition(s) of a contract, grant agreement, or an applicable Memorandum of Agreement;
(4) Ineffective management of AmeriCorps resources;
(5) Substantial failure to comply with AmeriCorps policy and overall objectives under a contract, grant agreement, or applicable Memorandum of Agreement; or
(6) General policy.
(b) In instances where the basis for denial or reduction of VISTA assistance may also be the basis for the suspension or termination of a VISTA project under this subpart, AmeriCorps is not limited to the use of this section to the exclusion of the procedures for suspension or termination in this subpart.
(a) AmeriCorps will notify the sponsor in writing, at least 75 calendar days before the anticipated denial or reduction of VISTA assistance, that AmeriCorps proposes to deny or reduce VISTA assistance. AmeriCorps' written notice will state the reasons for the decision to deny or reduce assistance and will provide an opportunity period for the sponsor to respond to the merits of the proposed decision. AmeriCorps retains sole authority to make the final determination as to whether the VISTA assistance at issue will be denied or reduced, as appropriate.
(b) Where AmeriCorps' notice of proposed decision is based upon a specific charge of the sponsor's failure to comply with the applicable term(s) or condition(s) of a contract, grant agreement, or an applicable Memorandum of Agreement, the notice will offer the sponsor an opportunity period to respond in writing to the notice, with any affidavits or other supporting documentation, and to request an informal hearing before a mutually agreed-upon impartial hearing officer. The authority of such a hearing officer will be limited to conducting the hearing and offering recommendations to AmeriCorps. Regardless of whether or not an informal hearing takes place, AmeriCorps will retain full authority to make the final determination as to whether the VISTA assistance is denied or reduced, as appropriate.
(c) If the recipient requests an informal hearing, in accordance with paragraph (b) of this section, such hearing will be held on a date specified by AmeriCorps and held at a location convenient to the sponsor.
(d) If AmeriCorps' proposed decision is based on ineffective management of resources, or on the substantial failure to comply with AmeriCorps policy and overall objectives under a contract, grant agreement, or an applicable Memorandum of Agreement, AmeriCorps will inform the sponsor in the notice of proposed decision of the opportunity to show cause why VISTA assistance should not be denied or reduced, as appropriate. AmeriCorps retains full authority to make the final determination whether the VISTA assistance at issue will be denied or reduced, as appropriate.
(e) The recipient will be informed of AmeriCorps' final determination on whether the VISTA assistance at issue is denied or reduced, and the basis for the determination.
(f) The procedure in this section does not apply to a denial or reduction of VISTA assistance based on legislative requirements, availability of funding, or on general policy.
(a) Suspension is any action by AmeriCorps that temporarily suspends or curtails assistance, in whole or in part, to all or any part of a VISTA project, prior to the time that the project term is concluded. Suspension does not include the denial or reduction of new or additional VISTA assistance.
(b) In an emergency situation for up to 30 consecutive days, AmeriCorps may suspend assistance to a sponsor, in whole or in part, for the sponsor's material failure or threatened material failure to comply with an applicable term(s) or condition(s) of the DVSA, the regulations in this part, VISTA program policy, or an applicable Memorandum of Agreement. Such suspension in an emergency situation will be pursuant to notice and opportunity to show cause why assistance should not be suspended.
(c) To initiate suspension proceedings, AmeriCorps will notify the sponsor in writing that AmeriCorps is suspending assistance in whole or in part. The written notice will contain the following:
(1) The grounds for the suspension and the effective date of the suspension;
(2) The sponsor's right to submit written material in response to the suspension to show why the VISTA assistance should not be suspended, or should be reinstated, as appropriate; and
(3) The opportunity to adequately correct the deficiency, or deficiencies, which led to AmeriCorps' notice of suspension.
(d) In deciding whether to continue or lift the suspension, as appropriate, AmeriCorps will consider any timely material presented in writing, any material presented during the course of any informal meeting, as well as any showing that the sponsor has adequately corrected the deficiency which led to the initiation of suspension.
(e) During the period of suspension of a sponsor, no new expenditures, if applicable, may be made by the sponsor's VISTA project at issue and no new obligations may be incurred in connection with the VISTA project at issue except as specifically authorized in writing by AmeriCorps.
(f) AmeriCorps may, at its discretion, modify the terms, conditions, and nature of the suspension or rescind the suspension action at any time, on its own initiative or upon a showing that the sponsor has adequately corrected the deficiency or deficiencies which led to the suspension and that repetition is not foreseeable.
(a) Termination means any action by AmeriCorps that permanently terminates or curtails assistance to all or any part of a sponsor's VISTA project prior to the time that the project term is concluded.
(b) AmeriCorps may terminate assistance to a sponsor in whole or in part for the sponsor's material failure to comply with an applicable term(s) or condition(s) of the DVSA, the regulations in this part, VISTA program policy, or an applicable Memorandum of Agreement.
(c) To initiate termination proceedings, AmeriCorps will notify the sponsor in writing that AmeriCorps is proposing to terminate assistance in whole or in part. The written notice will contain the following:
(1) A description of the VISTA assistance proposed for termination, the grounds that warrant such proposed termination, and the proposed date of effective termination;
(2) Instructions regarding the sponsor's opportunity, within 21 calendar days from the date the notice is issued, to respond in writing to the merits of the proposed termination and their right to request a full and fair hearing before a mutually agreed-upon impartial hearing officer; and
(3) Invitation of voluntary action by the sponsor to adequately correct the deficiency or deficiencies which led to AmeriCorps' notice of proposed termination.
(d) In deciding whether to effect termination of VISTA assistance, AmeriCorps will consider any relevant, timely material presented in writing; any relevant material presented during the course of any full and fair hearing; and any showing that the sponsor has adequately corrected the deficiency which led to the initiation of termination proceedings.
(e) Regardless of whether or not a full and fair hearing takes place, AmeriCorps retains all authority to make the final determination as to whether termination of VISTA assistance is appropriate.
(f) The sponsor will be informed of AmeriCorps' final determination on the proposed termination of VISTA assistance, and the basis or bases for the determination.
(g) AmeriCorps may, at its discretion, modify the terms, conditions, and nature of a termination action or rescind a termination action at any time on its own initiative, or upon a showing that the sponsor has adequately corrected the deficiency which led to the termination or the initiation of termination proceedings, and that repetition is not threatened.
The procedures established by this subpart do not preclude AmeriCorps from pursuing any other remedies authorized by law.
(a) A VISTA may not perform any activities in the project application that do not correspond with the purpose of the VISTA program, as described in § 2556.1, or that the Director has otherwise prohibited.
(b) A VISTA may not perform services or duties as a VISTA member that would otherwise be performed by employed workers or other volunteers (not including participants under the DVSA and the National and Community Service Act of 1990, as amended).
(c) A VISTA may not perform any services or duties, or engage in activities as a VISTA member, that supplant the hiring of or result in the displacement of employed workers or other volunteers (not including participants under the DVSA or the National and Community Service Act of 1990, as amended).
(d) A VISTA may not perform any services or duties, or engage in activities as a VISTA member, which impair existing contracts for service.
(e) The requirements of paragraphs (b) through (d) of this section do not apply when the sponsor requires the service in order to avoid or relieve suffering threatened by, or resulting from, a disaster, civil disturbance, terrorism, or war.
(f) A sponsor or subrecipient may not request or receive any compensation from a VISTA, from a beneficiary of VISTA project services, or any other source for services of a VISTA.
(a) A sponsor may carry out a VISTA project through one or more subrecipients that meet the eligibility criteria of § 2556.100.
(b) The sponsor must enter into a subrecipient agreement with each subrecipient. A subrecipient agreement must have at least the following elements:
(1) A project plan to be implemented by the subrecipient;
(2) Records to be kept and reports to be submitted;
(3) Responsibilities of the parties and other program requirements; and
(4) Suspension and termination policies and procedures.
(c) The sponsor retains the responsibility for compliance with a Memorandum of Agreement; the applicable regulations in this Part; and all applicable policies, procedures, and guidance issued by AmeriCorps regarding the VISTA program.
(d) A sponsor may not request or receive any compensation from a subrecipient for services performed by a VISTA.
(e) A sponsor may not receive payment from, or on behalf of, the subrecipient for costs of the VISTA assistance, except in two limited circumstances:
(1) For reasonable and actual costs incurred by the sponsor directly related to the subrecipient's participation in a VISTA project; and
(2) For any cost share related to a VISTA placed with the subrecipient in the VISTA project.
(a) A sponsor must enter into a written agreement for cost share as prescribed by AmeriCorps.
(b) A sponsor must make timely cost share payments as prescribed by AmeriCorps and applicable Federal law and regulations.
(c) In addition to other sources of funds, a sponsor may use funds from Federal, State, or local Government agencies, provided the requirements of those agencies and their programs are met.
(d) Subject to review and approval by AmeriCorps, AmeriCorps may enter into an agreement with another entity to receive and use funds to make cost share payments on behalf of the sponsor.
All sponsors and subrecipients that employ laborers and mechanics for construction, alteration, or repair of facilities must pay wages at prevailing rates as determined by the Secretary of Labor in accordance with the Davis-Bacon Act, as amended, 40 U.S.C. 276a.
(a) An individual with responsibility for the operation of a project that receives AmeriCorps assistance must not discriminate against a participant in, or member of the staff of, such project on the basis of the participant or staff member's race, color, national origin, sex, age, or political affiliation, or on the basis of disability, if the participant or staff member is a qualified individual with a disability.
(b) Any AmeriCorps assistance constitutes Federal financial assistance for purposes of title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d
(c) An individual with responsibility for the operation of a project that receives AmeriCorps assistance may not discriminate on the basis of religion against a participant in such project or a member of the staff of such project who is paid with AmeriCorps funds. This provision does not apply to the employment (with AmeriCorps assistance) of any staff member of an AmeriCorps-supported project who was employed with the organization operating the project on the date the AmeriCorps assistance was awarded.
(d) Sponsors must notify all program participants, staff, applicants, and beneficiaries of:
(1) Their rights under applicable Federal nondiscrimination laws, including relevant provisions of the national service legislation and implementing regulations; and
(2) The procedure for filing a discrimination complaint. No sponsor or subrecipient, or sponsor or subrecipient employee, or individual with responsibility for the implementation or operation of a sponsor or a subrecipient, may discriminate against a VISTA on the basis of race, color, national origin, gender, age, religion, or political affiliation. No sponsor or subrecipient, or sponsor or subrecipient employee, or individual with responsibility for the implementation or operation of a sponsor or a subrecipient, may discriminate against a VISTA on the basis of disability, if the VISTA is a qualified individual with a disability.
(a) A VISTA may not give religious instruction, conduct worship services, or engage in any form of proselytizing as part of their duties.
(b) A sponsor or subrecipient may retain its independence and may continue to carry out its mission, including the definition, development, practice, and expression of its religious beliefs, provided that it does not use any AmeriCorps assistance, including the services of any VISTA or VISTA assistance, to support any inherently religious activities, such as worship, religious instruction, or proselytizing, as part of the programs or services assisted by the VISTA program. If a VISTA sponsor or subrecipient conducts such inherently religious activities, the activities must be offered separately, in time or location, from the programs or services assisted under this Part by the VISTA program.
(a) AmeriCorps will not obligate funding for the direct cost of supporting volunteers that is:
(1) More than 30 percent of VISTA funds appropriated in any fiscal year; or
(2) For a new project that was not selected through a competitive process.
(b) The “direct cost of supporting volunteers” includes only those funds that are paid directly to VISTA members, leaders, or summer associates, such as: living allowance; travel reimbursements, including the Settling In Allowance; End of Service Benefits, including the cash stipend; and other expenses paid directly to the member, leader, or summer associate, as determined by the VISTA Director.
An individual may serve as a VISTA if all the following requirements are met as of the date the individual takes the oath or affirmation, as appropriate, to enter VISTA service:
(a) The individual is at least eighteen years of age. There is no upper age limit.
(b) The individual is a United States citizen or national, or is legally residing within a State.
(a) To the maximum extent practicable, the individual must make a full-time commitment to remain available for service without regard to regular working hours, at all times during their period of service, except for authorized periods of leave.
(b) To the maximum extent practicable, the individual must make a full-time personal commitment to alleviate poverty and poverty-related problems, and to live among and at the economic level of the low-income people served by the project.
(c) The individual's service cannot be used to satisfy service requirements of parole, probation, or community service prescribed by the criminal justice system.
(d) A VISTA candidate or member agrees to undergo an investigation into their criminal history or background as a condition of enrollment, or continued enrollment, in the VISTA program.
AmeriCorps has the final authority to approve or deny applications for VISTA service.
(a) Except for the purposes listed here, a VISTA is not considered an employee of the Federal Government. A VISTA is considered a Federal employee only for the following purposes:
(1) Federal Tort Claims Act—28 U.S.C. 1346(b); 28 U.S.C. 2671-2680;
(2) Federal Employees' Compensation Act—5 U.S.C. chapter 81, subchapter 1;
(3) Hatch Act—5 U.S.C. chapter 73, subchapter III;
(4) Internal Revenue Service Code—26 U.S.C. 1
(5) Title II of the Social Security Act—42 U.S.C. 401
(b) A VISTA is not considered a Federal employee for any purposes other than those set forth in paragraph (a) of this section.
(c) A VISTA is not covered by Federal or State unemployment compensation related to their enrollment or service in the VISTA program. A VISTA's service is not considered employment for purposes of eligibility for, or receipt of, Federal, State, or any other unemployment compensation.
(d) Monetary allowances, such as living allowances that VISTAs receive during VISTA service, are not considered wages. Monetary allowances, such as living allowances, that VISTAs receive during VISTA service are considered income for such purposes as Federal income tax and Social Security.
(e) A VISTA is not, under any circumstances, considered an employee of the sponsor or subrecipient to which they are assigned to serve. No VISTA is in an employment relationship with the sponsor or subrecipient to which they are assigned. The sponsor is not authorized to make contributions to any State unemployment compensation fund on a VISTA's behalf.
(a) To serve as a VISTA, an individual makes a full-time commitment for a minimum of one year, without regard to regular working hours.
(b) A VISTA carries out activities in accordance with the purpose of the VISTA program, as described in § 2556.1.
(c) To the maximum extent practicable, the VISTA must live among and at the economic level of the low-income community served by the project.
(d) A VISTA carries out service activities in conformance with the sponsor's approved project application, including any description of a VISTA assignment as contained in the project application; and in conformance with the purpose of title I of the DVSA. In any case where there is a conflict between the project application and the DVSA, the DVSA takes precedence.
(e) Under no circumstances may an individual be enrolled to serve as a VISTA beyond five years.
(a) The VISTA sponsor is responsible for the day-to-day supervision and oversight of the VISTA.
(b) AmeriCorps is responsible for ongoing monitoring and oversight of the VISTA sponsor's project where the
(a) AmeriCorps may provide official travel for a VISTA candidate or a VISTA, as appropriate, to attend AmeriCorps-directed activities such as pre-service training, placement at the project site, in-service training events, and return from the project site to the VISTA's or VISTA candidate's home of record.
(b) AmeriCorps must approve all official travel of a VISTA candidate or a VISTA, including the mode of travel.
(c) AmeriCorps may provide for official emergency travel for a VISTA in case of a natural disaster or the critical illness or death of an immediate family member.
(a) A VISTA receives a living allowance computed on a daily rate. Living allowances vary according to the local cost of living in the project area where the VISTA is assigned.
(b) Subject to a maximum amount, and at the discretion and upon approval of AmeriCorps, a VISTA may receive payment for settling-in expenses, as determined by AmeriCorps.
(c) Subject to a maximum amount, and at the discretion of AmeriCorps, in the event of an emergency (such as theft, fire loss, or special clothing necessitated by severe climate), a VISTA may receive an emergency expense payment in order to resume VISTA service activities, as determined and approved by AmeriCorps.
(d) Subject to a maximum amount, and at the discretion of AmeriCorps, a VISTA may receive a relocation travel allowance to offset the cost of relocating from the home of record to the project site, as determined by AmeriCorps.
(e) To the extent eligible, a VISTA may receive health care through a health benefits program provided by AmeriCorps.
(f) To the extent eligible, a VISTA may receive childcare support through a childcare program provided by AmeriCorps.
(g) To the extent eligible, a VISTA may elect to receive a Segal AmeriCorps Education Award, and upon successful completion of service, receive that award in an amount prescribed by AmeriCorps, in accordance with the applicable provisions of 45 CFR parts 2526, 2527, and 25285.
(1) A VISTA is eligible to elect to receive an education award if they are a citizen, national, or lawful permanent resident alien of the United States.
(2) A VISTA who elects an education award is eligible to request forbearance of a student loan from their loan-holder. A VISTA who elects an education award may, upon successful completion of service, be eligible to receive up to 100 percent of the interest accrued on a qualified student loan, consistent with the applicable provisions of 45 CFR part 2529.
(3) A VISTA is not eligible to receive more than an amount equal to the aggregate value of two full-time education awards in their lifetime.
(4) Other than for a summer associate, the amount of an education award for the successful completion of a VISTA term of service is equal to the maximum amount of a Federal Pell Grant under Section 401 of the Higher Education Act of 1965 (20 U.S.C. 1070a) that a student eligible for such grant may receive in the aggregate for the fiscal year in which the VISTA has enrolled in the VISTA program.
(h) A VISTA who does not elect to receive a Segal AmeriCorps Education Award upon successful completion of service receives an end-of-service stipend in an amount prescribed by AmeriCorps.
(i) In the event that a VISTA does not successfully complete a full term of service, they may not receive a pro-rated Segal AmeriCorps Education Award or a pro-rated end-of-service stipend, except in cases where the appropriate VISTA Case Manager determines the VISTA did not successfully complete a full term of service because of a compelling personal circumstance. Examples of a compelling personal circumstance are: Serious medical condition or disability of a VISTA during VISTA service; critical illness or disability of a VISTA's immediate family member (spouse, domestic partner, parent, sibling, child, or guardian) if this event makes completing a term of service unreasonably difficult; or unusual conditions not attributable to the VISTA, such as natural disaster, strike, or premature closing of a project, that make completing a term of service unreasonably difficult or infeasible.
(j) In the event of a VISTA's death during service, their family or others that they named as beneficiary in accordance with section 5582 of title 5, United States Code will be paid a pro-rated end-of-service stipend for the period during which the VISTA served. If the VISTA had elected to receive the Segal AmeriCorps Education Award for successful completion of a full term of VISTA service, AmeriCorps will, prior to payment to the named beneficiary, convert that election to an end-of-service stipend and pay the VISTA's family, or others that they named as beneficiary, a pro-rated end-of-service stipend accordingly.
Under certain circumstances, as set forth in §§ 2556.330 through 2556.335, AmeriCorps may pay reasonable legal defense expenses incurred in judicial or administrative proceedings for the defense of a VISTA serving in the VISTA program. Such covered legal expenses consist of counsel fees, court costs, bail, and other expenses incidental to a VISTA's legal defense.
(a) For the legal defense of a VISTA member who is charged with a criminal offense related to the VISTA member's service, up to and including arraignment in Federal, State, and local criminal proceedings, AmeriCorps may pay actual and reasonable legal expenses. AmeriCorps is not required to pay any expenses for the legal defense of a VISTA member where they are charged with a criminal offense arising from alleged activity or action that is unrelated to that VISTA's service.
(b) A VISTA member's service is clearly unrelated to a charged offense when:
(1) The activity or action is alleged to have occurred prior to the VISTA member's VISTA service.
(2) The VISTA member is not at their assigned project location, such as during periods of approved leave, medical leave, emergency leave, or in administrative hold status in the VISTA program.
(3) The activity or action is alleged to have occurred at or near their assigned project, but is clearly not part of, or required by, the VISTA member's service assignment.
(c) For the legal defense, beyond arraignment in Federal, State, and local criminal proceedings, of a VISTA member who is charged with a criminal offense, AmeriCorps may also pay actual and reasonable legal expenses when:
(1) The charged offense against the VISTA member relates exclusively to their VISTA assignment or status as a VISTA member;
(2) The charged offense against the VISTA member arises from an alleged
(3) The VISTA member has not admitted a willful or knowing violation of law; or
(4) The charged offense against the VISTA member is not a minor offense or misdemeanor, such as a minor vehicle violation.
(d) Notwithstanding paragraphs (a) through (c) of this section, there may be situations in which the criminal proceedings at issue arise from a matter that also gives rise to a civil claim under the Federal Tort Claims Act. In such a situation, the U.S. Department of Justice may, on behalf of the United States, agree to defend the VISTA. If the U.S. Department of Justice agrees to defend the VISTA member, unless there is a conflict between the VISTA member's interest and that of the United States, AmeriCorps will not pay for expenses associated with any additional legal representation (such as counsel fees for private counsel) for the VISTA member.
For the legal defense in Federal, State, and local civil judicial and administrative proceedings of a VISTA member, AmeriCorps may also pay actual and reasonable legal expenses when:
(a) The complaint or charge is against the VISTA, and is directly related to their VISTA service and not to their personal activities or obligations;
(b) The VISTA has not admitted to willfully or knowingly pursuing a course of conduct that would result in the plaintiff or complainant initiating such a proceeding; and
(c) The judgment sought involves a monetary award that exceeds $1,000.
(a) Non-competitive eligibility is a status that means a person is eligible for appointment, by a Federal agency in the Executive branch, into a civil service position in the Federal competitive service, in accordance with 5 CFR 315.605.
(b) An individual who successfully completes at least a year-long term of service as a VISTA, and who has not been terminated for cause from the VISTA program at any time, has non-competitive eligibility status for one year following the end of the term of service as a VISTA.
(c) In addition to the year of non-competitive eligibility status as provided in paragraph (b) of this section, an individual's non-competitive eligibility status may extend for two more years, to a total of three years, if the individual is:
(1) In the military service;
(2) Studying at a recognized institution of higher learning; or
(3) In another activity which, in the view of the Federal agency referenced in paragraph (a) of this section, warrants extension.
(a) Under the VISTA program grievance procedure, a grievance may be presented by any individual who is currently enrolled in the VISTA program or who was enrolled in the VISTA program within the past 30 calendar days.
(b) A VISTA's grievance may not be construed as reflecting on the VISTA's standing, performance, or desirability as a VISTA.
(c) A VISTA who presents a grievance may not be subjected to restraint, interference, coercion, discrimination, or reprisal because of presentation of views.
(a) Under the VISTA program grievance procedure, grievances are matters of concern, brought by a VISTA, that arise out of, and directly affect, the VISTA's service situation or that arise out of a violation of a policy, practice, or regulation governing the terms or conditions of the VISTA's service, that result in the denial or infringement of a right or benefit to the VISTA member.
(b) Matters not within the definition of a grievance as defined in paragraph (a) of this section are not grievable, and therefore, are excluded from the VISTA program grievance procedure. Though not exhaustive, examples of matters excluded from the VISTA program grievance procedure are:
(1) Matters related to a sponsor's or project's continuance or discontinuance; the number of VISTAs assigned to a VISTA project; the increases or decreases in the level of support provided to a VISTA project; the suspension or termination of a VISTA project; or the selection or retention of VISTA project staff;
(2) Matters for which a separate administrative procedure or complaint process is provided, such as early termination for cause, claims of discrimination during service, and Federal worker's compensation claims filed for illness or injury sustained in the course of carrying out VISTA activities;
(3) Matters related to the content of any law, published rule, regulation, policy, or procedure;
(4) Matters related to housing during a VISTA member's service;
(5) Matters which are, by law, subject to final administrative review outside AmeriCorps;
(6) Matters related to actions taken, or not taken, by a VISTA sponsor or subrecipient, or AmeriCorps, in compliance with or in order to fulfill the terms of a contract, grant, or other agreement related to the VISTA program; or
(7) Matters related to the internal management of AmeriCorps, unless such matters are shown to specifically and directly affect the VISTA's service situation or terms or conditions of their VISTA service.
(a) A VISTA is entitled to review any material in their official VISTA file and any relevant AmeriCorps records to the extent permitted by the Freedom of Information Act and the Privacy Act, 5 U.S.C. 552, 552a. Examples of materials that may be withheld include references obtained under pledge of confidentiality, official VISTA files of other VISTAs, and privileged intra-agency documents.
(b) A VISTA may review relevant materials in the possession of a sponsor to the extent such materials are disclosable by the sponsor under applicable Freedom of Information Act and privacy laws.
(a)
(1) If a VISTA is currently enrolled in the VISTA program or was enrolled in the VISTA program within the past 30 calendar days, they may, within 15 calendar days of an event giving rise to a grievance or within 15 calendar days after becoming aware of such an event, bring a grievance to the sponsor or subrecipient where they are assigned to serve. If the grievance arises out of a continuing condition or practice that individually affects a VISTA, the VISTA may bring it at any time during their enrollment that they are affected by the continuing condition or practice.
(2) A VISTA brings a grievance by presenting it in writing to the executive director, or comparable individual, of the sponsoring organization where the VISTA is assigned or to the sponsor's representative who is designated to receive grievances from a VISTA.
(3) The sponsor must review and respond in writing to the VISTA's
(4) If the grievance brought by a VISTA involves a matter over which the sponsor has no substantial control or if the sponsor's representative is the supervisor of the VISTA, the VISTA may pass over the procedure set forth in paragraphs (a)(1) through (3) of this section and present the grievance in writing directly to the Deputy Regional Administrator, as described in paragraph (b) of this section.
(b)
(1) If, after a VISTA brings a grievance as set forth in paragraphs (a)(1) and (2) of this section, the matter is not resolved, they may submit the grievance in writing to the appropriate Deputy Regional Administrator. The VISTA must submit the grievance to the Deputy Regional Administrator either:
(i) Within seven calendar days of receipt of the sponsor's response; or,
(ii) In the event the sponsor does not issue a response to the VISTA within 10 calendar days of its receipt of the written grievance, within 17 calendar days of the sponsor's receipt of the written grievance.
(2) If the grievance involves a matter over which either the sponsor or subrecipient has no substantial control, or if the sponsor's representative is the supervisor of the VISTA, as described in paragraph (a)(4) of this section, the VISTA may pass over the procedure set forth in paragraphs (a)(1) through (3) of this section, and submit the grievance in writing directly to the Deputy Regional Administrator. In such a case, the VISTA must submit the grievance to the Deputy Regional Administrator within 15 calendar days of the event giving rise to the grievance occurs, or within 15 calendar days after becoming aware of the event.
(3) Within ten working days of receipt of the grievance, the Deputy Regional Administrator will respond in writing, regardless of whether or not the matter constitutes a grievance as defined under this grievance procedure and/or is timely submitted. In the response, the Deputy Regional Administrator may determine that the matter submitted as a grievance is not grievable, is not considered a grievance, or fails to meet the time limit for response. If the Deputy Regional Administrator makes any such determination, they may dismiss the complaint, setting forth the reason(s) for the dismissal. In such a case, the Deputy Regional Administrator need not address the complaint on the merits, nor make a determination of the complaint on the merits.
(a) A VISTA may appeal the Deputy Regional Administrator's response to the grievance under § 2556.360(b)(3) by submitting a written appeal to the appropriate Regional Administrator. To be eligible to appeal a grievance response to the Regional Administrator, the VISTA must first have exhausted all appropriate actions as set forth in § 2556.360.
(b) A VISTA's grievance appeal must be in writing, contain sufficient detail to identify the subject matter of the grievance, specify the relief requested, and be signed by the VISTA.
(c) A VISTA must submit a grievance appeal to the appropriate Regional Administrator no later than 10 calendar days after the Deputy Regional Administrator issues their response to the grievance.
(d) Certain matters contained in a grievance appeal may be rejected, rather than denied on the merits, by the Regional Administrator. A grievance appeal may be rejected, in whole or in part, for any of the following reasons:
(1) The grievance appeal was not submitted to the appropriate Regional Administrator within the time limit specified in paragraph (c) of this section;
(2) The grievance appeal consists of matters not contained within the definition of a grievance, as specified in section § 2556.350(a);
(3) The grievance appeal consists of matters excluded from the VISTA program grievance procedure, as specified in § 2556.350(b); or
(4) The grievance appeal contains matters that are moot, or for which relief has otherwise been granted.
(e) Within 14 calendar days of receipt of the grievance, the appropriate Regional Administrator will decide the grievance appeal on the merits, or reject the grievance appeal in whole or in part, or both, as appropriate. The Regional Administrator shall notify the VISTA in writing of the decision and specify the grounds for the appeal decision. The appeal decision will include a statement of the basis for the decision and is a final decision of AmeriCorps.
(a) Termination for cause is discharge of a VISTA from the VISTA program due to a deficiency, or deficiencies, in conduct or performance.
(b) AmeriCorps may terminate a VISTA for cause for any of the following reasons:
(1) Conviction of any criminal offense under Federal, State, or local statute or ordinance;
(2) Violation of any provision of the Domestic Service Volunteer Act of 1973, as amended, or any AmeriCorps or VISTA program policy, regulation, or instruction;
(3) Failure, refusal, or inability to perform prescribed project duties as outlined in the project plan, assignment description, or as directed by the sponsor to which the VISTA is assigned;
(4) Involvement in activities which substantially interfere with the VISTA's performance of project duties;
(5) Intentional false statement, misrepresentation, omission, fraud, or deception in seeking to obtain selection as a VISTA in the VISTA program;
(6) Any conduct on the part of the VISTA which substantially diminishes their effectiveness as a VISTA; or
(7) Unsatisfactory performance of an assignment.
(a) AmeriCorps has the sole authority to remove a VISTA from a project where they have been assigned.
(b) AmeriCorps has the sole authority to terminate for cause or otherwise terminate a VISTA from the VISTA program.
(c) Neither the sponsoring organization nor any of its subrecipients has the authority to remove a VISTA from a project or to terminate a VISTA for cause, or for any other basis, from the VISTA program.
(a) The head of a sponsoring organization, or their designee, may request that AmeriCorps remove a VISTA assigned to its project. Any such request must be submitted in writing to the appropriate Portfolio Manager and should state the reasons for the request.
(b) The Portfolio Manager may, at their discretion, attempt to resolve the situation with the sponsor so that a
(c) When an alternative solution, as referenced in paragraph (b) of this section, is not sought, or is not reached within a reasonable time period, the Portfolio Manager will remove the VISTA from the project.
Of its own accord, AmeriCorps may remove a VISTA from a project assignment without the sponsor's request for removal.
(a) Termination for cause proceedings remove a VISTA from a project assignment due to an alleged deficiency, or alleged deficiencies, in conduct or performance, and are initiated by AmeriCorps.
(b) AmeriCorps, to the extent practicable, communicates the matter, and the administrative procedures as set forth in paragraphs (c) through (e) of this section, with the VISTA who is removed from a VISTA project.
(c) The VISTA Case Manager will notify the VISTA in writing of AmeriCorps' proposal to terminate for cause. The written proposal to terminate the VISTA for cause must give them the reason(s) for the proposed termination, and notify them that they have 10 calendar days within which to submit a written answer to the proposal to terminate them cause and to furnish any accompanying statements or written material. The VISTA must submit their answer to the VISTA Case Manager by the deadline identified in the written proposal to terminate for cause.
(d) Within 10 calendar days of the expiration of the VISTA's deadline to answer the proposal to terminate for cause, AmeriCorps will issue a written decision regarding the proposal to terminate for cause.
(1) If AmeriCorps decides to terminate the VISTA for cause, its written decision will set forth the reasons for the determination and the effective date of termination (which may be on or after the date of the decision).
(2) If AmeriCorps decides not to terminate the VISTA for cause, the written decision will indicate that the proposal to terminate for cause is rescinded.
(e) A VISTA who does not submit a timely answer to the appropriate VISTA Case Manager, as set forth in paragraph (c) of this section, is not entitled to appeal the decision regarding the proposal to terminate for cause. In such cases, AmeriCorps may terminate the VISTA for cause, on the date identified in the decision, and the termination action is final.
(a) Within 10 calendar days of the appropriate AmeriCorps Director's issuance of the decision to terminate the VISTA for cause, as set forth in § 2556.420(d), the VISTA may appeal the decision to the VMSU Director. The appeal must be in writing and specify the reasons for the VISTA's disagreement with the decision.
(b) AmeriCorps will not incur any expenses or travel allowances for the VISTA in connection with the preparation or presentation of the appeal.
(c) The VISTA may have access to records as follows:
(1) The VISTA may review any material in the VISTA's official AmeriCorps file and any relevant AmeriCorps records to the extent permitted by the Freedom of Information Act and the Privacy Act, 5 U.S.C. 552, 552a. Examples of documents that may be withheld include references obtained under pledge of confidentiality, official files of other program participants, and privileged intra-agency documents.
(2) The VISTA may review relevant records in the possession of a sponsor to the extent such documents are disclosable by the sponsor under applicable freedom of information act and privacy laws.
(d) Within 14 calendar days of receipt of any appeal by the VISTA, the VMSU Director or equivalent AmeriCorps official will issue a written appeal determination indicating the reasons for the appeal determination. The appeal determination will be final.
(a) Only a VISTA whose early termination from the VISTA program is for cause, and who has answered the proposal to terminate them for cause in a timely manner, as set forth in § 2556.420(c), is entitled to appeal the early termination action, as referenced in § 2556.425. A termination for cause is based on a deficiency, or deficiencies, in the performance or conduct of a VISTA.
(b) The following types of early terminations from the VISTA program are not terminations for cause, and are not entitled to appeal under the early termination appeal procedure set forth in §§ 2556.420 and 2556.425:
(1) Resignation from the VISTA program prior to the issuance of a decision to terminate for cause, as set forth in § 2556.420(d);
(2) Early termination from the VISTA program because a VISTA did not secure a suitable reassignment to another project; and
(3) Medical termination from the VISTA program.
Subject to VISTA assistance availability, AmeriCorps approves the establishment of summer associate positions based on the following factors:
(a) The need in the community, as demonstrated by the sponsor, for the performance of project activities by a summer associate(s);
(b) The content and quality of summer associate project plans;
(c) The capacity of the sponsor to implement the summer associate project activities; and
(d) The sponsor's compliance with all applicable parts of the DVSA, VISTA program policy, and the sponsor's Memorandum of Agreement, which incorporates their project application.
Summer associates differ from other VISTAs in the following ways:
(a) Summer associates are not eligible to receive:
(1) Health care through a health benefits program provided by AmeriCorps;
(2) Childcare support through a childcare program provided by AmeriCorps;
(3) Payment for settling-in expenses; or
(4) Non-competitive eligibility in accordance with 5 CFR 315.605.
(b) Absent extraordinary circumstances, summer associates are not eligible to receive:
(1) Payment for travel expenses incurred for travel to or from the project site to which the summer associate is assigned; or
(2) A relocation travel allowance to offset the cost of relocating from the summer associate's home of record to the project site to which they are assigned to serve.
(c) AmeriCorps may discharge a summer associate due to a deficiency, or deficiencies, in conduct or performance. Summer associates are not subject to subpart E of this part, or to the grievance procedures provided to VISTAs set forth in §§ 2556.345 through 2556.365.
(a) At its discretion, AmeriCorps may approve the establishment of a leader position based on the following factors:
(1) The need for a leader in a project of a substantial size and with multiple VISTAs assigned to serve at that project, or the need for leader for multiple projects located within a contiguous geographic region.
(2) The need for a leader to assist with the communication of VISTA policies and administrative procedures to VISTAs within a project, or throughout the multiple projects within a contiguous geographic region, as applicable.
(3) The need for a leader to assist with the professional development of VISTAs within a project, or throughout the multiple projects within a contiguous geographic region, as applicable.
(4) The need for a leader to assist with the recruitment and preparation for the arrival of VISTAs within a project, or throughout the multiple projects within a contiguous geographic region, as applicable.
(5) The capacity of the VISTA supervisor to support and guide the leader.
(b) A sponsor may request, in its project application, that AmeriCorps establish a leader position in its project.
An individual is eligible to apply to serve as a leader if they have successfully completed any of the following:
(a) At least one year of service as a VISTA;
(b) At least one full term of service as a full-time AmeriCorps State and National member;
(c) At least one full term of service as a member of the AmeriCorps National Civilian Community Corps (NCCC); or
(d) At least one traditional term of service as a Peace Corps Volunteer.
(a)
(b)
(c)
AmeriCorps reviews the application package for the leader position, considers the recommendation of the sponsor, and approves or disapproves the individual to serve as a leader.
(a) The application process to become a leader, as described in § 2556.610, is separate and distinct from the application process to enroll as a VISTA in the VISTA program.
(b) A leader may receive a living allowance computed at a higher daily rate than other VISTAs, as authorized under section 105(a)(1)(B) of the DVSA.
(c) A leader is subject to all the terms and conditions of service described in § 2556.625.
Though not exhaustive, terms and conditions of service as a leader include:
(a) A leader makes a full-time commitment to serve as a leader, without regard to regular working hours, for a minimum of one year.
(b) To the maximum extent practicable, a leader must live among and at the economic level of the low-income community served by the project and actively seek opportunities to engage with that low-income community.
(c) A leader aids the communication of VISTA policies and administrative procedures to VISTAs.
(d) A leader assists with the leadership development of VISTAs.
(e) A leader is a resource in the development and delivery of training for VISTAs.
(f) A leader may assist the sponsor with recruitment and preparation for the arrival of VISTAs.
(g) A leader may advise a supervisor on potential problem areas and needs of VISTAs.
(h) A leader aids VISTAs in the development of effective working relationships and understanding of VISTA program concepts.
(i) A leader may aid the supervisor and sponsor in directing or focusing the VISTA project to best address the community's needs.
(j) A leader may serve as a collector of data for performance measures of the project and the VISTAs.
(k) A leader is prohibited from supervising VISTAs. A leader is also prohibited from handling or managing, on behalf of the project, personnel-related matters affecting VISTAs. Personnel-related matters affecting VISTAs must be managed and handled by the project and in coordination with the appropriate AmeriCorps Regional Office.
(a) All VISTAs, including leaders and summer associates, are subject to this subpart.
(b) All employees of VISTA sponsors and subrecipients whose salaries or other compensation are paid, in whole or in part, with VISTA grant assistance are subject to this subpart.
(c) All VISTA sponsors and subrecipients are subject to this subpart.
For purposes of the regulations in this subpart, “prohibited political activity” means an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.
(a) A VISTA may not use their official authority or influence to interfere with or affect the result of an election.
(b) A VISTA may not use their official authority or influence to coerce any individual to participate in political activity.
(c) A VISTA may not use their official VISTA program title while participating in prohibited political activity.
(d) A VISTA may not participate in prohibited political activities in the following circumstances:
(1) While they are on duty;
(2) While they are wearing an article of clothing, logo, insignia, or other similar item that identifies AmeriCorps, the VISTA program, or one of AmeriCorps' other national service programs;
(3) While they are in any room or building occupied in the discharge of VISTA duties by an individual employed by the sponsor; and
(4) While using a vehicle owned or leased by a sponsor or subrecipient, or while using a privately-owned vehicle in the discharge of VISTA duties.
(a) Provided that paragraph (b) of this section is fully adhered to, a VISTA may:
(1) Express their opinion privately and publicly on political subjects;
(2) Be politically active in connection with a question that is not specifically identified with a political party, such as a constitutional amendment, referendum, approval of a municipal ordinance, or any other question or issue of similar character;
(3) Participate in the nonpartisan activities of a civic, community, social, labor, professional, or similar organization; and
(4) Participate fully in public affairs, except as prohibited by other Federal law, in a manner that does not compromise their efficiency or integrity as a VISTA, or compromise the neutrality, efficiency, or integrity of AmeriCorps or the VISTA program.
(b) A VISTA may participate in political activities set forth in paragraph (a) of this section as long as such participation:
(1) Does not interfere with the performance of, or availability to perform, their assigned VISTA project duties;
(2) Does not interfere with their provision of service in the VISTA program;
(3) Does not involve any use of VISTA assistance, resources or funds;
(4) Would not result in the identification of the VISTA as being a participant in or otherwise associated with the VISTA program;
(5) Is not conducted during scheduled VISTA service hours; and
(6) Does not interfere with the full-time commitment to remain available for VISTA service without regard to regular working hours, at all times during periods of service, except for authorized periods of leave.
(a) Provided that paragraph (b) of this section is fully adhered to, and in accordance with the prohibitions set forth in § 2556.710, a VISTA may:
(1) Be a member of a political party or other political group and participate in its activities;
(2) Serve as an officer of a political party or other political group, a member of a national, State, or local committee of a political party, an officer or member of a committee of a political group, or be a candidate for any of these positions;
(3) Attend and participate fully in the business of nominating caucuses of political parties;
(4) Organize or reorganize a political party organization or political group;
(5) Participate in a political convention, rally, or other political gathering; and
(6) Serve as a delegate, alternate, or proxy to a political party convention.
(b) A VISTA may participate in a political organization as long as such participation complies with the restrictions set out in paragraphs (b)(1) through (6) of § 2556.715.
(1) Does not interfere with the performance of, or availability to perform, their assigned VISTA project duties;
(2) Does not interfere with the provision of service in the VISTA program;
(3) Does not involve any use of VISTA assistance, resources or funds;
(4) Would not result in the identification of the VISTA as being a participant in or otherwise associated with the VISTA program;
(5) Is not conducted during scheduled VISTA service hours; and
(6) Does not interfere with the full-time commitment to remain available for VISTA service without regard to regular working hours, at all times during periods of service, except for authorized periods of leave.
(a) Provided that paragraph (b) of this section is fully adhered to, and in accordance with the prohibitions set forth in § 2556.710, a VISTA may:
(1) Display pictures, signs, stickers, badges, or buttons associated with political parties, candidates for partisan political office, or partisan political groups, as long as these items are displayed in accordance with the prohibitions set forth in § 2556.710;
(2) Initiate or circulate a nominating petition for a candidate for partisan political office;
(3) Canvass for votes in support of or in opposition to a partisan political candidate or a candidate for political party office;
(4) Endorse or oppose a partisan political candidate or a candidate for political party office in a political advertisement, broadcast, campaign literature, or similar material; and
(5) Address a convention caucus, rally, or similar gathering of a political party or political group in support of or in opposition to a partisan political candidate or a candidate for political party office.
(b) A VISTA may participate in a political campaign as long as such participation:
(1) Does not interfere with the performance of, or availability to perform, their assigned VISTA project duties;
(2) Does not interfere with the provision of service in the VISTA program;
(3) Does not involve any use of VISTA assistance, resources or funds;
(4) Would not result in the identification of the VISTA as being a participant in or otherwise associated with the VISTA program;
(5) Is not conducted during scheduled VISTA service hours; and
(6) Does not interfere with the full-time commitment to remain available for VISTA service without regard to regular working hours, at all times during periods of service, except for authorized periods of leave.
(a) Provided that paragraph (b) of this section is fully adhered to, and in accordance with the prohibitions set forth in § 2556.710, a VISTA may:
(1) Register and vote in any election;
(2) Act as recorder, watcher, challenger, or similar officer at polling places;
(3) Serve as an election judge or clerk, or in a similar position; and
(4) Drive voters to polling places for a partisan political candidate, partisan political group, or political party.
(5) Participate in voter registration activities.
(b) A VISTA may participate in elections as long as such participation:
(1) Does not interfere with the performance of, or availability to perform, their assigned VISTA project duties;
(2) Does not interfere with the provision of service in the VISTA program;
(3) Does not involve any use of VISTA assistance, resources or funds;
(4) Would not result in the identification of the VISTA as being a participant in or otherwise associated with the VISTA program;
(5) Is not conducted during scheduled VISTA service hours; and
(6) Does not interfere with the full-time commitment to remain available for VISTA service without regard to regular working hours, at all times during periods of service, except for authorized periods of leave.
(a) Except as provided in paragraph (c) of this section, no VISTA may run for the nomination to, or as a candidate for election to, partisan political office.
(b) In accordance with the prohibitions set forth in § 2556.710, a
(1) Does not interfere with the performance of, or availability to perform, their assigned VISTA project duties;
(2) Does not interference with the provision of service in the VISTA program;
(3) Does not involve any use of VISTA assistance, resources or funds;
(4) Would not result in the identification of the VISTA as being a participant in or otherwise associated with the VISTA program;
(5) Is not conducted during scheduled VISTA service hours; and
(6) Does not interfere with the full-time commitment to remain available for VISTA service without regard to regular working hours, at all times during periods of service, except for authorized periods of leave.
(c) Provided that paragraphs (a) and (b) of this section are adhered to, and in accordance with the prohibitions set forth in § 2556.710, a VISTA may:
(1) Run as an independent candidate in a partisan election in designated U.S. municipalities and political subdivisions as set forth at 5 CFR part 733; and
(2) Run as a candidate in a non-partisan election.
(a) Provided that paragraphs (b) through (d) of this section are fully adhered to, and in accordance with the prohibitions set forth in § 2556.710, a VISTA may:
(1) Make a political contribution to a political party, political group, campaign committee of a candidate for public office in a partisan election;
(2) Attend a political fundraiser; and
(3) Solicit, accept, or receive uncompensated volunteer services for a political campaign from any individual.
(b) A VISTA may participate in fundraising activities as long as such participation:
(1) Does not interfere with the performance of, or availability to perform, their assigned VISTA project duties;
(2) Does not interfere with the provision of service in the VISTA program;
(3) Does not involve any use of VISTA assistance, resources or funds;
(4) Would not result in the identification of the VISTA as being a participant in or otherwise associated with the VISTA program;
(5) Is not conducted during scheduled VISTA service hours; and
(6) Does not interfere with the full-time commitment to remain available for VISTA service without regard to regular working hours, at all times during periods of service, except for authorized periods of leave.
(c) A VISTA may not knowingly:
(1) Personally solicit, accept, or receive a political contribution from another individual;
(2) Personally solicit political contributions in a speech or keynote address given at a fundraiser;
(3) Allow their perceived or actual affiliation with the VISTA program, or their official title as a VISTA, to be used in connection with fundraising activities; or
(4) Solicit, accept, or receive uncompensated individual volunteer services from a subordinate (
(d) Except for VISTAs who reside in municipalities or political subdivisions designated under 5 CFR part 733, no VISTA may accept or receive a political contribution on behalf of an individual who is a candidate for local partisan political office and who represents a political party.
(a) A VISTA may not knowingly solicit or discourage the participation in any political activity of any individual who has an application for any compensation, grant, contract, ruling, license, permit, or certificate pending before AmeriCorps or the VISTA program.
(b) A VISTA may not knowingly solicit or discourage the participation in any political activity of any individual who is the subject of, or a participant in, an ongoing audit, investigation, or enforcement action being carried out by or through AmeriCorps or the VISTA program.
A VISTA who is the spouse or family member of a candidate for partisan political office, candidate for political party office, or candidate for public office in a nonpartisan election is subject to the same restrictions and prohibitions as other VISTAs, as set forth in § 2556.725.
In accordance with the prohibitions set forth in § 2556.710, VISTAs may participate in lawful demonstrations, political rallies, and other political meetings, so long as such participation is in conformance with all of the following:
(a) Occurs only while on authorized leave or while otherwise off duty;
(b) Does not include attempting to represent, or representing, the views of VISTAs or the VISTA program on any public issue;
(c) Could not be reasonably understood by the community as being identified with the VISTA program, the project, or other elements of VISTA service; and
(d) Does not interfere with the discharge of VISTA duties.
(a) No VISTA sponsor or subrecipient may approve a VISTA to be involved in planning, initiating, participating in, or otherwise aiding or assisting in any demonstration or other political meeting.
(b) If a VISTA sponsor or subrecipient, subsequent to the receipt of any AmeriCorps financial assistance, including the assignment of VISTAs, approves the participation of a VISTA in a demonstration or other political meeting, that VISTA sponsor or subrecipient is subject to procedures related to the suspension or termination of such assistance, as provided in subpart B of this part, §§ 2556.135 through 2556.140.
Violations by a VISTA of any of the prohibitions or restrictions set forth in this subpart may warrant termination for cause, in accordance with proceedings set forth at §§ 2556.420, 2556.425, and 2556.430.
(a) All sponsors and subrecipients are required to:
(1) Understand the restrictions and prohibitions on the political activities of VISTAs, as set forth in this subpart;
(2) Provide training to VISTAs on all applicable restrictions and prohibitions on political activities, as set forth in this subpart, and use training materials that are consistent with these restrictions and prohibitions;
(3) Monitor on a continuing basis the activity of VISTAs for compliance with this subpart; and
(4) Report all violations or questionable situations immediately to the appropriate AmeriCorps State Office.
(b) Failure of a sponsor to comply with the requirements of this subpart, or
All employees of VISTA sponsors and subrecipients, whose salaries or other compensation are paid, in whole or in part, with VISTA funds are subject to all applicable prohibitions and restrictions described in this subpart in the following circumstances:
(a) Whenever they are engaged in an activity that is supported by AmeriCorps or VISTA funds or assistance; and
(b) Whenever they identify themselves as acting in their capacity as an official of a VISTA project that receives AmeriCorps or VISTA funds or assistance, or could reasonably be perceived by others as acting in such a capacity.
(a) No VISTA sponsor or subrecipient may assign a VISTA to perform service or engage in activities related to influencing the passage or defeat of legislation or proposals by initiative petition.
(b) No VISTA sponsor or subrecipient may use any AmeriCorps financial assistance, such as VISTA funds or the services of a VISTA, for any activity related to influencing the passage or defeat of legislation or proposals by initiative petition.
The Department of Agriculture will submit the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13 on or after the date of publication of this notice. Comments are requested regarding: whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology Comments regarding these information collections are best assured of having their full effect if received by February 27, 2023. Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Forest Service, Agriculture (USDA).
Notice of meeting.
The Ravalli Resource Advisory Committee (RAC) will hold a public meeting according to the details shown below. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act (FACA). The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act, as well as make recommendations on recreation fee proposals for sites on the Bitterroot National Forest, consistent with the Federal Lands Recreation Enhancement Act. General information and meeting details can be found at the following website:
The meeting will be held on February 22, 2023, 9 a.m.-4 p.m., Mountain Standard Time. All RAC meetings are subject to cancellation. For status of the meeting prior to attendance, please contact the person listed under
This meeting is open to the public and will be held at the Bitterroot Forest Supervisor's Office, 1801 N First Street, Hamilton, MT 59840. The public may also join virtually via telephone and/or video conference. Virtual meeting participation details can be found on the website listed under
Written comments may be submitted as described under
Abbie Jossie, Designated Federal Officer (DFO), by phone at 406-821-4244 or email at
Individuals who use telecommunication devices for the deaf and hard of hearing (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339, 24 hours a day, every day of the year, including holidays.
The purpose of the meeting is to:
1. Hear from Title II project proponents and discuss Title II project proposals;
2. Make funding recommendations on Title II projects;
3. Approve meeting minutes;
4. Schedule the next meeting.
The meeting is open to the public. The agenda will include time for individuals to make oral statements of three minutes or less. Individuals wishing to make an oral statement should make a request in writing at least three days prior to the meeting date to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to Tod McKay, 1801 N First Street, Hamilton, MT 59840; or by email to
USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.
Equal opportunity practices in accordance with USDA's policies will be followed in all appointments to the Committee. To ensure that the recommendations of the Committee have taken into account the needs of the diverse groups served by USDA, membership shall include to the extent possible, individuals with demonstrated ability to represent minorities, women, and person with disabilities. USDA is an equal opportunity provider, employer, and lender.
U.S. Commission on Civil Rights.
Notice of virtual briefings.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the New York Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold virtual briefings. The purpose of these briefings is to hear testimony on the New York child welfare system.
Wednesday, February 15, 2023, at 1 p.m. (ET) and Friday, February 17, 2023, at 1 p.m. (ET).
Meetings will be held via Zoom.
Mallory Trachtenberg, DFO, at
Committee meetings are available to the public through the conference link above. Any interested member of the public may listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. If joining via phone, callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Individuals who are deaf, deafblind, and hard of hearing may also follow the proceedings by first calling the Federal Relay Service at (800) 877-8339 and providing the Service with the conference details found through registering at the web link above. To request additional accommodations, please email Sarah Villanueva at
Members of the public are also entitled to submit written comments; the comments must be received within 30 days following the meeting. Written comments may be emailed to
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit as they become available, both before and after the meeting. Records of the meeting will be available via
Commission on Civil Rights.
Notice; cancellation of virtual business meeting.
The Commission on Civil Rights published a notice in the
Liliana Schiller,
Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA) that a meeting of the Tennessee Advisory Committee to the Commission will convene by Zoom on Wednesday, February 8, 2023, at 3 p.m. (CT). The purpose of the meeting is to hear testimony on the Committee's project on voting rights and conduct a business meeting.
The meeting will take place on Wednesday, February 8, 2023, from 3 p.m.-5 p.m. (CST).
Victoria Moreno at
This meeting is available to the public through the Zoom link above. If joining only via phone, callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Individuals who are deaf, deafblind and hard of hearing may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the call-in number found through registering at the web link provided above for the meeting.
Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the respective meeting. Written comments may be emailed to Victoria Moreno at
Persons who desire additional information may contact the Regional Programs Unit at (202) 809-9618. Records and documents discussed during the meeting will be available for public viewing as they become available at the
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Nebraska Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a meeting on Thursday, January 26, 2023 at 4:00 p.m.-5:00 p.m. Central Time. The purpose for the meetings is to discuss the proposal for their project on the effects of the pandemic on education in the state.
The meetings will take place on:
Thursday, January 26, 2023, from 4:00 p.m.-5:00 p.m. Central Time.
Victoria Moreno at
This meeting is available to the public through the Zoom link above. If joining only via phone, callers can expect to incur charges for calls they initiate over wireless lines and the Commission will not refund any incurred charges.
Individuals who are deaf, deafblind and hard of hearing may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.
Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be emailed to Victoria Moreno at
Persons who desire additional information may contact the Regional Programs Unit at (202) 809-9618. Records and documents discussed during the meeting will be available for public viewing as they become available at
U.S. Commission on Civil Rights.
Announcement of virtual business meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act, that the Florida Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a virtual business meeting via Zoom at 12 p.m. ET on Monday, February 6, 2023, to review its draft report on voting rights in the state.
The meeting will take place on Monday, February 6, 2023, from 12 p.m.-2 p.m. ET.
Melissa Wojnaroski, DFO, at
Committee meetings are available to the public through the registration link above. Any interested member of the public may listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. Per the Federal Advisory Committee Act, members of the public who wish to speak during public comment must provide their name to the Commission; however, if a member of the public wishes to join anonymously, please join by phone. If joining via phone, callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Closed captions will be provided. Individuals who would like to request additional accessibility accommodations, please email
Members of the public are entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be emailed to Liliana Schiller at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit, as they become available, both before and after the meeting. Records of the meeting will be available via
Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a meeting of the Puerto Rico Advisory Committee to the Commission will convene by virtual web conference on Monday, February 13, 2023, at 3:30 p.m. Atlantic Time (2:30 p.m. Eastern Time). The purpose is to discuss their project on the civil rights impacts of the Insular Cases in Puerto Rico.
February 13, 2023, Monday, at 3:30 p.m. (AT):
Meeting will be held via Zoom.
Email Victoria Moreno, Designated Federal Officer at
This meeting will be held in Spanish. English interpretation can be made available upon request 10 days before the meeting. The request can be made to Evelyn Bohor at
Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the respective meeting. Written comments may be emailed to Victoria Moreno at
Persons who desire additional information may contact the Regional Programs Unit at (202) 809-9618. Records and documents discussed during the meeting will be available for public viewing as they become available at the
U.S. Commission on Civil Rights.
Announcement of meetings.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Pennsylvania Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a Zoom meeting on Friday February 3, 2023 from 11:00 a.m.-12:00 p.m. Eastern time. The purpose of the meeting is for the Committee to discuss a partial draft of its upcoming report on fair housing. Friday February 3, 2023 from 11:00 a.m.-12:00 p.m. Eastern time.
Melissa Wojnaroski, DFO, at
Members of the public may listen to these discussions. Committee meetings are available to the public through the above listed online registration link. An open comment period will be provided to allow members of the public to make a statement as time allows. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Closed captions will be provided. Indivudals with disabilities requiring other accommodations may contact Corrine Sanders at
Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be emailed to
Records generated from this meeting may be inspected and reproduced as they become available, both before and after the meeting. Records of the meeting will be available via
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Missouri Advisory Committee (Committee) will hold a meeting on Thursday, February 9, 2023 at 11:30 a.m.-12:30 p.m. Central time. The Committee will continue orientation and begin identifying potential civil rights topics for their first study of the 2022-2026 term.
The meeting will take place on Thursday, February 9, 2023 at 11:30 a.m. Central Time.
To join by phone only dial (833) 568-8864; Access Code: 161 253 6273.
David Barreras, DFO, at
Members of the public may listen to this discussion through the above call in number. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Individual who is deaf, deafblind and hard of hear hearing may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and confirmation code.
Members of the public are entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Regional Programs Unit, U.S. Commission on Civil Rights, 230 S Dearborn, Suite 2120, Chicago, IL 60604. They may also be faxed to the Commission at (312) 353-8324, or emailed to Corrine Sanders at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Unit Office, as they become available, both before and after the meeting. Records of the meeting will be available via
Office of the Secretary, Department of Commerce.
Notice of public availability.
In accordance with section 743 of Division C of the Consolidated Appropriations Act of 2010, the Department of Commerce (DOC) is publishing this notice to advise the public of the availability of the Fiscal Year (FY) 2020 Service Contract Inventory data, a report that analyzes DOC's FY 2019 Service Contract Inventory and a plan for the analysis of FY 2020 Service Contract Inventory.
The Department of Commerce's FY 2020 Service Contract Inventory is included in the government-wide inventory available at:
Questions regarding the service contract inventory should be directed to Virna Winters, Director for Acquisition Policy and Oversight Division at 202-482-4248 or
The service contract inventory provides information on service contract actions over $150,000 made in FY 2020. The information is organized by function to show how contracted resources are distributed throughout the agency. The inventory has been developed in accordance with guidance on service contract inventories issued on November 5, 2010, by the Office of Management and Budget's Office of Federal Procurement Policy (OFPP).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) is amending the final results of the administrative review of the antidumping duty order on certain carbon and alloy steel cut-to-length plate from Italy to correct a ministerial error. The period of review (POR) is May 1, 2020, through April 30, 2021.
Applicable January 26, 2023.
Alice Maldonado or David Crespo, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4682 or (202) 482-3693, respectively.
On December 8, 2022, Commerce published the final results of this administrative review.
Section 751(h) of the Tariff Act of 1930, as amended, (the Act) defines a “ministerial error” as including “errors in addition, subtraction, or other arithmetic function, clerical errors resulting from inaccurate copying, duplication, or the like, and any other unintentional error which the administering authority considers ministerial.” With respect to final results of administrative reviews, 19 CFR 351.224(e) provides that Commerce “will analyze any comments received and, if appropriate, correct any ministerial error by amending . . . the final results of review . . . .”
We agree with NVR that Commerce made a ministerial error in the
Accordingly, pursuant to 19 CFR 351.224(e), Commerce is amending the
As a result of correcting the ministerial error, Commerce determines that the following weighted-average dumping margins exist for the period May 1, 2020, through April 30, 2021:
Commerce intends to disclose the calculations performed in connection with these amended final results of review to parties in this review within five days after public announcement of the amended final results or, if there is no public announcement, within five days of the date of publication of this notice in the
Pursuant to section 751(a)(2)(C) of the Act and 19 CFR 351.212(b)(1), Commerce shall determine, and CBP shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the amended final results of this review.
Pursuant to 19 CFR 351.212(b)(1), where the respondent reported the entered value of its U.S. sales, we calculated importer-specific
For the companies that were not selected for individual examination, we will assign an assessment rate based on the cash deposit rates calculated for the mandatory respondents in this review,
Commerce's “automatic assessment” will apply to entries of subject merchandise during the POR produced by companies included in these amended final results of review for which the reviewed companies did not know that the merchandise they sold to the intermediary (
Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of the final results of this review in the
The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the amended final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) the cash deposit rate for NVR and the non-selected respondents listed above will be that established in the amended final results of this review, except if the rate is less than 0.50 percent and, therefore,
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business
This notice is being issued in accordance with sections 751(h) and 777(i)(1) of the Act, and 19 CFR 351.224(e).
An application has been submitted to the Foreign-Trade Zones (FTZ) Board by the Port of Houston Authority, grantee of Foreign-Trade Zone 84, requesting authority to reorganize the zone to expand its service area under the alternative site framework (ASF) adopted by the FTZ Board (15 CFR 400.2(c)). The ASF is an option for grantees for the establishment or reorganization of zones and can permit significantly greater flexibility in the designation of new subzones or “usage-driven” FTZ sites for operators/users located within a grantee's “service area” in the context of the FTZ Board's standard 2,000-acre activation limit for a zone. The application was submitted pursuant to the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the FTZ Board (15 CFR part 400). It was formally docketed on January 23, 2023.
FTZ 84 was approved by the FTZ Board on July 15, 1983 (Board Order 214, 48 FR 34792, August 1, 1983), reorganized under the ASF on January 30, 2015 (Board Order 1964, 80 FR 7838-7839, February 12, 2015), and expanded under the ASF on February 28, 2018 (Board Order 2047, 83 FR 9479, March 6, 2018). The zone currently has a service area that includes Harris County, Texas. There is a separate application pending with the FTZ Board to expand the service area to include Waller County (B-4-2023).
The applicant is now requesting authority to expand the service area of the zone to include Wharton County, Texas, as described in the application. If approved, the grantee would be able to serve sites throughout the expanded service area based on companies' needs for FTZ designation. The application indicates that the proposed expanded service area is adjacent to the Houston Customs and Border Protection Port of Entry.
In accordance with the FTZ Board's regulations, Camille Evans of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the FTZ Board.
Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary and sent to:
A copy of the application will be available for public inspection in the “Online FTZ Information Section” section of the FTZ Board's website, which is accessible via
For further information, contact Camille Evans at
International Trade Administration, Department of Commerce.
Notice.
The United States Department of Commerce, International Trade Administration (ITA), is organizing a Cyber Security Business Development Mission to India on May 22-26, 2023.
• Cyber Security Business Development Mission to India—originally scheduled for May 23-27, 2022, is postponed to May 22-26, 2023. The application deadline is now April 14, 2023.
The International Trade Administration has determined that to allow for optimal execution of recruitment and event scheduling for the mission, the dates of the mission are postponed from May 23-27, 2022 to May 22-26, 2023. As a result of the shift of the event dates the application deadline is also revised to April 14, 2023. Applications may be accepted after that date if space remains and scheduling constraints permit. Interested U.S. companies and trade associations/organizations that have not already submitted an application are encouraged to do so. The U.S. Department of Commerce will review applications and make selection decisions on a rolling basis in accordance with the 85 FR 12259 (March 2, 2020). The applicants selected will be notified as soon as possible. The proposed schedule is updated as follows:
Pompeya Lambrecht, Senior International Trade Specialist, U.S. Commercial Service, Arlington, VA, (703) 235-0102,
Office of Space Commerce, National Oceanic and Atmospheric Administration, Department of Commerce.
Notice; request for information.
The U.S. Department of Commerce (Department), via the Office of Space Commerce (OSC) in the National Oceanic and Atmospheric Administration (NOAA), requests additional input from interested parties on OSC's currently planned scope of basic safety services to be provided via the Traffic Management System for Space (TraCSS) program. This input will inform OSC's development of capabilities to share SSA data, information and services to space operators and the public.
Responses are due on or before February 27, 2023.
Interested individuals and organizations should submit written comments on issues addressed in this notification by the following method:
•
John Dyer, Office of Space Commerce, (202) 482-4731;
NOAA's Office of Space Commerce (OSC) is exploring the scope of a basic safety service for space situational awareness (SSA) services of active satellites and debris in preparation of future OSC SSA products. As described in Space Policy Directive-3 (SPD-3) (
SPD-3 proposed these services be part of an “Open Architecture Data Repository” which OSC will now refer to as TraCSS. TraCSS will provide satellite tracking data and associated products and services to support all private and civil space satellite owner/operators (O/Os). TraCSS will ingest the various available data sources and data types for analysis to support the tracking of debris and space objects. The scope of the initial operating capability, the basic safety service, is the primary subject of interest of this RFI.
OSC greatly appreciated responses to prior RFIs, most recently from its RFI published on July 8, 2022 (
With this additional insight, OSC has further refined its planned SSA program. OSC has defined its view of the core U.S. Government interests in the provision of basic SSA safety services, and based on that principle, has outlined its anticipated basic SSA safety services and the appropriate mix of commercial and governmental resources to provide those services with greater granularity.
In this RFI, OSC seeks public input broadly from the space community on OSC's definition of core U.S. Government interests in the provision of basic SSA safety services and its refined plan to meet those interests through the TraCSS, including from spacecraft operators, SSA data providers (current and prospective, ground and space-based), SSA analytic and value-added service providers, academia, nonprofit entities, space insurance providers, and the legal community.
OSC will provide basic SSA safety services through TraCSS to meet the core U.S. Government interest to further safety, stability, and sustainability in space and increase U.S. commercial leadership in space. Provision of these services is vital for the commercial growth of the American economy and to promote national security. These services can help reconcile the growing use of orbital space with the effective management of this domain.
The scope of basic SSA safety services is limited to those necessary to maintain the safety, stability, and sustainability of the increasingly congested and contested space environment. Basic SSA safety services can include additional services that significantly increase the safety, stability, and sustainability of the space environment. However, OSC will also consider whether the provision of
The list of orbital safety services below derives from existing practices by the Department of Defense (DoD) and National Aeronautics and Space Administration (NASA), augmented by other services that commercial entities have previously proposed and responses to prior RFIs. “Included” indicates that a particular service is being considered for inclusion in the “free of fee” service through TraCSS that the OSC intends to provide to any satellite O/O willing to accept the tenets of participation (
(1) Satellite Attributes, Capabilities, Status, and Point of Contact (Included). To maintain a database of primary (protected) assets, which contains basic satellite attributes (approximate dimensions, mass), indicates satellite trajectory change capabilities and current status, and includes 24/7/365 contact information to coordinate mitigation actions for conjunctions between active satellites.
(2) Receipt and Sharing of Predictions O/Os Ephemerides (Included). To receive predicted ephemerides from O/Os, store them in a manner that makes them available for download by other interested O/Os, and use them as the representation of the primary object for collision assessments (CA) screenings, risk assessment, and (when appropriate) mitigation planning.
(3) Routine Collision Assessment (CA) Screening and Conjunction Data Message (CDM) Production (Included). To screen primary objects against a robust satellite catalog, both routinely and on demand; and to generate CDMs for objects that violate the particular physical volumes used for the screening activity.
(4) Special CA Screening and CDM Production (Included). To perform an on-demand screening against a robust satellite catalog for a particular submitted ephemeris or set of ephemerides (usually for a confirmatory or speculative screening as part of maneuver planning).
(5) Data Quality Evaluation (Included). To perform a first-order evaluation of the orbit determination and propagation of the (usually secondary but in principle both) objects' state estimates and co-variances in order to determine whether these inputs are of sufficient quality to serve as a basis for a durable risk assessment calculation
(6) Launch Collision Avoidance (COLA) Screenings (Included). To perform timely screenings of a set of launch nominals against a robust satellite catalog in order to identify specific launch times during a launch window that would create unacceptably high collision risk and therefore should not be used.
(7) O/O Ephemeris Generation and Curation with Covariance (Included). To use O/O telemetry and on-board global positioning system state information, as well as potentially other commercial tracking information, to generate a reliable predicted O/O ephemeris that includes covariance at each ephemeris point and incorporates planned maneuvers (and maneuver execution error).
(8) Re-entry Management and Assessment (Included). To perform re-entry forecasting and event pacing assistance for primary objects undergoing either natural decays or managed deorbits in order to assist the DoD in orchestrating the overall decay and decataloguing process.
(9) Precision Probability of Collision Calculation (Included). To include in each generated CDM a Probability of Collision (PC) calculation that uses more advanced approaches for determining the appropriate hard-body radius (HBR) and employs a calculation technique appropriate to the particular dynamics of the encounter.
(10) Collision Consequence and Debris Production Potentials (Included). To calculate, using an appropriate model, an estimate of the number of trackable debris fragments that would be generated if a particular conjunction were to result in a collision.
(11) Conjunction Object Solution Improvements with Additional Tracking (Included). To obtain additional tracking on the satellites involved in conjunctions of interest (typically the secondary objects), improve these objects' predicted states at the conjunction time of closest approach (TCA), and calculate higher-fidelity risk assessment metrics with this improved information.
(12) Expected Tracking Determination (Included). To generate a pass schedule and probabilities of detection for obtaining additional commercial tracking for conjunction-related objects, so that O/Os can infer the potential benefit of additional tracking and be able to schedule mitigation action decision points appropriately.
(13) Risk Assessment Time History Plots (Included). To produce time-history plots of conjunction risk assessment parameters of interest to allow assessment of conjunction event phasing and stability.
(14) Space Weather Sensitivity (Included). To provide warnings about space weather perturbative events and to assess the effects the perturbation-induced atmospheric density uncertainty will have on conjunction risk assessment parameters.
(15) Fusion of CA Products (Not Included). To combine CA products, such as CDMs or predicted ephemerides, from multiple providers into a single, higher-fidelity product that can then be used to enable CA risk assessment.
(16) PC Variability (Not Included). By considering bounding scale factors for the “true” size of the primary and secondary objects' covariances, to generate a matrix of possible PC values to allow risk assessors to assign a more conservative “high-water-mark” PC value.
(17) Additional Concierge Services (Not Included). To provide on-call, personalized telephone support at all times by CA subject matter experts to assist O/Os with the interpretation of conjunction screening and risk assessment products.
(18) Anomaly Resolution (Not Included). To arrange for the obtaining and interpretation of anomaly resolution SSA products, such as point signatures (radar cross-section and/or photometry), time-series satellite signatures, and radar and optical imaging.
(19) Design-time Assistance for Improved CA (Not Included). During the satellite construction and mission design phase, to assist O/Os in the prudent selection of mission orbits, satellite construction decisions to produce favorable light pollution properties, and the proper build-out of effective O/O ephemeris construction and CA software and procedures.
(20) Maneuver Trade Space (Not Included). To assemble a visual aid that identifies particular maneuver times and intensities (and, for some maneuver types, durations) to achieve the desired
(21) Optimized Maneuver Recommendations (Not Included). In addition to the parameters in service (20) above, to include satellite contact restrictions, spacecraft maneuverability limitations, and O/O optimality preferences to construct a recommended maneuver plan to mitigate the main conjunction and ensure against the creation of any serious derivative conjunctions.
(22) Breakup Detection, Tracking, and Cataloguing (Not Included). To commission routine surveillance tracking to detect satellite break-ups; and upon the detection of a break-up, to increase supplementary surveillance tracking to collect break-up uncorrelated tracks (UCT), perform UCT processing, obtain dedicated tracking on new candidate objects, and suggest/perform cataloging actions for stable candidates for which the country of origin can be established.
(23) Maneuver Detection and Processing (Not Included). To commission heightened surveillance tracking on maneuverable objects; execute maneuver detection algorithms against the tracking obtained from such heightened surveillance; and for objects for which maneuvers are detected, perform appropriate maneuver processing to create a durable post-maneuver state estimate.
OSC seeks responses to three categories of questions, and invites any member of the public to provide input:
A. Scope of Proposed Basic SSA Safety Services;
B. Impacts of Proposed Basic SSA Safety Services on Commercial SSA Providers;
C. Tenets of Participation and Receipt of Basic SSA Safety Services; and
D. General Feedback.
Respondents are encouraged to explain how the capabilities to be provided by OSC's TraCSS can be structured to enable a competitive and burgeoning U.S. commercial space sector. Responses may also explain how the U.S. Government can work with industry and international partners in the development of open, transparent, and credible international standards, policies, and practices that will aid in the provision of these basic SSA safety services.
OSC seeks to clearly define and communicate the scope of basic safety SSA services to enable industry innovation of advanced services. OSC seeks responses regarding which SSA services should be included as part of TraCSS. OSC understands that the need to provide certain services through TraCSS may change over time. Similarly, some services may be necessary to include in the TraCSS initial offering only and others should be added in the future. For each of the services discussed above, OSC is seeking public input about whether the service should be included in TraCSS, and if so, whether it should be part of the initial offering or added in the future. Additionally, OSC seeks input on whether the services should be developed by the government or purchased from commercial vendors and redistributed. Furthermore, OSC invites comment on the following questions for each of the services:
• Does the proposed basic safety SSA service provide sufficient data to allow ongoing operations of orbital assets at a level equal to or beyond that currently provided by the DoD?
• What proposed basic safety SSA services are essential to your ongoing operations? If the U.S. Government were to prioritize the delivery of individual services as part of TraCSS, which ones should be provided soonest?
• What, if any, additional capabilities beyond those currently provided by the DoD should be included in the TraCSS?
• Are there any additional capabilities not listed that should be included in the basic SSA safety service to provide a baseline level of safety for owners and operators?
• Where applicable, at what level or how often should the service be performed? For example, comments may address how often routine collision assessments should be conducted as part of the basic SSA safety service. DoD currently provides these assessments three times a day. How often should OSC's basic safety SSA service provide these assessments?
OSC's provision of basic SSA safety services through TraCSS is intended to advance safety, stability, and sustainability in space and help the domestic commercial SSA industry grow. OSC is evaluating the potential impacts that the basic SSA safety services provided through TraCSS may have on the commercial SSA industry. OSC is seeking public input on whether there are any concerns with respect to commercial SSA providers with their own services or other value-added providers that may rely on governmental SSA basic safety services. Furthermore, OSC invites comment on the following questions:
• Are any of the basic SSA safety services readily available from the current U.S. SSA industry? If so, is the service affordable to owners and operators of spacecraft?
• For commercial SSA service providers, does the current SSA capability offered by the DoD have any impacts on your current or future product offerings?
• For commercial SSA service providers, do any of the basic SSA safety services identified for inclusion in TraCSS have any impacts or implications on your current or future product offerings? If so, which services proposed to be part of TraCSS would have an impact on your offerings and why?
• For O/Os, are any of the basic SSA safety services identified for inclusion in TraCSS duplicative of what O/Os of spacecraft are already responsible for obtaining or providing?
• Are there unique advantages to the government purchasing and redistributing certain commercial services rather than leaving these to the commercial marketplace?
OSC is seeking public input regarding what should be required to receive “free of fee” basic SSA safety services through TraCSS. OSC recognizes that certain basic SSA safety services should be made publicly available. For example, space objects from a current DoD catalog that are not sensitive to national security are currently made accessible to the public through the
• Which basic SSA safety services identified for inclusion in TraCSS should be made publicly available?
• What, if any, information should owners and operators of spacecraft be
• What, if any, actions should owners and operators agree to take to participate in TraCSS as part of the tenets of participation?
• What should happen when owners or operators fail to provide the relevant information to OSC or fail to take actions consistent with the tenets of participation?
OSC welcomes feedback about any other related topics. For example, are there any matters not discussed above that OSC should or must consider before it provides basic SSA safety services through TraCSS?
To facilitate review of your responses, please reference the subject of the RFI in your response. You may respond to some or all of the topic areas covered in the RFI, and you can suggest other factors or relevant questions. You may also include links to online material or interactive presentations. If including data sets, please make the data available in a downloadable, machine-readable format with accompanying metadata.
Please note that this is an RFI only. In accordance with the implementing regulations of the Paperwork Reduction Act of 1995 (PRA), specifically 5 CFR 1320.3(h)(4), this general solicitation is exempt from the PRA. Facts or opinions submitted in response to general solicitations of comments from the public, published in the
This RFI is issued solely for information and planning purposes; it does not constitute a request for proposals, applications, proposal abstracts, or quotations. This RFI does not commit the U.S. Government to contract for any supplies or services or make a grant award. Further, we are not seeking proposals through this RFI and will not accept unsolicited proposals. Choosing not to respond to this RFI does not preclude participation in any future procurement, if conducted.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of issuance of letter of authorization.
In accordance with the Marine Mammal Protection Act (MMPA), as amended, its implementing regulations, and NMFS' MMPA Regulations for Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico, notification is hereby given that a Letter of Authorization (LOA) has been issued to Echo Offshore LLC (Echo) for the take of marine mammals incidental to geophysical survey activity in the Gulf of Mexico.
The LOA is effective from the date of issuance through June 31, 2023.
The LOA, LOA request, and supporting documentation are available online at:
Rachel Wachtendonk, Office of Protected Resources, NMFS, (301) 427-8401.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 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.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
On January 19, 2021, we issued a final rule with regulations to govern the unintentional taking of marine mammals incidental to geophysical survey activities conducted by oil and gas industry operators, and those persons authorized to conduct activities on their behalf (collectively “industry operators”), in Federal waters of the U.S. Gulf of Mexico (GOM) over the course of 5 years (86 FR 5322, January 19, 2021). The rule was based on our findings that the total taking from the specified activities over the 5-year period will have a negligible impact on the affected species or stock(s) of marine mammals and will not have an unmitigable adverse impact on the availability of those species or stocks for subsistence uses. The rule became effective on April 19, 2021.
Our regulations at 50 CFR 217.180
Echo plans to conduct a 2D high resolution seismic survey in Lease Block G14576 (Main Pass Area 91). Echo plans to use a single, 20-cubic inch airgun, in addition to three other high-resolution geophysical (HRG) acoustic sources. Please see Echo's application for additional detail.
Consistent with the preamble to the final rule, the survey effort proposed by Echo in its LOA request was used to develop LOA-specific take estimates based on the acoustic exposure modeling results described in the preamble (86 FR 5322, 5398, January 19, 2021). In order to generate the appropriate take number for authorization, the following information was considered: (1) survey type; (2) location (by modeling zone
Exposure modeling results were generated using the single airgun and HRG proxies. Because those results assume use of a 90-in
Based on the results of our analysis, NMFS has determined that the level of taking expected for this survey and authorized through the LOA is consistent with the findings made for the total taking allowable under the regulations. See Table 1 in this notice and Table 9 of the rule (86 FR 5322, January 19, 2021).
Under the GOM rule, NMFS may not authorize incidental take of marine mammals in an LOA if it will exceed “small numbers.” In short, when an acceptable estimate of the individual marine mammals taken is available, if the estimated number of individual animals taken is up to, but not greater than, one-third of the best available abundance estimate, NMFS will determine that the numbers of marine mammals taken of a species or stock are small. For more information please see NMFS' discussion of the MMPA's small numbers requirement provided in the final rule (86 FR 5322, 5438, January 19, 2021).
The take numbers for authorization, which are determined as described above, are used by NMFS in making the necessary small numbers determinations, through comparison with the best available abundance estimates (see discussion at 86 FR 5322, 5391, January 19, 2021). For this comparison, NMFS' approach is to use the maximum theoretical population, determined through review of current stock assessment reports (SAR;
Based on the analysis contained herein of Echo's proposed survey activity described in its LOA application and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the affected species or stock sizes (
NMFS has determined that the level of taking for this LOA request is consistent with the findings made for the total taking allowable under the incidental take regulations and that the amount of take authorized under the LOA is of no more than small numbers. Accordingly, we have issued an LOA to Echo authorizing the take of marine mammals incidental to its geophysical survey activity, as described above.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that the Glacier Bay National Park and Preserve (Philip Hooge, Responsible Party), has applied in due form for a permit to conduct research on humpback (
Written, telefaxed, or email comments must be received on or before February 27, 2023.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the “Features” box on the Applications and Permits for Protected Species (APPS) home page,
Written comments on this application should be submitted via email to
Those individuals requesting a public hearing should submit a written request via email to
Erin Markin or Carrie Hubard, (301) 427-8401.
The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
The applicant proposes to study humpback, killer, minke, and gray whales to gather information on their ecology, behavior, and population status in southeastern Alaska, including Glacier Bay National Park and Preserve. Individuals may be closely approached for vessel surveys, photo-identification, behavioral observation, collection of feces or sloughed skin, and passive acoustic recording. The maximum annual approaches to whales will be 2050 humpback whales, 500 killer whales, 20 minke whales, and 20 gray whales. Biopsy sampling of 50 humpback whales, annually, is also requested. Unidentified cetacean, pinniped, and salmonid species parts may be collected from predation events. Biological samples may be imported or exported. The requested duration of the permit is 5 years.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
United States Patent and Trademark Office, Department of Commerce.
Notice of public meeting.
The United States Patent and Trademark Office (USPTO) plays an important role in incentivizing and protecting innovation, including innovation driven by artificial intelligence (AI), to ensure continued U.S. leadership in AI and other emerging technologies (ET). The USPTO's Texas Regional Office will host a public meeting on innovation driven by AI on February 8, 2023, at 11 a.m. CT. The meeting will be held in collaboration with the Dallas Bar Association (DBA) Intellectual Property (IP) section and the State Bar of Texas IP section. This will be the third meeting in the USPTO's AI/ET Partnership Series. First announced in June 2022, the AI/ET Partnership provides an opportunity to bring stakeholders together through a series of engagements to share ideas, feedback,
The public meeting will be held on February 8, 2023, from 11 a.m. to 3 p.m. CT. Persons seeking to speak at the listening session during the meeting must register by February 2, 2023, at the website in
Register at
Srilakshmi Kumar at
The USPTO held its inaugural AI/ET Partnership meeting in June 2022. This meeting provided an overview of the National AI Initiative and the USPTO's efforts on AI/ET, including the USPTO AI Patent Dataset. The meeting also discussed important patent policy issues related to AI/ET inventions, such as subject matter eligibility, disclosure, and inventorship.
The USPTO held its second AI/ET Partnership meeting in September 2022. This meeting focused on AI and biotechnology, and explored current trends highlighting the convergence of technologies in the life sciences and AI, as well as the IP considerations arising from this technological convergence.
The USPTO will hold its third AI/ET Partnership meeting virtually and in person at the Arts District Mansion in Dallas, Texas, on Wednesday, February 8. This meeting is being hosted by the USPTO's Texas Regional Office in collaboration with the DBA IP section and the State Bar of Texas IP section.
During the meeting, panelists from the USPTO and diverse stakeholders from academia, industry, and law firms will explore various IP policy issues with respect to AI-driven innovation. Panel discussions will cover: (1) the current state of AI-driven innovation, (2) ways to address inventions created with significant AI contributions, and (3) unanticipated IP challenges from AI-driven innovation. The meeting will also include a public listening session.
The public meeting will be held virtually and in person at the Arts District Mansion, 2101 Ross Ave., Dallas, TX 75201, from 11 a.m. to 3 p.m. CT. The agenda is available on the USPTO website at
Corporation for National and Community Service.
Notice of information collection; request for comment.
The Corporation for National and Community Service, operating as AmeriCorps, has submitted a public information collection request (ICR) entitled National Servicer Trust Interest Payment Request form for review and approval in accordance with the Paperwork Reduction Act.
Written comments must be submitted to the individual and office listed in the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of this ICR, with applicable supporting documentation, may be obtained by calling the Corporation for National and Community Service, Nahid Jarrett, at 202-606-6753 or by email to
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, 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;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
A 60-day Notice requesting public comment was published in the
Corporation for National and Community Service.
Notice of information collection; request for comment.
The Corporation for National and Community Service, operating as AmeriCorps, has submitted a public information collection request (ICR) entitled Day of Service Application Instructions (MLK + 911) for review and approval in accordance with the Paperwork Reduction Act.
Written comments must be submitted to the individual and office listed in the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of this ICR, with applicable supporting documentation, may be obtained by calling AmeriCorps, Sharron Tendai, at 202-606-3904 or by email to
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, 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;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
A 60-day Notice requesting public comment was published in the
Corporation for National and Community Service.
Notice of information collection; request for comment.
The Corporation for National and Community Service, operating as AmeriCorps, has submitted a public information collection request (ICR) entitled Voucher and Payment Request form for review and approval in accordance with the Paperwork Reduction Act.
Written comments must be submitted to the individual and office listed in the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of this ICR, with applicable supporting documentation, may be obtained by calling the Corporation for National and Community Service, Nahid Jarrett, at 202-606-6753 or by email to
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, 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;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
A 60-day Notice requesting public comment was published in the
Corporation for National and Community Service.
Notice of information collection; request for comment.
The Corporation for National and Community Service, operating as AmeriCorps, has submitted a public information collection request (ICR) entitled National Servicer Trust Interest Payment Request form for review and approval in accordance with the Paperwork Reduction Act.
Written comments must be submitted to the individual and office listed in the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of this ICR, with applicable supporting documentation, may be obtained by calling the Corporation for National and Community Service, Nahid Jarrett, at 202-606-6753 or by email to
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, 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;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
A 60-day Notice requesting public comment was published in the
Corporation for National and Community Service.
Notice of information collection; request for comment.
The Corporation for National and Community Service, operating as AmeriCorps, has submitted a public information collection request (ICR) for review and approval in accordance with the Paperwork Reduction Act.
Written comments must be submitted to the individual and office listed in the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of this ICR, with applicable supporting documentation, may be obtained by calling AmeriCorps, Nancy Ferguson, at 202-569-1395 or by email to
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, 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;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
A 60-day Notice requesting public comment was published in the
Corporation for National and Community Service.
Notice of information collection; request for comment.
The Corporation for National and Community Service, operating as AmeriCorps, has submitted a public information collection request (ICR) entitled NCCC Member Experience Survey for review and approval in accordance with the Paperwork Reduction Act.
Written comments must be submitted to the individual and office listed in the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of this ICR, with applicable supporting documentation, may be obtained by calling AmeriCorps, Michael Ketover, by email to
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, 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;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
A 60-day Notice requesting public comment was published in the
Department of the Air Force Scientific Advisory Board, Department of Defense.
Notice of Federal Advisory Committee meeting.
The Department of Defense (DoD) is publishing this notice to announce that the following Federal Advisory Committee meeting of the Department of the Air Force Scientific Advisory Board will take place.
Closed to the public. 24 January 2023 from 8:00 a.m. to 2:30 p.m. Pacific Time.
The meeting will be held at the Beckman Center of The National Academies of Science and Engineering, located at 100 Academy Drive, Irvine, California 92617.
Lt Col Blythe Andrews, (240) 470-4566 (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.
Office of the Secretary, Department of Defense.
Notice of proposed changes to the rules of practice and procedure of the United States Court of Appeals for the Armed Forces.
This notice announces proposed changes to the Rules of Practice and Procedure, United States Court of Appeals for the Armed Forces. Although these rules of practice and procedure fall within the Administrative Procedure Act's exemptions for notice and comment, the Department, as a matter of policy, has decided to make these changes available for public review and comment before they are implemented.
Comments on the proposed changes must be received by February 27, 2023.
You may submit comments, identified by docket number and title by any of the following methods:
•
•
Malcolm H. Squires, Jr., Clerk of the Court, telephone (202) 761-1448.
This notice announces the following
(a) With the Senior Judge's consent, and at the request of the Chief Judge, a Senior Judge may perform judicial duties with the Court if an active Judge of the Court is disabled or recused himself or if there is a vacancy in an active judgeship on the Court. For the periods of time when performing judicial duties with the Court, a Senior Judge shall receive the same pay, per diem, and travel allowances as an active Judge. The periods of performance of judicial duties shall be certified by the Chief Judge and reported to the Court Executive who shall take appropriate steps so that the Senior Judge is paid in accordance with Article 142(e)(2), Uniform Code of Military Justice (UCMJ), 10 U.S.C. 942(e)(2).
(b) In addition to the performance of judicial duties with the Court, a Senior Judge may, at the request of the Chief Judge and with the Senior Judge's consent, perform such other duties as the Chief Judge may request or the Court may direct. Such other duties may include, but are not limited to, service as a special master or as an adviser on Court operations, administration, and rules; representation of the Court at conferences, seminars, committee meetings, or other official or professional functions; coordination of or assistance with conferences being conducted by the Court; and assistance in the compilation of history or archives of the Court. A Senior Judge shall not receive pay for the performance of such other duties with the Court but may be paid per diem and travel allowance to reimburse expenses incurred by the Senior Judge while performing such duties.
(c) Whether in the performance of judicial duties or other duties, a Senior Judge shall be provided such administrative and secretarial assistance, office space, and access to the courthouse, other public buildings, court files, and related information, as the Chief Judge considers appropriate for the performance of those duties by the Senior Judge.
(d) The title of Senior Judge may not be used in any way for personal gain or in connection with any business activity, advertisement, or solicitation of funds. However, the title of a Senior Judge may be referred to in any professional biography or listing and may be used in connection with any judicial or other duties that the Chief Judge requests the Senior Judge to perform.
(e) No Senior Judge of the Court may engage in the practice of law in connection with any matter that involves an investigation or trial for any matter arising under the UCMJ or appellate review of any court-martial proceeding by a Court of Criminal Appeals, the United States Court of Appeals for the Armed Forces, or the Supreme Court of the United States.
(f) These rules shall apply to “senior judges” as defined by Article 142(e)(1), UCMJ, 10 U.S.C. 942(e)(1), and are promulgated pursuant to Article 142(e)(5), UCMJ, 10 U.S.C. 942(e)(5).
(a) With the Senior Judge's consent, and at the request of the Chief Judge, a Senior Judge may perform judicial duties with the Court if an active Judge of the Court is disabled or recused, or if there is a vacancy in an active judgeship on the Court. For the periods of time when performing judicial duties with the Court, a Senior Judge shall receive the same pay, per diem, and travel allowances as an active Judge. The periods of performance of judicial duties shall be certified by the Chief Judge and reported to the Clerk of the Court who shall take appropriate steps so that the Senior Judge is paid in accordance with Article 142(e)(2), Uniform Code of Military Justice (UCMJ), 10 U.S.C. 942(e)(2).
(b) In addition to the performance of judicial duties with the Court, a Senior Judge may, at the request of the Chief Judge and with the Senior Judge's consent, perform such other duties as the Chief Judge may request or the Court may direct. Such other duties may include, but are not limited to, service as a special master or as an adviser on Court operations, administration, and rules; representation of the Court at conferences, seminars, committee meetings, or other official or professional functions; coordination of or assistance with conferences being conducted by the Court; and assistance in the compilation of history or archives of the Court. A Senior Judge may not receive pay for the performance of such other duties with the Court but may be paid per diem and travel allowance to reimburse expenses incurred by the Senior Judge while performing such duties.
(c) The title of Senior Judge may not be used in any way for personal gain or in connection with any business activity, advertisement, or solicitation of funds. However, the title of a Senior Judge may be referred to in any professional biography or listing and may be used in connection with any judicial or other duties that the Chief Judge requests the Senior Judge to perform.
(d) No Senior Judge of the Court may engage in the practice of law in connection with any matter that involves an investigation or trial for any matter arising under the UCMJ or appellate review of any court-martial proceeding by a Court of Criminal Appeals, the United States Court of Appeals for the Armed Forces, or the Supreme Court of the United States.
(e) These rules shall apply to “senior judges” as defined by Article 142(e)(1), UCMJ, 10 U.S.C. 942(e)(1), and are promulgated pursuant to Article 142(e)(5), UCMJ, 10 U.S.C. 942(e)(5).
(b) It shall be a requisite to the admission of attorneys to the Bar of this Court that they be a member of the Bar of a federal court or of the highest court of a State, Territory, Commonwealth, or Possession, and that their private and professional character shall appear to be good.
(b) It shall be a requisite to the admission of attorneys to the Bar of this Court that they be a member in good standing of the Bar of the highest court of a State, the District of Columbia, Territory, Commonwealth, or Possession of the United States.
(c) Supervising Attorney Requirements. A supervising attorney must:
(1) be an attorney of record in the case;
(2) be a member in good standing of the Bar of this Court;
(3) have been admitted to practice for a minimum of 2 years and have appeared and argued in at least 1 case before this Court or appeared and argued in at least 3 cases before state or federal appellate courts;
(4) not supervise more than 5 students at any one time;
(5) appear with the student in any oral presentations before this Court;
(6) read, approve, and sign all documents filed with this Court;
(7) assume personal professional responsibility for the student's work in matters before this Court;
(8) be responsible to supplement the oral or written work of the student as necessary to ensure proper representation of the client;
(9) guide and assist the student in preparation to the extent necessary or appropriate under the circumstances;
(10) be available to consult with the client; and
(11) neither ask for nor receive any compensation or remuneration of any kind from the person on whose behalf the services are rendered.
(d) Authorization and Certification.
(1) The party on whose behalf the student appears must consent to the representation by that student in writing.
(2) The supervising attorney must indicate in writing approval of the appearance by the law student and consent to supervise the student.
(3) The law student must be certified by the dean of the student's law school as being of good character and competent legal ability.
(4) Before commencing student representation in any case under this rule, the supervising attorney shall file a motion for leave to allow student representation in such case. The motion should put forth that the provisions of this rule have been met and that in counsel's view the case is an appropriate one for student representation. The written consent, approval, and certification referred to above shall be attached to the motion. A copy of the motion shall be served on opposing counsel, but no answer will be allowed except with leave of the Court. Once these documents are filed, the Court will decide, using its discretion on a caseby-case basis, whether to allow the student representation.
(e) Activities. Upon fulfilling the requirements of this rule, the student may enter an appearance in a case and:
(1) assist in the preparation of briefs and other documents to be filed in this Court, but such briefs or documents must also be signed by the supervising attorney;
(2) participate in oral argument, but only in the presence of the supervising attorney; and
(3) take part in other activities in connection with the case, subject to the direction of the supervising attorney.
(f) Termination. The dean's certification of the student:
(1) shall remain in effect, unless sooner withdrawn, until the publication of the results of the first bar examination taken by such student following the student's graduation. For any student who passes that examination, the certification shall continue in effect until the date the student is admitted to the bar;
(2) may be withdrawn by the Court at any time; and
(3) may be withdrawn by the dean at any time.
(g) Exceptions.
(1) This rule does not apply to an appearance or an oral argument by a law student on behalf of an amicus curiae.
(2) Nothing in this rule shall preclude the Government or any agency, firm, or organization from compensating a law student for services rendered under such rule.
(3) The Court retains the authority, on good cause shown, to establish exceptions to these procedures in any case.
(h) Time for Filing. An amicus brief submitted under this Rule is not subject to the time limitation in Rule 26, but such brief shall be filed no less than 14 days before the scheduled date of oral argument. Both the appellant and the appellee may file a reply to such brief within 7 days of the filing thereof, subject to the limitations specified in Rule 24 (b) and (c).
(c) Supervising Attorney Requirements. A supervising attorney must:
(1) be an attorney of record in the case;
(2) be a member in good standing of the Bar of this Court;
(3) have been admitted to practice for a minimum of 2 years and have argued at least 1 case before this Court or argued at least 3 cases before state or federal appellate courts;
(4) approve in writing the appearance by the law student and agree to supervise the student;
(5) not supervise more than 5 students at any one time;
(6) appear with the student in any oral presentations before this Court;
(7) read, approve, and sign all documents filed with this Court;
(8) assume personal professional responsibility for the student's work in matters before this Court;
(9) be available to consult with the client, if applicable; and
(10) neither ask for nor receive any compensation or remuneration of any kind from the person on whose behalf the services are rendered.
(d) Authorization and Certification.
(1) The party on whose behalf the student appears must consent to the representation by that student in writing.
(2) Before commencing student representation in any case under this rule, the prospective supervising attorney must file a motion for leave to allow student representation in such case. The motion must affirm that the provisions of this rule have been met and that, in the prospective counsel's view, the case is an appropriate one for student representation. The written consent, approval, and certification referred to above shall be attached to the motion. No answer will be allowed except with leave of the Court. Once these documents are filed, the Court will decide, using its discretion on a case-by-case basis, whether to allow the student representation.
(e) Activities. Upon fulfilling the requirements of this rule, the student may enter an appearance in a case and:
(1) assist in the preparation of briefs and other documents to be filed in this Court; and
(2) participate in oral argument, but only in the presence of the supervising attorney.
(f) Exceptions.
(1) Nothing in this rule shall preclude the Government or any agency, firm, or organization from compensating a law student for services rendered under such rule.
(2) The Court retains the authority, on good cause shown, to establish
(b) Whenever a member of the Bar of this Court has been disbarred or suspended from practice in any court of record, the Court will enter an order suspending that member from practice before this Court and affording the member an opportunity to show cause, within 30 days, why a disbarment order should not be entered. Upon response, or if no response is timely filed, the Court will enter an appropriate order.
(b) Attorneys must report suspension, disbarment, or final disciplinary action in the bars of other courts to the Bar of this Court within 30 days following said action. Whenever a member of the Bar of this Court has been disbarred or suspended from practice in any court of record, the Court must enter an order temporarily suspending that member from practice before this Court and affording the member an opportunity to show cause, within 30 days, why a disbarment order should not be entered. Upon response, or if no response is timely filed, the Court will enter an appropriate order.
(a) Petition for Grant of Review/Supplement/Answer/Reply
(7) Granted Petitions.
(B) Other Appeals. Where a petition has been granted in all other appeal cases and briefs have been ordered, an appellant's brief shall be filed in accordance with Rule 24 no later than 30 days after the date of the order granting the petition. An appellee's answer shall be filed no later than 30 days after the filing of an appellant's brief. A reply may be filed by the appellant no later than 10 days after the filing of the appellee's answer.
(a) Petition for Grant of Review/Supplement/Answer/Reply
(7) Granted Petitions.
(B) Other Appeals. Where a petition has been granted in all other appeal cases, to include cases returned by mandate from the United States Supreme Court, the Clerk of Court will issue a briefing order within 30 days to provide the appropriate timing and sequence of filings.
(b) The supplement to the petition shall be filed in accordance with the applicable time limit set forth in Rule 19(a)(5)(A) or (B), shall include an Appendix containing a copy of the decision of the Court of Criminal Appeals, unpublished opinions cited in the brief, relevant extracts of rules and regulations, and shall conform to the provisions of Rules 24(b), 35A, and 37. Unless authorized by Order of the Court or by motion of a party granted by the Court, the supplement and any answer thereto shall not exceed 25 pages, except that a supplement or answer containing no more than 9,000 words or 900 lines of text is also acceptable. Any reply to the answer shall not exceed 10 pages, except that a reply containing 4,000 words or 400 lines of text is also acceptable. The supplement shall contain:
(f) An appellant or counsel for an appellant may move to withdraw his petition at any time by filing a motion pursuant to Rule 30. Such a motion shall substantially comply with the requirements of Rule for Courts-Martial 1110, and be accompanied by a written request for withdrawal that includes the following:
(b) The supplement to the petition shall be filed in accordance with the applicable time limit set forth in Rule 19(a)(5) and shall include an Appendix containing a copy of the decision of the Court of Criminal Appeals, unpublished opinions cited in the brief, relevant extracts of rules and regulations, and shall conform to the provisions of Rules 35A and 37. Unless authorized by Order of the Court or by motion of a party granted by the Court, the supplement and any answer thereto may not exceed 9,000 words. Any reply to the answer may not exceed 4,500 words. The supplement shall contain:
(f) An appellant may move to withdraw a petition at any time by filing a motion pursuant to Rule 30. Such a motion must be accompanied by a written request for withdrawal that includes the following:
(b) Page Limitations. Unless otherwise authorized by order of the Court or by motion of a party granted by the Court (
(1) Briefs of the appellants/petitioners shall not exceed 30 pages;
(2) Answers of the appellees/respondents shall not exceed 30 pages;
(3) Replies of the appellants/petitioners shall not exceed 15
(c) Type-Volume Limitations.
(1) A brief of the appellants/petitioners and an answer of the appellees/respondents is acceptable if:
it contains no more than 14,000 words; or
it contains no more than 1,300 lines of text.
(2) A reply is acceptable if it contains no more than half of the type-volume specified in Rule 24(c)(1).
(3) Headings, footnotes, and quotations count toward the word and line limitations. The index, table of cases, statutes, and other authorities, the appendix and any certificates of counsel do not count toward the limitation.
(d) Certificate of Compliance. A brief submitted under Rule 24(c) must include a certificate stating that the brief complies with the type-volume limitation and Rule 37. The person preparing the certificate may rely on the word or line count of the word-processing system used to prepare the brief. The certificate must state either: (i) the number of words in the brief; or (ii) the number of lines in the brief.
(e) Form of Certificate of Compliance
This brief complies with the type-volume limitation of Rule 24(b) because:
[The principal brief may not exceed 14,000 words or 1,300 lines; a reply or amicus brief may not exceed 7,000 words or 650 lines
This brief contains [state the number of] words.
(f) Joint Appendix. The appellant or petitioner shall be responsible for filing eight copies of a joint appendix, which shall be a separate document filed contemporaneously with the brief.
(2) Format. The joint appendix will be produced on 8.5 by 11 inch white paper, be bound in a manner that is secure and does not obscure the text, and will permit the contents to lie reasonably flat when open. The cover must be white and contain the caption of the case and docket number. The cover shall be followed by a table of contents. Pages in the joint appendix shall be sequentially numbered in a manner that does not obscure any page numbers reflected in the record of trial. If the joint appendix consists of less than 100 pages, it may be reproduced by single-sided or double-sided copying. If it consists of 100 pages or more, the joint appendix shall use double-sided copying. Classified material or matters under seal that are to be included in a joint appendix shall be submitted in a separate volume, clearly designated as containing classified or sealed material. Classified material will be handled in accordance with Rule 12.
(b) Type-Volume limitations. Unless otherwise authorized by order of the court or by motion of a party granted by the Court (
(1) A brief of the appellants/petitioners and an answer of the appellees/respondents may not exceed 14,000 words.
(2) A reply may not exceed more than half of the words (7,000) specified in Rule 24(b)(1).
(3) Headings, footnotes, and quotations count toward the word limitation. The index, table of cases, statutes, and other authorities, the appendix and any certificates of counsel do not count toward the limitation.
(c) Certificate of Compliance. A brief submitted under Rule 24(b) must include a certificate stating that the number of words in the brief complies with the type-volume limitation and Rule 37. The person preparing the certificate may rely on the word count of the word-processing system used to prepare the brief. The certificate must state the number of words in the brief.
(d) Form of Certificate of Compliance.
* * * This brief complies with the type-volume limitation of Rule 24(b) because:
This brief contains [state the number of] words.
(e) Joint Appendix. The appellant or petitioner shall be responsible for filing eight copies of a joint appendix, which shall be a separate document filed contemporaneously with the brief.
(2) Format. The Joint Appendix will be produced on 8.5 by 11 inch white paper, be bound in a manner that is secure and does not obscure the text, and will permit the contents to lie reasonably flat when open. The cover must be white and contain the caption of the case and docket number. The cover shall be followed by a table of contents. Pages in the joint appendix shall be sequentially numbered in a manner that does not obscure any page numbers reflected in the record of trial. If the joint appendix consists of less than 100 pages, it may be reproduced by single-sided or double-sided copying. If it consists of 100 pages or more, the joint appendix shall use double-sided copying. Audio and video recordings may be filed electronically or produced on a CD or DVD.
(b) Writ-Appeal Petition, Answer, and Reply. A writ-appeal petition for
review of a decision by a Court of Criminal Appeals acting on a petition for extraordinary relief shall be filed by an appellant, together with any available record, including the items specified in subsection (a)(2)(C), within the time prescribed by Rule 19(e), shall conform in length to Rule 24(b), shall be accompanied by proof of service on the appellee in accordance with Rule 39, and shall contain the information required by subsection (a)(2)(B). The appellee shall file an answer no later than 10 days after the filing of the writ-appeal petition. A reply may be filed by the appellant no later than 5 days after the filing of the appellee's answer.
(b) Writ-Appeal.
(1) Writ-Appeal Petition, Answer, and Reply. A writ-appeal petition for review of a decision by a Court of Criminal Appeals acting on a petition for extraordinary relief shall be filed by an appellant, together with any available record, including the items specified in subsection (a)(2)(C), within the time prescribed by Rule 19(e). The petition must conform in length to Rule 24(b), shall be accompanied by proof of service on the appellee in accordance with Rule 39, and shall contain the information required by subsection (a)(2)(B). The appellee may file an answer no later than 10 days after the filing of the writ-appeal petition. A reply may be filed by the appellant no later than 5 days after the filing of the appellee's answer.
(2) Priority Writ-Appeal for Article 6b(e) Writs. To the extent practicable, review of any decision of the Courts of Criminal Appeals on a petition for mandamus, pursuant to Article 6b(e)(3)(C), UCMJ, 10 U.S.C. 806b(e)(3)(C), will have priority over all other proceedings before this Court.
(C) Review of any decision of the Court of Criminal Appeals on a petition for a writ of mandamus described in this subsection shall have priority in the Court of Appeals for the Armed Forces, as determined under the rules of the Court of Appeals for the Armed Forces. Art. 6b(e)(3)(C), UCMJ, 10 U.S.C. 806b.
(b) Filing in Person. If a pleading or other paper is filed in person, such filing shall consist of delivery to a member of the Clerk's office during normal business hours.
(b) Filing in Person. If a pleading or other paper is filed in person, such filing shall consist of delivery pursuant to Rule 9(e).
(f) Pro Se Filings. A pro se filing is a filing that is made by a person on his or her own behalf and that is not signed by at least one counsel who is participating in the case.
(b) Copying
(2) Except for electronically filed pleadings, an original and 7 legible copies of all pleadings or other papers relative to a case shall be filed.
(b) Copying
(2) Except for electronically filed pleadings and audio and video recordings, an original and 7 legible copies of all pleadings or other documents relative to a case shall be filed.
(a) General. Except for documents filed in propria persona and those provided for in subsection (b), all original pleadings or other papers filed in a case will bear the signature of at least one counsel who is a member of this Court's Bar and who is participating in the case. The name, address, telephone number, Court Bar number, and rank, if any, of the person signing, together with the capacity in which such counsel signs the paper, will be included. This signature will constitute a certificate that the statements made in the pleading or paper are true and correct to the best of the counsel's knowledge, information, or belief, and that the pleading or paper is filed in good faith and not for the purpose of unnecessary delay. A counsel who signs a pleading “for” some other counsel whose name is typed under such signature must, in addition, affix their own signature in a separate signature block with their own name, address, telephone number, Court Bar number, and rank, if any, typed thereunder.
(a) General. Except for documents filed pro se and those provided for in subsection (b), all original pleadings or other papers filed in a case will bear the signature of at least one counsel who is a member of this Court's Bar and who is participating in the case. The name, address, telephone number, Court Bar number, and rank, if any, of the person signing, together with the capacity in which such counsel signs the paper, will be included. This signature will constitute a certificate that the statements made in the pleading or paper are true and correct to the best of the counsel's knowledge, information, or belief, and that the pleading or paper is filed in good faith and not for the purpose of unnecessary delay. A counsel who signs a pleading “for” some other counsel whose name is typed under such signature must, in addition, affix their own signature in a separate signature block with their own name, address, telephone number, Court Bar number, and rank, if any, typed thereunder. An electronic filing shall contain the digital signature of the attorney of record.
(a) In General. At or before the filing of any pleading or other paper relative
(a) In General. At or before the filing of any pleading or other paper relative to a case, a copy thereof shall be served on all counsel of record, including amicus curiae counsel, in person, by mail, by third-party commercial carrier, or by electronic means. When a party is not represented by counsel, service shall be made on such party in person, by mail, or by third-party commercial carrier. When reasonable, considering such factors as the immediacy of the relief sought, distance, and cost, service must be at least as expeditious as the manner used to file the pleading or other paper with the Court.
e. The Joint Appendix to the brief will be filed in paper form only with the required number of paper copies rather than electronically. If the appellant or petitioner files the brief electronically, the Joint Appendix will be filed on the same day the brief is filed electronically.
e. The Joint Appendix to the brief, to include copies, will be filed in paper form only. Audio and video recordings are exempt from this paper requirement for the Joint Appendix to the brief. If the appellant or petitioner files the brief electronically, the Joint Appendix will be filed on the same day the brief is filed.
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act (PRA) of 1995, the Department is proposing an extension without change of a currently approved information collection request (ICR).
Interested persons are invited to submit comments on or before February 27, 2023.
Written comments and recommendations for proposed information collection requests should be submitted within 30 days of publication of this notice. Click on this link
For specific questions related to collection activities, please contact Beth Grebeldinger, 202-377-4018.
The Department is especially interested in public comment addressing the following issues: (1) is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Elementary and Secondary Education and Office of
Notice.
Pursuant to the Education Department General Administrative Regulations, the Department of Education (Department) authorizes grantees receiving awards under the Congressionally Funded Community Projects (Assistance Listing Numbers 84.116Z, 84.215K) to make subgrants, subject to the limitations described in this notice.
This authorization is effective January 26, 2023.
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
Under 34 CFR 75.708(b), if the grantee uses this subgranting authority, the grantee has the authority to award subgrants only to eligible entities, and the subgrants must be used only to directly carry out project activities described in the grantee's approved application and consistent with the purpose described in the Consolidated Appropriations Act, 2023. CFCP grantees may make subgrants to the following eligible entities: a local educational agency, an educational service agency, an institution of higher education, or a nonprofit organization, as defined in 34 CFR 77.1.
Further, under 34 CFR 75.708(d), grantees must ensure that (1) subgrants are awarded on the basis of the approved budget that is consistent with the grantee's approved application and all applicable Federal statutory, regulatory, and other requirements; (2) every subgrant includes all conditions required by Federal statutes and Executive orders and their implementing regulations; and (3) subgrantees are aware of the requirements imposed upon them by Federal statutes and regulations, including the Federal anti-discrimination laws listed in 34 CFR 75.500, and enforced by the Department. Additionally, as is true with any expenditures incurred under the Department's grant programs, CFCP expenditures must satisfy the Federal cost principles in 2 CFR part 200, subpart E. Therefore, any subgrant and subgrantee expenditures must comply with the Federal cost principles, and grantees, as pass-through entities, must comply with the procedures for making subawards described in 2 CFR 200.332.
You may also access documents of the Department published in the
Office of Postsecondary Education, Department of Education.
Notice.
The Department of Education is issuing a notice inviting applications for fiscal year (FY) 2023 for the Fulbright-Hays Group Projects Abroad (GPA) Program, Assistance Listing Numbers 84.021A and 84.021B. This notice relates to the approved information collection under OMB control number 1840-0792.
For the addresses for obtaining and submitting an application, please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the
Cory Neal, U.S. Department of Education, 400 Maryland Avenue SW, Room 258-12, Washington, DC 20202. Telephone: (202) 704-3437. Email:
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
This competition invites applicants to submit an application to request support for either a Fulbright-Hays GPA short-term project (GPA short-term project 84.021A) or a Fulbright-Hays GPA long-term project (GPA long-term project 84.021B). Applicants must clearly indicate on the SF 424, the Application for Federal Assistance cover sheet, whether they are applying for a GPA short-term project (84.021A) or a GPA long-term project (84.021B). Additional submission requirements are included in the application package.
There are three types of GPA short-term projects: (1) short-term seminar projects of 4 to 6 weeks in length designed by the applicant to help participants integrate international studies into the curriculum at an institution of higher education (IHE) or a school system when they return to the United States, by focusing on a particular aspect of area studies, such as the culture of an area or country of study (34 CFR 664.11); (2) curriculum development projects of 4 to 8 weeks in length that provide participants the opportunity to acquire resource materials for curriculum development in modern foreign language and area studies for use and dissemination in the United States (34 CFR 664.12); and (3) group research or study projects of 3 to 12 months in duration designed to give participants the opportunity to undertake research or study in a foreign country (34 CFR 664.13).
GPA long-term projects are advanced overseas intensive language programs designed by the applicant that may be carried out during a full year, an academic year, a semester, a trimester, a quarter, or a summer. GPA long-term projects provide participants an opportunity to use and strengthen their advanced language training while experiencing the culture in the foreign country. Participants should have successfully completed at least 2 academic years of training in the language to be studied to be eligible to participate in a GPA intensive advanced language training program. In addition, the language to be studied must be indigenous to the host country and maximum use must be made of local institutions and personnel (34 CFR 664.14).
This priority is:
A group project that focuses on one or more of the following geographic regions of the world: Africa, East Asia, South Asia, Southeast Asia and the Pacific, the Western Hemisphere (Central and South America, Mexico, and the Caribbean), Eastern and Central Europe and Eurasia, and the Near East.
These priorities are:
Applications for GPA short-term projects from the following types of institutions and organizations:
• Minority-Serving Institutions (MSIs) (as defined in this notice);
• Community colleges (as defined in this notice);
• New applicants (as defined in this notice); or
• State educational agencies (SEAs) (as defined in this notice).
Applications for GPA long-term advanced overseas intensive language training projects from MSIs.
Applications that propose GPA short-term projects (2 points) or GPA long-term projects (4 points) that provide substantive training and thematic focus on any modern foreign language except French, German, or Spanish.
Applications that propose short-term projects abroad that develop and improve foreign language studies, area studies, or both at elementary and secondary schools by including K-12 teachers or K-12 administrators as at least 50 percent of the project participants.
Applications that propose short-term projects abroad in modern foreign languages and area studies with an academic focus on any of the following academic fields: science, technology, engineering, mathematics, computer science, education (comparative or international), international development, political science, public health, or economics.
Applications that propose one of the following projects:
• Short-term overseas projects in Eastern Europe that provide cultural experiences and understanding about Ukraine history, politics, languages, and society to help integrate international studies into an institution's or school system's general curriculum. Projects may focus on a comparative topic such as Ukraine migration in Eastern Europe; or
• Short-term overseas projects in Central and South Asia that provide cultural experiences and understanding about Afghanistan history, politics, languages, and society to help integrate international studies into an institution's or school system's general curriculum. Projects may focus on a comparative topic such as Afghanistan migration in Central and South Asia.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in future fiscal years from the list of unfunded applications from this competition.
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• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double-space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger, or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The recommended page limit does not apply to the cover sheet or budget section, including the narrative budget justification; the assurance and certifications; or the one-page abstract, the resumes, the biography, or letters of support. However, the recommended page limit does apply to all of the application narrative.
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(1) The Secretary reviews each application for information to determine the quality of the plan of operation for the project.
(2) The Secretary looks for information that shows—
(i) High quality in the design of the project;
(ii) An effective plan of management that ensures proper and efficient administration of the project;
(iii) A clear description of how the objectives of the project relate to the purpose of the program;
(iv) The way the applicant plans to use its resources and personnel to achieve each objective; and
(v) A clear description of how the applicant will ensure that project participants who are otherwise eligible to participate are selected without regard to race, color, national origin, gender, age, or handicapping condition.
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(1) The Secretary reviews each application for information to determine the quality of key personnel the applicant plans to use on the project.
(2) The Secretary looks for information that shows—
(i) The qualifications of the project director;
(ii) The qualifications of each of the other key personnel to be used in the project;
(iii) The time that each person referred to in paragraphs (b)(2)(i) and (ii) of this section will commit to the project; and
(iv) The extent to which the applicant, as part of its nondiscriminatory employment practices, will ensure that its personnel are selected for employment without regard to race, color, national origin, gender, age, or handicapping condition.
(3) To determine the qualifications of a person, the Secretary considers evidence of past experience and training in fields related to the objectives of the project as well as other information that the applicant provides.
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(1) The Secretary reviews each application for information that shows that the project has an adequate budget and is cost effective.
(2) The Secretary looks for information that shows—
(i) The budget for the project is adequate to support the project activities; and
(ii) Costs are reasonable in relation to the objectives of the project.
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(1) The Secretary reviews each application for information that shows the quality of the evaluation plan for the project.
(2) The Secretary looks for information that shows that the methods of evaluation are appropriate for the project and, to the extent possible, are objective and produce data that are quantifiable.
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(1) The Secretary reviews each application for information that shows that the applicant plans to devote adequate resources to the project.
(2) The Secretary looks for information that shows that the facilities, equipment, and supplies that the applicant plans to use are adequate.
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(1) In addition to the general selection criteria contained in this section, the Secretary reviews each application for information that shows that the project meets the specific program criteria.
(2) The Secretary looks for information that shows—
(i) The potential impact of the project on the development of the study of modern foreign languages and area studies in American education. (15 points)
(ii) The project's relevance to the applicant's educational goals and its relationship to its program development in modern foreign languages and area studies. (10 points)
(iii) The extent to which direct experience abroad is necessary to achieve the project's objectives and the effectiveness with which relevant host country resources will be utilized. (10 points)
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In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
For FY 2023, proposed GPA short-term projects will be reviewed by peer review panels with expertise in the world area that is the focus of the application. All proposed GPA long-term projects will be reviewed by one peer review panel. The International and Foreign Language Education office
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Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, Appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.
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(a) Selecting recipients most likely to be successful in delivering results based on the program objectives through an objective process of evaluating Federal award applications (2 CFR 200.205);
(b) Prohibiting the purchase of certain telecommunication and video surveillance services or equipment in alignment with section 889 of the National Defense Authorization Act of 2019 (Pub. L. 115-232) (2 CFR 200.216);
(c) Providing a preference, to the extent permitted by law, to maximize use of goods, products, and materials produced in the United States (2 CFR 200.322); and
(d) Terminating agreements in whole or in part to the greatest extent authorized by law if an award no longer effectuates the program goals or agency priorities (2 CFR 200.340).
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If your application is not evaluated or not selected for funding, we notify you.
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We reference the regulations outlining the terms and conditions of an award in the
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(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
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The information provided by grantees in their performance reports submitted via the International Resource Information System (IRIS) will be the source of data for this measure. Reporting screens for institutions can be viewed at:
You may also access documents of the Department published in the
On March 31, 2022, Premium Energy Holdings, LLC filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Twitchell Pumped Storage Hydro Project to be located approximately 6 miles northeast of Santa Maria, California in the limits between San Luis Obispo and Santa Barbara Counties. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would consist of the following: (1) a new upper reservoir located either, on the western side of the Sierra Madre Mountains in Santa Barbara County, California, with a maximum elevation of 1,788 feet average mean sea level, with a surface area of 72 acres and a storage capacity of 7,150 acre-feet (alternative 1), or a new reservoir 0.5 mile west of Twitchell Lake with a maximum elevation of 1,296 feet average mean sea level, with a surface area of 83 acres and a storage capacity of 11,400 acre-feet (alternative 2); (2) an existing lower reservoir (Twitchell Reservoir), with an elevation of 592 feet average mean sea level, a surface area of approximately 400 acres and a storage capacity of 197,756 acre-feet; (3) either a 0.32-mile-long headrace tunnel, 0.07-mile-long vertical shaft, 2.20-mile-long horizontal tunnel, 0.03-mile-long penstock, and 0.46-mile-long tailrace tunnel (alternative A), or a 0.16-mile-long headrace tunnel, 0.04-mile-long vertical shaft, 1.10-mile-long horizontal tunnel, 0.02-mile-long penstock, and 0.23-mile long tailrace tunnel (alternative B) connecting the reservoirs to the powerhouse, with a maximum head of 704 or 1,196 feet depending on the selected upper reservoir; (4) either a new 9-mile-long 230-kilovolt (kV) line and 2.5 miles of SCE's existing right of way that will interconnect the project with the existing PG&E transmission system at the Mesa Substation (alternative 1), or a 230-kV line that would be installed that would interconnect at a future substation that would be a part of the Central California Power Connect project (alternative 2); (5) a new powerhouse that would house 4 new pump-turbines rated at 150 megawatts each; (6) a new substation installed on the northern or southern side of the Twitchell Reservoir depending on the upper reservoir alternatives, close to the powerhouse; and (7) appurtenant facilities. The estimated annual power generation at the Twitchell Pumped Storage Project would be 1,200,000 megawatt-hours.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, notices of intent, and competing applications using the Commission's eFiling system at
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's website at
Take notice that the following hydroelectric application has been filed
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The Commission strongly encourages electronic filing. Please file comments, motions to intervene, and protests using the Commission's eFiling system at
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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j. Valatie Falls filed its request to use the Traditional Licensing Process on November 30, 2022. Valatie Falls provided public notice of its request on November 30, 2022. In a letter dated January 13, 2023, the Director of the Division of Hydropower Licensing approved Valatie Falls' request to use the Traditional Licensing Process.
k. With this notice, we are initiating informal consultation with the U.S. Fish and Wildlife Service under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR part 402. We are also initiating consultation with the New York State Historic Preservation Officer, as required by section 106, National Historic Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2.
l. With this notice, we are designating Valatie Falls as the Commission's non-federal representative for carrying out informal consultation pursuant to section 7 of the Endangered Species Act and consultation pursuant to section 106 of the National Historic Preservation Act.
m. Valatie Falls filed a Pre-Application Document (PAD; including a proposed process plan and schedule) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.
n. A copy of the PAD may be viewed on the Commission's website (
o. The licensee states its unequivocal intent to submit an application for a subsequent license for Project No. 9886. Pursuant to 18 CFR 16.20, each application for a subsequent license and any competing license applications must be filed with the Commission at least 24 months prior to the expiration of the existing license. All applications for license for this project must be filed by November 30, 2025.
p. Register online at
On April 22, 2022, Hurricane Cliffs PSH, LLC filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Hurricane Cliffs Pumped Storage Project to be located approximately 8 miles south of Hurricane, Utah. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would be primarily located on Bureau of Land Management land and consist of the following: (1) a new upper reservoir at a normal maximum operating elevation of 4,270 feet average mean sea level, with a surface area of 200 acres and a total storage capacity of 3,920 acre-feet; (2) a new lower reservoir at a normal maximum operating elevation of 3,550 feet average mean sea level, with a surface area of 125 acres and a total storage capacity of 4,200 acre-feet; (3) a new 1,500-foot-long low-pressure tunnel, 570-foot-long vertical shaft, 1,440-foot-long high pressure tunnel, two 600-foot-long buried headrace pipes, and a 2,700-foot-long tailrace tunnel or channel connecting the two reservoirs with a maximum head of 1,230 feet; (3) a new 300-foot-long, 100-foot-wide, and 50-foot-high powerhouse complex comprised of three 85-foot-diameter shafts, each 250 feet deep and housing a 166.6 megawatt reversible pump-turbine unit, and a subsurface powerhouse building; (4) a new 25.3-mile-long (alternative A), or 25.9 mile-long (alternative B), 345-kilovolt (kV) transmission line connecting the powerhouse to PacifiCorp's Purgatory Flat substation; and (7) appurtenant facilities. The estimated annual power generation at the Hurricane Cliffs Pumped Storage Project would be 876,000 megawatt-hours.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, notices of intent, and competing applications using the Commission's eFiling system at
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's website at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared a draft environmental impact statement (EIS) for the CP2 LNG and CP Express Projects (Project), proposed by Venture Global CP2 LNG, LLC (CP2 LNG) and Venture Global CP Express, LLC (CP Express) in the above-referenced dockets. CP2 LNG and CP Express request authorizations to construct, install, own, operate, and maintain certain liquefied natural gas (LNG) facilities in Cameron Parish, Louisiana and certain pipeline facilities in Cameron and Calcasieu Parishes, Louisiana and Jasper and Newton Counties, Texas.
The draft EIS assesses the potential environmental effects of the construction and operation of the Project in accordance with the requirements of the National Environmental Policy Act (NEPA). The FERC staff concludes that approval of the proposed Project, with the mitigation measures recommended in the EIS, would have some adverse environmental impact. However, most of these impacts would be avoided or reduced to less-than-significant levels, with the exception of climate change and visual resources, including cumulative visual impacts, and visual impacts on environmental justice communities in the region. Climate change impacts are not characterized in the EIS as significant or insignificant.
The U.S. Army Corps of Engineers New Orleans and Galveston Districts, U.S. Department of Energy, U.S. Coast Guard, U.S. Department of Transportation's Pipeline and Hazardous Materials Safety Administration, and National Marine Fisheries Service participated as cooperating agencies in the preparation of the EIS. Cooperating agencies have jurisdiction by law or special expertise with respect to resources potentially affected by the proposal and participate in the NEPA analysis. The U.S. Army Corps of Engineers New Orleans and Galveston Districts will adopt and use the EIS to consider compliance with Section 404 of the Clean Water Act of 1972, as amended and Section 10 of the Rivers and Harbors Act of 1899. Although the cooperating agencies provided input to the conclusions and recommendations presented in the draft EIS, the agencies will present their own conclusions and recommendations in their respective Records of Decision for the Project.
The draft EIS addresses the potential environmental effects of the construction and operation of the following Project facilities:
• a liquefaction plant consisting of 18 liquefaction blocks and ancillary support facilities, each block having a nameplate capacity of about 1.1 million tonnes per annum of LNG;
• six pretreatment systems, each including an amine gas-sweetening unit to remove carbon dioxide (CO
• four 200,000 cubic meter aboveground full containment LNG storage tanks (two per phase) with cryogenic pipeline connections to the liquefaction plant and to the berthing docks;
• carbon capture and sequestration facilities, including carbon capture equipment within the terminal site as well as a non-jurisdictional CO
• a combined cycle natural gas turbine power plant with a nameplate capacity of 1,470 megawatts;
• two marine LNG loading docks and turning basins and two cryogenic lines for LNG transfer from the storage tanks to the docks;
• administration, control, maintenance, and warehouse buildings and related parking lots;
• 85.4 miles of 48-inch-diameter natural gas pipeline (CP Express Pipeline);
• 6.0 miles of 24-inch-diameter natural gas lateral pipeline connecting to the CP Express Pipeline in northwest Calcasieu Parish (Enable Gulf Run Lateral);
• one 187,000-horsepower natural gas-fired compressor station (Moss Lake Compressor Station);
• six meter stations (five at interconnects with existing pipelines and one at the terminus of the CP Express Pipeline within the Terminal Site); and
• other appurtenant facilities.
The Commission mailed a copy of the
The number of pages in the draft EIS exceeds the page limits set forth in the Council on Environmental Quality's July 16, 2020 final rule, Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act (85 FR 43304). Noting the scope and complexity of the proposed action and action alternatives, the Director of the Office of Energy Projects, as our senior agency official, has authorized this page limit exceedance for this draft EIS.
The draft EIS is not a decision document. It presents Commission staff's independent analysis of the environmental issues for the Commission to consider when addressing the merits of all issues in this proceeding. Any person wishing to comment on the draft EIS may do so. Your comments should focus on draft EIS's disclosure and discussion of potential environmental effects, measures to avoid or lessen environmental impacts, and the completeness of the submitted alternatives, information, and analyses. To ensure consideration of your comments on the proposal in the final EIS, it is important that the Commission receive your comments on or before 5:00 p.m. Eastern Time on March 13, 2023.
For your convenience, there are four methods you can use to submit your comments to the Commission. The
(1) You can file your comments electronically using the eComment feature on the Commission's website (
(2) You can file your comments electronically by using the eFiling feature also on the Commission's website (
(3) You can file a paper copy of your comments by mailing them to the Commission. Be sure to reference the Project docket number (CP22-21 and CP22-22) on your letter. Submissions sent via the U.S. Postal Service must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426. Submissions sent via any other carrier must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852; or
(4) In lieu of sending written or electronic comments, the Commission invites you to attend one of the public comment sessions its staff will conduct in the Project area to receive comments on the draft EIS, scheduled as follows:
The primary goal of these comment sessions is to have you identify the specific environmental issues and concerns with the draft EIS. Individual oral comments will be taken on a one-on-one basis with a court reporter. This format is designed to receive the maximum amount of oral comments, in a convenient way during the timeframe allotted.
Each comment session is scheduled from 5:00 p.m. to 8:00 p.m. Central Standard Time. You may arrive at any time after 5:00 p.m. There will not be a formal presentation by Commission staff when the session opens. If you wish to speak, the Commission staff will hand out numbers in the order of your arrival. Comments will be taken until 8:00 p.m. However, if no additional numbers have been handed out and all individuals who wish to provide comments have had an opportunity to do so, staff may conclude the session at 7:30 p.m.
Your oral comments will be recorded by the court reporter (with FERC staff or representative present) and become part of the public record for this proceeding. Transcripts will be publicly available on FERC's eLibrary system (see page 3 for instructions on using eLibrary). If a significant number of people are interested in providing oral comments in the one-on-one settings, a time limit of 5 minutes may be implemented for each commentor. Although there will not be a formal presentation, Commission staff will be available throughout the comment session to answer your questions about the environmental review process.
It is important to note that the Commission provides equal consideration to all comments received, whether filed in written form or provided orally at a comment session.
Any person seeking to become a party to the proceeding must file a motion to intervene pursuant to Rule 214 of the Commission's Rules of Practice and Procedures (18 CFR part 385.214). Motions to intervene are more fully described at
Additional information about the Project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website (
In addition, the Commission offers a free service called eSubscription that allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
FERC is conducting the session to solicit your comments on the Draft Environmental Impact Statement. There will not be a formal presentation by Commission staff; however, FERC staff is available to answer questions about the environmental review process. The session format is as follows:
• Tickets are handed out on a “first come, first serve” basis starting at the time listed in the Notice.
• Individuals are called in ticket number order to provide oral comments to be transcribed by a court reporter for the public record.
• Time limits on oral comments may be enforced to ensure that all those wishing to comment have the opportunity to do so within the designated session time.
• Written comments may be submitted in addition to, or in lieu of, oral comments.
• Additional materials about FERC and the environmental review process are available at information stations at the session.
Proper conduct will help the sessions maintain a respectful atmosphere for attendees to learn about the FERC Environmental Review Process and to be able to provide comments effectively.
• Loudspeakers, lighting, oversized visual aids, or other visual or audible disturbances are not permitted.
• Disruptive video and photographic equipment may not be used.
• Conversations should be kept to a reasonable volume. Attendees should be respectful of those providing oral comments to the court reporters.
• Recorded interviews are not permitted within the session space.
• FERC reserves the right end the session if disruptions interfere with the opportunity for individuals to provide oral comments or if there is a safety or security risk.
On March 31, 2022, Premium Energy Holdings, LLC filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Whale Rock Pumped Storage Hydro Project to be located approximately 0.5 miles east of Cayucos, California in San Luis Obispo County. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed closed-loop project would consist of the following: (1) a new upper reservoir with a normal maximum operating elevation of 1,788 feet average mean sea level, a surface area of 87 acres, and a total storage capacity of 4,780 acre-feet; (2) an existing lower reservoir (Whale Rock Reservoir completed in 1961); (3) a 0.68-mile-long headrace tunnel, 0.16-mile-long vertical shaft, 4.76-mile-long horizontal tunnel, 0.07-mile-long penstock, and 0.99-mile-long tailrace tunnel with a maximum head of 1,558 feet connecting the reservoirs to the powerhouse; (4) a new powerhouse located on land owned by the State of California that would house 4 new pump-turbines rated at 150 megawatts each; (5) a new substation constructed on the southern shore of Lake Nacimiento near the powerhouse connected to the regional electrical utility with either, (6) 7 miles of existing line (upgraded), interconnecting the Morro—Solar 230-kilovolt (kV) transmission line, or 7 miles of existing line (upgraded), interconnecting the Morro—Diablo 230-kV transmission line and 0.5 miles of new right-of-way south of the Baywood substation for the new tap interconnection; and (7) appurtenant facilities. The estimated annual power generation at the Whale Rock Pumped Storage Project would be 1,200,000 megawatt-hours.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, notices of intent, and competing applications using the Commission's eFiling system at
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's website at
On March 31, 2022, Premium Energy Holdings, LLC filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Nacimiento Pumped Storage Hydro Project to be located approximately 27 miles northwest of Highway 101 in Paso Robles, California in San Luis Obispo County. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed closed-loop project would consist of the following: (1) a new upper reservoir at a normal maximum operating elevation of either 1,952 feet average mean sea level, with a surface area of 85 acres and a total storage capacity of 7,500 acre-feet (alternative A), or 1,788 feet average mean sea level, with a surface area of 72 acres and a total storage capacity of 8,000 acre-feet (alternative B); (2) an existing lower reservoir (Lake Nacimiento, completed in 1956 for flood control, irrigation water, groundwater recharge for the Salinas Valley, and recreational activities); (3) either a 0.74 mile-long headrace tunnel, 0.17-mile-long vertical shaft, 5.13-mile-long horizontal tunnel, 0.07-mile-long penstock, and 1.06-mile-long tailrace tunnel with a maximum head of 987 feet (alternative A), or a 0.42-mile-long headrace tunnel, 0.10-mile-long vertical shaft, 2.93-mile-long horizontal tunnel, 0.04-mile-long penstock, and-0.61 mile long tailrace tunnel with a maximum head of 1,151 feet (alternative B) connecting the reservoirs to the powerhouse; (4) a new powerhouse located on land owned by the County of Monterey that would house 4 new pump-turbines rated at 150 megawatts each; (5) a new substation constructed in the southern shore of Lake Nacimiento near the powerhouse connected to the regional electrical utility with either; (6) a new 21-mile-long 230-kilovolt (kV) transmission line
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, notices of intent, and competing applications using the Commission's eFiling system at
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's website at
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), NESHAP for Stationary Combustion Turbines (EPA ICR Number 1967.09, OMB Control Number 2060-0540), to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through January 31, 2023. Public comments were previously requested, via the
Comments may be submitted on or before February 27, 2023.
Submit your comments, referencing Docket ID Number EPA-HQ-OAR-2022-0027, to EPA online using
The EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI), or other information whose disclosure is restricted by statute.
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Muntasir Ali, Sector Policies and Program Division (D243-05), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-0833; email address:
This is a proposed extension of the ICR, which is currently approved through January 31, 2023. An agency may neither conduct nor sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
Public comments were previously requested, via the
In general, all NESHAP standards require initial notifications, performance tests, and periodic reports by the owners/operators of the affected facilities. They are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. These notifications, reports, and records are essential in determining compliance, and are required of all affected facilities subject to NESHAP.
Environmental Protection Agency (EPA).
Notice; request for public comment.
In accordance with section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), notice is hereby given by the U.S. Environmental Protection Agency (“EPA”), Region 5, of a proposed administrative settlement for recovery of past response costs concerning the Tittabawassee River, Saginaw River and Bay Site, Michigan (the Site) with The Dow Chemical Company. The settlement requires the settling party to pay $5,415,846.64 in past response costs to a Special Account. The settlement includes a covenant not to sue pursuant to sections 106 and 107 of CERCLA, relating to the Site, subject to limited reservations, and protection from contribution actions or claims as provided by Section 113(f)(2) of CERCLA. For thirty (30) days following the date of publication of this notice, EPA will accept written comments relating to the cost recovery component of this settlement. EPA will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations that indicate that the proposed settlement is inappropriate, improper, or inadequate. The proposed settlement is available for public inspection at
Comments must be submitted on or before February 27, 2023.
Submit your comments, identified by Docket ID EPA-R05-SFUND-2023-0019, to the Federal eRulemaking Portal:
Colleen Moynihan, Remedial Project Manager, EPA, Superfund & Emergency Management Division, Region 5, Cleveland Office, 25063 Center Ridge Road, Westlake, OH 44145, email address:
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), NESHAP for the Manufacture of Amino/Phenolic Resins (EPA ICR Number 1869.12, OMB Control Number 2060-0434) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through January 31, 2023. Public comments were previously requested via the
Comments may be submitted on or before February 27, 2023.
Submit your comments, referencing Docket ID Number EPA-HQ-OAR-2022-0019, to EPA online using
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Muntasir Ali, Sector Policies and Program Division (D243-05), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina, 27711; telephone number: (919) 541-0833; email address:
This is a proposed extension of the ICR, which is currently approved through January 31, 2023. 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.
Public comments were previously requested via the
In general, all NESHAP standards require initial notifications, performance tests, and periodic reports by the owners/operators of the affected facilities. They are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. These notifications, reports, and records are essential in determining compliance, and are required of all affected facilities subject to NESHAP.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an
Comments may be submitted on or before February 27, 2023.
Submit your comments, referencing Docket ID Number EPA-HQ-OAR-2022-0435, to EPA online using
Muntasir Ali, Sector Policies and Program Division (D243-05), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-0833; email address:
This is a proposed extension of the ICR, which is currently approved through January 31, 2023. An agency may neither conduct nor sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. Public comments were previously requested, via the
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), “Soil and Non-Soil Fumigants Risk Mitigation (Renewal)” (EPA ICR Number 2451.03, OMB Control Number 2070-0197) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through January 31, 2023. Public comments were previously requested via the
Comments may be submitted on or before February 27, 2023.
Submit your comments, referencing Docket ID Number HQ-OPPT-2022-0150, to EPA online using
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Carolyn Sui, Regulatory Support Branch, 2602M, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 566-1205; email address:
This is a proposed extension of the ICR, which is currently approved through January 31, 2023. 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.
Public comments were previously requested via the
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is announcing the first opportunities for public input on new programs focused on lower carbon construction materials made possible by a $350 million investment from the Inflation Reduction Act (IRA). The Agency will hold three public webinars and is accepting written feedback on establishing the new grant and technical assistance programs and a carbon labeling program for construction materials with substantially lower levels of embodied carbon.
March 22, 2023, 2:00-3:30 p.m. EST. Topic: Reducing Embodied Greenhouse Gas Emissions: Grants and Technical Assistance for Environmental Product Declarations. You must register online at
April 19, 2023, 2:00-3:30 p.m. EST. Topic: Reducing Embodied Greenhouse Gas Emissions: Carbon Labeling. You must register online at
Alison Kinn Bennett, Senior Advisor, Environmentally Preferable Purchasing Program (7409M), Office of Chemical Safety and Pollution Prevention, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (202) 564-8859; email address:
This is directed to the public in general. This notice may be of specific interest to persons who represent industry, program operators, institutional purchasers, researchers, academia, state, tribal, and local governments including U.S. territories and the District of Columbia, other federal agencies, community groups, non-governmental organizations, the public, and international organizations.
EPA is announcing stakeholder engagement opportunities through upcoming webinars and a Request for Information (RFI) to help shape implementation of IRA programs under the IRA sections 60112 and 60116.
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Information provided in response to this RFI will inform the prioritization of work and key design elements of these new programs. EPA's questions cover the following areas:
• What construction materials/products should EPA prioritize in implementation of these programs?
• What data accessibility and improvement approaches should EPA consider?
• What standardization, measurement, verification, and reporting approaches for use in procurement decision-making should EPA consider?
• What factors should EPA consider for the Environmental Product Declaration Assistance program?
• What should be considered for setting thresholds for “substantially lower levels” of embodied greenhouse gas emission for qualifying materials/products under a labeling program?
• What would be the key elements of an effective carbon labeling program?
If you elect to comment, you do not need to address every question and may focus on those where you have relevant expertise or experience. Please identify the question(s) you are responding to by question number in the RFI when submitting your comments.
In August 2022, Congress passed and President Biden signed the IRA into law, creating the largest investment to combat the climate crisis in United States history. The IRA will bolster U.S. energy security, help families save money on energy costs and prescription drugs, reduce the deficit and create
These new programs funded by the IRA Sections 60112 and 60116 will provide grants, technical assistance, and tools, including a carbon label, to advance the President's bold agenda to combat the climate crisis, protect public health and advance environmental justice. The new programs will help manufacturers, institutional buyers, real estate developers, builders and others measure, report and substantially lower the levels of embodied carbon and other greenhouse gas emissions associated with the production, use and disposal of construction materials and products including steel, concrete, asphalt and glass. Additionally, this work will support President Biden's Buy Clean Task Force which is developing recommendations for Federal procurement and federally funded projects that would expand consideration of greenhouse gas emissions and other pollutants associated with construction materials.
Federal Trade Commission.
Notice.
The Federal Trade Commission announces the revised thresholds for the Hart-Scott-Rodino Antitrust Improvements Act of 1976 required by the 2000 amendment of section 7A of the Clayton Act.
February 27, 2023.
Nora Whitehead (202-326-3100), Bureau of Competition, Premerger Notification Office, 400 7th Street SW, Room 5301, Washington, DC 20024.
This document announces updates to (1) the thresholds for the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as required by the 2000 amendment of section 7A of the Clayton Act; and (2) the filing fee schedule for the same Act, as required by Division GG of the 2023 Consolidated Appropriations Act. Both updates are discussed in more detail below.
Section 7A of the Clayton Act, 15 U.S.C. 18a, as added by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, Public Law 94-435, 90 Stat. 1390 (“the Act”), requires all persons contemplating certain mergers or acquisitions, which meet or exceed the jurisdictional thresholds in the Act, to file notification with the Commission and the Assistant Attorney General and to wait a designated period of time before consummating such transactions. Section 7A(a)(2) requires the Federal Trade Commission to revise those thresholds annually, based on the change in gross national product, in accordance with section 8(a)(5).
The new jurisdictional thresholds, which take effect 30 days after publication in the
Any reference to the jurisdictional thresholds and related thresholds and limitation values in the HSR rules (16 CFR parts 801-803) and the Antitrust Improvements Act Notification and Report Form (“the HSR Form”) and its Instructions will also be adjusted, where indicated by the term “(as adjusted)”, as follows:
Section 605 of Public Law 101-162 (15 U.S.C. 18a note) requires the Federal Trade Commission to assess and collect filing fees from persons acquiring voting securities or assets under the Act. The current filing fee thresholds are set forth in section 605. Division GG of the 2023 Consolidated Appropriations Act, Public Law 117-328, 136 Stat. 4459, requires the Federal Trade Commission to revise these filing fee thresholds. The new filing fee thresholds, which take effect 30 days after publication in the
By direction of the Commission.
Office of Civil Rights, General Services Administration (GSA).
Notice of request for comments regarding an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division will be submitting to the Office of Management and Budget (OMB) a request to review and approve an existing information collection requirement regarding OMB Control No: 3090-0310; Nondiscrimination in Federal Financial Assistance Programs, GSA 3702. This information is needed to facilitate nondiscrimination in GSA's Federal Financial Assistance Programs, consistent with Federal civil rights laws and regulations that apply to recipients of Federal financial assistance.
Submit comments on or before: February 27, 2023.
Written comments and recommendations for this information collection should be sent within 30 days of publication of this notice to
Stephanie Stoltzfus Treier, Deputy Associate Administrator, Office of Civil Rights, at telephone 202-501-0767 or via email to
GSA has mission responsibilities related to monitoring and enforcing compliance with Federal civil rights laws and regulations that apply to Federal financial assistance programs administered by GSA. Specifically, those laws provide that no person on the ground of race, color, national origin, disability, sex or age shall be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program in connection with which Federal financial assistance is extended under laws administered in whole, or in part, by GSA.
These mission responsibilities generate the requirement to request and obtain certain data from recipients of Federal surplus property for the purpose of determining compliance, such as the number of individuals that speak non-English languages encountered by the recipient's program(s) and how the recipient is addressing meaningful access for individuals that are Limited English Proficient; whether the recipients provide disability access in compliance with applicable laws and standards; whether there has been complaints or lawsuits filed against the recipient based on prohibited discrimination; whether there has been any findings of discrimination; and whether the recipient's facilities are accessible to qualified individuals with disabilities.
A 60-day notice was published in the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or we) is announcing an opportunity for public comment on a proposed collection of information. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Either electronic or written comments on the collection of information must be submitted by March 27, 2023.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” We will review this copy, including the claimed confidential information, in our consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10 a.m.-12 p.m., 11601 Landsdown St., North Bethesda, MD 20852, 301-796-5733,
Under the PRA (44 U.S.C. 3501-3521), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
The United States continues to face an epidemic of diet-related chronic diseases, many of which are experienced disproportionately by racial and ethnic minority groups, those with lower socioeconomic status, and those living in rural areas.
FDA is exploring the development of a front of package system to help consumers interpret the nutrient information on food products. Front of Package (FOP) labeling is intended to complement the Nutrition Facts label by giving consumers a simple aid to provide additional context for making healthy food selections. As part of our food-labeling efforts, we are exploring the establishment of a standardized, science-based FOP scheme that helps consumers, particularly those with lower nutrition literacy, quickly and easily identify foods that are part of a healthy eating pattern.
The increased attention in recent years to FOP, and the experiences of countries that have adopted FOP labeling suggests that FOP labeling may aid nutrition comprehension and the ability to make healthier choices, especially for those with lower nutrition literacy. FOP schemes adopted in countries throughout the world include both mandatory and voluntary labeling schemes and include non-interpretative, interpretative, nutrient specific, and summary schemes.
In 2022, FDA conducted a review of the literature on FOP nutrition-related labels and conducted a set of focus groups to test FOP concepts and draft FOP schemes (see Docket No. FDA-2023-N-0155 for the literature review). These focus group results provided insights into the varying ways that consumers interpret FOP nutrition information. As part of our efforts to promote public health, we intend to conduct an experimental study, informed by results of the focus group testing, to further explore consumer responses to various FOP schemes. In the experimental study, we will test a smaller subset of FOP schemes from the
Conditions for the study will be: (1) a set of draft FOP schemes, including “no-scheme” controls; (2) three types of mock food products (
The studies are part of our continuing effort to help enable consumers to make informed dietary choices and construct healthful diets. We intend to use the results to inform our continued exploration of an FOP labeling scheme. We will not use the results to develop population estimates.
FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA), Office of Operations (OO), Office of Talent Solutions (OTS) has modified its structure, and the Office of FDA Commissioned Corps (OFCC) was established. These new organizational structures were approved by the Deputy Secretary of Health and Human Services on September, 26, 2022, and effective on November, 2, 2022.
Tiffany Branch, Associate Director for Management, Office of Enterprise Management Services, Office of Operations, Food and Drug Administration, 3 White Flint North, 11601 Landsdown Street, North Bethesda, MD 20852, 240-402-3156.
Part D, Chapter D-B, (Food and Drug Administration), the Statement of Organization, Functions and Delegations of Authority for the Department of Health and Human Services (35 FR 3685, February 25, 1970, 60 FR 56606, November 9, 1995, 64 FR 36361, July 6, 1999, 72 FR 50112, August 30, 2007, 74 FR 41713, August 18, 2009, 76 FR 45270, July 28, 2011, and 84 FR 22854, May 20, 2019) is amended to reflect the reorganization of the OO, OTS and establishment of OO, OFCC.
This reorganization established the OO, OFCC. In the OTS immediate office realigned the Commissioned Corps Staff (CCS) functions and resources to OO, OFCC; established the Business Operations Staff; retitled the Policy and Accountability Staff to Policy, Programs, and Accountability Staff; and abolished the CCS.
In the Division of Talent Services, I (DTS I) retitled the division to Division of Talent Solutions I (DTS I); retitled the CDER Branch 1 to Recruitment and Staffing Branch 1; retitled the CDER Branch 2 to Recruitment and Staffing Branch 2; retitled the CDER Branch 3 to Recruitment and Staffing Branch 3 (RSB3); established the Recruitment and Staffing Branch 4; and established the Special Pay and Hiring Branch.
In the Division of Talent Services II (DTS II) retitled the division to Division of Talent Solutions II (DTS II); retitled the CFSAN and CVM Branch to Recruitment and Staffing Branch 5; retitled OC and NCTR Branch to Recruitment and Staffing Branch 6; retitled the OO Branch to Recruitment and Staffing Branch 7; established the Classification Branch 1; and established the Classification Branch 2.
In the Division of Talent Services III (DTS III) retitled the division to Division of Talent Solutions III (DTS III); realigned the CBER Branch functions and resources to DTS I/RSB3; realigned the CDRH Branch functions and resources to DTS II and retitled as Recruitment and Staffing Branch 8; realigned the CTP Branch functions and resources to DTS II and retitled as Recruitment and Staffing Branch 9; established the OTS/DTS III/Data Quality Branch 2; established the Data
In the Division of Talent Services IV (DTS IV) realigned the ORA Branch 1 functions to DTS III and retitled as the Recruitment and Staffing Branch 10; realigned the ORA Branch 2 functions to DTS III and retitled as the Recruitment and Staffing Branch 11; and abolished DTS IV.
In the Division of Talent Sourcing and Staffing (DTSS) realigned the Corporate Recruitment and Title 38 Branch functions and resources to the OTS Immediate Office Executive Resources Staff and retitled as the Scientific Programs and Executive Resources Staff; realigned the Scientific Staffing and Outreach Branch functions and resources to the OTS Immediate Office Scientific Talent Recruitment Staff and retitled as the Science, Technology, Engineering, and Mathematics Outreach Staff; realigned the Customer Care and Data Quality Branch functions and resources to DTS III and retitled as the Data Quality Branch 1; and abolished DTSS.
Under Part D, FDA, OO, OTS has been restructured as follows:
DCNJ. ORGANIZATION. The Office of Talent Solutions is headed by the FDA Chief Talent Officer and includes the following organizational units:
Under Part D, FDA, OO has been restructured as follows:
DCNK. ORGANIZATION. The Office of FDA Commissioned Corps (OFCC) is headed by the Director of FDA Commissioned Corps.
Pending further delegation, directives, or orders by the Commissioner of Food and Drugs, all delegations and redelegations of authority made to officials and employees of affected organizational components will continue in them or their successors pending further redelegations, provided they are consistent with this reorganization.
This reorganization is reflected in FDA's Staff Manual Guide (SMG). Persons interested in seeing the complete SMG can find it on FDA's website at:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA), Office of Operations (OO), Office of Enterprise Management Services (OEMS) has modified its structure. This new organizational structure was approved by the Deputy Secretary of Health and Human Services on September 26, 2022, and effective on September 26, 2022.
Tiffany Branch, Associate Director for Management, Office of Enterprise Management Services, Office of Operations, Food and Drug Administration, 3 White Flint North, 11601 Landsdown Street, North Rockville, MD 20852, 240-402-3156.
Part D, Chapter D-B, (Food and Drug Administration), the Statement of Organization, Functions and Delegations of Authority for the Department of Health and Human Services (35 FR 3685, February 25, 1970, 60 FR 56606, November 9, 1995, 64 FR 36361, July 6, 1999, 72 FR 50112, August 30, 2007, 74 FR 41713, August 18, 2009, 76 FR 45270, July 28, 2011, and 84 FR 22854, May 20, 2019) is amended to reflect reorganization of OEMS.
This reorganization realigned the FDA History Office function from the Office of the Commissioner (OC), Office of External Affairs (OEA) to OO, OEMS and revised the OEA and OEMS functional statements to this function realignment.
The Food and Drug Administration, Office of Operations, Office of Enterprise Management Services has been restructured as follows:
DCNA. ORGANIZATION. OEMS is headed by the Director of Enterprise Management Services and includes the following organizational units:
FDA History Office
Pending further delegation, directives, or orders by the Commissioner of Food and Drugs, all delegations and redelegations of authority made to officials and employees of affected organizational components will continue in them or their successors pending further redelegations, provided they are consistent with this reorganization.
This reorganization is reflected in FDA's Staff Manual Guide (SMG). Persons interested in seeing the complete SMG can find it on FDA's website at:
Food and Drug Administration, HHS.
Notice; establishment of a public docket; request for comments.
The Food and Drug Administration (FDA) announces a forthcoming public advisory committee meeting of the Oncologic Drugs Advisory Committee. The general function of the committee is to provide advice and recommendations to FDA on regulatory issues. The meeting will be open to the public. FDA is establishing a docket for public comment on this document.
The meeting will be held virtually on March 9, 2023, from 12 p.m. to 5 p.m. Eastern Time.
Please note that due to the impact of the COVID-19 pandemic, all meeting participants will be joining this advisory committee meeting via an online teleconferencing platform. Answers to commonly asked questions about FDA advisory committee meetings may be accessed at:
FDA is establishing a docket for public comment on this meeting. The docket number is FDA-2022-N-2174. Please note that late, untimely filed comments will not be considered. The docket will close on March 8, 2023. The
Comments received on or before February 24, 2023, will be provided to the committee. Comments received after that date will be taken into consideration by FDA. In the event that the meeting is cancelled, FDA will continue to evaluate any relevant applications or information, and consider any comments submitted to the docket, as appropriate.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” FDA will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Yvette Waples, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 31, Rm. 2417, Silver Spring, MD 20993-0002, 240-402-5343, email:
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its website prior to the meeting, the background material will be made publicly available on FDA's website at the time of the advisory committee meeting. Background material and the link to the online teleconference meeting room will be available at
For press inquiries, please contact the Office of Media Affairs at
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact Yvette Waples (see
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our website at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of 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.
Coast Guard, DHS.
Notification of issuance of a certificate of alternative compliance.
The Coast Guard announces that the Chief, Prevention Division, Thirteenth Coast Guard District has issued a certificate of alternative compliance from the International Regulations for Preventing Collisions at Sea, 1972 (72 COLREGS), for the SHAVER, O.N. 1257204, HULL 129. We are issuing this notice because its publication is required by statute. Due to the construction and placement of the mooring and anchor winches and fittings, placement of the sidelights in this area would be a potential hazard to the crew during vessel operations and may subject them to potential damage during mooring. The SHAVER, O.N. 1257204, HULL 129, cannot fully comply with the light, shape, or sound signal provisions of the 72 COLREGS without interfering with the vessel's design and construction. This
The Certificate of Alternative Compliance was issued on December 20, 2022.
For information or questions about this notice call or email Ms. Jill L. Lazo, Thirteenth District, U.S. Coast Guard; telephone 206-220-7232, email
The United States is signatory to the International Maritime Organization's International Regulations for Preventing Collisions at Sea, 1972 (72 COLREGS), as amended. The special construction or purpose of some vessels makes them unable to comply with the light, shape, or sound signal provisions of the 72 COLREGS. Under statutory law, however, specified 72 COLREGS provisions are not applicable to a vessel of special construction or purpose if the Coast Guard determines that the vessel cannot comply fully with those requirements without interfering with the special function of the vessel.
The owner, builder, operator, or agent of a special construction or purpose vessel may apply to the Coast Guard District Office in which the vessel is being built or operated for a determination that compliance with alternative requirements is justified,
The Chief, Prevention Division, of the Thirteenth Coast Guard District, U.S. Coast Guard, certifies that the SHAVER, O.N. 1257204, HULL 129, is a towing vessel of special construction or purpose, and that, with respect to the position of the sidelights, stern and towing lights, it is not possible to comply fully with the requirements of the provisions enumerated in the 72 COLREGS, without interfering with the normal operation, construction, or design of the vessel. The Chief, Prevention Division further finds and certifies that the sidelights, are in the closest possible compliance with the applicable provisions of the 72 COLREGS.
This notice is issued under authority of 33 U.S.C. 1605(c) and 33 CFR 81.18.
Coast Guard, DHS.
Solicitation for membership.
This notice requests individuals interested in serving on the Western Lake Superior Area Maritime Security Committee to submit their applications for membership to the Captain of the Port Duluth. The Committee assists the Captain of the Port as the Federal Maritime Security Coordinator, Duluth, in developing, reviewing, and updating the Area Maritime Security Plan for their area of responsibility.
Requests for membership should reach the Captain of the Port, Duluth, by February 27, 2023.
Applications for membership should be submitted to the Captain of the Port at the following address: Commander, Marine Safety Unit Duluth, Attn: Ben Gates, AMSC Executive Secretary, 515 West First Street, Rm 145, Duluth, MN 55802.
For questions about submitting an application, or about the AMSC in general, contact Ben Gates, AMSC Executive Secretary; phone (218) 725-3830.
Section 102 of the Maritime Transportation Security Act (MTSA) of 2002 (Pub. L. 107-295) added section 70112 to Title 46 of the U.S. Code and authorized the Secretary of the Department in which the Coast Guard is operating to establish Area Maritime Security Advisory Committees (AMSCs) for any port area of the United States. (See 46 U.S.C. 70112; 33 CFR 1.05-1, 6.01; Department of Homeland Security Delegation No. 00170.1).
The MTSA includes a provision exempting these AMSCs from the Federal Advisory Committee Act (FACA), Public Law 92-436, 86 Stat. 470 (5 U.S.C. App.2). The AMSCs shall assist the Federal Maritime Security Coordinator in the development, review, update, and exercising of the Area Maritime Security Plan for their area of responsibility. Such matters may include, but are not limited to, the following:
(1) Identifying critical port infrastructure and operations; Identifying risks (threats, vulnerabilities, and consequences);
(2) Determining mitigation strategies and implementation methods;
(3) Developing strategies to facilitate the recovery of the Maritime Transportation System after a Transportation Security Incident;
(4) Developing and describing the process to continually evaluate overall port security by considering consequences and vulnerabilities, how they may change over time, and what additional mitigation strategies can be applied; and,
(5) Providing advice to and assisting the Federal Maritime Security Coordinator in developing and maintaining the Area Maritime Security Plan.
Members of the AMSC should have at least five years of experience related to maritime or port security operations. The Western Lake Superior AMSC has 15 members. We are seeking to fill 6 vacancies with this solicitation.
Applicants may be required to pass an appropriate security background check prior to appointment to the committee. Applicants must register with and remain active as a Coast Guard Homeport user if appointed. Member's term of office will be for five years; however, a member is eligible to serve additional terms of office. Members will not receive any salary or other compensation for their service on an AMSC. In accordance with 33 CFR 103, members may be selected from Federal, Territorial, or Tribal governments; State government and political subdivisions of the State; local public safety, crisis management, and emergency response agencies; law enforcement and security organizations; maritime industry, including labor; other port stakeholders having a special competence in maritime security; and port stakeholders affected by security practices and policies.
The Department of Homeland Security does not discriminate in selection of committee members on the basis of race, color, religion, sex, national origin, political affiliation, sexual orientation, gender identity, marital status, disability, and genetic information, age, membership in an employee organization, or any other non-merit factor. The Department of Homeland Security strives to achieve a widely diverse candidate pool for all of its recruitment actions.
Those seeking membership are not required to submit formal applications to the local Captain of the Port. Because we do have an obligation to ensure that a specific number of members have the prerequisite maritime security experience, we encourage the submission of resumes highlighting experience in the maritime and security industries.
Federal Emergency Management Agency, Department of Homeland Security.
30-Day notice of new collection and request for comments.
The Federal Emergency Management Agency (FEMA) will submit the information collection abstracted below to the Office of Management and Budget for review and clearance in accordance with the requirements of the Paperwork Reduction Act of 1995. The submission seeks comments concerning a survey following the upcoming national test of the Wireless Emergency Alert (WEA) system.
Comments must be submitted on or before February 27, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Requests for additional information or copies of the information collection should be made to Director, Information Management Division, 500 C Street SW, Washington, DC 20472, email address
Public Law 114-143, the
This proposed information collection previously published in the
The purpose of this notice is to notify the public that FEMA will submit the information collection abstracted below to the Office of Management and Budget for review and clearance.
Comments may be submitted as indicated in the
Federal Emergency Management Agency, Department of Homeland Security.
30-Day notice of revision and request for comments.
The Federal Emergency Management Agency (FEMA) will submit the information collection abstracted below to the Office of Management and Budget for review and clearance in accordance with the requirements of the Paperwork Reduction Act of 1995. The submission seeks comments concerning the use of a form to collect data for the development and continuation of the National Fire Department Registry.
Comments must be submitted on or before February 27, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Requests for additional information or copies of the information collection should be made to Director, Information Management Division, 500 C Street SW, Washington, DC 20472, email address
The Federal Fire Prevention and Control Act of 1974, Public Law 93-498, as enacted in 15 U.S.C. Chap 49, provides for the gathering and analyzing of data as deemed useful and applicable for fire departments. The U.S. Fire Administration (USFA) receives many requests from fire service organizations and the general public for information related to fire departments, including total number of departments, number of stations per department, population protected, and number of firefighters. The USFA also has a need for this information to guide programmatic decisions and produce mailing lists for USFA publications. Recommendations for the creation of the fire department census database came out of a Blue Ribbon Panel's review of the USFA. The report included a review of the structure, mission, and funding of the USFA, future policies, programmatic needs, course development and delivery, and the role of the USFA to reflect changes in the fire service. As a result of those recommendations, the USFA is working to identify all fire departments in the United States to develop a database that will include information related to demographics, capabilities, and activities of fire departments Nationwide. In the fall of 2016, the USFA renamed the census to the National Fire Department Registry. In the fall of 2001, information was collected from 16,000 fire departments. Since the first year of the collection, an additional 11,182 departments have registered for a total of 27,182 fire departments. This leaves an estimated 2,818 departments still to respond. Additionally, about 5,436 current registered departments are contacted by USFA each year and are asked to provide updates to any previously submitted information.
This proposed information collection previously published in the
Comments may be submitted as indicated in the
U.S. Immigration and Customs Enforcement; Department of Homeland Security.
Notice.
This notice announces that the Secretary of Homeland Security (Secretary) is suspending certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is Haiti, regardless of country of birth (or individuals having no nationality who last habitually resided in Haiti), and who are experiencing severe economic hardship as a direct result of the current crisis in Haiti. The Secretary is taking action to provide relief to these Haitian students who are in lawful F-1 nonimmigrant student status so the students may request employment authorization on the date of publication of this notice, work an increased number of hours while school is in session, and reduce their course load while continuing to maintain their F-1 nonimmigrant student status. The U.S. Department of Homeland Security (DHS) will deem an F-1 nonimmigrant student granted employment authorization by means of this notice to be engaged in a “full course of study” for the duration of the employment authorization, if the nonimmigrant student satisfies the minimum course load requirement described in this notice.
This action is effective February 4, 2023, through August 3, 2024.
Sharon Snyder, Unit Chief, Policy and Response Unit, Student and Exchange Visitor Program, MS 5600, U.S. Immigration and Customs Enforcement, 500 12th Street SW, Washington, DC 20536-5600; email:
The Secretary is exercising authority under 8 CFR 214.2(f)(9) to temporarily suspend the applicability of certain requirements governing on-campus and off-campus employment for F-1 nonimmigrant students whose country of citizenship is Haiti, regardless of country of birth (or individuals having no nationality who last habitually resided in Haiti), who are present in the United States in lawful F-1 nonimmigrant student status on the date of publication of this notice, and who are experiencing severe economic hardship as a direct result of the current crisis in Haiti. DHS initially suspended certain regulatory requirements for F-1 nonimmigrant students experiencing severe economic hardship as a direct result of the January 12, 2010, earthquake in Haiti.
This notice applies exclusively to F-1 nonimmigrant students who, on the date of publication of this notice, meet all of the following conditions:
(1) Are a citizen of Haiti, regardless of country of birth (or an individual having no nationality who last habitually resided in Haiti);
(2) Were lawfully present in the United States in F-1 nonimmigrant status under section 101(a)(15)(F)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(15)(F)(i);
(3) Are currently enrolled in an academic institution that is Student and Exchange Visitor Program (SEVP)-certified for enrollment for F-1 nonimmigrant students;
(4) Are currently maintaining F-1 nonimmigrant status; and
(5) Are experiencing severe economic hardship as a direct result of the current crisis in Haiti.
This notice applies to F-1 nonimmigrant students in an approved private school in kindergarten through grade 12, public school grades 9 through 12, and undergraduate and graduate education. An F-1 nonimmigrant
DHS is taking action to provide relief to Haitian F-1 nonimmigrant students experiencing severe economic hardship due to the current and ongoing crisis in Haiti. Based on its review of country conditions in Haiti and input received from the U.S. Department of State (DOS), DHS is taking action to allow eligible F-1 nonimmigrant students from Haiti (or individuals having no nationality who last habitually resided in Haiti) to request employment authorization, work an increased number of hours while school is in session, and reduce their course load while continuing to maintain F-1 nonimmigrant student status.
DHS has conducted a thorough review of country conditions in Haiti. Haiti is experiencing economic, security, political, and health crises simultaneously. Fractured political dynamics and dysfunctional government entities are exacerbating a violent increase in gang conflict. At the same time, Haiti is confronting a humanitarian crisis, with many citizens having limited access to safety, healthcare, food, water, and economic opportunity. These circumstances continue to make return to Haiti dangerous for Haitian nationals living in the United States.
The Haitian Parliament was dissolved in January 2020 as the mandates of two thirds of Senate members and all Chamber of Deputies members expired, and no new elections were held.
Since then, PM Henry and opposition groups have engaged in intermittent negotiations about a political path towards elections. On December 21, representatives of civil society, the private sector, and political groups began signing a revised political agreement known as the December Accord, which was supported by PM Henry. Some opposition members, including many members of the Citizen Conference for a Haitian Solution to the Crisis, also known as the Montana Group, had not yet agreed to the accord as of January 4.
The Haitian government has long been accused of corruption and ineptitude. Politicians and the business elite in Haiti have historically relied on gangs to obtain and exert power, but the gangs have grown more autonomous in recent years.
Since President Moïse's assassination, Haiti has experienced a sharp deterioration in an already fragile security situation. Gang violence and kidnappings have spiked throughout the country, particularly in the capital, Port-au-Prince. The UN documented 934 killings, 684 injuries, and 680 kidnappings in Port-au-Prince from January to June 2022.
There are around 200 gangs across Haiti, 95 of which operate in metropolitan Port-au-Prince. Many of Haiti's gangs have coalesced around two main alliances: the G9 and the GPèp. A two-party gang rivalry fought on numerous fronts has superseded the old local rivalries. Gangs have decapitated opponents in public, burnt corpses in the street, set fire to houses, and used sexual violence to intimidate residents out of collaborating with their rivals.
In mid-September, gangs blocked access to the Varreux Terminal in Port-au-Prince, the main entry point for fuel in Haiti, cutting off millions of gallons of diesel and gasoline and causing a severe fuel shortage.
On October 7, 2022, the government of Haiti requested assistance from the international community to confront gangs and address the humanitarian crisis.
Haiti has one of the highest levels of chronic food insecurity in the world with more than half of its total population chronically food insecure and 22 percent of children chronically malnourished, according to a September 2022 report.
The UN and the Haitian government have reported a new cholera outbreak, with the first cases detected between October 1-2, 2022.
Amidst the political, security, and humanitarian crises, Haiti's economy has floundered. Haiti is among the countries with the greatest inequality in the region. The richest 20 percent of its population holds more than 64 percent of its total wealth, while the poorest 20 percent has less than 1 percent.
As of January 3, 2023, 1,004 F-1 nonimmigrant students who are Hatian citizens are enrolled at SEVP-certified academic institutions in the United States. Given the extent of the current crisis in Haiti, affected students whose primary means of financial support comes from Haiti may need to be exempt from the normal student employment requirements to continue their studies in the United States. The current crisis has made it unfeasible for many students to safely return to Haiti for the foreseeable future. Without employment authorization, these students may lack the means to meet basic living expenses.
Undergraduate F-1 nonimmigrant students who receive on-campus or off-campus employment authorization under this notice must remain registered for a minimum of six semester or quarter hours of instruction per academic term. Undergraduate F-1 nonimmigrant students enrolled in a term of different duration must register for at least one half of the credit hours normally required under a “full course of study.”
In addition, an F-1 nonimmigrant student (either undergraduate or graduate) granted on-campus or off-campus employment authorization under this notice may count up to the equivalent of one class or three credits per session, term, semester, trimester, or quarter of online or distance education toward satisfying this minimum course load requirement, unless their course of study is in an English language study
Yes. An F-1 nonimmigrant student who is a Haitian citizen, regardless of country of birth (or an individual having no nationality who last habitually resided in Haiti), who already has on-campus or off-campus employment authorization and is otherwise eligible may benefit under this notice, which suspends certain regulatory requirements relating to the minimum course load requirement under 8 CFR 214.2(f)(6)(i) and certain employment eligibility requirements under 8 CFR 214.2(f)(9). Such an eligible F-1 nonimmigrant student may benefit without having to apply for a new Form I-766, Employment Authorization Document (EAD). To benefit from this notice, the F-1 nonimmigrant student must request that their designated school official (DSO) enter the following statement in the remarks field of the student's Student and Exchange Visitor Information System (SEVIS) record, which the student's Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status, will reflect:
Approved for more than 20 hours per week of [DSO must insert “on-campus” or “off-campus,” depending upon the type of employment authorization the student already has] employment authorization and reduced course load under the Special Student Relief authorization from [DSO must insert the beginning date of the notice or the beginning date of the student's employment, whichever date is later] until [DSO must insert either the student's program end date, the current EAD expiration date (if the student is currently authorized for off-campus employment), or the end date of this notice, whichever date comes first].
No. DHS will deem an F-1 nonimmigrant student who receives and comports with the employment authorization permitted under this notice to be engaged in a “full course of study”
No. An F-2 spouse or minor child of an F-1 nonimmigrant student is not authorized to work in the United States and, therefore, may not accept employment under the F-2 nonimmigrant status, consistent with 8 CFR 214.2(f)(15)(i).
No. The suspension of the applicability of the standard regulatory requirements only applies to certain F-1 nonimmigrant students who, on the date of publication of this notice, meet the following conditions:
(1) Are a citizen of Haiti, regardless of country of birth (or an individual having no nationality who last habitually resided in Haiti);
(2) Were lawfully present in the United States in F-1 nonimmigrant status, under section 101(a)(15)(F)(i) of the INA, 8 U.S.C. 1101(a)(15)(F)(i);
(3) Are enrolled in an academic institution that is SEVP-certified for enrollment of F-1 nonimmigrant students;
(4) Are maintaining F-1 nonimmigrant status; and
(5) Are experiencing severe economic hardship as a direct result of the current crisis in Haiti.
An F-1 nonimmigrant student who does not meet all these requirements is ineligible for the suspension of the applicability of the standard regulatory requirements (even if experiencing severe economic hardship as a direct result of the current crisis in Haiti).
Yes. This notice applies to such an F-1 nonimmigrant student, but only if the DSO has properly notated the student's SEVIS record, which will then appear on the student's Form I-20. The normal rules for visa issuance remain applicable to a nonimmigrant who needs to apply for a new F-1 visa to continue an educational program in the United States.
Yes. However, this notice does not by itself reduce the required course load for F-1 nonimmigrant students from Haiti enrolled in kindergarten through grade 12 at a private school, or grades 9 through 12 at a public high school. Such students must maintain the minimum number of hours of class attendance per week prescribed by the academic institution for normal progress toward graduation, as required under 8 CFR 214.2(f)(6)(i)(E). The suspension of certain regulatory requirements related to employment through this notice is applicable to all eligible F-1 nonimmigrant students regardless of educational level. Eligible F-1 nonimmigrant students from Haiti enrolled in an elementary school,
Yes. For an F-1 nonimmigrant student covered in this notice, the Secretary is suspending the applicability of the requirement in 8 CFR 214.2(f)(9)(i) that limits an F-1 nonimmigrant student's on-campus employment to 20 hours per week while school is in session. An eligible F-1 nonimmigrant student has authorization to work more than 20 hours per week while school is in session if the DSO has entered the following statement in the remarks field of the student's SEVIS record, which will be reflected on the student's Form I-20:
Approved for more than 20 hours per week of on-campus employment and reduced course load, under the Special Student Relief authorization from [DSO must insert the beginning date of this notice or the beginning date of the student's employment, whichever date is later] until [DSO must insert the student's program end date or the end date of this notice, whichever date comes first].
To obtain on-campus employment authorization, the F-1 nonimmigrant student must demonstrate to the DSO that the employment is necessary to avoid severe economic hardship directly resulting from the current crisis in Haiti. An F-1 nonimmigrant student authorized by the DSO to engage in on-campus employment by means of this notice does not need to file any applications with U.S. Citizenship and Immigration Services (USCIS). The standard rules permitting full-time employment on-campus when school is not in session or during school vacations apply, as described in 8 CFR 214.2(f)(9)(i).
Yes. DHS will deem an F-1 nonimmigrant student who receives on-campus employment authorization under this notice to be engaged in a “full course of study”
For an F-1 nonimmigrant student covered by this notice, as provided under 8 CFR 214.2(f)(9)(ii)(A), the Secretary is suspending the following regulatory requirements relating to off-campus employment:
(a) The requirement that a student must have been in F-1 nonimmigrant student status for one full academic year to be eligible for off-campus employment;
(b) The requirement that an F-1 nonimmigrant student must demonstrate that acceptance of employment will not interfere with the student's carrying a full course of study;
(c) The requirement that limits an F-1 nonimmigrant student's employment authorization to no more than 20 hours per week of off-campus employment while the school is in session; and
(d) The requirement that the student demonstrate that employment under 8 CFR 214.2(f)(9)(i) is unavailable or otherwise insufficient to meet the needs that have arisen as a result of the unforeseen circumstances.
Yes. DHS will deem an F-1 nonimmigrant student who receives off-campus employment authorization by means of this notice to be engaged in a “full course of study”
An F-1 nonimmigrant student must file a Form I-765, Application for Employment Authorization, with USCIS to apply for off-campus employment authorization based on severe economic hardship directly resulting from the current crisis in Haiti.
(1) This employment is necessary to avoid severe economic hardship; and
(2) The hardship is a direct result of the current crisis in Haiti.
If the DSO agrees that the F-1 nonimmigrant student is entitled to receive such employment authorization, the DSO must recommend application approval to USCIS by entering the following statement in the remarks field of the student's SEVIS record, which will then appear on that student's Form I-20:
Recommended for off-campus employment authorization in excess of 20 hours per week and reduced course load under the Special Student Relief authorization from the date of the USCIS authorization noted on Form I-766 until [DSO must insert the program end date or the end date of this notice, whichever date comes first].
The F-1 nonimmigrant student must then file the properly endorsed Form I-20 and Form I-765 according to the instructions for the Form I-765. The F-1 nonimmigrant student may begin working off campus only upon receipt of the EAD from USCIS.
(a) The F-1 nonimmigrant student is in good academic standing and is carrying a “full course of study”
(b) The F-1 nonimmigrant student is a citizen of Haiti, regardless of country of birth (or an individual having no nationality who last habitually resided in Haiti), and is experiencing severe economic hardship as a direct result of the current crisis in Haiti, as documented on the Form I-20;
(c) The F-1 nonimmigrant student has confirmed that the student will comply with the reduced course load requirements of this notice and register for the duration of the authorized employment for a minimum of six semester or quarter hours of instruction per academic term if at the undergraduate level, or for a minimum of three semester or quarter hours of instruction per academic term if the student is at the graduate level;
(d) The off-campus employment is necessary to alleviate severe economic hardship to the individual as a direct result of the current crisis in Haiti.
(a) Ensure that the application package includes the following documents:
(1) A completed Form I-765 with all applicable supporting evidence;
(2) The required fee or properly documented fee waiver request as defined in 8 CFR 103.7(c); and
(3) A signed and dated copy of the student's Form I-20 with the appropriate DSO recommendation, as previously described in this notice; and
(b) Send the application in an envelope which is clearly marked on the front of the envelope, bottom right-hand side, with the phrase “SPECIAL STUDENT RELIEF.”
If USCIS approves the student's Form I-765, USCIS will send the student an EAD as evidence of employment authorization. The EAD will contain an expiration date that does not exceed the end of the granted temporary relief.
Yes. An F-1 nonimmigrant student who has not yet applied for TPS or for other relief that reduces the student's course load per term and permits an increased number of work hours per week, such as Special Student Relief,
Under the first option, the nonimmigrant student may apply for TPS according to the instructions in the USCIS notice designating Haiti for TPS elsewhere in this issue of the
Under the second option, the nonimmigrant student may apply for an EAD under Special Student Relief by filing Form I-765 at the location specified in the filing instructions. At the same time, the F-1 nonimmigrant student may file a separate TPS application but must submit the Form I-821 according to the instructions provided in the
The F-1 nonimmigrant student must maintain normal course load requirements for a “full course of study”
There is no further application process with USCIS if a student has been approved for a TPS-related EAD. The F-1 nonimmigrant student must demonstrate and provide documentation to the DSO of the direct economic hardship resulting from the current crisis in Haiti. The DSO will then verify and update the student's record in SEVIS to enable the F-1 nonimmigrant student with TPS to reduce the course load without any further action or application. No other EAD needs to be issued for the F-1 nonimmigrant student to have employment authorization.
Yes. Regulations permit certain students who fall out of F-1 nonimmigrant student status to apply for reinstatement.
This notice grants temporary relief until August 3, 2024,
An F-1 nonimmigrant student seeking off-campus employment authorization due to severe economic hardship resulting from the current crisis in Haiti must demonstrate to the DSO that this employment is necessary to avoid severe economic hardship. A DSO who agrees that a nonimmigrant student should receive such employment authorization must recommend an application approval to USCIS by entering information in the remarks field of the student's SEVIS record. The authority to collect this information is in the SEVIS collection of information currently approved by the Office of Management and Budget (OMB) under OMB Control Number 1653-0038.
This notice also allows an eligible F-1 nonimmigrant student to request employment authorization, work an increased number of hours while the academic institution is in session, and reduce their course load while continuing to maintain F-1 nonimmigrant student status.
To apply for employment authorization, certain F-1 nonimmigrant students must complete and submit a currently approved Form I-765 according to the instructions on the form. OMB has previously approved the collection of information contained on the current Form I-765, consistent with the PRA (OMB Control No. 1615-0040). Although there will be a slight increase in the number of Form I-765 filings because of this notice, the number of filings currently contained in the OMB annual inventory for Form I-765 is sufficient to cover the additional filings. Accordingly, there is no further action required under the PRA.
U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS).
Notice of Temporary Protected Status (TPS) extension and redesignation.
Through this notice, the Department of Homeland Security (DHS) announces that the Secretary of Homeland Security (Secretary) is extending the designation of Haiti for Temporary Protected Status (TPS) for 18 months, beginning on February 4, 2023, and ending on August 3, 2024. This extension allows existing TPS beneficiaries to retain TPS through August 3, 2024, so long as they continue to meet the eligibility requirements for TPS. Existing TPS beneficiaries who wish to extend their status through August 3, 2024, must re-register during the 60-day re-registration period described in this notice. The Secretary is also redesignating Haiti for TPS. The redesignation of Haiti allows additional Haitian nationals (and individuals having no nationality who last habitually resided in Haiti) who have been continuously residing in the United States since November 6, 2022, to apply for TPS for the first time during the initial registration period described under the redesignation information in
You may contact Rená Cutlip-Mason, Chief, Humanitarian Affairs Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, by mail at 5900 Capital Gateway Drive, Camp Springs, MD 20746, or by phone at 800-375-5283.
For further information on TPS, including guidance on the registration process and additional information on eligibility, please visit the USCIS TPS web page at
If you have additional questions about TPS, please visit
Applicants seeking information about the status of their individual cases may check Case Status Online, available on the USCIS website at
Further information will also be available at local USCIS offices upon publication of this notice.
Through this notice, DHS sets forth procedures necessary for nationals of Haiti (or individuals having no nationality who last habitually resided in Haiti) to (1) re-register for TPS and apply for renewal of their EADs with USCIS or (2) submit an initial registration application under the redesignation and apply for an EAD.
Individuals who previously registered for TPS under the August 3, 2021 prior designation of Haiti and whose applications have been granted must re-register properly within the 60-day re-registration period in order to maintain TPS and avoid withdrawal of their TPS following appropriate procedures.
For individuals who have already been granted TPS under Haiti's August 3, 2021 designation or the July 23, 2011 designation and who continue to have TPS, the 60-day re-registration period runs from January 26, 2023 through March 27, 2023.
USCIS will issue new EADs with an August 3, 2024 expiration date to eligible Haitian TPS beneficiaries who timely re-register and apply for EADs.
Given the time frames involved with processing TPS re-registration applications, DHS recognizes that not all re-registrants may receive new EADs before their current EADs expire. Accordingly, through this
Individuals who have a Haiti TPS application (Form I-821) and/or Application for Employment Authorization (Form I-765) that was still pending as of January 26, 2023 do
Under the redesignation, individuals who currently do not have TPS may submit an initial application during the initial registration period that runs from January 26, 2023 through the full length of the redesignation period ending August 3, 2024.
• TPS is a temporary immigration status granted to eligible nationals of a foreign state designated for TPS under the Immigration and Nationality Act (INA), or to eligible individuals without nationality who last habitually resided in the designated foreign state, regardless of their country of birth.
• During the TPS designation period, TPS beneficiaries are eligible to remain in the United States, may not be removed, and are authorized to work so long as they continue to meet the requirements of TPS. They may apply for and receive EADs as evidence of employment authorization.
• TPS beneficiaries may also apply for and be granted travel authorization as a matter of DHS discretion.
• To qualify for TPS, beneficiaries must meet the eligibility standards at INA section 244(c)(1)-(2), 8 U.S.C. 1254a(c)(1)-(2).
• When the Secretary terminates a foreign state's TPS designation, beneficiaries return to one of the following:
○ The same immigration status or category that they maintained before TPS, if any (unless that status or category has since expired or terminated); or
○ Any other lawfully obtained immigration status or category they received while registered for TPS, as long as it is still valid beyond the date TPS terminates.
Haiti was initially designated on the basis of extraordinary and temporary conditions that prevented nationals of Haiti from returning in safety.
The termination of Haiti's 2011 TPS designation is being challenged in several lawsuits, and court injunctions require DHS to continue TPS for Haiti temporarily pending further court order.
Section 244(b)(1) of the INA, 8 U.S.C. 1254a(b)(1), authorizes the Secretary, after consultation with appropriate agencies of the U.S. Government, to designate a foreign state (or part thereof) for TPS if the Secretary determines that certain country conditions exist.
At least 60 days before the expiration of a foreign state's TPS designation or extension, the Secretary, after consultation with appropriate U.S. Government agencies, must review the
In addition to extending an existing TPS designation, the Secretary, after consultation with appropriate Government agencies, may redesignate a country (or part thereof) for TPS.
When the Secretary designates or redesignates a country for TPS, the Secretary also has the discretion to establish the date from which TPS applicants must demonstrate that they have been “continuously resid[ing]” in the United States.
DHS has reviewed country conditions in Haiti. Based on the review, including consultation with DOS and other U.S. Government agencies, the Secretary has determined that an 18-month TPS extension is warranted because the extraordinary and temporary conditions supporting Haiti's TPS designation remain and that such extension is not contrary to the national interest of the United States. The Secretary has further determined that redesignating Haiti for TPS based on extraordinary and temporary conditions under INA section 244(b)(3)(C), 8 U.S.C. 1254a(b)(1)(C) is warranted, including a determination that redesignation is not contrary to the national interest of the United States, and is changing the “continuous residence” and “continuous physical presence” dates that applicants must meet to be eligible for TPS.
DHS has conducted a thorough review of country conditions in Haiti. Haiti is experiencing economic, security, political, and health crises simultaneously. Haitian gangs are the primary source of violence and instability in Haiti and pose an increasing threat as they expand their influence and geographic presence over portions of metropolitan Port-au-Prince.
The Haitian parliament was dissolved in January 2020 as the mandates of two thirds of Senate members and all Chamber of Deputies members expired, and no new elections were held.
Since then, PM Henry and opposition groups have engaged in intermittent negotiations about a political path towards elections. On December 21, 2022, representatives of civil society, the private sector, and political groups began signing a revised political agreement known as the “December Accord,” which was supported by PM Henry.
The Haitian government has long been accused of corruption and ineptitude. Politicians and the business elite in Haiti have historically relied on gangs to obtain and exert power, but the gangs have grown more autonomous in recent years.
Since President Moïse's assassination, Haiti has experienced a sharp deterioration in an already fragile security situation. Gang violence and kidnappings have spiked throughout the country, particularly in the capital, Port-au-Prince. The United Nations documented 934 killings, 684 injuries, and 680 kidnappings in Port-au-Prince from January to June 2022.
There are around 200 gangs across Haiti, 95 of which operate in metropolitan Port-au-Prince. Many of Haiti's gangs have coalesced around two main alliances: the G9 and the GPèp. A struggle for dominance by various gangs has superseded the old local rivalries. Gangs have decapitated opponents in public, burnt corpses in the street, set fire to houses, and used sexual violence to intimidate residents out of collaborating with their rivals.
Haitian gangs have also attacked religious and government infrastructure. On June 10, 2022, a gang known as 5 Seconds took temporary control of the Court of First Instance, the main courthouse in Port au Prince. While the courthouse had not been used for criminal trials for several years due to persistent insecurity, the gang nevertheless forced judicial officials out and stole computers, desks, and other assets. The gang appears to have stolen or destroyed case files and evidence that the president of the Association of Haitian Magistrates said would be impossible to recover as Haitian courts do not have digital copies of files.
In mid-September, gangs blocked access to the Varreux Terminal in Port-au-Prince, the main entry point for fuel in Haiti, cutting off millions of gallons of diesel and gasoline and causing a severe fuel shortage.
Several recent environmental disasters have contributed to the extraordinary and temporary conditions in Haiti. On August 14, 2021, a 7.2 magnitude earthquake hit the southern region of Haiti, killing more than 2,200 people, injuring 12,700, destroying 130,000 homes, and leaving thousands of people in urgent need of assistance.
Haiti has one of the highest levels of chronic food insecurity in the world with more than half of its total population chronically food insecure and 22% of children chronically malnourished, according to a September 2022 report.
Armed clashes between gangs destroyed water networks and disrupted water truck deliveries in several Port-au-Prince neighborhoods during 2022. A Doctors Without Borders project coordinator noted that in addition to an epidemic of scabies directly connected to the lack of water since the beginning of 2022, people could only “afford small quantities of drinking water, but they [couldn't] access clean water in quantities needed for hygiene.”
Haiti continues to face many health challenges. USAID's most recent Strategic Framework report stated: “health challenges for preventable diseases worsened after the 2010 cholera epidemic and there has been limited progress in improving health outcomes.”
The United Nations and the Haitian government have reported a new cholera outbreak, with the first cases detected between October 1-2, 2022.
Amidst the political, security, and environmental crises, Haiti's economy has floundered. Haiti is among the countries with the greatest inequality in the region. The richest 20% of its population holds more than 64% of its total wealth, while the poorest 20% has less than 1%.
In summary, Haiti is experiencing extraordinary and temporary conditions resulting from grave insecurity and gang crime, as well as socio-economic and humanitarian conditions, including those resulting from environmental disasters aggravating food insecurity.
Based upon this review and after consultation with appropriate U.S. Government agencies, the Secretary has determined that:
• The conditions supporting Haiti's designation for TPS continue to be met.
• There continue to be extraordinary and temporary conditions in Haiti that prevent Haitian nationals (or individuals having no nationality who last habitually resided in Haiti) from returning to Haiti in safety, and it is not contrary to the national interest of the United States to permit Haitian TPS beneficiaries to remain in the United States temporarily.
• The designation of Haiti for TPS should be extended for an 18-month period, from February 4, 2023, through August 3, 2024.
• Due to the conditions described above, Haiti should be simultaneously redesignated for TPS effective February 4, 2023, through August 3, 2024.
• The Secretary has determined that TPS applicants under the redesignation must demonstrate that they have continuously resided in the United States since November 6, 2022.
• TPS applicants under the redesignation must demonstrate that they have been continuously physically present in the United States since February 4, 2023, the effective date of the redesignation of Haiti for TPS.
• It is estimated that approximately 105,000 additional individuals may be eligible for TPS under the redesignation of Haiti. This population includes Haitian nationals in the United States in nonimmigrant status or without immigration status.
By the authority vested in me as Secretary under INA section 244, 8 U.S.C. 1254a, I have determined, after consultation with the appropriate U.S. Government agencies, the statutory conditions supporting Haiti's designation for TPS on the basis of extraordinary and temporary conditions are met.
To register initially for TPS based on the designation of Haiti, you must submit a Form I-821, Application for Temporary Protected Status, and pay the filing fee (or request a fee waiver, which you may submit on Form I-912, Request for Fee Waiver). You may be required to pay the biometric services fee. If you can demonstrate an inability to pay the biometric services fee, you may request to have the fee waived. Please see additional information under the “Biometric Services Fee” section of this notice.
Individuals with existing TPS granted under the 2021 designation of Haiti must file Form-821 for re-registration as discussed above. Individuals who currently retain their TPS under the
TPS beneficiaries are authorized to work in the United States. You are not required to submit Form I-765 or have an EAD, but see below for more information if you want to work in the United States.
Individuals who have a Haiti TPS application (Form I-821) that was still pending as of January 26, 2023 do not need to file the application again. If USCIS approves an individual's Form I-821, USCIS will grant the individual TPS through August 3, 2024.
For more information on the application forms and fees for TPS, please visit the USCIS TPS web page at
Every employee must provide their employer with documentation showing that they have the legal right to work in the United States. TPS beneficiaries are eligible for an EAD, which proves their legal right to work. Those who want to obtain an EAD must file a Form I-765, Application for Employment Authorization, and pay the Form I-765 fee (or request a fee waiver, which you may submit on Form I-912, Request for Fee Waiver). TPS applicants may file this form along with their TPS application, or at a later date, provided their TPS application is still pending or has been approved. Beneficiaries with a Haiti TPS-related Form I-765 application in connection with a Form I-821 that was still pending as of January 26, 2023 do not need to file the application again. If USCIS approves a pending TPS-related Form I-765, USCIS will issue the individual a new EAD that will be valid through August 3, 2024.
If your fee waiver request is denied, you must refile your Form I-821 for TPS along with the required fees during the registration period, which extends until August 3, 2024. You may also file your Form I-765 with payment of the fee along with your TPS application or at any later date you decide you want to request an EAD during the registration period.
You should refile your Form I-821 for TPS and Form I-765 as soon as possible so USCIS can process your application and issue any EAD promptly, if you requested one. Properly filing early will also give you time to refile your application before the deadline, if USCIS does not grant your fee waiver request. If you receive a notice that USCIS did not grant your fee waiver request, and you are unable to refile by the re-registration deadline, you may still refile your Form I-821 with the biometric services fee. USCIS will review this situation to determine whether you established good cause for late TPS re-registration. However, if possible, we urge you to refile within 45 days of the date on any USCIS notice that we did not grant you a fee waiver.
A re-registering TPS beneficiary age 14 and older must pay the biometric services fee (but not the Form I-821 filing fee), or request a fee waiver, when filing a TPS re-registration application. However, if you decide to wait to request an EAD, you do not have to file the Form I-765 or pay the associated Form I-765 fee (or request a fee waiver) at the time of re-registration. You may wait to seek an EAD until after USCIS has approved your TPS re-registration application or at any later date you decide you want to request an EAD. To re-register for TPS, you only need to file the Form I-821 with the biometric services fee, if applicable (or request a fee waiver).
USCIS offers the option to applicants for TPS under Haiti's designation to file Form I-821 and related requests for EADs online or by mail. When filing a TPS application, applicants can also request an EAD by submitting a completed Form I-765, Request for Employment Authorization, with their Form I-821.
Mail your completed Form I-821, Application for Temporary Protected Status; Form I-765, Application for Employment Authorization, if applicable; Form I-912, Request for Fee Waiver (if applicable); and supporting documentation to the proper address in Table 1.
If you were granted TPS by an immigration judge (IJ) or the Board of Immigration Appeals (BIA) and you wish to request an EAD, please mail your Form I-765 application to the appropriate mailing address in Table 1. When you are requesting an EAD based on an IJ/BIA grant of TPS, please include a copy of the IJ or BIA order granting you TPS with your application. This will help us verify your grant of TPS and process your application.
The filing instructions on the Form I-821 list all the documents needed to establish eligibility for TPS. You may also find information on the acceptable documentation and other requirements for applying (that is, registering) for TPS on the USCIS website at
TPS beneficiaries may also apply for and be granted travel authorization as a matter of discretion. You must file for travel authorization if you wish to travel outside of the United States. If granted, travel authorization gives you permission to leave the United States and return during a specific period. To request travel authorization, you must file Form I-131, Application for Travel Document, available at
• Select Item Number 1.d. in Part 2 on the Form I-131; and
• Submit the fee for the Form I-131, or request a fee waiver, which you may submit on Form I-912, Request for Fee Waiver.
If you are filing Form I-131 together with Form I-821, send your forms to the address listed in Table 1. If you are filing Form I-131 separately based on a pending or approved Form I-821, send your form to the address listed in Table 2 and include a copy of Form I-797 for the approved or pending Form I-821.
Biometrics (such as fingerprints) are required for all applicants 14 years of age and older. Those applicants must submit a biometric services fee. As previously stated, if you are unable to pay the biometric services fee, you may request a fee waiver, which you may submit on Form I-912, Request for Fee Waiver. For more information on the application forms and fees for TPS, please visit the USCIS TPS web page at
To get case status information about your TPS application, as well as the status of your TPS-based EAD request, you can check Case Status Online at
Yes. Regardless of your country of birth, provided that you currently have a Haiti TPS-based EAD that has the notation A-12 or C-19 under Category and a “Card Expires” date of February 3, 2023, this
The validity dates of certain EADs with facial expiration dates before February 3, 2023 for TPS beneficiaries who are covered by the
You can find the Lists of Acceptable Documents on Form I-9, Employment Eligibility Verification, as well as the Acceptable Documents web page at
You may present any document from List A (which provides evidence of both identity and employment authorization) or one document from List B (which provides evidence of your identity) together with one document from List C (which provides evidence of employment authorization), or you may present an acceptable receipt as described in the Form I-9 Instructions. Employers may not reject a document based on a future expiration date. You can find additional information about Form I-9 on the I-9 Central web page at
Even though we have automatically extended your EAD, your employer is required by law to ask you about your continued employment authorization. Your employer may need to re-inspect your automatically extended EAD to check the “Card Expires” date and Category code if your employer did not keep a copy of your EAD when you initially presented it. Once your employer has reviewed the “Card Expires” date and Category code, your employer should update the EAD expiration date in Section 2 of Form I-9. See the section “What updates should my current employer make to Form I-9 if my EAD has been automatically extended?” of this
Your employer may not specify which List A or List C document you must present and cannot reject an acceptable receipt.
Yes, if you are eligible for TPS, you can obtain a new TPS-based EAD, regardless of whether you have an EAD or work authorization based on another immigration status. If you want to obtain a new TPS-based EAD valid through August 3, 2024, then you must file Form I-765, Application for Employment Authorization, and pay the associated fee (unless USCIS grants your fee waiver request).
No. When completing Form I-9, employers must accept any documentation you choose to present from the Form I-9 Lists of Acceptable Documents that reasonably appears to be genuine and that relates to you, or an acceptable List A, List B, or List C receipt. Employers may not request proof of Haitian citizenship or proof of registration for TPS when completing Form I-9 for new hires or reverifying the employment authorization of current employees. If you present an EAD that USCIS has automatically extended, employers should accept it as a valid List A document so long as the EAD reasonably appears to be genuine and to relate to you. Refer to the “Note to Employees” section of this
When using an automatically extended EAD to complete Form I-9 for a new job before February 3, 2024:
1. For Section 1, you should:
a. Check “An alien authorized to work until” and enter February 3, 2024, as the “expiration date”; and
b. Enter your USCIS number or A-Number where indicated. (Your EAD or other document from DHS will have your USCIS number or A-Number printed on it; the USCIS number is the same as your A-Number without the A prefix.)
2. For Section 2, employers should:
a. Determine if the EAD is auto-extended by ensuring it is in category A-12 or C-19 and has a “Card Expires” date of February 3, 2023;
b. Write in the document title;
c. Enter the issuing authority;
d. Provide the document number; and
e. Write February 3, 2024, as the expiration date.
Before the start of work on February 4, 2024, employers must reverify the employee's employment authorization on Form I-9.
If you presented a TPS-related EAD that was valid when you first started your job and USCIS has now automatically extended your EAD, your employer may need to re-inspect your current EAD if they do not have a copy of the EAD on file. Your employer should determine if your EAD is automatically extended by ensuring that it contains Category A-12 or C-19 on the front of the card and has a “Card Expires” date of February 3, 2023. Your employer may not rely on the country of birth listed on the card to determine whether you are eligible for this extension.
If your employer determines that USCIS has automatically extended your EAD, your employer should update Section 2 of your previously completed Form I-9 as follows:
1. Write EAD EXT and February 3, 2024, as the last day of the automatic extension in the Additional Information field; and
2. Initial and date the correction.
This is not considered a reverification. Employers do not reverify the employee until either the one-year automatic extension has ended, or the employee presents a new document to show continued employment authorization, whichever is sooner. By February 4, 2024, when the employee's automatically extended EAD has expired, employers are required by law to reverify the employee's employment authorization on Form I-9.
Employers may create a case in E-Verify for a new employee by entering the number from the Document Number field on Form I-9 into the document number field in E-Verify. Employers should enter February 3, 2024, as the expiration date for an EAD that has been extended under this
E-Verify automated the verification process for TPS-related EADs that are automatically extended. If you have employees who provided a TPS-related EAD when they first started working for you, you will receive a “Work Authorization Documents Expiring” case alert when the auto-extension period for this EAD is about to expire. Before this employee starts work on February 4, 2024, you must reverify their employment authorization on Form I-9. Employers may not use E-Verify for reverification.
Employers are reminded that the laws requiring proper employment eligibility verification and prohibiting unfair immigration-related employment practices remain in full force. This
For general questions about the employment eligibility verification process, employees may call USCIS at 888-897-7781 (TTY 877-875-6028) or email USCIS at
To comply with the law, employers must accept any document or combination of documents from the Lists of Acceptable Documents if the documentation reasonably appears to be genuine and to relate to the employee, or an acceptable List A, List B, or List C receipt as described in the Form I-9 Instructions. Employers may not require extra or additional documentation beyond what is required for Form I-9 completion. Further, employers participating in E-Verify who receive an E-Verify case result of “Tentative Nonconfirmation” (mismatch) must promptly inform employees of the mismatch and give such employees an opportunity to contest the mismatch. A mismatch means that the information entered into E-Verify from Form I-9 differs from records available to DHS.
Employers may not terminate, suspend, delay training, withhold or lower pay, or take any adverse action against an employee because of a mismatch while the case is still pending with E-Verify. A Final Nonconfirmation (FNC) case result is received when E-Verify cannot confirm an employee's employment eligibility. An employer may terminate employment based on a case result of FNC. Work-authorized employees who receive an FNC may call USCIS for assistance at 888-897-7781 (TTY 877-875-6028). For more information about E-Verify-related discrimination or to report an employer for discrimination in the E-Verify process based on citizenship, immigration status, or national origin, contact IER's Worker Hotline at 800-255-7688 (TTY 800-237-2515). Additional information about proper nondiscriminatory Form I-9 and E-Verify procedures is available on the IER website at
For Federal purposes, if you present an automatically extended EAD referenced in this
• Your current EAD with a TPS category code of A-12 or C-19, even if your country of birth noted on the EAD does not reflect the TPS designated country of Haiti;
• Your Form I-94, Arrival/Departure Record;
• Your Form I-797C, Notice of Action, reflecting approval of your Form I-765; or
• Form I-797 or Form I-797C, Notice of Action, reflecting approval or receipt of a past or current Form I-821.
Check with the government agency requesting documentation regarding which document(s) the agency will accept. Some state and local government agencies use the SAVE program to confirm the current immigration status of applicants for public benefits.
While SAVE can verify that an individual has TPS, each state and local government agency's procedures govern whether they will accept an unexpired EAD, Form I-797, Form I-797C, or Form I-94, Arrival/Departure Record. If an agency accepts the type of TPS-related document you present, such as an EAD, the agency should accept your automatically extended EAD, regardless of the country of birth listed on the EAD. It may assist the agency if you:
a. Give the agency a copy of the relevant
b. Explain that SAVE will be able to verify the continuation of your TPS using this information; and
c. Ask the agency to initiate a SAVE query with your information and follow through with additional verification steps, if necessary, to get a final SAVE response verifying your TPS.
You can also ask the agency to look for SAVE notices or contact SAVE if they have any questions about your immigration status or automatic extension of TPS-related documentation. In most cases, SAVE provides an automated electronic response to benefit-granting agencies within seconds, but occasionally verification can be delayed. You can check the status of your SAVE verification by using CaseCheck at
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Development (HUD).
Notice.
The Department of Housing and Urban Development (HUD) established the HCFAC on April 14, 2015. The HCFAC will consist of 12 members, equally representing the mortgage industry and real estate industry, including consumers, and HUD-approved housing counseling agencies. This notice invites nominations for an appointment to fill one vacancy on the HCFAC to represent the mortgage industry.
All nominations must be received no later than February 27, 2023.
Nominations must be in writing using a completed HUD-90005 (Application for Membership on the HCFAC, OMB Approval Number: 2502-0606) and submitted via email to
Virginia F. Holman, Housing Program Technical Specialist, U.S. Department of Housing and Urban Development, Office of Housing Counseling, Office of Outreach and Capacity Building, telephone number 540-894-7790 (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 HCFAC is congressionally mandated to provide advice to the Office of Housing Counseling (OHC) (42 U.S.C. 3533(g)(4)). The HCFAC provides the OHC valuable advice regarding its mission to provide individuals and families with the knowledge they need to obtain, sustain, and improve their housing through a strong national network of HUD-approved housing counseling agencies and HUD-certified counselors. The HCFAC, however, does not have any role in reviewing or awarding of OHC housing counseling grants and procurement contracts. The HCFAC is subject to the requirements of the Federal Advisory Committee Act (Pub. L. 92-463, codified at 5 U.S.C. App. 1-16), and Presidential Memorandum “Final Guidance on Appointments of Lobbyists to Federal Boards and Commissions,” dated June 18, 2010, along with any relevant guidance published in the
The HCFAC shall consist of not more than 12 individuals appointed by the Secretary. The membership will equally represent the mortgage industry, real estate industry, consumers, and HUD-approved housing counseling agencies. Each member shall be appointed in his or her individual capacity for a term of 3 years.
HUD is seeking nominations for membership on the HCFAC. Nominees shall have experience representative of the mortgage industry. Nominations may be made by agency officials, members of Congress, the general public, professional organizations, and self-nominations. Nominees must be U.S. citizens and cannot be U.S. Government employees.
All appointed nominees will be serving on the HCFAC in their individual capacity and not in a representative capacity, therefore, no Federally-registered lobbyists may serve on the HCFAC.
Nominations should be submitted via email to
All Nominations must be received no later than February 27, 2023.
HCFAC members will be required to adhere to the conflict of interest rules applicable to Special Government Employees as such employees are defined in 18 U.S.C. 202(a). The rules include relevant provisions in 18 U.S.C. related to criminal activity, Standards of Ethical Conduct for Employees of the Executive Branch (5 CFR part 2635) and Executive Order 12674 (as modified by Executive Order 12731). Therefore, applicants will be required to submit to pre-appointment screenings relating to identity of interest and financial interests that HUD might require. If selected, HCFAC members will also be asked to complete OGE Form 450 (Confidential Financial Disclosure Report).
Members of the HCFAC shall serve without pay but shall receive travel expenses including per diem in lieu of subsistence as authorized by 5 U.S.C. 5703. Regular attendance is essential to the effective operation of the HCFAC.
Please note this Notice is not intended to be the exclusive method by which HUD will solicit nominations and expressions of interest to identify qualified candidates; however, all nominees for membership on the HCFAC will be subject to the same application process and evaluation criteria.
Member selections will be made by the Secretary and will be based on the Nominee's qualifications to contribute to the accomplishment of the HCFAC's objectives. Membership on the Committee is personal to the appointee and committee members serve at the discretion of the Secretary.
The estimated number of in-person meetings anticipated within a fiscal year is two (2) in Washington, DC or elsewhere in the United States. Additional meetings may be held as needed to render advice to the Deputy Assistant Secretary for the Office of Housing Counseling. The meetings may use electronic communication technologies for attendance.
All meetings will be announced by notice in the
Office of Policy Development and Research, Chief Data Officer, 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 an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Colette Pollard, Reports Management Officer, REE, Department of Housing and Urban Development, 451 7th Street SW, Room 8210, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number) or email at
The Department is submitting the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35, as amended). This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
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,
HUD encourages interested parties to submit comments in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35.
Government National Mortgage Association (Ginnie Mae), 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. Written comments and recommendations for the proposed information collection should be sent within 60 days of publication of this notice to
Anna Guido Department of Housing and Urban Development, 451 7th Street SW, Room 8210, Washington, DC 20410; telephone 202-402-5535, (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
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.
Adapting to the needs of the industry, Ginnie Mae is permittinh the securitization of mortgage loans where the note is an eligible eNote. The forms in this request are new forms that are necessary due to the unique requirements of managing eNotes and eMortgages. This collection permits Ginnie Mae to verify: (1) that eIssuers and eMortgages have the specialized knowledge and experience to participate; (2) that eIssuers and eCustodians have the technological capability to service eMortgages and safeguard eMortgage documents; (3) the name and location of the entities responsible for the various Ginnie Mae accounts and eMortgage documents, and (4) those entities that are responsible for servicing the eMortgages that back the Ginnie Mae pools. Ginnie Mae needs this information to mitigate risk and evaluate its business operations, procedures and programs, and assist lenders in processing borrower requests more efficiently. Ginnie Mae also requires the collection of information to ensure that there are no deficiencies, which could affect the pass through of securities to its investors.
Based upon feedback received about the eIssuer Application form (HUD-11701A), we have revised the instructions. The only revision is to the form's instructions which now address subservicing by the eIssuer Applicant.
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,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35.
Office of the Secretary, Interior.
Call for nominations notice.
The
All nominations must be received by March 13, 2023.
A complete nomination package should be submitted by hard copy or via email to Shiway Wang, Executive Director,
Grace Cochon, Department of the Interior, Office of Environmental Policy and Compliance, telephone number: (907) 786-3620; email:
The Committee was created pursuant to Paragraph V.A.4 of the Memorandum of Agreement and Consent Decree entered into by the United States of America and the State of Alaska on August 27, 1991, and approved by the United States District Court for the District of Alaska in settlement of
The Committee consists of 10 members to reflect balanced representation from each of the following principal interests: aquaculture/mariculture, commercial tourism, conservation/environmental, recreation, subsistence use, commercial fishing, native landownership, sport hunting/fishing, science/technology, and public-at-large.
We are soliciting nominations for three positions that represent sport hunting/fishing, conservation/environmental, and science/technology interests. The Committee members will be selected and appointed by the Secretary of the Interior to serve a four-year term.
Nominations for membership may be submitted by any source. Nominations should include a résumé providing an adequate description of the nominee's qualifications, including information that would enable the Department of the Interior to make an informed decision regarding meeting the membership requirements of the Committee and permit the Department of the Interior to contact a potential member.
National Park Service, Interior.
Notice.
The National Park Service is soliciting electronic comments on the significance of properties nominated before January 14, 2023, for listing or related actions in the National Register of Historic Places.
Comments should be submitted electronically by February 10, 2023.
Comments are encouraged to be submitted electronically to
Sherry A. Frear, Chief, National Register of Historic Places/National Historic Landmarks Program, 1849 C Street NW, MS 7228, Washington, DC 20240,
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before January 14, 2023. Pursuant to Section 60.13 of 36 CFR part 60, comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Key: State, County, Property Name, Multiple Name (if applicable), Address/Boundary, City, Vicinity, Reference Number.
Additional documentation has been received for the following resources:
National Park Service, Interior.
Meeting notice.
In accordance with the Federal Advisory Committee Act of 1972, the National Park Service (NPS) is hereby giving notice that the Chesapeake and Ohio Canal National Historical Park Commission (Commission) will meet as indicated below.
The in-person meeting will take place on Thursday, March 2, 2023. The meeting will begin at 9:00 a.m. until 2:30 p.m. (EASTERN), with an hour-long lunch break.
The meeting will be held in the public conference room at park headquarters, Chesapeake and Ohio Canal National Historical Park, 142 W Potomac Street, Williamsport, MD 21795. Individuals that prefer to participate virtually must contact the person listed in the (see
Tina Cappetta, Superintendent, Chesapeake and Ohio Canal National Historical Park, 142 W Potomac Street, Williamsport, MD 21795, or via telephone at (301) 714-2201, or by email
The Commission was established on January 8, 1971, under 16 U.S.C. 410y-4, as amended, and is regulated by the Federal Advisory Committee Act. Appendix D, Division B, Title I, section 134 of Public Law 106-554, December 21, 2000, and section 1 of Public Law 113-178, September 26, 2014, respectively.
Interested persons may present, either orally or through written comments, information for the Commission to consider during the public meeting. Written comments will also be accepted prior to, during, or after the meeting.
Members of the public may submit written comments by mailing them to Mackensie Henn, Assistant to the Superintendent, Chesapeake and Ohio Canal National Historical Park, 142 W Potomac Street, Williamsport, MD 21795, (240) 520-3135, or by email
Depending on the number of people wishing to comment and the time available, the amount of time for oral comments may be limited. All comments will be made part of the public record and will be electronically distributed to all Commission members. Detailed minutes of the meeting will be available for public inspection within 90 days of the meeting.
Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States.
National Park Service, Interior.
Meeting notice.
In accordance with the Federal Advisory Committee Act, the National Park Service is hereby giving notice that the Tule Springs Fossil Beds National Monument Advisory Council (Council) will meet as indicated below.
The meeting will be held on Wednesday, February 15, 2023, at 5:00 p.m. until 7:00 p.m. (PACIFIC).
The meeting will be held in person at the State Park Nevada—Southern Nevada Office at 4747 Vegas Dr., Las Vegas, Nevada 89108. Individuals that prefer to participate virtually must contact the person listed in the (
Written comments can be submitted by mail to Derek Carter, Superintendent, Tule Springs Fossil Beds National Monument, 601 Nevada Way, Boulder
Further information concerning the meeting may be obtained from Mike Theune, Acting Public Affairs Officer, Lake Mead National Recreation Area, 601 Nevada Way, Boulder City, Nevada 89005, via telephone at (702) 293-8691, or email at
The Council was established pursuant to section 3092(a)(6) of Public Law 113-291 and in accordance with the provisions of the Federal Advisory Committee Act (5 U.S.C. Appendix 1-16). The purpose of the Council is to advise the Secretary of the Interior with respect to the preparation and implementation of the management plan.
The meeting is open to the public. Interested persons may make oral or written presentations to the Council during the business meeting or file written statements. Requests to address the Council should be made to the Superintendent prior to the meeting. Members of the public may submit written comments by mailing them to Derek Carter, Superintendent, Tule Springs Fossil Beds National Monument, 601 Nevada Way, Boulder City, NV 89005, or by email
Office of Natural Resources Revenue (“ONRR”), Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995 (“PRA”), ONRR is proposing to renew an information collection. Through this Information Collection Request (“ICR”), ONRR seeks renewed authority to collect information necessary to determine net profit share payments due the United States pursuant to Outer Continental Shelf (“OCS”) oil and gas leases.
You must submit your written comments on or before March 27, 2023.
All comment submissions must (1) reference “OMB Control Number 1012-0009” in the subject line; (2) be sent to ONRR before the close of the comment period listed under
•
To request additional information about this ICR, please contact Aaron Lindquist, Data Intake, Solutioning, and Coordination, ONRR, by email at
Pursuant to the PRA, 44 U.S.C. 3501,
As part of ONRR's continuing effort to reduce paperwork and respondent
ONRR is especially interested in public comments addressing the following:
(1) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of ONRR's estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How might the agency minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments that you submit in response to this notice are a matter of public record. ONRR will include or summarize each comment in its request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask ONRR in your comment to withhold your personal identifying information from public review, ONRR cannot guarantee that it will be able to do so.
Through this ICR, ONRR seeks continuing authority to collect information necessary to perform its delegated mineral revenue management responsibilities for Net Profit Share Leases (“NPSLs”). The NPSLs are OCS leases that provide for the payment to the United States of a percentage of the net profits from oil and gas production.
Section 1220.031(a) requires the lessee to file annual reports with ONRR regarding the costs incurred until production revenues are credited to the capital account. Once production revenues are credited to the account, § 1220.031(b) requires the lessee to file monthly reports with ONRR. That section requires the monthly reports to include the volume and disposition of all oil and gas production saved, removed, or sold, the production revenue, the amount and description of all costs and credits to the NPSL capital account, the balance of the NPSL capital account, the net profit share base and net profit share payment due the United States, and the monthly profit share of the lessee. Section 1220.031(e) requires the lessee to file a final report with ONRR upon cessation of production indicating the remaining balance and costs and credits to the NPSL capital account.
All nine lessees report monthly because all current NPSLs are in producing status. ONRR estimates that these lessees will file a total of 180 monthly reports annually. ONRR excluded estimates of certain requirements performed in the normal course of business that are considered usual and customary.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the PRA (44 U.S.C. 3501,
Notice is hereby given that the United States of America, on behalf of the Department of the Interior (“DOI”) acting through the U.S. Fish and Wildlife Service, the State of Oregon represented by Oregon Department of Fish and Wildlife (“ODFW”), the Confederated Tribes of Grand Ronde, and the Confederated Tribes of Siletz Indians (“Tribes”) (DOI, ODFW and Tribes collectively, the “Trustees”), are providing an opportunity for public comment on a proposed Settlement Agreement (“Settlement Agreement”) among the Trustees and settling party Central Petro, Inc. (“Central Petro”).
The Settlement Agreement resolves civil claims under the natural resource damages provision of the Oil Pollution Act of 1990 (“OPA”), 33 U.S.C. 2702 for injury to, impairment of, destruction of, loss of, diminution of value of and/or loss of use of natural resources, including the reasonable costs of assessing the injuries, resulting from the December 15, 2017 discharge of approximately 11,600 gallons of unleaded gasoline from a fuel tanker owned by Central Petro near Idanha Oregon.
The Settlement Agreement resolves these claims by requiring a payment of $567,155.97 for past assessment costs and implementation of natural resource restoration projects to be selected by the Trustees.
This publication of this notice holds opens the period for public comment on the Settlement Agreement. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Settlement Agreement may be examined and downloaded at this Justice Department website:
Please enclose a check or money order for $8.75 (25 cents per page reproduction cost) payable to the United States Treasury.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Employee Benefits Security Administration (EBSA)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that the agency receives on or before February 27, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Mara Blumenthal by telephone at 202-693-8538, or by email at
Section 408(a) of the Employee Retirement Income Security Act (ERISA) authorizes this information collection. Prohibited Transaction Class Exemption 84-14 permits a party that is related to an employee benefit plan to engage in transactions involving plan assets if, among other conditions, the assets are managed by a qualified professional asset manager (QPAM) that is independent of the parties in interest. The information collection requirements that are conditions of the exemption include written policies and procedures by a QPAM and audit requirements. An independent auditor uses the written policies and procedures to determine whether the QPAM is in compliance with the written policies and procedures and whether the exemption conditions have been met. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
DOL seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning the proposal to extend the Office of Management and Budget's (OMB) approval of the information collection requirements specified in the Susan Harwood Training Grant Program.
Comments must be submitted (postmarked, sent, or received) by March 27, 2023.
For further information on submitting comments, see the “Public Participation” heading in the section of this notice titled
Seleda Perryman or Theda Kenney, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor; telephone (202) 693-2222.
The Department of Labor, as part of the continuing effort to reduce paperwork and respondent (
Section 21 of the Occupational Safety and Health Act of 1970 (the “OSH Act”) (29 U.S.C. 670) authorizes the Occupational Safety and Health Administration (OSHA) to conduct directly, or through grants and contracts, education, and training courses. These courses must ensure an adequate number of qualified personnel to fulfill the purposes of the Act, provide them with short-term training, inform them of the importance and proper use of safety and health equipment, and train employers and workers to recognize, avoid, and prevent unsafe and unhealthful working conditions.
Under Section 21, the agency awards training grants to nonprofit organizations to provide part of the training. Organizations that receive these grants must submit the Grantee Quarterly Progress Report (GQPR; OSHA 171, Revised 5/14) as required by the Department of Labor under 29 CFR 95.51. This regulation states that grant recipients (grantees) must submit progress reports to the awarding agency at least annually but no more than quarterly. The reports must contain a comparison of actual accomplishments with goals and objectives established for the reporting period and, if appropriate, the program's output.
Therefore, the GQPR allows OSHA to monitor a grantee's performance and to determine if a recipient is using funds as specified in its grant application. After the grant recipient submits a GQPR, the agency compares the information provided by the grant recipient in the report to the quarterly milestones proposed by the grant recipient in the work plan and budget that accompanied its grant application.
This information includes: identifier data (organization name, grant number, and period covered by the report); the date and location where the training occurred; the number of workers and employers attending training sessions provided by the organization during the quarter; the class length (in quarter hours); the language used to deliver the training; a description of the training provided; a narrative account of grant activities during the quarter (including capacity building activities, needs assessment activities, development of training materials/curriculum, evaluation activities, and other educational activities); and an evaluation of progress regarding planned versus actual work accomplished.
Using this information, OSHA can determine if the grant recipient is meeting the proposed program goals and objectives, as described in the grant proposal, and is spending funds consistent with the proposed budget.
The lack of disaggregated demographic data variables impedes efforts to measure and advance equity. Section 9 of the E.O. 13895 on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government requires each
Requiring these reports on a quarterly basis enables the agency to identify training and expenditure discrepancies in a timely fashion so that it can implement appropriate action. In addition, this information permits OSHA to assess a grant recipient's ability to meet projected milestones and expenditures.
This ICR requests a revision to add race, ethnicity, and language to a currently approved data collection. By conducting an equity assessment to meet the requirements of Executive Order (E.O.) 13895 on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government and the DOL Evidence Building Act Evaluation Plan, Project 38 (See Section 15).
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the agency's functions to protect workers, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection, and transmission techniques.
OSHA is requesting that OMB revise the approval of the information collection requirements contained in Susan Harwood Training Grant Program. The agency is requesting a program change from 6,160 hours to 6,324 hours, a difference of 164 hours. This increase is due to the addition of the processing of the additional demographic data required for the data collection.
OSHA will summarize the comments submitted in response to this notice and will include this summary in the request to OMB to extend the approval of the information collection requirements.
You may submit comments in response to this document as follows: (1) electronically at
Due to security procedures, the use of regular mail may cause a significant delay in the receipt of comments.
Comments and submissions are posted without change at
James S. Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
Signed at Washington, DC.
Atomic Safety and Licensing Board, Nuclear Regulatory Commission.
In December 2020, Entergy Nuclear Operations, Inc., Entergy Nuclear Palisades, LLC, Holtec International, and Holtec Decommissioning International, LLC (collectively Applicants) sought the Nuclear Regulatory Commission's (NRC) approval for the indirect transfer of control of the Palisades Nuclear Plant and Big Rock Point Site, including the general licenses for each facility's Independent Spent Fuel Storage Installation Entergy's licenses, to Holtec International.
Per its authority under 10 CFR 2.1319(a) to handle Subpart M license transfer proceedings, on July 15, 2022, the Commission partially admitted the Michigan Attorney General's petition by limiting the scope of the hearing to four issues:
(1) The reasonableness of the applicants' estimated 11-year timeframe within which the United States Department of Energy is to remove all of the spent fuel at Palisades;
(2) the reasonableness of Applicant's decommissioning cost estimate falling below the NRC's decommissioning cost minimum formula amount calculated for the Palisades site;
(3) the reasonableness of the applicants' 12% contingency level allocated to the radiological decommissioning, spent fuel management, and site restoration cost estimates; and
(4) the reasonableness of the applicants' assertion that it will be able to provide additional financial assurance, if that proves necessary, to complete decommissioning and terminate the license.
The Commission directed that the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel “[a]ppoint a single administrative judge . . . to serve as the Presiding Officer to take all necessary actions to compile, complete, and certify the hearing record, including presiding over any oral hearing.”
The Presiding Officer hereby schedules an oral hearing on the issues outlined above to commence on February 8, 2023, and to continue from day-to-day thereafter until such oral hearing is completed. This hearing shall take place at the NRC headquarters, 11545 Rockville Pike, Rockville, MD 20852, in the Hearing Room located on the 3rd Floor of the Two White Flint North building. The hearing will begin at 10:00 a.m. Eastern Standard Time (EST). The Board anticipates that the hearing will be completed by 5:00 p.m. EST on Friday, February 10, 2023. Only authorized representatives or counsel for the Michigan Attorney General, Applicants, and the NRC Staff who have entered written notice of appearance pursuant to 10 CFR 2.314(b) will be entitled to participate.
The sole purpose of the oral hearing is to develop an evidentiary record and to “compile, complete and certify the hearing record” for the Commission for its use in determining the outcome of this case.
It is so
For the Atomic Safety and Licensing Board.
Office of Science and Technology Policy (OSTP).
Notice of Request for Information (RFI).
The Federal Government is developing a National Digital Assets Research and Development Agenda. The White House Office of Science and Technology Policy (OSTP)—on behalf of the Fast Track Action Committee (FTAC) on Digital Assets Research and Development of the Subcommittee on Networking and Information Technology Research and Development (NITRD) of the National Science and Technology Council, the National Science Foundation, and the NITRD National Coordination Office—requests public comments to help identify priorities for research and development related to digital assets, including various underlying technologies such as blockchain, distributed ledgers, decentralized finance, smart contracts, and related issues such as cybersecurity and privacy (
Interested individuals and organizations are invited to submit comments on or before 5 p.m. ET on March 3, 2023.
Interested individuals and organizations should submit comments electronically to
Responses may address one or more topics, as desired, from the enumerated list provided in this RFI, noting the corresponding number of the topic(s) to which the response pertains. Submissions must not exceed 10 pages (exclusive of cover page and references) in 11-point or larger font. Responses should include the name of the person(s) or organization(s) filing the comment, as well as the respondent type (
In accordance with Federal Acquisitions Regulations Systems 15.202(3), responses to this notice are not offers and cannot be accepted by the Federal Government to form a binding contract. Additionally, those submitting responses are solely responsible for all expenses associated with response preparation.
For additional information, please direct questions to Nik Marda, Anna Brady-Estevez, and James Joshi at
Responsible innovation in digital assets could provide significant benefits for the American people. This RFI seeks input to shape a whole-of-government effort on research and development related to digital assets and distributed ledger technology.
A more comprehensive R&D approach would provide concrete areas of focus towards achieving a holistic vision of a digital assets ecosystem that embodies democratic values and other key priorities. This approach would help ensure that sometimes-overlooked topics like environmentally-friendly consensus mechanisms and fraud-resistant transaction programmability receive appropriate levels of R&D support. This approach would also help ensure that advances in digital assets can also support technological progress in overlapping and adjacent domains, including the traditional financial services industry.
Recognizing the importance of responsible innovation in digital assets, President Biden signed E.O. 14067, which outlined the first whole-of-government approach to digital assets. Pursuant to this E.O., OSTP published
This report recommended that the U.S. Government develop and periodically update a National Digital Assets R&D Agenda. This recommendation complemented the
Digital assets have generated interest across a range of use cases that could help grow the economy, provide societal benefits, and advance equity and inclusion. There are a number of potential use cases that support these goals, such as the potential for digital assets to help human rights advocates receive financial support for their work under governments that are trying to curtail their activities. However, while much attention has been given to applications within the financial ecosystem, there are also applications that span a range of other sectors. For example, while some digital assets can consume a lot of energy, their underlying technology may support easier integration and coordination of clean energy resources, such as by providing a better ledger for the authentication, participation, and renumeration of beneficial services from distributed energy resources (
A focused R&D effort could provide especially significant benefits for better understanding and designing a particular type of digital asset—the CBDC. While the United States has not made a decision about whether it will pursue a CBDC in the next few years, a focused R&D effort could help illustrate how to design a CBDC system in line with the Biden-Harris Administration's
Through this RFI, OSTP seeks responses that could inform the full breadth of Federal R&D priorities related to digital assets, including R&D initiatives that could complement the Federal Reserve's research and experimentation related to CBDCs, consistent with the highest urgency that E.O. 14067 placed on R&D for a U.S. CBDC system. We also encourage respondents to explain how their R&D suggestions could help advance policy priorities or recommendations outlined in reports pursuant to E.O. 14067, such as OSTP's report titled
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Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to establish a new service and related fees for use of the BOX Options Market LLC (“BOX”) Trade Management System. The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's internet website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to establish a new service and related fees for the use of BOX's Trade Management System (“TMS”).
TMS is a system licensed by BOX that allows users to query trades, correct trades, and/or allocate trades to the appropriate accounts and sub-accounts for clearing (collectively known as “trade information”). After a trade is executed, a Participant may need to update or correct the trade information before the trade is submitted to the Options Clearing Corporation (“OCC”) for clearing. Currently, TMS is accessed only by the BOX Market Operations Center (“MOC”). If a Participant wishes to make any corrections or updates to trade information, they must contact the MOC or produce a detailed file for automated processing by BOX.
Participants have requested that BOX allow them to access TMS directly so that they may correct their trade information themselves without interacting with the MOC or submitting a detailed file. The Exchange believes that providing direct access to TMS to Participants will allow them to more efficiently manage their back office clearing operations and assist them in providing accurate clearing information to the OCC. As such, the Exchange now proposes to make TMS available to BOX Participants, which will allow Participants the ability to correct certain OCC-required trade information. Specifically, TMS will allow Participants to correct a trade's account number, sub-account number, Clearing Member Trade Assignment (“CMTA”) clearing firm, Clearing Participant Give-Up, quantity, account type, and other information connected to trades.
The Exchange also proposes to establish a subscription fee of $350 per month, per user for the use of TMS.
The Exchange notes that other options exchanges make similar tools available to firms where the firm, not Exchange personnel, may correct trade information that is submitted to the OCC.
The Exchange believes that the proposal is consistent with the requirements of section 6(b) of the Act,
Further, the Exchange believes that the proposed fee is reasonable and appropriate as it will cover the costs associated with establishing the use of TMS for Participants that request it and administering the service to those Participants. Further, the Exchange notes that the proposed fee is nominal and is not designed to provide a revenue stream to BOX but rather to offset the costs associated with allowing Participants to access and use TMS. Specifically, the Exchange notes that the proposed fee is intended to cover the costs of establishing the service, and monitoring and supporting the access and use of TMS by Participants, among other things. As such, the Exchange believes the proposed fee is reasonable and appropriate.
As noted herein, Participants have requested this functionality and each Participant may choose whether the value added is worth the cost of the subscription. The Exchange believes offering TMS to BOX Participants is consistent with the Act because TMS provides Participants with the ability to directly update their transactions, at their convenience, and immediately verify the results of their modifications. Using TMS is purely a matter of convenience and is wholly voluntary by the Participant. The Exchange again notes that another exchange charges a monthly fee per user for a similar tool.
The proposed rule change would allow the Exchange to establish a new service and related fees for the use of BOX's TMS on a voluntary basis. The Exchange notes that the subscription fee will be charged to all Participants equally based on the number of users requested. Any Participants who do not wish to use TMS will still be able to make any corrections or updates to trade information by contacting the MOC or producing a detailed file for automated processing by BOX. Further, the Exchange notes that another exchange offers a similar service and charges a monthly fee per user for a similar tool.
The Exchange has neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest. According to the Exchange, providing immediate access to BOX's TMS will offer BOX Participants the option to more efficiently manage their back office clearing operations and will assist them in providing accurate clearing information to the OCC. Moreover, other exchanges offer similar services to their members. Accordingly, the proposal does not raise novel issues. For these reasons, the Commission designates that the proposed rule change to be operative immediately upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
ICE Clear Europe Limited (“ICE Clear Europe” or the “Clearing House”) proposes changes to certain of its clearing fees for ICE Futures Europe Gilt Futures and Options and Euribor Options contracts.
In its filing with the Commission, ICE Clear Europe 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. ICE Clear Europe has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of such statements.
ICE Clear Europe is proposing to increase certain clearing fees for ICE Futures Europe (“IFEU”) Gilt Futures and Options and Euribor Options contracts. The fee changes are intended to provide revenue to support the further development of IFEU's Gilt markets and bring fees related to these contracts in line with the fees of other government bond futures and options traded on other Exchanges. For Euribor options, the changes would be made to align fees with existing ICE Clear Europe clearing fees for the underlying Euribor futures.
Fees with respect to the Gilt contracts have not been changed since 2017. The fee increases are intended to align fees for the Gilt contracts more closely with those of government bond futures and options traded on other exchanges. In addition, there is only limited open interest in certain Gilt contracts (particularly the short, medium and ultra-long contracts). The proposed fee increases (together with planned increases in trading fees at IFEU) are intended to provide revenue to support additional business development activity with respect to these contracts, including funding liquidity provider and other incentives that may be adopted in the future. In ICE Clear Europe's experience with similar contracts, such incentives will likely be needed in order to generate additional market activity and liquidity in contacts with limited existing open interest.
With respect to Euribor options, the Clearing House proposes to increase the clearing fees to align with the underlying Euribor futures contracts. ICE Clear Europe believes that the changes will eliminate an unnecessary distinction between the cost of trading futures and options. ICE Clear Europe notes that clearing fees with respect to these contracts have not changed since ICE Clear Europe commenced clearing them in 2014.
The fee tables below set forth the proposed clearing fee changes. The proposed new fees are intended to come into effect on February 1, 2023, subject to regulatory approval. ICE Clear Europe intends, together with IFEU, to publish a Circular to inform market participants of the changes in advance of such proposed effective date.
Below is a table showing the existing and proposed clearing fees and a table showing the proposed amended Exchange and Clearing fees.
ICE Clear Europe believes that the proposed rule changes are consistent with the requirements of the Act, including Section 17A of the Act
The proposed amendments are also consistent with the requirements of Section 17A(b)(3)(F) of the Act
ICE Clear Europe does not believe the proposed rule changes would have any impact, or impose any burden, on competition not necessary or appropriate in furtherance of the purpose of the Act. Although ICE Clear Europe is increasing certain clearing fees, as set forth herein, it believes such changes are appropriate to reflect the costs and expenses incurred by the Clearing House in clearing the relevant Contracts and are consistent with other contracts cleared at the Clearing House and similar contracts cleared on other venues. The amendments would also support appropriate liquidity and other incentive arrangements to further develop trading. ICE Clear Europe does not believe that the amendments would adversely affect the ability of Clearing Members or other market participants generally to access clearing services for the Contracts. Further, since the revised fees will be the base rate applicable to all Clearing Members and market participants that clear the products, ICE Clear Europe believes that the amendments would not otherwise affect competition among Clearing Members, adversely affect the market for clearing services or limit market participants' choices for obtaining clearing services. As a result, ICE Clear Europe does not believe the amendments would have any impact or impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments relating to the proposed amendment has not been solicited or received by ICE Clear Europe. ICE Clear Europe will notify the Commission of any comments received with respect to the proposed rule change.
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, security-based swap submission or advance notice is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-ICEEU-2023-001 and should be submitted on or before February 16, 2023.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On November 18, 2022, MEMX LLC (“MEMX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 15c3-1 requires brokers-dealers to have at all times sufficient liquid assets to meet their current liabilities, particularly the claims of customers. The rule facilitates the monitoring of the financial condition of broker-dealers by the Commission and the various self-regulatory organizations. It is estimated that broker-dealer respondents registered with the Commission and subject to the collection of information requirements of Rule 15c3-1 incur an aggregate annual time burden of approximately 70,137 hours to comply with this rule and an aggregate annual cost burden of approximately $135,167.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
Section 31 of the Securities Exchange Act of 1934 (“Exchange Act”) requires each national securities exchange and national securities association to pay transaction fees to the Commission.
Section 31 of the Exchange Act requires the Commission to annually adjust the fee rates applicable under Sections 31(b) and (c) to a uniform adjusted rate.
The Commission is required to publish notice of the new fee rates under Section 31 not later than 30 days after the date on which an Act making a regular appropriation for the applicable fiscal year is enacted.
The new fee rate is determined by (1) subtracting the sum of fees estimated to be collected prior to the effective date of the new fee rate
As noted above, the Consolidated Appropriations Act, 2023, includes total appropriations of $2,209,770,000 to the Commission for fiscal year 2023.
The uniform adjusted rate is computed by dividing the residual fees to be collected of $608,662,342 by the estimated aggregate dollar amount of covered sales for the remainder of fiscal year 2023 of $76,211,125,379,350; this results in a uniform adjusted rate for fiscal year 2023 of $8.00 per million.
Under Section 31(j)(4)(A) of the Exchange Act, the fiscal year 2023 annual adjustments to the fee rates applicable under Sections 31(b) and (c) of the Exchange Act shall take effect on the later of October 1, 2022, or 60 days after the date on which a regular appropriation to the Commission for fiscal year 2023 is enacted.
Accordingly, pursuant to Section 31 of the Exchange Act,
By the Commission.
This appendix provides the methodology for determining the annual adjustment to the
To make the adjustment, the Commission must project the aggregate dollar amount of covered sales of securities on the securities exchanges and certain over-the-counter (“OTC”) markets over the course of the year. The fee rate equals the ratio of the Commission's regular appropriation for fiscal year 2023 (less the sum of fees to be collected during fiscal year 2023 prior to the effective date of the new fee rate and aggregate assessments on security futures transactions during all of fiscal year 2023) to the estimated aggregate dollar amount of covered sales for the remainder of the fiscal year following the effective date of the new fee rate.
For 2023, the Commission has estimated the aggregate dollar amount of covered sales by projecting forward the trend established in the previous decade. More specifically, the dollar amount of covered sales was forecasted for months subsequent to November 2022, the last month for which the Commission has data on the dollar volume of covered sales.
The following sections describe this process in detail.
First, calculate the average daily dollar amount of covered sales (“ADS”) for each month in the sample (February 2012-November 2022). The monthly total dollar amount of covered sales (exchange plus certain OTC markets) is presented in column C of Table A.
The model forecasts the monthly moving average of the average daily dollar amount of covered sales. Each month's average daily dollar amount of covered sales is calculated by dividing the total covered sales for that month (column C of Table A) by the number of trading days for that month (column B of Table A). These amounts are shown in column D of Table A. The moving average will span the same number of months required to be forecast for the remainder of the fiscal year. The trailing moving average used in the forecast model is presented in column E of Table A.
To capture the recent trends in the monthly changes in the moving averages, calculate the 1-month and 2-month lags of the trailing moving average shown in column E in Table A. These amounts are shown in columns F and G, respectively, of Table A.
Next, model the monthly trailing moving average of ADS as function of a constant term and the two lagged trailing moving averages using the ordinary least squares technique.
Use the estimated model to forecast the trailing moving average of ADS of the first month after the last available monthly data. Estimate the trailing moving average of the second month using the forecasted value of the first month and the actual value of the month before that. Similarly, estimate the trailing moving average of the third month using the forecasted values of the two previous months. Continue in this fashion until the end of the fiscal year.
The estimate of the trailing moving average ADS for the last applicable month in the fiscal year is a prediction of the moving average for those months that need to be predicted. This estimate is used as the predicted value of ADS for each month in the forecast period; to obtain the forecast total covered sales for each month, multiply the predicted ADS by the number of days in each month.
The following is a more formal (mathematical) description of the procedure:
1. Begin with the monthly data for total dollar volume of covered sales (column C). The sample spans ten years, from February 2012-November 2022.
2. For each month
3. Calculate the 1-month and 2-month lags of the trailing moving average. For example, the 1-month lag of the 9-month trailing moving average for November, 2012 is equal to the 9-month trailing moving average for October, 2012. The 2-month lag of the 9-month trailing moving average for December, 2012 is equal to the 9-month trailing moving average for October 2012. These are shown in columns F and G.
4. Estimate the model using ordinary least squares:
Where
5. The predicted value of the 9-month trailing moving average of the last month to be forecast represents the final forecast of covered sales for the entire prediction period. This value is shown in column H. This represents the prediction for August of 2023. To calculate this value from the model above, one needs the 1-month and 2-month lag of the 9-month trailing moving average ADS,
6. For example, for December 2022, using the a, b
7. With the estimated 9-month trailing moving average ADS for December 2022 calculated above, one can estimate the 9-month trailing moving average ADS for January, 2023. The estimate obtained from December becomes the 1-month lag for January, and the 1-month lag used in the December forecast becomes the 2-month lag for the January forecast. Thus, the predicted 9-month trailing moving average ADS for January 2023 is calculated as: +2150476361 + (1.587842 x 593,867,637,983) + (−0.590472 × 606,143,338,486) = 587,207,522,789.
8. Using the forecasts for December and January, one can estimate the value for February. Repeat this procedure for subsequent months, until the estimate for August 2023 is obtained. This value is 586,239,425,995.
9. To obtain the estimate of total monthly covered sales for each month, multiply the number of trading days in the month, shown in column B in Table A, by the final forecast 9-month trailing moving average ADS, shown in column H of Table A. This product is shown in column I of Table A, and these figures are used to calculate the new fee rate.
1. Use Table A to estimate fees collected for the period September 1, 2022 through February 26, 2023. The projected aggregate dollar amount of covered sales for this period is $69,917,364,964,488. Actual and projected fee collections at the current fee rate of $22.90 per million are $1,601,107,658.
2. Estimate the amount of assessments on security futures products collected from September 1, 2022 through August 31, 2023. The only entity reporting assessable security futures products ceased operations in September, 2020.
3. Subtract the amount $1,601,107,658 from the target off-setting collection amount set by Congress of $2,209,770,000, leaving $608,662,342 to be collected on dollar volume for the period February 27, 2023 through August 31, 2023.
4. Use Table A to estimate dollar volume for the period February 27, 2023 through August 31, 2023. The estimate is $76,211,125,379,350. Finally, compute the fee rate required to produce the additional $608,662,342 in revenue. This rate is $608,662,342 divided by $76,211,125,379,350 or 0.00000798653.
5. Round the result to the seventh decimal point, yielding a rate of 0.00000800 (or $8.00 per million).
This table summarizes the estimates of the aggregate dollar amount of covered sales, by time period. The figures in this table can be used to determine the new fee rate.
On May 13, 2022, the Operating Committee for Consolidated Audit Trail, LLC (“CAT LLC”), on behalf of the Participants
On August 30, 2022, the Commission instituted proceedings pursuant to Rule 608(b)(2)(i) of Regulation NMS
Rule 608(b)(2)(ii) of Regulation NMS provides that the time for conclusion of proceedings to determine whether a national market system plan or proposed amendment should be disapproved may be extended for an additional period up to 60 days (up to 300 days from the date of notice publication) if the Commission determines that a longer period is appropriate and publishes the reasons for such determination or the plan participants consent to the longer period.
The Commission finds that it is appropriate to designate a longer period within which to conclude proceedings regarding the Proposed Amendment, as modified by Partial Amendment No. 1, so that it has sufficient time to consider the proposed modifications and the justifications provided in support thereof, and the comments received. Accordingly, pursuant to Rule 608(b)(2)(ii) of Regulation NMS,
By the Commission.
Notice is hereby given of the following determinations: I hereby determine that certain objects being imported from abroad pursuant to agreements with their foreign owners or custodians for temporary display in the exhibition “The Sassoons” at The Jewish Museum, New York, New York; the exhibition “Styled by Sargent” at the Museum of Fine Arts, Boston, in Boston, Massachusetts; and at possible additional exhibitions or venues yet to be determined, are of cultural significance, and, further, that their temporary exhibition or display within the United States as aforementioned is in the national interest. I have ordered that Public Notice of these determinations be published in the
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.
On February 8, 2022, notice was published on page 7230 of 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,
Portland & Western Railroad, Inc. (PNWR), has filed a verified notice of exemption under 49 CFR part 1152 subpart F—
PNWR has certified that: (1) No local or overhead traffic has moved over the Line since November 2015; (2) as the Line is stub-ended, there is no overhead traffic to be rerouted; (3) no formal complaint filed by a user of rail service on the Line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the Line either is pending with the Surface Transportation Board (Board) or with any U.S. District Court, or has been decided in favor of a complainant within the two-year period; and (4) the requirements at 49 CFR 1105.7(b) and 1105.8(c) (notice of environmental and historic reports),
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received,
All pleadings, referring to Docket No. AB 541 (Sub-No. 3X), 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 PNWR's representative, Justin J. Marks, Clark Hill PLC, 1001 Pennsylvania Ave. NW, Suite 1300 South, Washington, DC 20004.
If the verified notice contains false or misleading information, the exemption is void ab initio.
PNWR has filed a combined environmental and historic report that addresses the potential effects, if any, of the abandonment on the environment and historic resources. OEA will issue a Draft Environmental Assessment (Draft EA) by January 31, 2023. The Draft EA will be available to interested persons on the Board's website, by writing to OEA, or by calling OEA at (202) 245-0294. Assistance for the hearing impaired is available through the Federal Relay Service at (800) 877-8339. Comments on environmental or historic
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), PNWR shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the Line. If consummation has not been effected by PNWR's filing of a notice of consummation by January 26, 2024, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available at
By the Board, Mai T. Dinh, Director, Office of Proceedings.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Grant of petition for exemption.
This document grants in full the General Motors, LLC's (GM) petition for exemption from the Federal Motor Vehicle Theft Prevention Standard (theft prevention standard) for its Buick Envista line beginning in model year (MY) 2024. The petition is granted because the agency has determined that the antitheft device to be placed on the line as standard equipment is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the theft prevention standard.
The exemption granted by this notice is effective beginning with the 2024 model year.
Carlita Ballard, Office of International Policy, Fuel Economy, and Consumer Programs, NHTSA, West Building, W43-439, NRM-310, 1200 New Jersey Avenue SE, Washington, DC 20590. Ms. Ballard's phone number is (202) 366-5222. Her fax number is (202) 493-2990.
Under 49 U.S.C. chapter 331, the Secretary of Transportation (and the National Highway Traffic Safety Administration (NHTSA) by delegation) is required to promulgate a theft prevention standard to provide for the identification of certain motor vehicles and their major replacement parts to impede motor vehicle theft. NHTSA promulgated regulations at 49 CFR part 541 (theft prevention standard) to require parts-marking for specified passenger motor vehicles and light trucks. Pursuant to 49 U.S.C. 33106, manufacturers that are subject to the parts-marking requirements may petition the Secretary of Transportation for an exemption for a line of passenger motor vehicles equipped with an antitheft device as standard equipment that the Secretary decides is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements. In accordance with this statute, NHTSA promulgated 49 CFR part 543, which establishes the process through which manufacturers may seek an exemption from the theft prevention standard.
49 CFR 543.5 provides general submission requirements for petitions and states that each manufacturer may petition NHTSA for an exemption of one vehicle line per model year. Among other requirements, manufacturers must identify whether the exemption is sought under section 543.6 or section 543.7. Under section 543.6, a manufacturer may request an exemption by providing specific information about the antitheft device, its capabilities, and the reasons the petitioner believes the device to be as effective at reducing and deterring theft as compliance with the parts-marking requirements. Section 543.7 permits a manufacturer to request an exemption under a more streamlined process if the vehicle line is equipped with an antitheft device (an “immobilizer”) as standard equipment that complies with one of the standards specified in that section.
(1) The performance criteria (subsections 8 through 21) of C.R.C, c. 1038.114, Theft Protection and Rollaway Prevention (in effect March 30, 2011), as excerpted in appendix A of [part 543];
(2) National Standard of Canada CAN/ULC-S338-98, Automobile Theft Deterrent Equipment and Systems: Electronic Immobilization (May 1998);
(3) United Nations Economic Commission for Europe (UN/ECE) Regulation No. 97 (ECE R97), Uniform Provisions Concerning Approval of Vehicle Alarm System (VAS) and Motor Vehicles with Regard to Their Alarm System (AS) in effect August 8, 2007; or
(4) UN/ECE Regulation No. 116 (ECE R116), Uniform Technical Prescriptions Concerning the Protection of Motor Vehicles Against Unauthorized Use in effect on February 10, 2009.
Section 543.8 establishes requirements for processing petitions for exemption from the theft prevention standard. As stated in section 543.8(a), NHTSA processes any complete exemption petition. If NHTSA receives an incomplete petition, NHTSA will notify the petitioner of the deficiencies. Once NHTSA receives a complete petition the agency will process it and, in accordance with section 543.8(b), will grant the petition if it determines that, based upon substantial evidence, the standard equipment antitheft device is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of Part 541.
Section 543.8(c) requires NHTSA to issue its decision either to grant or to deny an exemption petition not later than 120 days after the date on which a complete petition is filed. If NHTSA does not make a decision within the 120-day period, the petition shall be deemed to be approved and the manufacturer shall be exempt from the standard for the line covered by the petition for the subsequent model year.
Sections 543.8(f) and (g) apply to the manner in which NHTSA's decisions on petitions are to be made known. Under section 543.8(f), if the petition is sought under section 543.6, NHTSA publishes a notice of its decision to grant or deny the exemption petition in the
This grant of petition for exemption considers General Motors, LLC's (GM) petition for its Buick Envista vehicle line beginning in MY 2024.
Pursuant to 49 CFR part 543,
More specifically, section 543.6(a)(1) requires petitions to include a statement that an antitheft device will be installed as standard equipment on all vehicles in the line for which the exemption is sought. Under section 543.6(a)(2), each petition must list each component in the antitheft system, and include a diagram showing the location of each of those components within the vehicle. As required by section 543.6(a)(3), each petition must include an explanation of the means and process by which the device is activated and functions, including any aspect of the device designed to: (1) facilitate or encourage its activation by motorists; (2) attract attention to the efforts of an unauthorized person to enter or move a vehicle by means other than a key; (3) prevent defeating or circumventing the device by an unauthorized person attempting to enter a vehicle by means other than a key; (4) prevent the operation of a vehicle which an unauthorized person has entered using means other than a key; and (5) ensure the reliability and durability of the device.
In addition to providing information about the antitheft device and its functionality, petitioners must also submit the reasons for their belief that the antitheft device will be effective in reducing and deterring motor vehicle theft, including any theft data and other data that are available to the petitioner and form a basis for that belief,
The following sections describe GM's petition information provided pursuant to 49 CFR part 543,
In a petition originally dated September 12, 2022, GM requested an exemption from the parts-marking requirements of the theft prevention standard for the Buick Envista vehicle line beginning with MY 2024.
In its petition, GM provided a detailed description and diagram of the identity, design, and location of the components of the antitheft device for its Buick Envista vehicle line. Key components of the antitheft device include an electronically-coded ignition key, PASS-Key III+ controller, integrated within the body control module (BCM), engine control module (ECM), passive entry passive start (PEPS) module, a radio frequency (RF) receiver, three passive low frequency antennas, and an active low-frequency antenna. GM stated that the PASS-Key III+ immobilizer device is designed to be active at all times without direct intervention by the vehicle operator.
Pursuant to section 543.6(a)(3), GM explained that its PASS-Key III+ system is activated immediately after the ignition has been turned off and the key has been removed and deactivation of the antitheft device occurs automatically when the engine is started.
GM stated that the Buick Envista vehicle line will be installed with the PASS-Key III+ as standard equipment on its entire vehicle line. GM stated that with its “keyless” ignition system, an electronic key fob performs normal remote keyless entry functions and communicates with the vehicle without direct owner intervention. Specifically, during operation of the vehicle, when the owner presses the engine start/stop switch, the vehicle transmits a randomly generated challenge and vehicle identifier within the passenger compartment of the vehicle via three low-frequency antennas, controlled by the PEPS module. The electronic key receives the data and if the vehicle identifier matches that of the vehicle, the electronic key will calculate the response to the vehicle using the challenge and secret information shared between the key and the vehicle. The electronic key then transmits the response via a radio frequency channel to a vehicle mounted receiver, conveying the information to the PASS-Key III+ control module. The PASS-Key III+ control module compares the received response with an internally calculated response. If the values match, the device will allow the vehicle to enter functional modes and transmit a fixed code pre-release password to the engine controller over the serial data bus, and enable computation and communication of a response to any valid challenge received from the engine controller. If a valid key is not detected, the system will not transmit a fixed code pre-release password to the engine controller and fuel will not be delivered to the engine and the starter will not be enabled, so the vehicle will be immobilized.
As required in section 543.6(a)(3)(v), GM provided information on the reliability and durability of its proposed device as required by section. To ensure reliability and durability of the device, GM followed its own standards in assessing reliability and conducted tests to validate the integrity, durability and reliability of the PASS-Key III+ device, including tests for high temperature storage, low temperature storage, thermal shock, humidity, frost, salt fog, flammability and others. GM further stated that the design and assembly processes of the PASS-Key III+ subsystem and components are validated for 10 years of vehicle life and 150,000 miles of performance.
GM believes that its antitheft device will be as effective as or more effective than the parts-marking requirement in reducing and deterring vehicle theft, and in accordance with 49 CFR 543.6(a)(5), GM referenced data provided by the American Automobile Manufacturers Association (AAMA) in support of the effectiveness of GM's PASS-Key devices in reducing and deterring motor vehicle theft, and stated that the PASS-Key III+ device has been designed to enhance the functionality and theft protection provided by its first, second and third generation PASS-Key, PASS-Key II, and PASS-Key III devices. Specifically, GM stated that data which provide the basis for GM's confidence that the PASS-Key III+ system will be effective in reducing and deterring motor vehicle theft are contained in the response of the American Automobile Manufacturers Association (AAMA) to Docket 97-042; Notice I (NHTSA Request for Comments on its preliminary Report to Congress on the effects of the Anti Car Theft Act of 1992 and the Motor Vehicle Theft Law
GM also stated that theft rate data have indicated a decline in theft rates for vehicle lines equipped with comparable devices that have received full exemptions from the parts-marking requirements. GM stated that the theft rate data, as provided by the Federal Bureau of Investigation's National Crime Information Center (NCIC) and compiled by the agency, show that theft rates are lower for exempted GM models equipped with the PASS-Key-like systems than the theft rates for earlier models with similar appearance and construction that were parts-marked.
GM stated that the theft rate data from NHTSA's vehicle theft rate search were used to plot the Chevrolet Equinox theft rate for the available years 2005-2014. GM stated that the Equinox is an SUV of similar size which is equipped with the PASS-Key III+ system. GM also stated that the theft rate dropped after the parts-marking exemption was granted in 2009.
GM believes that the agency should find that inclusion of PASS-Key III+ as standard equipment on the 2024 Buick Envista vehicle line is sufficient to qualify this vehicle line for full exemption from 49 CFR part 541 requirements. This belief is supported not only by GM's proven success in reducing the theft rates of its carlines, but also by the high value the agency itself places on “passive activation” as a functional dimension of theft deterrent systems.
Based on the performance of the PASS-Key, PASS-Key II, and PASS-Key III devices on other GM models, and the advanced technology utilized in PASS-Key III+, GM believes that the PASS-Key III+ device will be more effective in deterring theft than the parts-marking requirements of 49 CFR part 541.
Pursuant to 49 U.S.C. 33106 and 49 CFR 543.8(b), the agency grants a petition for exemption from the parts-marking requirements of part 541, either in whole or in part, if it determines that, based upon substantial evidence, the standard equipment antitheft device is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of part 541. The agency finds GM has provided adequate reasons for its belief that the antitheft device for its vehicle line is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the theft prevention standard. This conclusion is based on the information GM provided about its antitheft device. NHTSA believes, based on GM's supporting evidence, the antitheft device described for its vehicle line is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the theft prevention standard.
The agency concludes that GM's antitheft device will provide four of the five types of performance features listed in section 543.6(a)(3):
The agency notes that 49 CFR part 541, Appendix A-1, identifies those lines that are exempted from the Theft Prevention Standard for a given model year. 49 CFR 543.8(f) contains publication requirements incident to the disposition of all part 543 petitions. Advanced listing, including the release of future product nameplates, the beginning model year for which the petition is granted and a general description of the antitheft device is necessary in order to notify law enforcement agencies of new vehicle lines exempted from the parts-marking requirements of the Theft Prevention Standard.
If GM decides not to use the exemption for its requested vehicle line, the manufacturer must formally notify the agency. If such a decision is made, the line must be fully marked as required by 49 CFR 541.5 and 541.6 (marking of major component parts and replacement parts).
NHTSA notes that if GM wishes in the future to modify the device on which this exemption is based, the company may have to submit a petition to modify the exemption. Section 543.8(d) states that a part 543 exemption applies only to vehicles that belong to a line exempted under this part and equipped with the antitheft device on which the line's exemption is based. Further, section 543.10(c)(2) provides for the submission of petitions “to modify an exemption to permit the use of an antitheft device similar to but differing from the one specified in the exemption.”
The agency wishes to minimize the administrative burden that section 543.10(c)(2) could place on exempted vehicle manufacturers and itself. The agency did not intend in drafting part 543 to require the submission of a modification petition for every change to the components or design of an antitheft device. The significance of many such changes could be de minimis. Therefore, NHTSA suggests that if GM contemplates making any changes, the effects of which might be characterized as de minimis, it should consult the agency before preparing and submitting a petition to modify.
For the foregoing reasons, the agency hereby grants in full GM's petition for exemption for the Buick Envista vehicle line from the parts-marking requirements of 49 CFR part 541, beginning with its MY 2024 vehicles.
Issued under authority delegated in 49 CFR 1.95 and 501.8.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning the collection of information required to obtain the benefit of using revisions to FHA loan limits to determine average area purchase prices.
Written comments should be received on or before March 27, 2023 to be assured of consideration.
Direct all written comments to Andres Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or by email to
Requests for additional information or copies of the revenue procedure should be directed to Kerry Dennis at (202) 317-5751, or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet, at
The following paragraph applies to all the collections of information covered by this notice.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained if their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning the IRS Taxpayer Burden Surveys to be fielded between 6/1/2023 and 5/31/2025.
Written comments should be received on or before March 27, 2023 to be assured of consideration.
Direct all written comments to Andres Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224 or by email to
Requests for additional information or copies of the regulations should be directed to Sara Covington, (202)317-5744, at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet, at
Changes in tax regulations, tax administration, tax preparation methods, and taxpayer behavior continue to alter the amount and distribution of taxpayer burden. Data from updated surveys will better reflect the current tax rules and regulations, the increased usage of tax preparation software, increased efficiency of such software, changes in tax preparation regulations, the increased use of electronic filing, the behavioral response of taxpayers to the tax system, the changing use of services, both IRS and external, and related information collection needs.
The following paragraph applies to all the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained if their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Comments submitted in response to this notice will be summarized and/or included in the ICR for OMB approval of the extension of the information collection; they will also become a matter of public record.
Departmental Offices, U.S. Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The public is invited to submit comments on these requests.
Comments should be received on or before February 27, 2023 to be assured of consideration.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of the submissions may be obtained from Melody Braswell by emailing
Departmental Offices, Department of the Treasury.
Notice of information collection, request for comment.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The public is invited to submit comments on these requests.
Comments should be received on or before February 27, 2023 to be assured of consideration.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of the submissions may be obtained from Melody Braswell by emailing
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration, Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before March 27, 2023.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Maribel Aponte, Office of Enterprise and Integration, Data Governance Analytics (008), 1717 H Street NW, Washington, DC 20006, (202) 266-4688 or email
Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA'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 respondents, including through the use of automated collection techniques or the use of other forms of information technology.
The major use of the form is to determine a borrower's financial condition in connection with efforts to reinstate a seriously defaulted, guaranteed, insured, or portfolio loan. VA Loan Technicians mail this form out when reviewing borrowers for a VA Refund (also referred to as a VA Purchase) pursuant to 38 CFR 36.4320, and when completing other supplemental servicing activities.
By direction of the Secretary.
Veterans Heath Administration, Department of Veterans Affairs.
Notice; withdrawal.
On January 19, 2023, the Veterans Heath Administration (VHA), published a notice in the
As of January 23, 2023, the FR notice published at 88 FR 3779 on Friday, January 20, 2023, is withdrawn.
Maribel Aponte, Office of Enterprise and Integration, Data Governance Analytics (008), 810 Vermont Ave. NW, Washington, DC 20006, (202) 266-4688 or email
FR Doc. 2023-01003, published on Friday, January 20, 2023 (88 FR 3779), is withdrawn by this notice.
By direction of the Secretary.
(a) The Secretary of HHS, in consultation with the Attorney General and the Secretary of Homeland Security, shall consider:
(b) The Attorney General, the Secretary of Homeland Security, and the Secretary of HHS shall, as appropriate, provide the Interagency Task Force on Reproductive Healthcare Access, established in Executive Order 14076, with information concerning:
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) The Attorney General is authorized and directed to publish this memorandum in the
Federal Trade Commission.
Notice of Horseracing Integrity and Safety Authority (HISA) proposed rule; request for public comment.
The Horseracing Integrity and Safety Act of 2020 recognizes a self-regulatory nonprofit organization, the Horseracing Integrity and Safety Authority, which is charged with developing proposed rules on a variety of subjects. Those proposed rules and later proposed rule modifications take effect only if approved by the Federal Trade Commission. The proposed rules and rule modifications must be published in the
If approved, the HISA proposed rule would take effect immediately, and the Commission must approve or disapprove the rule by March 27, 2023. Comments must be received on or before February 9, 2023.
Interested parties may file a comment online or on paper by following the instructions in the Comment Submissions part of the
Austin King (202-326-3166), Associate General Counsel for Rulemaking, Office of the General Counsel, Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580.
The Horseracing Integrity and Safety Act of 2020
Pursuant to Section 3053(a) of the Horseracing Integrity and Safety Act of 2020 and Commission Rule § 1.142, notice is hereby given that, on December 30, 2022, the Horseracing Integrity and Safety Authority (“HISA” or the “Authority”) filed with the Federal Trade Commission a proposed Anti-Doping and Medication Control rule and supporting documentation as described in Items I, II, III, IV, and IX below, which Items have been prepared by HISA. The Office of the Secretary of the Commission determined that the filing complied with the Commission's rule governing such submissions.
The Act recognizes that the establishment of a national set of uniform standards for racetrack safety and medication control will enhance the safety and integrity of horseracing. As part of this endeavor, section 3053(a) of the Act directs the Authority to develop proposed rules relating to “(2) a list of permitted and prohibited medications, substances, and methods, including allowable limits of permitted medications, substances, and methods; (3) laboratory standards for accreditation and protocols; [. . .] (8) a description of safety, performance, and anti-doping and medication control rule violations applicable to covered horses and covered persons; (9) a schedule of civil sanctions for violations; and (10) a process or procedures for disciplinary hearings.”
With the review, input, and ultimate approval of the Anti-Doping and Medication Control Standing Committee (“ADMC”) and the Authority's Board of Directors, the proposed rules: (1) set forth a list of anti-doping and controlled medication rules; (2) set forth a list of prohibited substances and methods; (3) set forth a framework for the testing of covered horses and the investigation of possible rule violations by the Horseracing Integrity and Welfare Unit (the “Agency”); (4) set forth a framework by which laboratories will be accredited and will analyze samples for prohibited substances and markers of prohibited methods; (5) specify the civil sanctions that apply to anti-doping and controlled medication violations; (6) create procedures for disciplinary hearings, tailored to the nature of the charge. The Agency participated in the development of the proposed rule and approves of the rules as filed.
In compliance with 16 CFR 1.142(a), the Authority states that the reason for adopting the Protocol is that the Horseracing Integrity and Safety Act of 2020 (“Act”) mandates and empowers the Horseracing Integrity and Safety Authority (the “Authority”) to establish a uniform anti-doping and controlled medication program to improve the integrity and safety of horseracing in the United States (“Program”). The Equine Anti-Doping and Controlled Medication Protocol (“Protocol”) has been developed and issued by the Authority as part of that mandate. It contains or incorporates by reference rules, standards, and procedures to improve and protect the integrity and safety of horseracing in the United States by deterring and penalizing the improper administration or application of Prohibited Substances and Prohibited Methods to Covered Horses. The Protocol is split into five chapters: (1) the purpose, scope, and organization of the Protocol; (2) the Prohibited List, rules of proof, and testing and investigations; (3) the Equine Anti-Doping Rules; (4) the Equine Controlled Medication Rules; and (5) other violations and general procedure/administration.
The Protocol has intentionally divided the regulation of Anti-Doping Rule Violations and Controlled Medication Rule Violations into separate chapters to reflect the Authority's view that the treatment of such violations should be separate and distinct from each other. Anti-Doping Rule Violations involve Banned Substances or Banned Methods, which are substances/methods that should never be in a horse's system or used on a horse as they serve no legitimate treatment purpose. Conversely, Controlled Medication Rule Violations involve Controlled Medication Substances or Controlled Medication Methods, which are substances/methods that have been determined to have appropriate and therapeutic purposes, and so may be used outside the Race Period, except if specified otherwise.
The Protocol and related rules are intended to address the need for uniformity in horseracing, to protect the welfare of Covered Horses, to safeguard the integrity of horseracing, and to ensure the confidence of stakeholders (including the betting public) in the sport. Prior to the implementation of the Authority, horseracing has been regulated in the United States by the States. By its nature, this results in a lack of uniformity in the rules of horseracing, including in many vital areas of equine safety and the proper regulation of the use of prohibited substances. Congress acted to impose a comprehensive program that would effectively regulate horseracing with a common set of rules. The Protocol was developed in collaboration with industry experts and stakeholders who brought to the endeavor an unparalleled depth of equine safety, anti-doping, veterinary medicine, sports integrity, and compliance experience. The Protocol will provide one standard set of rules that apply to doping and medication control, laboratory drug testing methods and techniques, sample collection procedures, investigatory procedures, and hearing and adjudication procedures that will enhance the effective regulation of horse safety and medication issues.
In considering reasonable alternatives to the proposed rule or modification that may accomplish the stated objective, it is important to underline that the Authority and the development of the Protocol is unprecedented. As a consequence, there are of course countless “alternatives” on various issues, but the Authority has sought to combine the best practice elements from various sources, including rules and practices developed by the global anti-doping community, horseracing authorities (national and international), and other equine sport organizations.
The Protocol will affect Covered Persons, Covered Horses, and Covered Horseraces by ensuring that horseracing is conducted in a manner that is consistent with the highest standards of integrity and that prioritizes the safety of Covered Horses and Covered Persons. The welfare of Covered Horses is secured by rules that strictly ban and penalize the use of doping substances and methods, and that sanction the misuse of therapeutic medications. All Covered Persons are required to comply with the Protocol and related rules, and to cooperate with the Authority and the Agency in relation to all aspects of doping and medication control, including sample collection, testing, and investigation procedures. The manner in which the Protocol implements these requirements is outlined in detail in Item II of this Notice.
In developing the Protocol and related rules in a manner that is consistent with the Act and the rules and regulations applicable to the Authority, the Authority took the following principles and mandates into consideration, as directed by section 3055(b) of the Act:
(1) Covered Horses should compete only when they are free from the influence of medications, other foreign substances, and methods that affect their performance. The entire Protocol is dedicated to this principle, and the elaborate anti-doping and controlled medication rules work toward the objective of ensuring that Covered Horses compete in a manner that is free of the influence of doping substances, medications, and methods that affect their performance. The Prohibited List and related Technical Document prescribe the substances and methods that are prohibited and permitted under certain circumstances. The Standards (Rules 5000 and 6000 Series) set out comprehensive investigatory and sample collection provisions and an accreditation system that ensures accurate laboratory testing, and the Arbitration Procedures establish a set of disciplinary procedures to deal fairly but firmly with violations of the rules.
(2) Covered Horses that are injured or unsound should not train or participate in covered races, and the use of medications, other foreign substances, and treatment methods that mask or deaden pain in order to allow injured or unsound horses to train or race should be prohibited. In the Protocol, Rule 3111 operates together with the Prohibited List to ban substances and methods for which there exists medical, veterinary, or other scientific evidence or experience to a support their actual or potential masking properties (“Banned Substances” and “Banned Methods”) and to restrict the use of medications during the Race Period (“Controlled Medication Substances” and “Controlled Medication Methods”). Certain Controlled Medication Substances are also prohibited during workouts, as set out in the Prohibited List. The Protocol also operates in conjunction with the Rule 2000 Racetrack Safety Program, which sets forth stringent rules for placing Covered Horses on the Veterinarians' List and requires the Regulatory Veterinarian to oversee removal from the list. These processes help to ensure that injured and unsound horses do not train or participate in Covered Horseraces. It should also be noted that Rule 2271 in the Racetrack Safety Program prohibits the “[u]se of physical or veterinary procedures to mask the effects or signs of injury so as to allow training or racing to the detriment of the Horse's health and welfare.”
(3) Rules, standards, procedures, and protocols regulating medication and treatment methods for Covered Horses and Covered Horseraces should be uniform and uniformly administered nationally. The Protocol preempts state laws and provides instead a uniform set of comprehensive rules that embrace all of the areas previously addressed in state anti-doping and medication
(4) Consideration should be given to international anti-doping and medication control standards of the International Federation of Horseracing Authorities (“IFHA”) and the Principles of Veterinary Medical Ethics of the American Veterinary Medical Association. As directed by the Act, the ADMC has scrutinized the IFHA standards and rules very closely and also considered the Principles of Veterinary Medical Ethics of the American Veterinary Medical Association in preparing the Protocol. The World Anti-Doping Code also provided much of the inspiration for the Protocol, adapted as necessary for horseracing, taking into account national and international horseracing rules and Equine Anti-Doping and Controlled Medication Regulations of the International Equestrian Federation (
(5) The administration of medications and treatment methods to Covered Horses should be based upon an examination and diagnosis that identifies an issue requiring treatment for which the medication or method represents an appropriate component of treatment. The Protocol addresses the requirement for a sound diagnosis as a prerequisite for treatment and the need for such treatment not to be administered in a manner contrary to horse welfare. Specifically, Rule 3040(b)(3) states that it is the personal responsibility of each Responsible Person to ensure that treatments and medications administered to his or her Covered Horses (i) are administered only on the advice of a Veterinarian or (if a prescription is not required) following sufficient due diligence regarding the treatment or medication; (ii) are not administered in a manner detrimental or contrary to horse welfare; (iii) are the minimum necessary to address the diagnosed health concerns identified during the veterinary examination and diagnostic process; (iv) do not contain a Banned Substance or involve a Banned Method; and (v) do not otherwise violate the Protocol. Further, Rule 3314 penalizes use of a Controlled Medication Substance or Method in a manner that is contrary to horse welfare. In particular, Rule 3314(a) specifically mandates that any use of a Controlled Medication Substance or a Controlled Medication Method on a Covered Horse must “(i) be justified by the Covered Horse's medical condition(s) as diagnosed by a Veterinarian, (ii) have been recommended by a Veterinarian in the context of a valid veterinarian-patient-client relationship, (iii) go no further than the minimum necessary to address the diagnosed health concerns, and (iv) be in the best interests of the Covered Horse's health and welfare.” Rule 3314(b) also states that it is “the personal and non-delegable duty of the Responsible Person” to ensure the above requirements in Rule 3314(a) are complied with. The Protocol also establishes in Rules 3227 and 3327 that an aggravating circumstance that may be taken into account in assessing sanctions for a rule violation may include “administration of a Controlled Medication Substance that is detrimental to the health and welfare of the horse or is designed to deceive the betting public.” It should also be noted that Rule 2221 (of the previously approved Racetrack Safety Rule) also establishes examination and diagnoses requirements in the context of the veterinarian-client-patient relationship.
(6) The amount of therapeutic medication that a Covered Horse receives should be the minimum necessary to address the diagnosed health concerns identified during the examination and diagnostic process. As noted above, Rule 3040(b)(3) and Rule 3314 specifically address the requirement that any use of a Controlled Medication Substance or a Controlled Medication Method on a Covered Horse must go no further than “the minimum necessary to address the diagnosed health concerns.”
(7) The welfare of Covered Horses, the integrity of the sport, and the confidence of the betting public require full disclosure to regulatory authorities regarding the administration of medications and treatments to Covered Horses. The Protocol addresses this issue in several ways. It requires all Covered Persons to cooperate promptly and completely with the Authority and the Agency in the exercise of their respective powers under the Act and the Protocol and related rules (Rule 3040(a)). Each Responsible Persons is required to maintain accurate, complete, and up-to-date treatment records of his or her Covered Horses in a form specified by the Agency, and to provide the records on request to the Agency (Rule 3040(b)(8)). Responsible Persons must declare to the Agency any use of Banned Substances or Banned Methods on a horse prior to it becoming a Covered Horse (Rule 3040(b)(9)). To facilitate out-of-competition testing, Responsible Persons must file whereabouts information if their Covered Horses are moved to a private facility (Rule 3040(b)(10)). Attending Veterinarians must keep updated treatment records in an electronic database designated by the Agency or in any other form designated by the Agency and must provide access on request to copies of these records (Rule 3040(d)). Refusal or failure to cooperate with the Authority or the Agency, or the commission of a Whereabouts Failure, constitutes a violation of the Protocol under Rule 3510. Several provisions in the Rule 2000 Series complement the Protocol's disclosure requirements. Rule 2551, for example, requires every Veterinarian who examines or treats a Covered Horse to submit to the Authority, within 24 hours of such examination or treatment medications, treatment records with details as prescribed in the Rule.
In further compliance with the Act, the Protocol establishes a comprehensive set of violations and hearing procedures to prohibit certain conduct, to provide a process for determining the existence of a violation; of charging a Covered Person with a violation; and with resolving the matter in a full and fair hearing process. The Protocol authorizes the imposition of sanctions that comport with the severity of the violation. Consistent with 15 U.S.C. 3057(d)(2), the violation and sanction system is tailored to the unique aspects of horseracing in that it has the power to declare a Covered Person or Covered Horse ineligible to race for a specified time, imposes substantial fines upon Covered Persons, and establishes a points system to implement a system of penalties for multiple violations of the Protocol. These penalties are common in the adjudication and sanction of violations in the world of horseracing. The sanctions also include forfeiture of purse, disqualification of horses, and changes to the order of finish in horse races. The elaborate hearing procedures and penalty rules ensure that violations are consistently and fairly penalized, which in turn deters future violations, and maintains the integrity and conduct of fair and transparent horseraces. Effective sample collection and testing techniques, as set forth in Rule Series 5000 and 6000 also serve to enhance successful prosecution of violations, which deter future violations. The goal of transparency is also served by operation of the public disclosure rules in the Protocol, which
The components of the Protocol and related rules comport with the baseline standards in 15 U.S.C. 3055(g)(2)(a), which include: (1) the lists of permitted and prohibited substances (including drugs, medications, and naturally occurring substances and synthetically occurring substances) in effect for the International Federation of Horseracing Authorities, including the International Federation of Horseracing Authorities International Screening Limits for urine, dated May 2019, and the International Federation of Horseracing Authorities International Screening Limits for plasma, dated May 2019; (2) the World Anti-Doping Agency International Standard for Laboratories (version 10.0), dated November 12, 2019; (3) the Association of Racing Commissioners International out-of-competition testing standards, Model Rules of Racing (version 9.2); and (4) the Association of Racing Commissioners International penalty and multiple medication violation rules, Model Rules of Racing (version 6.2). Any deviations from the baseline standards have been approved by the Authority and the Agency following detailed consideration and adoption of an approach that is either stricter or more consistent with horseracing.
The Horseracing Integrity and Safety Act of 2020, 15 U.S.C. 3051 through 3060.
Anti-doping and controlled medication rules currently vary from State to State, but the overall structure of the rules governing horseracing is generally consistent among the States. In particular, the rules of horseracing center around a number of common subject areas, including the licensing of racing associations and of individual participants in horseracing, medication control rules, pari-mutuel wagering rules, the operation of various incentive funds, rules concerning the running of the race, and rules establishing disciplinary measures and hearing procedures. The basic precepts of many of the rules pertaining to violations, sanctions, hearing procedures, and investigatory powers have been in force in racing states for many years, and the Authority has reviewed and considered key provisions from numerous states in developing these rules.
The Association of Racing Commissioners International (“ARCI”) sets forth standards and protocols in its Model Rules of Racing (“ARCI Rules”). Relying upon the collective expertise of regulatory personnel in member jurisdictions in consultation with regulated entities, industry stakeholders, and individuals, ARCI committees regularly consider ways to improve and enhance the regulation of racing. The Authority considered the ARCI Model Rules of Racing when developing the Protocol and related rules. Likewise, the Authority considered rules from other racing jurisdictions such as the British Horseracing Authority's Rules of Racing.
The Authority also considered and relied heavily on international anti-doping standards, including the World Anti-Doping Code (applicable to human athletes) and the International Equestrian Federation (“FEI”) Equine Anti-Doping and Controlled Medication Regulations (applicable at the international level to various equestrian disciplines). Those regulations provide a robust anti-doping framework that has been tested before arbitration tribunals for many years, and that has generated a well-developed body of precedent and guidance for interpreting the provisions in those frameworks.
The Authority, in consultation with the ADMC and the Agency, reviewed these existing standards and tailored them to the Authority's regulatory structure and goals, and to the specificities of horseracing.
The provisions of these Series were made publicly available on the Authority website at
Chapter I of the Protocol has been developed taking account of the requirements of the Act, including, in particular, those set out at sections 3054 and 3055 of the Act.
The Protocol will go into effect if and when the Commission approves the proposed rule. The Protocol contains or incorporates by reference rules, standards, and procedures to improve and protect the integrity and safety of horseracing in the United States by deterring and penalizing the improper administration or application of Prohibited Substances and Prohibited Methods to Covered Horses. The Protocol is divided into five substantive chapters: (1) the purpose, scope, and organization of the Protocol; (2) the Prohibited List, rules of proof, and testing and investigations; (3) the Equine Anti-Doping Rules; (4) the Equine Controlled Medication Rules; and (5) other violations and general procedure/administration.
The Protocol has intentionally divided the regulation of Anti-Doping Rule Violations and Controlled Medication Rule Violations into separate chapters to reflect the Authority's view that the treatment of such violations should be separate and distinct from each other. Anti-Doping Rule Violations involve Banned Substances or Banned Methods, which are substances/methods that should never be in a horse's system or used on a horse as they serve no legitimate treatment purpose. Conversely, Controlled Medication Rule Violations involve Controlled Medication Substances or Controlled Medication Methods, which are substances/methods that have been determined to have appropriate and therapeutic purposes, and so may be used outside the Race Period, except if specified otherwise. This division accords with international best practices. However, the two distinct processes share many common features and rules, and therefore the Protocol is streamlined to make the processes consistent with each other wherever possible.
The Protocol will be implemented and enforced on behalf of the Authority by the Agency, which has created an entity designated as the Horseracing Integrity and Welfare Unit (“Agency”). In addition, and only where so agreed, State Racing Commissions acting under the delegated authority of the Authority
In accordance with section 3055(a)(1) of the Act, the Protocol applies to all Covered Horses, Covered Persons, and Covered Horseraces (Rule 3020). Pursuant to section 3054 of the Act, Covered Persons must register with the Authority.
In developing the Protocol, the Authority reviewed and considered various anti-doping and controlled medication rules, including:
The Protocol incorporates the Prohibited List, which identifies the Banned Substances and Banned Methods that are prohibited at all times on the basis of the Agency's determination that medical, veterinary, or other scientific evidence or experience supports their actual or potential (i) ability to enhance the performance in Covered Horses, (ii) masking properties, or (iii) detrimental impact on horse welfare. The Prohibited List also identifies Controlled Medication Substances and Controlled Medication Methods, which are prohibited for Use on or Administration to a Covered Horse during the Race Period and must not be present in a Post-Race Sample or Post-Work Sample, except as specified otherwise. In other words, the phrase “Prohibited Substances and Prohibited Methods” refers to Banned Substances and Banned Methods as well as Controlled Substances and Controlled Medication Methods that are only restricted during the Race Period. The Prohibited List will be published at least annually (Rule 3112).
The Prohibited List is supplemented by the “Technical Document—Prohibited Substances,” which enumerates the Prohibited Substances that fall into the general categories listed in the Prohibited List and sets forth detection times, screening limits, and thresholds for those Prohibited Substances. The Technical document also designates certain Prohibited Substances as Specified Substances, which are those that pose a higher risk of being the result of contamination and that are, therefore, subject to more flexible sanctions.
In disciplinary cases brought under the Protocol, the Agency will have the burden of establishing that a violation of the Protocol has occurred to the comfortable satisfaction of the hearing panel, bearing in mind the seriousness of the allegation made (Rule 3121), and facts may be established by any reliable means (Rule 3122). The “comfortable satisfaction” standard of proof is greater than a mere balance of probability (
Only the Agency (and those authorized by the Agency) may initiate and direct testing on any Covered Horse. The Agency will have broad authority to conduct testing both in and out of competition (Rule 3132), and samples collected will be owned by the Authority (Rule 3135). Samples obtained from Covered Horses will be analyzed primarily to detect the presence of Prohibited Substances (Rule 3137).
State Racing Commissions, Racetracks, Race Organizers, and Training Facilities shall not initiate or direct any Testing of Covered Horses. However, they may request that the Agency initiate and direct enhanced or additional Testing (
The Equine Anti-Doping Rules set out in Chapter III of the Protocol apply to conduct involving Banned Substances or Banned Methods,
As directed by the Act, the Authority has developed a list of civil sanctions for Anti-Doping Rule Violations. The Protocol and Prohibited List establish uniform rules imposing civil sanctions against Covered Persons and Covered Horses for Anti-Doping Rule Violations (and also for Controlled Medication Rule Violations, addressed under chapter IV of the Protocol), as directed by section 3057(d) of the Act. The range of civil sanctions (a) take into account the unique aspects of horseracing; (b) are designed to ensure fair and transparent Covered Horseraces; and (c) are intended to deter violations. The severity of the sanctions depends on the nature of the violation, and allows an opportunity for adjustment in penalty depending on the violation and facts involved.
A mandatory part of each sanction will include Public Disclosure of relevant information, including the Covered Person's name, the violation, and consequences imposed (Rules 3231 and 3620).
If the violation arises from a Post-Race Sample or occurs during the Race Period, the Covered Horse's results at that Covered Horserace will automatically be disqualified, because the horse competed with a Banned Substance in its system, irrespective of the reason why the Banned Substance was there or any degree of fault on the part of the Covered Person (Rule 3221(a)). Subsequent results may also be disqualified (Rule 3221(b)) and in any case of disqualification, all purses and other compensation, prizes, trophies, points, and rankings are forfeited and must be repaid or surrendered to the race organizer, and the results of the other Covered Horses in the race in question must be adjusted accordingly (Rule 3221(c)).
The Protocol now also specifies what happens to the race classification pending the outcome of the disciplinary proceedings (Rules 3221 and 3321). Further, Rule 3221(a) allows for the Agency, the Responsible Person, and the
In presence or use cases, the Covered Horse will be subject to a period of ineligibility, the length of which depends on the particular Banned Substance(s) detected, as set out in the Prohibited List. During any period of ineligibility, the Covered Horse shall not participate in any Workout or Covered Horserace, but will remain subject to testing (Rule 3229).
The Covered Person will be sanctioned with a period of ineligibility commensurate to his or her level of fault, in accordance with a detailed sanctioning framework. The starting point for presence, use, possession, or administration violations is a period of ineligibility of two years, subject to elimination or reduction if the Covered Person can demonstrate that he or she bears no or no significant fault or negligence, or subject to increase if aggravating circumstances are present (Rules 3223(b), 3224, and 3225). For other violations, the rules specify other starting points or ranges for the applicable period of ineligibility that reflect the seriousness of the violation (Rule 3223(b)). The rules also provide the Authority with the ability to eliminate or reduce an applicable period of ineligibility in circumstances where a Covered Person provides Substantial Assistance or admits the violation early or in the absence of other evidence (Rule 3226). There are also increased sanctions for repeat offenders (Rule 3228). During any period of ineligibility, the Covered Person shall not participate in any capacity in any activity involving Covered Horses or in any other activity (other than authorized anti-doping education or rehabilitation programs) taking place at a Racetrack or Training Facility; nor shall he or she permit anyone to participate in any capacity on his or her behalf in any such activities (Rule 3229(a)). The Covered Horse(s) of an Owner or Trainer subject to a Provisional Suspension or period of Ineligibility shall also be subject to restrictions (Rule 3229(b)).
The Covered Person may also be required to pay a fine, depending on the violation, and some or all of the Agency's legal costs (Rule 3223(b)).
Where a Covered Person is found based on the same facts to have committed a violation involving both (i) one or more Banned Substance(s) or Banned Method(s), and (ii) one or more Controlled Medication Substance(s) or Controlled Medication Method(s), the Covered Person shall be considered to have committed one Anti-Doping Rule Violation and the sanction imposed shall be based on the Banned Substance or Banned Method that carries the most severe sanction. Rule 3227 (Aggravating Circumstances) may also be applied to increase the sanction imposed (Rule 3228(d)).
The Equine Anti-Doping Rules provide a framework for the results management of potential anti-doping rule violations, as directed by the Act. Different types of Samples may be collected from Covered Horses, including urine, blood, and hair. Unless specified otherwise in the rules, at the time of collection, the Sample will be divided into an “A” and a “B” Sample. Review of “A Sample” adverse analytical findings or other evidence leads to an initial notification by the Agency to the Covered Person that he or she may have committed an anti-doping rule violation (Rule 3245). In some cases, the Covered Person will be provisionally suspended pending determination of the matter (Rule 3247), and the “B Sample” may be tested (Rule 3246). The Covered Person is entitled to respond to the Agency's initial notification, and if he or she does, the Agency will take any comments and additional information into account before deciding whether to formally charge the Covered Person with an anti-doping rule violation and request a more formal response (Rule 3248)).
The Covered Person is entitled to have the charge determined by the Arbitral Body (the panel hearing will consist of either one or three impartial arbitrators) in accordance with the Arbitration Procedures (Series 7000). The final decision of the Arbitral Body is subject to review in accordance with the Act (Rule 3264). The rules also provide for the Agency and Covered Person to agree to a resolution to the charge without a hearing (Rule 3249).
The Equine Controlled Medication Rules set out in Chapter IV of the Protocol apply to conduct involving Controlled Medication Substances or Controlled Medication Methods (
As directed by the Act, the Authority has developed a list of civil sanctions for Controlled Medication Rule Violations. The Protocol and Prohibited List establish uniform rules imposing civil sanctions against Covered Persons and Covered Horses for Controlled Medication Rule Violations, as directed by section 3057(d) of the Act. The range of civil sanctions (a) take into account the unique aspects of horseracing; (b) are designed to ensure fair and transparent Covered Horseraces; and (c) are intended to deter violations. The severity of the sanctions depends on the nature of the violation, and allows an opportunity for adjustment depending on the violation and facts involved.
A mandatory part of each sanction will include Public Disclosure of relevant information, including the Covered Person's name, the violation, and consequences imposed (Rules 3331 and 3620).
If the violation arises from a Post-Race Sample or occurs during the Race Period, the Covered Horse's results at that Covered Horserace will automatically be disqualified, with all resulting consequences, because the horse competed with a Controlled Medication Substance in its system. The results will be automatically disqualified irrespective of the reason why the Controlled Medication Substance was detected or of any degree of fault on the part of the Covered Person (Rule 3321(a)). Subsequent results will not be disqualified (Rule 3321(b)).
The Covered Horse will not be subject to a period of ineligibility if the violation involves a Controlled Medication Substance, but may be subject to a period of ineligibility if the violation involves a Controlled Medication Method as specified in the Prohibited List (Rule 3322).
Covered Persons shall be sanctioned for any Controlled Medication Rule Violations in accordance with Rule 3323(b), depending on the category or class of the violation, and the number of violations committed within that same category/class in the previous two-year period. Presence, use, and administration violations are divided into three different classes (Class A, Class B, Class C) with Class A carrying the more severe sanctions. The sanctions for Controlled Medication Rule Violations are subject to elimination (Rule 3324), reduction (Rules 3325 and 3326), or increase (Rule 3327), depending on the violation in issue and the specific circumstances of the case.
The Protocol also establishes a multiple medication violation penalty points system for repeat offenders which takes account of violations committed in different categories/classes (Rule 3328). As directed by section 3055(g) of the Act, the Authority used the Association of Racing Commissioners International penalty and multiple medication violation rules, Model Rules of Racing, as a baseline for the multiple violations penalty points system. All adjustments and modifications to the baseline rules were approved by the Authority in consultation with the ADMC and the Agency in accordance with section 3055(g)(3) of the Act.
The penalty points system is not a substitute for the consequences that apply to the underlying Controlled Medication Rule Violations. Rather, the penalty points system is intended to apply additional uniform Consequences where the Covered Person is a repeat offender and exceeds the permissible number of points. Where the relevant cumulative point threshold is exceeded, the Covered Person shall receive an automatic additional period of ineligibility as specified in Rule 3328(c). Penalty points are assigned automatically depending on the category/class of violation in issue, save where specified otherwise in Rule 3328. Penalty points and the additional period of Ineligibility shall be applied automatically at the conclusion of the proceeding on the underlying violation, without any additional hearing or right of review. Penalty points shall be applied retroactively to start on the date on which the Controlled Medication Rule Violation occurred and shall expire after 2 years (Rule 3328(d)).
During any period of Ineligibility or Provisional Suspension, Covered Persons shall be prohibited from the same activities as anyone banned for an Anti-Doping Rule Violation. As for Anti-Doping Rule Violations, the Covered Horses of a suspended Trainer or Owner may not participate in any Timed and Reported Workout or Covered Horserace, but in contrast to Anti-Doping Rule Violations, they may participate in a Covered Horserace if they were entered in the race before the Trainer was notified of the Provisional Suspension or the period of Ineligibility was imposed (whichever is earlier) (Rule 3320(b)). Further, in contrast to Anti-Doping Rule Violations, the Covered Horses of a suspended Trainer must only be transferred to another Covered Person if the period of ineligibility imposed on the Trainer is more than 30 days (Rule 3329(b)).
The Covered Person may also be required to pay a fine depending on the category of the violation, and some or all of the Agency's legal costs (Rule 3323(b)).
The Equine Controlled Medication Rules provide a framework for the results management of potential controlled medication rule violations as directed by the Act, from review of “A Sample” adverse analytical findings or other evidence leading to an initial notification by the Agency to the Covered Person that he or she may have committed a controlled medication rule violation (Rule 3345). The Covered Person will not be provisionally suspended pending determination of the matter unless he or she voluntarily accepts a provisional suspension (Rule 3347), and the B Sample may be tested (Rule 3346). The Covered Person is entitled to respond to the Agency's initial notification, and if he or she does, the Agency will take any comments and additional information into account before deciding whether to formally charge the Covered Person with a controlled medication rule violation and request a more formal response (Rule 3348).
The Covered Person is entitled to request a hearing before the Internal Adjudication Panel. The hearing will ordinarily be conducted before a single member of the Internal Adjudication Panel, though three members may be assigned to hear the case where appropriate. The Internal Adjudication Panel may decide in its sole discretion to determine the matter on the written submissions alone without a hearing if the Internal Adjudication Panel considers itself sufficiently well-informed to render a decision on the written submissions alone. The Internal Adjudication Panel will issue a final decision, subject to review in accordance with the Act (Rules 3361-3364).
The rules also provide for the Agency and Covered Person to agree to a resolution to the charge without a hearing (Rule 3349).
Chapter V sets out additional disciplinary offenses that do not fall within the chapters on Equine Anti-Doping Rules or Equine Controlled Medication Rules (Rule 3510), and also prescribes sanctions (periods of ineligibility and fines) for those violations (Rule 3520). Those violations include engaging in disruptive or offensive conduct towards doping control personnel, refusing/failing to cooperate in full with the Authority or Agency in the discharge of his or her respective responsibilities under this Protocol, and committing a whereabouts failure (in effect, failing to provide the necessary information to enable a Covered Horse to be located for testing). Alleged violations will be determined by the Internal Adjudication Panel (Rule 3361).
In accordance with section 3057(c)(2) of the Act, the rules provide guidelines for confidentiality and public reporting of decisions (Rules 3610-3630). Rule 3710 also provides for the recognition of decisions by recognized, official third parties, for example, national horseracing authorities in other countries applying substantially similar rules (Rule 3700).
The Protocol and other Series are supported by the general rules of interpretation (Rule 1010) and a list of defined terms (Rule 1020) to assist with clarity of meaning.
As directed by sections 3053 and 3055 of the Act, the Authority has developed a list of permitted and prohibited medications, substances, and methods, including allowable limits of permitted medications, substances, and methods, using as a baseline the lists of permitted and prohibited substances (including drugs, medications, and naturally occurring substances and synthetically occurring substances) in effect for the International Federation of Horseracing Authorities (“IFHA”), including the IFHA International Screening Limits for urine and the IFHA International Screening Limits for plasma. All adjustments and modifications to the baseline rules were approved by the Authority in consultation with the
The Prohibited List identifies Prohibited Substances and Prohibited Methods that are: (a) prohibited at all times (“Banned Substances” and “Banned Methods”) on the basis of the Agency's determination that medical, veterinary, or other scientific evidence or experience supports their actual or potential (i) ability to enhance the performance in Covered Horses, (ii) masking properties, or (iii) detrimental impact on horse welfare; or (b) prohibited for Use on or Administration to a Covered Horse during the Race Period and prohibited to be present in a Post-Race Sample (which includes samples collected following a Covered Horserace or Vets' List Workout) or Post-Work Sample (which includes samples collected following a Timed and Reported Workout), except as otherwise specified in the Prohibited List (“Controlled Medication Substances” and “Controlled Medication Methods”). Prohibited Substances and Prohibited Methods may be included in the Prohibited List by general category (
The Prohibited List is supplemented by the “Technical Document—Prohibited Substances,” which enumerates the Prohibited Substances that fall into the general categories listed in the Prohibited List and sets forth detection times, screening limits, and thresholds for those Prohibited Substances. The Technical Document also designates certain Prohibited Substances as Specified Substances, which are those that pose a higher risk of being the result of contamination and that are therefore subject to more flexible sanctions.
In accordance with section 3055(d) of the Act, the use or administration of Controlled Medication Substances and Controlled Medication Methods is prohibited during the “Race Period” (
The Prohibited List and supporting Technical Document were prepared in consultation with the ADMC and the Agency, and approved by the Authority, as directed by section 3055(c)(5) of the Act. In preparing the Prohibited List and the “Technical Document—Prohibited Substances,” the Authority considered lists of prohibited substances and methods published by other organizations, including the ARCI, World Anti-Doping Agency (“WADA”), the FEI, and the British Horseracing Association. Documents considered in preparing the Prohibited List are exhibited below:
The ADMC also considered a number of scientific papers when developing the Prohibited List and supporting Technical Document:
Banned Substances and Banned Methods are set out in categories, including anabolic agents, peptide hormones and growth factors, beta-2 agonists, hormone and metabolic modulators, and diuretics and masking agents (Rule 4110). Banned Methods include blood manipulation, chemical castration or immunocastration, and gene and cell doping (Rule 4120).
Subject to exceptions specified in the Prohibited List (Rule 4212), only feed, hay, and water are permitted during the Race Period (Rule 4211(a)). Accordingly, subject to Rule 4212, any substance administered during the Race Period or present in a Post-Race Sample (including any metabolite(s), artifact(s), and isomer(s) of such substance(s)) that does not otherwise qualify as a Banned Substance shall constitute a prohibited Controlled Medication Substance. In addition, certain Controlled Medication Substances are prohibited from presence in a Post-Work Sample (Rule 4211(b)). Exceptions are provided in Rule 4212 for emergency veterinary care, for certain substances that are permitted up to 24 hours prior to Post-Time (
Controlled Medication Methods include alkalinization, intra-articular injections, and use of a nasogastric tube within specified time periods (Rule 4220).
Consistent with section 3057(d) of the Act, Rule 4300 establishes uniform rules setting out the periods of ineligibility that apply to Covered Horses implicated in Anti-Doping Rule Violations or Controlled Medication Rule Violations. The Ineligibility period ranges from zero months to lifetime bans, depending on the category of the substance or method.
Violations involving Controlled Medication Substances will not result in a period of Ineligibility for the Covered Horse. However, the Covered Horse shall be placed on the Veterinarians' List and a Vets' List Workout must be scheduled (at which the horse may be subject to Sample collection). Violations involving Controlled Medication Methods may result in a period of Ineligibility for the Covered Horse where specified in the Prohibited List at Rule 4320.
Covered Horses are not subject to increased Ineligibility periods if they are involved in multiple violations.
The “Technical Document—Prohibited Substances” supplements the Prohibited List (Rule Series 4000) and sets out additional detail concerning Prohibited Substances. The “Technical Document—Prohibited Substances,” enumerates specific Prohibited Substances that fall into the general categories listed in the Prohibited List and sets forth detection times, screening limits, and thresholds for those Prohibited Substances. The Technical Document also designates certain Prohibited Substances as Specified Substances, which are those that pose a higher risk of being the result of contamination and that are therefore subject to more flexible sanctions. The following paragraphs describe the rules and specifications applicable to certain categories of medications that vary from the baseline standards enumerated in 15 U.S.C. 3055(g).
The IFHA has published a restricted administration period that prohibits administration of anti-ulcer medications within 48 hours of the post time for the race in which the horse is entered. HISA in the Protocol recommends a 24-hour restricted administration period.
The basis for this deviation is two-fold: (1) Withdrawal intervals of greater than 24 hours have been identified as an equine welfare issue. Published research demonstrates a rebound effect when anti-ulcer medications are withdrawn for more than 24 hours with resultant ulcers more severe than those originally treated. (2) The IFHA's Advisory Council on Prohibited Substances and Practices will be revisiting the control of these substances, and it is anticipated that the international community will adopt a withdrawal interval strategy similar to the one proposed by HISA.
The IFHA has published a 48-hour Detection Time (DT) for a single NSAID—meclofenamic acid. There is no FDA-approved product containing meclofenamic acid commercially available in the United States. (It is important to note that a Detection Time is the foundation for determining a withdrawal interval, but under no circumstances should the Detection Time be equated with withdrawal guidance. The withdrawal interval is decided by the veterinarian in
The HISA Protocol establishes Screening Limits corresponding to a 48-hour Detection Time for 3 commercially available NSAIDs having FDA-approval for use in the horse. The Protocol allows the veterinarian to select one NSAID that can be administered using a withdrawal interval based on the 48-hourr Detection Time. All other NSAIDs are then controlled applying IFHA Detection Times and Screening Limits, and the detection of more than one NSAID in a horse's sample is a violation. This is philosophically consistent with the IFHA and represents a far more restrictive approach to the use of NSAIDs than currently exists in the United States.
The IFHA is silent on these substances. However, the Asian Racing Federation (a signatory to the IFHA's International Agreement on Breeding, Racing, and Wagering (IABRW)) has published a Screening Limit for methocarbamol. So there is precedent for establishing Screening Limits in addition to those provided by the IFHA. Further, the IFHA's IABRW references the adoption of Screening Limits and advises that a regulatory authority may elect to publish Detection Times.
The Screening Limits and Detection Times for methocarbamol and glycopyrrolate were derived after reviewing the Racing Medication and Testing Consortium's administration study pharmacokinetic data. The elected Screening Limits and corresponding Detection Times ensure withdrawal intervals of sufficient length to prevent the substances from having any potential to impact a horse's racing performance.
The Protocol adheres to IFHA Screening Limits, but, consistent with the requirements of IABRW Article 6, HISA has elected to adopt Detection Times that vary from those of the IFHA. In the case of ciclesonide, the Detection Time is consistent with that used by Racing Australia (also an IFHA member). For lidocaine, HISA elected to use a lower dose in determining a Detection Time, as it believed that IFHA's dosing is too permissive and potentially allows illicit low-dose use on Race Day, which may be undetectable by laboratory testing.
The European Horseracing Scientific Liaison Committee (EHSLC) has established a detection time of 240 hours (10 days) for procaine penicillin. (The EHSLC is the scientific body that the IFHA consults when developing medication control policy.) HISA has determined that the 240-hour detection time could negatively impact horse welfare, through the withholding of appropriate medical treatment. HISA has elected instead to adopt the current ARCI controls, which allow for the use of this safe and effective antibiotic up to 48 hours prior to a race, while still effectively controlling against the illicit use of procaine as a local anesthetic.
In accordance with section 3055 of the Act, the Authority has developed Equine Standards for Testing and Investigations to manage test distribution planning (including intelligence-based testing), the sample collection process, and in-competition and out-of-competition testing. The Authority considered the Association of Racing Commissioners International out-of-competition testing standards as a baseline, but also relied in large part on the WADA International Standard for Testing and Investigations, given the comprehensive nature of that standard. All adjustments and modifications to the baseline rules were approved by the Authority in consultation with the ADMC and the Agency in accordance with section 3055(g)(3) of the Act.
In preparing the standards, the Authority consulted with the Agency, the ADMC, and experts in the field to tailor the standards to horseracing. The Authority considered and relied significantly on the following rules:
The Testing and Investigations Standards sets out how the Agency will plan effective testing by using risk assessments and prioritizing between Covered Horses and types of testing (Rule 5100). As directed by section 3055(c)(4)(C) of the Act, Sample Collection Personnel will notify the Responsible Person or Nominated Person without advance notice that his or her Covered Horse has been selected for testing (Rule 5200), following—as applicable—the procedure set out at Rule 5220 depending on when the sample is collected.
Sample Collection Sessions will be conducted by suitably qualified personnel (Rule 5450), using suitable equipment (Rule 5320), in a suitable “test barn” environment (Rule 5310). Samples will be collected in accordance with Rule 5400, in particular to ensure that the sample is of suitable quality and quantity, is clearly and accurately identified, is sealed in a tamper evident kit, and has not been manipulated or tampered with. Further specific procedures and requirements apply to the collection of urine samples (Rule 5420), blood samples (Rule 5430), and hair samples (Rule 5440).
Once collected, Samples will be stored and transported by Sample Collection Personnel in a manner that protects the integrity, identity, and security of the Samples (Rules 5510 and 5520).
As directed by the Act, the Agency will put in place internal processes and procedures to ensure it is able to gather, analyze, and process anti-doping and medication control intelligence from all available sources in order to help deter and detect doping and medication abuse, to inform effective, intelligent, and proportionate test distribution planning, to plan intelligence-based Target Testing, and to conduct investigations (Rule 5600).
Further, the Agency will conduct efficient and effective investigations into (among other things) atypical findings and other sample abnormalities, and other analytical or non-analytical information or intelligence. The purpose of such investigations is to either rule out or develop evidence that supports an anti-doping or controlled medication rule violation or other violation of the Protocol (Rule 5710). The Agency will make use of all investigative resources available to it, which may include obtaining information from law enforcement authorities and other
As directed by sections 3053, 3055, and 3057 of the Act, the Authority has developed the Equine Standards for Laboratories and Accreditation (“Laboratory Standards”) using the WADA International Standard for Laboratories as a baseline. All adjustments and modifications to the baseline rules were approved by the Authority in consultation with the ADMC and the Agency in accordance with section 3055(g)(3) of the Act.
Exhibit B.31. WADA International Standard for Laboratories dated January 1, 2021. The Authority notes that the Act refers to the WADA International Standard for Laboratories (version 10.0) dated November 12, 2019, but that version has since been updated by WADA. The most recent versions of the WADA documents are available at:
As directed by the Act at section 3057(b), the Laboratory Standards establish standards of accreditation for laboratories involved in testing samples from Covered Horses; the process for achieving and maintaining accreditation; and the standards and protocols for testing of such samples. The Laboratory Standards will be supported by technical documents, letters, notes, and laboratory guidelines, as appropriate.
The Laboratory Standards also cross refer in a number of places to the ISO/IEC 17025 standard. Laboratories must obtain ISO/IEC 17025 accreditation before receiving HISA Equine Analytical Laboratory (“HEAL”) accreditation.
Exhibit B.32. ISO/IEC 17025:2017. The Authority consulted with laboratory experts in order to tailor the Laboratory Standards to horseracing laboratories and to reflect the specificities of equine sport. As part of its review, the Authority considered the ILAC-G7:04/2021 Accreditation Requirements and Operating Criteria for Horseracing Laboratories, which may inform subsequent Technical Documents.
Exhibit B.33. ILAC-G7:04/2021 Accreditation Requirements and Operating Criteria for Horseracing Laboratories. The most recent versions of the International Laboratory Accreditation Cooperation (“ILAC”) standards are available at:
In accordance with sections 3055(c) and 3057(b) of the Act, the Laboratory Standards establish the requirements for obtaining HISA Equine Analytical Laboratory (“HEAL”) accreditation, and the requirements and standards for maintenance of HEAL accreditation. The rules set out a procedure by which laboratories may achieve HEAL accreditation, starting with an application and the granting of “candidate laboratory” status. The candidate laboratory must provide specified information to the Agency, perform pre-probationary testing to identify prohibited substances in samples, and complete an on-site assessment. The Agency will assess the outcomes of those processes and any non-conformities identified, and the candidate laboratory will have a specified period of time to remedy those non-conformities with corrective actions (Rule 6110).
If a candidate laboratory is granted probationary accreditation status, it will be accredited by the Agency, with a probationary period of two years or until analysis of 2,500 samples has been performed, whichever occurs first. If the probationary period is successfully completed and the laboratory successfully completes a final accreditation test, the Agency will grant accreditation to the laboratory (Rule 6120).
The rules impose continuing obligations on each laboratory that must be satisfied in order to maintain HEAL accreditation (Rule 6130), including maintenance of ISO/IEC 17025 accreditation, satisfactory participation in the Agency External Quality Assessment Scheme (“EQAS”) whereby laboratories are sent samples to be analyzed (blind or for specified substances), compliance with the code of ethics (which is set out in full at Rule 6600), and continued research and development activities and sharing of knowledge.
The Agency will regularly monitor and review the compliance of each laboratory with its ongoing accreditation obligations (Rule 6140). A laboratory's HEAL accreditation may be suspended or revoked, or subjected to specified analytical testing restrictions if (among other things) the laboratory fails to comply with the Laboratory Standards or other Agency requirements (Rules 6510 and 6520). The rules set out the effects of such decisions on Agency-related laboratory activity and the transfer of samples to other laboratories pending resolution of the matter (Rule 6560), and provide for reinstatement of the laboratory if it has remedied the non-compliance that resulted in the Agency's decision.
The Agency will regularly distribute External Quality Assessment Scheme (EQAS) samples in order to monitor the capabilities of laboratories and probationary laboratories, evaluate their proficiency, and improve test result uniformity between laboratories (Rule 6210). Some of these samples are blind (the laboratory will know it is an EQAS sample but will not know its contents), some are double-blind (the laboratory will not know it is an EQAS sample or know its contents), and some are educational (the laboratory will know it is an EQAS sample and will know its contents) (Rule 6220). EQAS samples should be analyzed in a manner substantially similar to that applied to routine samples, unless otherwise specified by the Agency, and results reported to the Agency (Rules 6250 and 6260).
The Agency will evaluate laboratory EQAS results and, as necessary and appropriate, inform the laboratory of any technical, methodological, or clerical errors that should be remedied. If such errors are remedied, no penalty will be imposed (Rule 6410). The Agency may request corrective action reports that detail actions taken to correct any non-conformity or other issue (Rule 6420). The annual EQAS evaluation will be a factor in assessment of HEAL accreditation and maintenance of HEAL accreditation.
The Laboratory Standards set out a process for the withdrawal of accreditation if the relevant requirements and standards are not met. The Laboratory Standards also ensure that laboratories report valid test results based on reliable evidentiary data and facilitate harmonization in analytical testing of Samples by laboratories.
The rules also contain detailed standards for the analysis of samples (section 6300). When analyzing a sample, the laboratory will prepare an aliquot, select the analytical testing
An important amendment to the baseline rules is that any B sample analysis will be conducted by a different laboratory than the one that performed the A sample analysis, unless the Agency considers that is not possible due to due to (i) reasonable concerns over Sample integrity or unstable analytes; or (ii) because no other Laboratory is available to perform the B Sample procedure within a reasonable period of time (Rule 6312).
If the laboratory reports an adverse analytical finding for the A sample, and the Covered Person requests or the Agency orders that the B sample be analyzed, the laboratory will promptly transfer the B sample to the laboratory specified by the Agency, and that (second) laboratory will perform the B sample procedure and analysis (Rule 6312). The samples will be stored and may be subject to further analysis if directed by the Agency (Rules 6313 and 6319).
In accordance with sections 3053(a)(10) and 3057(c) of the Act, the Arbitration Procedures set out a disciplinary process for the hearing and adjudication of Anti-Doping Rule Violations, Controlled Medication Rule Violations, and other related offenses. As directed by section 3057(c)(3), the procedures were developed to provide for adequate due process, including impartial hearing panels commensurate with the seriousness of the alleged violation. Different procedures apply to Anti-Doping Rule Violations (heard by the Arbitral Body) as compared to Controlled Medication Rule Violations (heard by the Internal Adjudication Panel, which may adjudicate the matter on written submissions alone.
The arbitrators on the Arbitral Body will be appointed by the Agency for four-year terms (Rule 7030). Members of the Internal Adjudication Panel will be appointed by the Agency for four-year terms (Rule 7040). Members of the Arbitral Body and Internal Adjudication Panel will receive mandatory annual training and education on issues relating to the proper handling of cases (Rule 7050).
If a Covered Person is charged with an Anti-Doping Rule Violation or Controlled Medication Rule Violation, proceedings will be initiated with the appropriate adjudicator by the Agency. The adjudicator will be appointed by the arbitral body or by the coordinator of the Internal Adjudication Panel, as applicable (Rule 7130), and the rules establish a process by which parties may challenge the adjudicator's appointment in appropriate circumstances. The adjudicator has broad powers to manage the proceedings, including the power to issue orders for expedited procedures, rule on their own jurisdiction, and consolidate proceedings.
In cases involving Anti-Doping Rule Violations or related violations, the rules set out a procedure for the exchange of written submissions and evidence (Rule 7170), and for the conduct of hearings (Rule 7250). The Arbitral Body has broad discretion to determine the admissibility, relevance and materiality of evidence offered, and may, if necessary and appropriate, order production (Rule 7260 and 7270) or interim measures (Rule 7280) or resolve challenges to provisional suspensions at a provisional hearing (Rule 7290).
In cases involving Controlled Medication Rule Violations and related violations, and other violations of the Protocol, a more streamlined and flexible process applies (Rule 7180).
In all cases, a final decision will be issued and the adjudicator may grant any remedy or relief authorized by the Protocol (Rule 7340-7350). Final decisions issued by the Arbitral Body or Internal Adjudication Panel are subject to review as specified in section 3058 of the Act (Rule 7400).
As encouraged by the Commission's procedural rule, the Authority, before finalizing this submission to the Commission, made a draft of the Anti-Doping and Medication Control proposed rule available to the public for review and comment on the HISA website,
The stakeholder feedback received was constructive and well-considered. All submitted comments were carefully reviewed by the Authority as well as by the ADMC and the Agency. Those collected comments are available as Exhibit A on the docket at
The following is a summary of the substance of the comments received. The following also summarizes the Authority's response to the significant issues raised in the comments, and the manner in which the Authority has addressed those comments in developing the proposed rules submitted to the Commission. In a few instances the Authority declined to make a suggested change, though the Authority will consider the suggestions made in the course of future rulemaking.
The Authority revised the definition of “Race Day” based on comments received, amending it so that the period will end one hour after the end of the Official Workout or Covered Horserace or at the end of any Sample collection process, whichever is later, instead of ending at 23:59 (11:59pm) on the day of the Official Workout/Covered Horserace as previously stated. This revision was made to take account of horse welfare, recognizing in particular that once a horse has been subject to sample collection, or it has been decided that a
The definition of “Tampering” was adjusted to make clear that it does not include the actions of bona fide veterinary personnel involving a Controlled Medication Substance or Controlled Medication Method used for genuine and legal therapeutic purposes or other acceptable justification. This addition mirrors the wording used in the definition of “Administration,” which includes the same important carve-out.
Some commenters expressed the strong opinion that there is a material difference between the use of doping substances to unfairly affect the performance of horses, as opposed to errors in the administration of recognized therapeutic substances. The Authority agrees that this is a vital distinction, and the Protocol recognizes the distinction in the penalty structure and other provisions throughout the Protocol.
Further detail on the meaning of “Owner” has been provided to take account of the varied and sometimes complex ownership structures in horseracing (Rule 3020(c)).
The term “Responsible Person” defined in Rule 3030 has been simplified to make clear that the trainer of a Covered Horse is the Responsible Person for that horse. In circumstances where the horse does not have a Trainer, the Owner is the Responsible Person. The Responsible Person is personally liable for his or her Covered Horse(s). However, other Covered Persons (including veterinarians, among others) who made a relevant decision about the Covered Horse may be found to be complicit in a violation and may be liable to the same extent as the Responsible Person.
In response to comments received, the Authority removed the disciplinary provisions concerning hypodermic needles, because equivalent provisions are included in the Rule 2000 Series (Racetrack Safety Program).
Some commenters proposed increasing the sanctions applicable to repeat medication violation offenders and lengthening the period of time that such violations would remain on their “official record.” The limitation period and roll-off period for Controlled Medication Rule Violations has been increased from one to two years, and a multiple violation penalty points system, modelled on the ARCI system, has been added. As a consequence, in addition to any sanction received for the underlying Controlled Medication Rule Violation, a Covered Person will also receive a certain number of penalty points which accumulate over a two-year period. When the points thresholds are exceeded, additional sanctions will be imposed (in a manner similar to the points system in the driver's licensing violation system).
A number of commenters requested that Controlled Medication Substances be stratified into different classes, with individual screening limits prescribed for each category. The Authority has done so by classifying Controlled Medication Substances into Classes A to C in the Technical Document-Prohibited Substances, which supplements the Prohibited List. The sanctions in the Protocol in turn depend on the class of substance in issue.
Commenters requested clarification of the requirement that a Responsible Person make a Covered Horse available for testing “at any time and place.” The Protocol was clarified to specify that the Covered Horse must be available for testing at any time and place where the horse is located (
In response to comments received, the Authority extended the period of inactivity of a Covered Horse from 12 to 18 months, after which the horse may be retired by the Authority, subject to an objection by the Owner of the horse. This change was based on the rationale that horses may suffer injuries that require a 12-month recovery period (such as tendon injuries).
The Protocol was modified to clarify that where a horse's Sample reveals the presence of more than one Controlled Medication Substance above the applicable thresholds (if any), each substance may be treated as a separate presence violation.
The Protocol was revised to clarify that Covered Persons may request clearance testing to be conducted on their Covered Horses by a Laboratory, but only if such request is authorized by the Authority in advance and paid for by the Covered Person, and provided that such samples will be treated in the same way as official Post-Race Samples, such that any violation detected may be pursued by the Agency.
Some concerns were expressed regarding how cases involving environmental contamination would be handled and publicized. The Authority has incorporated an “Atypical Findings Policy” as Appendix 1 to the Rule 3000 Series. The Policy allows for certain substances to be investigated first as Atypical Findings before being pursued as Adverse Analytical Findings. If further to such investigation it is determined that the positive test was the result of environmental contamination, the matter will not be pursued as an Adverse Analytical Finding, and the Atypical Finding will not be publicly disclosed.
The Authority has added provisions to the Protocol to clarify the provisions on claimed horses. Some commenters expressed the concern that testing every horse in a claiming race would be excessive. In particular, Rule 3060 provides that a claimed horse may be subject to Sample collection at a claiming race if elected (and paid for) by the claimant. If the analysis of such Sample(s) results in an Anti-Doping Rule Violation or Controlled Medication Rule Violation, the claim may be voided at the option of the claimant and the claimant shall be entitled to return of all sums paid for the claimed horse and of all expenses incurred after the date of the claim.
Commenters also expressed the opinion that use of Lasix should not be prohibited during training. The Protocol does not prohibit the use of Lasix during training (see Rule 4212(d)).
The key change made based on comments received was the development of the “Technical Document—Prohibited Substances,” which supplements the Prohibited List. The Technical Document provides additional detail concerning the
Comments were also received urging that anti-ulcer medications should be permitted within 24 hours prior to a race. The ADMC considered that proposition further, including the scientific paper referenced below, which shows that the pH of gastric fluids returns to baseline 24 hours after treatment with Omeprazole (an anti-ulcer medication). Given that pH directly affects the development of ulcers, the paper supports the use of anti-ulcer medications up to 24 hours prior to Post-Time. To require a longer withdrawal interval means that the stomach lining of a horse could be vulnerable to the recrudescence of gastric ulceration.
Exhibit B.34. Jessica Wise et al.,
In addition to a number of minor revisions based on the comments received, the Authority added a section to address procedures for total carbon dioxide (“TCO2”) testing,
A number of minor revisions were made based on the detailed comments received and further consultation with laboratory experts. Some duplication with ISO/IEC 17025 was also removed, in particular in section 6300.
Some commenters expressed confusion concerning the role of racing stewards in the adjudication body previously designated as the “National Stewards Panel.” The body is now designated as the “Internal Adjudication Panel,” with individual members referred to as Internal Adjudication Panel (“IAP”) members instead of “stewards.”
The procedure for Controlled Medication Rule Violations was developed partly in response to requests by commenters to provide for a simplified hearing process for Covered Persons charged with a violation. The procedures allow the IAP members adjudicating the case to dispense with written filings and permit the Covered Person to make an oral presentation in a hearing context. This procedure allows the adjudication process to dispense where appropriate with certain of the more formal and costly aspects of legal proceedings.
The Arbitration Procedures were also clarified to specify that hearings regarding alleged breaches of the Protocol will not be open to the media or the public, and to specify the Owners who may attend hearings involving Covered Horses when the horse is owned by multiple persons or entities.
The Arbitration Procedures were also clarified to specify that while document production requests may be permitted, discovery or other wide-ranging document requests are not permitted.
Based on stakeholder comments and further review, the Authority has made a few minor corrections to the proposed rule previously filed with the Commission. Minor corrections were made to the Technical Document, including (i) correcting certain references to thresholds throughout the Technical Document, to ensure consistency with the approach taken by the IFHA; (ii) correcting a typographical error regarding the threshold for ketoprofen, which is 2ng/ml, as approved by the ADMC, as noted in a correction published November 4, 2022, 87 FR 66705; (iii) adding a comment about pemoline that was mistakenly deleted from the previous version; (iv) correcting certain minor typographical errors in the spelling of substance names; (v) capitalizing defined terms; and (vi) other minor amendments to ensure consistency across the document, including deletion of duplicate entries.
Certain other minor corrections were made to the proposed rule, including (i) clarifying, in the definition of “Aggravating Circumstances,” that one or both of an additional period of ineligibility or fine may be imposed; (ii) correcting Rule 3346(a) to clarify that the Responsible Person and Owner and one representative each may attend the Laboratory to witness the opening and identification of the B sample; (iii) adding “to the extent possible” in Rule 5220(b)(iv)(B) for consistency with other similar provisions; (iv) specifying in Rule 5320 that sample collection equipment must be able to withstand −20°C rather than −80°C, consistent with industry standard; (v) removing the requirement for a signature in Rule 5410(i)(1) because the personnel tagging the horse at the end of the race will not accompany the horse to the Test Barn and the signing of the doping control documentation will occur at a later stage in the sample collection process (see Rule 5410(i)(10)); (vi) minor corrections to Rules 5420(j) and 5430(e) by striking “within the kit,” as it was not consistent with collection kits available in the industry; (vii) amending references to the “BCO or DCO” in Rule 5430(e) to “relevant Sample Collection Personnel” for consistency with other similar provisions; (viii) amending Rules 5420(n) and 5430(k) to clarify that copies of doping control documentation will be sent to the Responsible Person subsequently and not instantaneously; and (ix) adding a reference to “or refrigerator” in Rule 5510(b)(1) because, if urine samples are not shipped on the day of collection, they will be refrigerated rather than frozen.
Minor typographical errors, such as extra spaces, spelling errors, and punctuation, were corrected as well.
This rule is proposed by the Authority for approval or disapproval by the Commission under 15 U.S.C. 3053(c)(1).
This rule would take effect upon approval by the Commission, and the Commission must approve or disapprove the rule by March 27, 2023.
Members of the public are invited to comment on the Authority's proposed rule. The Commission requests that factual data on which the comments are based be submitted with the comments. The supporting documentation referred to in the Authority's filing, as well as the written comments it received before submitting the proposed rule to the Commission, are available for public inspection at
The Commission seeks comments that address the decisional criteria provided by the Act. The Act gives the Commission two criteria against which to measure proposed rules and rule modifications: “The Commission shall approve a proposed rule or modification if the Commission finds that the
Although the Commission evaluates the Authority's proposed rule for its consistency with the Act and the Commission's procedural rule, the Commission may consider broader questions—about the health and safety of horses and jockeys, the integrity of horseraces and wagering on horseraces, and the administration of the Authority itself—in another context: “The Commission . . . may abrogate, add to, or modify the rules of the Authority promulgated in accordance with this Act as the Commission finds necessary or appropriate to ensure the fair administration of the Authority, to conform the rules of the Authority to requirements of this Act and applicable rules approved by the Commission, or otherwise in furtherance of the purposes of this Act.”
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before February 9, 2023. Write “HISA Anti-Doping and Medication Control” 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 website
Because of public health measures and the Commission's 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 file your comment on paper, write “HISA Anti-Doping and Medication Control” 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 B), Washington, DC 20580.
Because your comment will be placed on the public record, you are solely responsible for making sure that your comment does not include any sensitive or confidential information. In particular, your comment should not contain sensitive personal information, such as your or anyone else's Social Security number; date of birth; driver's license number or other State identification number or foreign country equivalent; passport number; financial account number; or credit or debit card number. You are also solely responsible for making sure your comment does not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, your comment should not include any “[t]rade secret or any commercial or financial information which * * * is privileged or confidential”—as provided in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule § 4.10(a)(2), 16 CFR 4.10(a)(2)—including in particular competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.
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), 16 CFR 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 to read this document and the news release describing it. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments it receives on or before February 9, 2023. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see
Written communications and summaries or transcripts of oral communications respecting the merits of this proceeding, from any outside party to any Commissioner or Commissioner's advisor, will be placed on the public record.
Unless specified otherwise:
(a) words in the singular include the plural, and words in the plural include the singular;
(b) references to any “Rule” or “Rule Series” are references to the rules or rule series approved by the Commission pursuant to section 3053 of the Act;
(c) any Appendices to a Rule Series form an integral part of such Rule Series;
(d) any reference to a provision in rules, protocols, policies, standards, guidelines, or similar includes any modifications or successor provisions made or issued from time to time;
(e) any reference to legislation includes any modification or re-enactment of legislation enacted in substitution of that legislation, and any regulation or other instrument from time to time issued or made under that legislation;
(f) any term defined in this Rule 1000 Series shall supersede the definition of that term in the Rule 2000 Series;
(g) a reference to “writing,” “write,” or “written” includes communications transmitted by email;
(h) a reference to “may” means “in the sole and absolute discretion of such person or body”;
(i) a reference to a “day” means any day of the week and is not limited to working days;
(j) any time limits shall begin from the day after which the relevant notification is received (or the day after the relevant notification is sent, if sent by email). Official holidays and non-working days are included in the calculation of time limits. The time limits fixed under this Protocol are respected if the communications by the parties are sent before midnight (U.S. Eastern time) on the last day on which such time limits expire. If the last day of the time limit is an official holiday or a non-business day in the state or country where the notification has been made, the time limit shall expire at the end of the first subsequent business day;
(k) a reference to a “person” (with no initial capital letter) means a natural person; and
(l) any words following the terms “including,” “include,” “in particular,” “such as,” “for example,” or any similar expression, are illustrative only, and do not limit the sense of the words, description, definition, phrase, or term preceding those terms.
Authority means the Horseracing Integrity and Safety Authority designated by section 3052(a) of the Act.
(1) Disqualification;
(2) Ineligibility;
(3) Provisional Suspension;
(4) financial penalties; and
(5) Public Disclosure.
(a) commencing 48 hours prior to the Post-Time of either (i) any Vets' List Workout in which the Covered Horse participates or (ii) any Covered Horserace that the Covered Horse has been entered in, whether or not the Covered Horse actually starts; and
(b) ending (i) 1 hour after the end of such Vets' List Workout or Covered Horserace or (ii) at the end of any Sample collection process conducted at that Vets' List Workout or Covered Horserace when the Covered Horse is released from the Test Barn, whichever is later.
However, the Prohibited List may specify a Race Period that is shorter or longer in duration than the above period for certain Controlled Medication Substances or Controlled Medication Methods.
(1) fully disclosing in a signed written statement or recorded interview all information the Covered Person possesses in relation to violations of the Protocol; and
(2) fully cooperating with the investigation and adjudication of any case or matter related to that information, including, for example, by providing an affidavit and presenting testimony at a hearing if requested to do so by the Agency or adjudication body.
Further, the information provided must be credible and must comprise an important part of any case or proceeding which is initiated or, if no case or proceeding is initiated, must have provided a sufficient basis on which a case or proceeding could have been brought.
Threshold Substance means a Prohibited Substance, or Metabolite or Marker of a Prohibited Substance, for which the identification and quantitative determination, including, for example, concentration, ratio, or score, in excess of a pre-determined Decision Limit, or, when applicable, the establishment of an exogenous origin,
(a) The Horseracing Integrity and Safety Act of 2020 (“Act”) mandates and empowers the Horseracing Integrity and Safety Authority (“Authority”) to establish a uniform anti-doping and controlled medication program to improve the integrity and safety of horseracing in the United States (“Program”).
(b) This Equine Anti-Doping and Controlled Medication Protocol (“Protocol”) has been developed and issued by the Authority as part of that mandate. It contains or incorporates by reference rules, standards, and procedures to improve and protect the integrity and safety of horseracing in the United States by deterring and penalizing the improper administration or application of Prohibited Substances and Prohibited Methods to Covered Horses. The Protocol is split into five chapters:
(1) the purpose, scope, and organization of the Protocol;
(2) the Prohibited List, rules of proof, and testing and investigations;
(3) the Equine Anti-Doping Rules;
(4) the Equine Controlled Medication Rules; and
(5) other violations and general procedure/administration.
(c) The Protocol has intentionally divided the regulation of Anti-Doping Rule Violations and Controlled Medication Rule Violations into separate chapters to reflect the Authority's view that the treatment of such violations should be separate and distinct from each other. Anti-Doping Rule Violations involve Banned Substances or Banned Methods, which are substances/methods that should never be in a horse's system or used on a horse as they serve no legitimate treatment purpose. Conversely, Controlled Medication Rule Violations involve Controlled Medication Substances or Controlled Medication Methods, which are substances/methods that have been determined to have appropriate and therapeutic purposes, and so may be used outside the Race Period, except as otherwise provided in the Prohibited List. For the avoidance of doubt, the Protocol does not regulate the use of drugs or medications by human participants in Covered Horseraces.
(d) The Protocol reflects and implements the following principles set out in section 3055(b) of the Act that:
(1) Covered Horses should compete only when they are free from the influence of medications, other foreign substances, and treatment methods that affect their performance;
(2) Covered Horses that are injured or unsound should not train or participate in Covered Horseraces, and that medications, other foreign substances, and treatment methods that mask or deaden pain in order to allow injured or unsound horses to train or race should be prohibited;
(3) rules, standards, procedures, and protocols regulating medication and treatment methods for Covered Horses and Covered Horseraces should be uniform and uniformly administered throughout the United States;
(4) to the extent consistent with the Act, consideration should be given to international anti-doping and medication control standards of the International Federation of Horseracing Authorities and the Principles of Veterinary Medical Ethics of the American Veterinary Medical Association;
(5) the administration of medications and treatment methods to Covered Horses should be based upon a veterinary examination and diagnosis that identifies an issue requiring treatment for which the medication or method represents an appropriate component of treatment;
(6) the amount of therapeutic medication that a Covered Horse receives should be the minimum necessary to address the diagnosed
(7) the welfare of Covered Horses, the integrity of the sport of horseracing, and the confidence of its stakeholders (including the betting public) require full disclosure to regulatory authorities regarding the administration of medications and treatments to Covered Horses.
(e) The Protocol will be implemented and enforced on behalf of the Authority by:
(1) an anti-doping and controlled medication enforcement agency known as the Horseracing Integrity and Welfare Unit (“Agency”); and
(2) where agreed in accordance with 3060 of the Act, by State Racing Commissions acting under the delegated authority of the Authority or the Agency (and references to the Authority or the Agency in the Protocol will be deemed to encompass such commissions as the context requires, subject to and consistent with the scope of their delegated authority).
(f) In accordance with section 3054(b) of the Act, the rules of the Authority promulgated in accordance with the Act shall preempt any provision of State law or regulation with respect to matters within the jurisdiction of the Authority under the Act. Among other things, the Protocol:
(1) identifies the conduct that will constitute an Anti-Doping Rule Violation (Rules 3211 to 3216), a Controlled Medication Rule Violation (Rules 3311 to 3315), or a related violation (Rules 3229, 3329, and 3510);
(2) establishes evidentiary and other rules for proving violations of the Protocol (Rules 3121 to 3122);
(3) provides for the creation, maintenance, and updating of a Prohibited List and related Technical Document that identify Prohibited Substances and Prohibited Methods (Rules 3111 to 3113);
(4) empowers the Agency to perform and manage test distribution planning and Testing of Covered Horses both in and out of competition, in accordance with the Testing and Investigations Standards (Rule 3133);
(5) empowers the Agency to gather intelligence and investigate potential violations of the Protocol, in accordance with the Testing and Investigations Standards, which incorporate uniform rules and procedures in accordance with section 3054(c) of the Act (Rule 3133);
(6) empowers the Agency to accredit testing laboratories in accordance with the Laboratory Standards and to monitor, test, and audit approved Laboratories to ensure continuing compliance with the Laboratory Standards; and provides for all samples collected pursuant to the Protocol to be analyzed at approved Laboratories in accordance with the Laboratory Standards or by other laboratories, such as international laboratories accredited by the International Federation of Horseracing Authorities, in accordance with Rule 3136(d) (Rule 3136);
(7) sets out uniform rules and procedures for the Agency's management of the results of testing and investigations, and for its prosecution of any charges that Covered Persons have violated the Protocol, including incorporating the Arbitration Procedures to ensure the fair adjudication of those charges;
(8) sets out the sanctions that may be applied in case of violations of the Protocol, including, but not limited to, Disqualification of results, forfeiture of prizes and purses, fines, payment of costs, periods of Ineligibility for Covered Horses or Covered Persons (including additional periods of Ineligibility for repeat offenders), and Public Disclosure (sections 3220 and 3320); and requires the Authority, Racetracks, Race Organizers, Training Facilities, all Covered Persons, and all other relevant Persons to recognize, respect, enforce, and give full force and effect to final decisions issued under the Protocol within their respective spheres of authority (Rule 3710);
(9) regulates the public reporting and disclosure of cases, and permits and facilitates statistical reporting to the Authority and to the U.S. Congress, the Commission, State Racing Commissions, and other Federal or State governmental bodies or agencies having jurisdiction over the sport of horseracing in the United States (section 3600); and
(10) empowers the Agency to undertake and commission education and research activities designed to advance the integrity and safety of horseracing in the United States (Rule 3810).
(g) The Protocol comes into force on the Program Effective Date and will apply in full as from that date. In accordance with section 3054(k)(1) of the Act, the Protocol only has prospective effect,
(h) The Protocol incorporates by reference the supporting rules and documents approved by the Commission and issued by the Authority, including Rule 1000 Series (General Provisions), Rule 2000 Series (Racetrack Safety Program), Rule 4000 Series (Prohibited List), Rule 5000 Series (Testing and Investigations Standards), Rule 6000 Series (Laboratory Standards), Rule 7000 Series (Arbitration Procedures), Rule 8000 Series (Enforcement Rule), Rule 8500 Series (Methodology for Determining Assessments), and Rule 9000 Series (Registration of Covered Persons and Covered Horses).
(i) In accordance with section 3055(c)(4) of the Act, the Agency may develop further rules, protocols, policies, and guidelines for approval by the Authority to support the implementation of the Protocol. These materials will be developed in consultation with the Anti-Doping and Medication Control Standing Committee (ADMC) of the Authority and will be consistent with international best practices.
(j) Nothing in the Protocol or in any of its associated rules, protocols, policies, and guidelines:
(1) is intended to constrain or limit in any way the powers of the Authority or the Agency under the Act; or
(2) shall be interpreted or applied in a manner that has the effect of constraining or limiting those powers in any way.
(k) Unless specified otherwise, words and terms in the Protocol that are capitalized are defined terms that have the meaning given to them in Rule 1020.
(l) The rules of interpretation included at Rule 1010 and Rule 3070 shall be used as an aid to interpretation of the Protocol.
(a) The Protocol applies to and is binding on:
(1) any horserace involving Covered Horses that has a substantial relation to interstate commerce, including any Thoroughbred horserace that is the subject of interstate off-track or advance deposit wagers (each, a Covered Horserace);
(2) any Thoroughbred horse, or any other horse made subject to the Act by election of the applicable State Racing Commission or the breed governing organization for such horse under section 3054(
(3) the following persons (each, a Covered Person): all Trainers, Owners,
(b) Pursuant to section 3054 of the Act, Covered Persons must register with the Authority. However, they are bound by the Protocol by undertaking the activity (or activities) that make(s) them a Covered Person, whether or not they register with the Authority.
(c) Owners. Covered Horses may be owned by a sole individual, multiple individuals, or one or more entities. As a consequence of the various ownership structures and property interests of Covered Horses, it is necessary to identify which Person shall be responsible as the Owner for purposes of registration, communication, personal liability, and other requirements under the Protocol and related rules. Accordingly:
(1) For purposes of mandatory registration with the Authority, any Covered Person who owns a 5% or greater ownership or property interest in a Covered Horse shall register with the Authority as an Owner.
(2) The following person shall be responsible as the Owner for any communication, notification, and reporting requirements under the Protocol:
(i) if the Covered Horse is owned by one individual, that individual; or
(ii) if the Covered Horse is owned by more than one individual or by a partnership, corporation, limited liability company, syndicate, or other association or entity, the individual designated in the Authority's database as the representative for the other owners of the Covered Horse authorized to receive communications or notifications and fulfill any reporting requirements on their behalf in respect of the Covered Horse (Designated Owner).
(3) If Rule 3030 makes the Owner the Responsible Person for a Covered Horse, that shall mean that the following person is personally liable for violations involving that Covered Horse:
(i) if the Covered Horse is owned by one individual, that individual; or
(ii) if the Covered Horse is owned by more than one individual or by a partnership, corporation, limited liability company, syndicate, or other association or entity, the individual who manages the Covered Horse as a matter of fact (Managing Owner). If an individual owns more than a 50% stake in a Covered Horse or where the entity that owns the Covered Horse has designated an individual with an ownership interest in the Covered Horse as the individual who will be personally liable under the Protocol as the Owner of the Covered Horse, that individual will be presumed to be the Managing Owner. If an individual with an ownership or property interest in the Covered Horse who is not the Managing Owner makes a relevant decision about the Covered Horse that leads to a violation of the Protocol, that person shall be jointly and severally liable with the Managing Owner for such decision as an Owner of the Covered Horse.
(4) Only the following persons may attend hearings under the Protocol as the Owner of the Covered Horse, unless otherwise agreed by the hearing panel:
(i) if the Covered Horse is owned by one individual, that individual; or
(ii) if the Covered Horse is owned by more than one individual or by a partnership, corporation, limited liability company, syndicate, or other association or entity, the Designated Owner or Managing Owner.
(5) Unless the context requires otherwise, the individual owner or Managing Owner of the Covered Horse (as applicable) shall be responsible for discharging any other requirements imposed on an Owner under the Protocol or related rules.
(a) “Responsible Person” means the Trainer of the Covered Horse. If the Covered Horse does not have a Trainer, the Responsible Person shall be the Owner of the Covered Horse. The Responsible Person shall be personally liable for his or her Covered Horse(s) as set out under the Protocol. Other Covered Persons who make a relevant decision about the Covered Horse may also be liable depending on the facts and circumstances.
(b) If a Covered Horse is claimed in a Claiming Race, the person designated as the Responsible Person prior to that Claiming Race shall be liable for any violation resulting from a Sample collected on Race Day. The person who claims the Covered Horse in the Claiming Race shall not be liable for such violation, unless he or she was complicit in the violation.
(c) The Responsible Person shall register their designation as the Responsible Person for a Covered Horse with the Authority and shall keep such designation and registration up-to-date. Any transfer of the Responsible Person designation to another Covered Person shall be done with the Authority in accordance with its procedures prior to the effective date of the transfer, except that if a Covered Horse is claimed in a Claiming Race, the transfer shall be done on the day of the Claiming Race.
(d) The Responsible Person for a Covered Horse shall be the sole representative for the interests of that Covered Horse in any matter arising under the Protocol. The Owner (if not the Responsible Person) may attend any hearing concerning a violation of the Protocol involving his or her Covered Horse(s) in accordance with the Arbitration Procedures.
It is the personal responsibility of each Covered Person:
(1) to be knowledgeable of and to comply with the Protocol and related rules at all times. All Covered Persons shall be bound by the Protocol and related rules, and any revisions thereto, from the date they go into effect, without further formality. It is the responsibility of all Covered Persons to familiarize themselves with the most up-to-date version of the Protocol and related rules and all revisions thereto;
(2) to cooperate promptly and completely with the Authority and the Agency in the exercise of their respective powers under the Act and the Protocol and related rules, including:
(i) in relation to the Testing program and in relation to the investigation of potential violations of the Protocol;
(ii) by providing complete and accurate information to the Authority and the Agency in all interactions and filings; and
(iii) on request by the Agency:
(A) making available for inspection any facility, office, stall, or equipment or other relevant location that is used in the care, treatment, training, or racing of Covered Horses, or any feed, medicine, or other item given to Covered Horses;
(B) submitting to under-oath transcribed interviews about his or her dealings with or in relation to Covered Horses;
(C) providing immediate and unfettered access to any and all data, documents, and records used in the care, treatment, training or racing of any Covered Horse (including, but not limited to, data, documents and records existing in electronic form,
(D) permitting the Agency to review or make and take away copies of any such data, documents, or records for analysis, investigation, and potential
(3) not to engage in offensive conduct towards any Sample Collection Personnel or any representative of the Agency or the Authority (including engaging in improper, insulting, or obstructive conduct, or recording any Sample Collection Session contrary to Rule 5410). Failure to comply may constitute a violation pursuant to Rule 3510(a) or Tampering or Attempted Tampering, depending on the circumstances of the case.
In addition to the duties under Rule 3040(a), it is the personal responsibility of each Responsible Person:
(1) to ensure that Covered Horses for which he or she is the Responsible Person are made available for Sample collection at any time and any place where they are located (
(i) The Responsible Person shall ensure that the Covered Horse is produced for Sample collection immediately upon notification by a duly authorized person in accordance with the Agency's procedures if the Covered Horse is present at the location where notification is attempted. If the Covered Horse is present at the location where notification is attempted, failure to produce a Covered Horse immediately upon valid notification shall constitute an Anti-Doping Rule Violation under Rule 3215.
(ii) If the Covered Horse is not present at the location where notification is attempted (including due to a Whereabouts Failure), the Responsible Person shall ensure that the Covered Horse is produced for Sample collection within 6 hours of notification by a duly authorized Person in accordance with the Agency's procedures, except that the Agency may extend the 6-hour period if it determines that extenuating circumstances justify doing so. If the Covered Horse is not present at the location where notification is attempted or if a Covered Horse cannot be located by the Agency, failure to produce a Covered Horse for Sample collection within 6 hours (or any extended period agreed by the Agency) of valid notification period shall constitute an Anti-Doping Rule Violation under Rule 3215.
(2) to either be present during a Sample collection involving his or her Covered Horse and comply with all Sample collection procedure requirements, or (if not present) to ensure that a Nominated Person who is 18 years or older is present to represent him or her and complies with all Sample collection procedure requirements;
(3) to ensure that treatments and medications administered to his or her Covered Horses:
(i) are administered only on the advice of a Veterinarian or (if a prescription is not required) following sufficient due diligence regarding the treatment or medication;
(ii) are not administered in a manner detrimental or contrary to horse welfare;
(iii) are the minimum necessary to address the diagnosed health concerns identified during the veterinary examination and diagnostic process;
(iv) do not contain a Banned Substance or involve a Banned Method; and
(v) do not otherwise violate the Protocol;
(4) to inform all Covered Persons (including Veterinarians), employees, personnel, agents, and other Persons involved in any way with the care, treatment, training, or racing of his or her Covered Horses of their respective obligations under the Protocol (including, in particular, those specified in Rule 3040(a));
(5) to adequately supervise all Covered Persons (including Veterinarians), employees, personnel, agents, and other Persons involved in any way with the care, treatment, training, or racing of his or her Covered Horses, including by (without limitation):
(i) conducting appropriate due diligence in the hiring process before engaging their services;
(ii) clearly communicating to such Persons that compliance with the Protocol is a condition of employment or continuing engagement in the care, treatment, training, or racing of his or her Covered Horses;
(iii) creating and maintaining systems to ensure that those Persons comply with the Protocol; and
(iv) adequately monitoring and overseeing the services provided by those Persons in relation to the care, treatment, training, or racing of his or her Covered Horses;
(6) to bear strict liability for any violations of the Protocol by such Covered Persons (including Veterinarians), employees, personnel, agents, and other Persons involved in the care, treatment, training, or racing of his or her Covered Horses;
(7) to file and update as necessary with the Authority information identifying what Covered Horses he or she is the Responsible Person for;
(8) to maintain accurate, complete, and up-to-date treatment records (including, without limitation, records of medical, therapeutic, and surgical treatments and procedures, including diagnostics) of his or her Covered Horses in an electronic or other form specified by the Agency, and to provide the Agency with access to those records upon request and without delay so that it may inspect and make and retain copies of them for purposes of monitoring and ensuring compliance with the requirements of the Protocol. The records must include the details required under Rule 2251(b). The Responsible Person must retain copies of such treatment records for a period of no less than 3 years, although the Responsible Person is advised to retain them for the duration of the limitation periods under Rule 3090;
(9) at the time of registering a horse with the Authority and prior to such horse competing in any Timed and Reported Workout or Covered Horserace, the Responsible Person shall declare in writing to the Agency all administrations of Banned Substances and Banned Methods to the horse since the Responsible Person first owned the horse (or, if not the Owner, since the Owner at the time of registration first owned the horse) or since the Program Effective date, whichever is earlier. On request by the Agency, the Responsible Person shall provide any related treatment records for the horse during that period. If a Banned Substance or Banned Method has been administered in that period, the Agency may impose a stand down period for the horse of up to the period of Ineligibility that would be applicable for the relevant Banned Substance or Banned Method and require that (at the Responsible Person's cost) the Covered Horse provide one or more negative Samples before subsequently being eligible to participate in a Timed and Reported Workout or a Covered Horserace. Failure by a Responsible Person to comply with this Rule 3040(b)(9) may constitute a violation of Rule 3510(b);
(10) if any Covered Horse is moved from a Racetrack or Training Facility to a private facility (
(11) to notify the Authority in writing within 7 days of becoming aware that any of his or her Covered Horses:
(i) is pregnant;
(ii) was pregnant but has foaled or is no longer pregnant;
(iii) has been castrated or hemicastrated (including chemical castration or immunocastration); or
(iv) has suffered a fatal condition.
In addition to the duties under Rule 3040(a):
(1) each person with a 5% percent or greater ownership or property interest in a Covered Horse shall register with the Authority as an Owner of the Covered Horse, and ensure that any transfer of ownership is registered with the Authority in accordance with its procedures; and
(2) if a Covered Horse is owned by multiple Owners, they shall ensure that the Agency is notified in writing of one Designated Owner authorized to receive communications and notifications and fulfil any reporting requirements on their behalf.
In addition to the duties under Rule 3040(a), and the further duties and requirements imposed under the Rule 2000 Series (Racetrack Safety Program), it is the personal responsibility of each Attending Veterinarian to act in strict compliance with the Protocol and keep updated treatment records (including, without limitation, records of medical, therapeutic, and surgical treatments and procedures, including diagnostics) in an electronic database designated by the Agency or in any other form designated by the Agency and provide access to the Agency upon request and without delay to or copies of such treatment records. The records must include the details required under Rule 2251(b) and must be submitted in an electronic format designated by the Authority within the deadline specified in that same provision. Attending Veterinarians must retain copies of such treatment records for a period of no less than 3 years, or for the retention period required by the relevant state veterinary practice act, whichever is longer.
(a) Covered Persons.
(1) Each Responsible Person who wishes to no longer be bound by the Protocol shall give written notice to the Authority of his or her retirement from the position that made him or her a Responsible Person. In each case, the Responsible Person shall be deemed to have retired (and to be no longer subject to the Protocol) on the later of (i) the date given in the written notice of retirement and (ii) the date the notice is received.
(2) Any other Covered Person will continue to be bound by and required to comply with the Protocol and related rules unless and until he or she unregisters with the Authority.
(3) If a Covered Person ceases to be subject to the Protocol while the Agency is conducting a Results Management process in respect of that person, the Agency retains jurisdiction to complete its Results Management process. If a Covered Person retires or ceases to be subject to the Protocol before any Results Management process has begun, and the Agency had jurisdiction over the Covered Person at the time the Anti-Doping Rule Violation or Controlled Medication Rule Violation was committed, the Agency retains jurisdiction to conduct Results Management in respect of that violation.
(4) If a Covered Person retires while subject to a period of Ineligibility, he or she must give written notice of such retirement to the Authority. The Covered Person may not return to the sport (
(5) The Agency may forward notifications of retirement of Covered Persons to Interested Parties or other Persons with a need to know.
(b) Covered Horses.
(1) If an Owner wishes to retire a Covered Horse such that it is no longer made available for Testing, the Owner must provide written notice of such retirement to the Agency, in accordance with its procedures.
(2) A Covered Horse that has been retired in accordance with the previous clause may not participate in a Timed and Reported Workout or be entered in a Covered Horserace until the Covered Horse has been made available for Testing at least 4 months prior to notice being given to the Agency (in accordance with its procedures) of the intention to unretire the Covered Horse.
(3) If a Covered Horse is retired from horseracing or suffers a fatal condition while the Agency is conducting a Results Management process in respect of it, the Agency retains jurisdiction to complete its Results Management process. If a Covered Horse is retired or suffers a fatal condition before any Results Management process has begun, and the Agency had jurisdiction over the Covered Horse at the time the Anti-Doping Rule Violation or Controlled Medication Rule Violation was committed, the Agency retains jurisdiction to conduct Results Management in respect of that violation. If a Covered Horse suffers a fatal condition, the Agency retains Testing authority over that horse in accordance with Rule 3132(d).
(4) If a Covered Horse is retired from horseracing while subject to a period of Ineligibility, the Owner must notify the Agency in writing of such retirement. If the Owner wishes that horse to return to participation in Covered Horseraces or Timed and Reported Workouts, the Owner must first provide the Agency with written notice and make the Covered Horse available for Testing for at least 4 months prior to such participation or for the remainder of the Covered Horse's period of Ineligibility, whichever is longer.
(5) In order to manage the number of Covered Horses registered with the Authority, the Agency may retire a Covered Horse based on inactivity (
(6) The Agency may reduce the 4-month notice period in Rule 3050(b) to 2 months where the Owner of the Covered Horse submits an application establishing good cause to do so, and where the Agency approves such application based on a review conducted in accordance with the objectives of the Protocol.
(7) The Agency may forward notifications of retirement of Covered Horses to Interested Parties or other Persons with a need to know.
(a) Subject to Rule 3132(b), a claimed horse may be subject to Sample collection at a Claiming Race if requested (and paid for) by the claimant as part of the claiming procedure on the day of the Claim. If a Sample collected from the claimed horse results in an Anti-Doping Rule Violation or Controlled Medication Rule Violation, the Claim may be voided at the option of the claimant, and the claimant shall be entitled to the return from the seller of all sums paid for the claimed horse and of all reasonable expenses incurred after the date of the Claim. While awaiting test results, a claimant shall: (i) exercise due care in maintaining and boarding a claimed horse; and (ii) not materially alter a claimed horse.
(b) Any voided claim shall be recorded in Equibase.
(a) The Authority may amend the Protocol from time to time, as necessary to ensure that it remains fit for purpose, in accordance with section 3057(e) of the Act. Unless provided otherwise, any amendments will come into force on the date specified or (if no date is specified) on the date the amendment is approved by the Commission.
(b) Subject to Rule 3070(d), the Protocol shall be interpreted as an independent and autonomous text and not by reference to existing law or statutes.
(c) The Protocol has been adopted pursuant to the Act and shall be interpreted, where applicable, in a manner that is consistent with applicable provisions of the Act and the other rules in Rule 1000-9000 Series. In the event of any conflict between the Act and the Protocol, the Act shall prevail. In the event of any conflict between the Protocol and any other rules in Rule 1000-9000 Series, the Protocol shall prevail.
(d) The World Anti-Doping Code and related International Standards, procedures, documents, and practices (WADA Code Program), the comments annotating provisions of the WADA Code Program, and any case law interpreting or applying any provisions, comments, or other aspects of the WADA Code Program, may be considered when adjudicating cases relating to the Protocol, where appropriate.
(a) The Protocol shall not apply retroactively to matters pending before the Program Effective Date.
(b) A presence violation under Rule 3212 or Rule 3312 that occurs after the Program Effective Date as a result of Use or Administration prior to the Program Effective Date shall not constitute a violation of the Protocol.
(c) The relevant State Racing Commission retains authority (including results management) in relation to any anti-doping or controlled medication matters taking place prior to the Program Effective Date.
(d) Changes to substances or methods covered by the Prohibited List or related Technical Document—Prohibited Substances shall not, unless they specifically provide otherwise, be applied retroactively. However, a Responsible Person or other Covered Person who is serving a period of Ineligibility on account of a Prohibited Substance or Prohibited Method that is later subject to a change in status (either because it is no longer prohibited or subject to lesser sanctions) may apply to the Agency for consideration of a reduction in the period of Ineligibility in light of that change in status. The Responsible Person may also apply to the Agency for consideration of a reduction in the period of Ineligibility applicable to his or her Covered Horse(s).
(a) No charge may be brought against a Covered Person or in relation to a Covered Horse in respect of an Anti-Doping Rule Violation unless the Covered Person or Responsible Person for the Covered Horse has been given notice, or notification has been reasonably attempted, within 10 years of the date the Anti-Doping Rule Violation is asserted to have occurred. Any violation of Rule 3229 is also subject to a 10-year limitation period.
(b) No charge may be brought against a Covered Person or in relation to a Covered Horse in respect of a Controlled Medication Rule Violation unless the Covered Person or Responsible Person for the Covered Horse has been given notice, or notification has been reasonably attempted, within 2 years of the date the Controlled Medication Rule Violation is asserted to have occurred. Any violation of Rule 3329 is also subject to a 2-year limitation period.
(c) Any violation of Rule 3510 is subject to a 4-year limitation period.
(a) The Prohibited List identifies Prohibited Substances and Prohibited Methods that are:
(1) prohibited at all times (Banned Substances and Banned Methods) on the basis of the Agency's determination that medical, veterinary, or other scientific evidence or experience supports their actual or potential (i) ability to enhance the performance of Covered Horses, (ii) masking properties, or (iii) detrimental impact on horse welfare; or
(2) prohibited for Use or Administration in relation to a Covered Horse during the Race Period and prohibited to be present in a Post-Race Sample or Post-Work Sample, except as otherwise specified in the Prohibited List (Controlled Medication Substances and Controlled Medication Methods).
(b) Prohibited Substances and Prohibited Methods may be included in the Prohibited List by general category (
(c) The Prohibited List is supplemented by the “Technical Document—Prohibited Substances,” which provides guidance on the Prohibited Substances that fall into the general categories listed in the Prohibited List and on Screening Limits, Thresholds, or Detection Times for those Prohibited Substances (as applicable), and also designates certain Prohibited Substances as Specified Substances, which are those that pose a higher risk of being the result of contamination and, therefore, are subject to more flexible sanctions.
(d) Certain Prohibited Substances may first be reported as Atypical Findings requiring further investigation before being declared as Adverse Analytical Findings, in accordance with the Atypical Findings Policy set out at Appendix 1 to the Protocol.
The Agency will publish the Prohibited List on its website at least
The Authority (on recommendation of the ADMC, in consultation with the Agency) may revise the Prohibited List from time to time, subject to approval by the Commission. Revisions to the Prohibited List will go into effect on the date specified in the revised Prohibited List (which will not be any earlier than 90 days following its publication). The Agency will also publish any Technical Documents supplementing the Prohibited List (including the Technical Document—Prohibited Substances) on its website at least annually, following an opportunity for public comment. Any revisions to such Technical Documents will go into effect on the date specified in the revised Technical Document.
All Covered Persons shall be bound by the Prohibited List and related Technical Documents (including the Technical Document—Prohibited Substances), and any revisions thereto, from the date they go into effect, without further formality. It is the responsibility of all Covered Persons to familiarize themselves with the most up-to-date version of the Prohibited List and related Technical Documents (including the Technical Document—Prohibited Substances) and all revisions thereto.
The following decisions are final and shall not be subject to any challenge by any Covered Person or other Person on any basis, including any challenge based on an argument that the substance or method is not a masking agent or does not have the potential to enhance the performance of Covered Horses or have a detrimental impact on horse welfare:
(a) the Authority's determination of the Prohibited Substances and Prohibited Methods included on the Prohibited List or Technical Document—Prohibited Substances;
(b) the approval of the Prohibited List or Technical Document—Prohibited Substances by the Commission or the Authority;
(c) the classification of substances and methods into categories or classes on the Prohibited List or Technical Document—Prohibited Substances;
(d) the classification of a substance or method as a Banned Substance or Banned Method as opposed to a Controlled Medication Substance or Controlled Medication Method;
(e) the periods during which Prohibited Substances or Prohibited Methods are prohibited; and
(f) the classification of Prohibited Substances as either Specified Substances or non-Specified Substances.
The Agency may approve a monitoring program regarding substances that are not on the Prohibited List or Technical Document—Prohibited Substances, if the Agency wishes to research or monitor such substances, including to identify potential patterns of misuse in horseracing. Laboratories will report the instances of reported Use or detected presence of monitored substances to the Agency, but the results of any such analyses shall not constitute an Anti-Doping Rule Violation or Controlled Medication Rule Violation. Nothing in this Rule 3114 or elsewhere in the Protocol prevents a Laboratory from sharing information with the Agency for any anti-doping or controlled medication purpose or other purpose authorized by the Act. The list of substances in the monitoring program will be reviewed annually by the Agency.
(a) The Agency shall have the burden of establishing that a violation of the Protocol has occurred to the comfortable satisfaction of the hearing panel, bearing in mind the seriousness of the allegation that is made. This standard of proof in all cases is greater than a mere balance of probability (
(b) Where the Protocol places the burden of proof on a Covered Person to rebut a presumption or to establish specified facts or circumstances, the standard of proof shall be by a balance of probability (
Facts related to violations may be established by any reliable means, including admissions. The following rules of proof shall apply:
(a) Analytical methods, Minimum Reporting Levels, Thresholds, Screening Limits, Decision Limits, and any other Laboratory reporting requirements approved by the Commission are presumed to be scientifically valid.
(b) Compliance with the Standards (as opposed to an alternative standard, practice, or procedure) will be sufficient to conclude that the procedures addressed by those Standards were performed properly.
(c) Laboratories are presumed to have conducted Sample analysis and custodial procedures in accordance with the Laboratory Standards. A Covered Person who is alleged to have committed a violation may rebut this presumption by establishing that a departure from the Laboratory Standards occurred that could reasonably have caused the Adverse Analytical Finding or other factual basis for any other violation asserted. Where the presumption is rebutted, the Agency shall have the burden of establishing that such departure did not cause the Adverse Analytical Finding or other factual basis for the violation asserted.
(d) Departures from any other Standards or any provisions of the Protocol shall not invalidate analytical results or other evidence of a violation, and shall not constitute a defense to a charge of such violation; provided, however, that if the Covered Person establishes that a departure from any other Standards or any provisions of the Protocol could reasonably have caused the Adverse Analytical Finding or other factual basis for the violation charged, the Agency shall have the burden to establish that such departure did not cause the Adverse Analytical Finding or other factual basis for the violation.
(e) Non-appealable and final factual findings of a court, arbitral tribunal, professional disciplinary body, or administrative body of competent jurisdiction shall be irrebuttable evidence against the Covered Person to whom the decision pertained of those facts, unless the Covered Person establishes that the decision did not respect due process.
(f) A hearing panel may draw an inference adverse to a Covered Person who is asserted to have committed a violation of the Protocol based on the Covered Person's refusal to cooperate with the Agency, including any refusal to respond to questions put to him or her as part of an investigation or to appear at the hearing (either in person or remotely) and to answer questions put by the Agency or the hearing panel.
Testing and investigations may be undertaken to assist in the effective policing and enforcement of the Protocol, including to obtain evidence regarding potential violations of the Protocol.
(a) Only the Agency (and those authorized by the Agency) may initiate and direct Testing on Covered Horses. The Agency has authority to conduct Testing both in and out of competition.
(b) No other entity (including State Racing Commissions, Racetracks, Race Organizers, and Training Facilities) may initiate or direct any Testing on Covered Horses. However, a State Racing Commission, Racetrack, Race Organizer, or other third party may request that the Agency initiate and direct enhanced or additional Testing (
(c) Covered Horses may be subject to Testing at any time and any place where they are located by or on behalf of the Agency.
(d) A Covered Horse that is subject to a Provisional Suspension or period of Ineligibility, or that sustains a fatal condition, remains subject to Testing.
(e) In accordance with the Racetrack Safety Program, a Covered Horse may be required to submit to Sample collection (at the Owner's cost) following a Vets' List Workout in order to be released from the Veterinarians' List. Any Sample collected following a Vets' List Workout constitutes a Post-Race Sample, and, as a result, is subject to all of the same requirements that apply to Sample collection at Covered Horseraces. To schedule a Vets' List Workout, the Responsible Person or the Owner of the Covered Horse shall make a request to a Regulatory Veterinarian who shall, in turn, notify the Agency in order to make any necessary arrangements. The Agency must be given a minimum of 48 hours' notice of any Vets' List Workout.
(a) Testing. The Agency shall conduct test distribution planning and Testing in accordance with the Testing and Investigations Standards. The Agency may delegate authority to third parties, including State Racing Commissions (see Rule 3132), to conduct Testing (or aspects thereof) in accordance with the Testing and Investigations Standards under its supervision.
(b) Investigations and intelligence gathering. The Agency shall gather intelligence and conduct investigations, or delegate to third parties to do so under its supervision, in accordance with the Testing and Investigations Standards, which incorporate uniform rules and procedures in accordance with section 3054 of the Act providing for:
(1) access for the Agency to books, records, offices, racetrack facilities, and other places of business of Covered Persons that are used in the care, treatment, training, or racing of Covered Horses;
(2) the issuance and enforcement of subpoenas and subpoenas duces tecum by the Authority at the request of the Agency;
(3) the exercise of other investigatory powers similar in nature and scope to those exercised by State Racing Commissions before the Program Effective Date; and
(4) the coordination and sharing of intelligence and information with the Authority, law enforcement (authorized by any government, including Federal, State, or international), State Racing Commissions, Racetracks, Race Organizers, Training Facilities, Laboratories, anti-doping organizations, equine regulatory bodies, or other relevant regulatory or disciplinary authorities.
Samples shall be analyzed in accordance with the principles set forth in Rules 3135 through 3139.
Samples collected under the Protocol are the property of the Authority, and the Authority is entitled (subject to Rule 3138(b)) to determine all matters regarding access to and the analysis and disposal of such Samples.
(a) The Agency will publish a list of approved Laboratories, which may be revised from time to time.
(b) Subject to paragraph (d) below, Samples collected by or on behalf of the Agency pursuant to the Protocol will be analyzed by approved Laboratories. Only approved Laboratories may declare an Adverse Analytical Finding.
(c) Selection of Laboratories
(1) Subject to paragraph (2) below, a State Racing Commission may select a Laboratory to analyze A Samples or TCO2 Samples collected in its State. If a State Racing Commission does not select a Laboratory, the selection of the Laboratory to analyze such Samples shall be determined exclusively by the Agency.
(2) The Agency shall have the authority to require specific Samples to be directed to and analyzed by Laboratories having special expertise in the required analysis.
(3) The selection of the Laboratory for any B Sample analysis shall be determined exclusively by the Agency. The B Sample analysis (if applicable) will be performed in a different Laboratory from the A Sample analysis, except if provided otherwise in the Laboratory Standards.
(d) In accordance with Rule 3122, facts related to violations of the Protocol may be established by any reliable means. This would include, for example, laboratory analysis or other forensic testing conducted reliably outside of Agency-approved laboratories.
(a) General. Samples, related analytical data, Doping Control information, and Medication Control information shall be analyzed (1) to detect the presence of Prohibited Substances and Prohibited Methods identified on the Prohibited List (or Technical Document—Prohibited Substances) and other substances as may be directed pursuant to Rule 3114, (2) to assist the Agency in profiling relevant parameters in a Covered Horse's urine, blood, hair, or other matrix, including for DNA or genomic profiling, or (3) for any other legitimate purpose.
(b) Research on Samples and Data. Samples, related analytical data, Doping Control information, and Medication Control information may be used for anti-doping or medication control research purposes. However, the results of any analyses performed for such research purposes may not be used as the basis for pursuing an Anti-Doping Rule Violation or Controlled Medication Rule Violation.
(a) General. Laboratories may not accept or analyze any Samples from Covered Horses that were not collected
(b) Further Analysis of a Sample prior to or during Results Management. Further Analyses may be conducted, without limitation, on a Sample prior to the time that it is reported as negative or prior to the time that the Agency notifies a Covered Person that the Sample is the basis for an Anti-Doping Rule Violation or Controlled Medication Rule Violation. If the Agency notifies a Covered Person that the Sample is the basis for an Anti-Doping Rule Violation or Controlled Medication Rule Violation, and the Agency wishes to conduct Further Analyses on that Sample after such notification, it may do so only with the consent of the Covered Person or the approval of the hearing panel adjudicating the case against the Covered Person.
(c) Further Analysis of a Sample after it has been reported as negative or has otherwise not resulted in an Anti-Doping Rule Violation or Controlled Medication Rule Violation. A Sample that has been reported as negative or has otherwise not resulted in a charge may be stored and subjected to Further Analyses for the purpose described in Rule 3137 at any time exclusively at the direction of the Agency. Any Sample storage and Further Analysis initiated by the Agency shall be at the Agency's expense. Further Analysis of Samples shall be conducted in accordance with the Laboratory Standards.
(d) Split of A or B Sample. Where, in exceptional circumstances, the Laboratory (on instruction from the Agency) is required to further split an A or B Sample for the purpose of using the first part of the resulting split Sample for an A Sample analysis and the second part of the resulting split Sample for B confirmation, the procedures and analysis shall be conducted in accordance with the Laboratory Standards.
The Agency may at any time, with or without prior notice, take physical possession of any Sample collected by or on behalf of the Agency and any related analytical data or information in the possession of a Laboratory. Upon request by the Agency, the Laboratory in possession of the Sample or related data shall grant access to and enable the Agency to take physical possession of the Sample or data as soon as possible.
Clearance testing for a Covered Horse at the request of a Covered Person (
(a) Doping cases will be initiated based on the assertion that one or more of Rules 3212 through 3216 has been violated (each, an Anti-Doping Rule Violation).
(b) The Anti-Doping Rule Violations described below may only be committed by Covered Persons, but the Consequences for Anti-Doping Rule Violations may apply to both the Covered Person(s) who commit(s) the violation and any Covered Horse(s) implicated by the violation.
(c) All Covered Persons are responsible for knowing what constitutes an Anti-Doping Rule Violation and what Banned Substances and what Banned Methods are included on the Prohibited List and Technical Document—Prohibited Substances.
(a) It is the personal and non-delegable duty of the Responsible Person to ensure that no Banned Substance is present in the body of his or her Covered Horse(s). The Responsible Person is therefore strictly liable for any Banned Substance or its Metabolites or Markers found to be present in a Sample collected from his or her Covered Horse(s). Accordingly, it is not necessary to demonstrate intent, Fault, negligence, or knowing Use on the part of the Responsible Person in order to establish that the Responsible Person has committed a Rule 3212 Anti-Doping Rule Violation.
(b) Sufficient proof of a Rule 3212 Anti-Doping Rule Violation is established by any of the following:
(1) the presence of a Banned Substance or its Metabolites or Markers in the Covered Horse's A Sample where the Responsible Person waives analysis of the B Sample and the B Sample is not analyzed;
(2) the Covered Horse's B Sample is analyzed and the analysis of the B Sample confirms the presence of the Banned Substance or its Metabolites or Markers found in the A Sample; or
(3) where, in exceptional circumstances, the Laboratory (on instruction from the Agency) further splits the A or B Sample into two parts in accordance with the Laboratory Standards, the analysis of the second part of the resulting split Sample confirms the presence of the same Banned Substance or its Metabolites or Markers as were found in the first part of the split Sample, or the Responsible Person waives analysis of the second part of the split Sample.
(c) The general rule is that the presence of any amount of a Banned Substance or its Metabolites or Markers in a Sample collected from a Covered Horse constitutes an Anti-Doping Rule Violation by the Responsible Person of that Covered Horse.
(d) As an exception to the general rule of Rule 3212(c), the Prohibited List, Standards, or Technical Documents may establish special criteria for the reporting or the evaluation of certain Banned Substances, including a Minimum Reporting Level, Screening Limit, Threshold, or Decision Limit.
(a) Subject to Rule 3213(c), the Use or Attempted Use of a Banned Substance or Banned Method in relation to a Covered Horse constitutes an Anti-Doping Rule Violation. The success or failure of that Use or Attempted Use is not material. For a Rule 3213 violation to be committed, it is sufficient that the Banned Substance or Banned Method was Used or Attempted to be Used.
(b) It is the personal and non-delegable duty of the Responsible Person to ensure that no Banned Substance or Banned Method is Used in relation to his or her Covered Horse. The Responsible Person is therefore strictly liable for any Use of a Banned Substance or Banned Method in relation to his or her Covered Horse(s). Accordingly, it is not necessary to demonstrate intent, Fault, negligence, or knowing Use on the part of the Responsible Person in order to establish that the Responsible Person has committed a Rule 3213 Anti-Doping Rule Violation of Use. However, in accordance with the definition of
(c) The presence of a Prohibited Substance or of evidence of Use of a Prohibited Method in the Covered Horse's Sample or other evidence of Use of such Prohibited Substance or Prohibited Method shall not be considered an Anti-Doping Rule Violation if it is determined to have resulted from Use of the Banned Substance or Banned Method prior to the horse becoming a Covered Horse. However, any such Use is subject to Rule 3040(b)(9) and may be reported to the relevant State Racing Commission.
The following acts and omissions constitute Anti-Doping Rule Violations by the Covered Person(s) in question:
(a) Possession of a Banned Substance or a Banned Method, unless there is compelling justification for such Possession.
(b) Trafficking or Attempted Trafficking in any Banned Substance or Banned Method.
(c) Administration or Attempted Administration to a Covered Horse of any Banned Substance or any Banned Method.
(a) Except as provided in Rule 3215(d), each of the following constitutes an Anti-Doping Rule Violation: (1) evading collection of a Sample from a Covered Horse, (2) refusing or failing without compelling justification to submit a Covered Horse to Sample collection after notification by a duly authorized person, or (3) refusing or failing to comply with all Sample collection procedure requirements.
(b) Responsible Persons are responsible for ensuring compliance with Rules 3040(b)(1) and 3040(b)(2). A Responsible Person may delegate the submission and supervision of the Covered Horse to a third party, but the Responsible Person remains responsible for the Covered Horse throughout the Sample collection process and for the acts and omissions of his or her delegate. Therefore, the Responsible Person shall be deemed liable for any evasion by his or her delegate of Sample collection, any refusal or failure by his or her delegate without compelling justification to submit the Covered Horse to Sample collection, or any refusal or failure by his or her delegate to comply with all Sample collection procedure requirements.
(c) Sample collection shall ordinarily be conducted where the Covered Horse is located (
(d) No violation occurs where a Covered Horse is made available for Sample collection, but a Sample is not collected because the Covered Horse is intractable.
The following acts and omissions constitute Anti-Doping Rule Violations by the Covered Person(s) in question:
(a) Tampering or Attempted Tampering by a Covered Person with any part of Doping Control or Medication Control;
(b) a Covered Person assisting, encouraging, aiding, abetting, conspiring, covering up, or engaging in any other type of intentional complicity or Attempted complicity involving (1) an Anti-Doping Rule Violation or Attempted Anti-Doping Rule Violation, or (2) a violation of Rule 3229 by another Covered Person.
(c) Prohibited Association:
(1) Association by a Covered Person in a professional or sport-related capacity with any Person who:
(i) is serving a period of Ineligibility imposed pursuant to the Protocol or is serving a period of ineligibility imposed pursuant to anti-doping rules administered by any other equine regulatory body or anti-doping organization; or
(ii) has been found in a criminal, disciplinary, or professional proceeding to have engaged in conduct that would have constituted a violation of the Protocol if it had been applicable to such Person at the relevant time. The disqualifying status of such Person shall last for the longer of:
(A) 6 years from the criminal, professional, or disciplinary decision; and (B) the duration of the criminal, disciplinary, or professional sanction imposed; or
(iii) is serving as a front or intermediary for an individual falling within paragraph (i) or (ii) above.
(2) To establish a violation of Rule 3216(c), the Agency must establish that the Covered Person knew at the relevant time of the Person's disqualifying status. It is presumed that any association with the Person described in Rules 3216(c)(1)(i) and (ii) is in a professional or sport-related capacity, and the burden shall be on the Covered Person to rebut that presumption.
(3) It shall be a defense to a charge of violation of Rule 3216 if the Covered Person establishes that the association with the Person could not have been reasonably avoided.
(d) Acts by a Covered Person to discourage or retaliate against reporting to authorities.
(1) Where such conduct does not otherwise constitute a violation under Rule 3216(a) (Tampering or Attempted Tampering), each of the following constitutes an Anti-Doping Rule Violation under this Rule 3216(d):
(i) any act that threatens or seeks to intimidate another Person with the intent of discouraging that Person from the good faith reporting of information that relates to an alleged Anti-Doping Rule Violation or other alleged non-compliance with the Protocol to the Agency or other appropriate Person; and
(ii) retaliation against a Person who, in good faith, has provided evidence or information that relates to an alleged Anti-Doping Rule Violation or other alleged non-compliance with the Protocol to the Agency or other appropriate entity or Person.
(2) For purposes of Rule 3216(d), threatening or seeking to intimidate a Person, and retaliation against a Person, include an act taken against such Person that lacks a good faith basis or is a disproportionate response.
(a) Automatic Disqualification of results.
(1) An Anti-Doping Rule Violation that arises from a Post-Race Sample, or that occurs during the Race Period, automatically leads to Disqualification of the results of the Covered Horse obtained on the Race Day(s) that fall(s) within the Race Period, even if any other sanction for the violation is eliminated or reduced under Rules 3224, 3325, or 3226.
(2) In circumstances where an EAD Notice has been sent as required under Rule 3245, and the B Sample analysis confirms the A Sample analysis, or the right to request the analysis of the B Sample is waived, the Agency, the Responsible Person, and the Owner of the Covered Horse in question may agree to apply Rule 3221 immediately,
(b) Disqualification of subsequent results.
(1) Subject to paragraph (2), in addition to the automatic Disqualification of results under Rule 3221(a), any other results that the Covered Horse obtained from the date the Anti-Doping Rule Violation first occurred, as well as during any period of retroactive Ineligibility, shall be Disqualified, unless it is established by the Responsible Person that fairness requires otherwise.
(2) If the Anti-Doping Rule Violation occurs in relation to a Claiming Race in which the Covered Horse is claimed, Rule 3221(b)(1) shall not apply to any results obtained by the Covered Horse under the new ownership.
(c) Consequence of Disqualification of results:
(1) If a Covered Horse has results Disqualified under the Protocol, all purses and other compensation, prizes, trophies, points, and rankings are forfeited and must be repaid or surrendered (as applicable) to the Race Organizer, and the results of the other Covered Horses in the race(s) in question must be adjusted accordingly and the purses, prizes, and trophies redistributed. Purses, prizes, trophies, and other compensation shall (where possible) be withheld for the Covered Horse in issue pending resolution of the relevant charge.
(2) The Covered Horses that participated in a Covered Horserace involving an alleged Anti-Doping Rule Violation are often entered in other Covered Horseraces prior to the final adjudication of the violation. The ultimate Disqualification of a Covered Horse in connection with final adjudication of a violation shall only impact that horse's conditions for eligibility. By way of example, a maiden that is Disqualified after finishing first in a maiden race shall remain a maiden until it has won another race, but the runner-up in the disputed Covered Horserace shall not be considered the winner for purposes of its future condition eligibility. The adjustment to the Disqualified horse's condition eligibility shall only occur once the violation has been finally adjudicated.
(a) For a violation of Rule 3212 (presence), 3213 (Use or Attempted Use), or Rule 3214(c) (Administration or Attempted Administration), the Covered Horse involved shall be Ineligible for the period designated in the Prohibited List for the Banned Substance or Banned Method in issue.
(b) For a violation of Rule 3215 involving evasion of Sample collection, the Covered Horse shall be Ineligible for 18 months. For a violation of Rule 3215 involving refusal or failure to submit to Sample collection, or refusal or failure to comply with all Sample collection procedure requirements, the Covered Horse shall be Ineligible for 18 months, unless it is established by the Responsible Person that fairness requires otherwise, in which case the period of Ineligibility may be reduced, depending on the specific circumstances of the case and considerations of horse welfare.
(c) Rule 3228 on increased periods of Ineligibility for repeat offenders does not apply to Covered Horses.
(d) The period of Ineligibility for a Covered Horse shall be deemed to commence on the date that the violation occurred (which, in the case of a Rule 3212 violation, shall be the date that the positive Sample was collected, even if the Covered Horse has participated in Timed and Reported Workouts or Covered Races after that date).
(a) General.
(1) The periods of Ineligibility and financial penalties set out in this Rule 3223 apply to the Covered Person's first doping offense. Where an offense is not the Covered Person's first doping offense, Rule 3228 applies.
(2) Unless specified otherwise, the periods of Ineligibility set out in this Rule 3223 are subject to potential elimination, reduction, or suspension pursuant to Rules 3224 to 3226 or potential increase pursuant to Rule 3227.
(3) In accordance with Rule 3247(i), any period of Provisional Suspension served by the Covered Person shall be credited against the period of Ineligibility ultimately imposed on that Covered Person for the violation in question.
(b) Consequences.
Subject to Rule 3223(a), and in addition to any other Consequences that apply under the Protocol (including Disqualification), the periods of Ineligibility and financial penalties specified below shall apply to a Covered Person for his or her first Anti-Doping Rule Violation:
(c) Commencement of the period of Ineligibility for a Covered Person.
(1) Except as otherwise provided in this Rule 3223, the period of Ineligibility imposed on any Covered Person shall start on the date the period of Ineligibility is accepted or otherwise imposed in accordance with the Protocol.
(2) Where a Covered Person is already serving a period of Ineligibility for another violation of the Protocol, any new period of Ineligibility shall start to run the day after the original period of Ineligibility ends.
(3) Where there have been substantial delays in the adjudication process or other aspects of Doping Control that go well beyond the standard timeframes for Laboratory analyses and Results Management, and the Covered Person can establish that such delays are not attributable to him or her, the start date of the period of Ineligibility may be deemed back-dated to reflect such delays, but in no event may it be deemed back-dated to a date before the Anti-Doping Rule Violation last occurred. All competitive results achieved during the period of Ineligibility by the Covered Person or Covered Horse in issue, including retroactive Ineligibility, shall be Disqualified, unless it is established by the Covered Person that fairness requires otherwise.
(a) If a Covered Person establishes in an individual case that he or she bears No Fault or Negligence for the Anti-Doping Rule Violation(s) charged, the otherwise applicable period of Ineligibility and other Consequences for such Covered Person shall be eliminated (except for those set out in Rule 3221(a) and Rule 3620). When the violation is of Rule 3212 (presence of a Banned Substance), the Covered Person must also establish how the Banned Substance entered the Covered Horse's system as a pre-condition to application of this Rule 3224(a). In the event the period of Ineligibility otherwise applicable is eliminated pursuant to this Rule 3224, the Anti-Doping Rule Violation shall not be considered a prior violation for the purpose of Rule 3228.
(b) Rule 3224 only applies in exceptional circumstances. In particular, it will not apply where the Banned Substance found to be present in a Sample: (1) came from a mislabeled or contaminated supplement; or (2) was administered to the Covered Horse by veterinary or other support personnel without the knowledge of the Responsible Person.
(c) A finding that the Covered Person bears No Fault or Negligence for an Anti-Doping Rule Violation shall not affect the Consequences of that violation that apply to the Covered Horse (
Reductions under this Rule 3225 are mutually exclusive and not cumulative,
(a) General rule.
Where the Covered Person establishes that he or she bears No Significant Fault or Negligence for the Anti-Doping Rule Violation in question, then (unless Rule 3225(b) or 3225(c) applies) the period of Ineligibility shall be fixed between 3 months and 2 years, depending on the Covered Person's degree of Fault.
(b) Specified Substances.
Where the Covered Person establishes that he or she bears No Significant Fault or Negligence for the Anti-Doping Rule Violation in question, and the violation involves only a Specified Substance, the period of Ineligibility shall be, at a minimum, a reprimand and no period of Ineligibility, and, at a maximum, 2 years of Ineligibility, depending on the Covered Person's degree of Fault.
(c) Contaminated Products or other contamination.
Where the Covered Person establishes that he or she bears No Significant Fault or Negligence for the Anti-Doping Rule Violation in question and that the Banned Substance in question came from a Contaminated Product or from another form of contamination, the period of Ineligibility shall be, at a minimum, a reprimand and no period of
(a) Substantial Assistance. The Agency may suspend all or part of the Consequences imposed on a Covered Person in an individual doping case—other than Disqualification of results pursuant to Rule 3221—based on the following:
(1) The Covered Person provides Substantial Assistance to the Agency, the Authority, or a State Racing Commission, a criminal authority, or a professional disciplinary body that results in:
(i) the Agency discovering or bringing forward an Anti-Doping Rule Violation or a Controlled Medication Rule Violation by another Covered Person; or
(ii) a criminal or disciplinary body discovering or bringing forward a sport-related criminal offense or the breach of professional or sports rules by another Person, including offenses arising out of a sport integrity violation or sport safety violation, or the violation of any rule or requirement in the Act, and the information provided by the Covered Person providing Substantial Assistance is also made available to the Agency.
(2) The extent to which the otherwise applicable period of Ineligibility may be suspended shall be based on the seriousness of the Anti-Doping Rule Violation committed by the Covered Person and the degree to which the Substantial Assistance provided by the Covered Person assists the effort to promote doping-free racing, compliance with the Protocol, or the integrity of racing. In any event, no more than three-quarters of the otherwise applicable period of Ineligibility may be suspended. If the otherwise applicable period of Ineligibility is a lifetime, the non-suspended period under this section must be no less than 8 years. For purposes of this Rule 3226, the otherwise applicable period of Ineligibility shall not include any period of Ineligibility that could be added under Rule 3228(c)(2).
(3) If so requested, the Agency shall allow the Covered Person who seeks to provide Substantial Assistance to provide the information to the Agency subject to a Without Prejudice Agreement.
(4) If the Covered Person fails to continue to cooperate or fails to provide the complete, accurate, and credible Substantial Assistance promised, the Agency shall reinstate the original Consequences. That decision is not subject to review.
(b) Voluntary Admission of an Anti-Doping Rule Violation in the absence of other evidence. If (1) the Covered Person voluntarily admits the commission of an Anti-Doping Rule Violation before receiving the EAD Notice or (in the case of a Rule 3212 violation) before having received notice of a Sample collection that could establish the Anti-Doping Rule Violation, and (2) that admission is the only reliable evidence of the violation at the time the admission is made, the otherwise applicable period of Ineligibility may be reduced by up to one-half.
(c) Application of multiple grounds for reduction of a sanction. If the Covered Person establishes entitlement to a reduction or suspension of the period of Ineligibility under 2 or more of Rules 3224, 3225, or 3226, the otherwise applicable period of Ineligibility shall be determined in accordance with Rules 3223, 3224, and 3225 before applying any reduction or suspension under Rule 3226. If the Covered Person establishes entitlement to a reduction or suspension of the period of Ineligibility under Rule 3226, up to three-quarters of the otherwise applicable period of Ineligibility may be reduced or suspended.
(d) Reductions for certain Anti-Doping Rule Violations based on early admission and acceptance of sanction.
(1) If the Agency notifies a Covered Person of a potential Anti-Doping Rule Violation that carries an asserted period of Ineligibility of 4 or more years (including any period of Ineligibility asserted under Rule 3227), if the Covered Person admits the violation and accepts the asserted period of Ineligibility no more than 7 days after receiving the Charge Letter, the period of Ineligibility to be served will be automatically reduced by 1 year (but no further reduction shall be allowed under any other Rule).
(2) If the Agency notifies a Covered Person of a potential Anti-Doping Rule Violation that carries an asserted period of Ineligibility of 2 years or more years, but less than 4 years (including any period of Ineligibility asserted under Rule 3227), if the Covered Person admits the violation and accepts the asserted period of Ineligibility no more than 7 days after receiving the Charge Letter, the period of Ineligibility to be served will be automatically reduced by 6 months (but no further reduction shall be allowed under any other Rule).
(a) In an individual case involving an Anti-Doping Rule Violation that is not a Rule 3214(b) violation (Trafficking or Attempted Trafficking) or a Rule 3216(d) violation (acts to discourage or retaliate against reporting), if the Agency establishes that Aggravating Circumstances are present, the period of Ineligibility otherwise applicable shall be increased by up to 2 years, depending on the seriousness of the Aggravating Circumstances, unless the Covered Person establishes that he or she did not knowingly commit the Anti-Doping Rule Violation. Where the period of Ineligibility is increased pursuant to this Rule, an additional fine of up to $10,000 or an additional 10% of the total purse (whichever is greater) may also be imposed.
(b) Actions and circumstances constituting Aggravating Circumstances include:
(1) Administration of a Banned Substance or Use of a Banned Method that is detrimental to the health and welfare of the horse or is designed to deceive the betting public;
(2) the presence in the Covered Horse's Sample of a combination of Banned Substance(s) and Controlled Medication Substance(s);
(3) prior violations under the Protocol; or
(4) the Covered Person engaged in deceptive or obstructive conduct to avoid the detection or adjudication of an Anti-Doping Rule Violation or a Controlled Medication Rule Violation, for which the Covered Person has not been separately sanctioned for Tampering.
(c) For the avoidance of doubt, the examples set out in Rule 3227(b) are not exhaustive and other similar circumstances or conduct may also be deemed to amount to Aggravating Circumstances that justify the imposition of a longer period of Ineligibility.
(a) For purposes of this Rule 3228, the following prior Anti-Doping Rule Violations shall be disregarded: (1) violations that occurred more than 10 years prior to the violation now being sanctioned; and (2) violations for which the Covered Person was found to bear No Fault or Negligence.
(b) Subject to Rule 3228(a), and in addition to any other Consequences that apply under the Protocol (including Disqualification), the periods of Ineligibility and financial penalties specified below shall apply to any Covered Person who commits a second or subsequent Anti-Doping Rule Violation:
(c) Additional rules for certain multiple violations.
(1) Multiple violations for the same Banned Substance/Method incurred by a Covered Person in relation to the same Covered Horse prior to delivery of an EAD Notice may (at the Agency's discretion) be treated together as a single Anti-Doping Rule Violation, unless the facts demonstrate that there was more than one administration. Multiple violations for the same Banned Substance/Method incurred by a Covered Person in relation to different Covered Horses prior to delivery of an EAD Notice may (at the Agency's discretion) each be treated as a first Anti-Doping Rule Violation. Where multiple Banned Substances are detected in a single Post-Race Sample or Post-Work Sample, each Banned Substance may (at the Agency's discretion) be treated as a separate violation.
(2) If the Agency establishes that, prior to receiving an EAD Notice in respect of one Anti-Doping Rule Violation, the Covered Person committed an additional Anti-Doping Rule Violation that occurred 12 months or more before or after the violation asserted in that EAD Notice, the period of Ineligibility for the additional violation shall be calculated as if the additional violation were a stand-alone first violation, and that period of Ineligibility will run consecutively to (rather than concurrently with) the period of Ineligibility imposed for the first-notified violation. Where this Rule applies, the violations taken together will constitute a single violation for purposes of Rule 3228.
(3) If a Doping Control process results in the assertion of an Anti-Doping Rule Violation, and the Agency establishes that the Covered Person committed an independent violation of Rule 3216(a) (Tampering) in connection with that Doping Control process, the Rule 3216(a) (Tampering) violation shall be treated as a stand-alone violation and the period of Ineligibility for such violation shall be served consecutively to, rather than concurrently with, the period of Ineligibility imposed for the other Anti-Doping Rule Violation. Where this Rule 3228(c)(3) is applied, the violations taken together shall constitute a single violation for purposes of Rule 3228.
(4) If the Agency establishes that the Covered Person has committed a further violation of the Protocol during a period of Ineligibility, any new period of Ineligibility shall start to run the day after the original period of Ineligibility ends.
(d) Violations involving both a Banned Substance or Method and a Controlled Medication Substance or Method.
Where a Covered Person is found, based on a common set of facts, to have committed a (1) violation involving one or more Banned Substance(s) or Banned Method(s), and (2) a violation involving one or more Controlled Medication Substance(s) or Controlled Medication Method(s), they shall be treated as separate violations, but shall be adjudicated together in consolidated proceedings pursuant to the procedure that applies to Anti-Doping Rule Violations under the Arbitration Procedures.
(a) While serving a Provisional Suspension or period of Ineligibility for an Anti-Doping Rule Violation:
(1) a Covered Horse may not participate in any Timed and Reported Workout or Covered Horserace, but shall remain subject to Testing;
(2) a Covered Person may not participate in any capacity in any activity involving Covered Horses, or in any other activity (other than authorized anti-doping education or rehabilitation programs) taking place at a Racetrack or Training Facility; nor shall he or she permit anyone to participate in any capacity on his or her behalf in any such activities, except to the extent that the Covered Person is an Owner and the activity is necessary to ensure the safekeeping and wellbeing of the horse during the period of such Owner's Provisional Suspension or Ineligibility.
(b) The Covered Horse(s) of an Owner or Trainer who is subject to a Provisional Suspension or period of Ineligibility shall be subject to the following restrictions:
(1) The Covered Horse(s) of a Trainer who is subject to a Provisional Suspension or period of Ineligibility may not participate in any Timed and Reported Workout or Covered Horserace unless and until they have been transferred to another Covered Person. For the “transfer” to be valid, (i) the transfer must be registered with the Authority in accordance with its procedures, and (ii) the Covered Horses must also be physically relocated to facilities under the care or control of a Covered Person who is not affiliated
(2) The Covered Horse(s) of an Owner who is subject to a Provisional Suspension or period of Ineligibility may not participate in any Timed and Reported Workout or Covered Horserace unless and until they have been transferred in a bona fide transaction to a different Owner. If an Immediate Family Member has any ownership or property interest in the Covered Horse(s) following such transfer, the transfer shall not constitute a bona fide transaction to a different Owner.
(a) Consequences for violation of the prohibition on participation during Ineligibility.
(1) If a Covered Person violates the prohibition against participation during Ineligibility described in Rule 3229, any results obtained from such participation shall be Disqualified and a new period of Ineligibility equal in length to the original period of Ineligibility shall be added to the end of the Covered Person's original period of Ineligibility.
(2) If a Covered Horse participates in any Timed and Reported Workout or Covered Horserace in violation of the prohibition against participation during Ineligibility described in Rule 3229, any results obtained from such participation shall be Disqualified and the Responsible Person for that Covered Horse shall receive the following period of Ineligibility:
(i) if the Responsible Person was subject to an original period of Ineligibility, a new period of Ineligibility equal in length to the original period of Ineligibility shall be added to the end of the original period of Ineligibility. If the original period of Ineligibility has already expired, the new period of Ineligibility shall start on the date that it is accepted or imposed; or
(ii) if the Responsible Person was not subject to an original period of Ineligibility, the period of Ineligibility for violating Rule 3229 shall be from a reprimand to 1 year, depending on the Covered Person's degree of Fault.
(b) Consequences for violation of the prohibition on participation during Provisional Suspension.
(1) A Covered Person who violates the prohibition against participation during a Provisional Suspension shall receive no credit for any period of Provisional Suspension served and the results of such participation shall be Disqualified.
(2) If a Covered Horse participates in any Timed and Reported Workout or Covered Horserace in violation of the prohibition against participation during a Provisional Suspension described in Rule 3229, the Responsible Person for that Covered Horse and the Covered Horse shall receive no credit for any period of Provisional Suspension served and the results of such participation shall be Disqualified.
(c) The consequence of Disqualification under this Rule 3230 shall be the same as set out in Rule 3221(c).
(d) The Arbitral Body (or the Agency, if the Covered Person admits the violation and accepts the consequences) shall determine whether there has been a violation of the prohibition against participation during Provisional Suspension or Ineligibility and apply the appropriate consequences pursuant to Rule 3261.
A mandatory part of each sanction shall include automatic Public Disclosure in accordance with Rule 3620.
(a) To be reinstated after commission of an Anti-Doping Rule Violation, the Covered Person must have respected his or her period of Ineligibility (Rule 3229); and repaid or surrendered any purses and other compensation, prizes, trophies, points, and rankings forfeited pursuant to Rule 3221, and paid any fines and reimbursed any costs imposed or accepted to the Agency, unless an installment plan was established pursuant to Rule 3232(b), in which case the Covered Person must have made all payments due under that plan. If any installment(s) subsequently become(s) overdue under that plan (
(b) Where fairness requires, the Agency or the Arbitral Body may establish an installment plan for repayment of amounts due to be paid or reimbursed under the Protocol. The payment schedule may extend beyond any period of Ineligibility imposed upon the Covered Person.
(a) A Covered Horse shall be reinstated once its period of Ineligibility ends, provided that (1) the Ineligibility has been respected in full throughout that period in accordance with Rule 3229, (2) the Covered Horse has been made available for Testing during that period in accordance with Rule 3132(d), and (3) the Covered Horse has completed any Vets' List Workout(s) required by the Racetrack Safety Program or the Agency (for the avoidance of doubt, such workouts may be scheduled prior to the expiry of the period of Ineligibility and will not constitute a violation of Rule 3229).
(b) Any reinstatement pursuant to this Rule 3233 is without prejudice to any rest or stand down period that may be imposed on the Covered Horse (
Where there is evidence of a potential Anti-Doping Rule Violation(s), the Agency will conduct Results Management in accordance with this section 3240 and the Testing and Investigations Standards.
(a) Upon receipt of an Adverse Analytical Finding in relation to an A Sample, the Agency will conduct a review of the Laboratory certificate of analysis supporting the Adverse Analytical Finding and the relevant Sample collection documentation and Testing documents to determine whether the Adverse Analytical Finding was caused by any apparent departure from the Testing and Investigations Standards, the Laboratory Standards, or any provision of the Protocol. Subject to Rule 3242(b), the Agency may, but does not have to, communicate with the Responsible Person and Owner during such review.
(b) If the review under Rule 3242(a) reveals an apparent departure that caused the Adverse Analytical Finding, the entire test shall be considered negative, and the Agency shall promptly inform the Responsible Person and each Interested Party of that fact.
(c) If the initial review of an Adverse Analytical Finding under Rule 3242(a) does not reveal an apparent departure that caused the Adverse Analytical Finding, the Agency shall promptly send an EAD Notice to the Responsible
(a) In certain circumstances, Laboratories may report the presence of certain Banned Substances as “Atypical Findings” in accordance with the Atypical Findings Policy set out at Appendix 1. Upon receipt of an A Sample Atypical Finding, the Agency will conduct a review to determine whether the Atypical Finding was caused by a departure from the Testing and Investigations Standards, the Laboratory Standards, or any provision of the Protocol. If that review does not reveal any departure that caused the Atypical Finding, the Agency will conduct an investigation (including directing any Further Analysis) or take any other steps required to decide whether the Atypical Finding should be brought forward as an Adverse Analytical Finding, in accordance with the Atypical Findings Policy.
(b) The Agency may, but does not have to, provide notice of an Atypical Finding to anyone until it has made that decision unless one of the following circumstances exists:
(1) if the Agency determines that the B Sample should be analyzed prior to the conclusion of its investigation, the Agency may conduct the B Sample analysis after notifying the Responsible Person and the Owner, with such notice to include a description of the Atypical Finding and the information described in Rule 3245; or
(2) if the Atypical Finding is likely connected to a serious pathology that requires urgent veterinary attention.
(c) If the Agency ultimately decides not to pursue the Atypical Finding as an Adverse Analytical Finding, the Agency may, but does not have to, communicate that fact to the Responsible Person and Owner unless he or she has previously received notice of the Analytical Finding pursuant to Rule 3243(b).
(d) If the Agency decides to move forward with the matter as an Adverse Analytical Finding, the Agency shall promptly send an EAD Notice to the Responsible Person and each Interested Party.
The Agency shall conduct any follow-up investigation required into any potential Anti-Doping Rule Violation not covered by Rules 3242 or 3243. At such time as the Agency is satisfied that it has sufficient evidence to establish that an Anti-Doping Rule Violation occurred, it shall promptly send an EAD Notice to the relevant Covered Person and each Interested Party.
(a) Where it is determined that a Covered Person may have committed one or more Anti-Doping Rule Violations, the Agency will promptly notify the Covered Person and each Interested Party in writing of the following (the EAD Notice):
(1) the alleged Anti-Doping Rule Violation and the Consequences if it is agreed or determined to have been committed;
(2) the Adverse Analytical Finding (with a copy of the Laboratory certificate of analysis in a form designated by the Agency) or a brief summary of the facts relied on by the Agency to assert the alleged violation (including, where applicable, the name of the Covered Horse implicated in the alleged violation, whether the alleged violation was in connection with a particular Covered Horserace, and the date of Sample collection or of the other relevant facts said to give rise to the violation);
(3) if applicable, the right of the Responsible Person and the Owner to receive copies of the A Sample Laboratory Documentation Package after the B Sample analysis has been completed or after such analysis is waived;
(4) if applicable, the following details regarding the B Sample analysis:
(i) that the B Sample has been (or will be) analyzed because the Agency has authorized immediate analysis to preserve the scientific integrity of the Sample;
(ii) if the B Sample has not been analyzed, the Responsible Person's and Owner's right to promptly request the analysis of the B Sample within no more than 5 days or (failing such request) that the B sample analysis shall be deemed to be waived;
(iii) an explanation that, where the Responsible Person or Owner requests the B Sample analysis within the applicable deadline, or where the Agency decides to proceed with the B Sample analysis, the Agency will notify the Responsible Person and Owner of the date, time, and place where the B Sample will be analyzed and (where the analysis is requested by the Responsible Person or Owner) the amount that the Responsible Person or Owner must pay to have the B Sample tested and B Sample Laboratory Documentation Package prepared, and the date by which such payment must be received, failing which the B Sample analysis shall be deemed to have been waived; and
(5) the opportunity for the Covered Person to provide an explanation within a short deadline set by the Agency;
(6) the opportunity to provide Substantial Assistance, to admit the Anti-Doping Rule Violation, or to seek to resolve the matter without a hearing under Rule 3249;
(7) all relevant details relating to any Provisional Suspension (including, if applicable, the possibility to accept a voluntary Provisional Suspension) in accordance with Rule 3247; and
(8) if applicable, the ability for the automatic Disqualification of results to be applied immediately in accordance with Rule 3221(a)(2).
(b) Before sending an EAD Notice, for purposes of Rule 3228, the Agency shall seek to determine whether the Covered Person in question has committed any prior violations under the Protocol.
(c) Any defect in the EAD Notice (including a failure to identify the Covered Horseraces implicated in the alleged violation, if any) may be corrected by the Agency and shall not in any event invalidate the EAD Notice or affect the due application of the provisions of the Protocol (including the Disqualification provisions) in relation to that violation.
(a) Arrangements shall be made for analysis of the B Sample without undue delay, in accordance with the Protocol and the Laboratory Standards. Subject to Rule 3246(b), the Responsible Person or Owner must pay the costs of the B Sample analysis in advance, but, if the B Sample analysis does not confirm the A Sample analysis, they will be reimbursed that cost by the Agency. The Responsible Person and Owner or one representative each may attend the Laboratory to witness the opening and identification of the B Sample. They do not have any right to witness the analysis of the B Sample.
(b) The Responsible Person and Owner may (if they both agree) waive analysis of the B Sample (in which case they shall be deemed to accept the A Sample analytical results). If waived, the Agency may nonetheless elect to proceed with the B Sample analysis at its own expense.
(c) If the B Sample proves negative, the entire Test shall be considered negative, and the Responsible Person and Owner shall be so informed. In such circumstances, unless the Agency asserts an Anti-Doping Rule Violation under Rule 3213 (Use), the EAD Notice will be withdrawn, any Provisional Suspensions imposed shall be deemed automatically vacated with immediate effect (without the need for any order
(d) If the presence of a Banned Substance or the Use of a Banned Method is confirmed by the B Sample analysis, or the B Sample analysis is waived, the Agency shall send a Charge Letter to the Responsible Person and any other relevant Covered Person(s), with a copy to each Interested Party, asserting that a Rule 3212 (presence) violation or a Rule 3213 (Use) violation (as applicable) has occurred.
(a) Provisional Suspensions shall be imposed as follows:
(1) For each alleged violation of Rule 3212 (presence), 3213 (Use), or 3214(c) (Administration or Attempted Administration) that involves a Banned Substance that is not a Specified Substance, the Agency shall impose a Provisional Suspension, effective from the date specified by the Agency in the EAD Notice or in further correspondence up to and including the Charge Letter, on (i) the Covered Horse, (ii) the Responsible Person, and (iii) any other Covered Person charged with the violation.
(2) For each alleged violation of Rule 3215 (evading Sample collection; refusing or failing to submit to Sample collection; or refusing or failing to comply with all Sample collection procedure requirements), the Agency may impose a Provisional Suspension, effective from the date specified by the Agency in the EAD Notice or in further correspondence up to and including the Charge Letter, on (i) the Covered Horse, (ii) the Responsible Person, or (iii) any other Covered Person charged with the violation.
(3) For all other alleged Anti-Doping Rule Violations, the Agency may impose a Provisional Suspension, effective from the date specified by the Agency in the EAD Notice or in further correspondence up to and including the Charge Letter, on the Responsible Person, or any other Covered Person alleged to be implicated in the violation, but not on the Covered Horse.
(b) Where a Provisional Suspension is imposed pursuant to Rule 3247(a), the Responsible Person (on his or her own behalf and on behalf of the Covered Horse) and any other Covered Person made subject to the Provisional Suspension shall be given:
(1) an opportunity for a Provisional Hearing before imposition of the Provisional Suspension;
(2) an opportunity for a Provisional Hearing on a timely basis after imposition of the Provisional Suspension; or
(3) an opportunity for an expedited final adjudication in accordance with Rule 3262 on a timely basis after imposition of the Provisional Suspension.
(c) Provisional Hearings shall be conducted by the Arbitral Body and heard via telephone or video conference call within the time frame specified in accordance with the Arbitration Procedures. The sole issue to be determined by the Arbitral Body will be whether the Agency's decision to impose a Provisional Suspension shall be maintained. The Agency's decision to impose a Provisional Suspension shall be maintained unless the Responsible Person/Covered Person requesting the lifting of the Provisional Suspension establishes that:
(1) the allegation that an Anti-Doping Rule Violation has been committed has no reasonable prospect of being upheld,
(2) the Responsible Person/Covered Person charged bears No Fault or Negligence for the Anti-Doping Rule Violation that is alleged to have been committed, so that any period of Ineligibility that might otherwise be imposed for such offense would be completely eliminated by application of Rule 3224. (This ground does not apply in respect of any Provisional Suspension imposed on a Covered Horse);
(3) Rule 3225 applies and the Responsible Person/Covered Person bears No Significant Fault or Negligence and he or she will likely be given a period of Ineligibility that is not longer than the period for which he or she has already been provisionally suspended (this ground does not apply in respect of any Provisional Suspension imposed on a Covered Horse); or
(4) exceptional circumstances exist that make it clearly unfair, taking into account all of the circumstances of the case, to impose a Provisional Suspension prior to the final hearing on the merits. This ground is to be construed narrowly and applied only in truly exceptional circumstances. For example, the fact that the Provisional Suspension would prevent the Responsible Person, Covered Person, or Covered Horse from participating in a particular Timed and Reported Workout, Covered Horserace, or other activity shall not qualify as exceptional circumstances for these purposes.
(d) If the application is made before the Provisional Suspension comes into effect, the Provisional Suspension will not come into effect pending the decision on the application. If the application is made after the Provisional Suspension has come into effect, the Provisional Suspension will remain in place pending the decision on the application.
(e) If it considers it appropriate to do so on the specific facts of the case, the Agency may lift the Provisional Suspension.
(f) If the application to have a Provisional Suspension not imposed/lifted is not granted, a further application may not be made to lift the Provisional Suspension unless: (i) it is based on new and material evidence that the Responsible Person or other Covered Person was not aware of and could not reasonably have been aware of at the time he or she made the original application; or (ii) there has been some other significant and material change in circumstances since the original application was decided. If the Responsible Person or other Covered Person makes a further application that does not meet either of these requirements, costs may be awarded against him or her.
(g) Voluntary Provisional Suspension.
(1) In all cases where a Responsible Person/Covered Person has been notified of or charged with an Anti-Doping Rule Violation, but no Provisional Suspension has been imposed on him or her or on the Covered Horse, that person may (on his or her own behalf and, if the Responsible Person, on behalf of the Covered Horse) voluntarily accept a Provisional Suspension at any time by written notice to the Agency. A copy of the voluntary Provisional Suspension shall promptly be provided to each Interested Party.
(2) A Provisional Suspension that is voluntarily accepted will have effect (in the same manner as if the Provisional Suspension had been imposed under Rule 3247(a)) from the date that written notice of its acceptance is received by the Agency.
(h) No admission will be inferred, or other adverse inference drawn, from the decision of a Covered Person: (1) not to make an application to lift a Provisional Suspension; or (2) to accept a voluntary Provisional Suspension.
(i) If a Provisional Suspension is imposed or voluntarily accepted, and that Provisional Suspension is respected, then the Responsible Person/Covered Person and Covered Horse in question shall receive a credit for such period of Provisional Suspension against any period of Ineligibility that may ultimately be imposed. If the Responsible Person/Covered Person or Covered Horse does not respect a Provisional Suspension, the Responsible Person/Covered Person or Covered Horse shall receive no credit for any period of Provisional Suspension served. If a period of Ineligibility is served pursuant to a decision that is subsequently subject to review, the Responsible Person/Covered Person or Covered Horse shall receive a credit for such period of Ineligibility served against any period of Ineligibility that may ultimately be imposed on review.
(j) Notwithstanding any other provision in this Rule 3247 or elsewhere in the Protocol, any Provisional Suspension imposed on a Covered Horse will be automatically lifted (without the need for any hearing) if it has been in place for a period equal to the period of Ineligibility specified in the Protocol or Prohibited List.
If, after receipt of the Covered Person's explanation, or expiry of the deadline to provide such explanation, the Agency remains satisfied that the Covered Person has committed an Anti-Doping Rule Violation(s), the Agency shall promptly charge the Covered Person with the asserted Anti-Doping Rule Violation(s). In this letter of charge (Charge Letter), which will be copied to each Interested Party, the Agency shall:
(a) set out the Anti-Doping Rule Violation(s) that the Covered Person is charged with having committed;
(b) provide a summary of the relevant facts upon which the charge is based, enclosing a copy of the A Sample Laboratory Documentation Package and (if applicable and if requested) the B Sample Laboratory Documentation Package;
(c) specify the Consequences that will apply if the charge is upheld;
(d) grant a deadline of not more than 7 days from receipt of the Charge Letter (unless otherwise agreed by the Agency) for the Covered Person to either:
(1) admit the Anti-Doping Rule Violation(s) charged and:
(i) accept the Consequences proposed by the Agency, in which case the Agency will issue a decision under Rule 3249(b);
(ii) seek to agree to mitigated Consequences with the Agency pursuant to Rule 3249, failing which the Consequences may still be disputed at a hearing; or
(iii) dispute or seek to mitigate the proposed Consequences at a hearing in accordance with Rule 3261 and the Arbitration Procedures; or
(2) deny the Anti-Doping Rule Violation charged and dispute the proposed Consequences at a hearing in accordance with Rule 3261 and Arbitration Procedures;
(e) indicate that, if the Covered Person does not challenge the Agency's assertion of an Anti-Doping Rule Violation or the proposed Consequences within the prescribed deadline, the Covered Person shall be deemed to have waived his or her right to a hearing, admitted the Anti-Doping Rule Violation(s) charged, and accepted the Consequences specified by the Agency in the Charge Letter (without any mitigation of those Consequences);
(f) give the opportunity to provide Substantial Assistance in accordance with Rule 3226(a); and
(g) provide all relevant details relating to any Provisional Suspensions (including, if applicable, the possibility to accept a voluntary Provisional Suspension) in accordance with Rule 3247.
(a) At any time prior to a final decision under the Arbitration Procedures: (1) the Agency may withdraw a Charge Letter for good cause, in which case any Provisional Suspension will be automatically lifted and (absent the emergence of new information) no further steps will be taken in relation to the violations alleged in the Charge Letter; or (2) the Covered Person may agree to admit the Anti-Doping Rule Violation(s) charged (or any other violation of the Protocol) and accede to specified Consequences consistent with the Protocol. In any such case, an adjudication under the Arbitration Procedures will not be required.
(b) In the event that the Covered Person admits the Anti-Doping Rule Violation(s) charged and accedes to Consequences specified by the Agency (or is deemed to have done so in accordance with Rule 3248(a)(5)), the Agency will (1) promptly issue a final decision confirming the commission of the Anti-Doping Rule Violation(s) and setting out the factual basis for the decision and all of the Consequences to be imposed (including a brief summary of the reasons for any period of Ineligibility imposed, unless doing so could compromise an ongoing investigation or proceeding), and (2) send notice of the decision to each Interested Party. The Agency will also Publicly Disclose the decision (or a summary thereof, at the discretion of the Agency) in accordance with Rule 3620.
(c) In the event that the Agency withdraws the Charge Letter, it will (1) promptly issue a summary decision confirming the withdrawal of the Charge Letter, (2) send notice of the decision to the Covered Person concerned, with a copy to each Interested Party, and (3) Publicly Disclose the decision (or a summary thereof, at the discretion of the Agency) in accordance with Rule 3620.
(a) Notification of Anti-Doping Rule Violations will take place as set out in Rule 3245 and Rule 3248. If at any point after an EAD Notice has been provided the Agency decides not to move forward with the charge, it will notify the Covered Person(s) concerned and each Interested Party of that decision.
(b) Notification to a Covered Person by the Agency, for all purposes of the Protocol, may be accomplished either through actual or constructive notice. Actual notice may be accomplished by any means. Constructive notice shall be deemed to have been given when the information in question is delivered by third-party courier or U.S. postal mail to the Covered Person's most recent mailing address on file with the Authority or by email or text message to the Covered Person's most recent email address or mobile telephone number on file with the Authority.
Where a Covered Person is alleged to have committed an Anti-Doping Rule Violation or to have violated Rule 3229, the Covered Person shall be entitled to a hearing before the Arbitral Body in accordance with the Arbitration Procedures. A copy of the final decision of the Arbitral Body shall be sent to the Covered Person(s) concerned, with a copy to the Agency and each Interested Party. The decision (or a summary thereof, at the discretion of the Agency) shall be Publicly Disclosed as provided in Rule 3620. If an individual case involves allegations that both an Anti-Doping Rule Violation and a Controlled Medication Rule Violation have been committed, the matter shall be referred to and adjudicated by the Arbitral Body in accordance with the Arbitration Procedures.
The Arbitral Body may also adjudicate any other matter referred to it under the Protocol, and any other matter that might arise from time to time under the Protocol that the Agency considers should be determined by the Arbitral Body.
In Anti-Doping Rule Violation cases where the Covered Horse or Covered Person in question is not Provisionally Suspended and is likely to participate in a Covered Horserace within 45 days, the Agency may (if it sees fit) address the case on an expedited basis and shorten any deadlines in the Protocol or Arbitration Procedures proportionately to ensure resolution of the matter prior to the Covered Horserace.
Subject to Rule 3264, decisions rendered by the Arbitral Body under the Protocol shall be final and binding.
Any final decision by the Agency or the Arbitral Body is subject to review in accordance with section 3058 of the Act. Any final decision under review shall remain in effect pending resolution of the review unless ordered otherwise.
(a) Controlled medication cases will be initiated based on the assertion that one or more of Rules 3312 through 3315 has been violated (each, a Controlled Medication Rule Violation).
(b) The Controlled Medication Rule Violations described below may only be committed by Covered Persons, but the Consequences for Controlled Medication Rule Violations may apply to both the Covered Person(s) who commit(s) the violation and any Covered Horse(s) implicated by the violation.
(c) All Covered Persons are responsible for knowing what constitutes a Controlled Medication Rule Violation and what Controlled Medication Substances and what Controlled Medication Methods are included on the Prohibited List and Technical Document-Prohibited Substances.
(a) It is the personal and non-delegable duty of the Responsible Person to ensure that no Controlled Medication Substance is present in the Post-Race Sample of his or her Covered Horse(s), and that no Controlled Medication Substance specifically identified on the Prohibited List as prohibited during Timed and Reported Workouts is present in the Post-Work Sample of his or her Covered Horse(s). The Responsible Person is therefore strictly liable for any Controlled Medication Substance or its Metabolites or Markers found to be present in a Post-Race Sample collected from his or her Covered Horse(s), and for any specifically prohibited Controlled Medication Substance or its Metabolites or Markers found to be present in a Post-Work Sample collected from his or her Covered Horse(s). Accordingly, it is not necessary to demonstrate intent, Fault, negligence, or knowing Use on the part of the Responsible Person in order to establish that the Responsible Person has committed a Rule 3312 Controlled Medication Rule Violation.
(b) Sufficient proof of a Rule 3312 Controlled Medication Rule Violation is established by any of the following:
(1) the presence of a Controlled Medication Substance or its Metabolites or Markers in the Covered Horse's A Sample where the Responsible Person waives analysis of the B Sample and the B Sample is not analyzed;
(2) the Covered Horse's B Sample is analyzed and the analysis of the B Sample confirms the presence of the Controlled Medication Substance or its Metabolites or Markers found in the A Sample; or
(3) where, in exceptional circumstances, the Laboratory (on instruction from the Agency) further splits the A or B Sample into two parts in accordance with the Laboratory Standards, the analysis of the second part of the resulting split Sample confirms the presence of the same Controlled Medication Substance or its Metabolites or Markers as were found in the first part of the split Sample, or the Responsible Person waives analysis of the second part of the split Sample.
(c) The general rule is that the presence of any amount of a Controlled Medication Substance or its Metabolites or Markers in a Post-Race Sample or Post-Work Sample collected from a Covered Horse constitutes a Controlled Medication Rule Violation by the Responsible Person of that Covered Horse.
(d) As an exception to the general rule of Rule 3312(c), the Prohibited List, Standards, or Technical Documents may establish special criteria for the reporting or the evaluation of certain Controlled Medication Substances, including a Minimum Reporting Level, Screening Limit, Threshold, or Decision Limit.
(e) Nonsteroidal Anti-Inflammatory Drugs (NSAIDs) and corticosteroids, which are Controlled Medication Substances prohibited during Timed and Reported Workouts and during the Race Period, are subject to Screening Limits.
(1) If one NSAID or one corticosteroid is detected in the Post-Race Sample or Post-Work Sample of a Covered Horse above the applicable Screening Limit, it constitutes a presence violation under Rule 3312.
(2) If more than one NSAID or more than one corticosteroid is detected in the Post-Race Sample or Post-Work Sample of a Covered Horse, each NSAID and each corticosteroid above the applicable Screening Limit constitutes a separate presence violation of Rule 3312.
(3) If more than one NSAID or more than one corticosteroid is detected in the Post-Race Sample or Post-Work Sample of a Covered Horse, but each are below the applicable Screening Limits (and so individually would not constitute a presence violation), they will together constitute a single presence violation under Rule 3312 (Stacking Violation).
(a) Subject to Rule 3313(c), the Use or Attempted Use of a Controlled Medication Substance or Controlled Medication Method in relation to a Covered Horse during the Race Period constitutes a Controlled Medication Rule Violation. The success or failure of that Use or Attempted Use is not material. For a Rule 3313 violation to be committed, it is sufficient that the Controlled Medication Substance or Controlled Medication Method was Used or Attempted to be Used on a Covered Horse during the Race Period.
(b) It is the personal and non-delegable duty of the Responsible Person to ensure that no Controlled Medication Substance or Controlled Medication Method is Used in relation to his or her Covered Horse during the Race Period. The Responsible Person is therefore strictly liable for any Use of a Controlled Medication Substance or Controlled Medication Method in relation to his or her Covered Horse(s). Accordingly, it is not necessary to demonstrate intent, Fault, negligence, or knowing Use on the part of the Responsible Person in order to establish that the Responsible Person has committed a Rule 3313 Controlled
(c) Use of a Controlled Medication Substance or a Controlled Medication Method outside the Race Period is not a Rule 3313 violation. However, if a Controlled Medication Substance or any of its Metabolites or Markers is still present in a Post-Race Sample or Post-Work Sample, that constitutes a Rule 3312 (presence) violation.
(a) Any Use of a Controlled Medication Substance or a Controlled Medication Method in relation to a Covered Horse must (1) be justified by the Covered Horse's health condition(s), (2) have been recommended by a Veterinarian in the context of a valid veterinarian-patient-client relationship or (if a prescription is not required) following sufficient due diligence regarding the substance or method, (3) go no further than the minimum necessary to address the health concerns, and (4) be in the best interests of the Covered Horse's health and welfare.
(b) It is the personal and non-delegable duty of the Responsible Person to ensure that no Controlled Medication Substance or Controlled Medication Method is Used on his or her Covered Horse in breach of the requirements set out in Rule 3314(a). The Responsible Person is therefore strictly liable for a violation of this Rule 3314. Accordingly, it is not necessary to demonstrate intent, Fault, negligence, or knowing Use on the part of the Responsible Person in order to establish that the Responsible Person has committed a Rule 3314 Controlled Medication Rule Violation.
The following acts and omissions constitute Controlled Medication Rule Violations by the Covered Person(s) in question:
(a) The Administration or Attempted Administration of a Controlled Medication Substance or Controlled Medication Method by a Covered Person to a Covered Horse during the Race Period.
(b) The Possession of a Controlled Medication Substance or Controlled Medication Method by any Covered Person that is not in compliance with applicable State or Federal law.
(c) A Covered Person assisting, encouraging, aiding, abetting, conspiring, covering up, or engaging in any other type of intentional complicity or Attempted complicity involving (1) a Controlled Medication Rule Violation or Attempted Controlled Medication Rule Violation, or (2) a violation of Rule 3329 by another Covered Person.
If the Agency establishes that a Covered Person committed a violation of Tampering or Attempted Tampering in connection with a Medication Control process, that will constitute an Anti-Doping Rule Violation under Rule 3216(a), and the matter will be dealt with in accordance with the procedures and Consequences applicable to Anti-Doping Rule Violations.
(a) Automatic Disqualification of results.
(1) A Controlled Medication Rule Violation that arises from a Post-Race Sample, or that occurs during the Race Period, automatically leads to Disqualification of the results of the Covered Horse obtained on the Race Day(s) that fall(s) within the Race Period, even if any other sanction for the violation is eliminated or reduced under Rules 3324, 3325, or 3326.
(2) In circumstances where an ECM Notice has been sent as required under Rule 3345, and the B Sample analysis confirms the A Sample analysis, or the right to request the analysis of the B Sample is waived, the Agency, the Responsible Person, and the Owner of the Covered Horse in question may agree to apply Rule 3321 immediately,
(b) No Disqualification of subsequent results.
Subsequent results obtained by the Covered Horse from the date a Controlled Medication Rule Violation first occurred through the commencement of any Provisional Suspension or Ineligibility period for the Covered Horse shall not be Disqualified.
(c) Consequence of Disqualification of results.
(1) If a Covered Horse has results Disqualified under the Protocol, all purses and other compensation, prizes, trophies, points, and rankings are forfeited and must be repaid or surrendered (as applicable) to the Race Organizer, and the results of the other Covered Horses in the race(s) in question must be adjusted accordingly and the purses, prizes, and trophies redistributed. Purses, prizes, trophies, and other compensation shall (where possible) be withheld for the Covered Horse in issue pending resolution of the relevant charge.
(2) The Covered Horses that participated in a Covered Horserace involving an alleged Controlled Medication Rule Violation are often entered in other Covered Horseraces prior to the final adjudication of the violation. The ultimate Disqualification of a Covered Horse in connection with final adjudication of a violation shall only impact that horse's conditions for eligibility. By way of example, a maiden that is Disqualified after finishing first in a maiden race shall remain a maiden until it has won another race, but the runner-up in the disputed Covered Horserace shall not be considered the winner for purposes of its future condition eligibility. The adjustment to the Disqualified horse's condition eligibility shall only occur once the violation has been finally adjudicated.
(a) There shall be no period of Ineligibility for Covered Horses implicated in violations involving only Controlled Medication Substances.
(b) There may be a period of Ineligibility for Covered Horses implicated in violations involving Controlled Medication Methods. Where the Prohibited List specifies a period of Ineligibility, it shall be applied only prospectively (
(a) General.
(1) The periods of Ineligibility and financial penalties set out in this Rule 3323 apply to any Controlled Medication Rule Violation committed by a Covered Person. However:
(i) When determining if a Covered Person has committed multiple
(ii) A Controlled Medication Rule Violation will be considered a second or subsequent violation only if the Covered Person committed an offense in the same category/class in the previous 2 years. Violations in different categories will be taken into account when assigning penalty points under Rule 3328.
(iii) Unless specified otherwise, the periods of Ineligibility set out in this Rule 3323 are subject to potential elimination, reduction, or suspension pursuant to Rules 3324-3326, or increase pursuant to Rule 3327.
(2) In accordance with Rule 3347(j), any period of Provisional Suspension served by the Covered Person shall be credited against the period of Ineligibility ultimately imposed on that Covered Person for the violation in question.
(3) If a presence violation involves a Controlled Medication Substance that has not been assigned a Class A-C, the Agency shall determine the class of the substance. Any supplements or feed additives used in contravention of Rule 4211(a) of the Prohibited List that have not been assigned a class shall be designated as Class C substances, unless the Agency decides otherwise.
(4) If two or more Controlled Medication Rule Violations in the same category/class are adjudicated separately, the first violation adjudicated shall constitute the “first violation” for sanctioning purposes, the second violation adjudicated shall constitute the “second violation,” and so on, regardless of the chronological order in which those violations occurred.
(b) Consequences.
Subject to Rule 3323(a), and in addition to any other Consequences that apply under the Protocol, the periods of Ineligibility, fines, and Disqualification of results specified below shall apply to any Covered Person who commits multiple Controlled Medication Rule Violations. The Covered Person may also be required to pay some or all of the adjudication costs and the Agency's legal costs.
(c) Commencement of the period of Ineligibility for a Covered Person.
(1) Except as otherwise provided in this Rule 3323, the period of Ineligibility imposed on any Covered Person shall start on the date the period
(2) Where a Covered Person is already serving a period of Ineligibility for another violation of the Protocol, any new period of Ineligibility shall start to run the day after the original period of Ineligibility ends.
(3) Where there have been substantial delays in the adjudication process or other aspects of Medication Control that go well beyond the standard timeframes for Laboratory analyses and Results Management, and the Covered Person can establish that such delays are not attributable to him or her, the start date of the period of Ineligibility may be deemed back-dated to reflect such delays, but in no event may it be deemed back-dated to a date before the Controlled Medication Rule Violation last occurred.
(d) Additional rules for certain multiple violations.
(1) Multiple violations for the same Controlled Medication Substance/Method incurred by a Covered Person in relation to the same Covered Horse prior to delivery of an ECM Notice may (at the Agency's discretion) be treated together as a single Controlled Medication Rule Violation, unless the facts demonstrate that there was more than one administration. Multiple violations for the same Controlled Medication Substance/Method incurred by a Covered Person in relation to different Covered Horses prior to delivery of an ECM Notice may each be treated as a first Controlled Medication Rule Violation within the relevant category/class. Where multiple Controlled Medication Substances are detected in a single Post-Race Sample or Post-Work Sample, each Controlled Medication Substance may be treated as a separate violation and assigned separate penalty points.
(2) If the Agency establishes that prior to receiving an ECM Notice in respect of one Controlled Medication Rule Violation the Covered Person committed an additional Controlled Medication Rule Violation that occurred 12 months or more before or after the violation asserted in that ECM Notice, the period of Ineligibility for the additional violation shall be calculated as if the additional violation were a stand-alone first violation, and that period of Ineligibility will run consecutively to (rather than concurrently with) the period of Ineligibility imposed for the first-notified violation. Where this Rule applies, the violations taken together will constitute a single violation for purposes of Rule 3323(b).
(3) If the Agency establishes that the Covered Person has committed a further violation of the Protocol during a period of Ineligibility, any new period of Ineligibility shall start to run the day after the original period of Ineligibility ends.
(e) Violations involving both a Banned Substance or Method and a Controlled Medication Substance or Method.
Where a Covered Person is found, based on a common set of facts, to have committed a (1) violation involving one or more Banned Substance(s) or Banned Method(s), and (2) a violation involving one or more Controlled Medication Substance(s) or Controlled Medication Method(s), they shall be treated as separate violations, but shall be adjudicated together in consolidated proceedings pursuant to the procedure that applies to Anti-Doping Rule Violations under the Arbitration Procedures.
(a) If a Covered Person establishes in an individual case that he or she bears No Fault or Negligence for the Controlled Medication Rule Violation(s) charged, the otherwise applicable period of Ineligibility and other Consequences for such Covered Person shall be eliminated (except for those set out in Rule 3321 and Rule 3620). When the violation is of Rule 3312 (presence of a Controlled Medication Substance), the Covered Person must also establish how the Controlled Medication Substance entered the Covered Horse's system as a pre-condition to application of this Rule 3324. In the event the period of Ineligibility otherwise applicable is eliminated pursuant to this Rule 3324, the Controlled Medication Rule Violation shall not be considered a prior violation for the purpose of Rule 3323(b).
(b) Rule 3324 only applies in exceptional circumstances. In particular, it will not apply where the Controlled Medication Substance found to be present in a Sample: (1) came from a mislabeled or contaminated supplement; or (2) was administered to the Covered Horse by veterinary or other support personnel without the knowledge of the Responsible Person.
(c) A finding that the Covered Person bears No Fault or Negligence for a Controlled Medication Rule Violation shall not affect the Consequences of that violation that apply to the Covered Horse (
This Rule applies only to Controlled Medication Rule Violations involving Class A or Class B substances or a category of violation with sanctions equivalent to Class A or Class B substances. Reductions under this Rule 3325 are mutually exclusive and not cumulative,
(a) General rule.
Where the Covered Person establishes that he or she bears No Significant Fault or Negligence for the Controlled Medication Rule Violation in question, then (unless Rule 3325(b) or 3325(c) applies) the period of Ineligibility may be reduced, depending on the Covered Person's degree of Fault, but the reduced period of Ineligibility may not be less than one-half of the otherwise applicable period of Ineligibility.
(b) Specified Substances.
Where the Covered Person establishes that he or she bears No Significant Fault or Negligence for the Controlled Medication Rule Violation in question, and the violation involves only a Specified Substance, the period of Ineligibility shall be, at a minimum, a reprimand and no period of Ineligibility, and, at a maximum, the otherwise applicable period of Ineligibility, depending on the Covered Person's degree of Fault.
(c) Contaminated Products or other contamination.
Where the Covered Person establishes that he or she bears No Significant Fault or Negligence for the Controlled Medication Rule Violation in question and that the Controlled Medication Substance in question came from a Contaminated Product or from another form of contamination, the period of Ineligibility shall be, at a minimum, a reprimand and no period of Ineligibility, and, at a maximum, the otherwise applicable period of Ineligibility, depending on the Covered Person's degree of Fault.
(a) Substantial Assistance. The Agency may suspend all or part of the Consequences imposed on a Covered Person in an individual Controlled Medication Rule Violation case—other
(1) The Covered Person provides Substantial Assistance to the Agency, the Authority, or a State Racing Commission, a criminal authority, or a professional disciplinary body that results in:
(i) the Agency discovering or bringing forward an Anti-Doping Rule Violation or a Controlled Medication Rule Violation by another Covered Person; or
(ii) a criminal or disciplinary body discovering or bringing forward a sport-related criminal offense or the breach of professional or sports rules by another Person, including offenses arising out of a sport integrity violation or sport safety violation, or the violation of any rule or requirement in the Act, and the information provided by the Covered Person providing Substantial Assistance is also made available to the Agency.
(2) The extent to which the otherwise applicable period of Ineligibility may be suspended shall be based on the seriousness of the Controlled Medication Rule Violation committed by the Covered Person and the degree to which the Substantial Assistance provided by the Covered Person assists the effort to promote doping-free racing, compliance with the Protocol, or the integrity of racing. In any event, no more than three-quarters of the otherwise applicable period of Ineligibility may be suspended. For purposes of this Rule 3326, the otherwise applicable period of Ineligibility shall not include any period of Ineligibility that could be added under Rule 3323(d)(2).
(3) If so requested, the Agency shall allow the Covered Person who seeks to provide Substantial Assistance to provide the information to the Agency subject to a Without Prejudice Agreement.
(4) If the Covered Person fails to continue to cooperate or fails to provide the complete, accurate, and credible Substantial Assistance promised, the Agency shall reinstate the original Consequences. That decision is not subject to review.
(b) Voluntary Admission of a Controlled Medication Rule Violation in the absence of other evidence. If (1) the Covered Person voluntarily admits the commission of a Controlled Medication Rule Violation before receiving the ECM Notice or (in the case of a Rule 3312 violation) before having received notice of a Sample collection that could establish the Controlled Medication Rule Violation, and (2) that admission is the only reliable evidence of the violation at the time the admission is made, the otherwise applicable period of Ineligibility may be reduced by up to one-half.
(c) Application of multiple grounds for reduction of a sanction. If the Covered Person establishes entitlement to a reduction or suspension of the period of Ineligibility under 2 or more of Rules 3324, 3325, or 3326, the otherwise applicable period of Ineligibility shall be determined in accordance with Rules 3323, 3324, and 3325 before applying any reduction or suspension under Rule 3326. If the Covered Person establishes entitlement to a reduction or suspension of the period of Ineligibility under Rule 3326, up to three-quarters of the otherwise applicable period of Ineligibility may be reduced or suspended.
(d) Reductions for certain Controlled Medication Rule Violations based on early admission and acceptance of sanction. If the Covered Person admits the violation and accepts the asserted period of Ineligibility no more than 7 days after receiving the Charge Letter, the period of Ineligibility to be served will be automatically reduced by one-half (but no further reduction shall be allowed under any other Rule).
(a) If the Agency establishes in an individual Controlled Medication Rule Violation case that Aggravating Circumstances are present, the period of Ineligibility otherwise applicable shall be increased by up to 6 months depending on the seriousness of the Aggravating Circumstances, unless the Covered Person establishes that he or she did not knowingly commit the Controlled Medication Rule Violation. Where the period of Ineligibility is increased pursuant to this Rule, an additional fine of up to $5,000 or an additional 5% of the total purse (whichever is greater) may also be imposed.
(b) Actions and circumstances constituting Aggravating Circumstances include:
(1) Administration of a Controlled Medication Substance or Use of a Controlled Medication Method that is detrimental to the health and welfare of the horse or is designed to deceive the betting public;
(2) prior violations under the Protocol; or
(3) the Covered Person engaged in deceptive or obstructive conduct to avoid the detection or adjudication of a Controlled Medication Rule Violation, for which the Covered Person has not been separately sanctioned for Tampering.
(c) For the avoidance of doubt, the examples set out in Rule 3327(b) are not exhaustive and other similar circumstances or conduct may also be deemed to amount to Aggravating Circumstances that justify the imposition of a longer period of Ineligibility.
(a) The penalty points system established in this Rule 3328 does not replace or lessen in any way the Consequences that apply to the underlying Controlled Medication Rule Violation. Rather, the penalty points system is intended to apply additional uniform Consequences where the Covered Person is a repeat offender and exceeds the permissible number of points.
(b) Covered Persons shall be assigned penalty points as set out in the table below for each Controlled Medication Rule Violation that they commit. The imposition of the specified penalty points is automatic, without any consideration of mitigating or aggravating circumstances, except that:
(1) no points shall be assigned for any violations (i) where the Covered Person was found to bear No Fault or Negligence, or (ii) resulting from environmental contamination;
(2) fewer or no points may be assigned where the Covered Person provides Substantial Assistance in accordance with Rule 3326; and
(3) the penalty points for a complicity or Attempted complicity violation may be adjusted if there are mitigating or aggravating circumstances.
(c) In addition to the Consequences applicable to the underlying Controlled Medication Rule Violation, the following Consequences shall be imposed based on the cumulative points contained in the Covered Person's official record:
(d) Penalty points and the additional period of Ineligibility shall be applied automatically at the conclusion of the proceeding on the underlying violation, without any additional hearing or right of review. Penalty points shall be applied retroactively to start on the date on which the Controlled Medication Rule Violation occurred and shall expire after 2 years.
(e) The additional period of Ineligibility imposed based on penalty points shall run consecutive to any period of Ineligibility imposed for the underlying Controlled Medication Rule Violation.
(f) A Covered Person's official record of cumulative penalty points shall be maintained by the Agency.
(a) While serving a Provisional Suspension or period of Ineligibility for a Controlled Medication Rule Violation:
(1) a Covered Horse may not participate in any Timed and Reported Workout or Covered Horserace, but shall remain subject to Testing;
(2) a Covered Person may not participate in any capacity in any activity involving Covered Horses, or in any other activity (other than authorized anti-doping education or rehabilitation programs) taking place at a Racetrack or Training Facility, nor shall he or she permit anyone to participate in any capacity on his or her behalf in any such activities, except to the extent that the Covered Person is an Owner and the activity is necessary to ensure the safekeeping and wellbeing of the horse during the period of such Owner's Provisional Suspension or Ineligibility.
(b) The Covered Horse(s) of an Owner or Trainer who is subject to a Provisional Suspension or period of Ineligibility shall be subject to the following restrictions:
(1) The Covered Horse(s) of a Trainer who is subject to a Provisional Suspension or period of Ineligibility may not participate in any Timed and Reported Workout or Covered Horserace unless and until they have been transferred to another Covered Person, except that such Covered Horses may participate in a Covered Horserace if they were entered in the race before the Trainer was notified of the Provisional Suspension or the period of Ineligibility was imposed or accepted (whichever is earlier). For the “transfer” to be valid, (i) the transfer must be registered with the Authority in accordance with its procedures, and (ii) if the Trainer is subject to a period of Ineligibility of more than 30 days, the Covered Horses must also be physically relocated to facilities under the care or control of a Covered Person who is not affiliated with the suspended Trainer (and failure to comply may constitute an Anti-Doping Rule Violation under Rule 3216(c),
(2) The Covered Horse(s) of an Owner who is subject to a Provisional Suspension or period of Ineligibility may not participate in any Timed and Reported Workout or Covered Horserace unless and until they have been transferred in a bona fide transaction to a different Owner. If an Immediate Family Member has any ownership or property interest in the Covered Horse(s) following such transfer, the transfer shall not constitute a bona fide transaction to a different Owner.
(a) Consequences for violation of the prohibition on participation during Ineligibility.
(1) If a Covered Person violates the prohibition against participation during Ineligibility described in Rule 3329, any results obtained from such participation shall be Disqualified and a new period of Ineligibility equal in length to the original period of Ineligibility shall be added to the end of the Covered Person's original period of Ineligibility.
(2) If a Covered Horse participates in any Timed and Reported Workout or Covered Horserace in violation of the prohibition against participation during Ineligibility described in Rule 3329, any results obtained from such participation shall be Disqualified, and the Responsible Person for that Covered Horse shall receive the following period of Ineligibility:
(i) if the Responsible Person was subject to an original period of Ineligibility, a new period of Ineligibility equal in length to the original period of Ineligibility shall be added to the end of the original period of Ineligibility. If the original period of Ineligibility has already expired, the new period of Ineligibility shall start on the date that it is accepted or imposed; or
(ii) if the Responsible Person was not subject to an original period of Ineligibility, the period of Ineligibility for violating Rule 3329 shall be from a reprimand to 1 year, depending on the Covered Person's degree of Fault.
(b) Consequences for violation of the prohibition on participation during Provisional Suspension.
(1) A Covered Person who violates the prohibition against participation during a Provisional Suspension shall receive no credit for any period of Provisional
(2) If a Covered Horse participates in any Timed and Reported Workout or Covered Horserace in violation of the prohibition against participation during a Provisional Suspension described in Rule 3329, the Responsible Person for that Covered Horse and the Covered Horse shall receive no credit for any period of Provisional Suspension served and the results of such participation shall be Disqualified.
(c) The consequence of Disqualification under this Rule 3330 shall be the same as set out in Rule 3321(c).
(d) The Internal Adjudication Panel (or the Agency, if the Covered Person admits the violation and accepts the consequences) shall determine whether there has been a violation of the prohibition against participation during Provisional Suspension or Ineligibility and apply the appropriate consequences pursuant to Rule 3361.
A mandatory part of each sanction shall include automatic Public Disclosure in accordance with Rule 3620.
(a) To be reinstated after commission of a Controlled Medication Rule Violation, the Covered Person must have respected his or her period of Ineligibility (Rule 3329); and repaid or surrendered any purses and other compensation, prizes, trophies, points, and rankings forfeited pursuant to Rule 3321, and paid any fines and reimbursed any costs imposed or accepted to the Agency, unless an installment plan was established pursuant to Rule 3332(b), in which case the Covered Person must have made all payments due under that plan. If any installment(s) subsequently become(s) overdue under that plan (
(b) Where fairness requires, the Agency or the Internal Adjudication Panel may establish an installment plan for repayment of amounts due to be paid or reimbursed under the Protocol. The payment schedule may extend beyond any period of Ineligibility imposed upon the Covered Person.
(a) A Covered Horse shall be reinstated once its period of Ineligibility ends, provided that (1) the Ineligibility has been respected in full throughout that period in accordance with Rule 3329, (2) the Covered Horse has been made available for Testing during that period in accordance with Rule 3132(d), and (3) the Covered Horse has completed any Vets' List Workout(s) required by the Racetrack Safety Program or the Agency (for the avoidance of doubt, such workouts may be scheduled prior to the expiry of the period of Ineligibility and will not constitute a violation of Rule 3329).
(b) Any reinstatement pursuant to this Rule 3333 is without prejudice to any rest or stand down period that may be imposed on the Covered Horse (
Where there is evidence of a potential Controlled Medication Rule Violation(s), the Agency will conduct Results Management in accordance with this section 3340 and the Testing and Investigations Standards.
(a) Upon receipt of an Adverse Analytical Finding in relation to an A Sample, the Agency will conduct a review of the Laboratory certificate of analysis supporting the Adverse Analytical Finding and the relevant Sample collection documentation and Testing documents to determine whether the Adverse Analytical Finding was caused by any apparent departure from the Testing and Investigations Standards, the Laboratory Standards, or any provision of the Protocol. Subject to Rule 3342(b), the Agency may, but does not have to, communicate with the Responsible Person and Owner during such review.
(b) If the review under Rule 3342(a) reveals an apparent departure that caused the Adverse Analytical Finding, the entire test shall be considered negative, and the Agency shall promptly inform the Responsible Person and each Interested Party of that fact.
(c) If the initial review of an Adverse Analytical Finding under Rule 3342(a) does not reveal an apparent departure that caused the Adverse Analytical Finding, the Agency shall promptly send an ECM Notice to the Responsible Person and each Interested Party in accordance with Rule 3345.
(a) In certain circumstances, Laboratories may report the presence of certain Controlled Medication Substances as “Atypical Findings” in accordance with the Atypical Findings Policy set out at Appendix 1. Upon receipt of an A Sample Atypical Finding, the Agency will conduct a review to determine whether the Atypical Finding was caused by a departure from the Testing and Investigations Standards, the Laboratory Standards, or any provision of the Protocol. If that review does not reveal any departure that caused the Atypical Finding, the Agency will conduct an investigation (including directing any Further Analysis) or take any other steps required to decide whether the Atypical Finding should be brought forward as an Adverse Analytical Finding, in accordance with the Atypical Findings Policy.
(b) The Agency may, but does not have to, provide notice of an Atypical Finding to anyone until it has made that decision unless one of the following circumstances exists:
(1) if the Agency determines that the B Sample should be analyzed prior to the conclusion of its investigation, the Agency may conduct the B Sample analysis after notifying the Responsible Person and the Owner, with such notice to include a description of the Atypical Finding and the information described in Rule 3345; or
(2) if the Atypical Finding is likely connected to a serious pathology that requires urgent veterinary attention.
(c) If the Agency ultimately decides not to pursue the Atypical Finding as an Adverse Analytical Finding, the Agency may, but does not have to, communicate that fact to the Responsible Person and Owner unless he or she has previously received notice of the Analytical Finding pursuant to Rule 3343(b).
(d) If the Agency decides to move forward with the matter as an Adverse Analytical Finding, the Agency shall promptly send an ECM Notice to the Responsible Person and each Interested Party.
The Agency shall conduct any follow-up investigation required into any potential Controlled Medication Rule Violation not covered by Rules 3342 or 3343. At such time as the Agency is
(a) Where it is determined that a Covered Person may have committed one or more Controlled Medication Rule Violations, the Agency will promptly notify the Covered Person and each Interested Party in writing of the following (the ECM Notice):
(1) the alleged Controlled Medication Rule Violation and the Consequences if it is agreed or determined to have been committed;
(2) the Adverse Analytical Finding (with a copy of the Laboratory certificate of analysis in a form designated by the Agency) or a brief summary of the facts relied on by the Agency to assert the alleged violation (including, where applicable, the name of the Covered Horse implicated in the alleged violation, whether the alleged violation was in connection with a particular Covered Horserace, and the date of Sample collection or of the other relevant facts said to give rise to the violation);
(3) if applicable, the right of the Responsible Person and the Owner to receive copies of the A Sample Laboratory Documentation Package after the B Sample analysis has been completed or after such analysis is waived;
(4) if applicable, the following details regarding the B Sample analysis:
(i) that the B Sample has been (or will be) analyzed because the Agency has authorized immediate analysis to preserve the scientific integrity of the Sample;
(ii) if the B Sample has not been analyzed, the Responsible Person's and Owner's right to promptly request the analysis of the B Sample within no more than 5 days or (failing such request) that the B sample analysis shall be deemed to be waived;
(iii) an explanation that where the Responsible Person or Owner requests the B Sample analysis within the applicable deadline, or where the Agency decides to proceed with the B Sample analysis, the Agency will notify the Responsible Person and Owner of the date, time, and place where the B Sample will be analyzed and (where the analysis is requested by the Responsible Person or Owner) the amount that the Responsible Person or Owner must pay to have the B Sample tested and B Sample Laboratory Documentation Package prepared, and the date by which such payment must be received, failing which the B Sample analysis shall be deemed to have been waived; and
(5) the opportunity for the Covered Person to provide an explanation within a short deadline set by the Agency;
(6) the opportunity to provide Substantial Assistance, to admit the Anti-Doping Rule Violation, or to seek to resolve the matter without a hearing under Rule 3349;
(7) all relevant details relating to any Provisional Suspension (including, if applicable, the possibility to accept a voluntary Provisional Suspension) in accordance with Rule 3347; and
(8) if applicable, the ability for the automatic Disqualification of results to be applied immediately in accordance with Rule 3321(a)(2).
(b) Before sending an ECM Notice, for purposes of Rule 3323, the Agency shall seek to determine whether the Covered Person in question has committed any prior violations under the Protocol.
(c) Any defect in the ECM Notice (including a failure to identify the Covered Horseraces implicated in the alleged violation, if any) may be corrected by the Agency and shall not in any event invalidate the ECM Notice or affect the due application of the provisions of the Protocol (including the Disqualification provisions) in relation to that violation.
(a) Arrangements shall be made for analysis of the B Sample without undue delay, in accordance with the Protocol and the Laboratory Standards. Subject to Rule 3346(b), the Responsible Person or Owner must pay the costs of the B Sample analysis in advance, but, if the B Sample analysis does not confirm the A Sample analysis, they will be reimbursed that cost by the Agency. The Responsible Person and Owner and one representative each may attend the Laboratory to witness the opening and identification of the B Sample. They do not have any right to witness the analysis of the B Sample.
(b) The Responsible Person and Owner may (if they both agree) waive analysis of the B Sample (in which case they shall be deemed to accept the A Sample analytical results). If waived, the Agency may nonetheless elect to proceed with the B Sample analysis at its own expense.
(c) If the B Sample proves negative, the entire Test shall be considered negative, and the Responsible Person and Owner shall be so informed. In such circumstances, unless the Agency asserts a Controlled Medication Rule Violation under Rules 3313 or 3314 (Use), the ECM Notice will be withdrawn, any Provisional Suspensions imposed shall be deemed automatically vacated with immediate effect (without the need for any order from the Internal Adjudication Panel), and no further disciplinary action will be taken against the Responsible Person, other Covered Person, or Covered Horse by the Agency in relation to the original Adverse Analytical Finding (provided, however, that the Agency may investigate why the B Sample did not match the A Sample). If the Agency asserts that a Rule 3313 or 3314 (Use) violation has occurred, it shall send a Charge Letter to the Responsible Person and other Covered Person(s), with a copy to each Interested Party.
(d) If the presence of a Controlled Medication Substance or the Use of a Controlled Medication Method is confirmed by the B Sample analysis, or the B Sample analysis is waived, the Agency shall send a Charge Letter to the Responsible Person and any other relevant Covered Person(s), with a copy to each Interested Party, asserting that a Rule 3312 (presence) violation or a Rule 3313 (Use) violation (as applicable) has occurred.
(a) The Agency shall not impose a Provisional Suspension on a Covered Horse for a Controlled Medication Rule Violation, unless the violation involves a Controlled Medication Method for which the Prohibited List specifies a period of Ineligibility.
(b) The Agency may impose a Provisional Suspension on a Covered Person for a Controlled Medication Rule Violation where it considers it appropriate to do so in the circumstances of the case, including where (1) the Covered Person admits the Controlled Medication Rule Violation and is likely to be subject to a period of Ineligibility, (2) there is an Adverse Analytical Finding for more than one Controlled Medication Substance and those substances are not Specified Substances, (3) the Covered Person has a pending Anti-Doping Rule Violation or Controlled Medication Rule Violation or prior violation that is likely to result in an increased period of Ineligibility, or (4) the individual represents a threat to the health, safety, or welfare of horses or the integrity of the sport of horseracing.
(c) Where a Provisional Suspension is imposed pursuant to Rule 3347(a) or (b), the Responsible Person (on his or her own behalf and on behalf of the Covered Horse) and any other Covered Person made subject to the Provisional Suspension shall be given:
(1) an opportunity for a Provisional Hearing before imposition of the Provisional Suspension;
(2) an opportunity for a Provisional Hearing on a timely basis after imposition of the Provisional Suspension; or
(3) an opportunity for an expedited final adjudication in accordance with Rule 3362 on a timely basis after imposition of the Provisional Suspension.
(d) Provisional Hearings shall be conducted by the Internal Adjudication Panel and heard via telephone or video conference call within the time frame specified in accordance with the Arbitration Procedures, except where the Internal Adjudication Panel decides to determine the matter based solely on the written submissions without a hearing. The sole issue to be determined by the Internal Adjudication Panel will be whether the Agency's decision to impose a Provisional Suspension shall be maintained. The Agency's decision to impose a Provisional Suspension shall be maintained unless the Responsible Person/Covered Person requesting the lifting of the Provisional Suspension establishes that:
(1) the allegation that a Controlled Medication Rule Violation has been committed has no reasonable prospect of being upheld,
(2) the Responsible Person/Covered Person charged bears No Fault or Negligence for the Controlled Medication Rule Violation that is alleged to have been committed, so that any period of Ineligibility that might otherwise be imposed for such offense would be completely eliminated by application of Rule 3324. (This ground does not apply in respect of any Provisional Suspension imposed on a Covered Horse);
(3) Rule 3325 applies and the Responsible Person/Covered Person bears No Significant Fault or Negligence and he or she will likely be given a period of Ineligibility that is not longer than the period for which he or she has already been provisionally suspended. (This ground does not apply in respect of any Provisional Suspension imposed on a Covered Horse); or
(4) exceptional circumstances exist that make it clearly unfair, taking into account all of the circumstances of the case, to impose a Provisional Suspension prior to the final hearing on the merits. This ground is to be construed narrowly and applied only in truly exceptional circumstances. For example, the fact that the Provisional Suspension would prevent the Responsible Person, Covered Person, or Covered Horse from participating in a particular Timed and Reported Workout, Covered Horserace, or other activity shall not qualify as exceptional circumstances for these purposes.
(e) If the application is made before the Provisional Suspension comes into effect, the Provisional Suspension will not come into effect pending the decision on the application. If the application is made after the Provisional Suspension has come into effect, the Provisional Suspension will remain in place pending the decision on the application.
(f) If it considers it appropriate to do so on the specific facts of the case, the Agency may lift the Provisional Suspension.
(g) If the application to have a Provisional Suspension not imposed/lifted is not granted, a further application may not be made to lift the Provisional Suspension unless: (1) it is based on new and material evidence that the Responsible Person or other Covered Person was not aware of and could not reasonably have been aware of at the time he or she made the original application; or (2) there has been some other significant and material change in circumstances since the original application was decided. If the Responsible Person or other Covered Person makes a further application that does not meet either of these requirements, costs may be awarded against him or her.
(h) Voluntary Provisional Suspension.
(1) In all cases where a Responsible Person/Covered Person has been notified of or charged with a Controlled Medication Rule Violation, but no Provisional Suspension has been imposed on him or her or on the Covered Horse, that person may (on his or her own behalf and, if the Responsible Person, on behalf of the Covered Horse where it might be subject to a period of Ineligibility), voluntarily accept a Provisional Suspension at any time by written notice to the Agency. A copy of the voluntary Provisional Suspension shall promptly be provided to each Interested Party.
(2) A Provisional Suspension that is voluntarily accepted will have effect (in the same manner as if the Provisional Suspension had been imposed under Rule 3347(a)) from the date that written notice of its acceptance is received by the Agency.
(i) No admission will be inferred, or other adverse inference drawn, from the decision of a Covered Person: (1) not to make an application to lift a Provisional Suspension; or (2) to accept a voluntary Provisional Suspension.
(j) If a Provisional Suspension is imposed or voluntarily accepted, and that Provisional Suspension is respected, then the Responsible Person/Covered Person and Covered Horse in question shall receive a credit for such period of Provisional Suspension against any period of Ineligibility that may ultimately be imposed. If the Responsible Person/Covered Person or Covered Horse does not respect a Provisional Suspension, the Responsible Person/Covered Person or Covered Horse shall receive no credit for any period of Provisional Suspension served. If a period of Ineligibility is served pursuant to a decision that is subsequently subject to review, the Responsible Person/Covered Person or Covered Horse shall receive a credit for such period of Ineligibility served against any period of Ineligibility that may ultimately be imposed on review.
(k) Notwithstanding any other provision in this Rule 3347 or elsewhere in the Protocol, any Provisional Suspension imposed on a Covered Horse will be automatically lifted (without the need for any hearing) if it has been in place for a period equal to the period of Ineligibility specified in the Protocol or Prohibited List.
If, after receipt of the Covered Person's explanation, or expiry of the deadline to provide such explanation, the Agency remains satisfied that the Covered Person has committed a Controlled Medication Rule Violation(s), the Agency shall promptly charge the Covered Person with the asserted Controlled Medication Rule Violation(s). In this letter of charge (Charge Letter), which will be copied to each Interested Party, the Agency shall:
(a) set out the Controlled Medication Rule Violation(s) that the Covered Person is charged with having committed;
(b) provide a summary of the relevant facts upon which the charge is based, enclosing a copy of the A Sample Laboratory Documentation Package and (if applicable and if requested) the B Sample Laboratory Documentation Package;
(c) specify the Consequences that will apply if the charge is upheld;
(d) grant a deadline of not more than 7 days from receipt of the Charge Letter (unless otherwise agreed by the Agency) for the Covered Person to either:
(1) admit the Controlled Medication Rule Violation(s) charged and:
(i) accept the Consequences proposed by the Agency, in which case the Agency will issue a decision under Rule 3349,
(ii) seek to agree mitigated Consequences with the Agency pursuant to Rule 3349 failing which the Consequences may still be disputed at a hearing; or
(iii) dispute or seek to mitigate the proposed Consequences at a hearing in accordance with Rule 3361 and the Arbitration Procedures; or
(2) deny the Controlled Medication Rule Violation charged and dispute the proposed Consequences at a hearing in accordance with Rule 3361 and Arbitration Procedures;
(e) indicate that if the Covered Person does not challenge the Agency's assertion of a Controlled Medication Rule Violation or the proposed Consequences within the prescribed deadline, the Covered Person shall be deemed to have waived his or her right to a hearing, admitted the Controlled Medication Rule Violation(s) charged, and accepted the Consequences specified by the Agency in the Charge Letter (without any mitigation of those Consequences);
(f) give the opportunity to provide Substantial Assistance in accordance with Rule 3326(a); and
(g) provide all relevant details relating to any Provisional Suspensions (including, if applicable, the possibility to accept a voluntary Provisional Suspension) in accordance with Rule 3347.
(a) At any time prior to a final decision under the Arbitration Procedures: (1) the Agency may withdraw a Charge Letter for good cause, in which case any Provisional Suspension will be automatically lifted and (absent the emergence of new information) no further steps will be taken in relation to the violations alleged in the Charge Letter; or (2) the Covered Person may agree to admit the Controlled Medication Rule Violation(s) charged (or any other violation of the Protocol) and accede to specified Consequences consistent with the Protocol. In any such case, an adjudication under the Arbitration Procedures will not be required.
(b) In the event that the Covered Person admits the Controlled Medication Rule Violation(s) charged and accedes to Consequences specified by the Agency (or is deemed to have done so in accordance with Rule 3348(a)(5)), the Agency will (1) promptly issue a final decision confirming the commission of the Controlled Medication Rule Violation(s) and setting out the factual basis for the decision and all of the Consequences to be imposed (including a brief summary of the reasons for any period of Ineligibility imposed, unless doing so could compromise an ongoing investigation or proceeding), and (2) send notice of the decision to each Interested Party. The Agency will also Publicly Disclose the decision (or a summary thereof, at the discretion of the Agency) in accordance with Rule 3620.
(c) In the event that the Agency withdraws the Charge Letter, it will (1) promptly issue a summary decision confirming the withdrawal of the Charge Letter, (2) send notice of the decision to the Covered Person concerned, with a copy to each Interested Party, and (3) Publicly Disclose the decision (or a summary thereof, at the discretion of the Agency) in accordance with Rule 3620.
(a) Notification of Controlled Medication Rule Violations will take place as set out in Rule 3345 and Rule 3348. If at any point after an ECM Notice has been provided the Agency decides not to move forward with the charge, it will notify the Covered Person(s) concerned and each Interested Party of that decision.
(b) Notification to a Covered Person by the Agency, for all purposes of the Protocol, may be accomplished either through actual or constructive notice. Actual notice may be accomplished by any means. Constructive notice shall be deemed to have been given when the information in question is delivered by third-party courier or U.S. postal mail to the Covered Person's most recent mailing address on file with the Authority or by email or text message to the Covered Person's most recent email address or mobile telephone number on file with the Authority.
Where a Covered Person is alleged to have committed a Controlled Medication Rule Violation, a violation of Rule 3329, or any violation of Rule 3510, the Covered Person shall be entitled to request a hearing before the Internal Adjudication Panel in accordance with the Arbitration Procedures. However, the Internal Adjudication Panel may decide, in its sole discretion, to determine the matter based solely on the written submissions without a hearing if the Internal Adjudication Panel considers itself sufficiently well-informed to render a decision on the written submissions alone. A copy of the final decision of the Internal Adjudication Panel shall be sent to the Agency and the Covered Person(s) concerned. Where the Agency considers it necessary or appropriate to do so, a copy of the decision may be sent to any Interested Party. The decision (or a summary thereof, at the discretion of the Agency) shall be Publicly Disclosed as provided in Rule 3620. The Internal Adjudication Panel may also adjudicate any other matter referred to it under the Protocol, and any other matter that might arise from time to time under the Protocol that the Agency considers should be determined by the Internal Adjudication Panel.
In Controlled Medication Rule Violation cases where the Covered Horse or Covered Person in question is not Provisionally Suspended and is likely to participate in a Covered Horserace within 45 days, the Agency may (if it sees fit) address the case on an expedited basis and shorten any deadlines in the Protocol or Arbitration Procedures proportionately to ensure resolution of the matter prior to the Covered Horserace.
Subject to Rule 3364, decisions rendered by the Internal Adjudication Panel under the Protocol shall be final and binding.
Any final decision by the Agency or the Internal Adjudication Panel is subject to review in accordance with section 3058 of the Act. Any final decision under review shall remain in effect pending resolution of the review unless ordered otherwise.
Where a Covered Person:
(a) engages in disruptive or offensive conduct towards a Doping Control official or other Person involved in Doping Control that does not rise to the level of Tampering;
(b) refuses or fails to cooperate promptly and completely with the Authority or the Agency in the exercise of their respective powers under the Act and the Protocol and related rules, including any refusal or failure to comply with Rule 3040(a)(2);
(c) commits a Whereabouts Failure; or
(d) refuses or fails without compelling justification to comply with any other provision of the Protocol (where such refusal or failure does not constitute an Anti-Doping Rule Violation);
(a) For a violation of Rule 3510(a) (disruptive or offensive conduct), the Covered Person shall be subject to, at a minimum, a reprimand and no period of Ineligibility, and, at a maximum, 30 days of Ineligibility, depending on the seriousness of the violation. A fine of up to $5,000 may also be imposed.
(b) For a violation of Rule 3510(b) (refusal or failure to cooperate), the Covered Person shall be subject to, at a minimum, a reprimand and no period of Ineligibility, and, at a maximum, a period of Ineligibility of up to 2 years, depending on the seriousness of the violation. A fine of up to $15,000 may also be imposed. A failure to comply with Rule 3040(b)(7) will be considered a particularly serious violation that will ordinarily warrant the imposition of the maximum sanction.
(c) For a violation of Rule 3510(c) (Whereabouts Failures), the Covered Person shall not be subject to any penalty for the first Whereabouts Failure, but shall be subject to a fine of $250 for the second Whereabouts Failure, and a fine of $500 for the third Whereabouts Failure. For any subsequent Whereabouts Failures, the fine will increase by $500 each time (
(d) For a first violation of Rule 3510(d) (refusal or failure to comply with any other provision of the Protocol), the Covered Person shall be subject to, at a minimum, a reprimand and no period of Ineligibility, and, at a maximum, 30 days of Ineligibility, as well as a fine of up to $2,500, depending on the seriousness of the violation.
(e) For any second or subsequent Rule 3510 violation, the maximum potential Ineligibility and potential fine will be double what the maximum potential Ineligibility and potential fine was for the previous violation.
(f) Where a violation of Rule 3510 is alleged and the Covered Person represents a threat to the health, safety, or welfare of horses or the integrity of the sport of horseracing, the Agency may impose a Provisional Suspension on the Covered Person concerned pending resolution of the charge. The Covered Person may challenge the Provisional Suspension in accordance with Rule 3347 (which shall apply mutatis mutandis,
(a) Notice.
(1) Notice of Anti-Doping Rule Violation or Controlled Medication Rule Violations shall be sent to the Covered Persons concerned, with a copy to each Interested Party, as set out in Rules 3245/3248 and 3345/3348.
(2) Notice of other violations shall be sent to the Covered Persons concerned. The Agency may send a copy to any Interested Party where it considers it necessary or appropriate to do so in the circumstances.
(3) State Racing Commissions shall only be entitled to receive notice of violations of the Protocol as Interested Parties if they first enter into an agreement with the Agency incorporating confidentiality provisions required by the Agency pursuant to the Act or the Protocol. The Agency may, in its sole discretion, delay notice to the State Racing Commission for case- or investigation-related reasons.
(b) Confidentiality and public reporting.
(1) Subject to the other provisions of this paragraph (b), the Agency will use its reasonable endeavors to ensure that Persons under its control do not publicly identify Covered Horses or Covered Persons who are alleged to have committed a violation under the Protocol, unless and until (i) in presence cases, the B Sample confirms the results of the A Sample analysis, or the B Sample analysis is waived, (ii) a Provisional Suspension has been imposed or voluntarily accepted, (iii) a charge has been brought, or (iv) a violation has been admitted, whichever is earlier.
(2) In such circumstances, subject to paragraph (3) below, the Agency shall publicly report:
(i) the identity of any Covered Person who is the subject of the alleged violation;
(ii) the identity of any relevant Covered Horse(s); and
(iii) the rule violated and, where appropriate, the basis of the asserted violation.
(3) The Agency shall not be required to publicly report a matter under this paragraph (b) if it would risk compromising an ongoing investigation or proceeding. When the Agency determines that an ongoing investigation or proceeding will no longer be compromised by public reporting, the Agency shall at such time make any public reporting required under this Rule.
(4) The mandatory public reporting under Rule 3610(b) shall not be required where the Covered Person who is alleged to have committed a violation is a Minor. Any optional public reporting in a case involving a Minor shall be proportionate to the facts and circumstances of the case.
(5) If at any time information pertaining to an alleged violation is publicly reported by a Person not affiliated with the Authority or the Agency, the Agency may respond to such public comment as it considers necessary.
(6) The Agency may publicly report any relevant information at any time, including prior to delivery of notice of a violation, if the Agency determines that such disclosure:
(i) concerns a violation or circumstance that poses a serious and imminent risk of harm to any Covered Person(s), Covered Horse(s), State Racing Commission(s), Racetrack(s), Race Organizer(s), Training Facilities, or the public; or
(ii) is otherwise in the best interest of horseracing conducted at Covered Horseraces.
(7) The Agency may at any time disclose to other Persons such information as the Agency considers necessary or appropriate to facilitate administration or enforcement of the Protocol (including Interested Parties and other Persons with a need to know), provided that each Person provides assurance satisfactory to the Agency that the organization will maintain all such information in confidence.
(8) Interested Parties and other Persons may not publicly report any information about an alleged violation unless the information has been
(a) The Agency shall Publicly Disclose the resolution of an alleged violation of the Protocol no later than 20 calendar days after:
(1) the final decision;
(2) a resolution between the Agency and the Covered Person; or
(3) the withdrawal of a charge or a final decision finding of no violation.
(b) Public Disclosure shall include:
(1) the name of the Covered Person who committed the violation(s) and any Covered Horse(s) implicated by the violation;
(2) the Rule(s) violated;
(3) the Prohibited Substance(s) or Prohibited Method(s) involved, if any;
(4) the Consequences imposed;
(5) any final decision or a summary thereof, unless publishing that decision could compromise an ongoing investigation or proceeding, and excluding decisions made by the Agency with respect to Atypical Findings pursuant to Appendix 1; and
(6) any review rights available in respect of the decision.
(c) The mandatory Public Disclosure required by this 3620 shall not be required where the Covered Person who has been found to have committed a violation is a Minor. Any optional Public Disclosure in a case involving a Minor shall be proportionate to the facts and circumstances of the case.
(d) Publication shall be accomplished by, at a minimum, placing the required information on the Agency's website.
The Agency may publish general statistical reports of its Doping Control and Medication Control activities and may report as necessary on its activities to the U.S. Congress, the Commission, the Authority, the State Racing Commissions, and other federal or state governmental bodies or agencies having jurisdiction over the sport of horseracing in the United States. The Agency may also publish reports showing the names of any Covered Horses Tested and the date of each Sample collection.
The Agency may collect, store, process, or disclose personal information relating to Covered Persons, Covered Horses, or other Persons and horses where necessary and appropriate to discharge its responsibilities under the Protocol, but shall take appropriate steps to maintain that information and its confidentiality in compliance with applicable law.
(a) Any final decision issued pursuant to the Protocol that a violation of the Protocol has taken place and imposing Consequences or other sanctions for that violation shall be automatically and immediately recognized, respected, enforced and given full force and effect by the Authority, Racetracks, Race Organizers, Training Facilities, all Covered Persons, and all other relevant Persons within their respective spheres of authority.
(b) Where a third party with its own jurisdiction over Covered Persons or Covered Horses imposes consequences on them for violation of anti-doping or controlled medication rules that are consistent with the Protocol or the World Anti-Doping Code, that decision, upon review and acceptance by the Authority and the Agency, shall be immediately recognized, respected, enforced and given full force and effect by the Agency, the Authority, Racetracks, Race Organizers, all Covered Persons, and all other relevant Persons within their respective spheres of authority.
The Agency shall plan, implement, evaluate, and monitor education programs for responsible medication use and doping-free horseracing.
1. Atypical Findings occur when the Laboratory provides the results of its analysis of a Sample to the Agency and more investigation or review is needed to determine whether or not it should be treated as an Adverse Analytical Finding. This Atypical Findings Policy (Atypical Findings Policy) sets out the process by which the Agency will decide whether or not Atypical Findings will be pursued as Adverse Analytical Findings.
2. If detected in the Sample of a Covered Horse, the following Prohibited Substances shall be investigated or reviewed as Atypical Findings:
(a) Specified Substances;
(b) endogenous substances;
(c) ractopamine; and
(d) zilpaterol.
3. The Laboratory may also report other Atypical Findings in relation to substances that are not specifically listed in the Prohibited List or Technical Document-Prohibited Substances.
4. The Agency is responsible for issuing a decision regarding whether or not an Atypical Finding will be pursued as an Adverse Analytical Finding.
5. Subject to the notification requirements set out below, the deliberations of the Agency shall be confidential.
6. Initial review.
The Agency will first conduct a review to determine whether there is any apparent departure from any Standards or any provisions of the Protocol that caused the Atypical Finding. If that review does not reveal any departure that caused the Atypical Finding, the Agency will conduct the required investigation in accordance with this Atypical Findings Policy. The precise nature of the investigation will depend on basis for the Atypical Finding, including the Prohibited Substance(s) associated with the Atypical Finding (if applicable), and the level of cooperation of the Responsible Person.
7. Notification.
The Agency will promptly inform the Responsible Person and Interested Parties in writing of the Atypical Finding and any relevant information, such as the Covered Horserace to which the Atypical Finding relates, and the Responsible Person will have the opportunity to provide any information that he or she believes might assist the Agency in deciding whether or not to pursue the Atypical Finding as an Adverse Analytical Finding, as set forth in the criteria below. Such information must be provided to the Agency by the deadlines set by the Agency in order for it to be considered by the Agency.
8. Additional information.
The Agency may request such additional information or explanations from the Responsible Person as it considers necessary to evaluate the Atypical Finding, and the Responsible Person must comply fully and promptly with any such requests.
9. Proving source of the Prohibited Substance(s) as a precondition.
(a) The Responsible Person has the burden of proving how the Prohibited Substance(s) entered the body of the Covered Horse. If the Responsible Person is unable to discharge that burden, the Atypical Finding must be pursued as an Adverse Analytical Finding. If the Responsible Person proves the source, the Agency will determine whether or not the Analytical Finding should be pursued as an Adverse Analytical Finding.
(b) The Agency will take a number of factors into account when considering whether or not the source of the Atypical Finding has been established including, but not limited to:
(i) if there were Atypical Findings for the same Prohibited Substance(s) arising from other Samples collected at the relevant Covered Horserace;
(ii) if there were Atypical Findings for the same Prohibited Substance(s) arising from other Samples collected at previous Covered Horseraces held at the same Racetrack or in the same region;
(iii) if Samples taken from feed or bedding at the relevant Covered Horserace (if such samples are available) test positive for the Prohibited Substance(s) in question;
(iv) if there were other (non-Atypical Finding) Prohibited Substance(s) in the Sample; and
(v) the concentration level of the particular Prohibited Substance(s) in the Sample.
(c) In addition, the Agency may, in accordance with Rules 3246 and 3346 of the Protocol, request the B Sample analysis.
(d) If the Atypical Finding concerns a Prohibited Substance(s) that is an endogenous substance, the Agency will request that the Responsible Person provide any veterinary information that would assist in establishing if the result is due to a physiological or pathological condition, and such information shall be taken into account by the Agency.
(e) When trying to establish the source of the Prohibited Substance(s) in question, the Agency may consult, as necessary, with one or more experts to obtain further information on the Prohibited Substance(s) in order to assess whether or not: (i) the explanations provided by the Responsible Person (if any) are plausible; or (ii) the presence of the Prohibited Substance(s) in the Sample is likely to be due to contamination.
(f) The Agency will consider any measures the Responsible Person has in place to prevent Prohibited Substances entering the body of his or her Covered Horse(s), including:
(i) whether or not the Responsible Person keeps up-to-date treatment records;
(ii) whether or not the Responsible Person keeps a record of the feed and supplements given to his or her Covered Horses, and whether samples of such feed or supplements have been stored for potential analysis;
(iii) the security measures put in place by the Responsible Person at his or her stables and when travelling to or attending Covered Horseraces; and
(iv) other measures taken by the Responsible Person to prevent Prohibited Substances inadvertently entering the body of his or her Covered Horses.
10. Other factors.
The Agency may also have regard to other factors that it considers necessary or relevant, including, but not limited to:
(a) the security measures in place at the relevant Covered Horserace;
(b) the report(s) of the Veterinarians or stewards at the relevant Covered Horserace;
(c) the prevalence of the use of the Prohibited Substance(s); and
(d) whether or not the Responsible Person has any prior Anti-Doping Rule Violation(s) or Controlled Medication Rule Violation(s) (excluding any violations where the Responsible Person was found to bear No Fault or Negligence).
11. Following the Agency's investigation of the Atypical Finding in accordance with the criteria above, the Agency shall decide whether or not the Atypical Finding should be pursued as an Adverse Analytical Finding. The Agency shall issue a written decision, with a short summary of the basis for that decision. The decision of the Agency is final and is not subject to review. The Agency will send a copy of its decision to the Responsible Person.
12. If the Agency determines that the Atypical Finding should not be pursued as an Adverse Analytical Finding, no further action will be taken, and no case will be opened against the Responsible Person.
13. If the Agency determines that the Atypical Finding should be pursued as an Adverse Analytical Finding, the Agency will follow the notification procedure set out in Rules 3250 and 3350 and will refer the matter for adjudication in accordance with the Arbitration Procedures (unless the matter is resolved by agreement without a hearing as permitted under the Protocol). The Agency may rely on any information submitted or obtained when investigating the Atypical Finding in the subsequent Adverse Analytical Finding case.
14. At the end of each year, the Agency may publish a report setting out the following information, on an anonymised basis:
(a) how many Atypical Findings were reported by Laboratories that year;
(b) how many Atypical Findings were pursued as Adverse Analytical Findings, and the Prohibited Substances in question;
(c) how many Atypical Findings were not pursued as Adverse Analytical Findings, and the Prohibited Substances in question; and
(d) how many Atypical Findings remain under investigation.
15. Unless there are compelling reasons (as determined by the Agency), no Person may make any public comment on the specific details of an Atypical Finding while the investigation is ongoing. If such a disclosure is made by a Person not affiliated with the Authority or the Agency, the Authority or the Agency may respond to such public comment as it considers necessary.
16. If an Atypical Finding is not pursued as an Adverse Analytical Finding, no Person may make any public comment on the details of that Atypical Finding without the prior consent of the Responsible Person. If such a disclosure is made by a Person not affiliated with the Authority or the Agency, the Authority or the Agency may respond to such public comment as it considers necessary.
In accordance with Rule 3111, the Prohibited List identifies substances and methods that are prohibited at all times (Banned Substances and Banned Methods) and those that are prohibited for Use or Administration in relation to a Covered Horse during the Race Period and prohibited to be present in a Post-Race Sample or Post-Work Sample, except as otherwise specified in the Prohibited List (Controlled Medication Substances and Controlled Medication Methods). In accordance with the definition of “Race Period” (see Rule 1020), the Prohibited List may specify that, for certain specified Controlled Medication Substances and Controlled Medication Methods, the Race Period shall be shorter or longer in duration.
Any pharmacological substance that (i) is not addressed by Rules 4112 through 4117, (ii) has no current approval by any governmental regulatory health authority for veterinary or human use, and (iii) is not universally recognized by veterinary regulatory authorities as a valid veterinary use, is prohibited at all times. For the avoidance of doubt, compounded products compliant with the Animal Medicinal Drug Use Clarification Act (AMDUCA) and the FDA Guidance for Industry (GFI) #256 (also known as Compounding Animal Drugs from Bulk Drug Substances) are not prohibited under this section S0.
The following substances, and other substances with similar chemical structure or similar biological effect(s), are prohibited at all times:
(a) anabolic androgenic steroids when administered exogenously;
(b) other anabolic agents, including, but not limited to:
(1) Selective Androgen Receptor Modulators (SARMs);
(2) Zeranol;
(3) Zilpaterol; and
(4) Ractopamine.
The following substances, and other substances with similar chemical structure or similar biological effect(s), are prohibited at all times:
(a) Erythropoietins (EPO) and agents affecting erythropoiesis, including, but not limited to:
(1) erythropoietin-receptor agonists;
(2) Hypoxia-Inducible Factor (HIF) activating agents;
(3) GATA (Erythroid Transcription Factor) inhibitors;
(4) Transforming Growth Factor-beta (TGF-β) signaling inhibitors; and
(5) innate repair receptor agonists.
(b) Peptide Hormones and their releasing factors, including, but not limited to:
(1) Chorionic Gonadotrophin (CG) and Luteinizing Hormone (LH) and their releasing factors in stallions, ridglings, and geldings;
(2) corticotrophins and their releasing factors (excluding ACTH if administered outside the Race Period);
(3) Growth Hormone (GH) and its analogues and fragments; and
(4) Growth Hormone (GH) releasing factors.
(c) Growth factors and growth factor modulators affecting muscle, tendon, or ligament protein synthesis/degradation, vascularization, energy utilization, regenerative capacity, or fiber type switching.
The following substances, and other substances with similar chemical structure or similar biological effect(s), are prohibited at all times: all selective and non-selective beta-2 agonists, including all optical isomers. Notwithstanding the above, the following are not prohibited under this section S3:
(a) inhaled beta-2 agonists (
(b) clenbuterol when prescribed by a Veterinarian (in the context of a valid veterinarian-patient-client relationship) for a duration not to exceed 30 days in a 6-month period and provided that, following administration of clenbuterol, the Covered Horse shall be placed on the Veterinarians' List and shall not be eligible to participate in any Timed and Reported Workout or Covered Horserace until a urine and a blood Sample have been collected from it by or on behalf of the Agency, and analysis by a Laboratory of those Samples does not detect the presence of clenbuterol or its Metabolites or Markers.
The following substances, and other substances with similar chemical structure or similar biological effect(s), are prohibited at all times:
(a) aromatase inhibitors;
(b) anti-estrogenic substances, anti-estrogens, and selective estrogen receptor modulators (SERMS);
(c) agents preventing activin receptor IIB activation, including, but not limited to, myostatin inhibitors;
(d) metabolic modulators, including, but not limited to:
(1) insulins and insulin-mimetics;
(2) meldonium; and
(3) trimetazidine; and
(e) thyroid hormone and thyroid hormone modulators.
(a) Diuretics and masking agents, and other substances with a similar chemical structure or similar biological effect(s), are prohibited at all times.
(b) Notwithstanding the above, the following are not prohibited under this section S5:
(1) drospirenone, pamabrom, and topical ophthalmic administration of carbonic anhydrase inhibitors (
(2) trichlormethiazide for treatment of edema;
(3) plasma expanders for life-saving procedures; and
(4) furosemide (also known as Lasix/Salix), subject to the limitations set out in Rule 4212(d).
The following substances, and other substances with similar chemical structure or similar biological effect(s), are prohibited at all times:
(a) bisphosphonates (except that bisphosphonates may be administered for the purpose of diagnostic imaging,
(b) toxins (
(c) venoms of any species, their synthetic analogs, or derivatives thereof;
(d) altrenogest in stallions, ridglings, or geldings;
(e) pitcher plant extract (Sarapin); and
(f) perfluorocarbons.
The following are prohibited at all times:
(a) The Administration or reintroduction of any quantity of autologous, allogenic (homologous), or heterologous blood or red blood cell products of any origin into the circulatory system.
(b) Artificially enhancing the uptake, transport, or delivery of oxygen, including, but not limited to: perfluorochemicals; efaproxiral (RSR13); and modified haemoglobin products,
(c) Any form of intravascular manipulation of the blood or blood components by physical or chemical means.
(d) Withdrawal of blood for any purpose other than for diagnostic/Laboratory Testing procedures.
(e) Notwithstanding the above, manipulation of blood or blood components is not prohibited under this section M1:
(1) procedures performed for life-saving purposes; and
(2) use of veterinary regenerative therapies (
In case of chemical castration or immunocastration, the Covered Horse shall remain designated as an intact male. Designating a Covered Horse that has had chemical castration or immunocastration as a gelding constitutes Use of a Prohibited Method.
The following, which have the potential to enhance performance or modify the heritable genome, are prohibited at all times:
(a) the use of nucleic acids or nucleic acid analogues that might alter genome sequences or alter gene expression by any mechanism. This includes, but is not limited to, gene editing, gene silencing, and gene transfer technologies;
(b) the use of normal or genetically modified cells; and
(c) modification of the heritable genome.
(a) Subject to Rule 4212, only feed, hay, and water are permitted during the Race Period. Accordingly, subject to Rule 4212, any substance administered during the Race Period or present in a Post-Race Sample (including any metabolite(s), artifact(s), and isomer(s) of such substance(s)) that does not otherwise qualify as a Banned Substance shall constitute a prohibited Controlled Medication Substance.
(b) The following Controlled Medication Substances are prohibited from presence in a Post-Work Sample:
(1) analgesics;
(2) Nonsteroidal Anti-Inflammatory Drugs (NSAIDs);
(3) local anesthetics; and
(4) corticosteroids.
(c) S7 Controlled Medication Substances exclude those substances that fall under section S0, which are Banned Substances.
(a) Medications administered or authorized by a Regulatory Veterinarian or Test Barn Veterinarian to provide medical care to a Covered Horse as a result of an injury sustained, or other adverse health event, during the Race Period are not prohibited.
(b) The following may be administered up to 24 hours prior to Post-Time:
(1) orally administered vitamins;
(2) licensed vaccines against infectious agents;
(3) anti-ulcer medications (
(4) unsupplemented isotonic electrolyte solutions by oral or intravenous administration;
(5) altrenogest in female horses;
(6) antimicrobials (antibiotics) and other anti-infective agents, excluding procaine penicillin or other antimicrobial/anti-infective agents containing or metabolizing to Prohibited Substances; and
(7) antiparasitic/anthelmintics approved and registered for use in horses, excluding levamisole or other antiparasitic/anthelmintics metabolizing to or containing other Prohibited Substances.
(c) Unsupplemented isotonic electrolyte solutions may be consumed by the horse's free choice at any time (but may not be administered except as provided in paragraph (b) above).
(d) Furosemide (also known as Lasix or Salix):
(1) is permitted during Timed and Reported Workouts and Vets' List Workouts; and
(2) may be administered during the Race Period in accordance with specific provisions of the Act and any guidance or exceptions approved by the Authority, but shall not be administered within the 4 hours prior to Post-Time.
(e) The Use or Administration of supplements or feed additives during the Race Period shall not be prohibited if the Responsible Person or Covered Person establishes, or the Agency expressly accepts, that such substances are not capable at any time of causing an action or effect, or both an action and effect, within one or more of the following mammalian body systems:
(1) the blood system;
(2) the urinary system;
(3) the cardiovascular system;
(4) the digestive system;
(5) the endocrine system;
(6) the immune system;
(7) the musculoskeletal system;
(8) the nervous system;
(9) the reproductive system; or
(10) the respiratory system.
In addition to any prohibited practices set forth in the Rule 2000 Series (Racetrack Safety Program):
Alkalinization or Use/Administration of an alkalinizing agent is prohibited on Race Day. A threshold concentration of total carbon dioxide (TCO2) in the blood in excess of 37 mmol constitutes prima facie evidence of alkalinization or Use/Administration of an alkalinizing agent.
Intra-articular injections are prohibited on Race Day; within 14 days prior to Post-Time; and within 7 days prior to any Timed and Reported Workout.
The use of a nasogastric tube for any purpose is prohibited within 24 hours prior to Post-Time.
Intra-articular injections of polyacrylamide hydrogels are prohibited within 180 days prior to Post-Time.
The start of the “Race Period” shall be modified for each of the Controlled Medication Methods above (
The period of Ineligibility of a Covered Horse resulting from a violation involving a Prohibited Substance shall be as set forth in Table 1 below:
The period of Ineligibility of a Covered Horse resulting from a violation involving a Prohibited Method shall be as set forth in Table 2 below:
The period of Ineligibility of a Covered Horse resulting from a violation of Rule 3215 shall be as set forth in Table 3 below:
(a) The Equine Testing and Investigations Standards have been developed pursuant to the Act and the Protocol.
(b) The first purpose of the Testing and Investigations Standards is to plan for intelligent and effective Testing, both in- and out-of-competition, and to maintain the integrity and identity of the Samples collected from the point of notification of a Covered Horse's selection for Sample collection, to the point the Samples are delivered to a Laboratory for analysis. To that end, these Testing and Investigations Standards establish protocols for test planning, notification of a Covered Horse's selection for Sample collection, preparing for and conducting Sample collection, security/post-test administration of Samples and documentation, and transport of Samples to Laboratories for analysis.
(c) The second purpose of the Testing and Investigations Standards is to establish rules for the efficient and effective gathering, assessment, and use of anti-doping and medication control intelligence, and for efficient and effective investigations into possible anti-doping and medication control rule violations.
Unless specified otherwise, capitalized terms used in these Testing and Investigations Standards have the meanings given to them in Rule 1020.
(a) The Agency is required to plan and implement intelligent and effective Testing on Covered Horses over which it has authority, and that is proportionate to the risk of doping and the misuse of medication, and effective to detect and to deter such practices. The objective of this Rule is to explain the steps that form part of a Risk Assessment to inform Testing plans in a way that best ensures clean competition and protects the health and welfare of Covered Horses.
(b) The Agency shall ensure that Covered Persons with a conflict of interest in the outcome of the Testing being contemplated are not involved in test planning or in the process of selection of Covered Horses for Sample collection.
(c) The Agency should monitor, evaluate, and update its Risk Assessment during the year or cycle in light of changing circumstances and in implementing its Testing plans.
The Risk Assessment shall be conducted in good faith, reviewed and updated as required (at the discretion of the Agency), and should take into account (if available) the following information:
(a) discipline and individual factors that may result in a higher potential for adopting doping behavior or misuse of medication;
(b) available statistics and research on doping trends and misuse of medication, practices, and methods;
(c) reliable information received and intelligence developed on possible doping practices and misuse of medication;
(d) outcomes of previous test planning cycles, including past testing strategies;
(e) optimal times to apply specific test types (including analysis) to maximize opportunities for detecting and deterring doping;
(f) given the structure of the racing season (including generic racing schedules and training patterns), the time during the year a horse is most likely to be administered Banned Substances or be subjected to Banned Methods (to enhance or impair performance or impact welfare or soundness); and
(g) any Risk Assessment carried out by a State Racing Commission or racing authority in another country and provided to the Agency for the purposes of enhancing its Risk Assessment.
(a) The Agency should consider various factors in prioritizing the allocation of Testing resources. In addition, the Agency will use Target Testing to focus Testing resources where they are most needed within the overall pool of Covered Horses.
(b) Factors relevant to determining which Covered Horses should be the subject of Target Testing may include, but are not limited to, the following:
(1) Covered Horses serving a period of Ineligibility or a Provisional Suspension;
(2) Covered Horses who were high priority for Testing before retirement and are now returning from retirement to active participation;
(3) Covered Horses' testing history, including any abnormal Sample data (
(4) Covered Persons' prior anti-doping and medication control rule violations and testing history, including any abnormal Sample data (
(5) performance history, performance pattern, or high performance (
(6) repeated failure to meet whereabouts requirements;
(7) suspicious whereabouts filing patterns;
(8) moving to or training in a remote location;
(9) suspicious withdrawal or absence from expected Covered Horserace(s);
(10) association with a third party (such as a Trainer, Veterinarian, or Owner) with a history of involvement in doping or misuse of medication;
(11) injury;
(12) age and stage of career;
(13) financial incentives for improved or degraded performance, such as purse size, unusual betting patterns, or upcoming Claiming Race; or
(14) reliable information from a third party, or intelligence developed by or shared with the Agency.
(c) Target Testing is a priority because random Testing, or even weighted random Testing, does not ensure that all of the appropriate Covered Horses will be sufficiently tested. Covered Horses may be tested at any time and at any place where they are located (
(d) Testing that is not Target Testing should be determined based on the Risk Assessment. Testing should be conducted using a documented system for such selection, such as weighted testing (where Covered Horses are ranked using pre-determined criteria to increase or decrease the chances of selection) or random testing (where no pre-determined criteria are considered, and Covered Horses are chosen arbitrarily from a list or pool of names). Testing that is weighted should be prioritized and conducted according to defined criteria which may take into account the risk factors to ensure that a greater percentage of at risk Covered Horses are selected.
(e) Based on the Risk Assessment and prioritization process described above, the Agency should determine to what extent each of the following types of Testing is required to effectively detect and deter doping and misuse of medication within the sport:
(1) TCO2 and Post-Race Sample collection on Race Day;
(2) Post-Work Sample collection following Timed and Reported Workouts;
(3) Out-of-competition Sample collection;
(4) Sample matrices to be considered:
(i) urine;
(ii) hair;
(iii) blood; or
(iv) other matrices or methodologies, as available.
(a) Laboratories shall analyze Samples for an Analytical Testing menu directed by the Agency. The Agency may also consider undertaking more extensive Sample analysis for Prohibited Substances or Prohibited Methods based on the assessed risk or any intelligence that the Agency may receive (
(b) The Agency should develop a system for retention of Samples and related documentation to enable the Further Analysis of such Samples at a later date in accordance with Rule 3138. Such a system should comply with the requirements of the Laboratory Standards and should take into account the purposes of Sample analysis set out in Rule 3137, as well as (without limitation) the following elements:
(1) Laboratory recommendations (when available);
(2) new relevant detection methods to be introduced in the future;
(3) collected Samples that meet some or all of the criteria set out at Rule 5130; or
(4) the Agency determining based on available information or random selection that long-term storage or Further Analysis of the Samples is appropriate.
(a) In accordance with Rule 3132, the Agency may delegate Testing (or aspects thereof) to State Racing Commissions, subject to the applicable State Racing Commission electing to enter into an agreement with the Agency. For example, the Agency may utilize Sample Collection Personnel employed or designated by a State Racing Commission to collect Samples. Any state rule, law, or regulation preventing sample collection personnel employed or designated by a State Racing Commission from contracting with the Agency to collect Samples is pre-empted by this rule, which expressly permits such arrangements. Regardless of who collects a Sample, only the Agency shall receive the results of Sample analysis directly from the Laboratory.
(b) The Agency may delegate Testing (or aspects thereof) to qualified third parties,
(c) State Racing Commissions, Racetracks, Race Organizers, and other third parties may (at their own cost) contract with the Agency to collect additional Samples on Covered Horses in a manner that is consistent with the Act and the Protocol.
(a) Testing without advance notice should be the method for Sample collection except in circumstances where advance notice is required to facilitate the Testing. If the Responsible Person is with the Covered Horse at the time of notification, the Responsible Person should be the first Person notified that the Covered Horse has been selected for Sample collection. In order to ensure that Testing is conducted on a without advance notice basis, the Agency shall ensure Testing selection decisions are only disclosed in advance of Testing to those who need to know in order for such Testing to be conducted. Any notification to a third party shall be conducted in a secure and confidential manner to minimize the risk that the Responsible Person or other Covered Person will receive any advance notice of a Covered Horse's selection for Sample collection.
(b) The Agency shall appoint DCOs, BCOs, Chaperones, and other Sample Collection Personnel sufficient to facilitate Testing without advance notice and to ensure continuous observation of the Covered Horse and confirmation that the Covered Horse is in a secure location (a stall, for example) throughout the Sample collection process. Sample Collection Personnel must be trained for their assigned responsibilities, must not have a conflict of interest with respect to the performance or outcome of the Sample collection, and must be 18 or older. See Rule 5450 for more information on Sample Collection Personnel requirements.
(c) Sample Collection Personnel shall have official documentation provided by the Agency, evidencing their authority to collect a Sample from the Covered Horse.
(d) Information provided in the Covered Horse's whereabouts filing and registration with the Authority, or other equally reliable form of identification, shall be used by Sample Collection Personnel to confirm the identity of the Covered Horse. Confirmation of the Covered Horse's identity by any other method or failure to confirm the identity of the Covered Horse shall be documented, including through photographs, and reported to the Agency.
(e) The DCO or BCO shall establish the location of the selected Covered Horse and plan the approach and timing of notification, taking into consideration the specific circumstances of the location, schedule, and the situation in question (
(a) Out-of-competition Sample collection.
(1) The Sample Collection Personnel will seek to locate the Covered Horse based on available data regarding Racetracks and Training Facilities or based on whereabouts information.
(2) If the Sample Collection Personnel are able to locate the Covered Horse, notification of out-of-competition Sample collection shall ordinarily take place in person, but may, if necessary, take place by telephone, text message, or email using the contact details provided by the Responsible Person upon registration with the Authority.
(3) If the Sample Collection Personnel are not able to locate the Covered Horse based on available data or whereabouts information, notification of out-of-competition Sample collection shall take place by telephone, text message, or email, using the contact details provided by the Responsible Person upon registration with the Authority.
(4) In accordance with Rule 3215, the Responsible Person shall ensure that the Covered Horse is produced for Sample collection immediately upon notification by a duly authorized person in accordance with the Agency's procedures if the Covered Horse is present at the location where notification is attempted. If the Covered Horse is not present at the location where notification is attempted (including due to a Whereabouts Failure), the Responsible Person shall ensure that the Covered Horse is produced for Sample collection within 6 hours of notification by a duly authorized Person in accordance with the Agency's procedures, except that the Agency may extend the 6-hour period if it considers that extenuating circumstances justify doing so.
(5) At the time of notification, the Sample Collection Personnel shall inform the Responsible Person or Nominated Person:
(i) that the Covered Horse is required to undergo Sample collection;
(ii) that immediate access to the Covered Horse shall be granted, and (if
(iii) that the Sample collection process shall start immediately, unless there are valid reasons for a delay (as determined by the DCO or BCO);
(iv) that the Sample collection process shall take place in a secure location determined suitable by the DCO or BCO (
(v) of the responsibilities of the Responsible Person or Nominated Person with respect to the Covered Horse, including the requirement to:
(A) ensure that the Covered Horse remains under continuous observation of Sample Collection Personnel at all times until the completion of the Sample collection procedure;
(B) not leave the Covered Horse unattended once the Responsible Person or Nominated Person is notified and contact is made with the Covered Horse until the completion of the Sample collection procedure;
(C) produce on request identification for himself or herself and the Covered Horse. Identification for the Responsible Person or Nominated Person should include his or her Authority registration number or (if not available) valid photo identification. The Sample Collection Personnel may take photographs of the individual(s) and the Covered Horse if identification is not provided;
(D) comply and cooperate with Sample collection procedures and processes (the Responsible Person or Nominated Person should also be advised of the possible Consequences of failure to comply, including pursuant to Rule 3215 and 3510); and
(E) ensure that the Covered Horse is not administered any medications or supplements from notification of Sample collection until completion of Sample collection, unless there is a medical emergency, as determined by a Regulatory Veterinarian or (if not available) a Veterinarian.
(6) The Sample Collection Personnel shall have the Responsible Person or Nominated Person sign an appropriate form to acknowledge and accept the notification of Sample collection. If the Responsible Person or Nominated Person refuses to sign the form, or evades notification, the Sample Collection Personnel should, if possible, inform the Responsible Person or Nominated Person of the Consequences of a failure to comply, and the Sample Collection Personnel (if not the DCO) shall immediately report all relevant facts to the DCO or BCO. When possible, the Sample Collection Personnel shall continue the Sample collection. The DCO shall document the facts in a detailed report and report the circumstances to the Agency.
(7) A Nominated Person may be replaced by another Nominated Person during the Sample collection process upon reasonable request to the Sample Collection Personnel so long as the new Nominated Person (i) falls within the scope of the definition of Nominated Person, (ii) completes the relevant portions of the Sample collection paperwork, and (iii) does not interfere with the Sample collection process. Any changes of Nominated Person during the Sample collection process shall be documented by the Sample Collection Personnel.
(b) Post-Race Sample collection.
(1) Pursuant to Rule 1020, a Post-Race Sample includes any Sample collected by or on behalf of the Agency from a Covered Horse where notification of such Sample collection takes place no more than 1 hour after the end of a Covered Horserace in which a Covered Horse participates or is entered, or the end of a Vet's List Workout in which a Covered Horse participates.
(2) A member of the Sample Collection Personnel will tag or otherwise identify a Covered Horse selected for Sample collection (ordinarily in the unsaddling area) within 1 hour of the end of the Covered Horserace or Vets' List Workout and chaperone the Covered Horse, to the extent possible, from the point of tagging/notification until the end of the Sample Collection Session. Such notification should inform the Responsible Person or Nominated Person:
(i) that the Covered Horse is required to undergo Sample collection;
(ii) that the Covered Horse must report to the Test Barn as soon as practicable, unless there are valid reasons for a delay (as determined by the DCO or BCO);
(iii) of the location of the Test Barn;
(iv) of the responsibilities of the Responsible Person or Nominated Person with respect to the Covered Horse, including the requirement to:
(A) ensure that the Covered Horse remains under observation of Sample Collection Personnel, to the extent possible, until the completion of the Sample Collection Session;
(B) not leave the Covered Horse unattended to the extent possible once the Responsible Person or Nominated Person is notified and contact is made with the Covered Horse until the Sample Collection Session is completed;
(C) produce on request identification for himself or herself (which shall include his or her Authority registration number) and the Covered Horse. The Sample Collection Personnel may take photographs of the individual(s) and the Covered Horse if no identification is provided;
(D) comply and cooperate with Sample collection procedures and processes (the Responsible Person or Nominated Person should be advised of the possible Consequences of a failure to comply, including pursuant to Rule 3215 and 3510);
(E) ensure that the Covered Horse is not administered any medications or supplements (or similar items) from notification of Sample collection until completion of the Sample Collection Session, unless there is a medical emergency, as determined by the Test Barn Veterinarian or a Regulatory Veterinarian; and
(F) confirm that the water bucket of the Covered Horse is clean and acceptable and ensure that it is only used for that Covered Horse during the Sample Collection Session.
(3) The Sample Collection Personnel shall notify the Responsible Person or Nominated Person and document the time and the individual notified (
(4) From the time that a Covered Horse is tagged or identified for Sample collection until the end of the Sample collection process, the Sample Collection Personnel shall keep the Covered Horse under observation or ensure the Covered Horse is in a secure location (a stall, for example).
(5) A Nominated Person may be replaced by another Nominated Person
(c) Pre-race Sample collection.
Blood samples may be collected before a Covered Horserace or Vets' List Workout for purposes of TCO2 testing in accordance with Rule 5430. Sample Collection Personnel shall provide notification of Sample collection in accordance with paragraph (a) or (b) above depending on the circumstances.
(d) Post-Work Sample collection.
Samples may be collected after a Timed and Reported Workout in accordance with Rule 5400. All Banned Substances and any Controlled Medication Substances specifically identified on the Prohibited List as prohibited during Timed and Reported Workouts are prohibited from being present in a Post-Work Sample. Sample Collection Personnel shall provide notification of Sample collection in accordance with paragraph (a) and (b) above depending on the circumstances.
(a) The DCO or BCO may consider any reasonable request from the Responsible Person or Nominated Person or third party for permission to delay beginning the Sample collection process following acknowledgment and acceptance of notification. The DCO or BCO may grant such permission only if the Covered Horse can remain under continuous observation of Sample Collection Personnel at all times until the completion of the Sample collection procedure. The DCO or BCO shall otherwise reject a request for delay, unless there is a medical emergency (as determined by a Test Barn Veterinarian or Regulatory Veterinarian or, if not available for an out-of-competition Sample collection, a Veterinarian) or other circumstances so require it (as determined by the DCO or BCO).
(b) For Race Day Sample collection, delayed reporting to the Test Barn may be permitted in accordance with paragraph (a) on account of:
(1) participation in the winner's circle;
(2) obtaining necessary medical treatment if there is a medical emergency, as determined by a Regulatory Veterinarian or Test Barn Veterinarian; or
(3) any other reasonable circumstances, as determined by the DCO or BCO, taking into account any instructions of the Agency.
(c) For out-of-competition Sample collection, delayed reporting for Sample collection may be permitted in accordance with paragraph (a) on account of:
(1) completing a training session or a cool down;
(2) receiving necessary medical treatment if there is a medical emergency, as determined by a Regulatory Veterinarian or (if not available) a Veterinarian; or
(3) any other reasonable circumstances, as determined by the DCO or BCO, taking into account any instructions of the Agency.
(d) Sample Collection Personnel shall document any reasons for delay in reporting for Sample collection.
(e) If immediate access to the Covered Horse is not granted, the DCO or BCO shall report to the Agency a possible failure to comply. If at all possible, the DCO or BCO shall proceed with collecting a Sample.
(a) The Agency should establish a system for obtaining all of the information necessary to ensure that the Sample Collection Session can be conducted effectively.
(b) For Race Day Sample collection, a Test Barn should be used that, where possible, is used solely as a Test Barn for the duration of all Sample Collection Sessions. Unauthorized persons should not be permitted access to the Test Barn. Should the DCO or BCO determine the Test Barn is unsuitable, he or she shall seek an alternative location.
(1) Unless otherwise approved by the Agency, the Test Barn should be equipped with:
(i) an enclosed area for Covered Horses to walk in or adjacent to the Test Barn that is large enough to accommodate several horses and allow for continuous observation of the Covered Horses;
(ii) sufficient enclosed stalls for the number of Sample collections that permit observation of the collection process and provide for the protection of Covered Horses undergoing Sample collection and space for Sample Collection Personnel and up to 2 Covered Persons per Covered Horse;
(iii) facilities and equipment for the collection, identification, and storage of Samples, including one refrigerator or cooler that can be locked or otherwise secured, and one freezer that can be locked or otherwise secured;
(iv) an area and appropriate facilities for a Covered Horse to be bathed;
(v) a table or other suitable surface;
(vi) access to hot and cold running water;
(vii) clean water buckets for each Covered Horse; and
(viii) a security officer to ensure no unauthorized person is permitted in the Test Barn.
(2) The Test Barn Veterinarian shall be responsible for managing horse welfare in the Test Barn. For example, this includes determining when and how to manage congestion in the Test Barn, when to release Covered Horses from the Test Barn, and whether (if necessary) to permit treatment of a Covered Horse. A Covered Horse in the Test Barn may receive medical treatment only with the prior authorization of the Test Barn Veterinarian or a Regulatory Veterinarian.
(c) For out-of-competition Sample collection, the DCO or BCO will determine a suitable location to be used for the Sample Collection Session. If at a stable, by default the Covered Horse's own stall should be used.
(a) General. Sample Collection Personnel should ensure that they have and use Sample Collection Equipment provided by or approved by the Agency.
(b) Minimum requirements. Sample Collection Equipment should, at a minimum:
(1) have a unique numbering system for all bottles, containers, tubes, security bags, bar code labels, or other items used to seal and transport the Samples;
(2) have a Tamper Evident sealing system;
(3) not reveal the identities of the Responsible Person and Covered Horse on the equipment (
(4) be clean and sealed prior to use;
(5) be constructed of a material and sealing system approved by the Agency that should:
(i) be able to withstand the handling conditions and environment in which the equipment will be used or subjected to, including, but not limited to, transportation, Laboratory analysis, and long-term storage;
(ii) maintain the integrity (chemical and physical properties) of the Sample for Laboratory analysis;
(iii) if the Sample will be transported or stored frozen, withstand temperatures
(iv) be transparent or translucent so the Sample is visible;
(v) have a sealing system that allows verification by the Responsible Person or Nominated Person and the DCO or BCO that the Sample is correctly sealed in the bottles or containers;
(vi) be designed to prevent leakage during transportation (including by air);
(vii) have been manufactured under the internationally recognized ISO 9001 certified process which includes quality control management systems; and
(viii) be able to be resealed after initial opening by a Laboratory to maintain the integrity of the Sample and Chain of Custody in accordance with the requirements for long-term storage and Further Analysis; and
(6) include a transport device or packaging that is suitable to the Sample at issue.
(c) Additional requirements applicable to urine Samples. In addition to the requirements of paragraph (b) of this Rule 5320, Sample Collection Equipment used in the collection of urine Samples shall include:
(1) a collection vessel with the capacity to contain a minimum of 50 mL volume of urine;
(2) A and B bottles with the capacity to contain a minimum 25 mL volume of urine; and
(3) visual markings on the A and B bottles and the collection vessel, indicating the minimum volume of urine required and the maximum volume levels that allow for expansion when frozen without compromising the bottle, container, or sealing system.
(d) Specific requirements applicable to blood Samples. In addition to the requirements of paragraph (b) of this Rule 5320, Sample Collection Equipment used in the collection of blood Samples shall include:
(1) a needle for blood sampling; and
(2) blood collection tubes, each with a capacity to contain a minimum of 8 mL of blood, to ensure a minimum total of 30 mL of blood is collected (except for TCO2 testing, where a lesser volume may be collected at the discretion of the Agency).
(e) Specific requirements applicable to Hair Samples and other Samples. Sample Collection Personnel should ensure that they have the necessary equipment for hair Sample collection and any other approved Testing matrices or methodologies, in accordance with any procedures or guidance issued by the Agency.
(a) The Agency shall be responsible for the overall conduct of the Sample Collection Session, with specific responsibilities delegated to the DCO or BCO. Sample collection may be performed only by Sample Collection Personnel approved by the Agency. The Agency may issue supplemental procedures or guidance regarding Sample collection procedures as it considers necessary.
(b) The following Persons may be authorized or required to be present during the Sample Collection Session:
(1) Sample Collection Personnel sufficient to notify, chaperone, and collect the required Samples must be present during the Sample Collection Session;
(2) the Responsible Person or Nominated Person should be present during the Sample Collection Session. If the Responsible Person or Nominated Person is not present, this will be documented by the DCO or BCO;
(3) no more than 2 Covered Persons (including the Responsible Person or Nominated Person) may be present during the Sample collection for a Covered Horse, except in exceptional circumstances, as determined by the DCO or BCO; and
(4) any Person authorized by the Agency (
(c) The Sample Collection Personnel will coordinate with the Test Barn security officer to ensure that no unauthorized person is permitted in the Test Barn.
(d) For Race Day Sample collection, the Covered Horse shall remain in the Test Barn through to the end of the Sample collection when the Covered Horse is released from the Test Barn by the DCO.
(e) Samples shall be collected in a manner that ensures:
(1) the Sample is of a quality and quantity that meets the relevant Sample suitability and analytical requirements;
(2) the Sample has not been contaminated or otherwise tampered with in any way at the time of collection;
(3) the Sample is clearly and accurately identified; and
(4) the Sample is securely sealed in a Tamper Evident kit.
(f) The Sample Collection Personnel shall collect the Sample from the Covered Horse according to the following protocol(s) for the specific type of Sample collection:
(1) Rule 5420: Collection of urine Samples;
(2) Rule 5430: Collection of blood Samples; and
(3) Rule 5440: Collection of hair Samples.
(g) Except for Samples collected for TCO2 testing (see Rule 5430(p) below), each Sample collected shall be split into an A and a B Sample at the time of collection.
(h) In general, the relevant Sample Collection Personnel should wear a new pair of disposable gloves when handling the Sample collection vessel/tubes and when sealing Samples.
(i) The following information shall be recorded at a minimum on the Sample collection documentation for a Sample Collection Session:
(1) date and time of notification and name of notifying Sample Collection Personnel;
(2) the arrival time of the Covered Horse to the Test Barn (for Race Day Sample collection) or secure location (for out-of-competition Sample collection);
(3) the name of the Responsible Person and Nominated Person;
(4) any changes in the Nominated Person during the Sample Collection Session;
(5) the contact information of the Responsible Person or Nominated Person(s), if requested;
(6) the name of the Covered Horse;
(7) the sex of the Covered Horse (intact male, mare, gelding);
(8) the color of the Covered Horse;
(9) the means by which the Covered Horse's identity is validated (
(10) the name and signature of the Sample Collection Personnel involved in the Sample collection process for the Covered Horse;
(11) the name of additional Covered Persons (if any) present during the Sample Collection Session;
(12) the Sample code number(s);
(13) the date and time of sealing of each Sample collected and date and time of completion of entire Sample Collection Session;
(14) the location at which the Sample Collection Session took place;
(15) the type of the Sample collected (
(16) the type of test,
(17) whether furosemide was administered to the Covered Horse within 48 hours before Post-Time;
(18) any required Laboratory information on the Sample (
(19) for a blood Sample, the information to be recorded by the DCO or BCO as outlined in Rule 5430;
(20) any irregularities in procedures (
(21) any comments or concerns from the Responsible Person or Nominated Person regarding the conduct of the Sample Collection Session; and
(22) acknowledgement by the Responsible Person or Nominated Person of the processing of Sample collection data and a description of such processing.
(j) At the conclusion of the Sample Collection Session the Responsible Person or Nominated Person and DCO or BCO shall sign appropriate documentation to indicate their satisfaction (or otherwise) that the documentation accurately reflects the details of the Covered Horse's Sample Collection Session. The DCO (or BCO) shall also provide the Responsible Person or Nominated Person the opportunity to document any concerns he or she may have concerning the manner in which Sample Collection Session was conducted.
(k) The Agency may require the Sample Collection Personnel to complete supplemental documentation regarding the Sample Collection Session. For example, any anomalous behavior by the Responsible Person, Nominated Person, or other Covered Persons or Persons associated with the Covered Horse or Responsible Person, or behavior with the potential to compromise the Sample collection shall be recorded in detail by the Sample Collection Personnel. If the Covered Horse requires any emergency medical treatment, that shall be recorded in detail by the Sample Collection Personnel.
(l) Only the DCO or BCO is authorized to end a Sample Collection Session and so release a Covered Horse from the Test Barn or Sample collection location. Only the DCO or BCO, in consultation with the Test Barn Veterinarian for any Race Day Sample collection, is authorized to temporarily release a Covered Horse from the Test Barn or Sample collection location.
(m) Subject to Rule 5200, no photography or audio or video recording of the Sample Collection Session is permitted. Instead, the Sample collection documentation will be the definitive record of the Sample Collection Session, and any comments regarding the Sample Collection Session must be recorded on the Sample collection documentation. If a Covered Person insists on photographing or recording the Sample Collection Session (in whole or in part) in violation of this Rule, the Sample Collection Session should continue, but a case may be brought against the Covered Person under Rule 3510. If the conduct of the Covered Person results in the Sample Collection Session being discontinued, a case may be brought against the Covered Person (on its own or in the alternative) for an Anti-Doping Rule Violation under Rule 3215 or Rule 3216. For the avoidance of doubt, any conduct by a Nominated Person or other Person or employee, agent, or associate of the Responsible Person in relation to a Sample Collection Session may in appropriate circumstances be imputed to the Responsible Person for these purposes.
(n) If the Agency collects any Sample(s) from a deceased horse:
(1) Sample collection shall not interfere with any life-saving treatment.
(2) Sample(s) should ordinarily be collected from the Covered Horse before it is removed from the relevant venue where it suffered a fatal condition, but otherwise may be collected at the location where the Covered Horse is transported to (
(3) The Agency shall afford the Responsible Person and Nominated Person the opportunity to waive attendance at the Sample collection if such attendance would cause undue distress.
(4) The Sample collection shall proceed in accordance with the applicable Sample collection procedures, amended as necessary to account for the specific circumstances.
(a) Urine Samples may be collected and analyzed for any anti-doping analytical matrix or methodology, as determined by the Agency, and in accordance with the Prohibited List and related Technical Documents.
(b) The relevant Sample Collection Personnel will retain control of the Sample collection vessel.
(c) The Responsible Person or Nominated Person will be instructed to examine the Sample collection vessel to ensure that it will not affect the integrity of the urine Sample.
(d) The relevant Sample Collection Personnel will then open and use the selected Sample collection vessel to collect the urine Sample.
(e) The relevant Sample Collection Personnel shall ensure as unobstructed a view as possible of the Sample leaving the Covered Horse's body and shall continue to observe the Sample after provision until the Sample is securely sealed.
(f) When the Covered Horse passes urine, the collection vessel should be positioned to collect as much urine as possible.
(g) The volume of urine required for a full Sample is a minimum of 25 mL for each of the A Sample and B Sample (minimum of 50 mL in total). If during the initial attempt less than 50 mL is obtained, the relevant Sample Collection Personnel should try to collect additional urine.
(h) The Test Barn Veterinarian (or a Regulatory Veterinarian), in consultation with the DCO, shall determine if a Covered Horse is intractable, and (if so) when the urine Sample Collection Session should be terminated. If a urine Sample is not collected because the Covered Horse is intractable, a blood Sample should be collected (in addition to any other Sample,
(i) Once the volume of urine provided by the Covered Horse is deemed sufficient, the relevant Sample Collection Personnel will bring the Sample to the designated processing area.
(j) The relevant Sample Collection Personnel will select the Sample collection kit and will open, inspect, and confirm Sample codes numbers match and ask the Responsible Person or Nominated Person to confirm the same.
(k) If the Responsible Person or Nominated Person is not satisfied with the chosen Sample Collection Equipment, this shall be recorded by the DCO. If the DCO does not agree with the Responsible Person or Nominated Person that the equipment is unsatisfactory, the DCO shall inform the Responsible Person or Nominated Person that the Sample Collection Session is proceeding. If the DCO agrees with the Responsible Person or Nominated Person that the equipment is unsatisfactory, the DCO shall use other available equipment that the DCO determines is satisfactory. If no such equipment is available, the DCO shall terminate the Sample Collection Session, and the termination and its specific reason shall be recorded by the DCO.
(l) Once the Sample collection kit has been selected, the relevant Sample Collection Personnel will pour and split the urine Sample into A and B Sample
(m) The relevant Sample Collection Personnel will seal the A and B bottles within the view of the Responsible Person or Nominated Person. Once closed, the relevant Sample Collection Personnel will check that the bottles have been properly sealed.
(n) The Sample Collection Personnel will complete all the required Sample collection documentation, and the Responsible Person will subsequently be provided a copy for his or her records.
(o) Urine should only be discarded when both the A and B bottles or containers have been filled to the maximum amount they can hold and have been sealed. Any excess urine should be disposed of into a drain (ground drain or sink) or into a bin or waste pile, if necessary. The Responsible Person or Nominated Person shall be given the option to observe the disposal of any residual urine not sent to the Laboratory for analysis.
(a) Blood collection shall be conducted by the BCO.
(b) Blood Samples may be collected and analyzed for any anti-doping analytical matrix or methodology, as determined by the Agency, and in accordance with the Prohibited List and related Technical Documents.
(c) The DCO or BCO will select a Sample collection kit containing a sufficient number of blood collection tubes (two or three of which will be paired together as the A Sample, and the third or fourth of which will constitute the B Sample), and the other necessary equipment needed to collect a blood Sample.
(d) If the Responsible Person or Nominated Person is not satisfied with the chosen Sample Collection Equipment, this shall be recorded by the DCO or BCO. If the DCO or BCO does not agree with the Responsible Person or Nominated Person that the equipment is unsatisfactory, the DCO or BCO shall inform the Responsible Person or Nominated Person that the Sample Collection Session is proceeding. If the DCO or BCO agrees with the Responsible Person or Nominated Person that the equipment is unsatisfactory, the DCO or BCO shall use other available equipment that the DCO or BCO determines is satisfactory. If no such equipment is available, the DCO or BCO shall terminate the Sample Collection Session, and this termination and its specific reason shall be recorded by the DCO or BCO.
(e) Once the Sample collection kit has been selected, the relevant Sample Collection Personnel will open, inspect, and confirm Sample codes numbers within the kit match and ask the Responsible Person or Nominated Person to confirm the same.
(f) The BCO will determine the most suitable location of venipuncture;
(g) The BCO shall safely dispose of used blood sampling equipment not required to complete the Sample Collection Session.
(h) Subject to paragraph (l) below, the BCO will collect the amount of blood that will adequately satisfy the relevant analytical requirements for the Sample analysis to be performed. The minimum total volume requirement is 30 mL whole blood, plasma, or serum, with each collection tube containing a minimum of 8 mL.
(i) If the amount of blood that can be removed from the Covered Horse at the first attempt is insufficient, the BCO shall repeat as necessary and appropriate (taking horse welfare into account) to try to obtain the minimum total volume for a blood Sample. If the BCO is unable to collect a sufficient amount of blood, the BCO or DCO may terminate the blood Sample Collection Session and record the reasons for such termination. Other matrices should be considered for collection.
(j) Once a complete blood Sample is obtained, the Sample Collection Personnel will properly seal the A and B tubes.
(k) The Sample Collection Personnel will complete all the required Sample collection documentation, and the Responsible Person will subsequently be provided a copy for his or her records.
(l) Total carbon dioxide (TCO2):
(1) In addition to the collection of a Post-Race Sample, blood Sample(s) may also be collected from a Covered Horse prior to a Covered Horserace or Vets' List Workout for the purpose of testing for TCO2. The Prohibited List specifies the TCO2 levels that will be considered prima facie evidence of alkalinization or administration of an alkalinizing agent,
(2) A blood Sample collected for TCO2 analysis may have a total volume below 24 mL, at the Agency's discretion. Any volume of blood collected for TCO2 analysis will be transported to the Laboratory.
(3) The Responsible Person or Owner of a Covered Horse selected for TCO2 testing may request that a duplicate Sample be taken. Such request must be made prior to the collection of the official Sample. The costs related to obtaining, handling, shipping, and analyzing the duplicate Sample shall be the responsibility of the Responsible Person or Owner who requested such Sample.
(4) The duplicate sample shall not constitute a B Sample. Accordingly:
(i) the provisions in the Protocol addressing the splitting of Samples for analysis purposes shall not apply to blood samples collected for TCO2 testing.
(ii) the provisions of Rule 5430 apply to blood Samples collected for TCO2 testing, except that any references to A and B Samples or tubes shall not apply, as there shall be only one official Sample.
(5) The official Sample and any duplicate Sample shall be analyzed by the same Laboratory. If the Agency, in its discretion, determines that the duplicate Sample cannot be analyzed within 5 days after the Sample is collected, the findings of the official Sample shall be final.
(6) Blood Samples collected for TCO2 testing may be subject to Further Analysis if a Post-Race Sample collected from the same Covered Horse returns an Atypical Finding or an Adverse Analytical Finding.
Sample Collection Personnel should collect hair Samples in accordance with the following requirements:
(a) hair should (to the extent possible) be completely dry and free of visible dirt, debris, or foreign substances;
(b) mane hair should be collected unless tail hair is specifically requested. If, for a particular reason, a mane Sample cannot be obtained (
(c) an adequate Sample of hair should be obtained for each of the A and B Samples;
(d) if the mane is less than 10 cm, an additional Sample of hair may be required to ensure a suitable volume is obtained for analysis;
(e) the Sample should be secured tightly with an elastic band, or equivalent, and oriented to clearly mark the ends cut or pulled from the Covered Horse; and
(f) hair shafts should remain aligned so that the hair does not become knotted.
(a) Minimum requirements. The Agency shall establish the necessary eligibility and qualification requirements for the positions of DCO, BCO, and Chaperone. At a minimum:
(1) Sample Collection Personnel shall be 18 years or older;
(2) Sample Collection Personnel shall agree to undergo screening required by the Agency (
(3) The BCO shall be a Veterinarian or veterinary technician with the practical skills and knowledge to perform blood collection from a vein on a horse.
(b) Conflicts.
(1) The Agency may require all Sample Collection Personnel to sign an agreement regarding conflicts of interest, confidentiality, and an appropriate code of conduct.
(2) The Agency shall not assign any Sample Collection Personnel to a Sample Collection Session where they have an interest in the performance or outcome of the Sample collection process. At a minimum, Sample Collection Personnel are deemed to have such an interest if they:
(i) are related to, employed or otherwise engaged by, or otherwise affiliated with any Equine Constituencies, excluding State Racing Commissions and Racetracks, if the Sample Collection Personnel have met the other requirements set forth by the Agency;
(ii) have a financial interest in or are involved in any way with the care or training or ownership of the Covered Horse at issue;
(iii) are engaged in business with, have a financial interest in, or have a personal stake in a Covered Horserace; or
(iv) appear to have private or personal interests that detract from their ability to perform their duties with integrity and in an independent and purposeful manner.
(c) Training.
(1) The Agency shall establish or approve written training materials for Sample Collection Personnel that outline their respective responsibilities and that provide adequate training for their roles.
(2) The Agency shall ensure that DCOs and BCOs have completed the necessary training program and are familiar with the requirements before issuing them a credential or other authorization documentation.
(3) The training program for DCOs and BCOs should include, at a minimum:
(i) comprehensive theoretical training in the activities relevant to the DCO or BCO position (as applicable);
(ii) observation of the activities that are the responsibility of the DCO or BCO as set out in these Testing and Investigations Standards, preferably on-site; and
(iii) the satisfactory performance of one complete Sample Collection Session on-site under observation by a qualified DCO, BCO, or similar personnel.
(4) The training program for Sample Collection Personnel responsible for the collection of blood Samples shall also include standard precautions in veterinary settings.
(5) The Agency should ensure that Sample Collection Personnel are adequately trained to carry out their responsibilities in a manner respectful of any Covered Persons who are of a different race, religion, sex, national origin, sexual orientation, age, citizenship, disability, gender identity, or Veteran status.
(d) Credentialing.
(1) The Agency shall establish a system for credentialing and re-credentialing DCOs and BCOs. DCOs and BCOs shall have either a credential including their name, photograph, and date of expiration, or a letter of authority from the Agency and a Federal- or State-issued identification. The Agency may determine what information or authorization documentation to require for other Sample Collection Personnel.
(2) Only Sample Collection Personnel who have been authorized by the Agency are permitted to conduct Doping Control and Medication Control activities on behalf of the Agency.
(3) DCO and BCO credentials shall be valid for a maximum of 2 years. DCOs and BCOs should be subject to an assessment (theoretical or practical) before being re-credentialed.
(4) The Agency will take steps to develop a system to monitor the performance of DCOs and BCOs.
(5) The Agency will maintain records of conflicts of interest and training of all Sample Collection Personnel.
(a) After Sample collection, the DCO or BCO shall store Samples in a manner that protects the integrity, identity, and security, prior to transport to the Laboratory.
(b) If a urine or blood Sample is not transported to the Laboratory on the day of collection:
(1) the relevant Sample Collection Personnel shall store the urine Sample in a secure freezer or refigerator; and
(2) the relevant Sample Collection Personnel shall store the blood Sample in a secure refrigerator;
(3) and, in each case, shall document in the Chain of Custody the location and time in and time out of the urine or blood Sample.
(c) The DCO or BCO shall document who has custody of the Samples or who is permitted access to the Samples.
(d) The Agency shall develop a system for recording the Chain of Custody of Samples and receiving Sample Collection Session documentation to ensure that each Sample is securely handled and the documentation for each Sample is completed.
(a) Samples should be transported to the Laboratory as soon as reasonably practicable after the conclusion of the Sample Collection Session. Samples collected on a weekend or over consecutive days may be stored and shipped together in batches (
(b) Samples shall be transported securely via a transportation or shipping service authorized by the Agency. The Agency shall authorize a transport system that ensures Samples and related documentation are transported in a manner that protects their integrity, identity, and security, and which minimizes the potential for Sample degradation due to factors such as delays and extreme temperature variations. Blood samples must be transported in a manner that maintains a cool and constant environment.
(c) State Racing Commissions may select a Laboratory at which the A Samples (or official TCO2 Samples) collected in its state shall be analyzed. If specific analysis requested by the Agency cannot be performed at the selected Laboratory, the Agency may have the Sample sent to another Laboratory that can conduct the requested analysis. Each year the State Racing Commissions must make their Laboratory designation for all Samples collected within its state on or before September 30th of the year prior to the designation taking effect. If a State Racing Commission fails to select a Laboratory by this deadline, the Agency shall select the Laboratory for that particular state. The Agency may allow for a State Racing Commission to change its selection of Laboratory outside of the time-period set forth above if a reasonable request is made (as determined by the Agency).
(d) A and B Samples (and official and duplicate TCO2 Samples) will be shipped together to the Laboratory conducting the A Sample analysis. If the
(e) The Agency will have the ability to confirm, if necessary, that Samples and related documentation arrived at the Laboratory. The Laboratory shall report any irregularities to the Agency with respect to the condition of Samples upon arrival in accordance with the Laboratory Standards.
(f) The Agency shall develop a system to ensure that, where required, instructions for the type of analysis to be conducted are provided to the Laboratory that will be conducting the analysis. In addition, the Agency shall provide the Laboratory with information as required for result reporting and statistical purposes, including whether long-term storage is required.
(g) Documentation identifying the Covered Horse and Responsible Person or Nominated Person shall not be included with the Samples or documentation sent to the Laboratory that will be analyzing the Samples.
(h) If the Samples or related documentation are not received by the Laboratory, or if a Sample's integrity or identity was compromised during transport, the Agency will consider whether the Samples should be voided. The decision to void a Sample is in the sole discretion of the Agency.
(a) Samples collected from a Covered Horse are owned by the Authority. Samples shall be retained by Laboratories in accordance with the requirements of Rule 6319.
(b) Documentation related to a Sample Collection Session or an Anti-Doping Rule Violation or Controlled Medication Rule Violation shall be stored by the Agency in accordance with the Agency's record retention policy.
The Agency shall ensure that it is able to: obtain, assess, and process anti-doping and medication control intelligence from all available sources to help deter and detect doping and misuse of medication and inform effective, intelligent, and proportionate test planning; plan Target Testing; and conduct investigations as required by the Protocol. The objective of this Rule is to establish standards for the efficient and effective gathering, assessment, and processing of such intelligence for these purposes.
(a) The Agency should make every reasonable effort to ensure that it is able to obtain or receive anti-doping and medication control intelligence from all available sources, including, but not limited to: Covered Persons, including through Substantial Assistance; members of the public (
(b) The Agency shall ensure that anti-doping and medication control intelligence obtained or received from a confidential source or in a non-public fashion is handled securely and confidentially, that sources of intelligence are protected, that the risk of leaks or inadvertent disclosure is properly addressed, and that intelligence shared with the Agency in a matter intended to be confidential is processed, used, and disclosed only for any legitimate legal, law enforcement, regulatory, anti-doping, medication control, integrity, disciplinary, horse welfare, or safety purposes.
(c) The Agency shall facilitate, encourage, and seek to protect whistleblowers.
(d) The Agency may consult or coordinate with the Authority, law enforcement (authorized by any government, including Federal, State, or international), State Racing Commissions, Racetracks, Race Organizers, Training Facilities, Laboratories, anti-doping organizations, equine regulatory bodies, or other relevant regulatory or disciplinary authorities in obtaining, developing, or sharing information and intelligence that may be useful for the implementation or enforcement of the Protocol or the Act or for any legitimate legal, law enforcement, regulatory, anti-doping, medication control, integrity, disciplinary, horse welfare, or safety purposes (
(a) The Agency should ensure that it is able to assess all anti-doping and medication control intelligence upon receipt for relevance, reliability, and accuracy, taking into account the nature of the source and the circumstances in which the intelligence has been captured or received.
(b) All relevant anti-doping and medication control intelligence obtained or received by the Agency should be collated and analyzed to establish patterns, trends, and relationships that may assist the Agency in developing an effective anti-doping and medication control strategy and in determining (where the intelligence relates to a particular case) whether there is reasonable suspicion that an Anti-Doping Rule Violation or Controlled Medication Rule Violation may have been committed, such that further investigation is warranted.
Anti-doping and medication control intelligence may be used for the following purposes (without limitation):
(a) developing, reviewing, and revising test distribution planning;
(b) determining when to conduct Target Testing; or
(c) creating targeted intelligence files to be referred for investigation.
(a) The objective of this Rule is to establish standards for the efficient and effective conduct of investigations under the Protocol, including, but not limited to:
(1) the investigation of Sample abnormalities reported by Laboratories;
(2) the investigation of any other analytical or non-analytical information or intelligence where there is reasonable suspicion to suspect that an Anti-Doping Rule Violation or Controlled Medication Rule Violation may have been committed;
(3) the investigation of the circumstances surrounding or arising from an Adverse Analytical Finding to gain further intelligence concerning the Responsible Person or other Covered Persons associated with the Covered Horse whose Sample is the subject of the Adverse Analytical Finding, including to determine if any other methods are involved in doping or medication abuse; and
(4) where a Covered Person is alleged to have committed an Anti-Doping Rule Violation or Controlled Medication Rule Violation, the investigation into whether
(b) In each case, the purpose of the investigation is to achieve one of the following:
(1) to rule out a possible violation or involvement in an Anti-Doping Rule Violation or Controlled Medication Rule Violation;
(2) to develop evidence that supports an Anti-Doping Rule Violation or Controlled Medication Rule Violation proceeding or the initiation of such a proceeding in accordance with the Protocol; or
(3) to provide evidence of a violation of any other provisions of the Protocol or related Rule Series, or applicable law or regulation.
(a) The Agency shall conduct, direct, and manage all investigations under the Protocol, unless it specifically delegates an investigation (or aspects of an investigation) to a State Racing Commission (subject to the applicable State Racing Commission electing to enter into an agreement with the Agency).
(b) The Agency and any State Racing Commission to which the Agency delegates investigatory tasks shall ensure that investigations are conducted confidentially.
(c) The Agency will seek to investigate any analytical or non-analytical information or intelligence that indicates that there is reasonable suspicion that an Anti-Doping Rule Violation or Controlled Medication Rule Violation may have been committed or that further inquiry might lead to the discovery of admissible evidence of such violation.
(d) The Agency should gather and record all relevant information and documentation as soon as possible.
(e) The Agency shall ensure that investigations are conducted fairly, objectively, and impartially at all times. The conduct of investigations, the evaluation of information and evidence identified in the course of that investigation, and the outcome of the investigation, should be fully documented.
(f) Covered Persons are required under the Protocol to cooperate with investigations conducted by the Agency (or a State Racing Commission, if the investigation is delegated by the Agency). If they fail to do so, the Agency may bring proceedings against them for failure to cooperate (in accordance with Rule 3510(b)). If their conduct amounts to subversion of the investigative process (
(g) It shall not be a defense in a proceeding involving an Anti-Doping Rule Violation or Controlled Medication Rule Violation that an investigation should have been conducted more quickly or that any aspect of the Testing and Investigations Standards was not followed by the Agency or State Racing Commission, except as provided in Rule 3122.
(a) General. The Agency should make use of all investigative resources reasonably available to it to conduct its investigation. These resources may include: obtaining information and assistance from other entities pursuant to Rule 5620(d); investigative powers conferred under applicable rules (including inspection, examination, and seizure, production of documents, subpoenas, and interviews); and the power to suspend a period of Ineligibility imposed on a Covered Person in return for Substantial Assistance in accordance with the Protocol. Without limitation, the Agency may utilize the investigative tools set forth in paragraphs (b) through (f) of this Rule in relation to investigations and inquiries of possible violations of the Protocol.
(b) Inspection, examination, and seizure.
(1) The Agency shall have access to the books, records, offices, racetrack facilities, and other places of business of Covered Persons that are used in the care, treatment, training, or racing of Covered Horses.
(2) The Agency may seize any medication, drug, substance, or paraphernalia in violation or suspected violation of any provision of the Act or any rules approved by the Commission pursuant to the Act, and any object or device reasonably believed to have been used in furtherance of the violation or suspected violation.
(c) Return of seized property. Upon final resolution of a violation, the Agency shall return seized property, including, but not limited to, phones, computers and other repositories of electronic data, the possession of which is not specifically prohibited by the Act or the rules of the Authority.
(d) Production of documents and information.
(1) The Agency may require a Covered Person to provide any information, documents, or records in such form as the Agency may require, which are held by the Covered Person or are within his or her power to obtain, and that are used in the care, treatment, training, or racing of Covered Horses.
(2) The Agency may require production of any mobile phones, computers, tablets, other electronic devices, books, documents and records (including telephone or financial records whether currently in the direct possession of a Covered Person or a third person who may be directed by the Covered Person to provide the information) that may be relevant to any investigation, inquiry, hearing, or proceeding, and that are used in the care, treatment, training, or racing of Covered Horses.
(e) Subpoenas. The Agency may request that the Authority issue a subpoena to a Person to appear or to answer questions or produce evidence related to anti-doping and medication control matters. A subpoena may direct the witness to: appear at a specific time and place to testify; produce designated evidence by a specific time; or permit the Agency to inspect premises at a specific time. A subpoena must be issued under the signature of a designated person from the Authority. If the Covered Person fails to comply with a subpoena, the Agency or Authority may seek enforcement of the subpoena in any of the district courts of the United States within the jurisdiction of which such inquiry is being conducted. Additionally, the arbitrator(s), IAP member(s), administrative law judge, or Commission considering a case arising under the Protocol may draw an adverse inference against a Covered Person who fails to comply with a valid subpoena, regardless of whether a court has been required to enforce the subpoena or has found the Covered Person in contempt.
(1) This issuance of a subpoena and compliance therewith is independent of the Agency's powers to inspect and obtain evidence without a subpoena and a Covered Persons' duty to cooperate under the Protocol. In addition to a rule violation for refusal to cooperate, a refusal to cooperate can result in imposition of an adverse inference against a Covered Person by the arbitrator(s), IAP member(s), administrative law judge, or Commission.
(2) The following considerations should be taken into account by the Agency in determining whether a subpoena should be requested to be issued by the Authority:
(i) the availability of, and success in, using alternative methods for obtaining the information in a timely manner;
(ii) the indispensability of the information to the success of the investigation or establishing a violation; and
(iii) the need to protect against the destruction of records or information that may be necessary to investigate and prosecute violations of the Protocol.
(f) Interviews.
(1) Covered Persons shall comply with a request to be interviewed by the Agency.
(2) If the Agency requires a Covered Person to submit to an interview under oath, the Covered Person may request a delay of the interview to seek legal advice. However, such delay shall only encompass the time reasonably necessary to contact and retain legal counsel and shall in no case exceed 7 days, unless agreed otherwise by the Agency.
(3) An authorized Person may administer an oath or affirmation to a Covered Person appearing for an interview under oath.
(4) The only basis for refusing to answer a question in an interview is an assertion of the attorney-client privilege or the Fifth Amendment privilege against self-incrimination.
(a) The Agency shall determine without undue delay whether proceedings should be initiated against a Covered Person for an Anti-Doping Rule Violation or Controlled Medication Rule Violation.
(b) If the Agency concludes based on the results of its investigation that proceedings should be initiated against a Covered Person independently or in relation to a Covered Horse, asserting commission of an Anti-Doping Rule Violation or Controlled Medication Rule Violation, it shall give notice of that decision in the manner set out in the Protocol.
(c) If the Agency concludes, based on the results of its investigation, that proceedings asserting commission of an Anti-Doping Rule Violation or Controlled Medication Rule Violation should not be initiated against a Covered Person independently or in relation to a Covered Horse, the Agency shall consider whether any of the intelligence obtained or lessons learned during the investigation should be used for test distribution planning, Target Testing, or whether it should be shared with any other Person or included in any report in accordance with these Testing and Investigations Standards.
(d) The Agency may include information from its investigations in reports made to the Authority, Congress, State Racing Commissions, or other appropriate bodies, regardless of whether the information relates to one or more rule violations. The fact that information was included in such a report shall not be a defense in any proceeding involving a potential rule violation.
(a) The main purpose of these Laboratory Standards is to ensure that Laboratories report valid test results based on reliable evidentiary data and to facilitate harmonization in Analytical Testing of Samples by Laboratories.
(b) The Laboratory Standards set out the requirements to be followed by Laboratories that wish to demonstrate that they are technically competent, operate within an effective Management System, and can produce forensically valid results. The Laboratory Standards include, inter alia, requirements for obtaining and maintaining HISA Equine Analytical Laboratory (HEAL) accreditation, operating standards for the performance of Laboratories, and a description of the accreditation and approval processes. The Laboratory Standards also set out requirements and guidance in relation to Sample custody and storage, Analytical Testing, and some aspects of Results Management.
(c) Compliance with the Laboratory Standards in effect at the time of Sample analysis (as opposed to another alternative standard, practice, or procedure) shall be sufficient to conclude that the procedures covered by the Laboratory Standards were performed properly. A failure by a Laboratory to follow a requirement in effect at the time of Analytical Testing, which has subsequently been eliminated from these Laboratory Standards or applicable Technical Document(s) or Technical Letter(s) at the time of a hearing, shall not serve as a defense to an Anti-Doping Rule Violation.
(d) Otherwise undefined capitalized terms used in these Laboratory Standards have the meanings given to them in Rule 1020.
(a) Technical Documents may be drafted by the Laboratory Expert Group or Agency and circulated for stakeholder consultation before being finalized. Technical Documents will be approved by the Agency, and Authority (where appropriate), and published on the Agency website. Once approved, a relevant Technical Document becomes an integral part of the Laboratory Standards and supersedes any previous publication on a similar topic, including Technical Letter(s) or the Laboratory Standards.
(b) Implementation of the requirements detailed in a Technical Document may occur prior to the effective date for implementation specified in the Technical Document in accordance with this Rule 6020 and shall occur no later than the effective date.
(c) A failure by a Laboratory to implement a Technical Document or Technical Letter by the effective date may result in the imposition of an Analytical Testing Restriction against the Laboratory for that Analytical Testing Procedure, or remediation requirements. In exceptional circumstances, a suspension of the Laboratory's HEAL accreditation may be warranted, as determined by the Agency.
(d) If a Laboratory is not able to implement a new Technical Document by its effective date, it shall inform the Agency as soon as possible. The Laboratory shall send a written request to the Agency for an extension beyond the applicable effective date, providing the reason(s) for the delayed implementation of the Technical Document, any measures taken to ensure that Samples received in the Laboratory will be subject to Analytical Testing in compliance with the new Technical Document (for example, by subcontracting the analysis to another Laboratory as applicable), as well as plans for the implementation of the new Technical Document.
(e) The implementation of the Technical Documents' requirements into the Laboratory's Management System is mandatory for obtaining and maintaining HEAL accreditation or approval, respectively, and for the application of the relevant Analytical Testing Procedure(s) to the analysis of Samples.
(f) In cases when a newly approved version of a Technical Document lowers a Threshold for a Threshold Substance, a Minimum Reporting Level for a Non-Threshold Substance, or any other limit, as applicable, the revised limits specified in the new Technical Document shall not be applied to the reporting of analytical results for Samples collected before the effective date of the Technical Document.
(g) Where the above revised limit specification does not apply, Laboratories may implement a Technical Document as soon as it is approved by the Agency, and Authority (where appropriate), provided that the
(h) The most recently approved Technical Document shall be applied to the Analytical Testing of Samples prior to the effective date if it would lead to a result that benefits the Covered Person and Covered Horse (
(a) Technical Letters may be issued in letter format on an ad-hoc basis to provide direction to the Laboratories on particular issues on the analysis, interpretation and reporting of results for specific Prohibited Substance(s) or Prohibited Method(s) or on the application of specific Laboratory procedures. Technical Letters are modified or withdrawn by the Agency, as appropriate.
(b) Technical Letters will be drafted and approved by the Agency, and Authority (where appropriate), in consultation with relevant scientific experts, and published on the Agency's website. Technical Letters become effective immediately, unless otherwise specified by the Agency. Technical Letters may require actions (
(c) Once approved, a relevant Technical Letter becomes an integral part of the Laboratory Standards and supersedes any previous publication on a similar topic, including Technical Document(s) or the Laboratory Standards.
(d) The implementation of the requirements of relevant Technical Letters into the Laboratory's Management System is mandatory for obtaining and maintaining HEAL accreditation or approval, respectively, and for the application of the relevant Analytical Testing Procedure(s) to the analysis of Samples.
(a) Laboratory Guidelines may be issued to provide direction to the Laboratories on new Analytical Methods or procedures approved by the Agency. Laboratory Guidelines will be modified or deleted by the Agency, as appropriate.
(b) Laboratory Guidelines will be approved by the Laboratory Expert Group (LabEG). Laboratory Guidelines are provided to Laboratories only and are not published on the Agency website.
(c) Implementation of Laboratory Guidelines is not mandatory. However, Laboratories are encouraged to follow, to the fullest extent possible, the recommendations of best practice included in relevant Laboratory Guidelines.
(a) Technical Notes may be issued to Laboratories to provide detailed technical guidance on the performance of specific Analytical Methods or procedures.
(b) Technical Notes will be approved by the LabEG. Technical Notes are provided to Laboratories only and are not published on the Agency website.
(c) Implementation of the recommendations detailed in Technical Notes is not mandatory. However, Laboratories are encouraged to follow, to the fullest extent possible, the technical guidance included in Technical Notes.
(a) Sample analysis is part of the Analytical Testing process and involves the detection, identification, and, in some cases, demonstration of the presence above a Threshold of Prohibited Substance(s) or their Metabolite(s), or Marker(s) of Use of Prohibited Substances or Prohibited Methods in an equine Sample.
(b) Laboratories may accept samples for other forms of analysis, subject to the provisions of the Code of Ethics, which are not under the scope of HEAL accreditation. Any such analysis shall not be covered by the Laboratory's HEAL accreditation and, therefore, shall not be subject to the requirements of the Laboratory Standards, Technical Documents, or Technical Letters. Test reports or other documentation or correspondence from Laboratories shall not declare or represent that any such analysis is covered under their HEAL accreditation status.
(a) These Laboratory Standards will replace current Racing Medication and Testing Consortium (RMTC) accreditation, although a transition phase which may include RMTC conducting the accreditation program may be agreed between the Agency and RMTC.
(b) Where a laboratory has current RMTC accreditation, any information required as part of the HEAL application process that has already been provided as part of its RMTC accreditation, and that the laboratory checks to confirm it is still current and valid may, with the agreement of the parties, be provided to the Agency.
(a) Applicant laboratory for HEAL accreditation. Only a laboratory that satisfies the criteria in this Rule 6110 may apply to become a candidate laboratory for HEAL accreditation.
(1) The applicant laboratory shall submit a completed application form, provided by the Agency, duly signed by the laboratory Director (or equivalent position) and, if relevant, by the Director (or equivalent position) of the host organization (
(2) Provision of business plan. The Agency shall request the applicant laboratory to submit a business plan summary, which shall include market considerations (clients, number of Samples, maintenance costs, etc.), facility, instrumental, staffing and training needs, and shall make a reasonable guarantee of the long-term provision of adequate financial and human resources to the laboratory.
(b) Candidate laboratory for HEAL accreditation. The application shall be evaluated by the Agency to determine whether the applicant laboratory will be granted candidate laboratory status by the Agency and thereby continue within the HEAL accreditation process. Additional supporting documentation may be requested by, and at the discretion of, the Agency.
(1) Description of the candidate laboratory. Once approved by the Agency, the candidate laboratory shall complete a detailed questionnaire and submit it to the Agency. The questionnaire will include, but is not limited to, the following:
(i) Staff list and their qualifications, including description of any relevant
(ii) Relevant memberships and engagement with professional societies, such as the Association of Official Racing Chemists (AORC), World Association of Anti-Doping Scientists (WAADS), Society of Forensic Toxicologists (SOFT), and The International Association of Forensic Toxicologists (TIAFT);
(iii) Description of the physical laboratory facilities, including a description of the security considerations for Samples and records. The laboratory facilities shall include ample analytical and administrative space to allow separate, restricted and dedicated areas for analytical and administrative operations;
(A) Physical security. Specific measures to maintain secure and restricted access to the laboratory facility and a controlled internal laboratory environment (
(B) IT security. Implementation of firewalls and other cyber security measures consistent with best practice and any applicable governmental regulations;
(C) Information Technology (IT) infrastructure. Implementation of a data and information management system (
(iv) List of actual and proposed instrumental resources and equipment, including year of purchase and conditions for technical support (
(v) List of validated Initial Testing Procedures and Confirmation Procedures, including target Analytes and Limits of Detection (LODs), Limits of Identification (LOIs) and, where applicable, Limits of Quantification (LOQs) and estimates of Measurement Uncertainty (MU);
(vi) Status of method development and validation, including, at minimum, all mandatory Analytical Methods and method validation reports (if completed and currently in use);
(vii) List of available Reference Materials and Reference Collections, or plans to acquire Reference Materials or obtain Reference Collections;
(viii) Plans to ensure compliance with laboratory independence and impartiality requirements before receiving HEAL accreditation (and if this requirement is covered by other accreditation, such as ISO/IEC 17025, the laboratory may refer to it);
(ix) Status and scope of ISO/IEC 17025 accreditation; and
(x) A description of how the principles of the Code of Ethics is integrated into the laboratory Management System. A letter of compliance with the Code of Ethics signed by the laboratory Director shall be provided.
(xi) The Agency may require an update of this documentation during the process of accreditation.
(2) Payment of initial accreditation fee. Prior to entering the probationary period, the candidate laboratory shall pay the Agency a one-time non-refundable fee to cover the costs related to the initial accreditation process. This fee shall be determined by the Agency and disclosed to the laboratory prior to the accreditation process commencing. The accreditation process will not commence until the fee is agreed upon.
(3) Compliance with the Code of Ethics. The candidate laboratory shall implement and comply with the provision(s) of the Code of Ethics. Candidate laboratories shall not accept Samples directly from individual Covered Persons or from individuals or organizations acting on his or her behalf (unless approved in writing and in advance by the Agency and on the condition that Samples will be treated as a Sample under the Protocol, and proceedings may be brought against the relevant Covered Person(s) if evidence of an Anti-Doping Rule Violation or a Controlled Medication Rule Violation emerges).
(4) Pre-probationary testing and on-site assessment. If this is covered by another accreditation, such as ISO/IEC 17025, the laboratory may refer to this paragraph (4).
(i) Prior to entering the probationary accredited period, the Agency shall conduct a pre-probationary testing (PPT) and on-site assessment of the candidate laboratory at the candidate laboratory's expense. The purpose of this assessment is to obtain information about different aspects of the laboratory's competence and to clarify any issues regarding the accreditation process, which are relevant for the HEAL accreditation.
(ii) As part of the PPT, the candidate laboratory shall be required to analyze at least 10 blind EQAS samples arranged by the Agency. The general composition and content of the blind EQAS samples and the evaluation of laboratory EQAS results are described in the Rule 6200 and 6400 Series, respectively.
(iii) The candidate laboratory shall report the results for the PPT blind EQAS samples to, and in a form designated by, the Agency (in compliance with paragraph (e) of Rule 6260) within 6 weeks, unless otherwise requested by the candidate laboratory and agreed to by the Agency.
(A) Upon request, the candidate laboratory shall provide the Agency with a Laboratory Documentation Package for selected EQAS samples for which there is an Adverse Analytical Finding. Additional data may be required upon the Agency's request. This documentation shall be submitted within 10 days of the request or as otherwise indicated by the Agency.
(B) For selected EQAS samples with Negative Findings, the Agency may request all, or a portion of, the Initial Testing Procedure data.
(iv) After receiving the PPT EQAS results, the Agency shall inform the candidate laboratory of the evaluation of its performance and provide guidance for improvement. Corrective actions, if any, shall be conducted and reported by the candidate laboratory to the Agency within 30 days, or as otherwise indicated by the Agency.
(v) In addition, the Agency shall provide an assessment report regarding the outcomes of the on-site assessment, including any identified nonconformities, to allow the candidate laboratory to implement the necessary improvements. Corrective actions, if requested, shall be conducted, and reported by the candidate laboratory to the Agency within 30 days, or as otherwise indicated by the Agency.
(vi) The nonconformities identified in the Agency assessment report shall be satisfactorily addressed and the recommendations for improvement shall be implemented before the candidate laboratory can be accepted as an Agency probationary laboratory. The candidate laboratory's performance in the PPT and on-site assessment will be considered in the overall review of the candidate laboratory's application and may affect the timeliness of the candidate laboratory's entry into the probationary phase of accreditation.
(5) ISO/IEC 17025 accreditation.
(i) ISO/IEC 17025 accreditation is a critical and mandatory precondition for HEAL accreditation.
(ii) The Agency will consider a candidate laboratory application for HEAL accreditation only if the laboratory has obtained (or is in the process of obtaining) ISO/IEC 17025 accreditation. ISO/IEC 17025 accreditation must be conferred prior to an applicant receiving full HEAL accreditation.
(iii) The accreditation body, which may be specified by the Agency, shall be an International Laboratory Accreditation Cooperation (ILAC) full member that is a signatory to the ILAC
(iv) The candidate laboratory shall (in a timely manner) send to the Agency a summary of the assessment report and any corrective or preventive action documentation addressing nonconformities.
(6) Analytical Testing Procedures. Before the Agency grants accreditation, candidate laboratories shall provide documentation to the Agency demonstrating that all mandatory Test Methods have been validated and included in the Laboratory's scope of ISO/IEC 17025 accreditation.
(7) Laboratory independence and impartiality. Before the Agency grants accreditation, probationary laboratories shall provide documentation to the Agency demonstrating compliance with the requirements of Laboratory independence and impartiality established in paragraph (c) of Rule 6130.
(8) Professional liability insurance coverage. Before the Agency grants accreditation, probationary laboratories shall provide documentation to the Agency demonstrating that they have adequate provisions for self-insuring, or professional liability risk insurance coverage has been obtained to cover liability of no less than $5,000,000 annually.
(a) The Agency probationary HEAL accreditation.
(1) Upon satisfactory completion of the candidate laboratory requirements (as per Rule 6110), as determined by the LabEG, a candidate laboratory can be considered for entry to the probationary phase of HEAL accreditation as an Agency probationary laboratory. Once the Agency has determined that the laboratory has successfully completed the requirements of a candidate laboratory, the Agency can grant the laboratory probationary accreditation status.
(2) A probationary laboratory must comply with the requirements of accredited laboratories, including the requirements for maintaining accreditation.
(3) The probationary period is 2 years or following the analysis of 2,500 Samples, whichever comes later. In circumstances where the laboratory was previously accredited by the RMTC, the Agency may exercise its discretion to reduce or eliminate the probationary period.
(b) The Agency pre-final accreditation.
(1) Once the Agency has determined that the laboratory has successfully completed the requirements of the probationary period, the laboratory can be granted final accreditation status. At the Agency's discretion, as part of the final accreditation process, a Final Accreditation Test (FAT) or on-site assessment may be conducted by the Agency. Costs associated with the Agency on-site assessment and FAT shall be disclosed and agreed to with the probationary laboratory.
(2) As part of the FAT, the probationary laboratory shall analyze a minimum of 15 blind EQAS samples selected from the routine EQAS program. The general composition and content of the blind EQAS samples and the evaluation of laboratory EQAS results are described in Rules 6200 and 6400, respectively.
(3) Compliance with the scope of ISO/IEC 17025 accreditation, the Laboratory Standards, and other procedures required by the Agency (
(4) The probationary laboratory shall successfully report the results for the blind EQAS samples in the FAT to the Agency in accordance with paragraph (e) of Rule 6260 within 6 weeks of receipt the samples, unless otherwise specified by the Agency or otherwise requested by the laboratory and agreed to by the Agency.
(5) Upon request, the probationary laboratory shall provide the Agency with a Laboratory Documentation Package for selected EQAS samples for which there is an Adverse Analytical Finding. Additional data may be required upon the Agency's request. This documentation shall be submitted within 10 days of the Agency request, or as otherwise indicated by the Agency.
(6) For EQAS samples with Negative Findings, the Agency may request all or a portion of the Initial Testing Procedure data.
(7) After receiving the FAT EQAS results, the Agency shall inform the probationary laboratory of the evaluation of its performance. Corrective actions, if any, shall be conducted and reported by the probationary laboratory to the Agency within 30 days, or as otherwise indicated by the Agency.
(8) The Agency shall provide an assessment report with the outcomes of the accreditation assessment, including any identified nonconformities, for the probationary laboratory to implement the necessary improvements. Corrective actions, if any, shall be conducted and reported by the probationary laboratory to the Agency within 30 days, or as otherwise indicated by the Agency. The nonconformities identified in the FAT EQAS and the assessment report shall be satisfactorily addressed by the laboratory and the recommendations for improvement shall be implemented before accreditation will be granted.
(c) The Agency recommendation for accreditation.
(1) Based on the relevant documentation received from the probationary laboratory, the assessment report(s) from the Agency and from the relevant accreditation body, the Agency shall evaluate the probationary laboratory's progress in meeting all the requirements outlined in Rules 6110 and 6120.
(2) Once, as determined by the Agency (in the Agency's sole discretion), all accreditation requirements have been satisfactorily met by the probationary laboratory, the Agency will grant accreditation to the laboratory.
(3) However, if following the FAT and on-site assessment, and the review of any resulting Corrective Action Reports submitted by the probationary laboratory, the Agency determines that the probationary laboratory shall not be accredited, the laboratory will have a maximum of 6 additional months to correct and improve any pending nonconformities. The provision of documentation, the analysis of additional EQAS samples, or an additional assessment (on-site, remotely, or as a documentary audit, as determined by the Agency) may be required and, if so, will be conducted at the probationary laboratory's expense. A probationary laboratory that fails to provide satisfactory improvements after 6 months, as determined by the Agency, may be required to renew its candidacy as described in Rule 6110 or to restart the probationary phase of accreditation in accordance with paragraph (a) of this Rule 6120.
(d) Issuing and publishing of HEAL accreditation certificate. An accreditation certificate signed by a duly authorized representative of the Agency shall be issued in recognition of the HEAL accreditation. It shall specify probationary or final accreditation status. Such accreditation certificate shall specify the name of the Laboratory and the period for which the accreditation certificate is valid. Accreditation certificates may be issued after the effective date, with retroactive effect. A list of HEAL accredited
(a) Maintain ISO/IEC 17025 accreditation. The Laboratory shall maintain accreditation to ISO/IEC 17025, with primary reference to the analysis of Samples, granted by an accreditation body, which may be specified by the Agency, and which shall be an International Laboratory Accreditation Cooperation (ILAC) full member that is a signatory to the ILAC Mutual Recognition Arrangement (ILAC MRA) for testing activities as defined in ISO/IEC 17025. Flexible scope of accreditation must be included in the Laboratory's scope of accreditation.
(b) Participation in the Agency EQAS program. Laboratories are required to participate in the Agency EQAS on a continuous basis and meet the performance requirements of the EQAS as described in the Rule 6200 Series.
(c) Laboratory independence and impartiality.
(1) The Laboratory shall be administratively and operationally independent from any organization or person(s) that could exert undue pressure on the Laboratory and affect the impartial execution of its tasks and operations. Laboratories shall comply with these requirements of administrative and operational independence by the program effective date, unless otherwise approved by the Agency.
(2) In order to be operationally independent, the Laboratory shall manage its own affairs without hindrance, interference, or direction from any Person, except in accordance with the Laboratory Standards. The Laboratory shall, without limitation, control: the allocation of its budget; the procurement of equipment and other resources; Laboratory personnel decisions; the research conducted by the Laboratory; and all Sample Analytical Testing and reporting of results. The Laboratory shall not accept money from any Covered Person.
(3) The Laboratory shall have a dedicated budget allowing the implementation of an efficient approval process for the timely procurement of necessary Reference Materials, reagents, consumables and essential equipment, as well as independent Laboratory management decisions concerning the recruitment, retention and training of staff, participation in scientific meetings and symposia, and other relevant scientific decisions. This does not prevent the Laboratory from receiving research grants or other financial support from its host organization (
(d) Document compliance with the Code of Ethics.
(1) The Laboratory shall comply with the provisions of the Code of Ethics.
(2) The Laboratory shall annually provide to the Agency a letter of compliance with the provisions of the Code of Ethics, signed by the Laboratory Director. All staff employed at the Laboratory, permanent or temporary, shall also read, agree to, and sign documentation to indicate their agreement to the Code of Ethics. The Laboratory may be asked to provide documentation of compliance with the provisions of the Code of Ethics.
(3) The Laboratory shall establish a system requiring Laboratory staff to report any alleged breaches of the Code of Ethics to the Laboratory Director, which the Laboratory Director shall promptly report to the Agency. However, if Laboratory staff suspect that the Laboratory Director may have breached the Code of Ethics, the Laboratory staff shall promptly report the alleged breaches of the Code of Ethics directly to the Agency. The Laboratory Director or the Agency, as applicable, shall immediately and thoroughly investigate any alleged breach of the Code of Ethics.
(4) If the Laboratory's investigation determines that a breach of the Code of Ethics occurred, the Laboratory Director shall immediately inform the Agency of the results of the investigation and the disciplinary actions taken. The Agency may also impose penalties as a result of its own investigations. Penalties may range from a personal reprimand to the expulsion of the implicated Laboratory staff member(s), the reporting of the breach to the pertinent authorities (
(e) Document implemented research and development activities.
(1) The Laboratory shall develop and maintain a plan for research and development in the field of anti-doping science. The research activities can either be conducted by the Laboratory alone or in cooperation with other Laboratories or other research organizations.
(2) The Laboratory shall supply an annual progress report to the Agency documenting research and development results in the field of anti-doping science. The Laboratory shall also relate research and development plans for the following year.
(3) The annual research summary will be evaluated and scored by the LabEG. The Laboratory must, except where otherwise agreed by the Agency, achieve the minimum requirement to meet accreditation research requirements in Rule 6620.
(f) Document implemented sharing of knowledge.
(1) The Laboratory shall demonstrate its willingness and ability to share knowledge with other Laboratories. The Laboratory shall disseminate the results of its research and development activities to other Laboratories. The Laboratory is encouraged to make at least one annual contribution to an anti-doping symposium or conference. Laboratories are encouraged to: participate in collaborative research projects with other Laboratories; exchange experience and protocols with other Laboratories; arrange for visits of specialists with other Laboratories; and provide training to other Laboratories and probationary laboratories in specific areas of Analytical Testing.
(2) The Laboratory shall supply a report on sharing of knowledge with other Laboratories to the Agency, if requested. A description of sharing of knowledge is provided in the Code of Ethics.
(g) Maintain professional liability insurance coverage. Laboratories shall provide documentation to the Agency including evidence that professional liability risk insurance coverage is maintained of no less than $5,000,000 annually (for example, evidence of timely payment of applicable fees and premiums).
(h) Maintain minimum number of Samples.
(1) To maintain proficiency in Analytical Testing, Laboratories are required to analyze a minimum of 2,500 Samples provided annually by the Agency. To determine the minimum number of Samples, each urine Sample and blood Sample analyzed by the Laboratory (excluding Samples submitted for TCO2 analysis only), regardless of whether they are collected as a “paired” Sample, shall count as an individual Sample. The Agency will monitor the number of Samples tested by the Laboratory. Except where the Agency fails to send the minimum annual number of Samples to the Laboratory, if the number of Samples falls below the minimum, the
(2) It is recognized that specific circumstances may affect a Laboratory's ability to analyze the minimum Samples annually, such as when the Laboratory is not operational for the full calendar year. In such cases, the Agency shall require that the Laboratory implement measures to maintain proficiency in Analytical Testing, for example, by strengthening its internal Quality Assurance Scheme (iQAS) and internal audits program. The Agency may also provide additional EQAS samples, conduct a documentary audit, or an on-site or remote (online) assessment, at its discretion, to assess the status of the Laboratory's operations.
(i) Laboratory Analytical Testing Procedures and services. Laboratories shall provide to the Agency an up-to-date list of Analytical Testing Procedures and services, to assist the Agency in developing test distribution plans. Upon request, Laboratories shall cooperate with the Agency by providing other relevant information regarding Testing plans (
(j) Participating in the Agency/accreditation body re-assessments and continuous assessments during the accreditation cycle.
(1) The assessment team shall include at least one Laboratory Standards-trained assessor selected by the accreditation body for the assessment/re-assessment.
(2) The Laboratory shall (in a timely manner) send to the Agency a summary of the assessment report and any corrective or preventive action documentation addressing nonconformities.
(3) The Laboratory shall provide the Agency with an updated copy of the ISO/IEC 17025 certificate and scope of ISO/IEC 17025 accreditation as soon as it is obtained from the accreditation body.
(4) The Agency Laboratory assessment. The Agency reserves the right to conduct documentary audits, as well as inspect and assess the Laboratory, through on-site or remote (online) assessments at any time, at the Agency's expense. The notice of the Agency assessment will be made in writing to the Laboratory Director. In exceptional circumstances, and at the Agency's discretion, the assessment may be unannounced.
(5) As part of an announced or unannounced Laboratory assessment, the Agency retains the right to request copies of Laboratory documentation or request Further Analysis of selected A or B Samples, either on-site or in any Laboratory selected by the Agency.
(a) The Agency shall regularly review the compliance of Laboratories with the requirements listed in the Laboratory Standards and related Technical Documents and Technical Letters. In addition, the Agency shall also conduct an annual review of EQAS results and of relevant routine Analytical Testing issues to assess the overall performance of each Laboratory and to decide its accreditation status.
(b) Maintenance of HEAL accreditation. Compliance with all the requirements established in Rule 6130, including satisfactory performance by a Laboratory in the EQAS and in routine Analytical Testing, as determined by the Agency, is a critical requirement for the maintenance of the Laboratory's HEAL accreditation.
(c) Issuing and publication of accreditation certificate. On an annual basis, when maintenance of accreditation is approved by the Agency, the Laboratory shall receive a HEAL accreditation certificate, signed by a duly authorized representative of the Agency, which is issued in recognition of such accreditation. The accreditation certificate shall specify the name of the Laboratory and the period for which the accreditation certificate is valid. HEAL accreditation certificates may be issued after the effective date, with retroactive effect. The list of the HEAL-accredited Laboratories is maintained on the Agency's website.
The Agency regularly distributes External Quality Assessment Scheme (EQAS) samples to Laboratories and, when applicable, to probationary laboratories. The Agency EQAS is designed to continually monitor the capabilities of the Laboratories and probationary laboratories, to evaluate their proficiency, and to improve test result uniformity between Laboratories. EQAS samples are used to assess Laboratory routine analytical capacity and performance, reporting turn-around times, and overall compliance with the Agency Laboratory standards (
(a) Blind EQAS. The Laboratory will be aware that the sample is an EQAS sample since it is delivered by the Agency's EQAS sample provider. However, the Laboratory will not know the content of the sample.
(b) Double-blind EQAS. The Laboratory will not be aware that the sample is an EQAS sample since it is delivered by the Agency and is indistinguishable from routine Samples.
(c) Educational EQAS.
(1) Educational EQAS samples may be provided as open (in which case the content of the EQAS sample is known), blind or double-blind samples. This approach is used for educational purposes or for data gathering.
(2) As part of the educational EQAS, the Agency may provide Laboratories with new Reference Materials, Reference Collections, or quality control (QC) samples for a prompt implementation of existing or new Analytical Testing Procedures.
(3) The Agency may require the successful participation of Laboratories in an educational EQAS for the Agency-specific Analytical Testing Procedures for Laboratories to seek an extension of the Laboratory's scope of ISO/IEC 17025 accreditation by an accreditation body before the subsequent application of the Analytical Testing Procedure to the routine analysis of Samples.
(a) The actual composition and number of EQAS samples supplied to different Laboratories may vary; however, within any calendar year, all Laboratories participating in the EQAS are expected to have analyzed the minimum total number of EQAS samples.
(b) Each year, the EQAS program will consist of:
(1) At least 15 blind EQAS samples, distributed by the Agency in multiple rounds;
(2) At least 5 double-blind EQAS samples, distributed by the Agency in multiple rounds; and
(3) At least 3 of the above EQAS samples will contain Threshold Substances.
(c) As part of the Agency's Laboratory monitoring activities, and with the main purpose of assisting Laboratories in their continuous improvement of performance, the Agency may increase the number of annual EQAS samples (mainly for educational purposes) for
(1) Monitoring the effectiveness of corrective action implementation after questionable or unsatisfactory performance in the Agency EQAS or in routine Analytical Testing;
(2) Substantiated intelligence information received by the Agency indicating questionable or unsatisfactory Laboratory performance;
(3) Laboratories which do not receive enough Samples (<100 annual Samples) for a specific Analytical Testing Procedure, which is not part of the Laboratory's routine Analytical Testing menu; and
(4) As part of the Agency's Laboratory assessments.
(a) EQAS samples may or may not contain Prohibited Substance(s) or Metabolite(s) of Prohibited Substance(s) or Marker(s) of Prohibited Substance(s) or Prohibited Method(s).
(b) Blank EQAS samples. Blank EQAS samples do not contain Prohibited Substance(s) or Metabolite(s) of Prohibited Substance(s) or Marker(s) of Prohibited Substance(s) or Prohibited Method(s).
(c) Adulterated EQAS samples. Adulterated EQAS samples are those which have been deliberately adulterated by the spiking of non-characteristic Metabolite(s) or by the addition of extraneous substances designed to dilute or concentrate the sample, or to degrade or mask the Analyte prior to or during the analytical determination. Adulterated EQAS samples may also be obtained from the controlled administration or the addition of non-prohibited substances, which share common Metabolite(s) with Prohibited Substance(s).
(d) EQAS samples containing Prohibited Substance(s), their Metabolite(s) or Marker(s), or the Marker(s) of Prohibited Method(s).
(1) The concentration(s) of selected Analyte(s) are those that may be encountered in the urine or blood after Use of Prohibited Substance(s) or Prohibited Method(s). For some Analytes, the EQAS sample may contain the parent Prohibited Substance or its Metabolite(s) or its Marker(s).
(2) EQAS samples may be spiked with Prohibited Substance(s) or their Metabolite(s) or Marker(s) but, where appropriate, may be prepared from controlled administration studies. The EQAS sample composition shall reflect as closely as possible the expected target Analyte Metabolite pattern and concentrations usually found in Samples.
(3) An EQAS sample may contain more than one Prohibited Substance, Metabolite(s), or Marker(s) of a Prohibited Substance or Prohibited Method. It may also contain multiple Metabolites or Markers of a single Prohibited Substance or Markers of a Prohibited Method, which would represent the presence of a single Prohibited Substance or the Use of a single Prohibited Method.
(4) Double-blind EQAS samples shall be representative of Samples. Therefore, to the extent possible (in consideration, for example, of technical or ethical constraints, availability of the pharmaceutical grade substance), double-blind EQAS samples containing Prohibited Substance(s) or Metabolite(s) of Prohibited Substance(s) or Marker(s) of Prohibited Substance(s) or Prohibited Method(s) shall be prepared from controlled administration studies performed in equine subjects. However, if this is not possible, then the double-blind EQAS sample(s) may be prepared by spiking expected target Analyte(s) in the Sample matrix in consideration of the representative metabolic profile(s).
(5) For Non-Threshold Substances, the concentration in the EQAS sample will be guided by, but not limited to, one of the following criteria: concentrations of the Prohibited Substance or its Metabolite(s) or Marker(s) equal to or greater than (≥) the applicable MRPL; concentrations of the Prohibited Substance or its Metabolite(s) or Marker(s) between 50% of the MRPL and the MRPL (applicable only to Non-Threshold Substances prohibited at all times and with no Minimum Reporting Levels); Non-Threshold Substances with Minimum Reporting Levels or other limits controlling them (
(6) For Threshold Substances, the concentration in the EQAS sample will be guided by, but not limited to, one of the following criteria: greater than (>) 10% of the Threshold as established in any relevant Technical Document(s) or Laboratory Guidelines; or less than (<) 50% of the Threshold for those Threshold Substances whose presence shall be reported if detected in the presence of diuretics or masking agents.
All procedures associated with the Analytical Testing of the EQAS samples by the Laboratory are to be conducted in a manner substantially similar to that applied to routine Samples, unless otherwise specified by the Agency. No effort shall be made to optimize instrument (
(a) The purpose of the EQAS program is to ensure that all Laboratories maintain proficiency in the performance of their Analytical Testing Procedures and report valid results to the Agency in a timely manner.
(b) In the spirit of the EQAS program, a Laboratory shall not communicate with other Laboratories regarding the identity or content of substances present in or absent from blind EQAS samples prior to the submission of EQAS results to the Agency. This prohibition also applies to Laboratory requests for second opinions, which shall not be requested for blind EQAS samples.
(c) Contact between Laboratories regarding any aspect of blind EQAS analysis (including the results obtained) prior to reporting by all Laboratories to the Agency will be considered an attempt to circumvent the quality control assessment.
(d) For double-blind EQAS samples, which are indistinguishable from routine Samples, consultation between Laboratories before reporting such EQAS results to the Agency may occur. However, such consultation shall not involve identifying the sample as an Agency double-blind EQAS sample (in cases when, for any reason, the Laboratory identifies the EQAS nature of the sample).
(e) Reporting blind EQAS results.
(1) The Laboratory shall report the results of blind EQAS samples to the Agency in the same manner as specified for routine Samples (see Rule 6316) unless otherwise notified by the Agency. For some blind EQAS samples or sample sets, additional information may be requested from the Laboratory (
(2) The results of the blind EQAS shall be submitted to the Agency on or before the specified reporting date, unless an extension is granted by the Agency. Failure to report results of blind EQAS samples will be considered a false Negative Finding(s).
(f) Reporting double-blind EQAS results.
(1) The Laboratory shall report the results of double-blind EQAS samples as per Rule 6316.
(2) Reporting of double-blind EQAS results shall occur within the same timeframe as specified for routine Samples, unless an extension is granted by the Agency.
(3) Failure to report double-blind EQAS results within this timeframe or, subject to an extension of this deadline granted by the Agency pursuant to subparagraph (2) above, within the agreed or the Agency-approved deadline, will be considered a false Negative Finding(s).
(g) Reporting educational EQAS results.
(1) The Laboratory shall report the results of open or blind educational EQAS samples on or before the specified reporting deadline and in a format specified by the Agency. Results received after the deadline will not be included in the assessment of EQAS results or in the subsequent educational EQAS report and will be considered a false Negative Finding(s).
(2) For open educational and blind EQAS samples, the Laboratory shall report the LODs of the identified Non-Threshold Substance(s) or Metabolite(s) or Marker(s), or of the identified Marker(s) of Prohibited Method(s), as estimated during method validation of the Initial Testing Procedure.
(h) Reporting results for EQAS samples containing Non-Threshold Substances. Unless otherwise specified by the Agency (for example, for an educational EQAS), the report of EQAS results for Non-Threshold Substances shall include all the Analytes whose presence in the EQAS sample has been confirmed by the Laboratory, including the Prohibited Substance(s) (
(i) Reporting results for EQAS samples containing Threshold Substances.
(1) For educational and blind EQAS samples, the report of EQAS results for Threshold Substances shall include the values measured for each aliquot analyzed, whenever the measured mean value of all replicates is greater than or equal to (≥) 50% of the applicable Threshold.
(2) For double-blind EQAS samples, the Laboratory shall report the quantitative results to, and in a form designated by, the Agency for routine Samples, in accordance with any relevant Technical Document(s), Technical Letter(s) or Laboratory Guidelines.
(a) Introduction and scope. This section of the Laboratory Standards is intended as an extension of the application of ISO/IEC 17025 and ILAC-G7 to the field of Doping Control. Any aspect of Analytical Testing or management not specifically discussed in this document or in any relevant Technical Documents, Technical Letters or Laboratory Guidelines shall be governed by ISO/IEC 17025. The application focuses on the specific parts of the processes that are critical with regard to the quality of the laboratory's performance as a Laboratory and are, therefore, significant in the evaluation and accreditation process.
(b) This section introduces the specific performance standards for a Laboratory, as applicable. The conduct of Laboratory Analytical Testing is considered a process within the definitions of ISO 17000. Performance standards are defined according to a process model where the Laboratory practice is structured into 3 main categories of processes:
(1) structural and resource requirements;
(2) process requirements; and
(3) management requirements.
(a) A Laboratory may subcontract an analysis to another Laboratory, in consultation with, and following written approval from, the Agency. The conditions that justify subcontracting include, for example:
(1) A specific technology or Analyte(s) that are not within the Laboratory's scope of ISO/IEC 17025 accreditation;
(2) An Analytical Testing Restriction decision;
(3) Other valid explanations, such as a need for higher sensitivity or specific equipment or expertise, temporary workload or technical incapacity;
(4) In exceptional circumstances, the Agency may elect to grant specific authorization to subcontract analyses using specific methods to an ISO/IEC 17025-accredited laboratory approved by the Agency, which has the necessary technique within its scope of ISO/IEC 17025 accreditation (for example, DNA analysis or genomic profiling);
(5) Other specific investigations, such as, without limitation, forensic examinations which need to be performed in the course of the Analytical Testing process may also be subcontracted by the Laboratory.
(b) In all such cases, the Laboratory subcontracting the analysis is only responsible for the maintenance of the appropriate Chain of Custody up to Sample reception by the subcontracted Laboratory. Such arrangements shall be clearly recorded as part of the Sample's documentation and included in the Laboratory Documentation Package, if applicable.
(a) The Laboratory shall observe and document conditions that exist at the time of Sample reception or registration that may adversely impact on the integrity of a Sample or on the performance of Analytical Testing Procedures. Only unusual conditions shall be recorded.
(b) Irregularities to be noted by the Laboratory may include, but are not limited to:
(1) Sample transport conditions (
(2) Sample collection information (including Sample identification Protocol), which is necessary to conduct the Analytical Testing menu requested by the Agency, is not provided (
(3) Sample identification is questionable. For example, if the number on the Sample container does not match the Sample identification number on the Sample collection documentation;
(4) Covered Person or Covered Horse information is visible on the Laboratory copy of the Sample collection documentation or any other document transferred to the Laboratory;
(5) Sample identification numbers are different between the A and the B Sample containers of the same Sample;
(6) Tampering or adulteration of the Sample is evident;
(7) Sample is not sealed with Tamper Evident device or not sealed upon receipt;
(8) Sample volume does not meet the suitable volume for analysis or is otherwise inadequate to perform the
(9) The Sample contains foreign objects, such as insects; or
(10) The Sample condition(s) is unusual (
(c) When an analysis on a Sample with documented irregularities is performed, the Laboratory shall record the irregularities in the test report.
(a) In cases when either the A or B Sample is not suitable for the performance of the analyses (
(b) The first fraction of the split Sample shall be considered as the A Sample and shall be used for the Initial Testing Procedure(s), unless the Initial Testing Procedure(s) have already been performed, and the A Confirmation Procedure(s), if necessary. The second fraction, considered as the B Sample, shall be resealed and stored frozen for the B Confirmation Procedure(s), if necessary.
(c) The process of opening and splitting the Sample and resealing of the remaining second fraction shall be conducted in accordance with Rule 6312 for a customary B Sample opening.
(d) When the splitting procedure concerns blood Samples, which have been collected for Analytical Testing on the blood serum/plasma fraction, the sealed, intact (A or B) Sample shall be centrifuged as soon as practicable after Laboratory reception to obtain the serum or plasma fraction. The centrifuged Sample shall be stored frozen in the sealed Sample collection tube according to established protocols until the Sample opening/splitting procedure can be conducted. The opening of the Sample for the splitting of the serum/plasma fraction and resealing of the second fraction shall be carried out as described immediately above.
(a) The Aliquot preparation procedure for any Initial Testing Procedure or Confirmation Procedure shall minimize the risk of contamination of the Sample or Aliquot. The Laboratory shall use new material(s) (
(b) Urine Samples. In order to maintain the stability and integrity of the urine Samples, the Laboratory shall implement Sample storage procedures that minimize storage time at room and refrigerated temperatures, as well as Sample freeze/thaw cycles.
(1) For urine Samples, the Laboratory shall obtain, following proper homogenization of the Sample, an initial Aliquot containing enough Sample volume for all analytical procedures (
(2) The Laboratory shall measure the pH and specific gravity of urine Samples once, using one Aliquot, during the Initial Testing Procedure and the Confirmation Procedure(s) (A and B Samples). Other tests that may assist in the evaluation of adulteration or manipulation may be performed, if deemed necessary by the Laboratory.
(3) Urine A Samples shall be frozen after Aliquots are taken for the Initial Testing Procedure(s) to minimize risks of Sample microbial degradation. Urine B Samples shall be stored frozen after reception until analysis, if applicable.
(c) Blood Samples. The Laboratory shall follow any applicable Agency procedures, Technical Document(s), and Technical Letter(s) for handling and storing blood Samples.
(a) The Laboratory shall select, validate, and document Analytical Testing Procedures, which are Fit-for-Purpose for the analysis of representative target Analytes of Prohibited Substances and Prohibited Methods.
(b) Validation results for Analytical Testing Procedures shall be summarized in a validation report and supported by the necessary documentation and analytical data. The validation report shall indicate whether the Analytical Testing Procedure is Fit-for-Purpose and shall be included in a Laboratory scope of accreditation.
(c) The Laboratory shall define and document the conditions that would trigger the revalidation of an Analytical Testing Procedure (
(d) Validation of Analytical Testing Procedures for Non-Threshold Substances. The Laboratory shall develop, as part of the method validation process, appropriate standard solutions for detection or identification and estimation of the concentration of Non-Threshold Substances. In the absence of suitable Reference Materials, Reference Collections may be used for detection and identification.
(1) Validation of Initial Testing Procedures for Non-Threshold Substances.
(i) The Laboratory shall validate the Selectivity, carryover, reliability of detection at the MRPL and Limit of Detection (LOD) for the Initial Testing Procedure from the analysis of an adequate number of representative samples prepared in the appropriate matrix of analysis. For chromatographic-mass spectrometric Analytical Methods, the Initial Testing Procedure shall allow the detection of each Non-Threshold Substance or its representative Metabolite(s) or Marker(s) at 50% or less of the Minimum Required Performance Levels (MRPL).
(ii) For Non-Threshold Substances with Minimum Reporting Levels (MRL), the Laboratory shall validate and document the estimated concentration levels that will require a Confirmation Procedure.
(iii) If there is no available Reference Material, an estimate of the detection capability of the Initial Testing Procedure (
(2) Validation of Confirmation Procedures for Non-Threshold Substances. Factors to be investigated in the method validation procedure to
(i)
(ii)
(iii)
(iv)
(3) Validation of Analytical Testing Procedures for Threshold Substances.
(i) As part of the validation process for chromatography-mass spectrometric Analytical Methods applied to the analysis of Threshold Substances, the Laboratory shall develop acceptable standard solutions for identification of Threshold Substances. For Confirmation Procedures, Certified Reference Materials shall be used for quantification, if available.
(ii) For the application of affinity-binding assays, or other methods as applicable, to the analysis of Threshold Substances, the Laboratory shall follow any applicable Agency procedures and Technical Document, and should follow any relevant Laboratory Guidelines.
(4) Validation of Initial Testing Procedures for Threshold Substances.
(i) The Laboratory shall validate Initial Testing Procedures that are Fit-for-Purpose, in accordance with any applicable Technical Document(s), Technical Letter(s), or Laboratory Guidelines.
(ii) For chromatographic-mass spectrometric Initial Testing Procedures, the Laboratory shall validate the Selectivity, LOD and dynamic range from the analysis of an adequate number of representative samples prepared in the appropriate matrix of analysis, unless otherwise specified.
(iii) Unless otherwise specified, the Laboratory shall validate and document the estimated concentration levels which will require quantitative Confirmation Procedure(s).
(iv) In order to account for a possible underestimation of concentrations of Threshold Substances during non-quantitative Initial Testing Procedures, the Laboratory shall establish and document in the Test Method's SOP criteria (
(v) The estimation of Measurement Uncertainty (MU) is not required during the validation of Initial Testing Procedures, unless otherwise specified.
(5) Validation of Confirmation Procedures for Threshold Substances. Factors to be investigated during the method validation to demonstrate that a quantitative Confirmation Procedure for a Threshold Substance is Fit-for-Purpose include, but are not limited to:
(i) Selectivity, LOI, robustness, and carryover;
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(e) Confirmation Procedure method validation data (including the estimation of MU) is evaluated during the assessment process for inclusion of the quantitative Confirmation Procedure within the Laboratory's scope of ISO/IEC 17025 accreditation. Therefore, for those Confirmation Procedures that are included within the Laboratory's scope of ISO/IEC 17025 accreditation, the Laboratory is not required to produce method validation data, SOPs, or other evidence of method validation in any legal proceeding.
(a) Laboratories shall analyze Samples collected by or on behalf of the Agency using any Analytical Testing menu directed by the Agency to detect the presence of Prohibited Substances or Prohibited Methods only (as defined in the Prohibited List).
(b) Covered Persons and their representatives are not permitted to be present for any aspect of Sample analysis or processing described in the Laboratory Standards, Technical Documents, Technical Letters, Laboratory Guidelines, or Laboratory SOPs. In addition, Covered Persons are not permitted to have a Sample transferred to be tested at a laboratory.
(c) Laboratories may analyze Samples for the following, in which case the results of the analysis shall not be reported as an Atypical Finding or an Adverse Analytical Finding:
(1) Non-prohibited substances or methods that are included in the Agency monitoring program;
(2) Non-prohibited substances for results interpretation purposes (
(3) Non-prohibited substances or methods requested as part of a Results Management process by an adjudicatory body or the Agency;
(4) Non-prohibited substances or methods requested by the Agency as part of its safety Protocol, Protocol of conduct or other regulations; or
(5) Additional analyses for quality assurance/quality improvement/method development or research purposes, in accordance with the requirements indicated in Rule 6320.
(d) At minimum, all Laboratories are required to implement all mandatory Analytical Testing Procedures, as determined by the Agency in compliance with any relevant Technical Document(s) and Technical Letter(s). Laboratories may implement additional methods for the analysis of particular Prohibited Substances or Prohibited Methods.
(e) Analytical Testing Procedure(s) included in the Laboratory's scope of ISO/IEC 17025 accreditation shall be considered as Fit-for-Purpose, and, therefore, the Laboratory shall not be required to provide method validation documentation, SOPs or EQAS performance data in support of an Adverse Analytical Finding.
(f) However, if the Analytical Testing Procedure has not been included yet in the Laboratory's scope of ISO/IEC 17025 accreditation, the Laboratory shall validate the procedure in compliance with the Laboratory Standards and any applicable Agency procedures, Technical Document(s), Technical Letter(s), or Laboratory Guidelines prior to its application to the analysis of Samples. In such cases, the Laboratory may be required to provide method validation documentation or EQAS performance data in support of an Adverse Analytical Finding.
(g) Laboratories may, on their own initiative and prior to reporting a test result, apply additional Analytical Testing Procedures to analyze Samples for Prohibited Substances or Prohibited Methods not included in the standard Analytical Testing menu requested by the Agency, provided that the additional work is authorized by the Agency, conducted at the Laboratory's expense, and does not significantly affect the possibility to submit the Sample to Further Analysis. Results from any such analysis shall be reported to, and in a form designated by, the Agency and have the same validity and Consequences as any other analytical result.
(a) The objective of the Initial Testing Procedure is to obtain information about the potential presence of Prohibited Substance(s) or Metabolite(s) of Prohibited Substance(s), or Marker(s) of the Use of a Prohibited Substance or Prohibited Method. Results from Initial Testing Procedure(s) can be included as part of longitudinal studies (
(b) The Initial Testing Procedure(s) shall fulfill the following requirements:
(1) The Initial Testing Procedure shall be Fit-for-Purpose;
(2) The Initial Testing Procedure shall be performed on Aliquot(s) taken from the container identified as the A Sample (and if the A Sample cannot be used for the Initial Testing Procedure(s), see Rule 6304);
(3) The Initial Testing Procedure shall be recorded, as part of the Sample (or Sample batch) record, each time it is conducted;
(4) All batches undergoing an Initial Testing Procedure shall include appropriate negative and positive quality controls prepared in the matrix of analysis, unless otherwise specified by the Agency;
(5) The Initial Testing Procedures for Non-Threshold Substances shall include appropriate controls of representative substance(s) at or below the MRPL;
(6) The Initial Testing Procedures for Threshold Substances shall include appropriate controls close to the Threshold, unless otherwise specified by the Agency;
(7) Results from Initial Testing Procedures are not required to consider the associated MU, unless otherwise specified by the Agency; and
(8) The Laboratory shall establish criteria, based on its method validation and in accordance with its SOP, to evaluate results from an Initial Testing Procedure as a Presumptive Adverse Analytical Finding, which would trigger confirmation analyses.
(a) The objective of the Confirmation Procedure is to obtain a result, which supports or does not support the reporting of an Adverse Analytical Finding or Atypical Finding.
(b) A Confirmation Procedure for a Non-Threshold Substance with a Minimum Reporting Level or other control limit may also be performed if the result estimated from the Initial Testing Procedure is lower than the applicable Minimum Reporting Level, as determined by the Laboratory in accordance with the method's validation results, or as specifically required by the Agency.
(c) A result obtained in the Initial Testing Procedure for a Threshold Substance higher than the Threshold requires a Confirmation Procedure. A Confirmation Procedure may also be performed if the result obtained in the Initial Testing Procedure is lower than the Threshold, as determined by the Laboratory, or as specifically required by the Agency.
(d) Irregularities in the Initial Testing Procedure(s) shall not invalidate an Adverse Analytical Finding, which is adequately established by a Confirmation Procedure.
(e) The Confirmation Procedure(s) shall fulfill the following requirements:
(1) The Confirmation Procedure(s) shall be Fit-for-Purpose, including the estimation of the MU associated with a quantitative Confirmation Procedure;
(2) The Confirmation Procedure(s) shall be recorded, as part of the Sample (or Sample batch) record, each time it is conducted;
(3) The Confirmation Procedure shall have equal or greater Selectivity than the Initial Testing Procedure and shall provide accurate quantification results (applicable to Threshold Substances). The Confirmation Procedure shall incorporate, when possible and adequate, a different Sample extraction protocol or a different analytical methodology, unless otherwise specified by the Agency; and
(4) All batches undergoing a Confirmation Procedure shall include appropriate negative and positive quality controls prepared in the matrix of analysis.
Mass spectrometry (MS) coupled to chromatographic separation (
(a) Aliquots. The A Confirmation Procedure shall be performed using new Aliquot(s) taken from the container identified as the A Sample (and if the A Sample cannot be used for the Initial Testing Procedure(s), see Rule 6304). At this point, the link between the Sample external code, as shown in the Sample container, and the Laboratory internal Sample code shall be verified.
(b) Target Analyte(s). If the presence of more than one Prohibited Substance, Metabolite(s) of a Prohibited Substance, or Marker(s) of the Use of a Prohibited Substance or Prohibited Method is detected by the Initial Testing Procedure(s), the Laboratory shall confirm as many of the Presumptive Adverse Analytical Findings as reasonably possible (and such decision should consider the volumes available in the A and B Samples). The confirmation(s) shall prioritize the identification or quantification of the Prohibited Substance(s) or Prohibited Method(s) that carry the longest potential period of Ineligibility. The prioritization decision shall be made in consultation with the Agency and documented by the Laboratory.
(c) Repetition of the A Confirmation Procedure. The Laboratory may repeat the Confirmation Procedure for an A Sample, if appropriate, (
(d) A Confirmation Procedure for Non-Threshold Substances.
(1) For Non-Threshold Substances without Minimum Reporting Levels, Adverse Analytical Finding or Atypical Finding decisions for the A Sample shall be based on the identification of the Non-Threshold Substance or its characteristic Metabolite(s) or Marker(s), as applicable, in compliance with any relevant Technical Document(s) or Technical Letter(s) or in consideration of Laboratory Guidelines.
(2) For Non-Threshold Substances with Minimum Reporting Levels, Adverse Analytical Finding decisions for the A Sample shall be based on the identification of the Non-Threshold Substance or its characteristic Metabolite(s) or Marker(s), in compliance with any applicable Agency procedures or Technical Document, at an estimated concentration greater than the Minimum Reporting Level, unless there is valid justification for reporting the finding at levels below the Minimum Reporting Level (
(e) A Confirmation Procedure for Threshold Substances.
(1) For Threshold Substances, Adverse Analytical Finding or Atypical Finding decisions for the A Sample shall be based on the confirmed identification (in accordance with any applicable Agency Procedures or Technical Document) of the Threshold Substance or its Metabolite(s) or Marker(s) and their quantitative determination in the Sample at a level exceeding the value of the relevant Decision Limit.
(2) Quantitative Confirmation Procedures for Threshold Substances shall be based on the determination of the mean of measured analytical values (
(3) By determining that the test result exceeds the Decision Limit, the quantitative Confirmation Procedure establishes that the Threshold Substance or its Metabolite(s) or Marker(s) is present in the Sample at a level greater than the Threshold, with a statistical confidence of at least 95%.
(4) For Threshold Substances, Markers of the “biomarker profile”, or any other Prohibited Substance that may be produced endogenously at low levels, Adverse Analytical Finding decisions for the A Sample may also be based on the application of any Fit-for-Purpose Confirmation Procedure that establishes the exogenous origin of the Prohibited Substance or its Metabolite(s) or Marker(s). Atypical Findings may result from non-conclusive determinations of the origin (
(a) Testing Laboratory. If the B Sample procedure is to be performed, it will be performed in a different Laboratory from the A Sample analysis (with the choice of the Laboratory for the B Sample analysis determined exclusively by the Agency), except where the Agency considers it necessary for the same Laboratory to perform the B Sample procedure:
(1) due to reasonable concerns over Sample integrity or unstable analytes; or
(2) because no other Laboratory is available to perform the B Sample procedure within a reasonable period of time.
(b) Notification and timing of B Sample procedure.
(1) The B Sample procedure shall only be performed by the Laboratory upon request by the Agency.
(2) The Agency should inform the Laboratory, in writing, within 15 days following the reporting of an A Sample Adverse Analytical Finding by the Laboratory, whether the B Sample procedure shall be conducted. This includes situations when the Covered Person does not request the B Sample analysis or expressly or implicitly waives his or her right to the analysis of the B Sample, but the Agency decides that the B Sample procedure shall still be performed.
(3) If the B Sample procedure is to be performed, whether upon the request of the Covered Person in accordance with the Protocol or the Agency:
(i) as soon as reasonably practicable after the Agency so decides or the Covered Person so requests, the Agency should notify the Laboratory that performed the A Sample analysis, and the Laboratory that will perform the B Sample procedure, that the B Sample procedure will be performed;
(ii) within 5 days of receipt of the notice at Rule 6312(b)(3)(i), the Laboratory that performed the A Sample analysis should send the B Sample to the Laboratory that will perform the B Sample procedure; and
(iii) the Laboratory that will perform the B Sample procedure should perform the B Sample procedure as soon as reasonably practicable after receipt of the B Sample.
(4) The timing of the B Sample procedure may be strictly fixed within a very short period of time and without any possible postponement, if circumstances so justify it. This can notably and without limitation be the case when a postponement of the B Sample analysis could significantly increase the risk of Sample degradation or inadequately delay the decision-making process in the given circumstances (
(c) Opening, Aliquoting and Resealing of B Sample.
(1) The B Sample procedure shall be performed using Aliquot(s) taken from the container defined as the B Sample (and if the B Sample cannot be used, see Rule 6304).
(2) If the B Sample container was not properly sealed or showed signs of
(3) The Laboratory shall ensure that the B Sample container is opened and Aliquots for the B Sample procedure are taken.
(4) The Laboratory shall also ensure that, after opening and taking Aliquots for the B Sample procedure, the B Sample is properly resealed.
(5) At a minimum, the Laboratory Director or representative shall sign another part of the Laboratory documentation attesting that the B Sample opening and aliquoting procedures occurred and that the B Sample was properly resealed.
(d) Target Analyte(s). If more than one Prohibited Substance, Metabolite(s) of a Prohibited Substance, or Marker(s) of the Use of a Prohibited Substance or Prohibited Method has been confirmed in the A Sample procedure, the Laboratory shall confirm as many of the Adverse Analytical Findings as possible given the B Sample volume available. The decision on the prioritization for the confirmation(s) shall be made to prioritize the analysis of the Prohibited Substance(s) or Prohibited Method(s) that carry the longest potential period of Ineligibility. The prioritization decision shall be made in consultation with the Agency and documented.
(e) Repetition of the B Sample procedure. The Laboratory may repeat the B Sample procedure, if appropriate, (
(f) B confirmation with negative results. If the final B confirmation results are negative, the Analytical Testing result shall be considered a Negative Finding. The Laboratory shall notify the Agency immediately. If requested by the Agency, one or more Laboratories shall conduct an internal investigation of the causes of the discrepancy between the A and B Sample results. Target Analytes (
(g) B Sample procedure for Non-Threshold Substances and exogenous Threshold Substances. For Non-Threshold Substances (including those with Minimum Reporting Levels) and exogenous Threshold Substances, the B Sample results shall only confirm the presence of the Prohibited Substance(s) or its Metabolite(s) or Marker(s) identified in the A Sample (in compliance with any applicable Agency procedures or Technical Document) for the Adverse Analytical Finding to be valid, unless otherwise specified by the Agency. No quantification or estimation of concentrations of such Prohibited Substance, or its Metabolite(s) or Marker(s) is necessary.
(h) B Sample procedure for Threshold Substances.
(1) For Threshold Substances, Adverse Analytical Finding decisions for the B Sample results shall be based on the confirmed identification (in accordance with any applicable Agency procedures or Technical Document, applicable to B Sample procedures based on chromatography-mass spectrometry) of the Threshold Substance or its Metabolite(s) or Marker(s) and their quantitative determination in the Sample at a level exceeding the value of the relevant Threshold as specified in any applicable Agency procedures, Technical Document(s), or Laboratory Guidelines. Comparison of the measured value of the B Sample to the measured value of the A Sample is not necessary to establish B Sample confirmation. The B Sample value is only required to exceed the applicable Threshold (plus any Measurement Uncertainty).
(2) Quantitative B Sample procedures for Threshold Substances shall be based on the determination of the mean of measured analytical values (
(3) For Threshold Substances or any other Prohibited Substance that may be produced endogenously at low levels, Adverse Analytical Finding decisions for the B Sample results may also be based on the application of any Fit-for-Purpose Analytical Testing Procedure that establishes the exogenous origin of the Prohibited Substance or its Metabolite(s) or Marker(s). Atypical Findings may result from non-conclusive determinations of the origin (
(a) Further Analysis of stored Samples shall, as a matter of principle, be aimed at detecting all the Prohibited Substance(s) or Metabolite(s) of Prohibited Substance(s), or Marker(s) of the Use of a Prohibited Substance or Prohibited Method included in the Prohibited List in force at the time of the collection of the Sample(s).
(b) Selection of Samples and Laboratories for Further Analysis.
(1) Stored Samples may be selected for Further Analysis at the discretion of the Agency or the Authority.
(2) The choice of which Laboratory will conduct the Further Analysis will be made by the Agency. Requests to the Laboratory for Further Analysis shall be made in writing and be recorded as part of the Sample's documentation.
(3) When a Sample has been reported as a Negative Finding or Atypical Finding, there is no limitation on the Agency to conduct Further Analysis on the Sample.
(4) Further Analysis may also be performed on stored Samples that were previously reported as Adverse Analytical Findings. Any Prohibited Substance or Prohibited Method detected, which was prohibited at the time of Sample collection, shall be reported.
(5) Previously acquired Initial Testing Procedure data may also be re-evaluated for the presence of Prohibited Substances or their Metabolite(s) or Marker(s) of Prohibited Substances or Prohibited Methods, at the initiative of the Agency or the Laboratory itself. The results of such re-evaluation, if suspicious, shall be communicated to the Agency, and may lead to Further Analysis.
(c) Analytical Testing Procedures for Further Analysis of stored Samples.
(1) Further Analysis of stored Samples shall be performed under the Laboratory Standards, Technical Documents, and Technical Letters in effect at the time the Further Analysis is performed. Any
(2) Further Analysis of stored Samples includes, notably, but without limitation, the application of newly developed or more sensitive Analytical Testing Procedures or the analysis of new target Analytes of Prohibited Substance(s) or Prohibited Method(s) (
(3) Depending on the circumstances, and to ensure an effective and targeted use of the available Sample volume, priorities may be set, or the scope of the Further Analysis restricted to specific analyses (in particular, but without limitation, to analyses based on new or improved Analytical Testing Procedures).
(d) Further Analysis of stored Samples process.
(1) Use of the A Sample. The Agency may instruct the Laboratory to use the A Sample for both the Initial Testing Procedure(s) and the A Confirmation Procedure(s), to use it only for the Initial Testing Procedure(s), or not to use the A Sample for Further Analysis at all.
(i) If the Laboratory has been instructed to perform only the Initial Testing Procedure(s) on the A Sample, any suspicious analytical result obtained from the A Sample shall be considered as a Presumptive Adverse Analytical Finding, irrespective of the Analytical Testing Procedure applied, and shall be confirmed using the split B Sample.
(ii) When a Confirmation Procedure is performed on the A Sample and an Adverse Analytical Finding is reported on this basis, the B Sample procedure shall be applicable (as per Rule 6316).
(2) Use of the split B Sample. When the A Sample is used only for the Initial Testing Procedure(s) or is not used at all during Further Analysis, the B Sample shall be split and used for analysis. The B Sample shall be split into 2 fractions, in accordance with Rule 6304.
(i) In the event an Adverse Analytical Finding is notified based on the results of a B Sample procedure of the first fraction of the B Sample, the second split fraction of the B Sample shall be deemed as the B Sample. Since the first split fraction of the B Sample is considered as an A Sample, analysis of Aliquots taken from this Sample may include the performance of Initial Testing Procedure(s) and A Confirmation Procedures or A Confirmation Procedures only (if the Initial Testing Procedure(s) was/were already performed using the A Sample).
(ii) If applicable, a B confirmation shall be decided and performed in accordance with Rule 6316.
(e) Alternative biological matrices. Any negative Analytical Testing results obtained from hair, hoof, saliva or other biological material shall not be used to counter Adverse Analytical Findings or Atypical Findings from urine, blood (including whole blood, plasma or serum), or hair.
(a) The Laboratory shall monitor its analytical performance and the validity of test results by operating quality control schemes, which are appropriate to the type and frequency of Analytical Testing performed by the Laboratory. The resulting data shall be recorded in such a way that trends are detectable and, where practicable, statistical techniques shall be applied to review the results.
(b) All quality control procedures shall be documented by the Laboratory. The range of quality control activities include, but are not limited to:
(1) Use of appropriate quality control samples (QCs).
(i) Appropriate positive and negative QCs shall be included in every analytical run both for the Initial Testing Procedure(s) and B Sample procedure(s), unless otherwise specified by the Agency.
(ii) Appropriate internal standard(s) shall be used for chromatographic methods.
(iii) For Threshold Substances, quality control charts (QC-charts) referring to appropriate control limits depending on the Analytical Testing Procedure employed (
(2) Implementation of an Internal Quality Assurance Scheme (iQAS).
(i) The Laboratory shall establish a functional and robust iQAS program, in accordance with the requirements of ISO/IEC 17025, which challenges the entire scope of the Analytical Testing process (
(ii) The iQAS plan shall include and evaluate as many Laboratory procedures as possible, including the submission of a sufficient number of test samples on a regular basis (
(iii) The Laboratory shall have a dedicated SOP for the iQAS program which incorporates a detailed procedure for the planning, preparation (blind or double-blind), introduction of the iQAS samples, and management of the iQAS results (
(3) Mandatory participation in the Agency EQAS.
(4) Implementation of internal audits.
(i) Internal audits shall be conducted in accordance with the requirements of ISO/IEC 17025 and shall have a dedicated SOP incorporating a detailed procedure for the planning and performance of the audits, the training and selection of internal auditors, and specification of their auditing activities, as well as for management of the internal audit conclusions (
(ii) Internal audit responsibilities may be shared amongst personnel provided that any Laboratory staff member does not audit his or her own area.
(iii) Internal audits shall be carried out by qualified Laboratory staff members. In addition, qualified members of the Laboratory's host organization (
(5) Implementation of external audits. Laboratories may also consider having their procedures and systems audited by other Laboratory Directors or external auditors. However, this shall not replace the performance of internal audits by the Laboratory.
(a) Review of results. The Laboratory shall conduct a minimum of one independent review of all Initial Testing Procedure raw data and results. The review process shall be recorded.
(b) A minimum of 2 Certifying Scientists shall conduct an independent review of all Adverse Analytical Findings and Atypical Findings before a test result is reported. Evidence of the review and approval of the analytical run/batch shall be recorded.
(c) Second opinion. The Laboratory may request a second opinion from another Laboratory, selected by, and upon approval of, the Agency, before reporting an Adverse Analytical Finding or Atypical Finding. Such requests for second opinions may be required by specific Technical Document(s) or Technical Letter(s), required by the Agency from certain Laboratories for all or for specific Analytical Testing Procedures under certain conditions (
(d) Laboratory review of Adverse Analytical Findings and Atypical Findings. At a minimum, the review of Adverse Analytical Findings and Atypical Findings shall include:
(1) Documentation linking the Sample (as specified in the Sample collection documentation) to the Laboratory Internal Chain of Custody documentation;
(2) Laboratory Internal Chain of Custody documentation;
(3) Initial Testing Procedure(s) and Confirmation Procedure(s) analytical data and calculations;
(4) Quality control data;
(5) Completeness of technical and analytical documentation supporting the reported findings;
(6) Compliance of test data with the Analytical Testing Procedure's validation results (
(7) Assessment of the existence of significant data or information that would cast doubt on or refute the Laboratory findings.
(e) When the Confirmation Procedure result(s) are not determined to be Adverse Analytical Finding(s) or Atypical Finding(s) based on the results review, the reason(s) for the rejection shall be recorded in the laboratory test report.
(f) Traceability of results and documentation. The Laboratory shall have documented procedures to ensure that it maintains a record related to each Sample analyzed. In the case of an Adverse Analytical Finding or Atypical Finding, the record shall include the data necessary to support the conclusions reported.
(1) Each step of Analytical Testing shall be traceable to the staff member who performed that step;
(2) Significant deviation from a written SOP shall be recorded;
(3) Where instrumental analyses are conducted, the operating parameters for each run shall be included as part of the record;
(4) Requests for information by the Agency to a Laboratory shall be made in writing;
(5) Laboratories are not required to produce a Laboratory Documentation Package for a Sample in which no Prohibited Substance or Prohibited Method or their Metabolite(s) or Marker(s) was detected, unless requested by an adjudication body as part of a Results Management process or Laboratory disciplinary proceedings.
(g) Confidentiality of the Analytical Data and Covered Person or Covered Horse's identity.
(1) The Laboratory shall not make any attempt to identify a Covered Person linked to, or the Covered Horse that has provided, a Sample.
(2) Information sent by a facsimile is acceptable, provided that the correct facsimile number is verified prior to transmission and the receipt is verified after the facsimile has been transmitted.
(3) Secure emails or documents shall be used for reporting or discussion of Adverse Analytical Findings or Atypical Findings if the Covered Person or Covered Horse can be identified or if any information regarding the identity of the Covered Person or Covered Horse is included.
(a) Reporting times (including confirmatory analysis).
The Laboratory should report all A Sample results to the Agency in a form designated by the Agency within 10 business days of receipt by the Laboratory of the Sample. The reporting time may be altered by agreement between the Laboratory and the Agency. The Agency shall be promptly informed of any delay in the reporting of A Sample results.
(b) Reporting requirements.
(1) The Laboratory shall record the test result for each individual Sample to, and in a form designated by, the Agency.
(2) The Laboratory shall report test results to the Agency in a form designated by the Agency. When reporting test results, the Laboratory shall include the following, in addition to the mandatory information required by the Agency, in any relevant Technical Document(s) or Technical Letter(s), and in the ISO/IEC 17025 standard:
(i) The specific gravity of the Sample, if applicable (Initial Testing Procedure and A and B Confirmation Procedures);
(ii) Relevant comments, if necessary, for proper interpretation of the test result or recommendations to the Agency (for example, for Target Testing of the Covered Horse);
(iii) Specific tests performed, in addition to the Laboratory's routine Analytical Testing menu (
(iv) Any irregularities noted on Samples.
(c) The Laboratory is not required to provide any additional test report, either in hard-copy or digital format, other than the submission of test results to, and in a form designated by, the Agency. Upon request by the Agency, the Laboratory shall report a summary of the results of analyses performed in a format specified by the Agency. In addition, the Laboratory shall provide any information requested by the Agency in relation to the Monitoring Program (Protocol).
(d) The Laboratory shall qualify the result(s) of the analysis in the Agency's test report as:
(1) Adverse Analytical Finding;
(2) Atypical Finding;
(3) Negative Finding; or
(4) Not Analyzed.
(e) Any Sample received at the Laboratory and not subject to Analytical Testing for a valid, documented reason (as instructed or agreed to by the Agency), such as Sample irregularities or intermediate Samples of a Sample Collection Session, shall be dealt with in accordance with ISO/IEC 17025.
(f) Test report for Non-Threshold Substances.
(1) A Sample test report.
(i) The Laboratory is not required to report concentrations for Non-Threshold Substances. The Laboratory shall report the actual Prohibited Substance(s) or its Metabolite(s), or Marker(s) of the Use of Prohibited Substance(s) or Prohibited Method(s) present in the Sample and in accordance with any reporting requirements established by the Agency or in any applicable Technical Document.
(ii) However, the Laboratory shall provide estimated concentrations when possible and for information purposes only, upon request by the Agency, if the detected level of the Non-Threshold Substance(s), its Metabolite(s), or Marker(s) may be relevant to the Results Management of an anti-doping case. In such instances, the Laboratory shall indicate the estimated concentration while making it clear to the Agency that the concentration was obtained by an Analytical Testing Procedure that has not been validated for quantitative purposes.
(2) B Sample test report. For Non-Threshold Substances, irrespective of whether they have a Minimum Reporting Level, the Laboratory result for the B Sample shall only establish the presence (
(g) Test report for Threshold Substances. For Threshold Substances, the Laboratory test report for the A Sample shall establish that the identified Prohibited Substance(s) or its Metabolite(s) or Marker(s) is present at a concentration, ratio, or score of measured analytical values greater than the Threshold, or that the Prohibited Substance(s) or its Metabolite(s) or Marker(s) is of exogenous origin.
(a) The Laboratory shall have policies and procedures that shall be implemented when any aspect of its Analytical Testing does not comply with then-current requirements.
(b) Any nonconformities in Analytical Testing shall be recorded and kept as part of the documentation of the Sample(s) involved.
(c) When conducting a corrective action investigation, the Laboratory shall perform and record a thorough Root Cause Analysis of the nonconformity.
Complaints shall be handled in accordance with ISO/IEC 17025.
(a) Storage of urine Samples. All urine Samples retained for storage in the Laboratory shall be stored frozen in a secure location under continuous Chain of Custody. The Laboratory shall keep all Chain of Custody and other records (either as hard-copy or in digital format) pertaining to those Samples unless and until notified in writing by the Agency that such records may be destroyed.
(1) Urine Sample(s) without an Adverse Analytical Finding or Atypical Finding: The Laboratory shall retain the A and B urine Sample(s) without an Adverse Analytical Finding or Atypical Finding for a minimum of 3 months after reporting the final analytical result to the Agency, and they may be discarded after this time, unless the long-term storage of the Sample(s) has been requested, in writing or electronically, by the Agency and unless the Agency requests the Laboratory retain the Sample for a longer period. The Laboratory may charge storage costs to the Agency, as applicable, for the storage of Samples for periods longer than the stated minimum storage times. However, the Laboratory may store Samples beyond the applicable minimum storage times at their own discretion and expense. In such cases, the Laboratory shall inform the Agency in writing. Any Further Analysis on these Samples will require the approval of the Agency. The maximum storage period is 10 years after the Sample collection date.
(2) Urine Samples with irregularities: The Laboratory shall retain the A and B urine Sample(s) with irregularities for a minimum of 3 months after reporting to the Agency, or for a longer period as determined by the Agency.
(3) Urine Sample(s) with an Adverse Analytical Finding or Atypical Finding: The Laboratory shall retain the A and B urine Sample(s) with an Adverse Analytical Finding or Atypical Finding for a minimum of 6 months after reporting the final analytical result for the A or the B Sample, as applicable to, the Agency and shall not dispose of any such Samples without approval by the Agency.
(4) Urine Samples under challenge, dispute or investigation: If the Laboratory has been informed by the Agency (in writing and within the applicable storage period as defined in this Rule 6319) that the analysis of a urine Sample is challenged, disputed or under investigation, the Laboratory shall retain both the A and B Samples until further notice by the Agency, as applicable.
(b) Storage of blood Samples.
(1) Samples for which Analytical Testing has been performed on blood serum/plasma fraction only (not on cellular components):
(i) All serum or plasma Samples retained for storage in the Laboratory shall be stored frozen according to established protocols in a secure location under continuous Chain of Custody. The Laboratory shall keep all Chain of Custody and other records (either as hard-copy or in digital format) pertaining to those Samples.
(ii) Serum/plasma A and B Samples without an Adverse Analytical Finding or Atypical Finding: The Laboratory shall retain the serum/plasma A and B Samples without an Adverse Analytical Finding or Atypical Finding for a minimum of 3 months after reporting the final analytical result to the Agency, unless long-term storage of the Sample(s) has been requested by the Agency or the Agency requests the Laboratory retain the Sample for a longer period.
(iii) Unless otherwise requested by the Agency, serum/plasma Samples analyzed only for TCO2 and without an Adverse Analytical Finding or Atypical Finding, shall be retained unless and until the corresponding Post-Race Sample is analyzed and no Adverse Analytical Finding or Atypical Finding is reported (
(iv) Serum/plasma Samples with irregularities: The Laboratory shall retain the serum/plasma Samples with irregularities for a minimum of 3 months after reporting the final analytical result to the Agency, or for a longer period if directed by the Agency.
(v) Plasma/serum A and B Sample(s) with an Adverse Analytical Finding or Atypical Finding: The Laboratory shall retain A and B plasma/serum Sample(s) with an Adverse Analytical Finding or Atypical Finding for a minimum of 6 months after reporting the final analytical result (for the A or the B Sample, as applicable) to the Agency and shall not dispose of any such Samples without approval by the Agency. If the B Sample Confirmation Procedure is not performed, the Laboratory may dispose of both the A and B whole blood Samples 3 months after reporting the A Sample analytical result. However, if the B Sample Confirmation Procedure is performed, then the Laboratory shall retain both the A and B whole blood Sample(s) for a minimum of 3 months after reporting the B Sample analytical result.
(vi) Plasma/serum A and B Sample(s) under challenge, dispute or investigation: If the Laboratory has been informed by the Agency (in writing and within the applicable storage period as defined in this Rule 6319) that the analysis of a serum/plasma Sample is challenged, disputed or under investigation, the Laboratory shall retain both the A and B Samples until further notice by the Agency, as applicable.
(2) Samples for which Analytical Testing has been performed on cellular fractions of whole blood.
(i) Whole blood A and B Samples without an Adverse Analytical Finding or Atypical Finding: The Laboratory shall retain the whole blood Samples without an Adverse Analytical Finding or Atypical Finding for a minimum of 1 month after reporting the final analytical result to the Agency, unless long-term storage of the Sample(s) has been requested by the Agency or the Agency requests the Laboratory retain the Sample for a longer period.
(ii) Whole blood Samples with irregularities: The Laboratory shall
(iii) Whole blood A and B Sample(s) with an Adverse Analytical Finding or Atypical Finding: The Laboratory shall retain A and B whole blood Sample(s) with an Adverse Analytical Finding or Atypical Finding for a minimum of 3 months after reporting the final analytical result (for the A or the B Sample, as applicable) to the Agency and shall not dispose of such Samples without approval by the Agency.
(iv) Whole blood A and B Sample(s) under challenge, dispute or investigation: If the Laboratory has been informed by the Agency (in writing and within the applicable storage period as defined in this Rule 6319) that the analysis of a whole blood Sample is challenged, disputed or under investigation, the Laboratory shall retain both the A and B Samples until further notice by the Agency, as applicable, and shall not dispose of such Samples without approval by the Agency.
(c) Storage of hair Samples. All hair Samples retained for storage in the Laboratory shall be stored for as long as requested by the Agency in a secure location under continuous chain of custody.
(d) Storage of other Samples. All other Samples shall be stored for as long as requested by the Agency in optimal conditions based on the available information applicable to the Sample type, and at the direction of the Agency. They shall be stored in a secure location under continuous Chain of Custody.
(e) Long-term storage of Samples.
(1) At the direction of the Agency, any urine, serum/plasma, hair or other Sample may be stored in long-term storage after the Sample collection date for the purpose of Further Analysis, subject to the conditions set out in Rules 6313 and 6319.
(2) Sample(s) may be stored in long-term storage under the custody of either a Laboratory or another Fit-for-Purpose facility under the responsibility of the Agency. The Agency shall retain the Sample collection records pertaining to all stored Samples for the duration of Sample storage.
(3) Laboratories as Sample custodians:
(i) The Laboratory shall ensure that Samples are stored according to established protocols in a secure location in the Laboratory's permanent controlled zone and under continuous Chain of Custody. The written request from the Agency for long-term storage of Samples shall be properly documented.
(ii) Samples may also be transported for long-term storage to a specialized, secure Sample storage facility, which is located outside the Laboratory's permanent controlled zone and is under the responsibility of the Laboratory, or may be transported to another Laboratory. If the external Sample storage facility is not covered by the Laboratory's ISO/IEC 17025 accreditation, then the subcontracted external storage facility shall be Fit-for-Purpose and have its own ISO accreditation or certification (
(iii) If Sample(s) are to be transported for storage at a location outside the secured area of the Laboratory that first analyzed the Sample(s), the Laboratory shall secure the A Sample(s) to be shipped either by re-sealing individual A Sample container(s) with a Tamper Evident sealing system, which has similar capabilities for security and integrity as the original sealing system, or by sealing the box in which the Sample(s) are shipped in a manner that maintains Sample integrity and Chain of Custody. For example, Sample(s) may be resealed with new resealing systems (
(iv) B Sample(s) to be shipped shall be individually sealed, either in the original, sealed B Sample container(s) or, if previously opened, by re-sealing the individual B Sample container(s) with a Tamper Evident sealing system, which has similar capabilities for security and integrity as the original sealing system.
(v) During transport and long-term storage, Sample(s) shall be stored at a temperature appropriate to maintain the integrity of the Sample(s). In any Anti-Doping Rule Violation case, the issue of the Sample's transportation or storage temperature shall be considered where failure to maintain an appropriate temperature could have caused the Adverse Analytical Finding or other result upon which the Anti-Doping Rule Violation is based.
(vi) The Laboratory shall retain all Laboratory Internal Chain of Custody and technical records (as per ISO/IEC 17025) pertaining to a stored Sample for the duration of Sample storage, either as hard-copy or in digital format. In addition, the Laboratory may retain Sample analytical data which would allow retrospective analysis of such data, for example, for the purpose of identifying signals for novel Metabolite(s) of Prohibited Substance(s) or Marker(s) of Prohibited Substance(s) or Prohibited Method(s) (
(vii) If Sample(s) are transported to another Laboratory for long-term storage, the Sample's external Chain of Custody and other non-analytical records (
(4) The Agency as Sample custodians:
(i) Sample(s) may also be transported for long-term storage to a Fit-for-Purpose, secure Sample storage facility, which is under the responsibility of the Agency. In such cases, the external storage facility shall have its own ISO accreditation or certification (
(ii) The written request from the Agency for the transfer of the Sample(s) to long-term storage shall be properly documented. The transfer of the Samples to the external long-term storage facility shall also be recorded. The Laboratory shall secure the Sample(s) for transportation to the long-term storage facility as described above.
(iii) The Laboratory shall retain all Laboratory Internal Chain of Custody and technical records (as per ISO/IEC 17025) pertaining to all Samples transferred for long-term storage for the duration of Sample storage, either as hard-copy or in digital format. In addition, the Laboratory may retain Sample analytical data which would allow retrospective analysis of such data. The Laboratory shall transfer the Sample's external Chain of Custody and other non-analytical records to the Agency, either as originals or copies, immediately or upon request.
(f) For the purposes of this rule, “storage” refers to A and B Samples stored in Sample collection containers (urine collection bottles, blood collection tubes) and should not be confused with access to Aliquots, which should be accessible to analysts for the performance of Analytical Testing Procedures. However, minimum and maximum retention times apply to any
(a) The Laboratory shall maintain SOP(s) pertaining to the secondary use of Samples or Aliquots for research or quality assurance, as well as for the disposal of Samples and Aliquots.
(b) If the Laboratory has discretion to dispose of a Sample, the Laboratory shall do one of the following with the Sample(s) and Aliquots as soon as practicable:
(1) Disposal of the Sample(s) and Aliquots. Disposal of Samples and Aliquots shall be recorded under the Laboratory Internal Chain of Custody.
(2) Secondary use of Samples and Aliquots for research and quality assurance. Samples and Aliquots shall be anonymized to ensure that any subsequent results cannot be traced back to a particular Covered Person or Covered Horse. Only after anonymization, may a Sample or Aliquot be used for:
(i) Anti-doping research. The Covered Person or their representative's consent is not required for these purposes.
(ii) Quality assurance, quality improvement of existing Test Methods, development or evaluation of Analytical Testing Procedures for Prohibited Substances or Prohibited Methods included in the Prohibited List at the time of Sample collection, or to establish reference population ranges or Thresholds or other statistical purposes. The Covered Person or their representative's consent is not required for these purposes.
(c) The use of Samples and Aliquots for the purposes of this Rule 6320 is subject to the following conditions:
(1) The Laboratory must respect the Protocol and the Code of Ethics requirements related to research, types of permitted research, and respect of ethical standards for research or quality assurance studies involving equine subjects;
(2) The Laboratory must not make any attempt to re-identify a Covered Person or Covered Horse from Samples or Aliquots used for the purposes of this Rule 6320 or data arising from any research or quality assurance analysis;
(3) The Laboratory must consult the applicable State and Federal regulations, guidance, or authorities to determine whether a study shall be considered as falling under Rule 6320(c)(1) or (2) (if the Laboratory is unsure whether a study can proceed without consent after consulting the foregoing sources, the Laboratory shall consult with the Agency to determine whether it can proceed); and
(4) In the event the Laboratory wishes to transfer Sample(s) or Aliquots to be used for the purposes of this Rule 6320 to another Laboratory or a third-party research institution or group, or wishes to partner with another Laboratory or research institution or group for the purpose of a study pursuant to Rule 6320(c)(1), the Laboratory shall subject the receiving party to the conditions described in this Rule 6320 by way of a written agreement and shall prohibit the receiving party from further transferring any Sample(s) or Aliquots or related data to another party.
(a) The Agency shall inform a Laboratory in writing about the imposition of penalties, corrective action, or other follow-up measures.
(b) Technical or methodological error. If the Laboratory is able to remedy the technical or methodological error through the implementation of satisfactory corrective actions in a timely manner, as determined by the Agency, the Laboratory will not face any additional penalty.
(c) Clerical/Administrative error. If the Laboratory is able to remedy the clerical or administrative error through the implementation of satisfactory corrective actions in a timely manner, as determined by the Agency, the Laboratory will not face any additional penalty. For the purposes of Laboratory performance evaluation, clerical/administrative errors are defined as those incidental, non-systematic errors of no technical or methodological origin, which have been committed by the Laboratory during the performance of Analytical Testing (
(a) A Corrective Action Report may be requested by the Agency. Where requested, it shall be submitted within the timeframe specified by the Agency in written notification about the unsatisfactory result. Failure to submit a satisfactory Corrective Action Report or the late submission of the Corrective Action Report without prior approval by the Agency may result in a penalty.
(b) A Corrective Action Report related, for example, to nonconformities detected during the Agency Laboratory assessments, or to procedural or reporting nonconformities with the Laboratory Standards, Technical Documents or Technical Letters, or unsatisfactory performance in the analysis of EQAS samples (not related to a false Adverse Analytical Finding or false Negative Finding), shall be submitted to the Agency within 30 days of the Agency's notification to the Laboratory.
(c) Unless otherwise agreed with the Agency, the corrective and preventive action(s) reported to and approved by the Agency shall be implemented immediately in the routine operations of the Laboratory.
(d) The Corrective Action Report will be reviewed by the Agency as soon as practicable. If applicable, it will establish the source of the incorrect result as either a technical/methodological error or a clerical/administrative error.
(e) Satisfactory Corrective Action Report. A Corrective Action Report will be considered as satisfactory when it meets the following criteria, as determined by the Agency:
(1) Properly and concisely identifies the root cause(s) of the nonconformity, following an appropriate investigation into all the factors that may have caused the problem (Root Cause Analysis);
(2) Leads to the documented implementation of effective corrective action(s) to solve the problem; and
(3) Leads to the documented implementation of appropriate preventive actions, if applicable, to minimize the risk of recurrence of the problem.
(f) A satisfactory Corrective Action Report shall include only the necessary supporting documentation (
(g) Unsatisfactory Corrective Action Report. If the Laboratory's Corrective Action Report is considered unsatisfactory by the Agency, the Agency should provide feedback to the Laboratory and provide it with the opportunity to resubmit a revised Corrective Action Report within 7 days, or as otherwise agreed by the Agency.
(h) If the Laboratory is unable to submit a satisfactory revised Corrective Action Report in a timely manner, as determined by the Agency, the Agency may impose a penalty.
The Laboratory must identify and report all errors in Sample analysis resulting in a false Adverse Analytical
(a) Satisfactory EQAS performance in a single EQAS round and over a consecutive 12-month period is necessary for maintaining HEAL accreditation. An EQAS round is a distribution of EQAS sample(s) to the Laboratories and the probationary laboratories for Analytical Testing (as defined by the Agency). The 12-month period is defined as the most recent consecutive 12-month interval starting either from the date that the Laboratory or the probationary laboratory reported the nonconforming result (EQAS or routine Analytical Testing, as applicable) to, and in a form designated by, the Agency, or from the date that the Laboratory or probationary laboratory is informed, in writing, of nonconformity by the Agency, whichever is more favorable to the Laboratory or the probationary laboratory.
(b) Unsatisfactory performance in an educational EQAS for a new or the Agency-specific Analytical Testing Procedure may prevent the Laboratory from seeking an extension of the Laboratory's scope of ISO/IEC 17025 accreditation for the Analytical Testing Procedure and from its application in routine Analytical Testing. In such circumstances, the Laboratory may only apply the new Agency-approved method or procedure for routine Sample analysis when it properly corrects the deficiencies identified in the educational EQAS (as determined by the Agency) and the method is included in the Laboratory's scope of ISO/IEC 17025 accreditation. Some Analytical Testing Procedures are not eligible for a flexible scope of ISO/IEC 17025 accreditation and require specific Agency approval before the Laboratory can apply the procedure to the analysis of Samples. Agency approval will be based on its assessment of the Fitness-for-Purpose of the Analytical Testing Procedure, method validation by the Laboratory, and the successful Laboratory participation in an inter-laboratory collaborative study or the Agency EQAS round. The Agency will communicate which Analytical Testing Procedures fall into this category to the Laboratories and to the Accreditation Bodies.
(a) When a qualitative determination of a Non-Threshold Substance has been reported, the Laboratory result will be evaluated on the basis of the correct reporting of the finding (
(b) The results for any Non-Threshold Substance or its Metabolite(s) or Marker(s) at concentrations greater than (>) the MRPL (or exceeding 120% of the Minimum Reporting Level, when applicable) shall be evaluated.
(c) The results for any Non-Threshold Substance or its Metabolite(s) or Marker(s) at concentrations between 50% of the MRPL and the MRPL (or less than 120% of the Minimum Reporting Level, when applicable) may require an internal investigation and Corrective Action Report from the Laboratory.
(d) If the results for any Non-Threshold Substance or its Metabolite(s) or Marker(s) are at concentrations below (<) 50% of the applicable MRPL in an EQAS sample, the Laboratory shall report its finding(s) if the analyses are compliant with its validation data, SOPs, the Laboratory Standards, and any applicable Technical Document. Laboratories unable to report such substance(s) are encouraged, on receipt of the EQAS report, to consider re-assessment of their Analytical Testing Procedure.
(a) For EQAS samples containing Threshold Substances at levels greater than (>) 50% of the Threshold, the quantitative determination will be statistically evaluated (
(b) A Laboratory is to achieve a satisfactory statistical evaluation of quantitative results reported based on the mean of 2 replicate determinations. The overall evaluation of the quantitative performance is based on the criteria indicated in any relevant Technical Document or Technical Letter, or the Laboratory Guidelines.
(c) The main criterion applied for the evaluation of EQAS results for the quantification of Threshold Substances is the compatibility of the reported Laboratory result with the assigned value. Therefore, the incorrect reporting of an EQAS sample as a Negative Finding or as an Adverse Analytical Finding, as applicable, when the assigned value of the Threshold Substance in the EQAS sample is close to the Threshold, is not considered as a false Negative Finding or false Adverse Analytical Finding, respectively, if the absolute z-score (truncated to one decimal place) for the Laboratory's quantitative result is <3.0.
(d) Unsatisfactory quantitative result for Threshold Substances (absolute z-score ≥ 3.0). The Laboratory shall provide the Agency with a Corrective Action Report for an unsatisfactory quantitative result. The z-score is calculated according to the formula [z = (
(e) Questionable quantitative result (absolute z-score > 2.0 and < 3.0). The Laboratory shall perform an internal investigation to determine the root cause(s) of the questionable result and implement appropriate corrective measures to resolve them.
(f) EQAS evaluation of Laboratory performance. Where an EQAS result is reported incorrectly, the Laboratory shall provide the Agency with a Corrective Action Report.
(g) Double-blind, blind EQAS and educational EQAS samples. Failure to report accurately, in accordance with criteria, 3 blind or double-blind EQAS, or educational EQAS results within a continuous twelve 12-month period may result in penalties imposed by the Agency, including, but not limited to, potential suspension or revocation of HEAL accreditation, or Analytical Testing Restrictions.
(a) If the Laboratory discovers that it reported a false Adverse Analytical Finding or false Negative Finding, the Laboratory shall inform the Agency immediately.
(b) When the false Adverse Analytical Finding or false Negative Finding is identified by the Agency, through the Agency's own Results Management activities or through any other means, the Agency shall inform the Laboratory as soon as practicable.
(c) The Agency, considering the nature of the error that caused the false Adverse Analytical Finding or false Negative Finding, may impose a penalty, including, but not limited to, potential suspension or revocation of HEAL accreditation, or Analytical Testing Restrictions against the Laboratory for a particular Analytical Testing Procedure or for the analysis of a particular class of Prohibited Substances or Prohibited Methods, as
(1) During the period of suspension, the Laboratory shall follow the instructions provided in Rule 6561 in regard to Samples in the Laboratory's possession at the time of suspension. Alternatively, if an Analytical Testing Restriction has been imposed, the Laboratory shall subcontract the affected analyses as provided in Rules 6560 and 6302.
(2) During the suspension or Analytical Testing Restriction period, the Agency will conduct an assessment (preferably on-site) of the Laboratory, including the analysis of further EQAS samples.
(3) The suspension or Analytical Testing Restriction of the Laboratory shall be lifted only when the aforementioned conditions are satisfactorily completed, and the Laboratory provides sufficient evidence, as determined by the Agency and in the Agency's sole discretion, that appropriate steps have been taken to remedy the issue(s) that resulted in the suspension or Analytical Testing Restriction.
If the Agency considers that a Corrective Action Report is unsatisfactory, and the Laboratory is not able to provide a satisfactory revised Corrective Action Report within a reasonable time frame after receiving feedback from the Agency, the Laboratory may receive a penalty, at the Agency's discretion. Rule 6450 does not apply to the evaluation of Corrective Action Reports for false Adverse Analytical Findings or false Negative Findings, which are covered in Rule 6443.
(a) The Agency shall evaluate Laboratory EQAS performance for each EQAS round, as well as Laboratory performance for routine Analytical Testing, and assign penalties, including corrective actions or other follow-up measures, in the Agency's sole discretion.
(b) If a Laboratory under suspension as a result of EQAS performance is not capable of correcting the issue(s) before the end of the suspension period, then the Agency may extend the Laboratory's suspension for up to an additional 6 months or until such a time when the Laboratory can satisfactorily correct all the issues identified (at the Agency's discretion). If the Laboratory under suspension fails to satisfy performance criteria during an extended period of suspension (beyond the initial 6 months), then the Agency may Revoke the Laboratory's accreditation.
(c) Laboratories under an Analytical Testing Restriction remain operational (except for any activities under the Analytical Testing Restriction) and, therefore, are evaluated during the Analytical Testing Restriction as any other, fully operational Laboratory.
(a) The probationary EQAS is a part of the initial evaluation of a probationary laboratory seeking HEAL accreditation. Successful participation in the Agency probationary EQAS is required before a probationary laboratory is eligible to be considered for full HEAL accreditation. The Agency may decide, based on its evaluation of the overall performance of the probationary laboratory, to extend the probationary period of accreditation.
(b) The Agency will evaluate probationary laboratory EQAS performance.
(c) Serious and repeated issues in the probationary EQAS shall result in the removal of the laboratory's status as a probationary laboratory by the Agency.
(d) Any false Adverse Analytical Finding or false Negative Finding of a technical or methodological nature reported automatically suspends a probationary laboratory from further consideration for HEAL accreditation.
(e) A suspended probationary laboratory wishing to re-enter the probationary EQAS is required to provide documentation of corrective and preventive action(s) no later than 30 days prior to the end of the suspension period (unless otherwise indicated by the Agency). Failure to do so will preclude the laboratory from participating in the probationary EQAS.
(f) Lifting of the suspension occurs only when proper corrective and preventive actions have been implemented and reported to the Agency. The Agency may choose, at its sole discretion, to submit additional EQAS samples to the laboratory or to require that the laboratory be reassessed, at the expense of the laboratory. Laboratories re-entering the probationary EQAS shall be considered candidate laboratories and are required to provide the applicable accreditation fee and documentation to the Agency.
(a) Within the context of an investigation or Laboratory performance monitoring activity (for example, during an on-site Agency Laboratory assessment), the Agency, initially at its expense, may remove Sample(s) from a Laboratory to conduct Further Analysis, or analysis of the Sample if the analytical results for that Sample have not yet been reported, for any purpose described in the Protocol. The Agency shall retain the right to request analysis or Further Analysis, at its expense, as permitted by the Protocol.
(b) The Agency may delegate an observer to monitor the removal of the Samples, which shall be implemented in accordance with the Agency's instructions. During the removal of Samples, the Agency shall be responsible for maintaining proper Sample Chain of Custody documentation and the safety and integrity of the Samples until receipt by the other Laboratory(-ies).
(c) The Agency may also require that the Laboratory transfer the Samples to other Laboratories selected by the Agency. In such situations, the Laboratory shall be responsible for maintaining proper Chain of Custody documentation for all transferred Samples and the safety and integrity of the Samples until receipt by the receiving Laboratory(-ies).
(d) Where for any reason (except where Rule 6312 applies), a Laboratory transfers a Sample to another Laboratory, the first Laboratory shall
(e) In connection with its monitoring of Laboratory performance, the Agency may direct Further Analysis of a Sample which has resulted in an Anti-Doping Rule Violation without consent of the Covered Person or approval from an adjudication body, as provided in the Protocol.
The Agency may also direct the re-analysis of anonymized Samples, which have met the conditions described in Rule 6320, for purposes of Laboratory quality assurance and education, including the implementation of a system of transfer of Samples reported as Negative Findings between Laboratories. In this regard, the number of Samples directed by the Agency for re-analysis may vary.
(a) A Laboratory's HEAL accreditation may be suspended, Revoked, or subject to an Analytical Testing Restriction, whenever the Laboratory fails to comply with the Laboratory Standards, Technical Documents, or Technical Letters, or where the suspension, Revocation or Analytical Testing Restriction is otherwise required to protect the integrity of the Samples, the Analytical Testing process or the interests of the anti-doping community.
(b) The imposition of an Analytical Testing Restriction or the suspension of a Laboratory's HEAL accreditation shall not imply the automatic withdrawal of its ISO/IEC 17025 accreditation. The status of the Laboratory's ISO/IEC 17025 accreditation is to be independently assessed by the relevant accreditation body.
(c) The Agency may suspend a Laboratory's HEAL accreditation or impose an Analytical Testing Restriction against a Laboratory if the Agency identifies noncompliance with the Laboratory Standards, Technical Documents, or Technical Letters based on the Laboratory's performance during the EQAS or during routine Analytical Testing.
(d) The Laboratory may not challenge the penalty imposed by the Agency.
(a) Noncompliance with the Laboratory Standards that may lead to an Analytical Testing Restriction, suspension or Revocation of HEAL accreditation, or other follow-up measures include, but are not limited to:
(1) Suspension or withdrawal of ISO/IEC 17025 accreditation;
(2) Failure to establish or maintain administrative and operational independence as described in paragraph (b)(7) of Rule 6110;
(3) Failure to analyze the minimum number of Samples indicated in paragraph (i) of Rule 6130 (except where the Agency fails to send the minimum annual number of Samples to the Laboratory);
(4) Reporting of false Adverse Analytical Findings or false Negative Findings;
(5) Failure to implement a Technical Document or Technical Letter by the effective date without prior approval of the Agency;
(6) Failure to comply with any of the requirements or standards listed in the Laboratory Standards, Technical Documents or Technical Letters;
(7) Noncompliance with results reporting timelines in Rule 6316;
(8) Failure to take appropriate corrective action after an unsatisfactory performance during routine Analytical Testing or in a blind EQAS or double-blind EQAS round;
(9) Failure to take appropriate corrective action for Laboratory Standards, Technical Document(s), or Technical Letter(s) noncompliance(s) identified from the Agency Laboratory assessment(s);
(10) Analysis of Samples from the Agency in violation of a suspension or Analytical Testing Restriction decision;
(11) Failure to cooperate with the Agency in providing documentation or other requested information;
(12) Noncompliance with the Code of Ethics; or
(13) Any other cause that materially affects the ability of the Laboratory to ensure the full reliability and accuracy of Analytical Testing and the accurate reporting of test results.
(b) Laboratory staff or management issues which may lead to an Analytical Testing Restriction, suspension or Revocation of HEAL accreditation, or other follow-up measures include, but are not limited to:
(1) Major changes in senior Laboratory management positions (
(2) Failure to appoint a permanent Laboratory Director or other senior management positions (
(3) Failure to guarantee the competence or proper training of scientific staff including, for example, the qualification of analysts as Certifying Scientists and Laboratory Supervisory Personnel;
(4) Significant loss or lack of experienced staff (
(5) Conviction of any key personnel for any criminal offence that is determined by the Agency to impact the operations of the Laboratory;
(6) Loss of sufficient Laboratory support and resources that affects, as determined by the Agency, the quality or viability of the Laboratory; or
(7) Failure to cooperate in any Agency inquiry in relation to the activities of the Laboratory.
The Agency shall provide the Laboratory with written notice of its decision regarding penalties. This notice shall state the following:
(a) That the Laboratory's HEAL accreditation has been maintained (including warnings, if applicable); or
(b) That the Laboratory's HEAL accreditation has been suspended or Revoked or that an Analytical Testing Restriction has been imposed against the Laboratory. Such notice shall include:
(1) the reason(s) for suspension, Revocation, or the imposition of an Analytical Testing Restriction;
(2) the terms of the suspension, Revocation, or Analytical Testing Restriction;
(3) the period of suspension or Analytical Testing Restriction, if applicable; and
(4) Any corrective actions or other follow-up requirements imposed upon the Laboratory by the Agency.
(a) A Revocation, suspension, or Analytical Testing Restriction is effective immediately upon receipt of notification of the Agency's decision.
(b) The Agency's decision is not subject to appeal.
(a) The Agency shall publicly announce a change in a Laboratory's accreditation status (including, if appropriate, any Analytical Testing Restriction) on its website as soon as practicable after the Laboratory is notified by the Agency of its decision.
(b) The Agency's website shall be updated regarding a Laboratory's accreditation status when:
(1) the Laboratory's HEAL accreditation is reinstated following a suspension;
(2) an Analytical Testing Restriction is removed (if appropriate); or
(3) a Laboratory whose accreditation has previously been Revoked is re-accredited.
(a) If the Agency determines that the noncompliance(s) are limited to a class of Prohibited Substances or Prohibited Methods or to a specific Analytical Testing Procedure, which are not included in the standard Analytical Testing menu requested by the Agency for Samples received by the Laboratory, the Agency may impose an Analytical Testing Restriction for that class of Prohibited Substance(s) or Prohibited Method(s) or for the specific Analytical Testing Procedure in which the noncompliance(s) occurred.
(b) If the reason for the Analytical Testing Restriction was related to the reporting of false Adverse Analytical Finding(s), all analyses employing the affected Analytical Testing Procedure(s) shall cease immediately.
(c) The Laboratory under an Analytical Testing Restriction shall contact the Agency to arrange for the transfer of the relevant Samples to subcontracted Laboratory(-ies), selected by the Agency, within 30 days of being notified of the Analytical Testing Restriction decision. All associated costs shall be borne by the Laboratory under Analytical Testing Restriction. The Laboratory shall transfer the following Samples (A and B Samples) in the Laboratory's custody, which involve the analysis of the same class of Prohibited Substances or Prohibited Methods, or the application of the affected Analytical Testing Procedure(s) subjected to the Analytical Testing Restriction, to another Laboratory(-ies) for the performance of the A and, if needed, the B Confirmation Procedures, unless otherwise instructed by the Agency:
(1) Samples which had been previously reported as an Adverse Analytical Finding (as requested by the Agency);
(2) Samples which had been opened and were undergoing analysis for the Initial Testing Procedure(s) at the time of the Analytical Testing Restriction decision;
(3) Samples for which, at the time of the Analytical Testing Restriction decision, Initial Testing Procedure(s) had been completed and had produced Presumptive Adverse Analytical Findings requiring Confirmation Procedures, and Samples that are the subject of other Confirmation Procedures;
(4) Samples for which the A or B Confirmation Procedures had been completed, but results of the analysis had not been reported by the Analytical Testing Restriction date, and Samples which were undergoing A or B Confirmation Procedures at the time of the imposition of the Analytical Testing Restriction;
(5) Samples which had been reported as Adverse Analytical Findings based on the A Confirmation Procedure prior to the imposition of the Analytical Testing Restriction. These Samples shall be kept in the Laboratory under proper Laboratory Internal Chain of Custody and appropriate storage conditions. Should a B Confirmation Procedure be requested during the period of the Analytical Testing Restriction, both A and B Samples shall be transferred to another Laboratory(-ies) selected by the Agency for the A Confirmation Procedure to be performed again and for the performance of the B Confirmation Procedure, if applicable; and
(6) If the Analytical Testing Restriction was caused by the reporting of false Negative Finding(s), and further investigation reveals that other Negative Finding(s) had been reported for Samples that are still stored in the Laboratory, the Laboratory shall inform the Agency. In such cases, both the A and B containers of the relevant Samples shall be transferred to another Laboratory(-ies) selected by the Agency for Further Analysis, as determined by the Agency. These re-analyses may be applied to the class of Prohibited Substances or Prohibited Methods or to the Analytical Testing Procedure(s) that were associated with the Negative Finding(s), as determined by the Agency.
(a) A Laboratory whose HEAL accreditation has been suspended is ineligible to perform Analytical Testing of Samples.
(b) Suspension for violation of the Code of Ethics. If the reason for the suspension was related to a violation of the Code of Ethics, all Analytical Testing in the suspended Laboratory shall cease immediately and the Laboratory shall transfer all Samples (both the A and B Samples) in the Laboratory's custody to other Laboratory(-ies) selected by the Agency.
(c) Suspension for reporting of false Adverse Analytical Finding(s). If the reason for the suspension was related to the reporting of false Adverse Analytical Finding(s), all Analytical Testing shall cease immediately. In addition, the Laboratory shall transfer the following Samples (A and B Samples) in the Laboratory's custody to another Laboratory(-ies) selected by the Agency for the performance of the A and, if needed, the B Confirmation Procedures, unless otherwise instructed by the Agency:
(1) Samples which had been previously reported as an Adverse Analytical Finding for the same class of Prohibited Substances or Prohibited Methods when applying the same Confirmation Procedure (as requested by the Agency);
(2) Samples for which, at the time of the suspension decision, Initial Testing Procedure(s) had been completed and had produced Presumptive Adverse Analytical Findings requiring Confirmation Procedures, and Samples that are the subject of other Confirmation Procedures;
(3) Samples which had been opened and were undergoing analysis for the Initial Testing Procedure(s) at the time of the suspension;
(4) Samples which had been received at the Laboratory but had not been opened at the time of the suspension. (These Samples shall be kept sealed in the Laboratory under proper Laboratory Internal Chain of Custody and appropriate storage conditions until transfer to another Laboratory(-ies) selected by the Agency);
(5) Samples for which A or B Confirmation Procedures had been completed, but results of the analysis had not been reported by the suspension date, and Samples which were undergoing A or B Confirmation Procedures at the time of the suspension; and
(6) Samples which had been reported as Adverse Analytical Findings based on the A Confirmation Procedure prior to the suspension.
(d) Suspension for other reasons. A Laboratory that has had its HEAL accreditation suspended for reasons other than a violation of the Code of Ethics or the reporting of false Adverse Analytical Findings(s) shall take the following steps with respect to the Samples in the Laboratory's custody, unless otherwise instructed by the Agency:
(1) Samples which had been analyzed and reported as a Negative Finding, and which have either been stored in the Laboratory for a period of less than 3 months or have been placed in long-term storage upon request by the Agency shall be kept in the Laboratory
(2) If the suspension was caused by the reporting of false Negative Finding(s), and further investigation reveals that other Negative Finding(s) had been reported by the Laboratory, the Laboratory shall inform the Agency. In such cases, both the A and B containers of the relevant Samples shall be transferred to another Laboratory(-ies) selected by the Agency for Further Analysis, as determined by the Agency. These analyses may be applied for all the Prohibited Substances and Prohibited Methods included in the Analytical Testing menu requested by the Agency or be limited to the class of Prohibited Substances or Prohibited Methods or to the Analytical Testing Procedure(s) that were associated with the Negative Finding(s), as determined by the Agency.
(3) Samples for which Initial Testing Procedures had been completed, but results had not been reported at the time of the suspension:
(i) If the Initial Testing Procedure(s) produced Presumptive Adverse Analytical Finding(s) or other Confirmation Procedures were required, both the A and B Samples shall be transferred to another Laboratory(-ies) selected by the Agency for the performance of the A and, if needed, the B Confirmation Procedures.
(ii) In addition, if the suspension was caused by the reporting of false Negative Finding(s) and the Initial Testing Procedure(s) had produced negative results, both the A and B Samples shall also be transferred to another Laboratory(-ies) selected by the Agency for the repetition of the Initial Testing Procedure(s) and, if needed, the performance of Confirmation Procedures. These analyses may be applied for all the Prohibited Substances and Prohibited Methods included in the Analytical Testing menu requested by the Agency or be limited to the class of Prohibited Substances or Prohibited Methods or to the Analytical Testing Procedure(s) that were associated with the Negative Finding, as determined by the Agency.
(iii) If the reason for the suspension was not related to the reporting of false Negative Findings and the Initial Testing Procedures had produced negative results, the Sample(s) shall be reported to the Agency as Negative Finding(s). These Samples shall be kept in the Laboratory under proper Laboratory Internal Chain of Custody and appropriate storage conditions until further notice by the Agency. The Laboratory shall inform the Agency of such actions including the provision of the Sample codes.
(4) Samples which had been opened and were undergoing analysis for the Initial Testing Procedure(s) at the time of the suspension:
(i) If the reason for suspension was not related to the reporting of false Negative Finding(s), the Laboratory shall continue to analyze the relevant Samples until all Initial Testing Procedures are completed. If the Initial Testing Procedures produce Negative Findings, the Laboratory shall report these findings to, and in a form designated by, the Agency, and these Samples shall be kept in the Laboratory under proper Laboratory Chain of Custody and appropriate storage conditions until further notice by the Agency. The Laboratory shall inform the Agency of such actions, including the provision of the Sample codes.
(ii) However, if the Initial Testing Procedure produced a Presumptive Adverse Analytical Finding, both the A and B Samples shall be transferred to another Laboratory(-ies) selected by the Agency for the performance of the A and, if needed, the B Confirmation Procedures.
(iii) If the suspension was caused by the reporting of false Negative Finding(s), then the Laboratory shall cease all Analytical Testing and have the A and B Samples transferred to another Laboratory(-ies) selected by the Agency for the performance of the A and, if needed, the B Confirmation Procedures.
(5) Samples which had been received at the Laboratory but had not been opened yet at the time of the suspension: these Samples shall be kept sealed in the Laboratory under proper Laboratory Chain of Custody and appropriate storage conditions until transfer to another Laboratory(-ies) selected by the Agency for Analytical Testing.
(6) Samples for which A or B Confirmation Procedures had been completed, but results of analysis had not been reported by the suspension date, and Samples which were undergoing A or B Confirmation Procedures at the time of the suspension: both the A and B Samples shall be transferred to another Laboratory(-ies) selected by the Agency for the repetition of the A and, if applicable, the B Confirmation Procedures.
(7) Samples which had been reported as an Adverse Analytical Finding based on the A Confirmation Procedure prior to the suspension:
(i) These Samples shall be kept in the Laboratory under proper Laboratory Internal Chain of Custody and appropriate storage conditions. Should a B Confirmation Procedure be requested during the suspension, both A and B Samples shall be transferred to another Laboratory(-ies) selected by the Agency for the A Confirmation Procedure to be performed again and for the performance of the B Confirmation Procedure, if applicable.
(ii) During a suspension or Analytical Testing Restriction period, the Laboratory shall continue to participate in the Agency EQAS program. The Agency may require the Laboratory to analyze additional blind EQAS samples or perform a Laboratory assessment, at any time and at the expense of the Laboratory, in order to evaluate the Laboratory's status.
(a) A laboratory whose HEAL accreditation has been revoked is ineligible to perform Analytical Testing of Samples. The Laboratory Internal Chain of Custody maintained by a revoked laboratory for stored Samples is valid until such time that arrangements can be made, in consultation with the Agency, for the transfer of relevant Samples to a Laboratory(-ies) selected by the Agency.
(b) A laboratory whose HEAL accreditation has been revoked shall arrange the transfer of Samples in the laboratory's custody to a Laboratory(-ies) selected by the Agency, respectively, within 30 days of being notified of the decision revoking its HEAL accreditation. In such circumstances, the Samples to be transferred shall be selected by the Agency. The laboratory transferring the Samples shall inform the Agency and provide the relevant Sample codes and the selected Laboratory(-ies). In addition, the revoked laboratory shall assist with the transfer of the relevant Sample data and records to the Laboratory(-ies) that have been selected to receive the Samples.
(c) The revoked laboratory shall transfer all Samples in its custody for which the Analytical Testing process has not been completed at the time of the Revocation. The Agency may also choose to transfer additional Samples retained in the laboratory in accordance with paragraphs (a) through (d) of Rule 6319, or other Samples for which it is the owner pursuant to the Testing and Investigations Standards and that had been analyzed and were in long-term storage at the time of the Revocation of the laboratory's HEAL accreditation. In addition, the Agency may identify and
The Agency shall lift the suspension of the Laboratory's HEAL accreditation or lift the Analytical Testing Restriction only when the Laboratory provides satisfactory evidence, as determined by the Agency in its sole discretion, that appropriate steps have been taken to remedy the noncompliance(s) that resulted in the suspension of the Laboratory's HEAL accreditation or the imposition of the Analytical Testing Restriction, and that proper measures have been implemented to satisfactorily address the condition(s) specified, if any, for reinstatement of HEAL accreditation.
(a) If a Laboratory whose HEAL accreditation has been suspended or which has been the subject of an Analytical Testing Restriction has not satisfactorily corrected the Laboratory Standards, Technical Document(s), or Technical Letter(s) noncompliance(s) that resulted in the suspension or Analytical Testing Restriction, or if the Agency identifies any additional Laboratory Standards, Technical Document(s) or Technical Letter(s) noncompliance(s) during an Agency Laboratory assessment conducted during the initial suspension or Analytical Testing Restriction period, either the suspension of the Laboratory's HEAL accreditation or the Analytical Testing Restriction may be further extended, or the Laboratory's accreditation shall be revoked, as determined by the Agency. The suspension or Analytical Testing Restriction period may be extended up to an additional 6 months, if the Laboratory provides valid explanation(s) for the delay, as determined by the Agency, in addressing the conditions to lift the suspension or Analytical Testing Restriction (including the submission of satisfactory corrective actions).
(b) If applicable, a delay in the delivery of the ISO/IEC 17025 accreditation to the Laboratory by the relevant accreditation body may also constitute grounds to extend the suspension of the Laboratory's HEAL accreditation.
(c) The decision to extend the suspension of a Laboratory's HEAL accreditation or the period of the Analytical Testing Restriction shall be made in the Agency's sole discretion.
(d) If, in accordance with the terms of the extension of the suspension of the Laboratory's HEAL accreditation or the terms of the extension of the Analytical Testing Restriction, the Laboratory provides evidence determined to be satisfactory by the Agency that all of the identified Laboratory Standards, Technical Document(s), or Technical Letter(s) noncompliance(s) have been corrected, the Laboratory's accreditation may be re-instated or the Analytical Testing Restriction may be lifted by decision of the Agency in its sole discretion.
(e) If the Laboratory has not provided evidence determined to be satisfactory by the Agency at the end of the extended suspension or extended Analytical Testing Restriction period, the Agency may Revoke the Laboratory's accreditation.
(f) The Agency will notify the Laboratory of its decision to revoke the Laboratory's HEAL accreditation in accordance with Rule 6530.
(a) If a laboratory whose HEAL accreditation has been revoked wishes to seek a new HEAL accreditation, it must apply for HEAL accreditation as a new laboratory in accordance with Rule 6110.
(b) When seeking a new HEAL accreditation, the laboratory may request that the Agency expedite the laboratory re-accreditation procedure, which may be approved by the Agency. To do so the laboratory shall provide the Agency, as part of its application for a new accreditation, information that it considers constitutes “exceptional circumstances” as justification for modifying the requirements of Rule 6110 to expedite the entry of the laboratory into, or shortening the duration of, the probationary phase of accreditation. At its sole discretion, the Agency may determine whether such modifications are justified, and which steps must be followed prior to granting approval to the laboratory to enter the probationary phase of accreditation.
(a) A Laboratory may decide to voluntarily cease its anti-doping Analytical Testing operations on either a temporary or permanent basis, despite not having been found to have committed any analytical failures or other Laboratory Standards noncompliance(s) and not having been subject to an Analytical Testing Restriction or suspension or Revocation of its HEAL accreditation.
(b) In such circumstances, the Laboratory shall inform the Agency and provide, in writing, the reason(s) for the cessation of anti-doping Analytical Testing operations as soon as the decision is made to cease its operations and, in any event, no later than 3 months prior to the date on which its decision shall take effect. The Laboratory shall also take all necessary measures to notify all its clients of the decision to cease its operations and to arrange, in consultation with its clients, to transfer Samples to another Laboratory(-ies) selected by the Agency, in accordance with Rule 6561 (temporary closure) or Rule 6562 (permanent closure).
(c) If a Laboratory voluntarily ceases its anti-doping Analytical Testing operations on a temporary basis, the Laboratory shall maintain satisfactory performance in the analysis of EQAS samples during the period of inactivity. The period of temporary cessation of Analytical Testing activities shall not exceed 6 months, with one possible extension of up to 6 months (as determined by the Agency). If the Laboratory is unable to resume its Analytical Testing operations within a 12-month period, the Agency shall revoke the Laboratory's accreditation, unless otherwise approved by the Agency.
(d) If a Laboratory decides to cease its operations on a permanent basis, the Laboratory shall assist the Agency with the transfer of relevant Sample data and records to the Laboratory(-ies) that have been selected by the Agency to receive the Samples.
(a) Compliance. Directors of Laboratories, their delegates and all Laboratory staff shall respect and comply with the Laboratory Standards and the Protocol. Laboratories and all of their staff shall maintain the confidentiality of all of data, items and information received in connection with Doping Control and Medication Control, including, but not limited to, Samples, Testing documentation, and communications with the Agency.
(b) Research in support of Doping Control.
(1) Laboratories shall participate in research programs, provided that the Laboratory Director is satisfied with their bona fide nature and the program(s) have received proper ethical approval, if applicable. The Laboratory
(2) Laboratories are expected to develop a research and development program to support and expand the scientific foundation of Doping Control. This research may consist of the development of new methods or technologies, the pharmacological characterization of a new doping agent, the characterization of a masking agent or method, and other topics relevant to the field of Doping Control.
(3) Laboratories are expected to conduct research on Equine (and other animal species) subjects.
(4) Laboratories shall follow institutional animal care and use guidelines and requirements regarding the use of animal subjects in research.
(5) Covered Horses who may undergo Doping Control Testing shall not be the subjects of drug administration studies that include Prohibited Substances or Prohibited Methods.
(c) Controlled substances. Laboratories are expected to comply with the relevant and applicable local, State, and Federal laws regarding the handling, storage, and discarding of controlled or illegal substances.
(d) Analysis. Laboratories shall not engage in any analysis or activity that undermines or is detrimental to the purposes of the Act.
(e) Analytical Testing for other anti-doping organizations. Laboratories shall accept Samples for Analytical Testing only if all the following conditions have been met:
(1) The Sample matrix is of the proper type (
(2) The Samples have been collected, sealed and transported to the Laboratory in accordance with procedures equivalent to the Testing and Investigations Standards; and
(3) The collection is a part of a legitimate anti-doping and medication control program, as determined by the Agency, or satisfies any of the conditions for Sample analysis indicated in Rule 6307.
(f) Analytical Testing for Covered Persons or those acting on their behalf. Laboratories shall not accept Samples directly from individual Covered Persons or from individuals or organizations acting on his or her behalf (unless approved in writing and in advance by the Agency and on the condition that Samples will be treated as Samples under the Protocol). Proceedings may be brought against the relevant Covered Person(s) if evidence of an Anti-Doping Rule Violation or a Controlled Medication Rule Violation emerges from such Sample analysis.
(g) Other analytical activities.
(1) Laboratories shall not provide analytical services in a Doping Control adjudication, unless specifically requested by the Agency or an adjudication body as part of a Results Management process.
(2) Laboratories shall not engage in analyzing commercial material or preparations (
(i) Specifically requested by the Agency or an adjudication body as part of a Results Management process;
(ii) If done as part of a legitimate anti-doping research program, as determined by the Agency; or
(iii) If a request is made by a Covered Person or his or her representative, a Laboratory may conduct the analysis if agreed in advance and in writing by the Agency, which may also specify conditions that must be followed prior to or during the analysis (
(3) Laboratories shall not provide results, documentation or advice that, in any way, could be used as an endorsement of products or services.
(4) Analytical activities performed outside the Act will not fall under Agency-accredited status of the laboratory and shall not negatively affect the Analytical Testing of Samples from the Agency. Laboratory test reports or other documentation or correspondence related to these other analytical activities shall not declare or represent that any such testing is covered under the Laboratory's Agency-accredited status.
(h) Sharing of knowledge.
(1) When information on new doping substance(s), method(s), or practice(s) is known to a Laboratory, such information shall be shared with the Agency within 60 days. When possible, Laboratories shall share information with the Agency regarding the detection of potentially new or rarely detected doping agents as soon as possible. Immediately after having been notified of the Use of a new substance or method as a doping agent, the Agency will inform all Laboratories.
(2) The Laboratory Director or staff shall participate in developing standards for best practice and enhancing uniformity of Analytical Testing in the HEAL-accredited laboratory system.
(i) Duty to preserve the integrity of the Program contemplated in the Act and to avoid any detrimental conduct.
(1) Laboratory employees and consultants shall not engage in conduct or activities that undermine or are detrimental to the anti-doping and medication control program contemplated in the Act. Such conduct includes, but is not limited to, fraud, embezzlement, perjury, or any other conduct that might cast doubt on the integrity of the anti-doping and medication control program.
(2) Laboratory employees and consultants shall maintain the confidentiality of all of data, items and information received in connection with Doping Control and Medication Control, including, but not limited to, Samples, Testing documentation, and communications with the Agency.
(3) No employee or consultant of any Laboratory may (directly or indirectly) provide counsel, advice, or information to Covered Persons or others regarding techniques or methods used to mask or avoid detection of, alter metabolism of, or suppress excretion of a Prohibited Substance or its Metabolite(s), or Marker(s) of a Prohibited Substance or Prohibited Method in order to avoid an Adverse Analytical Finding.
(4) No employee or consultant of any Laboratory may (directly or indirectly) provide information about a Test Method to a Covered Person (or to any individual or organization acting on his or her behalf) that could be used to avoid the detection of doping. Instead, any such Covered Person (or individual or organization) will be referred to the Agency.
(5) No employee or consultant of any Laboratory may (directly or indirectly) assist a Covered Person in avoiding collection of a Sample (
(6) If an employee or consultant of a Laboratory is requested to provide evidence in anti-doping proceedings, he or she is expected to provide independent, scientifically valid expert testimony.
(7) Laboratories shall not issue any statements related to their analytical processes or findings, unless otherwise provided in the Protocol or as directed by the Agency or Authority. The responsibility for evaluation of these findings with further action and publication, if considered necessary, shall be the sole responsibility of the Agency.
(j) Breach and enforceability.
(1) A failure to respect any of the provisions of this Code of Ethics may result in a Laboratory being subject to Disciplinary Proceedings instituted by the Agency to either suspend or revoke its HEAL accreditation or its Agency approval, as applicable.
(2) In addition, a failure to respect any of the provisions of this Code of Ethics may result in staff of a Laboratory being subject to disciplinary action by the Laboratory, resulting in consequences beyond those stipulated under the Laboratory Standards, including potential termination of employment or, where applicable, the imposition of criminal charges.
(a) Laboratories must receive a minimum score of 10 points annually:
(1) 5 points for each peer-reviewed manuscript;
(2) 5 points for the production of educational materials;
(3) 5 points for each funded research project;
(4) 5 points for hosting hands-on training workshop for all HEAL Laboratories; and
(5) 2 points for each Laboratory (internal) method development.
(b) The validation or implementation of established anti-doping methods with only minor adjustments, or the repetition of research previously published or presented by others, is not sufficient to be considered as a research and development activity.
The Arbitration Procedures set forth in this Rule 7000 Series shall apply to all adjudications arising out of the Rule 3000 Series.
(a) Subject to Rule 3249, Anti-Doping Rule Violations arising out of the Rule 3000 Series and violations of Rule 3229 (together, “EAD Violations”) shall be adjudicated by an independent arbitral body (the “Arbitral Body”) in accordance with the Rule 3000 Series and these Arbitration Procedures. The Arbitral Body may also adjudicate any other matter referred to it under the Protocol, and any other matter that might arise from time to time under the Protocol that the Agency considers should be determined by the Arbitral Body. The Arbitral Body is selected by mutual agreement of the Authority and the Agency. The Arbitral Body will ordinarily assign a sole arbitrator to hear a case concerning an EAD Violation. However, the Arbitral Body may assign 3 arbitrators to hear a case involving an EAD Violation upon request by the Agency, based on the nature or complexity of the case.
(b) Subject to Rule 3349, Controlled Medication Rule Violations arising out of the Rule 3000 Series, violations of Rule 3329, and violations of Rule 3510 (ECM or Other Violations) shall be adjudicated by an adjudication panel (the Internal Adjudication Panel) in accordance with the Rule 3000 Series and these Arbitration Procedures. The Internal Adjudication Panel may also adjudicate any other matter referred to it under the Protocol, and any other matter that might arise from time to time under the Protocol that the Agency considers should be determined by the Internal Adjudication Panel. The Internal Adjudication panel is selected by mutual agreement of the Authority and the Agency. The Internal Adjudication Panel will ordinarily assign a single Internal Adjudication Panel member to adjudicate a case involving an ECM or Other Violation; in exceptional circumstances only, the Internal Adjudication Panel may assign 3 members to adjudicate a case upon request by the Agency.
(c) Final decisions issued by the Arbitral Body or Internal Adjudication Panel are subject to review as specified in section 3058 of the Act.
(a) The Arbitral Body shall have a pool of arbitrators consisting of a minimum of 5 members appointed by mutual agreement of the Authority and the Agency.
(b) Arbitrators shall be appointed for 4-year terms. Candidate arbitrators shall complete an application in a form designated by the Authority.
(c) Candidates shall not be or have been in the previous 2 years an officer, director, trustee, employee, consultant, or official, or be in a policy making position for any Equine Constituencies or the Agency, except that this requirement does not apply to former State Racing Commission officials or employees.
(d) Candidate arbitrators shall be required to submit on request to a background check before appointment and shall commit in writing to accept appointment to all cases to which they are selected except:
(1) when they have been involved in the Provisional Hearing for the matter;
(2) when they have an actual or perceived conflict of interest; or
(3) for personal hardship (candidates shall agree not to decline appointment for personal hardship in more than 2 cases in any 12-month period, except in exceptional circumstances).
(e) If an arbitrator dies, resigns, becomes incapacitated during the arbitrator's term (legal incapacity is not required), or is removed for an ethical breach or deficiency in carrying out his or her duties, a new arbitrator shall be selected and appointed for a full 4-year term, following the procedures set forth in this Rule 7030.
(a) The Internal Adjudication Panel shall consist of impartial members appointed by mutual agreement of the Authority and the Agency to hear ECM and Other Violations (“IAP members”). The Internal Adjudication Panel shall have a pool of IAP members. The Authority and the Agency may appoint as many IAP members as they consider necessary to the pool of IAP members in accordance with the Arbitration Procedures.
(b) Candidate IAP members shall be required to submit on request to a background check before appointment and shall commit in writing to accept appointment to all cases to which they are selected except:
(1) when they have been involved in the Provisional Hearing for the matter;
(2) when they have an actual or perceived conflict of interest; or
(3) for personal hardship (candidates shall agree to not decline appointment for personal hardship in more than 2 cases in any 12-month period, except in exceptional circumstances).
(c) IAP members are appointed for 4-year terms.
(d) Apart from appointment to the Internal Adjudication Panel, IAP members shall not have any business or economic interest with a party in a case.
(e) If an IAP member dies, resigns, becomes incapacitated during the IAP member's term (legal incapacity is not required), or commits an ethical breach or deficiency, the Authority or the Agency may remove the IAP member from the Internal Adjudication Panel. The Agency will publish a list of members of the Internal Adjudication Panel on its website.
(f) A person is not precluded from serving as an IAP member concomitantly with his or her service as an association or state steward, provided that doing so does not put that him or her in a position of actual or perceived conflict of interest.
Arbitrators and IAP members shall receive at least 2 hours of continuing education each year on issues related to
(a) EAD Violations. Unless Rule 3249 applies, if the Agency charges a Covered Person with an EAD Violation, the Agency shall initiate proceedings with the Arbitral Body. If a Covered Person is charged with both an EAD Violation and an ECM or Other Violation, the procedures for EAD Violations apply. The parties to the proceeding shall be the Agency and the Covered Person(s) charged. The Owner and the Authority shall be invited to join in the proceedings as observers and, if accepted as such, receive copies of the filings in the case. In the context of EAD Violation cases, the Owner may be permitted to intervene and make written or oral submissions.
(b) ECM and Other Violations. Unless Rule 3349 applies, if the Agency charges a Covered Person with an ECM or Other Violation, the Agency shall initiate proceedings with the Internal Adjudication Panel. The Covered Person may request a hearing before the Internal Adjudication Panel. However, the Internal Adjudication Panel may decide in its sole discretion to determine the matter based solely on the written submissions without a hearing, if the Internal Adjudication Panel considers itself sufficiently well-informed to render a decision on the written submissions alone. The parties to the proceeding shall be the Agency and the Covered Person(s) charged. The Owner and the Authority shall be invited to join in the proceedings as observers and, if accepted as such, receive copies of the filings in the case. In the context of ECM and Other Violation cases, the Owner shall not be permitted to intervene or make written or oral submissions.
(c) Only the following persons may attend hearings as the Owner of the Covered Horse, unless otherwise agreed by the hearing panel:
(1) if the Covered Horse is owned by one individual, that individual;
(2) if the Covered Horse is owned by more than one individual or by a partnership, corporation, limited liability company, syndicate, or other association or entity, either or both the Designated Owner or Managing Owner.
If after charging a Covered Person with a violation, the Agency has cause to bring any new or different charge(s) against the Covered Person, the charge shall be made in writing and filed with the other party or parties and (as applicable) the Internal Adjudication Panel or Arbitral Body. The arbitrator(s) or IAP member(s) appointed to hear the case shall decide whether the charges should be consolidated and heard in the same proceedings or whether the new or additional charge(s) should be heard separately.
(a) At the request of any party, any time period set forth in the Arbitration Procedures may be shortened by the arbitrator(s) or IAP member(s) if doing so is reasonably necessary to resolve any Covered Person's or Covered Horse's eligibility before a Covered Horserace, while continuing to protect the right of a Covered Person to a fair process.
(b) Pursuant to Rule 3262 or Rule 3362, the Agency may, in its sole discretion, shorten any deadlines within the Arbitration Procedures proportionately to ensure resolution prior to a Covered Horserace.
(c) If the Agency does not agree to the process being expedited, the arbitrator(s) or IAP member(s), as applicable, shall determine whether the adjudication process shall be expedited and the schedule pursuant to which the process shall proceed.
(a) An arbitrator or IAP member shall have the authority to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the applicable rules.
(b) A party must object to the jurisdiction of the arbitrator(s) or IAP member(s) or to the arbitrability of a charge by the Agency no later than the filing of the answering statement to the charge that gives rise to the objection. The arbitrator(s) or IAP member(s) may rule on such objections as a preliminary matter or as part of the final decision, in his or her sole discretion.
Matters involving more than one Covered Person may, in the Agency's discretion, be consolidated into a single matter. If an EAD Violation is alleged by the Agency against any of the Covered Persons who are parties in the consolidated matter, the process for EAD Violations will be followed.
(a) Hearings regarding EAD Violations shall take place in person, unless the arbitrator(s) order(s) the hearing (or parts thereof) to take place by use of an audio-visual teleconferencing system.
(b) Hearings regarding ECM or Other Violations shall take place by use of an audio-visual teleconferencing system, unless the IAP member(s) order(s) the hearing to take place in person.
(c) In-person hearings shall be held in the United States at a location determined by the arbitrator(s) or IAP member(s).
Any arbitrator(s) or IAP member(s) appointed pursuant to Rule 7130 shall be subject to disqualification for the reasons specified in Rule 7140.
(a) The arbitrator(s) shall be appointed in the following manner: immediately after the initiation of a proceeding by the Agency as set forth in Rule 7060, the Arbitral Body shall appoint a single arbitrator or 3 arbitrators from the pool of arbitrator(s) on a rotating basis, after confirming that the arbitrator(s) will not decline the appointment due to personal hardship. The arbitrator(s) adjudicating the Provisional Hearing shall not serve as an arbitrator determining the merits of the charge against the Covered Person. The Arbitral Body shall communicate to the parties the name of the arbitrator(s) appointed to hear the matter within 3 days of initiation by the Agency.
(b) The IAP member(s) shall be appointed in the following manner: Immediately after the initiation of a proceeding by the Agency as set forth in Rule 7060, the Internal Adjudication Panel shall appoint a single IAP member (or in exceptional cases three IAP members) from the pool of IAP members on a rotating basis, after confirming that the IAP member(s) will not decline the appointment due to personal hardship. The IAP member(s) adjudicating the Provisional Hearing shall not serve as the IAP member(s) determining the merits of the charge against the Covered Person. The Internal Adjudication Panel shall communicate to the parties the name of the IAP member(s) appointed to hear the matter within 3 days of initiation by the Agency.
(c) Once appointed, the arbitrator(s) and IAP member(s) shall receive an electronic copy of the charge letter, Arbitration Procedures, Rule 3000 Series and related rule series, and the Billing Standards.
(a) Each arbitrator and IAP member appointed to hear a particular case shall
(b) Upon objection of a party to the continued service of an arbitrator or IAP member, the Arbitral Body or Internal Adjudication Panel (as applicable) shall determine whether the arbitrator or IAP member is evidently partial, and (if so) the arbitrator or IAP member shall be disqualified. The Arbitral Body or Internal Adjudication Panel shall inform the parties of its decision, which shall be final and not subject to review or any other challenge.
Once appointed, no party and no Person acting on behalf of any party shall communicate unilaterally concerning the case with any arbitrator or IAP member appointed to hear the case. All communications with the Arbitral Body or Internal Adjudication Panel or any arbitrator or IAP member concerning the case shall include the other party or parties.
If for any reason following assignment to the case an arbitrator or IAP member becomes unable to perform his or her duties in a particular case, the Arbitral Body or Internal Adjudication Panel (as applicable) may fill the vacancy on a rotating basis as described in these rules.
(a) For matters involving an alleged EAD Violation arising from an Adverse Analytical Finding, each Covered Person's pre-hearing submission must be filed with the Arbitral Body on or before 14 days after submitting a request for a hearing (or after the deadline to make such request expires), and the Agency's pre-hearing submission must be filed with the Arbitral Body on or before 14 days after the last Covered Person's pre-hearing submission. There shall be no reply pre-hearing submission unless ordered otherwise by the arbitrator(s), but each party may present rebuttal evidence at the hearing.
(b) For matters involving an alleged EAD Violation involving a non-analytical violation or a violation of Rule 3229, the Agency's initial pre-hearing submission must be filed with the Arbitral Body on or before 14 days after the last Covered Person requests a hearing (or after the deadline to make such request expires). Each Covered Person's pre-hearing submission must be filed with the Arbitral Body on or before 14 days after the Agency's initial pre-hearing submission, and the Agency's reply pre-hearing submission must be filed with the Arbitral Body seven 7 days after the last Covered Person's pre-hearing submission.
(c) A Covered Person's pre-hearing submission shall include a brief not to exceed 30 double-spaced single-sided pages and shall include all exhibits, schedules, witness statements, expert reports, and all other evidence (except summaries and demonstrative aides) that the Covered Person intends to rely upon at the hearing. The Covered Person's pre-hearing submission shall include a designation of witnesses providing the identity of witnesses, or name of the organization (in the case of an organization representative) expected to be called to testify at the hearing, along with signed statements for each of those witnesses. For expert witnesses, the pre-hearing submission shall include a C.V. and expert report, identifying all opinions to which they will testify and the facts and scientific methods upon which those opinions are based, as well as to identify all scientific treatises, studies, or articles on which the expert relies in rendering their opinion(s), for each expert included in the witness designations.
(d) The Agency's initial pre-hearing submission shall include a brief not to exceed 30 single-sided double-spaced pages for each Covered Person charged in the case and shall include all exhibits, schedules, witness statements, expert reports, and all other evidence (except impeachment evidence, summaries, and demonstrative aides) that the Agency intends to rely upon at the hearing. The Agency's initial pre-hearing submission shall include a designation of witnesses providing the identity of witnesses, or name of the organization (in the case of an organization representative) expected to be called to testify at the hearing, along with signed statements for each of those witnesses. For expert witnesses, the initial pre-hearing submission shall include a C.V. and expert report, identifying all opinions to which the expert will testify, and the facts and scientific methods upon which those opinions are based. The submission shall identify all scientific treatises, studies, or articles on which the expert relies in rendering his or her opinion(s), for each expert included in the witness designations. The Agency's reply pre-hearing submission shall include all additional evidence upon which it intends to rely for rebuttal (except impeachment evidence, summaries, and demonstrative aides) and a reply brief not to exceed 15 single-sided double-spaced pages for each Covered Person charged in the case.
(e) Each party is responsible for updating its disclosures as such information becomes available. If a party should have submitted evidence in the party's pre-hearing submission but did not submit such evidence, the arbitrator(s) shall not admit such evidence absent a showing of good cause.
(f) The hearing should take place no more than 60 days from the date the last Covered Person requested a hearing in a particular case.
(g) At the request of any party, or at the discretion of the arbitrator(s), the arbitrator(s) may schedule, as soon as practicable, a preliminary hearing with the parties or their representatives. The preliminary hearing shall be conducted by telephone or video conference. During the preliminary hearing, the parties and the arbitrator(s) shall discuss any preliminary matters to ensure compliance with the procedures herein.
(h) Upon a showing of exceptional circumstances, the arbitrator(s) may extend any of the deadlines set forth in Rule 7170 for the minimum time necessary to address the circumstance. If all parties agree to an alternative schedule in a particular case, the arbitrator(s) shall alter dates accordingly.
(i) If any of the dates described in Rule 7170 fall on a weekend or a Federal holiday, they shall be moved to the next business day.
(a) Subject to paragraph (b) below, the IAP member(s) may determine to hold a hearing and require written submissions to be filed prior to the hearing, or to require written submissions and determine the matter based solely on the written submissions without a hearing. The IAP member(s) shall have wide discretion to determine the conduct of the proceedings in order to ensure that they are commensurate to the violations at issue. The IAP member(s) may issue directions to the parties as necessary. The IAP member(s) shall also have discretion to amend any time limits as they see fit in the circumstances, but any extension of deadlines shall be granted only for the minimum time necessary to address the circumstance, as all matters before the IAP member(s) shall proceed expeditiously.
(b) A person charged with a violation may request that the IAP member waive the requirement that written submissions be filed by the parties, and permit the person charged to make an
(c) If the IAP member(s) order the parties to produce written submissions, and the matter involves an alleged ECM or Other Violation arising from an Adverse Analytical Finding, each Covered Person's submission must be filed with the Internal Adjudication Panel on or before 7 days after submitting a request for a hearing before the Internal Adjudication Panel (or after the deadline to make such request expires), and the Agency's submission must be filed with the Arbitral Body on or before 7 days after the last Covered Person's submission. There shall be no reply submissions unless ordered otherwise by the IAP member(s).
(d) If the IAP member(s) order the parties to produce written submissions, and the matter involves a non-analytical ECM Violation or Other Violation, the Agency's initial submission must be filed with the Internal Adjudication Panel on or before 7 days after the last Covered Person requests a hearing before the Internal Adjudication Panel (or after the deadline to make such request expires). Each Covered Person's submission must be filed with the Arbitral Body on or before 7 days after the Agency's initial submission. There shall be no reply submissions unless ordered otherwise by the IAP member(s).
(e) If the IAP member(s) order the parties to produce written submissions, the submissions of each party shall ordinarily not exceed 15 single-sided double-spaced pages and shall include all supporting documentation on which the party relies. If any party intends to call a witness or expert to testify at the hearing, a signed witness statement and expert report (as applicable) shall be filed with the written submission.
(f) If any of the dates described in Rule 7180 fall on a weekend or a Federal holiday, the date shall be moved to the next business day.
Information shall be exchanged electronically, unless otherwise agreed by the parties. The arbitrator(s) and IAP member(s) are authorized to resolve any disputes concerning the exchange of information between the parties consistent with the expedited nature of the proceedings.
The Arbitral Body and Internal Adjudication Panel (and their respective members) shall maintain the confidentiality of the proceedings. The arbitrator(s) or IAP member(s) may proceed without the participation of any party or representative who, after due notice, fails to be present or make a submission. If a party defaults, the arbitrator(s) or IAP member(s) may require the party who is present to submit such evidence and documents as the arbitrator(s) or IAP member(s) may require for the making of a final decision. Hearings are not open to the media or the public. However, the arbitrator(s) or IAP member(s) may permit one or more third parties to attend the hearing.
Any party may be represented by legal counsel or other representative. The legal counsel or other representative shall provide a letter of representation notifying the other party and the Arbitral Body or Internal Adjudication Panel (as applicable) of his or her name, phone number, email, and mailing address. A party shall be bound by the statements made and positions taken by its legal counsel or other representative.
All testimony at hearings shall be taken under oath or affirmation.
Any party desiring a stenographic record of all or a portion of the hearing shall notify the other parties of the request at least 7 days in advance of the start of the hearing, unless ordered otherwise by the arbitrator(s) or IAP member(s). The Agency shall identify the court reporter to be used for transcription services, and an electronic copy of the transcript shall be provided to the arbitrator(s) or IAP member(s) (as applicable) and to the parties. Parties are responsible for the costs of any transcript they request.
All proceedings shall take place in English. Any party wishing to have an interpreter present during proceedings shall make all arrangements directly with the interpreter. Interpreters shall have no prior relationship with a party or have any interest in the proceeding, and the arbitrator(s) or IAP member(s) (as applicable) must approve the interpreter in advance. The costs of the interpreter shall be split between the parties. Any document that is not in English shall be officially translated by a certified translator paid for by the party offering or relying upon the document.
(a) The Agency shall present evidence to support its charge. The Covered Person(s) charged shall then present evidence to support the Covered Person(s) defense. The Agency is then entitled to present rebuttal evidence. Witnesses for each party shall also submit to questions from the arbitrator(s) or IAP member(s) and the adverse party. The arbitrator(s) or IAP member(s) may vary this procedure, provided that the parties are treated equally and that each party has the right to be heard and is given a fair opportunity to present its case.
(b) The arbitrator(s) or IAP member(s) shall have the power to require the sequestration of any witness, other than a party or other essential person, during the testimony of any other witness. It shall be within the discretion of the arbitrator(s) or IAP member(s) to determine the propriety of the attendance of any other person other than a party and its representatives and the observers identified in Rule 7060.
(c) The arbitrator(s) or IAP member(s) may direct the order of proof, bifurcate proceedings, and direct the parties to focus their presentations on issues the decision of which could dispose of all or part of the case.
(d) The parties may agree to waive oral hearings.
(a) The parties may offer such evidence as is relevant and material to the dispute and shall produce such evidence as the arbitrator(s) or IAP member(s) may deem necessary to make a determination in a case.
(b) Prior to or during the hearing, a party may also request the arbitrator(s) or IAP member(s) to order production of any document which the party believes to be relevant and material to the dispute. The arbitrator(s) or IAP member(s) shall have discretion to grant or reject such a request as they see fit in the circumstances. However, requests for discovery and wide-ranging or otherwise disproportionate document requests shall not be permitted.
(c) The arbitrator(s) or IAP member(s) may retain an expert or seek independent evidence only if (i) agreed to by all of the parties and (ii) the parties or the Agency agree(s) to pay for the cost of such expert or independent evidence. The parties shall have the right to examine any expert retained by the
(d) The arbitrator(s) or IAP member(s) shall determine the admissibility, relevance, and materiality of the evidence offered, including hearsay evidence, and may exclude evidence deemed cumulative or irrelevant. Conformity to legal rules of evidence shall not be necessary, but the Federal Rules of Evidence may be used for guidance. Evidentiary and other rules for proving violations of the Protocol are also set out in Rule 3120.
(e) The arbitrator(s) or IAP member(s) shall apply relevant principles of legal privilege, including those involving the confidentiality of communications between an attorney and client and the investigative privilege.
(f) The arbitrator(s) or IAP member(s) may issue subpoenas for witnesses, documents, information, or other evidence upon the request of any party, keeping in mind the expedited nature of the proceedings and the procedures set forth in Rules 7170 and 7180. The arbitrator(s) or IAP member(s) shall not issue a subpoena for a deposition, because depositions (along with formal written discovery in civil litigation) are not in keeping with the expedited nature of the Arbitration Procedures.
If the arbitrator(s) or IAP member(s) consider it necessary to make an inspection in connection with a proceeding, the arbitrator(s) or IAP member(s) shall so advise the parties. The arbitrator(s) or IAP member(s) shall set the date and time that shall not delay the procedures in Rules 7170 and 7180 and shall notify the parties. Any party who so desires may be present at such an inspection. If one or all parties are not present at the inspection, the arbitrator(s) or IAP member(s) shall make an oral or written report to the parties and afford them an opportunity to comment.
The arbitrator(s) or IAP member(s) may make interim rulings and orders and may order whatever interim measures they deem necessary to provide any party an immediate protection of rights.
Hearings to resolve challenges to Provisional Suspensions shall be held in accordance with Rule 3247 or 3347, as applicable. Hearsay evidence shall be admissible in a Provisional Hearing.
Subject to Rule 7310, the arbitrator(s) or IAP member(s) shall declare the hearing closed after the conclusion of closing arguments. Post-hearing briefs shall not be permitted, except as ordered by the arbitrator(s) or IAP members(s) in complex or otherwise exceptional cases. The time limit to issue the final decision shall commence upon the closing of the hearing.
To avoid manifest injustice, the hearing may be reopened on the initiative of the arbitrator(s) or IAP member(s), or upon application of a party, at any time before the final decision is made. At the request of a party, the arbitrator(s) or IAP member(s) will determine if the applicable standard has been met to reopen the hearing.
Any party who proceeds with the adjudication under these rules after knowledge that any provision or requirement of these rules has not been complied with and who fails to state an objection in writing shall be deemed to have waived the right to object.
(a) Any papers, notices, or process necessary or proper for the initiation or continuation of a proceeding under these rules, and any final decision made under these rules may be served by mail or email addressed to the party or its representative at the last known address or by personal service in or outside the state where the arbitration is to be held.
(b) Unless otherwise instructed by the Arbitral Body or Internal Adjudication Panel, any documents submitted by any party to the Arbitral Body or Internal Adjudication Panel shall simultaneously be provided to the other party or parties to the proceeding.
A final decision shall be in writing and signed by the arbitrator(s) or IAP member(s). The arbitrator(s) shall issue the final decision on or before 14 days after the close of the hearing. The IAP member(s) shall issue the final decision on or before 14 days after the last written submission contemplated in Rule 7180 or after the close of the hearing (as applicable). The 14-day time limit may be extended if additional time is needed due to the complexity of the case or exceptional circumstances.
Arbitrators and IAP members may grant any remedy or relief authorized by the Act or the Rules issued pursuant to the Act.
If the parties settle the case during the course of the proceedings in accordance with Rule 3249 or 3349, the Arbitral Body or the Internal Adjudication Panel shall issue an order terminating the proceedings.
(a) The final decision shall be served on all parties by first class mail, email, or personal service. Interested Parties shall also be notified of the final decision.
(b) The final decision shall be Publicly Disclosed and shall not be considered confidential, unless provided otherwise in the applicable rules.
Within 7 days of the issuance of a final decision, any party, upon notice to the other parties, may request the Arbitral Body or Internal Adjudication Panel to correct any clerical, typographical, or computational errors in the final decision. The other parties shall ordinarily be given 5 days to respond to the request.
The Arbitral Body and Internal Adjudication Panel (as applicable) shall, upon the written request of a party, furnish to the party, at the party's expense, certified copies of any papers in the Arbitral Body's or Internal Adjudication Panel's possession that may be required in judicial proceedings relating to the proceeding. If the matter is subject to review by an administrative law judge in accordance with the Act, the Arbitral Body and Internal Adjudication Panel (as applicable) shall furnish copies of any documents requested by the administrative law judge to such judge in connection with that proceeding.
The final decision of the Arbitral Body or Internal Adjudication Panel is subject to review in accordance with section 3058 of the Act. Notwithstanding any provision set forth in these Arbitration Procedures, nothing herein shall alter the standards of review set forth in the Act.
(a) Arbitration is intended to be the exclusive remedy in all cases arising under the Rule 3000 Series, subject to appeal as described in the Rule 3000 Series and the Act.
(b) No civil action commenced by a party relating to the subject matter of the proceeding under the Arbitration Procedures shall be deemed a waiver of any party's right to adjudicate that party's case under the Arbitration Procedures.
(c) Neither the Arbitral Body nor the Internal Adjudication Panel (nor any arbitrator or IAP member) in a proceeding under these rules is a necessary party in judicial proceedings relating to that proceeding.
(d) Parties to a proceeding under the Arbitration Procedures shall be deemed to have consented that a final decision may be entered in any Federal or State court having jurisdiction, unless the party seeks review pursuant to section 3058 of the Act.
(e) None of the Authority, Agency, Arbitral Body, Internal Adjudication Panel, arbitrators, or IAP members shall be liable to any party for any act or omission in connection with any proceedings conducted under these Arbitration Procedures.
(a) The Arbitral Body shall prescribe filing and other administrative fees and service charges to compensate it for the cost of providing administrative services. The fees in effect when the fee or charge is incurred shall be applicable. The Arbitral Body's filing fee and any other administrative fee or charge shall be split equally amongst the parties, and the Agency's portion shall be paid by the Authority.
(b) The Arbitral Body shall split the costs of the proceeding before an arbitrator (including arbitrator fees and expenses, but excluding attorney, witness, and party expert fees) equally amongst the parties with the Agency's portion being paid by the Authority. The Arbitral Body, in its discretion, may require advanced costs be paid by the parties to ensure payment is made.
(c) A party's failure to pay costs or advanced costs by the deadlines imposed by the Arbitral Body will, if not rectified immediately, result in a waiver of charges or defenses to charges (as applicable) and result in imposition and publication of sanctions requested by the Agency.
(d) The Authority shall be solely responsible for the administrative costs stemming from IAP member-resolved cases as described in the Arbitration Procedures.
The expenses of witnesses for any party shall be paid by the party producing such witnesses. Each party shall bear its own attorneys' fees and other expenses.
(a) Arbitrators shall be compensated and reimbursed in a manner consistent with the Billing Standards.
(b) If there is disagreement concerning the terms of compensation, the disagreement shall be resolved as described in the Billing Standards.
(c) Any arrangement for the compensation or reimbursement of an arbitrator shall be made through the Arbitral Body and not directly between the parties and the arbitrator.
(d) Arbitrator fees and IAP member fees shall be paid in accordance with Rule 7420.
The Rule 1000-9000 Series shall be considered part of the agreement to arbitrate and in all instances the arbitrators and IAP members are required to apply the provisions of that arbitration agreement and conform to its terms.
By direction of the Commission.
Board of Governors of the Federal Reserve System (Board).
Final rule.
The Board is adopting a final rule (final rule) to implement the Adjustable Interest Rate (LIBOR) Act. The final rule establishes benchmark replacements for contracts governed by U.S. law that reference certain tenors of U.S. dollar LIBOR (the overnight and one-, three-, six-, and 12-month tenors) and that do not have terms that provide for the use of a clearly defined and practicable replacement benchmark rate following the first London banking day after June 30, 2023. The final rule also provides additional definitions and clarifications consistent with the Adjustable Interest Rate (LIBOR) Act.
The final rule is effective February 27, 2023.
David Bowman, Senior Associate Director, 202-452-2334, Division of Monetary Affairs; Lucy Chang, Special Counsel, 202-475-6331, or Cody Gaffney, Senior Attorney, 202-452-2674, both of the Legal Division; or Lesley Chao, Lead Financial Institution Policy Analyst, 202-974-7063, Division of Supervision and Regulation. For users of TTY-TRS, please call 711 from any telephone, anywhere in the United States.
LIBOR, formerly known as the London Interbank Offered Rate, is an interest rate benchmark that was the dominant reference rate used in financial contracts in recent decades and remains in extensive use today, serving as the benchmark rate in more than $200 trillion worth of contracts worldwide.
LIBOR is intended to reflect the rate at which large banks can borrow wholesale funds on an unsecured basis. LIBOR is calculated based on submissions contributed by a panel of large, globally active banks (LIBOR panel banks). Until December 31, 2021, LIBOR's administrator calculated and published LIBOR each London business day for five currencies (USD, GBP, EUR, CHF, and JPY) and seven borrowing periods, known as tenors (overnight, one week, one month, two months, three months, six months, and twelve months).
Over the past decade, financial regulators have expressed growing concern regarding the structural vulnerabilities and robustness of LIBOR.
Despite increased regulatory oversight and efforts to improve LIBOR, confidence in LIBOR continued to wane, and financial regulators and market participants began to search for alternative reference rates and develop plans for a transition away from LIBOR. In the United States, this effort has been led by the Alternative Reference Rates Committee (ARRC), a group of private-sector firms convened jointly by the Board and the Federal Reserve Bank of New York (FRBNY) in 2014.
In July 2017, following the departure of some panel banks, the FCA announced that the remaining LIBOR panel banks had voluntarily agreed to sustain LIBOR through the end of 2021 to facilitate an orderly transition away from LIBOR.
To allow most legacy USD LIBOR contracts governed by non-U.S. law to mature without disruption, the FCA also announced that the panels for the
In response to the planned cessation of USD LIBOR, U.S. financial regulators have encouraged market participants to transition away from USD LIBOR as a reference rate as soon as practicable. For example, in November 2020, the Office of the Comptroller of the Currency (OCC), the Board, and the Federal Deposit Insurance Corporation (FDIC) issued an interagency statement stating that banking organizations generally should not enter into new contracts referencing USD LIBOR after December 31, 2021.
Notwithstanding governmental and private-sector efforts to encourage market participants to prepare for the cessation of USD LIBOR, there are a significant number of existing contracts that reference USD LIBOR. Of particular concern are so-called “tough legacy contracts,” which are contracts that reference USD LIBOR and will not mature by June 30, 2023, but which lack adequate fallback provisions providing for a clearly defined or practicable replacement benchmark following the cessation of USD LIBOR. To address these tough legacy contracts, multiple states adopted legislation, initially proposed by the ARRC, to provide a statutory remedy for financial contracts governed by the laws of the enacting states that reference USD LIBOR, will not mature until after USD LIBOR ceases or becomes nonrepresentative, and have no effective means to replace USD LIBOR after it ceases or becomes nonrepresentative.
Recognizing the need for a uniform, nationwide solution for replacing references to USD LIBOR in tough legacy contracts, on March 15, 2022, Congress enacted the Adjustable Interest Rate (LIBOR) Act (the “LIBOR Act”) as part of the Consolidated Appropriations Act, 2022.
The LIBOR Act broadly distinguishes between three categories of LIBOR contracts with different types of fallback provisions. For these purposes, the LIBOR Act defines “LIBOR contract” broadly to include any obligation or asset that, by its terms, uses the overnight, one-month, three-month, six-month, or 12-month tenors of USD LIBOR as a benchmark.
The first category of LIBOR contracts encompasses contracts that contain fallback provisions identifying a specific benchmark replacement that is not based in any way on any USD LIBOR values (except to account for the difference between LIBOR and the benchmark replacement) and that do not require any person (other than a benchmark administrator) to conduct a poll, survey, or inquiries for quotes or information concerning interbank lending or deposit rates.
The second category of LIBOR contracts encompasses (i) contracts that contain no fallback provisions, as well as (ii) LIBOR contracts with fallback provisions that do not identify a determining person (as described below) and that only (A) identify a benchmark replacement that is based in any way on USD LIBOR values (except to account for the difference between LIBOR and the benchmark replacement) or (B) require that a person (other than a benchmark administrator) conduct a poll, survey, or inquiries for quotes or information concerning interbank lending or deposit rates.
For contracts that fall into this second category, the LIBOR Act provides a series of statutory protections, including that no person shall be subject to any claim or cause of action in law or equity or request for equitable relief, or have liability for damages, arising out of the use of the Board-selected benchmark replacement as a benchmark replacement.
The third category of LIBOR contracts encompasses LIBOR contracts that contain fallback provisions authorizing a determining person to determine a benchmark replacement.
Although the LIBOR Act does not require a determining person to select the Board-selected benchmark replacement as the benchmark replacement for a LIBOR contract, the statute provides a series of statutory protections for any determining person who does so, including that a determining person generally shall not be subject to any claim or cause of action in law or equity or request for equitable relief, or have liability for damages, arising out of the selection of the Board-selected benchmark replacement as a benchmark replacement.
Where the Board-selected benchmark replacement becomes the benchmark replacement for a LIBOR contract (either by operation of law or through the selection of a determining person), the LIBOR Act contemplates that certain conforming changes to a LIBOR contract may be necessary to facilitate the transition from USD LIBOR to the Board-selected benchmark replacement. These “benchmark replacement conforming changes” may arise in one of two ways. First, the LIBOR Act authorizes the Board to determine benchmark replacement conforming changes that, in its discretion, would address one or more issues affecting the implementation, administration, and calculation of the Board-selected benchmark replacement in LIBOR contracts.
The LIBOR Act provides that all benchmark replacement conforming changes (whether determined by the Board or, if applicable, a calculating person) shall become an integral part of the LIBOR contract, and a calculating person shall not be required to obtain consent from any other person prior to the adoption of benchmark replacement conforming changes.
The LIBOR Act includes various other provisions beyond the main operative provisions and statutory protections described above. For example, the LIBOR Act generally provides that a bank may use any benchmark (including a benchmark that is not SOFR) in any non-IBOR loan made before, on, or after the date of enactment of the LIBOR Act that the bank determines to be appropriate, and that no Federal supervisory agency may take enforcement or supervisory action against the bank solely because that benchmark is not SOFR.
In July 2022, the Board invited public comment on a notice of proposed rulemaking (proposed rule) to implement the LIBOR Act.
As required by the LIBOR Act, the Board's final rule identifies SOFR-based Board-selected benchmark replacements for LIBOR contracts that will not mature prior to the LIBOR replacement date and do not contain clear and practicable benchmark replacements. The final rule identifies different SOFR-based Board-selected benchmark replacements for different categories of LIBOR contracts. In addition, the final rule identifies certain benchmark replacement conforming changes related to the implementation, administration, and calculation of the Board-selected benchmark replacement. Consistent with the LIBOR Act, the final rule also expressly indicates that a determining person may select the Board-selected benchmark replacement for the relevant type of LIBOR contract, with any applicable benchmark replacement conforming changes. In addition, the final rule expressly provides that the LIBOR Act's protections related to the selection or use of the Board-selected benchmark replacement shall apply to any LIBOR contract for which the Board-selected benchmark replacement becomes the benchmark replacement (whether by operation of law or by the selection of a determining person). Finally, the final rule indicates that, under the LIBOR Act, the Board's final rule preempts any state or local law or standard relating to the selection or use of a benchmark replacement or conforming changes.
The Board received 29 comment letters in response to the proposed rule.
Ten of these comment letters included an explicit statement of support for the proposal. One commenter opposed the proposal based on disagreement with the policy objectives of the LIBOR Act.
Most of the remaining commenters provided feedback on various topics related to the proposal (including the proposed Board-selected benchmark replacements for specific categories of contracts, synthetic LIBOR, conforming changes, and certain protections expressly provided by the LIBOR Act), but did not express support or opposition for the overall proposal. Feedback from commenters related to particular aspects of the proposal is discussed, as applicable, in section IV.
One commenter provided feedback on the Board's analysis of the proposed rule under the Regulatory Flexibility Act. This comment is discussed in more detail in section V.
Finally, a commenter requested that the prudential regulators engage in specific efforts to educate banks, consumers, other issuers of financial products, and impacted industry groups, potentially through partnerships with industry groups and capital market participants, on (i) the need to transition away from LIBOR to viable alternative rates like SOFR, and (ii) the likely impact such transition would have on financial instruments that currently reference LIBOR. As previously discussed, U.S. financial regulators have encouraged banks and market participants over the past several years to transition away from USD LIBOR as a reference rate as soon as practicable, including through issuance of an interagency statement.
Section 253.1 of the final rule sets forth the authority for, purpose of, and scope of the final rule. Significantly, and consistent with the statute as described above, the final rule does not apply to (i) contracts that do not reference the overnight or one-, three-, six-, or 12-month tenors of LIBOR or (ii) LIBOR contracts that have fallback provisions providing for the use of a clearly defined and practicable replacement benchmark for LIBOR (including LIBOR contracts where the determining person selects a benchmark replacement other than the Board-selected benchmark replacement), except as provided in § 253.3(a)(1)(iii) and (c), which is discussed further
Section 253.2 provides definitions for many of the terms used in the rule. As with the proposal, most of the defined terms in § 253.2 are substantially the same as the defined terms in the LIBOR Act. However, § 253.2 includes additional definitions for the terms “30-day Average SOFR,” “90-day Average SOFR,” “CME Term SOFR,” “derivative transaction,” “derivative transaction fallback observation day,” “Federal Housing Finance Agency (FHFA)-regulated entity,” “Federal Family Education Loan Program (FFELP) Asset-Backed Securitization (ABS),” “FHFA-regulated-entity contract,” “ISDA protocol,” and “relevant benchmark administrator,” each of which is discussed below in connection with their use in § 253.4 or § 253.5, as applicable.
The final rule clarifies this statutory ambiguity by defining the term “determining person” to include any person with the authority, right, or obligation, including on a temporary basis (as identified by the LIBOR contract or by the governing law of the LIBOR contract, as appropriate) to determine a benchmark replacement, whether or not the person's authority, right, or obligation is subject to any contingencies specified in the LIBOR contract or by the governing law of the LIBOR contract. The Board believes that this clarification is consistent with Congressional intent and will promote a smooth transition away from LIBOR for contracts that authorize a person to select a benchmark replacement when LIBOR becomes unavailable or non-representative. Under the final rule, such a person will qualify as a determining person before LIBOR becomes unavailable or non-representative, and therefore will have a statutory right under section 104(c)(1) and (c)(2) of the LIBOR Act to select the Board-selected benchmark replacement by the earlier of (i) the LIBOR replacement date and (ii) the latest date for selecting a benchmark replacement according to the terms of the LIBOR contract.
The Board notes that, if the term “determining person” were interpreted to be limited only to persons with a
A commenter also requested that the final rule clarify that a “determining person” must have
Finally, as requested by a commenter, the Board hereby clarifies that a determining person selecting a Board-selected benchmark replacement pursuant to the authority and statutory protections of the LIBOR Act must choose the Board-selected benchmark replacement identified in § 253.4 for that contract type.
Section 253.3 addresses the applicability of the regulation to LIBOR contracts. Specifically, for the following LIBOR contracts, the applicable Board-selected benchmark replacement indicated in § 253.4 of the final rule shall be the benchmark replacement for the contract on and after the LIBOR replacement date unless an express exception applies: (i) LIBOR contracts that contain no fallback provisions; (ii) LIBOR contracts that contain fallback
In evaluating whether a LIBOR contract has any of these characteristics on the LIBOR replacement date, the final rule mirrors the statute and disregards any reference in any fallback provisions of a LIBOR contract to the following: (i) a benchmark replacement that is based in any way on any LIBOR value, except to account for the difference between LIBOR and the benchmark replacement; or (ii) a requirement that a person (other than a benchmark administrator) conduct a poll, survey, or inquiries for quotes or information concerning interbank lending or deposit rates (collectively, “LIBOR- or poll-based fallback provisions”).
Consistent with the LIBOR Act, § 253.3(b) lists three types of contracts that generally would
The proposed rule would have defined the term “covered contract” to mean those contracts that would be subject to the proposed rule and would transition to the applicable Board-selected benchmark replacement on and after the LIBOR replacement date. Similarly, the proposed rule would have defined the term “non-covered contract” to mean those contracts that generally would not be subject to the proposed rule. However, the proposed rule would have clarified that a determining person may select the Board-selected benchmark replacement specified in § 253.4 of the proposed rule as the benchmark replacement for a LIBOR contract, consistent with the LIBOR Act.
A commenter requested that the Board clarify that a determining person may “transition” to the Board-selected benchmark replacement by the LIBOR replacement date
In its proposal, the Board invited public comment as to whether the final rule should require a determining person to provide notice to one or more parties concerning the determining person's selection. Multiple commenters recommended that the final rule not impose any notice requirements on determining persons. No commenter expressed support for the imposition of notice requirements on determining persons. As a result, the final rule does not include impose any notice requirements.
Another commenter argued that fallback provisions referencing any third-party funding rate or certificate of deposit rate also should be disregarded, regardless of the method by which such rates would be obtained. Such treatment, however, would be inconsistent with the text of the LIBOR Act, which considers the methodology by which interbank lending or deposit rate information
Relatedly, one commenter requested that the Board clarify how the rule applies to LIBOR contracts that give a determining person the right, authority, or obligation to select an “alternative index” or “alternative comparable index” that is “used for determining Eurodollar lending rates” (“Eurodollar DP contracts”). Section 104(c) of the LIBOR Act generally creates a statutory right for a determining person to select the Board-selected benchmark replacement; however, under section 104(f)(2) of the LIBOR Act, a determining person
Section 104(f)(2) of the LIBOR Act is intended to exclude from the act's scope only those contracts that identify a specific benchmark replacement such as the prime rate. Eurodollar DP contracts provide certain guidelines for determining persons to follow in selecting a benchmark replacement, but they do not identify a specific benchmark replacement. Accordingly, the Board confirms that a determining person for a Eurodollar DP contract may exercise the statutory right to select the Board-selected benchmark replacement under section 104(c) of the LIBOR Act and § 253.3(c) of the final rule.
Other contractual provisions that the final rule expressly does not affect include, but are not limited to, (i) provisions specifying rounding conventions for a benchmark; (ii) provisions referencing LIBOR or any LIBOR value prior to the LIBOR replacement date (including any provision requiring a person to look back to a LIBOR value as of a date preceding the LIBOR replacement date); (iii) provisions applying any cap, floor, modifier, or spread adjustment to which LIBOR had been subject pursuant to the terms of a LIBOR contract; (iv) certain provisions of Federal consumer financial law; and (v) except as provided in 12 U.S.C. 5804(c), the rights or obligations of any person, or the authorities of any agency, under Federal consumer financial law, as defined in 12 U.S.C. 5481.
Some commenters had requested that the final rule expressly state its impact on these types of provisions, particularly provisions specifying rounding conventions or lookback periods that straddle the LIBOR replacement date, perhaps as benchmark replacement conforming changes. The Board believes it is most sensible to address provisions such as those listed above by clarifying that they would not be affected by the final rule.
Several commenters supported the clarification outlined in the proposal. In general, these commenters argued that such clarification would (i) be consistent with the intent of the statute, (ii) promote an orderly transition away from LIBOR, (iii) reduce disruptive litigation, and (iv) be reasonable.
However, some commenters argued that the Board lacks the legal authority to adopt the clarification outlined in the proposal. In particular, these commenters noted that LIBOR contracts containing fallback provisions that
Other commenters gave other suggestions for addressing synthetic LIBOR. For example, one commenter asked the Board to work with the FCA to avoid the publication of synthetic LIBOR altogether. Other commenters suggested that the Board should deem LIBOR to be unavailable for all LIBOR contracts within the scope of the LIBOR Act even if synthetic LIBOR would be published, unless a determining person affirmatively selects synthetic LIBOR as a benchmark replacement; these commenters argued that construing synthetic LIBOR's publication as continued availability of LIBOR would be inconsistent with the purposes of the LIBOR Act.
The Board has considered this issue in light of the comments received. The Board believes that LIBOR contracts containing fallback provisions that identify a specific benchmark replacement are outside the scope of the LIBOR Act, even if these fallback provisions lack an express non-representativeness trigger. In particular, section 102(b)(3) of the LIBOR Act states that one purpose of the statute is to allow existing contracts that reference LIBOR but provide for the use of a clearly defined and practicable replacement to operate according to their terms.
However, consistent with the suggestion of some commenters, the Board is clarifying in the final rule how synthetic LIBOR would affect a LIBOR contract that includes fallback provisions authorizing a person to select a benchmark replacement only when LIBOR is unavailable. As noted in section IV.B, the final rule defines a determining person to include a person with a
Section 253.4 identifies the Board-selected benchmark replacements for various types of contracts subject to the LIBOR Act. As indicated in the proposal, the Board agrees with the ARRC's observation that different benchmark replacements may be appropriate for derivative transactions and other transactions (hereafter, “cash transactions”).
The spread adjustments specified in the LIBOR Act are intended to address certain differences between SOFR and LIBOR, including the fact that LIBOR is unsecured and therefore includes an element of bank credit risk which may cause it to be higher than SOFR.
Two commenters requested that the final rule use different tenor spread adjustments than those specified in the LIBOR Act. As discussed, the LIBOR Act specifies tenor spread adjustments that shall be incorporated into the Board-selected benchmark replacements and does not authorize the Board to alter or modify those tenor spread adjustments. As a result, the final rule identifies Board-selected benchmark replacements that incorporate the tenor spread adjustments specified by the LIBOR Act, without modification.
Another commenter requested that the Board avoid selecting benchmark replacements that are overly complex to calculate or that have the potential to conflict with other Board-selected replacements and result in ambiguous or confusing scenarios. That commenter noted that the Board's selection of different benchmark replacements depending on contract type could create potential for hedging mismatch issues and urged the Board to consider issuing a broad range of alternative rates to allow individual firms flexibility to exercise their judgment in guarding against asset-liability mismatch issues while allowing them to rely on the LIBOR Act's protections for use of the Board-selected benchmark replacement.
As discussed in further detail below, and consistent with the ARRC's recommendations, the Board continues to believe that different contract types warrant different benchmark replacements. However, since a key purpose of the LIBOR Act and final rule is to replace LIBOR with the applicable Board-selected benchmark replacement by operation of law, the final rule aims to create a simple, clear, and manageable taxonomy with as few categories as possible. In addition, the Board believes this purpose of the final rule—to replace LIBOR automatically with a Board-selected benchmark replacement—can function only if there is a single Board-selected benchmark replacement applicable to any particular LIBOR contract. Therefore, the final rule does not identify a broad range of alternative rates as “Board-selected benchmark replacements” from which a firm could choose and avail itself of the LIBOR Act's protections for use of the Board-selected benchmark replacement.
With respect to derivative transactions, the Board observed in the proposal that many derivative market participants have adhered to the ISDA 2020 IBOR Fallbacks Protocol (ISDA protocol) to amend their existing derivative transaction contracts to incorporate fallback provisions that would replace references to USD LIBOR with a SOFR-based rate.
The Board proposed to select the Fallback Rate (SOFR) as the Board-selected benchmark replacement for derivative transactions. The Board noted that because derivatives markets already appear to reference SOFR compounded in arrears and there has been significant adherence to the ISDA protocol, it would be sensible to avoid disruption to these markets' efforts to transition away from referencing LIBOR.
As noted in the proposal, ISDA has selected Bloomberg Index Services Limited (Bloomberg) to calculate and publish the Fallback Rate (SOFR) referenced in its ISDA protocol.
The Board did not receive comments regarding the proposed definition of “derivative transaction.” Most commenters supported use of the Fallback Rate (SOFR) in the ISDA protocol as the Board-selected benchmark replacement for derivative transactions, but some suggested that the Board incorporate certain technical amendments in the final rule to match precisely the calculation of the Fallback Rate (SOFR) under the ISDA protocol. In particular, these commenters requested that the Board clarify that the Fallback Rate (SOFR) should be determined on the “derivative transaction fallback observation day,” which essentially is defined in the ISDA Protocol as the day two payment business days prior to the payment date for the relevant calculation period.
One commenter stated that it would have preferred that the Board propose to select a rate equal to CME Term SOFR (discussed in detail in section IV.D.2) as its benchmark replacement for derivative transactions pursuant to the LIBOR Act. The commenter argued that CME Term SOFR would be the “most economically equivalent and simplest” replacement for LIBOR for end-users. However, that commenter acknowledged that such an approach would differ from the ARRC's recommendation and ultimately indicated that the Board should not make any changes from the ISDA
Some commenters suggested that the Board identify separate benchmark replacements for certain categories of derivative contracts. One commenter requested that the final rule transition derivative transactions linked to certain securitizations to the same benchmark replacement as those of securities related to that securitization rather than the Fallback (SOFR) rate in order to avoid basis risk, potential ratings downgrades and defaults due to unplanned mismatches in cash flows, and potential disruptions arising from disputes over how excess cashflows and shortfalls should be treated. Another commenter requested that, where a derivative transaction is executed in connection with a cash asset-backed security and the cash security's terms are structured to reflect payments under the related derivative transaction, the final rule should transition the derivative transaction to a benchmark replacement equal to a term SOFR rate so as to avoid circumventing the expectations of the parties and causing unexpected payment mismatches between the security and the derivative transaction. Similarly, another commenter recommended that the final rule allow a derivative transaction that specifically refers to the definition of LIBOR in an asset-backed security in order to hedge cashflows in the related securitization transaction to transition to the same benchmark replacement as the associated asset-backed security. This commenter acknowledged that it would not be practical or even advisable that every derivative transaction related to every cash security be transitioned in this way and that it is not operationally feasible for the parties to identify all such derivative transactions. As a result, the commenter suggested that the final rule acknowledge that, regardless of the original intent of the parties, there will be misalignments between many cash products and their related hedges because the Board-selected benchmark replacements for these products differ.
As noted, because a key purpose of the LIBOR Act and final rule is to replace LIBOR with the applicable Board-selected benchmark replacement by operation of law, the Board believes it is important for the final rule to create as simple, clear, and manageable a taxonomy as possible. This should allow parties to determine quickly and easily the Board-selected benchmark replacement to which a particular LIBOR contract will transition in the absence of fallback provisions identifying either (i) a clear and practicable benchmark replacement or (ii) a determining person. The addition of new sub-categories of derivatives transactions would increase greatly the complexity of the rule and increase burden associated with determining the applicable Board-selected benchmark replacement for a given LIBOR contract.
The Board acknowledges that basis risk may arise to the extent that derivative transactions and related cash transactions transition to different Board-selected benchmark replacements; however, the parties typically involved in these types of derivative transactions frequently manage basis risk and other hedging-related risk in the ordinary course of business. In addition, nothing in the LIBOR Act or final rule prevents parties to LIBOR contracts from agreeing to transition a particular LIBOR contract to a benchmark replacement that is more suitable to that contract than the Board-selected benchmark replacement.
For all the foregoing reasons, the final rule selects the Fallback Rate (SOFR) in the ISDA protocol as the Board-selected benchmark replacement for derivative transactions. In response to comments, the final rule includes certain technical amendments to ensure that the calculation of the Fallback Rate (SOFR) under the final rule matches precisely the manner in which that rate is calculated in the ISDA protocol. In particular, the final rule defines “derivative transaction fallback observation day” in the same way the term is defined in the ISDA protocol and incorporates additional technical related to the calculation of the Fallback Rate (SOFR). Incorporation of this term, together with the provision in § 253.3(d)(3) indicating that contractual provisions referencing LIBOR or any LIBOR value prior to the LIBOR replacement date (including any provision requiring a person to look back to a LIBOR value as of a date preceding the LIBOR replacement date) remain unaffected, aligns the Board-selected benchmark replacement in the final rule with the calculation of the Fallback Rate (SOFR) in the ISDA protocol.
Under the proposed rule, references to overnight LIBOR in cash transactions would be replaced with SOFR plus a spread adjustment specified in the LIBOR Act,
CME Group calculates and publishes CME Term SOFR in one-, three-, six-, and 12-month tenors.
Similar to the proposal, the final rule generally replaces references to overnight LIBOR in cash transactions with SOFR plus a spread adjustment specified in the LIBOR Act.
The final rule identifies separate Board-selected benchmark replacements for two categories of cash transactions: (i) similar to the proposal, certain cash transactions involving entities regulated by FHFA; and (ii) Federal Family Education Loan Program (FFELP) asset-backed securitizations (ABS). These categories of cash transactions are discussed in more detail below.
Under the LIBOR Act, any Board-selected benchmark replacement applicable to consumer loans shall, for the one-year period beginning on the LIBOR replacement date, incorporate an amount that modifies the otherwise-applicable tenor spread adjustment specified in the LIBOR Act.
The proposed rule generally identified the same Board-selected benchmark replacements for consumer loans as for other cash transactions (
Refinitiv Limited has stated it will publish and provide rates for consumer loans that sum (i) CME Term SOFR and (ii) the transition tenor spread adjustment (for the one-year period beginning on the LIBOR replacement date) or the tenor spread adjustment specified in the LIBOR Act (after that one-year period), consistent with the proposed rule and the recommendations of the ARRC.
The Board did not receive comments concerning the proposed Board-selected benchmark replacement for cash transactions that are consumer loans. As a result, the final rule generally retains these provisions as proposed, including a provision deeming the “USD IBOR Cash Fallbacks” for “Consumer” products published by Refinitiv equal to the Board-selected benchmark replacement for these transactions.
Since 2020, the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation—government-sponsored enterprises (GSEs) that are regulated by FHFA—have transitioned to using the 30-calendar-day compounded average of SOFR (30-day Average SOFR), as
The proposed rule would have defined a “government-sponsored enterprise (GSE),” consistent with its definition under the Board's capital rule, 12 CFR 217.2, as “an entity established or chartered by the U.S. government to serve public purposes specified by the U.S. Congress but whose debt obligations are not explicitly guaranteed by the full faith and credit of the U.S. government.”
Multiple commenters opposed the proposed rule's definitions of “GSE” and “covered GSE contract” as overly broad in light of the Board's stated intent to capture contracts involving entities regulated by FHFA.
The Board continues to believe that, with the exception of Federal Home Loan Bank advances, which are discussed further below, it is appropriate to replace references toone-, three-, six, or 12-month LIBOR in contracts involving entities regulated by FHFA with 30-day Average SOFR plus the applicable tenor spread adjustment specified in the LIBOR Act. In response to comments suggesting that the “GSE” definition was too broad and would cover entities that are not regulated by FHFA, the final rule replaces the terms “GSE” and “covered GSE contract” with “FHFA-regulated entity” and “FHFA-regulated-entity contract”. “FHFA-regulated entity” is defined as having the same meaning as “regulated entity” in 12 U.S.C. 4502(20).
Similar to the proposal, the final rule identifies as the Board-selected benchmark replacement for FHFA-regulated-entity contracts other than Federal Home Loan Bank advances (i) in place of overnight LIBOR, SOFR, or in place of one-, three-, six-, or 12-month tenors of LIBOR, 30-day Average SOFR; plus (ii) the applicable tenor spread adjustment specified in the LIBOR Act.
Having consulted with FHFA, the Board believes it would be appropriate to identify a separate benchmark replacement for FHFA-regulated-entity contracts that are Federal Home Loan Bank advances so as to align the benchmark used in legacy contracts that are Federal Home Loan Bank advances with the current practices of the Federal Home Loan Banks. Therefore, the final rule identifies the Board-selected benchmark replacement for an FHFA-regulated-entity contract that is a Federal Home Loan Bank advance as the “Fallback Rate (SOFR)” in the ISDA protocol, as calculated under the ISDA protocol.
The Board believes it would be appropriate to identify a separate benchmark replacement for any asset-backed security for which more than 50 percent of the collateral pool consists of FFELP loans, as reported in the most recent servicer report available on the LIBOR replacement date (defined in the final rule as “Federal Family Education Loan Program (FFELP) asset-backed securitizations (ABS)”).
The LIBOR Act authorizes the Board to require any additional technical, administrative, or operational changes, alterations, or modifications to LIBOR contracts based on a determination that such changes, alterations, or modifications would address one or more issues affecting the implementation, administration, and calculation of the Board-selected benchmark replacement in LIBOR contracts (conforming changes).
For clarity, the proposed rule also indicated that, with respect to a LIBOR contract that is not a consumer loan, a calculating person may make any additional technical, administrative, or operational changes, alterations or modifications that, in that person's reasonable judgment, would be necessary or appropriate to permit the implementation, administration, and calculation of the Board-selected benchmark replacement under or with respect to a LIBOR contract after giving due consideration to any changes, alterations, or modifications otherwise required by the Board under the proposed rule.
The Board did not receive any comments concerning the proposed rule's provisions mirroring sections 103(4)(B) and 104(d) of the LIBOR Act. Some commenters agreed with the Board that no additional conforming changes were necessary. One commenter urged the Board to consider whether some conforming changes may be appropriate for complex consumer loans, since the LIBOR Act does not provide for a calculating person to make additional conforming changes for such loans. Another commenter recommended the Board include as a conforming change a provision that, should the Board-selected benchmark replacement not be published on a given day, then the prior day's publication of the Board-selected benchmark replacement should be used. Several commenters requested conforming changes addressing provisions in LIBOR contracts that (i) specify a particular source where a LIBOR rate may be obtained (
The final rule, like the proposed rule, includes provisions mirroring the language in sections 103(4) and 104(d) of the LIBOR Act, including the Board's ability to, in its discretion, publish additional benchmark replacement conforming changes, by regulation or order, and a calculating person's ability to make certain conforming changes with respect to a LIBOR contract that is not a consumer loan, consistent with the LIBOR Act.
First, the final rule replaces references in a LIBOR contract to a specified source for LIBOR (such as a particular newspaper, website, or screen) with the publication of the applicable Board-selected benchmark replacement by either the relevant benchmark administrator for the applicable Board-selected benchmark replacement or any third party authorized by the relevant benchmark administrator to publish the applicable Board-selected benchmark replacement.
The final rule also provides, subject to § 253.4(a) and (b)(3)(ii) of the final rule, that to the extent a Board-selected benchmark replacement is not available or published on a particular day indicated in the LIBOR contract as the determination date, the most recently available publication of the Board-selected benchmark replacement will apply.
As noted, section 107 of the LIBOR Act expressly preempts any provision of state or local law relating to the selection or use of a benchmark replacement or related conforming changes, or expressly limiting the manner of calculating interest (including the compounding of interest) as that provision applies to the selection or use of a Board-selected benchmark replacement or benchmark replacement conforming changes.
The Board did not receive any comments on this section of the proposed rule. Therefore, the final rule retains this section as proposed.
In its proposal, the Board noted that the LIBOR Act provides, among other things, certain statutory protections enumerated in section 105 related to the selection and use of the Board-selected benchmark replacement.
Some commenters recommended that the final rule incorporate the statutory protections of section 105 of the LIBOR Act. Another commenter suggested that the Board expressly acknowledge in the final rule that section 105 of the LIBOR Act is self-executing and that nothing in the rule is intended to alter or modify the scope of those protections.
Some commenters requested that the final rule expressly state, consistent with section 104(f)(6) of the LIBOR Act, that nothing in the final rule would alter or impair the rights or obligations of any person, or the authorities of any agency, under Federal consumer financial law, as defined in 12 U.S.C. 5481. One commenter suggested in the alternative that section 104(f)(6) of the LIBOR Act be expressly incorporated into the final rule. Consistent with the LIBOR Act, the Board affirms that the final rule does not affect any requirements imposed by any provision of Federal consumer financial law, as defined in 12 U.S.C. 5481.
Having considered all of these comments, the Board's final rule includes a new section expressly stating that the provisions of section 105(a)-(d) of the LIBOR Act shall apply to any LIBOR contract for which the Board-selected benchmark replacement becomes the benchmark replacement pursuant to § 253.3(a) or (c) of the final rule.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
LIBOR is used in contracts subject to the LIBOR Act across all industries, and
As the Board stated in the IRFA that was published with the proposal, although section 110 of the LIBOR Act directs the Board to promulgate regulations to carry out the LIBOR Act, the Board's discretion under the LIBOR Act is limited to a small number of areas: (i) selecting SOFR-based benchmark replacements, (ii) determining any benchmark replacement conforming changes, and (iii) determining the LIBOR replacement date (in the event that any LIBOR tenor ceases or becomes nonrepresentative prior to the planned LIBOR cessation date).
With respect to Board-selected benchmark replacements, the final rule establishes Board-selected benchmark replacements for six categories of LIBOR contracts.
With respect to benchmark replacement conforming changes, the final rule identifies a small number of benchmark replacement conforming changes based on feedback from commenters. Specifically, as provided in § 253.5(b) of the final rule, the Board established benchmark replacement conforming changes related to (i) any reference to a specified source for LIBOR (such as a particular newspaper, website, or screen), (ii) any reference to a particular time of day for determining LIBOR, (iii) any provision of a LIBOR contract requiring the use of a combination of LIBOR values over a period of time that spans the LIBOR replacement date, and (iv) any provision of LIBOR contract specifying use of the most recently available publication of LIBOR for any day where LIBOR is not available or published. Because these benchmark replacement conforming changes are limited to technical, administrative changes to LIBOR contracts that facilitate the transition from LIBOR to the applicable Board-selected benchmark replacement, the Board does not believe that any of the benchmark replacement conforming changes will represent a material change to any LIBOR contract. To the contrary, the Board believes that these benchmark replacement conforming changes will provide clarity and reduce the possibility of disputes over the meaning of a LIBOR contract for which a Board-selected benchmark replacement becomes the benchmark replacement. Therefore, the Board believes that economic impact of these benchmark replacement conforming changes will be de minimis.
With respect to determining the LIBOR replacement date, the Board did not propose, and the final rule does not include, a determination that any LIBOR tenor will cease or become nonrepresentative prior to the first London banking day after June 30, 2023.
Beyond these three areas where the LIBOR Act expressly vests the Board with discretion, there is one additional aspect of the final rule in respect of which the Board has exercised discretion. Specifically, the Board in the final rule has interpreted the ambiguous statutory term “determining person” to include any person with sole authority, right, or obligation, including on a temporary basis, (as identified by the LIBOR contract or by the governing law of the LIBOR contract, as appropriate) to determine a benchmark replacement,
As discussed elsewhere in this preamble, section 104(c)(2) of the LIBOR Act creates a statutory right for a determining person to select the Board-selected benchmark replacement by the earlier of the LIBOR replacement date and the latest date for selecting a benchmark replacement according to
Alternatively, the Board could have construed “determining person” to include only persons whose right to select a benchmark replacement has already been triggered.
As demonstrated above, the Board's interpretation of “determining person” in the final rule may impact the timing of a determining person's selection but does not affect the ultimate benchmark replacement for contracts under the terms of which the determining person's authority is not triggered until on or after the LIBOR replacement date: Under either possible interpretation, the LIBOR contract would transition to the Board-selected benchmark replacement on and after the LIBOR replacement date.
For the reasons discussed above, the Board believes that the economic impact of the final rule on small entities, including any particular class, will not be significant. Therefore, the Board is certifying that the final rule will not have a significant economic impact on a substantial number of small entities.
In accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3506; 5 CFR part 1320, appendix A.1), the Board may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a valid Office of Management and Budget (OMB) control number. The Board reviewed both the proposed rule and the final rule under the authority delegated to the Board by the OMB and determined that it contains no collections of information under the PRA.
Section 722 of the Gramm-Leach-Bliley Act (Pub. L. 106-102, 113 Stat. 1338, 1471, 12 U.S.C. 4809) requires the Federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. The Board received no comments on these matters and believes that the final rule is written plainly and clearly.
Section 302(a) of the Riegle Community Development and Regulatory Improvement Act (the “Riegle Act”), Public Law 103-325, generally requires that, in determining the effective date and administrative compliance requirements for new regulations that impose additional reporting, disclosure, or other requirements on insured depository institutions, a Federal banking agency must consider, consistent with the principle of safety and soundness and the public interest, any administrative burdens that such regulations would place on depository institutions, including small depository institutions, and customers of depository institutions, as well as the benefits of such regulations.
The Board believes that, in this case, there is good cause for an earlier effective date. In particular, an earlier effective date gives determining persons, including any determining person that is an insured depository institution, additional time to use the statutory right to select the Board-selected benchmark replacement, rather than requiring the determining person to wait until at least April 1, 2023, to make such selection. For this reason, the Board believes that an earlier effective
In addition, prompt effectiveness of the rule is consistent with congressional intent.
Banks and banking, Interest rates.
12 U.S.C. 5801
(a)
(b)
(c)
(1) The Board determines, in its discretion, would address one or more issues affecting the implementation, administration, and calculation of the Board-selected benchmark replacement in LIBOR contracts; or
(2) Solely with respect to a LIBOR contract that is not a consumer loan, in the reasonable judgment of a calculating person, are otherwise necessary or appropriate to permit the implementation, administration, and calculation of the Board-selected benchmark replacement under or with respect to a LIBOR contract after giving due consideration to any benchmark replacement conforming changes determined by the Board under paragraph (1) of this definition.
(1) A Saturday;
(2) A Sunday;
(3) A day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States Government securities; or
(4) A day on which the Federal Reserve Bank of New York, with advance notice, chooses not to publish its Treasury repurchase agreement reference rates if participants in the Treasury repurchase agreement market broadly expect to treat that day as a holiday.
(1) A commercial or multifamily mortgage-backed security (other than a security backed by consumer loans);
(2) A collateralized mortgage obligation;
(3) A credit risk transfer transaction; or
(4) A Federal Home Loan Bank advance.
(1) Means the overnight and one-, three-, six-, and 12-month tenors of U.S. dollar LIBOR (formerly known as the London interbank offered rate) as administered by ICE Benchmark Administration Limited (or any predecessor or successor administrator thereof); and
(2) Does not include the one-week or two-month tenors of U.S. dollar LIBOR.
(1) Bloomberg Index Services Limited with respect to Fallback Rate (SOFR);
(2) CME Group Benchmark Administration, Ltd. with respect to CME Term SOFR;
(3) Refinitiv Limited with respect to the Board-selected benchmark replacement for a LIBOR contract that is a consumer loan; and
(4) The Federal Reserve Bank of New York with respect to 30-day Average SOFR and 90-day Average SOFR.
(a)
(1) A LIBOR contract with one of the following characteristics as of the LIBOR replacement date, after giving effect to paragraph (a)(2) of this section:
(i) The LIBOR contract contains no fallback provisions;
(ii) The LIBOR contract contains fallback provisions that identify neither—
(A) A specific benchmark replacement; nor
(B) A determining person; or
(iii) The LIBOR contract contains fallback provisions that identify a determining person, but the determining person has not selected a benchmark replacement by the earlier of the LIBOR replacement date and the latest date for selecting a benchmark replacement according to the terms of the LIBOR contract, for any reason.
(2) For purposes of this part, on the LIBOR replacement date, any reference in any fallback provisions of a LIBOR contract to the following shall be disregarded as if not included in the fallback provisions of such LIBOR contract and shall be deemed null and void and without any force or effect:
(i) A benchmark replacement that is based in any way on any LIBOR value, except to account for the difference between LIBOR and the benchmark replacement; or
(ii) A requirement that a person (other than a benchmark administrator) conduct a poll, survey, or inquiries for quotes or information concerning interbank lending or deposit rates (including, but not limited to, Eurodollar deposit or lending rates).
(b)
(1) Any LIBOR contract that the parties have agreed in writing shall not be subject to the Adjustable Interest Rate (LIBOR) Act;
(2) Any LIBOR contract that contains fallback provisions that identify a benchmark replacement that is not based in any way on any LIBOR value (including the prime rate or the effective Federal Funds rate) after application of paragraph (a)(2) of this section; or
(3) Except as provided in paragraph (a)(2) or (a)(1)(iii) of this section, any LIBOR contract subject to paragraph (c) of this section as to which a determining person does not elect to use a Board-selected benchmark replacement pursuant to paragraph (c).
(c)
(1) Irrevocable;
(2) Made by the earlier of the LIBOR replacement date and the latest date for selecting a benchmark replacement according to the terms of the LIBOR contract; and
(3) Used in any determinations of the benchmark under or with respect to the LIBOR contract occurring on and after the LIBOR replacement date.
(d)
(1) Any provision specifying the date for determining a benchmark, except in the case of derivative transactions, which are subject to § 253.4(a)(2), and Federal Home Loan Bank advances, which are subject to § 253.4(b)(3)(ii)(B);
(2) Any provision specifying rounding conventions for a benchmark;
(3) Any provision referencing LIBOR or any LIBOR value prior to the LIBOR replacement date (including any provision requiring a person to look back to a LIBOR value as of a date preceding the LIBOR replacement date);
(4) Any provision applying any cap, floor, modifier, or spread adjustment to which LIBOR had been subject pursuant to the terms of a LIBOR contract;
(5) Any provision of Federal consumer financial law that—
(i) Requires creditors to notify borrowers regarding a change-in-terms; or
(ii) Governs the reevaluation of rate increases on credit card accounts under open-ended (not home-secured) consumer credit plans; or
(6) Except as provided in 12 U.S.C. 5804(c), the rights or obligations of any person, or the authorities of any agency, under Federal consumer financial law, as defined in 12 U.S.C. 5481.
(a)
(2) The benchmark replacement used to calculate the payment due for the relevant calculation period shall be determined on the derivative transaction fallback observation day in respect of the day that, under the LIBOR contract, would have been used to determine the LIBOR-based rate that is being replaced or, if the Board-selected benchmark replacement in respect of that day is not available on the derivative transaction fallback observation day, the most recently available publication on the derivative transaction fallback observation day shall be used.
(b)
(1) For a LIBOR contract that is not a consumer loan, an FHFA-regulated-entity contract, or a FFELP ABS—
(i) In place of overnight LIBOR, the benchmark replacement shall be SOFR plus the tenor spread adjustment identified in paragraph (c)(1) of this section; and
(ii) In place of one-, three-, six-, or 12-month tenors of LIBOR, the benchmark replacement shall be the corresponding one-, three-, six-, or 12-month CME Term SOFR plus the applicable tenor spread adjustment identified in paragraph (c) of this section.
(2) For a LIBOR contract that is a consumer loan—
(i) During the one-year period beginning on the LIBOR replacement date:
(A) In place of overnight LIBOR, the benchmark replacement shall be SOFR plus an amount that transitions linearly for each business day during that period from:
(
(
(B) In place of the one-, three-, six-, or 12-month tenors of LIBOR, the benchmark replacement shall be the corresponding one-, three-, six-, or 12-month CME Term SOFR plus an amount that transitions linearly for each business day during that period from:
(
(
(ii) On the date one year after the LIBOR replacement date and thereafter:
(A) In place of overnight LIBOR, the benchmark replacement shall be SOFR plus the tenor spread adjustment identified in paragraph (c)(1) of this section; and
(B) In place of one-, three-, six-, or 12-month tenors of LIBOR, the benchmark replacement shall be the corresponding one-, three-, six-, or 12-month CME Term SOFR plus the applicable tenor spread adjustment identified in paragraph (c) of this section.
(iii) The rates published or provided by Refinitiv Limited as “USD IBOR Cash Fallbacks” for “Consumer” products shall be deemed equal to the rates identified in paragraphs (b)(2)(i) and (ii) of this section.
(3) For a LIBOR contract that is an FHFA-regulated-entity contract—
(i) For an FHFA-regulated-entity contract that is not a Federal Home Loan Bank advance—
(A) In place of overnight LIBOR, the benchmark replacement shall be SOFR plus the tenor spread adjustment identified in paragraph (c)(1) of this section; and
(B) In place of one-, three-, six-, or 12-month tenors of LIBOR, the benchmark replacement shall be the 30-day Average SOFR plus the applicable tenor spread adjustment identified in paragraph (c) of this section.
(ii) For an FHFA-regulated-entity contract that is a Federal Home Loan Bank advance—
(A) The benchmark replacement shall be the “Fallback Rate (SOFR)” in the ISDA protocol (
(B) The benchmark replacement used to calculate the payment due for the relevant calculation period shall be determined on the derivative transaction fallback observation day in respect of the day that, under the LIBOR contract, would have been used to determine the LIBOR-based rate that is being replaced or, if the Board-selected
(4) For a LIBOR contract that is a FFELP ABS—
(i) In place of one-month LIBOR, the benchmark replacement shall be 30-day Average SOFR plus the tenor spread adjustment identified in paragraph (c)(2) of this section;
(ii) In place of three-month LIBOR, the benchmark shall be 90-day Average SOFR plus the tenor spread adjustment identified in paragraph (c)(3) of this section; and
(iii) In place of six- or 12-month tenors of LIBOR, the benchmark replacement shall be 30-day Average SOFR plus the tenor spread adjustment identified in paragraph (c)(4) or (5) of this section, as applicable.
(c)
(1) 0.00644 percent for overnight LIBOR;
(2) 0.11448 percent for one-month LIBOR;
(3) 0.26161 percent for three-month LIBOR;
(4) 0.42826 percent for six-month LIBOR; and
(5) 0.71513 percent for 12-month LIBOR.
(a)
(2) Paragraph (b) of this section establishes specific benchmark replacement conforming changes. The Board may, in its discretion, publish additional benchmark replacement conforming changes by regulation or order.
(3) Solely with respect to any LIBOR contract that is not a consumer loan, a calculating person may make any additional technical, administrative, or operational changes, alterations, or modifications that, in that person's reasonable judgment, would be necessary or appropriate to permit the implementation, administration, and calculation of the Board-selected benchmark replacement under or with respect to a LIBOR contract after giving due consideration to any changes, alterations, or modifications otherwise required by the Board, without any requirement to obtain consent from any other person prior to the adoption of such benchmark replacement conforming changes.
(b)
(2) Any reference to a particular time of day for determining LIBOR (such as 11:00 a.m. London time) shall be replaced with the standard publication time for the applicable Board-selected benchmark replacement (inclusive or exclusive of the relevant tenor spread adjustment identified in § 253.4(c)), as established by the relevant benchmark administrator.
(3) Any provision of a LIBOR contract requiring use of a combination (such as an average) of LIBOR values over a period of time that spans the LIBOR replacement date shall be modified to provide that the combination shall be calculated consistent with that contractual provision using:
(i) The applicable LIBOR for any date prior to the LIBOR replacement date; and
(ii) The applicable Board-selected benchmark replacement rate for any date on or following the LIBOR replacement date, respectively.
(4) Subject to § 253.4(a) and (b)(3)(ii), to the extent a Board-selected benchmark replacement is not available or published on a particular day indicated in the LIBOR contract as the determination date, the most recently available publication of the Board-selected benchmark replacement will apply.
Pursuant to section 107 of the Adjustable Interest Rate (LIBOR) Act, 12 U.S.C. 5806, this part supersedes any provision of any state or local law, statute, rule, regulation, or standard—
(a) Relating to the selection or use of a benchmark replacement or related conforming changes; or
(b) Expressly limiting the manner of calculating interest, including the compounding of interest, as that provision applies to the selection or use of a Board-selected benchmark replacement or benchmark replacement conforming changes.
(a) The provisions of section 105(a)-(d) of the Adjustable Interest Rate (LIBOR) Act, 12 U.S.C. 5804(a)-(d), shall apply to any LIBOR contract for which the Board-selected benchmark replacement becomes the benchmark replacement pursuant to § 253.3(a) or (c).
(b) Nothing in this part is intended to alter or modify the availability or effect of the provisions of section 105(e) of the Adjustable Interest Rate (LIBOR) Act, 12 U.S.C. 5804(e).
For ease of reference, the Board is republishing, with permission, the full text of the ISDA 2020 IBOR Fallbacks Protocol (ISDA protocol), published on October 23, 2020, by the International Swaps and Derivatives Association, Inc. The full text of the ISDA protocol follows:
The International Swaps and Derivatives Association, Inc. (ISDA) has published this ISDA 2020 IBOR Fallbacks Protocol (this Protocol) to enable parties to Protocol Covered Documents to amend the terms of each such Protocol Covered Document to (i) in respect of a Protocol Covered Document which incorporates, or references a rate as defined in, a Covered ISDA Definitions Booklet, include in the terms of such Protocol Covered Document either the terms of, or a particular defined term included in, the Supplement to the 2006 ISDA Definitions, finalized on October 23, 2020 and to be published by ISDA and effective on January 25, 2021 (the IBOR Fallbacks Supplement) and (ii) in respect of a Protocol Covered Document which otherwise references a Relevant IBOR, include in the terms of such Protocol Covered Document new fallbacks for that Relevant IBOR.
Accordingly, a party may adhere to this Protocol and be bound by its terms by completing and delivering a letter substantially in the form of Exhibit 1 to this Protocol (an Adherence Letter) to ISDA, as agent, as described below (each such party, an Adhering Party).
(a) By adhering to this Protocol in the manner set forth in this paragraph 1, each
(b) Adherence to this Protocol will be evidenced by the execution and online delivery, in accordance with this paragraph, to ISDA, as agent, of an Adherence Letter (in accordance with subparagraphs 1(b)(i) to 1(b)(iii) below). ISDA shall have the right, in its sole and absolute discretion, upon at least thirty calendar days' notice on the “ISDA 2020 IBOR Fallbacks Protocol” section of its website at
(i) Each Adhering Party will access the “Protocols” section of the ISDA website at
(ii) A conformed copy of each Adherence Letter containing, in place of each signature, the printed or typewritten name of each signatory will be published by ISDA so that it may be viewed by all Adhering Parties. Each Adhering Party agrees that, for evidentiary purposes, a conformed copy of an Adherence Letter certified by the General Counsel (or other appropriate officer) of ISDA will be deemed to be an original.
(iii) Each Adhering Party agrees that the determination of the date and time of acceptance of any Adherence Letter will be determined by ISDA in its absolute discretion. Any Adherence Letter which is dated and delivered to ISDA before the date on which this Protocol is published will be deemed to have been delivered on the date on which this Protocol is published.
(c) As between two Adhering Parties, the agreement to make the amendments contemplated by this Protocol, on the terms and conditions set forth in this Protocol, will be effective on the Implementation Date and that agreement will form part of each Protocol Covered Document from the later of the Implementation Date and the related Protocol Covered Document Date. The amendments contemplated by this Protocol shall be made on the later of (i) the Implementation Date and (ii) the Protocol Effective Date.
(A) The Protocol Effective Date with respect to a Protocol Covered Document shall be January 25, 2021.
(B) The Implementation Date with respect to any two Adhering Parties shall be the date of acceptance by ISDA, as agent, of an Adherence Letter (in accordance with paragraph 1(b) above) from the later of such two Adhering Parties to adhere except that:
(I) In respect of any Protocol Covered Document into which an Agent has entered on behalf of a Client, subject to paragraph 3(m) below, the Implementation Date shall be the date specified in subparagraph 3(g)(i)(A), subparagraph 3(g)(i)(B), subparagraph 3(g)(i)(C), paragraph 3(h), paragraph 3(i) or paragraph 3(j) below, as applicable; and
(II) In respect of any Non-Agent Executed Protocol Covered Document, subject to paragraph 3(m) below, the Implementation Date shall be the day specified in paragraph 3(l) below.
Acceptance by ISDA of a subsequent or revised Adherence Letter from either such Adhering Party will not have the effect of changing such Implementation Date.
(d) This Protocol is intended for use without negotiation, but without prejudice to any amendment, modification or waiver in respect of a Protocol Covered Document that the parties may otherwise effect in accordance with the terms of that Protocol Covered Document.
(i) In adhering to this Protocol, an Adhering Party may not specify additional provisions, conditions or limitations in its Adherence Letter.
(ii) Any purported adherence that ISDA, as agent, determines in good faith is not in compliance with this Protocol will be void and ISDA will inform the relevant party of such fact as soon as reasonably possible after making such determination.
(e) Each Adhering Party acknowledges and agrees that adherence to this Protocol is irrevocable, except that an Adhering Party may, after the Protocol Effective Date, deliver to ISDA, as agent, a notice substantially in the form of Exhibit 2 to this Protocol that is effective (determined pursuant to paragraph 3(f) below) on any Protocol Business Day (a Revocation Notice) to designate the next Revocation Date as the last date on which an Implementation Date can occur in respect of any Protocol Covered Document between the counterparty and such Adhering Party. Following the effective delivery of a Revocation Notice by an Adhering Party, this Protocol will not amend any Protocol Covered Document between that Adhering Party and another Adhering Party for which the Implementation Date would occur after the related Revocation Date.
(i) If an Agent adheres to this Protocol on behalf of a Client, then, if the Client effectively delivers a Revocation Notice in accordance with this paragraph 1(e), this Protocol will not amend any Protocol Covered Document between another Adhering Party and that Client entered into by that Client itself or by the Agent on behalf of that Client or any Non-Agent Executed Protocol Covered Document (if applicable), in each case, for which the Implementation Date would occur after the Revocation Date designated as the last date on which an Implementation Date can occur in the Client's Revocation Notice.
(ii) If an Agent delivers a Revocation Notice in accordance with this paragraph 1(e) on behalf of a Client and the Client separately adheres to this Protocol directly rather than through the agency of an Agent, then the Revocation Notice delivered by the Agent will not prevent an Implementation Date from occurring after the Revocation Date in respect of any Protocol Covered Document into which the Client has entered with another Adhering Party (including through the Agent).
(iii) Subparagraph 1(e)(i), subparagraph 1(e)(ii) and subparagraph 1(e)(iii) are without prejudice to any amendment effected pursuant to this Protocol to any Protocol Covered Document between two Adhering Parties for which the Implementation Date occurred on or before the day on which that Revocation Date occurs or is deemed to occur, regardless of the date on which such Protocol Covered Document is entered into, and any such amendment shall be effective notwithstanding the occurrence or deemed occurrence of such Revocation Date.
(iv) Each Revocation Notice must be delivered by the means specified in paragraph 3(f) below.
(v) Each Adhering Party agrees that, for evidentiary purposes, a conformed copy of a Revocation Notice certified by the General Counsel or an appropriate officer of ISDA will be deemed to be an original.
(vi) Any purported revocation that ISDA, as agent, determines in good faith is not in compliance with this paragraph 1(e) will be void and ISDA will inform the relevant party of such fact as soon as reasonably possible after making such determination.
(a) As of the later of (i) the date on which an Adhering Party adheres to this Protocol in accordance with paragraph 1 above (which will be the date of acceptance by ISDA of an Adherence Letter from that Adhering Party (in accordance with paragraph 1(b) above)) and (ii) the Protocol Covered Document Date, such Adhering Party represents to each other Adhering Party with which it has entered into a Protocol Covered Document (which representations will be deemed to be repeated on the Protocol Effective Date and the Implementation Date if one or both such dates are later than the date on which such Adhering Party adheres to this Protocol) each of the following matters:
(A)
(B)
(C)
(D)
(E)
(F)
(b) Each Adhering Party agrees with each other Adhering Party with which it has entered into a Protocol Covered Document that each of the foregoing representations will be deemed, in the case of a Protocol Covered Document that is an ISDA Master Agreement, to be a representation for purposes of Section 5(a)(iv) and in the case of any other Protocol Covered Document, to be a representation for purposes of any analogous provisions of each such Protocol Covered Document, that is made by each Adhering Party as of the later of (i) the date on which such Adhering Party adheres to this Protocol in accordance with paragraph 1 above and (ii) the Protocol Covered Document Date and which is deemed repeated on the Protocol Effective Date and the Implementation Date if one or both such dates are later than the date on which such Adhering Party adheres to this Protocol.
(c)
(d)
(a)
(i) This Protocol constitutes the entire agreement and understanding of the Adhering Parties with respect to its subject matter and supersedes all oral communication and prior writings (except as otherwise provided herein) with respect thereto. Each Adhering Party acknowledges that in adhering to this Protocol it has not relied on any oral or written representation, warranty or other assurance (except as provided for or referred to elsewhere in this Protocol or in the Attachment) and waives all rights and remedies which might otherwise be available to it in respect thereof, except that nothing in this Protocol will limit or exclude any liability of an Adhering Party for fraud.
(ii) Except for any amendment deemed to be made pursuant to this Protocol in respect of any Protocol Covered Document, all terms and conditions of each Protocol Covered Document will continue in full force and effect in accordance with its provisions as in effect immediately prior to the date on which it first becomes subject to this Protocol. Except as explicitly stated in this Protocol, nothing herein shall constitute a waiver or release of any rights of any Adhering Party under any Protocol Covered Document to which such Adhering Party is a party or a provider or recipient of credit support. This Protocol will, with respect to its subject matter, survive, and any amendments made or deemed to be made pursuant to this Protocol will form a part of each Protocol Covered Document between the Adhering Parties, notwithstanding any statements in a Protocol Covered Document to the effect that such Protocol Covered Document constitutes the entire agreement and understanding between the parties to such Protocol Covered Document with respect to the subject of such Protocol Covered Document.
(b)
(c)
(d)
(e)
(f)
(g)
(i) An Agent may adhere to this Protocol:
(A) On behalf of all Clients represented by such Agent (in which case, such Agent need not identify each Client through an online platform available generally to the industry, including, for example, the ISDA Amend platform provided by IHS Markit (a Platform) and, in respect of any Protocol Covered Document into which the Agent has entered on behalf of those Clients, the Implementation Date shall be the date of acceptance by ISDA of an Adherence Letter (in accordance with paragraph 1(b) above) from the later of the two Adhering Parties to adhere);
(B) On behalf of only those Clients represented by such Agent that such Agent specifically names or identifies through a Platform and, in respect of any Protocol Covered Document into which the Agent has entered on behalf of any such Client, the Implementation Date shall be the date shown on the Platform as the date on which the Agent communicates the name or identity of that Client to the other Adhering Party (or, if later, the date of acceptance by ISDA, as agent, of an Adherence Letter from the other Adhering Party); or
(C) On behalf of all Clients represented by such Agent, excluding any Clients whose name or identity the Agent communicates to the other Adhering Party through a Platform as a Client excluded from adherence, subject to subparagraph 3(h)(i) below, on or before the date of acceptance by ISDA of an Adherence Letter (in accordance with
(ii) In each case, the Agent can elect to apply the amendments in this Protocol to either:
(A) In respect of all those Clients on whose behalf the Agent adheres pursuant to subparagraph 3(g)(i)(A), subparagraph 3(g)(i)(B) or subparagraph 3(g)(i)(C) above, each Protocol Covered Document into which the Agent has entered on behalf of those Clients (Option 1); or
(B) In respect of all those Clients on whose behalf the Agent adheres pursuant to subparagraph 3(g)(i)(A), subparagraph 3(g)(i)(B) or subparagraph 3(g)(i)(C) above, each Protocol Covered Document into which the Agent has entered on behalf of those Clients and (II) in respect of those Clients on whose behalf the Agent adheres whose name or identity the Agent communicates to the other Adhering Party through a Platform as being a Client in respect of which this subparagraph 3(g)(ii)(B)(II) applies, each Protocol Covered Document into which the Agent did not enter on behalf of those Clients but which the Agent has the authority from the relevant Client to amend (for the purpose of this Protocol, documents described in this subparagraph 3(g)(ii)(B)(II) being
(iii) The election for Option 1 or Option 2 shall be made in the Adherence Letter. Adherence by the Agent shall only be effective with respect to those Protocol Covered Documents described in Option 1 or Option 2, as applicable, and as elected in the Adherence Letter (subject to, if the Agent elects for Option 2 and with respect to Non-Agent Executed Protocol Covered Documents,
(A) Subparagraph 3(g)(iv) and paragraph 3(l) below and (B) the Agent communicating the name or identity of those Clients on behalf of which it is amending Non-Agent Executed Protocol Covered Documents to the other Adhering Party, in accordance with subparagraph 3(g)(ii)(B)(II) above (regardless of whether the Agent adheres to this Protocol using the approach described in subparagraph 3(g)(i)(A), subparagraph 3(g)(i)(B) or subparagraph 3(g)(i)(C) above)).
(iv) If an Agent adheres to this Protocol and elects for Option 2 in its Adherence Letter, then, in respect of any Non-Agent Executed Protocol Covered Document only, the Agent shall, as soon as reasonably practicable following a written request (including by email) from the other Adhering Party, and in any event by no later than the end of the fifteenth calendar day following such request, provide reasonable evidence satisfactory to the other Adhering Party in its sole discretion supporting the Agent's authority to amend such documents, provided that:
(A) If, prior to the date of acceptance by ISDA of an Adherence Letter (in accordance with paragraph 1(b) above) from the later of the Agent and the other Adhering Party to adhere, the Agent has delivered to the other Adhering Party a copy, or relevant extracts, of the agreement (such as an investment management agreement) pursuant to which the relevant Client appoints the Agent to act on its behalf and authorizes the Agent to make the amendments contemplated by this Protocol to the Non-Agent Executed Protocol Covered Document (whether or not such authority expressly refers to this Protocol), then, subject to the other Adhering Party's right to request (which request must be in writing (which includes by email)) an additional copy of that agreement or those relevant extracts (which request shall be made no later than the end of the fifteenth calendar day following the later of the Identification Date and the date of acceptance by ISDA, as agent, of an Adherence Letter from that other Adhering Party), the Agent need not provide any further evidence supporting its authority to amend that Non-Agent Executed Protocol Covered Document on behalf of that Client for the purposes of this Protocol and, in respect of that Non-Agent Executed Protocol Covered Document, shall be deemed to have provided reasonable evidence satisfactory to the other Adhering Party on (I) if the other Adhering Party does not request an additional copy of that agreement or those relevant extracts, the end of the fifteenth calendar day following the later of the Identification Date and the date of acceptance by ISDA, as agent, of an Adherence Letter from that other Adhering Party or
(II) If the other Adhering Party does request an additional copy of that agreement or those relevant extracts, the day on which that additional copy is delivered to the other Adhering Party;
(B) If the other Adhering Party does not request such evidence by the end of the fifteenth calendar day following the later of the Identification Date and the date of acceptance by ISDA, as agent, of an Adherence Letter from that other Adhering Party, then the Agent shall be deemed to have provided reasonable evidence satisfactory to the other Adhering Party at the end of that fifteenth calendar day;
(C) Subject to subparagraph 3(g)(iv)(A) above, following the delivery of any such evidence by the Agent to the other Adhering Party, unless the other Adhering Party notifies the Agent to the contrary by the end of the fifteenth calendar day following the day on which such evidence is delivered, the Agent shall be deemed to have provided reasonable evidence satisfactory to the other Adhering Party at the end of that fifteenth calendar day;
(D) If: (I)
(I) following written request from the other Adhering Party, the Agent does not provide the other Adhering Party with any evidence supporting its authority to amend such documents or, if subparagraph 3(g)(iv)(A) above applies, with an additional copy of the relevant agreement or extracts, by the end of the fifteenth calendar day following such written request; or
(II) subject to subparagraph 3(g)(iv)(A) above, the other Adhering Party determines that the evidence provided by the Agent is not satisfactory and notifies the Agent accordingly by the end of the fifteenth calendar day following the day on which such evidence is delivered,
Then request for evidence and the Agent's right to provide such evidence and, in respect of any such evidence, subject to subparagraph 3(g)(iv)(C) above, the Non-Agent Executed Protocol Covered Document shall not be amended by this Protocol; and
(E) Any failure by the Agent to provide the other Adhering Party with such evidence shall not give rise to a Potential Event of Default or an Event of Default (each as defined in the ISDA Master Agreement), or any similar event, under that Non-Agent Executed Protocol Covered Document or other contractual right of action under this Protocol or that Non-Agent Executed Protocol Covered Document.
(v) If an Agent adheres to this Protocol and specifically names or identifies one or more Clients
(A) On whose behalf it is adhering (as contemplated in subparagraph 3(g)(i)(B) above), (B) which are excluded from adherence (as contemplated in subparagraph 3(g)(i)(C) above), and/or (C) on whose behalf it is amending Non-Agent Executed Protocol Covered Documents (as contemplated in subparagraph 3(g)(ii)(B)(II) above), as applicable, through a Platform, that Agent shall provide the legal entity identifier (LEI) of each such Client through such Platform.
(vi) If an Agent adheres to this Protocol on behalf of a Client by executing and delivering an Adherence Letter on behalf of such Client in accordance with paragraph 1 above and this paragraph 3(g), references to the Adhering Party for purposes of this Protocol (including the Attachment hereto) and the Adherence Letter shall be interpreted to refer to such Client. If, in respect of a Client, more than one Adherence Letter is accepted by ISDA in accordance with paragraph 1(b) above (by virtue of the Client adhering on its own behalf and one or more Agents adhering on behalf of that Client), then:
(A) If ISDA accepts an Adherence Letter from an Agent on behalf of a Client after it accepts an Adherence Letter from that Client, any document entered into by:
(I) That Agent acting on behalf of that Client; or
(II) If the Agent elects for Option 2 in its Adherence Letter, that Client on its own behalf but which the Agent has the authority from the relevant Client to amend, in each case, which has a Protocol Covered Document Date prior to:
(1) The Protocol Effective Date; or
(2) If later, the date of acceptance by ISDA, as agent, of an Adherence Letter from that Agent (or, if later, the date of acceptance by ISDA, as agent, of an Adherence Letter from the other Adhering Party), will be deemed to have “a Protocol Covered Document Date prior to the Protocol Effective Date (or, if later, the date of acceptance by ISDA, as agent, of an Adherence Letter (in accordance with paragraph 1(b) above) from the later of the two Adhering Parties to adhere)” for the purposes of the definitions of Protocol Covered Confirmation, Protocol Covered Credit Support Document and Protocol Covered Master Agreement below; and
(B) If ISDA accepts an Adherence Letter from a Client after it accepts an Adherence Letter from an Agent on behalf of that Client, any document entered into by the Client, whether directly or through the agency of an Agent, which has a Protocol Covered Document Date prior to:
(I) The Protocol Effective Date; or if later, the date of acceptance by ISDA, as agent, of an Adherence Letter from that Client (or, if later, the date of acceptance by ISDA, as agent, of an Adherence Letter from the other Adhering Party), will be deemed to have “a Protocol Covered Document Date prior to the Protocol Effective Date (or, if later, the date of acceptance by ISDA, as agent, of an Adherence Letter (in accordance with paragraph 1(b) above) from the later of the two Adhering Parties to adhere)” for the purposes of the definitions of Protocol Covered Confirmation, Protocol Covered Credit Support Document and Protocol Covered Master Agreement below.
(vii) If an Agent adheres to this Protocol on behalf of a Client, then as of the later of (A) the date on which such Agent adheres to this Protocol in accordance with paragraph 1 above and (B) the Protocol Covered Document Date, such Agent represents to each Adhering Party (I) with which it has entered into a Protocol Covered Document on behalf of such Client or (II) which is a party to any Non-Agent Executed Protocol Covered Document (which representation will be deemed to be repeated on the Protocol Effective Date and on the Implementation Date if one or both such dates are later than the date on which such Agent adheres to this Protocol) that it has, as at the relevant Implementation Date, all necessary authority to enter into the Adherence Letter on behalf of such Client. In respect of any Client referred to in paragraph 3(h), paragraph 3(i), paragraph 3(j) or paragraph 3(k) below, the Agent represents that it has, as at the relevant Implementation Date, all necessary authority to apply the terms of the Adherence Letter to such Client.
(h)
(i) Subject to subparagraph 3(h)(ii) below, in respect of any Client added to an Agent Protocol Covered Document between an Agent and an Adhering Party after the date of acceptance by ISDA of an Adherence Letter (in accordance with paragraph 1(b) above) from the later of the Agent and the other Adhering Party to adhere (a New Client), the Agent and such Adhering Party agree that the terms of such Agent Protocol Covered Document as between such Adhering Party and any New Client will be subject to the amendments effected by this Protocol and as between the Adhering Party and the New Client the Implementation Date shall be the date on which the New Client is added to the Agent Protocol Covered Document, unless otherwise agreed between such Agent and such Adhering Party (which agreement may, if the Agent adheres to this Protocol using the approach in subparagraph 3(g)(i)(C) above, be reached by the Agent communicating to the other Adhering Party through a Platform, at the time the New Client is added to the Agent Protocol Covered Document, that the New Client is excluded from adherence).
(ii) If an Agent adheres to this Protocol using the approach described in subparagraph 3(g)(i)(B) above and therefore specifically names or identifies one or more Clients on whose behalf it is adhering, then in order for the terms of an Agent Protocol Covered Document as between an Adhering Party and any New Client to be subject to the amendments effected by this Protocol, the Agent shall communicate the identity of each New Client (including the legal entity identifier (LEI)) to the other Adhering Party which is a party to the Agent Protocol Covered Document to which the New Client is added through a Platform and, as between the other Adhering Party and that New Client, the Implementation Date shall be the date shown on the Platform as the date on which the Agent communicates the identity of that New Client to the other Adhering Party through that Platform.
(i)
(j)
(k)
(l)
(m)
(n)
References in this Protocol and the Attachment to the following terms shall have the following meanings:
(a) 1994 ISDA Credit Support Annex (Bilateral Form; ISDA Agreements Subject to New York Law Only);
(b) 1995 ISDA Credit Support Annex (Bilateral Form—Transfer; ISDA Agreements Subject to English law);
(c) 1995 ISDA Credit Support Deed (Bilateral Form—Security Interest; ISDA Agreements Subject to English Law);
(d) 1995 ISDA Credit Support Annex (Bilateral Form—Loan and Pledge; Security Interest Subject to Japanese Law);
(e) 1995 ISDA Credit Support Annex (Bilateral Form—Transfer; ISDA Agreement Subject to French Law);
(f) 1995 ISDA Credit Support Annex (Bilateral Form—Transfer; ISDA Agreement Subject to Irish Law);
(g) 2008 ISDA Credit Support Annex (Loan/Japanese Pledge);
(h) 2013 Standard Credit Support Annex (New York Law);
(i) 2013 Standard Credit Support Annex (English Law);
(j) 2014 Standard Credit Support Annex (New York Law—Multicurrency Settlement);
(k) 2014 Standard Credit Support Annex (English Law—Multicurrency Settlement);
(l) 2014 ISDA Korean Law Credit Support Annex (Bilateral Form—Loan and Pledge; Credit Support Annex Subject to Korean Law);
(m) 2016 Credit Support Annex for Variation Margin (VM) (Bilateral Form; ISDA Agreements Subject to New York Law Only), including any such form entered into between the Parties pursuant to the ISDA 2016 Variation Margin Protocol;
(n) 2016 Credit Support Annex for Variation Margin (VM) (Bilateral Form—Transfer; ISDA Agreements Subject to English Law), including any such form entered into between the Parties pursuant to the ISDA 2016 Variation Margin Protocol;
(o) 2016 Credit Support Annex for Variation Margin (VM) (Bilateral Form—Loan; ISDA Agreements Subject to Japanese Law), including any such form entered into between the Parties pursuant to the ISDA 2016 Variation Margin Protocol;
(p) 2016 Credit Support Annex for Variation Margin (VM) (Bilateral Form—Transfer; ISDA Agreements Subject to French Law); or
(q) 2016 Credit Support Annex for Variation Margin (VM) (Bilateral Form—Transfer; ISDA Agreements Subject to Irish Law).
(a) supplements, forms part of and is subject to, or is otherwise governed by, a Master Agreement and incorporates a Covered ISDA Definitions Booklet;
(b) supplements, forms part of and is subject to, or is otherwise governed by, a Master Agreement and references a Relevant IBOR “as defined” in, or otherwise provides that the Relevant IBOR has the meaning given in, a Covered ISDA Definitions Booklet (regardless of whether such Covered ISDA Definitions Booklet is incorporated in full in that Confirmation); and/or
(c) supplements, forms part of and is subject to, or is otherwise governed by, a Master Agreement and references a Relevant IBOR, howsoever defined.
(a) Incorporates a Covered ISDA Definitions Booklet;
(b) References a Relevant IBOR “as defined” in, or otherwise provides that the Relevant IBOR has the meaning given in, a Covered ISDA Definitions Booklet (regardless of whether such Covered ISDA Definitions Booklet is incorporated in full in that ISDA Credit Support Document or Additional Credit Support Document); and/or
(c) References a Relevant IBOR, howsoever defined.
(a) Incorporates a Covered ISDA Definitions Booklet;
(b) References a Relevant IBOR “as defined” in, or otherwise provides that the Relevant IBOR has the meaning given in, a Covered ISDA Definitions Booklet (regardless of whether such Covered ISDA Definitions Booklet is incorporated in full in that Master Agreement); and/or
(c) References a Relevant IBOR, howsoever defined.
(a) Any of sterling LIBOR (London interbank offered rate), Swiss franc LIBOR (London interbank offered rate), U.S. dollar LIBOR (London interbank offered rate), euro LIBOR (London interbank offered rate), the euro interbank offered rate, Japanese yen LIBOR (London interbank offered rate), the Japanese yen Tokyo interbank offered rate, the euroyen Tokyo interbank offered rate, the bank bill swap rate, the Canadian dollar offered rate, the Hong Kong interbank offered rate, the Singapore dollar swap offer rate and the Thai baht interest rate fixing; and
(b) LIBOR (London interbank offered rate) with no reference to, or indication of, the currency of the relevant LIBOR (London interbank offered rate) (including, for the avoidance of doubt, the reference in Section 7.3 (
The purpose of this letter is to confirm our adherence to the ISDA 2020 IBOR Fallbacks Protocol as published by the International Swaps and Derivatives Association, Inc. (ISDA) on October 23, 2020 (the Protocol). By submitting this Adherence Letter, we confirm that we are an Adhering Party to the Protocol. This letter constitutes, as between each other Adhering Party and us, an Adherence Letter as referred to in the Protocol. The definitions and provisions contained in the Protocol are incorporated into this Adherence Letter, which will supplement and form part of each Protocol Covered Document between us and each other Adhering Party.
As between each Adhering Party and us, we acknowledge and agree that the amendments in the Attachment to the Protocol shall apply to each Protocol Covered Document to which we are a party in accordance with the terms of the Protocol and this Adherence Letter.
We hereby appoint ISDA as our agent for the limited purposes of the Protocol and accordingly we waive any rights and hereby release ISDA from any claims, actions or causes of action whatsoever (whether in contract, tort or otherwise) arising out of or in any way relating to this Adherence Letter or our adherence to the Protocol or any actions contemplated as being required by ISDA.
By adhering to the Protocol, we agree that all claims or disputes arising out of or in connection with adherence to the Protocol shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (the Rules) by three arbitrators, and hereby waive any right to assert any such claims or disputes against ISDA as a representative or member in any class or representative action. The claimant(s) (as defined in the Rules) shall nominate one arbitrator in the `Request for Arbitration'. The respondent(s) (as defined in the Rules) shall nominate one arbitrator in the `Answer to the Request'. The two party-nominated arbitrators shall then have 30 days to agree, in consultation with the parties to the arbitration, upon the nomination of a third arbitrator to act as president of the tribunal, barring which the International Chamber of Commerce Court shall select the third arbitrator (or any arbitrator that claimant(s) or respondent(s) shall fail to nominate in accordance with the foregoing). This agreement to arbitrate shall not be affected by the Revocation Notice as described in the Protocol.
Each Adhering Party or, if such Adhering Party is a Client on whose behalf an Agent adheres to this Protocol, each Agent, that is classified by ISDA for purposes of membership of ISDA as an “ISDA Primary Member” must submit a one-time fee of U.S. $500 to ISDA at or before the submission of this Adherence Letter. Each Adhering Party or, if such Adhering Party is a Client on whose behalf an Agent adheres to this Protocol, each Agent, which is not an “ISDA Primary Member” is not required to submit a fee to ISDA if this Adherence Letter is submitted prior to the Protocol Effective Date. If an Adhering Party or, if such Adhering Party is a Client on whose behalf an Agent adheres to this Protocol, an Agent, which is not an “ISDA Primary Member” submits this Adherence Letter on or after the Protocol Effective Date, such Adhering Party or Agent (as applicable) must submit a one-time fee of U.S. $500 to ISDA at or before the submission of this Adherence Letter.
Our contact details for purposes of this Adherence Letter are:
We consent to the publication of a conformed copy of this letter by ISDA and to the disclosure by ISDA of the contents of this letter.
If you are an Agent, you may sign the Adherence Letter using one of the options below. Please note that, if you would like to adhere on behalf of yourself, as principal, and also on behalf of your Clients, as Agent, you must submit one adherence letter for yourself, as principal, and a second adherence letter on behalf of your Clients, as Agent, in the latter case, in accordance with one of the options set out below.
First, if you have the authority to adhere to this Protocol as Agent on behalf of all Clients, you may indicate the following in the signature block: “acting on behalf of [(a)] each fund, account or other principal (each, a “Client”) on whose behalf we have entered, or will enter, into a Protocol Covered Document and any New Clients added to an Agent Protocol Covered Document in the future [and (b) in respect of any Non-Agent Executed Protocol Covered Documents, each Client which we name or identify through a Platform as being a Client in respect of which subparagraph 3(g)(ii)(B)(II) of the Protocol applies]”. If such a signature block is used, a separate Adherence Letter for each Client does not need to be submitted to ISDA and no specific names of Clients must be identified through a Platform (except if you elect for Option 2 in this Adherence Letter, in which case the Clients on whose behalf you are amending Non-Agent Executed Protocol Covered Documents should be identified through such Platform; you will be responsible for identifying such Clients and providing their LEIs. If you cannot or do not wish to name such Clients, then provided that you can identify the Clients by way of LEIs, you may identify such Clients using LEIs and without including any names). If you do not elect for Option 2 in this Adherence Letter, you should delete the wording in square brackets in the signature block.
Second, if you adhere to this Protocol as an agent on behalf of certain Clients only by specifically identifying such Clients, you may indicate the following in the signature block: “acting on behalf of [(a)] each fund, account or other principal (each a “Client”) which we name or identify through a Platform as being a Client on whose behalf we have entered, or will enter, into a Protocol Covered Document and any New Clients added to an Agent Protocol Covered Document and identified through a Platform as a New Client [and (b) in respect of any Non-Agent Executed Protocol Covered Documents, each Client which we name or identify through a Platform as being a Client in respect of which subparagraph 3(g)(ii)(B)(II) of the Protocol applies]”. You will be responsible for identifying any Clients on whose behalf you have entered into, or will enter into, a Protocol Covered Document, any New Clients and any Clients on whose behalf you amend Non-Agent Executed Protocol Covered Documents and, in each case, providing their LEIs. If you cannot or do not wish to name such Clients, then provided that you can identify the Clients by way of LEIs, you may identify such Clients using LEIs and without including any names. If you do not elect for Option 2 in this Adherence Letter, you should delete the wording in square brackets in the signature block.
Third, if you adhere to this Protocol as an agent on behalf of certain Clients only by excluding certain Clients, you may indicate the following in the signature block: “acting on behalf of [(a)] each fund, account or other principal (each, a “Client”) on whose behalf we have entered, or will enter, into a Protocol Covered Document (except for those Clients which we identify through a Platform as excluded from adherence) and any New Clients added to an Agent Protocol Covered Document (except for any New Clients which we identify through a Platform as excluded from adherence) [and (b) in respect of any Non-Agent Executed Protocol Covered Documents, each Client which we name or identify through a Platform as being a Client in respect of which subparagraph 3(g)(ii)(B)(II) of the Protocol applies]”. You will be responsible for identifying any excluded Clients and any Clients on whose behalf you amend Non-Agent Executed Protocol Covered Documents and, in each case, for providing their LEIs. If you cannot or do not wish to name those excluded Clients or those Clients on whose behalf you are amending Non-Agent Executed Protocol Covered Documents, then provided that you can identify them by way of LEIs, you may identify those Clients using LEIs and without including any names. If you do not elect for Option 2 in this Adherence Letter, you should delete the wording in square brackets in the signature block.
Fourth, if you adhere to this Protocol as an agent on behalf of no current Clients, you may indicate the following in the signature block: “acting to amend each Protocol Covered Document (or other agreement which deems a Protocol Covered Document to have been created) between it (as agent) and each Adhering Party, with respect to New Clients.”
As between each Adhering Party and us, we acknowledge and agree that the amendments in the Attachment to the Protocol shall apply to each:
□ Protocol Covered Document into which we have entered on behalf of one or more Clients covered in accordance with the terms of the Protocol and this Adherence Letter (as contemplated by Option 1 in the Protocol); or
□ Protocol Covered Document into (i) which we have entered on behalf of one or more Clients covered in accordance with the
We agree, in our capacity as Agent for the relevant Client(s), to provide each other Adhering Party, as soon as reasonably practicable following such other Adhering Party's written request (including by email), and in any event by no later than the end of the fifteenth calendar day following such request (and as required by and in accordance with subparagraph 3(g)(iv) of the Protocol), with reasonable evidence satisfactory to such other Adhering Party in its sole discretion supporting our authority to amend any Protocol Covered Document into which we did not enter on behalf of one or more Clients (whose name or identity we communicate to the other Adhering Party through a Platform as being a Client in respect of which subparagraph 3(g)(ii)(B)(II) of the Protocol applies).
Failure to provide an Adhering Party with such evidence shall (unless the Agent is deemed to have provided such evidence, pursuant to subparagraph 3(g)(iv) of the Protocol), only in respect of those Non-Agent Executed Protocol Covered Documents between the relevant Client(s) and such Adhering Party, result in this Adherence Letter being ineffective unless and until we, in our capacity as Agent for the relevant Client(s), are deemed to have provided that Adhering Party with such evidence pursuant to subparagraph 3(g)(iv) of the Protocol. Failure to provide an Adhering Party with such evidence shall not give rise to a Potential Event of Default or an Event of Default (each as defined in the ISDA Master Agreement), or any similar event, under those Protocol Covered Documents or other contractual right of action under this Protocol or those Protocol Covered Documents.
The purpose of this letter is to notify you that we wish to designate a Revocation Date as the last date on which an Implementation Date can occur pursuant to the terms of the ISDA 2020 IBOR Fallbacks Protocol as published by the International Swaps and Derivatives Association, Inc. (ISDA) on October 23, 2020 (the Protocol) in respect of any Protocol Covered Document between us and any other Adhering Party.
This letter constitutes a Revocation Notice as referred to in the Protocol.
We consent to the publication of the conformed copy of this notice by ISDA on and after the Revocation Date and to the disclosure by ISDA of the contents of this letter.
If you are an Agent and act on behalf of multiple Clients, you may sign a Revocation Notice using one of the methods below. Alternatively, you may submit one Revocation Notice per Client.
First, if you have the authority to deliver a Revocation Notice for this Protocol as Agent on behalf of all Clients, you may indicate the following in the signature block: “acting on behalf of each fund, account or other principal (each, a “Client”) represented by us (as agent)” or such other language which indicates the Clients to which this letter is applicable. If such a signature block is used, a separate Revocation Notice for each Client does not need to be submitted to ISDA and no specific names of Clients must be identified in the Revocation Notice.
Second, if you have the authority to deliver a Revocation Notice for this Protocol as Agent on behalf of certain Clients only, you may indicate the following in the signature block: “acting on behalf of each fund, account or other principal (each, a “Client”) represented by us (as agent) identified in the Revocation Notice or an appendix thereto”. If you cannot or do not wish to name such Clients, then provided that you can identify the revoking Clients by way of specific identifiers which will be known and recognized by allAdhering Parties with which the relevant Clients have entered into Confirmations, Master Agreements and/or credit support documents, you may identify such revoking Clients using specific identifiers and without including any names.
Paragraph 1(e) of the Protocol sets out the consequences of a Revocation Notice where an Agent adheres to the Protocol on behalf of a Client.
(a) 2001 FBF Master Agreement relating to Transactions on Forward Financial Instruments.
(b) 2007 FBF Master Agreement relating to Transactions on Forward Financial Instruments.
(c) 2013 FBF Master Agreement relating to Transactions on Forward Financial Instruments.
(d) 1994 AFB Master Agreement for Foreign Exchange and Derivatives Transactions.
(e) 1997 AFTI/FBF Master Agreement for Loans of Securities.
(f) 2007 AFTI/FBF Master Agreement for Loans of Securities.
(g) 2007 FBF Master Agreement for Repurchase Transactions.
(h) 1994 AFTB Master Agreement for Repurchase Transactions with Delivery of Securities.
(i) Execution Annex with respect to the AFB/FBF 1994/2001/2007/2013 Master Agreements.
(j) 1997 Spanish Master Agreement (Contrato Marco de Operaciones Financieras or CMOF) published by Asociación Española de Banca (Spanish Banking Association) and Confederación Española de Cajas de Ahorros (Spanish Confederation of Savings Banks).
(k) Annex III to the 1997 Spanish Master Agreement (Contrato Marco de Operaciones Financieras or CMOF) published by Asociación Española de Banca (Spanish Banking Association) and Confederación Española de Cajas de Ahorros (Spanish Confederation of Savings Banks).
(l) 2009 Spanish Master Agreement (Contrato Marco de Operaciones Financieras or CMOF) published by Asociación Española de Banca (Spanish Banking Association) and Confederación Española de Cajas de Ahorros (Spanish Confederation of Savings Banks).
(m) Annex III to the 2009 Spanish Master Agreement (Contrato Marco de Operaciones Financieras or CMOF) published by Asociación Española de Banca (Spanish Banking Association) and Confederación Española de Cajas de Ahorros (Spanish Confederation of Savings Banks).
(n) 2013 Spanish Master Agreement (Contrato Marco de Operaciones Financieras or CMOF) published by Asociación Española de Banca (Spanish Banking Association) and Confederación Española de Cajas de Ahorros (Spanish Confederation of Savings Banks).
(o) Annex III to the 2013 Spanish Master Agreement (Contrato Marco de Operaciones Financieras or CMOF) published by Asociación Española de Banca (Spanish Banking Association) and Confederación Española de Cajas de Ahorros (Spanish Confederation of Savings Banks).
(p) 2003 Swiss Master Agreement for OTC Derivative Instruments published by the Swiss Bankers Association.
(q) 2013 Swiss Master Agreement for OTC Derivative Instruments published by the Swiss Bankers Association (for use in connection with certain ISDA definitions).
(r) 2013 Swiss Master Agreement for OTC Derivative Instruments published by the Swiss Bankers Association (non-ISDA version not for use in connection with any ISDA definitions).
(s) 1999 Bilateral Swiss Master Agreement for Repo Transactions published by the Swiss Bankers Association.
(t) 1999 Multilateral Swiss Master Agreement for Repo Transactions published by the Swiss Bankers Association.
(u) 2011 Swiss Master Agreement for Securities Lending and Borrowing prepared by the Swiss Bankers Association.
(v) 2001 Master Agreement for Financial Transactions sponsored by the Banking Federation of the European Union (EBF or FBE) in cooperation with the European Savings Banks Group (ESBG) and the European Association of Cooperative Banks (EACB).
(w) 2004 Master Agreement for Financial Transactions sponsored by the Banking Federation of the European Union (EBF or FBE) in cooperation with the European Savings Banks Group (ESBG) and the European Association of Cooperative Banks (EACB).
(x) 2020 Master Agreement for Financial Transactions sponsored by the Banking Federation of the European Union (EBF or FBE) in cooperation with the European Savings Banks Group (ESBG) and the European Association of Cooperative Banks (EACB).
(y) Austrian Master Agreement for Financial Transactions (Österreichischer Rahmenvertrag für Finanztermingeschäfte or ÖRV).
(z) 1997 International Foreign Exchange and Options Master Agreement (FEOMA).
(aa) 1993 International Foreign Exchange Master Agreement (IFEMA).
(bb) 1997 International Foreign Exchange Master Agreement (IFEMA).
(cc) 1997 International Currency Options Market (ICOM) Master Agreement.
(dd) 2005 International Foreign Exchange and Currency Option Master Agreement (IFXCO).
(ee) 1992 PSA/ISMA Global Master Repurchase Agreement (GMRA).
(ff) 1995 PSA/ISMA Global Master Repurchase Agreement (GMRA).
(gg) 2000 TBMA/ISMA Global Master Repurchase Agreement (GMRA).
(hh) 2011 SIFMA/ICMA Global Master Repurchase Agreement (GMRA).
(ii) 2000 ISLA Global Master Securities Lending Agreement (GMSLA).
(jj) 2010 ISLA Global Master Securities Lending Agreement (GMSLA).
(kk) 2018 ISLA Global Master Securities Lending Agreement (GMSLA)—Security Interest over Collateral.
(ll) 1993 TBMA/SIA Master Securities Loan Agreement (MSLA).
(mm) 2000 TBMA/SIA Master Securities Loan Agreement (MSLA).
(nn) 2017 SIFMA Master Securities Loan Agreement (MSLA).
(oo) 1987 PSA Master Repurchase Agreement (MRA).
(pp) 1996 TBMA Master Repurchase Agreement (MRA).
(qq) 2000 SIFMA Master OTC Options Agreement.
(rr) 1989 TBMA Master Dealer Agreement, OTC Option Transaction—U.S. Treasury Securities.
(ss) Emissions Master LF-IETA Master Agreement.
(tt) WSPP Agreement.
(uu) 2004 FIA Grid Trade Master Agreement.
(vv) EEI Master Power Purchase & Sale Agreement. (ww)
EL Master—Electricity Power Master Agreement.
(xx) 1994 LBMA/FEC International Bullion Master Agreement (English law version).
(yy) 1994 LBMA/FEC International Bullion Master Agreement (New York law version).
(zz) 1997 ASLA Australian Master Securities Lending Agreement (AMSLA).
(aaa) 2002 ASLA Australian Master Securities Lending Agreement (AMSLA).
(bbb) 2003 ASLA Australian Master Securities Lending Agreement (AMSLA).
(ccc) GISB Base Short-Term Contract for Sale and Purchase of Natural Gas.
(ddd) NAESB Base Contract for Sale and Purchase of Natural Gas.
(eee) 1996 Master Gilt Edged Stock Lending Agreement (GESLA).
(fff) 1996 Master Equity and Fixed Interest Stock Lending Agreement (MEFISLA).
(ggg) 1994 Equity and Fixed Interest Stock Lending (Agency) Agreement.
(hhh) 1994 Overseas Securities Lender's Agreement (OSLA).
(iii) 1995 Overseas Securities Lender's Agreement (OSLA).
(jjj) globalCOAL Standard Coal Trading Agreement (SCoTA).
(kkk) KOFIA Agreement on Margin Transactions.
(lll) KOFIA Agreement on Foreign Exchange Margin Trading.
(mmm) KOFIA Agreement on Securities Lending and Borrowing.
(nnn) KOFIA Agreement on Repurchase Agreement (Repo) between Institutions.
(ooo) KOFIA Agreement on Repurchase Agreement (Repo) with Customers.
(ppp) KOFIA best practice Korean language agreement template for OTC derivatives.
(qqq) Investment Industry Regulatory Organization of Canada (IIROC) Repurchase/Reverse Repurchase Transaction Agreement.
(rrr) Master Agreement Concerning Stock Lending Transactions (
(sss) Master Agreement Concerning Bond Lending Transactions (
(ttt) Master Agreement Concerning Bond Repo Transactions (
(uuu) Mexican Master Derivatives Agreement (Contrato Marco para Operaciones Financieras Derivadas) published by Asociación de Bancos de Mexico (ABM) y Asociación Mexicana de Instituciones Bursatiles (AMIB).
(vvv) Mexican Master Securities Purchase and Sale/Repo Agreement (Contrato Marco para Operaciones de Compraventa de Valores y Reporto) published by Asociación de Bancos de Mexico (ABM) y Asociación Mexicana de Instituciones Bursatiles (AMIB).
(a) 2007 FBF Collateral Annex.
(b) 1997 ABF Collateral Annex.
(c) AFB/FBF Addendum to the ISDA 2016 Credit Support Annex for Variation Margin (VM).
(d) 2008 Credit Support Appendix to the Swiss Master Agreement for OTC Derivative Instruments published by the Swiss Bankers Association.
(e) 2015 Credit Support Appendix to the Swiss Master Agreement for OTC Derivative Instruments published by the Swiss Bankers Association.
(f) Credit Support Appendix for Variation Margin to the Swiss Master Agreement for OTC Derivative Instruments published by the Swiss Bankers Association.
(g) Mexican Credit Support Agreement related to Derivatives (Contrato Global para Otorgar Garantías respecto de Operaciones Financieras Derivadas) published by Asociación de Bancos de Mexico (ABM) y Asociación Mexicana de Instituciones Bursatiles (AMIB).
If a Protocol Covered Document incorporates the 2006 ISDA Definitions, the version of the 2006 ISDA Definitions so incorporated shall be amended in accordance with the terms of the IBOR Fallbacks Supplement (and, if that Protocol Covered Document is a Protocol Covered Master Agreement, any reference to a term defined in the 2006 ISDA Definitions in a Confirmation which supplements, forms part of and is subject to that Protocol Covered Master Agreement will be a reference to the term as defined in the 2006 ISDA Definitions as amended in accordance with the IBOR Fallbacks Supplement).
If a Protocol Covered Document incorporates the 2000 ISDA Definitions, the version of the 2000 ISDA Definitions so incorporated shall be amended in accordance with the terms of the IBOR Fallbacks Supplement (and, if that Protocol Covered Document is a Protocol Covered Master Agreement, any reference to a term defined in the 2000 ISDA Definitions in a Confirmation which supplements, forms part of and is subject to that Protocol Covered Master Agreement will be a reference to the
(a) Each of the following sections shall be deleted:
(i) “
(ii) “
(iii) “
(iv) “
(v) “
(vi) “
(vii) “
(viii) “
(ix) “
(x) “
(b) The section titled “
(c) The section titled “
(d) The section titled “
(e) Tn the section titled “
(i) The words “THB-THBFIX-Reference Banks” as the applicable Floating Rate Option” will be deleted and replaced with the words ““THB-SOR-Reference Banks” as the applicable Floating Rate Option, but with the following variations:” and subparagraphs (a), (b) and (c) of Section 7.1(z)(iii) of the 2000 ISDA Definitions will be inserted immediately thereafter; and
(ii) The last sentence in that paragraph will be deleted; and
(f) All references to section numbers within the 2006 ISDA Definitions will be deemed to be references to the equivalent sections within the 2000 ISDA Definitions.
If a Protocol Covered Document incorporates the 1991 ISDA Definitions and/or the 1998 Supplement to the 1991 ISDA Definitions, the version of the 1991 ISDA Definitions and/or the 1998 Supplement to the 1991 ISDA Definitions (as applicable) so incorporated shall be amended in accordance with the terms of the IBOR Fallbacks Supplement (and, if that Protocol Covered Document is a Protocol Covered Master Agreement, any reference to a term defined in the 1991 ISDA Definitions and/or the 1998 Supplement to the 1991 ISDA Definitions in a Confirmation which supplements, forms part of and is subject to that Protocol Covered Master Agreement will be a reference to the term as defined in the 1991 ISDA Definitions and/or the 1998 Supplement to the 1991 ISDA Definitions as amended in accordance with the IBOR Fallbacks Supplement), provided that the IBOR Fallbacks Supplement shall be deemed amended as follows:
(a) If the Protocol Covered Document incorporates the 1991 ISDA Definitions only, the 1991 ISDA Definitions as supplemented by the 1998 Supplement to the 1991 ISDA Definitions or the 1998 Supplement to the 1991 ISDA Definitions only, each of the following sections shall be deleted:
(i) “
(ii) “
(iii) “
(iv) “
(v) “
(vi) “
(vii) “
(viii)
(ix) “
(x) “
(xi) “
(xii) “
(xiii) “
(b) If the Protocol Covered Document incorporates the 1991 ISDA Definitions only, each of the following sections shall be deleted:
(i) “
(ii) “
(c) If the Protocol Covered Document incorporates the 1991 ISDA Definitions as supplemented by the 1998 Supplement to the 1991 ISDA Definitions or the 1998 Supplement to the 1991 ISDA Definitions only, the section titled “
(d) The section titled “
(e) The section titled “
(f) All references to section numbers within the 2006 ISDA Definitions will be deemed to be references to the equivalent sections within the 1991 ISDA Definitions or the 1998 Supplement to the 1991 ISDA Definitions (as applicable).
If a Protocol Covered Document incorporates the 1998 ISDA Euro Definitions:
(a) the version of the 1998 ISDA Euro Definitions so incorporated shall be amended in accordance with the terms of the IBOR Fallbacks Supplement (and, if that Protocol Covered Document is a Protocol Covered Master Agreement, any reference to a term defined in the 1998 ISDA Euro Definitions in a Confirmation which supplements, forms part of and is subject to that Protocol Covered Master Agreement will be a reference to the term as defined in the 1998 ISDA Euro Definitions as amended in accordance with the IBOR Fallbacks Supplement), provided that the IBOR Fallbacks Supplement shall be deemed amended as follows:
(i) Each of the following sections shall be deleted:
(A) “
(B) “
(C) “
(D) “
(E) “
(F) “
(G) “
(H) “
(I) “
(J) “
(K) “
(L) “
(M) “
(N) “
(O) “
(P) “
(Q) “
(R) “
(S) “
(T) “
(U) “
(V) “
(ii) the section titled “
(iii) all references to section numbers within the 2006 ISDA Definitions will be deemed to be references to the equivalent sections within the 1998 ISDA Euro Definitions.
(b) If a Relevant Rate (as defined in the 1991 ISDA Definitions) is to be determined pursuant to Section 4.3(b) (
A Protocol Covered Document of the type described in subparagraph (b) of, respectively, the definition of Protocol Covered Confirmation, Protocol Covered Credit Support Document or Protocol Covered Master Agreement shall be amended so that the reference to the Relevant IBOR “as defined in”, or the reference to the Relevant IBOR as having the meaning given in, the Covered ISDA Definitions Booklet will instead be a reference to the relevant Rate Option in the IBOR Fallbacks Supplement (or, if there is more than one relevant Rate Option, the first relevant Rate Option in the
(a) If the Relevant IBOR is:
(i) “EUR-EURIBOR-Telerate”, it will be deemed to be a reference to “EUR-EURIBOR- Reuters”;
(ii) “AUD-BBR-ISDC”, it will be deemed to be a reference to “AUD-BBR-AUBBSW”;
(iii) “XEU-LIBOR-BBA”, it will be deemed to be a reference to “EUR-LIBOR-BBA”; and
(iv) “SGD-SOR-Telerate”, it will be deemed to be a reference to “SGD-SOR-VWAP”, in each case, as defined in the IBOR Fallbacks Supplement; and
(b) If the Relevant IBOR is “THB-THBFIX-Reuters” and the Covered ISDA Definitions Booklet is the 2000 ISDA Definitions, the IBOR Fallbacks Supplement shall be deemed amended in accordance with subparagraph 2(e) of this Attachment.
If a Protocol Covered Document is of the type described in subparagraph (c) of, respectively, the definition of Protocol Covered Confirmation, Protocol Covered Credit Support Document or Protocol Covered Master Agreement and, in each case, includes a reference to a Relevant IBOR pursuant to which the Relevant IBOR is required for any determination, and:
(a) (i) the Relevant IBOR which is required for that determination is neither the Singapore dollar swap offer rate nor the Thai baht interest rate fixing, (ii) the Relevant IBOR which is required for that determination has not been published by the source that is specified or otherwise ordinarily used to determine the level of the Relevant IBOR on the day on which it is required, and (iii) an Index Cessation Effective Date with respect to the Relevant IBOR has not occurred, then the reference to the Relevant IBOR will be deemed to be a reference to the rate as provided by the administrator of the Relevant IBOR and published by an authorized distributor of the Relevant IBOR or the administrator of the Relevant IBOR itself in respect of the day on which it is required. If neither an authorized distributor nor the administrator has published or provided the Relevant IBOR in respect of that day and an Index Cessation Effective Date with respect to the Relevant IBOR has not occurred, then, unless otherwise agreed by the parties, the reference to the Relevant IBOR will be deemed to be a reference to:
(A) A rate formally recommended for use by the administrator of the Relevant IBOR; or
(B) A rate formally recommended for use by:
(I) If the Relevant IBOR which is required for that determination is Swiss franc LIBOR, the competent authority responsible for supervising that rate or the administrator of that rate;
(II) If the Relevant IBOR which is required for that determination is sterling LIBOR, euro LIBOR or the euro interbank offered rate, the supervisor which is responsible for supervising the Relevant IBOR or the administrator of the Relevant IBOR;
(III) If the Relevant IBOR which is required for that determination is Japanese yen LIBOR, the Japanese yen Tokyo interbank offered rate or the euroyen Tokyo interbank offered rate, a committee officially endorsed or convened by the Bank of Japan for the purposes of recommending an alternative rate for that Relevant IBOR (which rate may be produced by the Bank of Japan or another administrator) or any other supervisor which is responsible for supervising the Relevant IBOR or the administrator of the Relevant IBOR;
(IV) If the Relevant IBOR which is required for that determination is U.S. dollar LIBOR, the Federal Reserve Board or the Federal Reserve Bank of New York or any other supervisor which is responsible for supervising the Relevant IBOR or the administrator of the Relevant IBOR; and
(V) If the Relevant IBOR which is required for that determination is the bank bill swap rate, the Australian Securities and Investments Commission (or any successor to the Australian Securities and Investments Commission in its role as supervisor of the bank bill swap rate),
In each case, during the period of non-publication of the Relevant IBOR and for so long as an Index Cessation Effective Date has not occurred. If a rate described in subparagraph (A) above is available, that rate shall apply. If no such rate is available but, in respect of the Relevant IBOR, a rate described in subparagraph (B) above, if applicable, is available, that rate shall apply. If neither a rate described in subparagraph (A) above is available nor a rate described in subparagraph (B) above, if applicable, is available, then the Calculation Agent shall determine a commercially reasonable alternative for the Relevant IBOR, taking into account any rate implemented by central counterparties and/or futures exchanges, in each case with trading volumes in derivatives or futures referencing the Relevant IBOR that the Calculation Agent considers sufficient for that rate to be a representative alternative rate.
If the Relevant IBOR is the Hong Kong interbank offered rate and the Protocol Covered Document provides that the Hong Kong Association of Banks' (or any successor's) typhoon and rainstorm arrangements (as published on the Hong Kong Association of Banks' website or on any successor website) apply, then those typhoon and rainstorm arrangements shall continue to apply and shall take precedence over the provisions of this paragraph 6(a);
(b) (i) The Relevant IBOR which is required for that determination is the Singapore dollar swap offer rate, (ii) the Singapore dollar swap offer rate has not been published by the source that is specified or otherwise ordinarily used to determine the level of the Singapore dollar swap offer rate on the day on which it is required and (iii) an Index Cessation Effective Date with respect to U.S. dollar LIBOR has not occurred, then the reference to the Singapore dollar swap offer rate will be deemed to be a reference to the substitute rate announced by ABS Benchmarks Administration Co Pte. Ltd. (or its successor as administrator or sponsor of that rate) in respect of the Singapore dollar swap offer rate.
If ABS Benchmarks Administration Co Pte. Ltd. (or its successor as administrator or sponsor of that rate) has not announced a substitute rate by 9:00 p.m., Singapore time, on the Relevant Original Fixing Date and an Index Cessation Effective Date with respect to U.S. dollar LIBOR has not occurred, then, unless otherwise agreed by the parties, the reference to the Singapore dollar swap offer rate will be deemed to be a reference to:
(A) A rate formally recommended for use by the administrator of the Singapore dollar swap offer rate; or
(B) A rate formally recommended for use by the Monetary Authority of Singapore (or any other supervisor which is responsible for supervising the Singapore dollar swap offer rate or the administrator of the Singapore dollar swap offer rate) or a committee officially endorsed or convened by the Monetary Authority of Singapore (or any other supervisor which is responsible for supervising the Singapore dollar swap offer rate or the administrator of the Singapore dollar swap offer rate), in each case, during the period of non-publication of the Singapore dollar swap offer rate and for so long as an Index Cessation Effective Date with respect to U.S. dollar LIBOR has not occurred. If a rate described in subparagraph (A) above is available, that rate shall apply. If no such rate is available but a rate described in subparagraph (B) above is available, that rate shall apply. If neither a rate described in subparagraph (A) above nor a rate described in subparagraph (B) above is available, then the Calculation Agent shall determine a commercially reasonable alternative for the Singapore dollar swap offer rate, taking into account any rate implemented by central counterparties and/or futures exchanges, in each case with trading volumes in derivatives or futures referencing the Singapore dollar swap offer rate that the Calculation Agent considers sufficient for that rate to be a representative alternative rate;
(c) (i) the Relevant IBOR which is required for that determination is the Thai baht interest rate fixing, (ii) the Thai baht interest rate fixing has not been published by the source that is specified or otherwise ordinarily used to determine the level of the Thai baht interest rate fixing on the day on which it is required and (iii) an Index Cessation Effective Date with respect to U.S. dollar LIBOR has not occurred, then the reference to the Thai baht interest rate fixing will be deemed to be a reference to “THB-THBFIX-Reference Banks” (as defined in the 2006 ISDA Definitions) but with the references to (A) “Reset Date” being replaced by “the day on which the rate is required”; (B) “Designated Maturity” being replaced by
(d) Subject to paragraphs 6(e), (f) and (g) below, an Index Cessation Event has occurred with respect to the Relevant IBOR (or, if the Relevant IBOR is either the Singapore dollar swap offer rate or the Thai baht interest rate fixing, with respect to U.S. dollar LIBOR), then the reference to the Relevant IBOR will be deemed to be a reference to the Applicable Fallback Rate from and including either the Index Cessation Effective Date or, if the Relevant IBOR is observed on a day that is a period of time prior to the date for which the Relevant IBOR is set, such period of time following the Index Cessation Effective Date, provided that:
(i) If the Applicable Fallback Rate is Fallback Rate (SONIA), Fallback Rate (SARON), Fallback Rate (SOFR), Fallback Rate (EuroSTR), Fallback Rate (TONA), Fallback Rate (AONIA), Fallback Rate (CORRA), Fallback Rate (HONIA), Fallback Rate (SOR) or Fallback Rate (THBFIX), then the rate for the Relevant Original Fixing Date will be the Applicable Fallback Rate for the `Original IBOR Rate Record Day' (or, if Fallback Rate (SOR) or Fallback Rate (THBFIX) is the Applicable Fallback Rate, for the `Original SOR Rate Record Day' or `Original THBFIX Rate Record Day', as applicable) that corresponds to the Relevant Original Fixing Date, as most recently provided or published as at the Applicable Cut-off Time. If neither the provider of the Applicable Fallback Rate (or a successor provider, which, if the Applicable Fallback Rate is Fallback Rate (SONIA), Fallback Rate (SARON), Fallback Rate (SOFR), Fallback Rate (EuroSTR), Fallback Rate (TONA), Fallback Rate (AONIA), Fallback Rate (CORRA) or Fallback Rate (HONIA), is approved and/or appointed by ISDA from time to time) provides, nor any authorized distributors publish, the Applicable Fallback Rate for that `Original IBOR Rate Record Day' (or that `Original SOR Rate Record Day' or `Original THBFIX Rate Record Day', as applicable) at, or prior to, the Applicable Cut-off Time and a Fallback Index Cessation Effective Date with respect to that Applicable Fallback Rate has not occurred, then the rate for the Relevant Original Fixing Date will be the Applicable Fallback Rate as most recently provided or published at the Applicable Cut-off Time for the most recent `Original IBOR Rate Record Day' (or `Original SOR Rate Record Day' or `Original THBFIX Rate Record Day', as applicable), notwithstanding that such day does not correspond to the Relevant Original Fixing Date;
(ii) If (A) the Applicable Fallback Rate is SONIA, the GBP Recommended Rate, SARON, the NWG Recommended Rate, the Modified SNB Policy Rate, SOFR, the Fed Recommended Rate, OBFR, the FOMC Target Rate, EuroSTR, the ECB Recommended Rate, Modified EDFR, TONA, the JPY Recommended Rate, AONIA, the RBA Recommended Rate, CORRA, the CAD Recommended Rate, the BOC Target Rate, HONIA, the HKD Recommended Rate, the MAS Recommended Rate, SORA, the BOT Recommended Rate or THOR, (B) neither the administrator provides nor authorized distributors publish that Applicable Fallback Rate (or if the Applicable Fallback Rate is the Modified SNB Policy Rate or Modified EDFR, the index, benchmark or other price source that is referred to in the definition thereof) and (C) a Fallback Index Cessation Effective Date with respect to that Applicable Fallback Rate has not occurred, then, in respect of any day for which that Applicable Fallback Rate is required, references to that Applicable Fallback Rate will be deemed to be references to the last provided or published Applicable Fallback Rate. If the Applicable Fallback Rate is the Modified SNB Policy Rate or Modified EDFR, references to that Applicable Fallback Rate in subparagraph 6(d)(ii)(C) above shall be deemed to be references to the index, benchmark or other price source that is referred to in the definition of Modified SNB Policy Rate or Modified EDFR, as applicable; and
(iii) If the Applicable Fallback Rate is UK Bank Rate, in respect of any day for which the UK Bank Rate is required, references to the UK Bank Rate will be deemed to be references to the last provided or published UK Bank Rate as at close of business in London on that day.
If the Relevant IBOR is the Singapore dollar swap offer rate or the Thai baht interest rate fixing, an Index Cessation Event with respect to U.S. dollar LIBOR will also occur if the Relevant IBOR in the relevant tenor (which under the 2006 ISDA Definitions would be equivalent to the “Designated Maturity”) has not been published by the source that is specified or otherwise ordinarily used to determine the level of the Relevant IBOR and, as of the Relevant Original Fixing Date, U.S. dollar LIBOR in the relevant tenor (which under the 2006 ISDA Definitions would be equivalent to the “Designated Maturity”) has been permanently discontinued or is Non-Representative and there is either no U.S. dollar LIBOR which has not been permanently discontinued and which is not Non-Representative for a period which is longer than that relevant tenor or no U.S. dollar LIBOR which has not been permanently discontinued and which is not Non-Representative for a period which is shorter than that relevant tenor. The related Index Cessation Effective Date shall be the first date on which there is no such longer or shorter rate or, if later, the first date on which U.S. dollar LIBOR in the relevant tenor (which under the 2006 ISDA Definitions would be equivalent to the “Designated Maturity”) is permanently unavailable or Non-Representative.
For the purposes of this paragraph 6(d), references to an “Original IBOR Rate Record Day”, “Original SOR Rate Record Day” and “Original THBFIX Rate Record Day” are to that term as used on the Fallback Rate Screen. For the purposes of the immediately preceding paragraph above, (A) references to a rate being “permanently discontinued” or “permanently unavailable” shall be deemed to be references to such rate being permanently discontinued or permanently unavailable following a public statement or publication of information which would constitute an Index Cessation Event in accordance with subparagraphs (a) and (b) of the definition thereof in respect of that rate in the relevant tenor and (B) references to “U.S. dollar LIBOR” in the definition of “Non-Representative” shall be deemed to be references to the relevant tenor of U.S. dollar LIBOR;
(e) If the Relevant IBOR which is required for that determination is neither the Singapore dollar swap offer rate nor the Thai baht interest rate fixing and:
(i) The determination for which the Relevant IBOR is required is ordinarily made by reference to linear interpolation between two rates, each of which is based on the Relevant IBOR, then (notwithstanding paragraph 6(d) above) the provisions of Section 7.9(a) of the 2006 ISDA Definitions shall be deemed to apply, provided that the Calculation Agent shall make such adaptations as are reasonable and necessary to the provisions of Section 7.9(a) of the 2006 ISDA Definitions in order to apply them to the relevant Protocol Covered Document;
(ii) The Relevant IBOR which is required for that determination is to be determined by reference to one or more rates, either (A) at least one of which has been permanently discontinued, or (B) if the Relevant IBOR is a Relevant LIBOR, at least one of which is Non-Representative, and, in either case, at least two Relevant IBOR tenors, at least one of which is shorter than the period of time in respect of which the Relevant IBOR is to be determined and at least one of which is longer than the period of time in respect of which the Relevant IBOR is to be determined, have not been permanently discontinued (and, if the Relevant IBOR is a Relevant LIBOR, are not Non- Representative), then the provisions of Section 8.5 and Section 8.6 of the 2006 ISDA Definitions shall be deemed to apply, provided that the Calculation Agent shall make such adaptations as are reasonable and necessary to the provisions of Sections 8.5 and 8.6 of the 2006 ISDA Definitions in order to apply them to the relevant Protocol Covered Document;
(iii) The Relevant IBOR which is required for that determination is to be determined by reference to a tenor of the Relevant IBOR which has been permanently discontinued (or, if the Relevant IBOR is a Relevant LIBOR, which is Non-Representative), and there are either no shorter or no longer tenors in respect of the Relevant IBOR which have not been permanently discontinued (or, if the Relevant IBOR is a Relevant LIBOR, which are not Non-Representative), then an Index Cessation Event shall be deemed to have occurred with respect to the Relevant IBOR and the Index Cessation Effective Date shall be the first date on which there is either no such shorter or no such longer tenor or, if
(iv) In the event of any inconsistency between the provisions of subparagraph 6(e)(ii) or subparagraph 6(e)(iii) above and the provisions of subparagraph 6(e)(i) above, subparagraph 6(e)(i) above shall prevail; and
(v) In the event of any inconsistency between the provisions of subparagraph 6(e)(ii) or subparagraph 6(e)(iii) above and paragraph 6(d) above (including any terms used in paragraph 6(d) above and defined below), subparagraph 6(e)(ii) or subparagraph 6(e)(iii) above (as applicable) shall prevail,
For the purposes of this paragraph 6(e), (A) references to a rate being “permanently discontinued” shall be deemed to be references to such rate being permanently discontinued following a public statement or publication of information which would constitute an Index Cessation Event in accordance with subparagraphs (a) and (b) of the definition thereof in respect of that rate in the relevant tenor, (B) references to the “Relevant LIBOR” in the definition of “Non-Representative” shall be deemed to be references to the relevant tenor of the Relevant LIBOR and (C) Section 7.9(a), 8.5 and 8.6 of the 2006 ISDA Definitions shall be construed in accordance with Sections 7.3(r) and 7.3(s) of the 2006 ISDA Definitions;
(f) If the Relevant IBOR which is required for that determination is the Singapore dollar swap offer rate or the Thai baht interest rate fixing and the determination for which the Relevant IBOR is required is ordinarily made by reference to linear interpolation between two rates, each of which is based on the Relevant IBOR, then (notwithstanding paragraph 6(d) above) the provisions of Section 7.10(a) of the 2006 ISDA Definitions shall be deemed to apply, provided that the Calculation Agent shall make such adaptations as are reasonable and necessary to the provisions of Section 7.10(a) of the 2006 ISDA Definitions in order to apply them to the relevant Protocol Covered Document.
For the purposes of this paragraph 6(f), Section 7.10(a) of the 2006 ISDA Definitions shall be construed in accordance with Sections 7.3(r) and 7.3(s) of the 2006 ISDA Definitions;
(g) If (i) the Relevant IBOR which is required for that determination is the Singapore dollar swap offer rate or the Thai baht interest rate fixing and the Applicable Fallback Rate is Fallback Rate (SOR) or Fallback Rate (THBFIX), as applicable, (ii) the determination for which the Relevant IBOR is required is not ordinarily made by reference to linear interpolation between two rates and (iii) the period of time for which the rate is required (which under the 2006 ISDA Definitions would be the “Calculation Period”) is shorter than the Relevant IBOR in the relevant tenor (which under the 2006 ISDA Definitions would be the “Designated Maturity”), then (notwithstanding paragraph 6(d) above) the provisions of Section 7.11(a) of the 2006 ISDA Definitions shall be deemed to apply, provided that the Calculation Agent shall make such adaptations as are reasonable and necessary to the provisions of Section 7.11(a) of the 2006 ISDA Definitions in order to apply them to the relevant Protocol Covered Document; and
(h) If the definition, methodology, formula or other means of calculating the Relevant IBOR or the Applicable Fallback Rate (or, if applicable, the index, benchmark or other price source that is referred to in the Relevant IBOR or the Applicable Fallback Rate) is modified, each party acknowledges that, unless otherwise specified or agreed, references to that Relevant IBOR or the Applicable Fallback Rate (or the index, benchmark or other price source that is referred to in the Relevant IBOR or the Applicable Fallback Rate) shall be to the Relevant IBOR or the Applicable Fallback Rate (or the index, benchmark or other price source that is referred to in the Relevant IBOR or the Applicable Fallback Rate) as modified. In the event of any inconsistency between this paragraph 6(h) and paragraphs 6(a) through 6(d) above (including any terms used in those paragraphs and defined below and including subparagraphs 6(e)(ii) and 6(e)(iii) above as they apply in priority to paragraph 6(d) above), paragraphs 6(a) through 6(d) above including subparagraphs 6(e)(ii) and 6(e)(iii) as they apply in priority to paragraph 6(d) above shall prevail.
If the Relevant IBOR referenced in the Protocol Covered Document is LIBOR with no reference to, or indication of, the currency of the relevant LIBOR (including, for the avoidance of doubt, the reference in Section 7.3 (
For the purposes of any Protocol Covered Document which does not include a definition of “Calculation Agent”, the term “Calculation Agent” shall be deemed to be a reference to a party or parties who would ordinarily be responsible for calculating or determining any rates or amounts payable under the relevant Protocol Covered Document and performing any associated duties.
If the Protocol Covered Document to which this paragraph 6 applies is a Protocol Covered Master Agreement, the Relevant IBOR is defined in the Protocol Covered Master Agreement and that definition is referenced in a Confirmation that supplements, forms part of and is subject to that Protocol Covered Master Agreement, then the reference in the Protocol Covered Master Agreement to the Relevant IBOR as amended by this paragraph 6 will also apply to the reference to the Relevant IBOR in that Confirmation.
For these purposes:
“
(a) Swiss franc LIBOR, U.S. dollar LIBOR or Japanese yen LIBOR, London Banking Days (as defined in the 2006 ISDA Definitions);
(b) Euro LIBOR or the euro interbank offered rate, TARGET Settlement Days (as defined in the 2006 ISDA Definitions);
(c) The Japanese yen Tokyo interbank offered rate or the euroyen Tokyo interbank offered rate, Tokyo Banking Days (as defined in the 2006 ISDA Definitions);
(d) The Singapore dollar swap offer rate, Singapore and London Banking Days (as defined in the 2006 ISDA Definitions); and
(e) The Thai baht interest rate fixing, Bangkok Banking Days (as defined in the 2006 ISDA Definitions).
“
(a) for Fallback Rate (SONIA), 11:30 a.m., London time;
(b) for Fallback Rate (SARON), 8:30 p.m., Zurich time;
(c) for Fallback Rate (SOFR), 10:30 a.m., New York City time;
(d) for Fallback Rate (EuroSTR), 11:30 a.m., Frankfurt time;
(e) for Fallback Rate (TONA), 12:30 p.m., Tokyo time;
(f) for Fallback Rate (AONIA), 11:30 a.m., Sydney time;
(g) for Fallback Rate (CORRA), 11:30 a.m., Toronto time;
(h) for Fallback Rate (HONIA), 7:30 p.m., Hong Kong time;
(i) for Fallback Rate (SOR), 11:30 a.m., New York City time; and
(j) for Fallback Rate (THBFIX), 10:00 a.m., Bangkok time, in each case, on the Fallback Observation Day.
“
(a) Sterling LIBOR, Fallback Rate (SONIA) or if a Fallback Index Cessation Event has occurred with respect to Fallback Rate (SONIA), then the Applicable Fallback Rate for any Fallback Observation Day that occurs on or after the Fallback Index Cessation Effective Date with respect to Fallback Rate (SONIA) will be the Sterling Overnight Index Average (“SONIA”) rate administered by the Bank of England (or any successor administrator), to which the Calculation Agent shall apply the most recently published spread, as at the Fallback Index Cessation Effective Date with respect to Fallback Rate (SONIA), referred to in the definition of “Fallback Rate (SONIA)” after making such adjustments to SONIA as are necessary to account for any difference in term structure or tenor of SONIA by comparison to Fallback Rate (SONIA) and by reference to the Bloomberg IBOR Fallback Rate Adjustments Rule Book. If a Fallback Index Cessation Effective Date occurs with respect to each of Fallback Rate (SONIA) and SONIA, then the Applicable Fallback Rate for any Fallback Observation Day that occurs on or after the Fallback Index Cessation Effective Date with respect to Fallback Rate (SONIA) (or, if later, the Fallback Index Cessation Effective Date with respect to SONIA) will be the GBP Recommended Rate, to which the Calculation Agent shall apply the most recently published spread, as at the Fallback Index Cessation Effective Date with respect to Fallback Rate (SONIA), referred to in the definition of “Fallback Rate (SONIA)” after
(b) Swiss franc LIBOR, Fallback Rate (SARON) or if a Fallback Index Cessation Event has occurred with respect to Fallback Rate (SARON), then the Applicable Fallback Rate for any Fallback Observation Day that occurs on or after the Fallback Index Cessation Effective Date with respect to Fallback Rate (SARON) will be the Swiss Average Rate Overnight (“SARON”) administered by SIX Swiss Exchange AG (or any successor administrator), to which the Calculation Agent shall apply the most recently published spread, as at the Fallback Index Cessation Effective Date with respect to Fallback Rate (SARON), referred to in the definition of “Fallback Rate (SARON)” after making such adjustments to SARON as are necessary to account for any difference in term structure or tenor of SARON by comparison to Fallback Rate (SARON) and by reference to the Bloomberg IBOR Fallback Rate Adjustments Rule Book.
If a Fallback Index Cessation Effective Date occurs with respect to each of Fallback Rate (SARON) and SARON, then the Applicable Fallback Rate for any Fallback Observation Day that occurs on or after the Fallback Index Cessation Effective Date with respect to Fallback Rate (SARON) (or, if later, the Fallback Index Cessation Effective Date with respect to SARON) will be the NWG Recommended Rate, to which the Calculation Agent shall apply the most recently published spread, as at the Fallback Index Cessation Effective Date with respect to Fallback Rate (SARON), referred to in the definition of “Fallback Rate (SARON)” after making such adjustments to the NWG Recommended Rate as are necessary to account for any difference in term structure or tenor of the NWG Recommended Rate by comparison to Fallback Rate (SARON) and by reference to the Bloomberg IBOR Fallback Rate Adjustments Rule Book.
If there is no NWG Recommended Rate before the end of the first Zurich Banking Day (as defined in the 2006 ISDA Definitions) following the Fallback Index Cessation Effective Date with respect to Fallback Rate (SARON) (or, if later, the end of the first Zurich Banking Day following the Fallback Index Cessation Effective Date with respect to SARON), then the Applicable Fallback Rate for any Fallback Observation Day that occurs on or after the Fallback Index Cessation Effective Date with respect to Fallback Rate (SARON) (or, if later, the Fallback Index Cessation Effective Date with respect to SARON) will be the Modified SNB Policy Rate, to which the Calculation Agent shall apply the most recently published spread, as at the Fallback Index Cessation Effective Date with respect to Fallback Rate (SARON), referred to in the definition of “Fallback Rate (SARON)” after making such adjustments to the Modified SNB Policy Rate as are necessary to account for any difference in term structure or tenor of the Modified SNB Policy Rate by comparison to Fallback Rate (SARON) and by reference to the Bloomberg IBOR Fallback Rate Adjustments Rule Book;
(c) U.S. dollar LIBOR, Fallback Rate (SOFR) or if a Fallback Index Cessation Event has occurred with respect to Fallback Rate (SOFR), then the Applicable Fallback Rate for any Fallback Observation Day that occurs on or after the Fallback Index Cessation Effective Date with respect to Fallback Rate (SOFR) will be the Secured Overnight Financing Rate (“SOFR”) administered by the Federal Reserve Bank of New York (or any successor administrator), to which the Calculation Agent shall apply the most recently published spread, as at the Fallback Index Cessation Effective Date with respect to Fallback Rate (SOFR), referred to in the definition of “Fallback Rate (SOFR)” after making such adjustments to SOFR as are necessary to account for any difference in term structure or tenor of SOFR by comparison to Fallback Rate (SOFR) and by reference to the Bloomberg IBOR Fallback Rate Adjustments Rule Book.
If a Fallback Index Cessation Effective Date occurs with respect to each of Fallback Rate (SOFR) and SOFR, then the Applicable Fallback Rate for any Fallback Observation Day that occurs on or after the Fallback Index Cessation Effective Date with respect to Fallback Rate (SOFR) (or, if later, the Fallback Index Cessation Effective Date with respect to SOFR) will be the Fed Recommended Rate, to which the Calculation Agent shall apply the most recently published spread, as at the Fallback Index Cessation Effective Date with respect to Fallback Rate (SOFR), referred to in the definition of “Fallback Rate (SOFR)” after making such adjustments to the Fed Recommended Rate as are necessary to account for any difference in term structure or tenor of the Fed Recommended Rate by comparison to Fallback Rate (SOFR) and by reference to the Bloomberg IBOR Fallback Rate Adjustments Rule Book. If there is no Fed Recommended Rate before the end of the first U.S. Government Securities Business Day (as defined in the 2006 ISDA Definitions) following the Fallback Index Cessation Effective Date with respect to Fallback Rate (SOFR) (or, if later, the end of the first U.S. Government Securities Business Day following the Fallback Index Cessation Effective Date with respect to SOFR), or there is a Fed Recommended Rate and a Fallback Index Cessation Effective Date subsequently occurs with respect to it, then the Applicable Fallback Rate for any Fallback Observation Day that occurs on or after the Fallback Index Cessation Effective Date with respect to Fallback Rate (SOFR) (or, if later, the Fallback Index Cessation Effective Date with respect to SOFR) or the Fallback Index Cessation Effective Date with respect to the Fed Recommended Rate (as applicable) will be OBFR, to which the Calculation Agent shall apply the most recently published spread, as at the Fallback Index Cessation Effective Date with respect to Fallback Rate (SOFR), referred to in the definition of “Fallback Rate (SOFR)” after making such adjustments to OBFR as are necessary to account for any difference in term structure or tenor of OBFR by comparison to Fallback Rate (SOFR) and by reference to the Bloomberg IBOR Fallback Rate Adjustments Rule Book.
If there is no Fed Recommended Rate, or there is a Fed Recommended Rate and a Fallback Index Cessation Effective Date subsequently occurs with respect to it, and a Fallback Index Cessation Effective Date also occurs with respect to OBFR, then the Applicable Fallback Rate for any Fallback Observation Day that occurs on or after the Fallback Index Cessation Effective Date with respect to OBFR (or, if later, the Fallback Index Cessation Effective Date with respect to the Fed Recommended Rate, SOFR or Fallback Rate (SOFR), as applicable) will be the FOMC Target Rate, to which the Calculation Agent shall apply the most recently published spread, as at the Fallback Index Cessation Effective Date with respect to Fallback Rate (SOFR), referred to in the definition of “Fallback Rate (SOFR)” after making such adjustments to the FOMC Target Rate as are necessary to account for any difference in term structure or tenor of the FOMC Target Rate by comparison to Fallback Rate (SOFR) and by reference to the Bloomberg IBOR Fallback Rate Adjustments Rule Book;
(d) Euro LIBOR and the euro interbank offered rate, Fallback Rate (EuroSTR) or if a Fallback Index Cessation Event has occurred with respect to Fallback Rate (EuroSTR), then the Applicable Fallback Rate for any Fallback Observation Day that occurs on or after the Fallback Index Cessation Effective Date with respect to Fallback Rate (EuroSTR) will be the Euro Short-Term Rate (“EuroSTR”) administered by the European Central Bank (or any successor administrator), to which the Calculation Agent shall apply the most recently published spread, as at the Fallback Index Cessation Effective Date with respect to Fallback Rate (EuroSTR), referred to in the definition of “Fallback Rate (EuroSTR)” after
If no ECB Recommended Rate is recommended before the end of the first TARGET Settlement Day (as defined in the 2006 ISDA Definitions) following the Fallback Index Cessation Effective Date with respect to Fallback Rate (EuroSTR) (or, if later, the end of the first TARGET Settlement Day following the Fallback Index Cessation Effective Date with respect to EuroSTR), or a Fallback Index Cessation Effective Date with respect to the ECB Recommended Rate subsequently occurs, then the Applicable Fallback Rate for any Fallback Observation Day that occurs on or after the Fallback Index Cessation Effective Date with respect to Fallback Rate (EuroSTR) (or, if later, the Fallback IndexCessation Effective Date with respect to EuroSTR) or the Fallback Index Cessation Effective Date with respect to the ECB Recommended Rate (as applicable) will be Modified EDFR, to which the Calculation Agent shall apply the most recently published spread, as at the Fallback Index Cessation Effective Date with respect to Fallback Rate (EuroSTR), referred to in the definition of “Fallback Rate (EuroSTR)” after making such adjustments to Modified EDFR as are necessary to account for any difference in term structure or tenor of Modified EDFR by comparison to Fallback Rate (EuroSTR) and by reference to the Bloomberg IBOR Fallback Rate Adjustments Rule Book;
(e) Japanese yen LIBOR, the Japanese yen Tokyo interbank offered rate and the euroyen Tokyo interbank offered rate, Fallback Rate (TONA) or if a Fallback Index Cessation Event has occurred with respect to Fallback Rate (TONA), then the Applicable Fallback Rate for any Fallback Observation Day that occurs on or after the Fallback Index Cessation Effective Date with respect to Fallback Rate (TONA) will be the Tokyo Overnight Average Rate (“TONA”) administered by the Bank of Japan (or any successor administrator), to which the Calculation Agent shall apply the most recently published spread, as at the Fallback Index Cessation Effective Date with respect to Fallback Rate (TONA), referred to in the definition of “Fallback Rate (TONA)” after making such adjustments to TONA as are necessary to account for any difference in term structure or tenor of TONA by comparison to Fallback Rate (TONA) and by reference to the Bloomberg IBOR Fallback Rate Adjustments Rule Book. If a Fallback Index Cessation Effective Date occurs with respect to each of Fallback Rate (TONA) and TONA, then the Applicable Fallback Rate for any Fallback Observation Day that occurs on or after the Fallback Index Cessation Effective Date with respect to Fallback Rate (TONA) (or, if later, the Fallback Index Cessation Effective Date with respect to TONA) will be the JPY Recommended Rate, to which the Calculation Agent shall apply the most recently published spread, as at the Fallback Index Cessation Effective Date with respect to Fallback Rate (TONA), referred to in the definition of “Fallback Rate (TONA)” after making such adjustments to the JPY Recommended Rate as are necessary to account for any difference in term structure or tenor of the JPY Recommended Rate by comparison to Fallback Rate (TONA) and by reference to the Bloomberg IBOR Fallback Rate Adjustments Rule Book;
(f) The bank bill swap rate, Fallback Rate (AONIA) or if a Fallback Index Cessation Event has occurred with respect to Fallback Rate (AONIA), then the Applicable Fallback Rate for any Fallback Observation Day that occurs on or after the Fallback Index Cessation Effective Date with respect to Fallback Rate (AONIA) will be the interbank overnight cash rate (“AONIA”) administered by the Reserve Bank of Australia (or any successor administrator), to which the Calculation Agent shall apply the most recently published spread, as at the Fallback Index Cessation Effective Date with respect to Fallback Rate (AONIA), referred to in the definition of “Fallback Rate (AONIA)” after making such adjustments to AONIA as are necessary to account for any difference in term structure or tenor of AONIA by comparison to Fallback Rate (AONIA) and by reference to the Bloomberg IBOR Fallback Rate Adjustments Rule Book. If a Fallback Index Cessation Effective Date occurs with respect to each of Fallback Rate (AONIA) and AONIA, then the Applicable Fallback Rate for any Fallback Observation Day that occurs on or after the Fallback Index Cessation Effective Date with respect to Fallback Rate (AONIA) (or, if later, the Fallback Index Cessation Effective Date with respect to AONIA) will be the RBA Recommended Rate, to which the Calculation Agent shall apply the most recently published spread, as at the Fallback Index Cessation Effective Date with respect to Fallback Rate (AONIA), referred to in the definition of “Fallback Rate (AONIA)” after making such adjustments to the RBA Recommended Rate as are necessary to account for any difference in term structure or tenor of the RBA Recommended Rate by comparison to Fallback Rate (AONIA) and by reference to the Bloomberg IBOR Fallback Rate Adjustments Rule Book;
(g) The Canadian dollar offered rate, Fallback Rate (CORRA) or if a Fallback Index Cessation Event has occurred with respect to Fallback Rate (CORRA), then the Applicable Fallback Rate for any Fallback Observation Day that occurs on or after the Fallback Index Cessation Effective Date with respect to Fallback Rate (CORRA) will be the Canadian Overnight Repo Rate Average (“CORRA”) administered by the Bank of Canada (or any successor administrator), to which the Calculation Agent shall apply the most recently published spread, as at the Fallback Index Cessation Effective Date with respect to Fallback Rate (CORRA), referred to in the definition of “Fallback Rate (CORRA)” after making such adjustments to CORRA as are necessary to account for any difference in term structure or tenor of CORRA by comparison to Fallback Rate (CORRA) and by reference to the Bloomberg IBOR Fallback Rate Adjustments Rule Book. If a Fallback Index Cessation Effective Date occurs with respect to each of Fallback Rate (CORRA) and CORRA, then the Applicable Fallback Rate for any Fallback Observation Day that occurs on or after the Fallback Index Cessation Effective Date with respect to Fallback Rate (CORRA) (or, if later, the Fallback Index Cessation Effective Date with respect to CORRA) will be the CAD Recommended Rate, to which the Calculation Agent shall apply the most recently published spread, as at the Fallback Index Cessation Effective Date with respect to Fallback Rate (CORRA), referred to in the definition of “Fallback Rate (CORRA)” after making such adjustments to the CAD Recommended Rate as are necessary to account for any difference in term structure or tenor of the CAD Recommended Rate by comparison to Fallback Rate (CORRA) and by reference to the Bloomberg IBOR Fallback Rate Adjustments Rule Book. If there is no CAD Recommended Rate before the end of the first Toronto Banking Day (as defined in the 2006 ISDA Definitions) following the Fallback Index Cessation Effective Date with respect to Fallback Rate (CORRA) (or, if later, the end of the first Toronto Banking Day following the Fallback Index Cessation Effective Date with respect to CORRA), or there is a CAD Recommended Rate and a Fallback Index Cessation Effective Date subsequently occurs with respect to it, then the Applicable Fallback Rate for any Fallback Observation Day that occurs on or after the Fallback Index Cessation Effective Date with respect to Fallback Rate (CORRA) (or, if later, the Fallback Index Cessation Effective Date with respect to CORRA) or the Fallback Index Cessation Effective Date with respect to the CAD Recommended Rate (as applicable) will be the BOC Target Rate, to which the Calculation Agent shall apply the most recently published spread, as at the Fallback Index Cessation Effective Date with respect to Fallback Rate (CORRA), referred to in the definition of “Fallback Rate (CORRA)” after making such adjustments to the BOC Target Rate as are necessary to account for any difference in term structure or tenor of the BOC Target Rate by comparison to Fallback Rate (CORRA) and by reference to the Bloomberg IBOR Fallback Rate Adjustments Rule Book;
(h) The Hong Kong interbank offered rate, Fallback Rate (HONIA) or if a Fallback Index Cessation Event has occurred with respect to Fallback Rate (HONIA), then the Applicable Fallback Rate for any Fallback Observation
(i) The Thai baht interest rate fixing, Fallback Rate (THBFIX) or if a Fallback Index Cessation Event has occurred with respect to Fallback Rate (THBFIX), then the Applicable Fallback Rate for any Fallback Observation Day that occurs on or after the Fallback Index Cessation Effective Date with respect to Fallback Rate (THBFIX) will be the BOT Recommended Rate or, if there is no BOT Recommended Rate before the end of the first Bangkok Banking Day (as defined in the 2006 ISDA Definitions) following the Fallback Index Cessation Effective Date with respect to Fallback Rate (THBFIX), or there is a BOT Recommended Rate and a Fallback Index Cessation Effective Date subsequently occurs with respect to it, then the Applicable Fallback Rate for any Fallback Observation Day that occurs on or after the Fallback Index Cessation Effective Date with respect to Fallback Rate (THBFIX) or the Fallback Index Cessation Effective Date with respect to the BOT Recommended Rate (as applicable) will be THOR, to which the Calculation Agent shall make such adjustments as are necessary to account for any difference in term structure or tenor of THOR by comparison to Fallback Rate (THBFIX) and by reference to the Bank of Thailand THBFIX Fallback Rate Adjustments Rule Book.
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(a) If no ECB Recommended Rate is recommended before the end of the first TARGET Settlement Day (as defined in the 2006 ISDA Definitions) following the Fallback Index Cessation Effective Date with respect to Fallback Rate (EuroSTR) (or, if later, before the end of the first TARGET Settlement Day following the Fallback Index Cessation Effective Date with respect to EuroSTR), the arithmetic mean of the daily difference between EuroSTR and the Eurosystem Deposit Facility Rate over an observation period of 30 TARGET Settlement Days starting 30 TARGET Settlement Days prior to the day on which the Fallback Index Cessation Event with respect to Fallback Rate (EuroSTR) occurs (or, if later, 30 TARGET Settlement Days prior to the day on which the first Fallback Index Cessation Event with respect to EuroSTR occurs) and ending on the TARGET Settlement Day immediately preceding the day on which the Fallback Index Cessation Event with respect to Fallback Rate (EuroSTR) occurs (or, if later, the TARGET Settlement Day immediately preceding the day on which the first Fallback Index Cessation Event with respect to EuroSTR occurs); or
(b) If a Fallback Index Cessation Event with respect to the ECB Recommended Rate occurs, the arithmetic mean of the daily difference between the ECB Recommended Rate and the Eurosystem Deposit Facility Rate over an observation period of 30 TARGET Settlement Days starting 30 TARGET Settlement Days prior to the day on which the Fallback Index Cessation Event with respect to the ECB Recommended Rate occurs and ending on the TARGET Settlement Day immediately preceding the day on which that Fallback Index Cessation Event occurs.
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(a) A public statement or publication of information by or on behalf of the administrator or provider of the Applicable Fallback Rate announcing that it has ceased or will cease to provide the Applicable FallbackRate permanently or indefinitely, provided that, at the time of the statement or publication, there is no successor administrator or provider that will continue to provide the Applicable Fallback Rate; or
(b) If the Applicable Fallback Rate is:
(i) Fallback Rate (SONIA), Fallback Rate (SARON), Fallback Rate (SOFR), Fallback Rate (EuroSTR), Fallback Rate (TONA), Fallback Rate (AONIA), Fallback Rate (CORRA) or Fallback Rate (HONIA), a public statement or publication of information by the regulatory supervisor for the administrator of the Underlying Rate, the central bank for the currency of the Underlying Rate, an insolvency official with jurisdiction over the administrator for the Underlying Rate, a resolution authority with jurisdiction over the administrator for the Underlying Rate or a court or an entity with similar insolvency or resolution authority over the administrator for the Underlying Rate, which states that the administrator of the Underlying Rate has ceased or will cease to provide the Underlying Rate permanently or indefinitely, provided that, at the time of the statement or publication, there is no successor administrator that will continue to provide the Underlying Rate; or
(ii) SONIA, the GBP Recommended Rate, SARON, the NWG Recommended Rate, the Modified SNB Policy Rate, SOFR, the Fed Recommended Rate, OBFR, the FOMC Target Rate, EuroSTR, the ECB Recommended Rate, Modified EDFR, TONA, the JPY Recommended Rate, AONIA, the RBA Recommended Rate, CORRA, the CAD Recommended Rate, the BOC Target Rate, HONIA, the HKD Recommended Rate, Fallback Rate (SOR), the MAS Recommended Rate, SORA, Fallback Rate (THBFIX), the BOT Recommended Rate or THOR, a public statement or publication of information by the regulatory supervisor for the administrator or provider of the Applicable Fallback Rate, the central bank for the currency of the Applicable Fallback Rate, an insolvency official with jurisdiction over the administrator or provider for the Applicable Fallback Rate, a resolution authority with jurisdiction over the administrator or provider for the Applicable Fallback Rate or a court or an entity with similar insolvency or resolution authority over the administrator or provider for the Applicable Fallback Rate, which states that the administrator or provider of the Applicable Fallback Rate has ceased or will cease to provide the Applicable Fallback Rate permanently or indefinitely, provided that, at the time of the statement or publication, there is no successor administrator or provider that will continue to provide the Applicable Fallback Rate.
If the Applicable Fallback Rate is the Modified SNB Policy Rate or Modified EDFR, references to the administrator or provider of such rate in this definition of “Fallback Index Cessation Event” shall be deemed to be references to the administrator or provider of the index, benchmark or other price source that is referred to in the definition of Modified SNB Policy Rate or Modified EDFR, as applicable.
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(a) The term adjusted EuroSTR; plus
(b) If the Relevant IBOR is:
(i) Euro LIBOR, the spread relating to euro LIBOR; or
(ii) The euro interbank offered rate, the spread relating to the euro interbank offered rate, in each case, for the period of time in respect of which the Relevant IBOR is to be determined provided by Bloomberg Index Services Limited (or a successor provider as approved and/or appointed by ISDA from time to time), as the provider of term adjusted EuroSTR and the spread, on the Fallback Rate (EuroSTR) Screen (or by other means) or provided to, and published by, authorized distributors at, or prior to, the Applicable Cut-off Time.
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(a) The term adjusted TONA; plus
(b) If the Relevant IBOR is:
(i) Japanese yen LIBOR, the spread relating to Japanese yen LIBOR;
(ii) The Japanese yen Tokyo interbank offered rate, the spread relating to the Japanese yen Tokyo interbank offered rate; or the euroyen Tokyo interbank offered rate, the spread relating to the euroyen Tokyo interbank offered rate, in each case, for the period of time in respect of which the Relevant IBOR is to be determined provided by Bloomberg Index Services Limited (or a successor provider as approved and/or appointed by ISDA from time to time), as the provider of term adjusted TONA and the spread, on the Fallback Rate (TONA) Screen (or by other means) or provided to, and published by, authorized distributors at, or prior to, the Applicable Cut-off Time.
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(a) A public statement or publication of information by or on behalf of the administrator of the Relevant IBOR announcing that it has ceased or will cease to provide the Relevant IBOR permanently or indefinitely, provided that, at the time of the statement or publication, there is no successor administrator that will continue to provide the Relevant IBOR;
(b) A public statement or publication of information by the regulatory supervisor for the administrator of the Relevant IBOR, the central bank for the currency of the Relevant IBOR, an insolvency official with jurisdiction over the administrator for the Relevant IBOR, a resolution authority with jurisdiction over the administrator for the Relevant IBOR or a court or an entity with similar insolvency or resolution authority over the administrator for the Relevant IBOR, which states that the administrator of the Relevant IBOR has ceased or will cease to provide the Relevant IBOR permanently or indefinitely, provided that, at the time of the statement or publication, there is no successor administrator that will continue to provide the Relevant IBOR; or
(c) If the Relevant IBOR is sterling LIBOR, Swiss franc LIBOR, U.S. dollar LIBOR, euro LIBOR, Japanese yen LIBOR, the Singapore dollar swap offer rate or the Thai baht interest rate fixing, a public statement or publication of information by the regulatory supervisor for the administrator of such Relevant IBOR (or, if the Relevant IBOR is the Singapore dollar swap offer rate or the Thai baht interest rate fixing, by the regulatory supervisor for the administrator of U.S. dollar LIBOR) announcing that (i) the regulatory supervisor has determined that such Relevant IBOR is no longer, or as of a specified future date will no longer be, representative of the underlying market and economic reality that such Relevant IBOR is intended to measure and that representativeness will not be restored and (ii) it is being made in the awareness that the statement or publication will engage certain contractual triggers for fallbacks activated by pre-cessation announcements by such supervisor (howsoever described) in contracts, provided that, if either the Singapore dollar swap offer rate or the Thai baht interest rate fixing is the Relevant IBOR, references to the “Relevant IBOR” in subparagraphs (a), (b) and (c)(i) above of this definition of “Index Cessation Event” will be deemed to be references to U.S. dollar LIBOR.
An Index Cessation Event may also occur in accordance with paragraph 6(d), subparagraph 6(e)(ii) or subparagraph 6(e)(iii) above.
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“Modified SNB Policy Rate” means a rate equal to the SNB Policy Rate plus the SNB Spread.
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(a) Has determined and announced that the Relevant LIBOR (or, if the Relevant IBOR is the Singapore dollar swap offer rate or the Thai baht interest rate fixing, U.S. dollar LIBOR) is no longer representative of the underlying market and economic reality it is intended to measure and representativeness will not be restored; and
(b) Is aware that certain contractual triggers for fallbacks activated by pre-cessation announcements by such supervisor (howsoever described) in contracts have been or are engaged, provided that such Relevant LIBOR (or, if the Relevant IBOR is the Singapore dollar swap offer rate or the Thai baht interest rate fixing, U.S. dollar LIBOR) will be `Non-Representative' by reference to the date indicated in the most recent statement or publication contemplated in subparagraph (c) of the definition of “Index Cessation Event” above.
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The parties agree that the amendments made by this Protocol do not constitute a “Spread Provision” (as defined in the ISDA 2014 Collateral Agreement Negative Interest Protocol published on May 12, 2014 by ISDA).
Source: ISDA 2020 IBOR Fallbacks Protocol, published on October 23, 2020, by the International Swaps and Derivatives Association, Inc.,
By order of the Board of Governors of the Federal Reserve System.