Animal and Plant Health Inspection Service
Rural Utilities Service
International Trade Administration
Engineers Corps
Navy Department
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Coast Guard
Transportation Security Administration
Fish and Wildlife Service
National Park Service
Ocean Energy Management Bureau
Employment and Training Administration
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Great Lakes St. Lawrence Seaway Development Corporation
Maritime Administration
National Highway Traffic Safety Administration
Comptroller of the Currency
Foreign Assets Control Office
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Bureau of Consumer Financial Protection.
Final rule; technical corrections.
The Consumer Financial Protection Bureau (Bureau or CFPB) is issuing this final rule to make non-substantive corrections and updates to Bureau and other Federal agency contact information found at certain locations in Regulations B, E, F, J, V, X, Z, and DD, including Federal agency contact information that must be provided with Equal Credit Opportunity Act adverse action notices and the Fair Credit Reporting Act Summary of Consumer Rights. This final rule also revises the chapter heading, makes various non-substantive changes to Regulations B and V, and provides a Bureau website address where the public may access certain APR tables referenced in Regulation Z.
The rule is effective April 19, 2023. However, the mandatory compliance date for the amendments to appendix A to Regulation B, appendix A to Regulation J, and appendix K to Regulation V is March 20, 2024. See part V for more information.
Luke Diamond, Counsel; Ruth Van Veldhuizen, Senior Counsel, Office of Regulations, at 202-435-7700 or
The Bureau is making non-substantive corrections and updates to Federal agency contact information located in several regulations. This includes correcting the zip code in the Bureau's mailing address found at certain locations in Regulations B, E, J, Z, and DD; replacing the name of a former Bureau division specified at certain locations in Regulations B, E, F, X, and Z with the name of a new, expanded Bureau division or updating references to officials of the former division to instead refer more generally to Bureau officials; and updating other Federal agency contact information in appendix A to Regulation B, which must be included in Equal Credit Opportunity Act (ECOA) adverse action notices, and appendix K to Regulation V, which contains the model form of the Fair Credit Reporting Act (FCRA) Summary of Consumer Rights. The Bureau is also changing the header of 12 CFR chapter X from “Bureau of Consumer Financial Protection” to “Consumer Financial Protection Bureau,” and making various non-substantive corrections in Regulations B and V. Finally, the Bureau is updating the comment for appendix J to Regulation Z in the Official Interpretations of Regulation Z to add a URL (website address) at which the public may access a new Bureau website that contains certain APR tables. Previously, the public could only request the tables from the Bureau at its postal mailing address.
In Regulation B, implementing ECOA, the Bureau is amending appendix A, which contains Federal agency contact information that creditors must include in ECOA adverse action notices.
In Regulation E, implementing the Electronic Fund Transfer Act (EFTA), the Bureau is correcting and updating its own contact information in appendix C, which sets forth the process by which entities may request official Bureau interpretations of Regulation E. Appendix C to Regulation E currently designates the “Associate Director and other officials of the Division of Research, Markets, and Regulations” as the officials authorized under the Act to issue official interpretations. Because the Division of Research, Markets, and Regulations no longer exists, the Bureau is updating this language to reflect that fact, and instead indicate more generally that “duly authorized officials of the Bureau” may provide official interpretations of Regulation E.
In Regulation F, implementing the Fair Debt Collection Practices Act (FDCPA), the Bureau is correcting its own contact information in appendix A, which sets forth the process by which States may apply to the Bureau to exempt a class of debt collection practices from the requirements of the FDCPA and Regulation F, and in the introduction section of Supplement I, which sets forth the process by which entities can request official interpretations of Regulation F.
In Regulation J, implementing the Interstate Land Sales Full Disclosure Act (ILSA), the Bureau is correcting its own contact information in appendix A, which contains model forms and clauses that land developers must provide to prospective land buyers under certain circumstances.
In Regulation V, implementing the FCRA, the Bureau is amending the model form in appendix K for the Summary of Consumer Rights. Consumer reporting agencies must provide a Summary of Consumer Rights when making a written disclosure of information from a consumer's file or providing a credit score to a consumer, and the FCRA also requires certain other persons to provide a Summary of Consumer Rights to consumers under specified circumstances. The Bureau is correcting the contact information in the Summary of Consumer Rights model
In Regulation X, implementing the Real Estate Settlement Procedures Act (RESPA), the Bureau is correcting its own contact information in the definition of “Public Guidance Documents” in section 1024.2(b), which contains the procedure by which entities can request copies of public guidance documents from the Bureau, and in the introduction section of Supplement I, which sets forth the process by which entities can request official interpretations of Regulation X.
In Regulation Z, implementing the Truth in Lending Act (TILA), the Bureau is correcting its own contact information in appendices A, B, and C. Appendix A sets forth the process by which States may request a determination from the Bureau regarding whether a State law is inconsistent with or substantially the same as TILA and Regulation Z. Appendix B sets forth the process by which States may apply to the Bureau to exempt a class of transactions from the requirements of TILA and Regulation Z. Appendix C sets forth the process by which entities may request official Bureau interpretations of Regulation Z. The Bureau is also correcting its own contact information in the comment for appendix J, located in the Official Interpretations in Supplement I. Appendix J sets forth the actuarial equations and instructions for calculating the annual percentage rate in closed-end credit transactions. The Bureau maintains Annual Percentage Rate Tables to assist in performance of these calculations, and the comment for appendix J in the Official Interpretations describes a process that entities may use to request these tables from the Bureau. In addition to correcting the Bureau's zip code in its postal address provided there, the Bureau now makes the tables available to the public on its website and is updating the comment to appendix J in the Official Interpretations to add a URL at which the public may access the website.
In Regulation DD, implementing the Truth in Savings Act (TISA), the Bureau is correcting its own contact information in appendix C, which sets forth the process by which States may request a determination from the Bureau regarding whether a State law is inconsistent with TISA and Regulation DD.
As of July 21, 2011, title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act)
In addition, the Bureau recently completed an organizational realignment in which its Division of Research, Markets, and Regulations and portions of an office from another division were combined to create a new expanded division called Research, Monitoring, and Regulations. The Research, Markets, and Regulations' name appears in a limited number of locations in Regulations B, E, F, X, and Z, and needs to be updated.
Finally, the Bureau has been in contact with other Federal agencies referenced in the Bureau's regulations to determine whether their contact information requires updating. Eight Federal agencies requested that the Bureau correct their contact information for the ECOA adverse action notices in appendix A to Regulation B, described above, and six Federal agencies requested that the Bureau correct their contact information in the model form of the Summary of Consumer Rights in appendix K to Regulation V. One Federal agency also requested that the Bureau update references to obsolete business types in the Summary of Consumer Rights. Updated contact information and other changes to these two appendices are described in more detail in the section-by-section analysis in part IV, below.
The Bureau is issuing this final rule pursuant to its authority under ECOA, EFTA, FDCPA, ILSA, FCRA, RESPA, TILA, TISA, and the Dodd-Frank Act. Section 1022(b)(1) of the Dodd-Frank Act authorizes the Bureau to prescribe “rules . . . as may be necessary or appropriate to . . . carry out the purposes and objectives of the Federal consumer financial laws, and prevent evasions thereof.” ECOA, EFTA, FDCPA, ILSA, FCRA, RESPA, TILA, and TISA are all Federal consumer financial laws,
Under the Administrative Procedure Act, notice and opportunity for public comment are not required if the Bureau finds for good cause that notice and public comment are impracticable, unnecessary, or contrary to the public interest.
For these reasons, the Bureau has determined that publishing a notice of proposed rulemaking and providing
Section 1002.9(b)(1) provides model language that satisfies certain disclosure requirements of 12 CFR 1002.9(a)(2) relating to adverse action notices. These notices must include Federal agency contact information located in appendix A to Regulation B. The final sentence of § 1002.9(b)(1) permitted creditors to include Federal agency contact information as it appeared in an old version of appendix A until January 1, 2013. As that permission has now expired, the sentence is obsolete, and the Bureau is amending § 1002.9(b)(1) to remove it.
Appendix A to part 1002 provides a list of contact information for Federal agencies that creditors must include in adverse action notices pursuant to 12 CFR 1002.9(b)(1). To update Federal agencies' contact information and for the reasons discussed in part II, the Bureau is revising appendix A to part 1002.
The Bureau is amending paragraph 1 to correct postal address contact information for the Bureau and the FTC. The zip code will be corrected in contact information for the Bureau and contact information for the FTC will be changed from “FTC Regional Office for region in which the creditor operates or Federal Trade Commission, Equal Credit Opportunity, Washington, DC 20580” to “Federal Trade Commission, Consumer Response Center, 600 Pennsylvania Avenue NW, Washington, DC 20580.”
The Bureau is amending paragraph 2(a) to correct postal address contact information for the OCC. The contact information will be changed from “Office of the Comptroller of the Currency, Customer Assistance Group, 1301 McKinney Street, Suite 3450, Houston, TX 77010-9050” to “Office of the Comptroller of the Currency, Customer Assistance Group, P.O. Box 53570, Houston, TX 77052.”
The Bureau is amending paragraph 2(c) to correct postal address contact information for the FDIC. The contact information will be changed from “FDIC Consumer Response Center, 1100 Walnut Street, Box #11, Kansas City, MO 64106” to “Division of Depositor and Consumer Protection, National Center for Consumer and Depositor Assistance, Federal Deposit Insurance Corporation, 1100 Walnut Street, Box #11, Kansas City, MO 64106.”
The Bureau is amending paragraph 2(d) to correct postal address contact information for the NCUA. The contact information will be changed from “National Credit Union Administration, Office of Consumer Protection, 1775 Duke Street, Alexandria, VA 22314” to “National Credit Union Administration, Office of Consumer Financial Protection, 1775 Duke Street, Alexandria, VA 22314.”
The Bureau is amending paragraph 3 to correct postal address contact information for the DOT. The contact information will be changed from “Assistant General Counsel for Aviation Enforcement and Proceedings, Department of Transportation, 400 Seventh Street SW, Washington, DC 20590” to “Assistant General Counsel for Office of Aviation Consumer Protection, Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590.”
The Bureau is amending paragraph 4 to correct postal address contact information for the STB. The contact information will be changed from “Office of Proceedings, Surface Transportation Board, Department of Transportation, 1925 K Street NW, Washington, DC 20423” to “Office of Public Assistance, Governmental Affairs, and Compliance, Surface Transportation Board, 395 E Street SW, Washington, DC 20423.”
The Bureau is amending paragraph 5 to correct contact information for the USDA-AMS. The contact information will be changed from “Nearest Packers and Stockyards Administration area supervisor” to “Nearest Packers and Stockyards Division Regional Office.”
The Bureau is amending paragraph 6 to correct postal office contact information for the SBA. The contact information will be changed from “Associate Deputy Administrator for Capital Access, United States Small Business Administration, 409 Third Street SW, 8th Floor, Washington, DC 20416” to “Associate Administrator, Office of Capital Access, United States Small Business Administration, 409 Third Street SW, Suite 8200, Washington, DC 20416.”
The Bureau is amending paragraph 7 to correct postal address contact information for the SEC. The contact information will be changed from “Securities and Exchange Commission, Washington, DC 20549” to “Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549.”
The Bureau is amending paragraph 9 to correct postal address contact information for the FTC. The contact information will be changed from “FTC Regional Office for region in which the creditor operates or Federal Trade Commission, Equal Credit Opportunity, Washington, DC 20580” to “Federal Trade Commission, Consumer Response Center, 600 Pennsylvania Avenue NW, Washington, DC 20580.”
Appendix D to part 1002 sets forth the process by which entities may request official Bureau interpretations of Regulation B that provide protections afforded under section 706(e) of ECOA. For reasons discussed in part II, the Bureau is amending paragraph 2 in appendix D to part 1002 to correct the zip code in postal address contact information for the Bureau and to replace the reference to the Division of Research, Markets, and Regulations with a reference to the new, expanded Division of Research, Monitoring, and Regulations.
Appendix C to part 1005 sets forth the process by which entities may request official Bureau interpretations of Regulation E that provide protections afforded under section 916(d) of EFTA. For the reasons discussed in part II, the Bureau is amending appendix C to part 1005 to correct the zip code in postal address contact information for the Bureau and to update the language
Appendix A to part 1006 sets forth the process by which states may apply to the Bureau to exempt a class of debt collection practices within the applying State from the requirements of the FDCPA and Regulation F pursuant to section 817 of the FDCPA. For the reasons discussed in part II, the Bureau is amending appendix A to replace the reference to the Division of Research, Markets, and Regulations with a reference to the new, expanded Division of Research, Monitoring, and Regulations.
The introduction of Supplement I to part 1006 explains the purpose of the supplement and describes the procedure by which anyone may request an official interpretation of Regulation F. For the reasons discussed in part II, the Bureau is amending the introduction to Supplement I to replace the reference to the Division of Research, Markets, and Regulations with a reference to the new, expanded Division of Research, Monitoring, and Regulations. The Bureau is also changing the addressee to contact for official interpretations of Regulation F from Associate Director, Division of Research, Markets, and Regulations to Assistant Director, Office of Regulations, Division of Research, Monitoring, and Regulations, to maintain consistency with other Bureau regulations that reference the Assistant Director, Office of Regulations as the addressee for official interpretations.
Appendix A to part 1010 provides Standard and Model Forms and Clauses required under Regulation J, which implements ILSA. Section 1404(a)(1)(B) of ILSA prohibits the sale or lease of certain unexempted lots unless the purchaser is provided with a copy of a property report that contains certain representations about the lots and other information required under the Bureau's rules. Section 1010.118 of Regulation J requires that a receipt, agency certification, and cancellation page, formatted in accordance with section XXVII of appendix A, be attached to the property report. Included on this page is a notice that the buyer should notify the Bureau if the seller makes any representations contrary to those in the property report. For the reasons discussed in part II, the Bureau is amending section XXVII of appendix A to part 1010 to correct the zip code in postal address contact information for the Bureau.
Appendix K to part 1022 provides the model form for the Summary of Consumer Rights, which explains certain major consumer rights under the FCRA. A consumer reporting agency must provide a Summary of Consumer Rights whenever it makes a written disclosure of information from a consumer's file or provides a credit score to the consumer.
Contact information for the OCC will be changed from “Office of the Comptroller of the Currency, Customer Assistance Group, 1301 McKinney Street, Suite 3450, Houston, TX 77010-9050” to “Office of the Comptroller of the Currency, Customer Assistance Group, P.O. Box 53570, Houston, TX 77052.”
Contact information for the FDIC will be changed from “FDIC Consumer Response Center, 1100 Walnut Street, Box #11, Kansas City, MO 64106” to “Division of Depositor and Consumer Protection, National Center for Consumer and Depositor Assistance, Federal Deposit Insurance Corporation, 1100 Walnut Street, Box #11, Kansas City, MO 64106.”
Contact information for the NCUA will be changed from “National Credit Union Administration, Office of Consumer Financial Protection (OCFP), Division of Consumer Compliance Policy and Outreach, 1775 Duke Street, Alexandria, VA 22314” to “National Credit Union Administration, Office of Consumer Financial Protection, 1775 Duke Street, Alexandria, VA 22314.”
Contact information for the DOT will be changed from “Asst. General Counsel for Aviation Enforcement & Proceedings, Aviation Consumer Protection Division, Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590” to “Assistant General Counsel for Office of Aviation Consumer Protection, Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590.”
Contact information for the STB will be changed from “Office of Proceedings, Surface Transportation Board, Department of Transportation, 395 E Street SW, Washington, DC 20423” to “Office of Public Assistance, Governmental Affairs, and Compliance, Surface Transportation Board, 395 E Street SW, Washington, DC 20423.”
Contact information for the USDA-AMS will be changed from “Nearest Packers and Stockyards Administration area supervisor” to “Nearest Packers and Stockyards Division Regional Office.”
Contact information for the SBA will be changed from “Associate Deputy Administrator for Capital Access, United States Small Business Administration, 409 Third Street SW, Suite 8200, Washington, DC 20416” to “Associate Administrator, Office of Capital Access, United States Small Business Association, 409 Third Street SW, Suite 8200, Washington, DC 20416.”
The Bureau is also amending the eighth row on page four of the model form in appendix K. This entry indicates that the FCA is a point of contact for information regarding certain Farm Credit System institutions. The FCA has requested that the Bureau update the language in appendix K because certain of the listed institutions, such as Federal land banks, no longer exist. Based on the FCA's request, the
The Bureau is also making technical corrections to the text of the model form. The Bureau is correcting a misspelling of the word “from” on page two. The corrected text reads in relevant part: “Unsolicited `prescreened' offers for credit and insurance must include a toll-free phone number you can call if you choose to remove your name and address from the lists these offers are based on.” The Bureau is also correcting the punctuation of agencies' contact information to maintain consistent punctuation usage throughout the model form. For example, “100 F Street, N.E.” will be changed to “100 F Street NE.”
Section 1024.2(b) contains definitions for terms used in Regulation X. Accordingly, the definition of “Public Guidance Documents” in section 1024.2(b) sets forth the definition of that term, as it is used in Regulation X. In addition, it provides a Bureau mailing address by which anyone may request copies of public guidance documents from the Bureau. The Bureau is amending the definition of “Public Guidance Documents” to replace the reference to the Division of Research, Markets, and Regulations with a reference to the new, expanded Division of Research, Monitoring, and Regulations. The Bureau is also changing the addressee to contact for copies of public guidance documents from Associate Director, Division of Research, Markets, and Regulations to Assistant Director, Office of Regulations, Division of Research, Monitoring, and Regulations, to maintain consistency with other Bureau regulations that reference Assistant Director, Office of Regulations as the addressee.
The introduction of Supplement I to part 1024 explains the purpose of the supplement and describes the procedure by which anyone may request an official interpretation of Regulation X. For the reasons discussed in part II, the Bureau is amending the introduction to Supplement I to replace the reference to the Division of Research, Markets, and Regulations with a reference to the new, expanded Division of Research, Monitoring, and Regulations. The Bureau is also changing the addressee to contact for official interpretations of Regulation X from Associate Director, Division of Research, Markets, and Regulations to Assistant Director, Office of Regulations, Division of Research, Monitoring, and Regulations, to maintain consistency with other Bureau regulations that reference the Assistant Director, Office of Regulations as the addressee for official interpretations.
Appendix A to part 1026 sets forth the process by which states may request a determination from the Bureau regarding whether a State law is inconsistent with or substantially the same as TILA and Regulation Z pursuant to section 111(a) of TILA. For the reasons discussed in part II, the Bureau is amending appendix A to part 1026 to correct the zip code in postal address contact information for the Bureau.
Appendix B to part 1026 sets forth the process by which states may apply to the Bureau to exempt a class of transactions from the requirements of TILA and Regulation Z pursuant to sections 123 and 173(b) of TILA. For the reasons discussed in part II, the Bureau is amending appendix B to part 1026 to correct the zip code in postal address contact information for the Bureau.
Appendix J to part 1026 sets forth the actuarial equations and instructions for calculating the annual percentage rate in closed-end credit transactions. The Official Interpretation of appendix J refers to tables that creditors may use to perform the calculations. It explains that entities may request these tables from the Bureau and provides the Bureau's postal address. For the reasons discussed in part II, the Bureau is amending comment appendix J-2 in the Official Interpretation of appendix J, located in Supplement I, to correct the zip code in postal address contact information for the Bureau. In addition, the Bureau has recently made the tables available to the public on the Bureau's website. The Bureau is amending comment appendix J-2 to provide a URL at which the public may access that website.
Appendix C to part 1030 sets forth the process by which States may request a determination from the Bureau regarding whether a State law is inconsistent with TISA and Regulation DD pursuant to section 273 of TISA. For the reasons discussed in part II, the Bureau is amending paragraph (b) in appendix C to part 1030 to correct the zip code in postal address contact information for the Bureau.
Finally, the Bureau is updating the heading of the Bureau's chapter in the Code of Federal Regulations, 12 CFR chapter X, from “Bureau of Consumer Financial Protection” to “Consumer Financial Protection Bureau.” Using the generally recognized version of the Bureau's name will reduce the risk of public confusion.
Consistent with the requirements of the Administrative Procedure Act, the amendments made by this final rule will take effect 30 days after publication in the
In developing this final rule, the Bureau has considered the rule's potential benefits, costs, and impacts, and has consulted or offered to consult with appropriate prudential banking regulators and other Federal agencies, including regarding the consistency of this rule with prudential, market, or systemic objectives administered by those agencies.
The purpose of this rule is to make non-substantive corrections and updates to Bureau and other Federal agency contact information found at certain locations in Regulations B, E, F, J, V, X, Z, and DD, including Federal agency contact information that must be provided with Equal Credit Opportunity Act adverse action notices and the Fair Credit Reporting Act Summary of Consumer Rights. This final rule also revises the header of 12 CFR chapter X, makes various non-substantive changes to Regulations B and V, and provides a Bureau website address where the public may access certain APR tables referenced in Regulation Z.
The Bureau considered the benefits, costs, and impacts of this rule against a baseline in which the Bureau takes no action. In the baseline, mail addressed to the Bureau using incorrect contact information could be delayed because it may require manual handling. In addition, mail addressed using incorrect contact information specified in various Bureau regulations to other agencies, such as the OCC, may be delayed or sent back to the sender, and information concerning certain APR tables provided by the Bureau in the Official Interpretations of Regulation Z may take significantly longer to reach the public by mail than by accessing a website provided in the rule.
Covered persons and consumers may benefit from the rule by preventing situations where mail to the Bureau, the OCC, or other Federal agencies is delayed or returned to the sender because of incorrect contact information as currently listed in the Bureau's regulations. The Bureau does not have data available to predict the number of such potentially misdirected communications that would be prevented, or the costs involved in handling such communications. As such, the Bureau cannot quantify the potential magnitude of these benefits.
In addition, the Bureau expects that the rule would benefit consumers by potentially preventing delays they may currently experience in receiving a response to communications they address to the Bureau, the OCC, or other Federal agencies, to the extent these delays are attributable to incorrect contact information for these agencies as currently listed in certain of the Bureau's regulations. The Bureau does not have data available to predict the magnitude of such delays consumers may experience, or the number of such communications.
The Bureau further expects that consumers and covered persons seeking to access APR information in connection with Regulation Z may be able to access it more efficiently through the URL provided in this rule than by requesting it by mail. The Bureau does not have data available to predict the magnitude of the benefits provided to consumers and covered persons as a result of making this information available through a Bureau website.
Accordingly, the Bureau cannot quantify the potential magnitude of the benefits to consumers and covered persons from the rule.
Covered persons may incur some costs in updating the forms and materials affected by the rule. The rule makes only technical, non-substantive changes to the existing text of certain forms and materials, and as noted in section V, the Bureau is providing covered persons with a period of one year in which to effectuate any necessary changes to the forms. The Bureau believes that this phase-in period will minimize entity costs related to the disposal of existing materials and allow entities the flexibility to make required changes as part of regular updates to their forms. The Bureau therefore believes that costs associated with the form changes required by this rule will likely be negligible.
The Bureau does not anticipate that the rule will result in costs to consumers.
The Bureau has no reason to believe that this final rule would have a unique impact on depository institutions and credit unions with $10 billion or less in total assets.
The Bureau has no reason to believe that the final rule would have a unique impact on consumers in rural areas. Because the rule makes only technical, non-substantive changes to the existing text of several regulations, the Bureau believes that the rule would not materially affect access by consumers to consumer financial products or services.
Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act does not require an initial or final regulatory flexibility analysis.
The Bureau has determined that this final rule does not impose any new or revise any existing recordkeeping, reporting, or disclosure requirements on covered entities or members of the public that would be new or revised collections of information requiring approval by the Office of Management and Budget under the Paperwork Reduction Act.
Pursuant to the Congressional Review Act,
Aged, Banks, Banking, Civil rights, Consumer protection, Credit, Credit unions, Discrimination, Fair lending, Marital status discrimination, National banks, National origin discrimination, Penalties, Race discrimination, Religious discrimination, Reporting and recordkeeping requirements, Savings associations, Sex discrimination.
Automated teller machines, Banks, Banking, Consumer protection, Credit unions, Electronic fund transfers, National banks, Remittances, Reporting and recordkeeping requirements, Savings Associations.
Administrative practice and procedure, Consumer protection, Credit, Intergovernmental relations.
Land registration; Reporting requirements; Certification of substantially equivalent state law; Purchasers' revocation rights; Unlawful sales practices; Advertising disclaimers; Filing assistance; and Adjudicatory proceedings.
Banks, Banking, Consumer protection, Credit unions, Fair Credit Reporting Act, Holding companies, National banks, Privacy, Reporting and recordkeeping requirements, Savings associations, State member banks.
Condominiums, Consumer protection, Housing, Insurance, Mortgages, Mortgagees, Mortgage servicing, Reporting and recordkeeping requirements.
Advertising, Appraisal, Appraiser, Banking, Banks, Consumer protection, Credit, Credit unions, Mortgages, National banks, Reporting and recordkeeping requirements, Savings associations, Truth in lending.
Advertising, Banking, Banks, Consumer protection, National banks, Reporting and recordkeeping requirements, Savings associations, Truth in savings.
For the reasons set forth above, the Bureau amends 12 CFR chapter X, as set forth below:
12 U.S.C. 5512, 5581; 15 U.S.C. 1691b.
The following list indicates the Federal agency or agencies that should be listed in notices provided by creditors pursuant to § 1002.9(b)(1). Any questions concerning a particular creditor may be directed to such agencies. This list is not intended to describe agencies' enforcement authority for ECOA and Regulation B. Terms that are not defined in the Federal Deposit Insurance Act (12 U.S.C. 1813(s)) shall have the meaning given to them in the International Banking Act of 1978 (12 U.S.C. 3101).
1.
2. To the extent not included in item 1 above:
a.
b.
c.
d.
3.
4.
5.
6.
7.
8.
9.
12 U.S.C. 5512, 5581; 15 U.S.C. 1693b. Subpart B is also issued under 12 U.S.C. 5601 and 15 U.S.C. 1693o-1.
Interpretations of this part issued by duly authorized officials of the Bureau provide the protection afforded under section 916(d) of the Act. Except in unusual circumstances, such interpretations will not be issued separately but will be incorporated in an official commentary to this part, which will be amended periodically.
A request for an official interpretation shall be in writing and addressed to the Bureau of Consumer Financial Protection, 1700 G Street NW, Washington, DC 20552. The request shall contain a complete statement of all relevant facts concerning the issue, including copies of all pertinent documents.
No interpretations will be issued approving financial institutions' forms or statements. This restriction does not apply to forms or statements whose use is required or sanctioned by a government agency.
12 U.S.C. 5512, 5514(b), 5532; 15 U.S.C. 1692l(d), 1692o, 7004.
12 U.S.C. 5512, 5581; 15 U.S.C. 1718.
12 U.S.C. 5512, 5581; 15 U.S.C. 1681a, 1681b, 1681c, 1681c-1, 1681c-3, 1681e, 1681g, 1681i, 1681j, 1681m, 1681s, 1681s-2, 1681s-3, and 1681t; Sec. 214, Pub. L. 108-159, 117 Stat. 1952.
The prescribed form for this summary is a disclosure that is substantially similar to the Bureau's model summary with all information clearly and prominently displayed. The list of Federal regulators that is included in the Bureau's prescribed summary may be provided separately so long as this is done in a clear and conspicuous way. A summary should accurately reflect changes to those items that may change over time (
12 U.S.C. 2603-2605, 2607, 2609, 2617, 5512, 5532, 5581.
(b) Throughout the commentary, reference to “this section” or “this paragraph” means the section or paragraph in the regulation that is the subject of the comment.
12 U.S.C. 2601, 2603-2605, 2607, 2609, 2617, 3353, 5511, 5512, 5532, 5581; 15 U.S.C. 1601
12 U.S.C. 4302-4304, 4308, 5512, 5581.
Food and Drug Administration, HHS.
Final rule; technical amendments.
The Food and Drug Administration (FDA or we) is amending the animal drug regulations to reflect application-related actions for new animal drug applications (NADAs), abbreviated new animal drug applications (ANADAs), and conditionally approved new animal drug applications (cNADAs) during October, November, and December 2022. FDA is informing the public of the availability of summaries of the basis of approval and of environmental review documents, where applicable. The animal drug regulations are also being amended to improve the accuracy and readability of the regulations.
This rule is effective March 20, 2023.
George K. Haibel, Center for Veterinary Medicine (HFV-6), Food and Drug Administration, 7500 Standish Pl.,
FDA is amending the animal drug regulations to reflect approval actions for NADAs, ANADAs, and cNADAs during October, November, and December 2022, as listed in table 1. In addition, FDA is informing the public of the availability, where applicable, of documentation of environmental review required under the National Environmental Policy Act (NEPA) and, for actions requiring review of safety or effectiveness data, summaries of the basis of approval (FOI Summaries) under the Freedom of Information Act (FOIA). These public documents may be seen in the office of the Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday, 240-402-7500. Persons with access to the internet may obtain these documents at the CVM FOIA Electronic Reading Room:
FDA has verified the website addresses as of the date this document publishes in the
Also, FDA is amending the animal drug regulations to reflect approval of supplemental applications, as listed in table 2, to change the marketing status of dosage form antimicrobial animal drug products from over-the-counter (OTC) to by veterinary prescription (Rx). These applications were submitted in voluntary compliance with the goals of the FDA Center for Veterinary Medicine's (CVM's) Judicious Use Initiative as identified by guidance for industry #263, “Recommendations for Sponsors of Medically Important Antimicrobial Drugs Approved for Use in Animals to Voluntarily Bring Under Veterinary Oversight All Products That Continue to be Available Over-the-Counter,” June 11, 2021 (
Increvet, Inc., 200 Portland St., Floor 3, Boston, MA 02114 has informed FDA that it has transferred ownership of, and all rights and interest in, NADA 141-566 for BEXACAT (bexagliflozin tablets) Tablets, approved December 8, 2022, to Elanco US Inc., 2500 Innovation Way, Greenfield, IN 46140. The regulatory text for the original approval of this application reflects this change of sponsorship.
FDA is making the following amendments to improve the accuracy of the animal drug regulations:
• 21 CFR 516.498 is removed from subpart C of part 516 and is added to subpart E.
• 21 CFR 520.370, 520.522, 522.246, 522.304, 522.2470, 524.1044c, 524.1044f, and 524.1484g are amended to reflect a sponsor's current drug labeler code.
• 21 CFR 520.441 is amended to revise the sponsor listings for uses of chlortetracycline in drinking water of various food-producing animals.
• 21 CFR 520.443 is amended to revise the sponsor listings for uses of chlortetracycline tablets and boluses in calves.
• 21 CFR 520.1196 is amended to revise the indication for uses of ivermectin and pyrantel tablets in dogs.
• 21 CFR 522. 1660a is amended to reflect the correct drug labeler code for a sponsor of an oxytetracycline injectable solution.
• 21 CFR 522.2471 is amended to add human food safety warnings for use of tilmicosin injectable solution in cattle and sheep.
• 21 CFR 524.1448 is amended to revise the indication for use of mirtazapine transdermal ointment in cats.
• 21 CFR 556.222 is amended to reflect a revised tolerance for residues of doramectin in liver of cattle.
• 21 CFR 556.500 is amended to reflect revised numbering of sections for oxytetracycline uses in food-producing animals.
• 21 CFR 558.76 is amended to add conditions of use previously approved under NADA 141-137 for use of bacitracin methylenedisalicylate in the manufacture of Type C medicated feeds for broiler and replacement chickens (87 FR 76418, December 14, 2022).
• 21 CFR 558.355 is amended to revise a caution statement on labeling of monensin Type A medicated articles for use in broiler breeder replacement chickens.
This final rule is issued under section 512(i) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C.360b(i)), which requires
Although denominated a rule pursuant to the FD&C Act, this document does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a “rule of particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. Likewise, this is not a rule subject to Executive Order 12866, which defines a rule as “an agency statement of general applicability and future effect, which the agency intends to have the force and effect of law, that is designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency.”
Administrative practice and procedure, Animal drugs, Labeling, Reporting and recordkeeping requirements.
Administrative practice and procedure, Animal drugs, Confidential business information, Reporting and recordkeeping requirements.
Animal drugs.
Animal drugs, Dairy products, Foods, Meat and meat products.
Animal drugs, Animal feeds.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR parts 510, 516, 520, 522, 524, 526, 529, 556, and 558 are amended as follows:
21 U.S.C. 321, 331, 351, 352, 353, 360b, 371, 379e.
(c) * * *
(1) * * *
(2) * * *
21 U.S.C. 360ccc-1, 360ccc-2, 371.
(a)
(b)
(c)
(2)
(3)
21 U.S.C. 360b.
(a)
(b)
(c)
(2)
(3)
(b) * * *
(1) No. 069254 for use as in paragraph (d) of this section.
(3) Nos. 069043 and 076475 for use as in paragraphs (d)(4)(i)(A), (d)(4)(i)(B), and (d)(4)(ii) and (iii) of this section.
(d) * * *
(4) * * *
(iii) * * *.
(C)
(a)
(b)
(1) No. 069043 for use of a 250-mg bolus as in paragraph (d)(1) of this section.
(2) No. 016592 for use of a 25-mg tablet as in paragraph (d)(2) of this section.
(3) No. 016592 for use of a 500-mg bolus as in paragraph (d)(3) of this section.
(d) * * *
(3) * * *
(ii)
(b) * * *
(1) Nos. 054771 and 061133 for use as in paragraph (d) of this section.
(2) Nos. 016592, 054925, and 076475 for use as in paragraphs (d)(1) and (d)(2) of this section.
(d) * * *
(3)
(d) * * *
(1) * * *
(iii)
(b) * * *
(3) No. 061133 for use of a 100-g container as in paragraphs (e)(1)(i)(B) and (e)(1)(ii) of this section.
21 U.S.C. 360b.
(b) * * *
(3) Nos. 000061, 017033, 043264, and 059399 for use of the product described in paragraph (a)(3) of this section as in paragraph (d)(3) of this section.
(d) * * *
(2) * * *
(i)
(ii)
(iii)
(3) * * *
(i)
(ii)
(iii)
(4) * * *
(i)
(ii)
(iii)
(e) * * *
(2) * * *
(iii)
(b)
(e) * * *
(1) * * *
(ii) * * * For No. 054771: Federal law restricts this drug to use by or on the order of a licensed veterinarian.
(2) * * *
(ii) * * * For No. 054771: Federal law restricts this drug to use by or on the order of a licensed veterinarian.
(e) * * *
(1) * * *
(ii) * * * For No. 055529: Federal law restricts this drug to use by or on the order of a licensed veterinarian.
(2) * * *
(ii) * * * For No. 055529: Federal law restricts this drug to use by or on the order of a licensed veterinarian.
(j) * * *
(3) * * *
(i)
(iii)
(d) * * *
(2) * * *
(iii)
(d) * * *
(2) * * *
(iii) * * *
(C) For Nos. 054771 and 055529: Federal law restricts this drug to use by or on the order of a licensed veterinarian.
(a)
(b)
(c)
(2)
(3)
(b)
(1) Nos. 017033 and 054771 for use as in paragraph (c) of this section.
The revisions read as follows:
(d) * * *
(1) * * *
(iii)
(2) * * *
(iii)
(b) * * *
(1) Nos. 000061, 013744, 051311, 054771, 055529, 058198, 061133, and 068504 for use of product described in paragraph (a)(1) as in paragraphs (d)(1)(i), (d)(1)(ii), (d)(1)(iii)(A), and (d)(2) of this section.
21 U.S.C. 360b.
(d) * * *
(2)
(3)
(b)
(c) * * *
(2)
21 U.S.C. 360b.
(d) * * *
(3)
(d) * * *
(3)
21 U.S.C. 360b.
(c) * * *
(3) * * * For No. 000061: Federal law restricts this drug to use by or on the order of a licensed veterinarian.
21 U.S.C. 342, 360b, 371.
(b) * * *
(1) * * *
(i) Liver (target tissue): 300 ppb.
(c)
(c)
21 U.S.C. 354, 360b, 360ccc, 360ccc-1, 371.
(d) * * *
(1) * * *
(d) * * *
(8) * * *
(vi) Not for broiler breeder replacement chickens.
The revisions and additions read as follows:
(d) * * *
(1) * * *
Food and Drug Administration, Department of Health and Human Services (HHS).
Technical amendment.
The Food and Drug Administration (FDA) is announcing conforming changes to its regulations issued under the Federal Food, Drug, and Cosmetic Act (FD&C Act) as required by the Consolidated Appropriations Act of 2022, which amended the term “tobacco product” in the FD&C Act to include products that contain nicotine from any source.
The technical amendments to title 21 of the Code of Federal Regulations (CFR) are effective March 20, 2023.
Paul Hart or Laura Chilaka, Center for Tobacco Products, Food and Drug Administration, Document Control Center, 10903 New Hampshire Ave., Bldg. 71, Rm. G335, Silver Spring, MD 20993, 877-287-1373,
The Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act) (Pub. L. 111-31) was enacted on June 22, 2009, amending the FD&C Act and providing FDA with the authority to regulate tobacco products. Section 201(rr) of the FD&C Act (21 U.S.C. 321(rr)), as amended by the Tobacco Control Act, defined the term “tobacco product” to mean any product made or derived from tobacco that is intended for human consumption, including any component, part, or accessory of a tobacco product (except for raw materials other than tobacco used in manufacturing a component, part, or accessory of a tobacco product). It further stated that the term “tobacco product” does not mean an article that is a drug under section 201(g)(1), a device under section 201(h), or a combination product described in section 503(g) of the FD&C Act (21 U.S.C. 353(g)).
The Consolidated Appropriations Act of 2022 (the Appropriations Act) (Pub. L. 117-103), enacted on March 15, 2022, amended the definition of the term “tobacco product” in section 201(rr) of the FD&C Act to include products that contain nicotine from any source. It further amended the definition to exclude articles that are foods under section 201(f) of the FD&C Act if such articles contain no nicotine or no more than trace amounts of naturally occurring nicotine. The Appropriations Act also amended section 901(b) of the FD&C Act (21 U.S.C. 387a(b)), which concerns FDA authority over tobacco products, by adding a sentence stating chapter IX of the FD&C Act shall also apply to any tobacco product containing nicotine that is not made or derived from tobacco. As a result, tobacco products that contain non-tobacco nicotine (NTN), including synthetic nicotine, are now subject to the provisions in chapter IX of the FD&C Act (21 U.S.C. 387 to 387t), including, but not limited to the:
• Adulteration and misbranding provisions (sections 902 and 903 of the FD&C Act);
• Required submission of ingredient listing and reporting of harmful and potentially harmful constituents for all tobacco products (section 904 of the FD&C Act);
• Required establishment registration and product listing (section 905 of the FD&C Act);
• Prohibition of selling tobacco products to individuals under 21 years of age (section 906(d)(5) of the FD&C Act);
• Requirement that new tobacco products have an FDA marketing order (section 910 of the FD&C Act) in effect; and
• Requirement that modified risk tobacco products have a modified risk order in effect (section 911 of the FD&C Act).
The Appropriations Act further states that products that are tobacco products under the amended definition in section 201(rr) of the FD&C Act shall be subject to all requirements of regulations for tobacco products and specifies that the term “tobacco product” in regulations and guidance issued, in whole or in part, under the FD&C Act shall have the meaning of, and shall be deemed amended to reflect the meaning of, the amended definition in section 201(rr). As a result, beginning April 14, 2022, tobacco products that contain NTN, including synthetic nicotine, are subject to the provisions that apply to tobacco products in FDA's regulations, including, but not limited to:
• Refuse to accept criteria for premarket submissions (21 CFR 1105.10);
• Content and format requirements for premarket tobacco product applications (21 CFR part 1114);
• Exemption from substantial equivalence requirements (21 CFR part 1107, subpart A); and
• Prohibition of the distribution of free samples (21 CFR 1140.16(d)).
The Appropriations Act directs FDA to publish a notice in the
FDA is updating the definition of “tobacco product” in regulations issued, in whole or in part, under the FD&C Act, to reflect the amendments made by the Appropriations Act. The definition of “tobacco product,” where included in the text of FDA regulations, is being updated to reflect the statutory amendments by adding the phrase “or containing nicotine from any source” after the words “from tobacco,” and incorporating the exclusion of articles that are foods as defined in section 201(f) of the FD&C Act if such articles contain no nicotine or no more than trace amounts of naturally occurring nicotine. The definition of “tobacco product” is being updated in the following sections of the CFR:
FDA is
The amendments made by the Appropriations Act result in changes to some previously approved collections of information that are subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521). The OMB control numbers for these information collections are listed in table 1. FDA has published, and intends to continue publishing, notices concerning proposed changes to the relevant information collection activities in other editions of the
Administrative practice and procedure, Cigars and cigarettes, Smoking, Tobacco.
Advertising, Labeling, Smoking, Tobacco.
Advertising, Labeling, Packaging and containers, Smoking, Tobacco.
Therefore, under the Federal Food, Drug, and Cosmetic Act, and under authority delegated to the Commissioner of Food and Drugs, 21 CFR parts 1100, 1107, 1114, 1140, and 1143 are amended as follows:
21 U.S.C. 371, 374, 387a(b), 387e, 387i; Pub. L. 117-103, 136 Stat. 49.
In addition to FDA's authority over cigarettes, cigarette tobacco, roll-your-own tobacco, smokeless tobacco, and any tobacco product containing nicotine not made or derived from tobacco, FDA deems all other products meeting the definition of
(1) Means any product made or derived from tobacco, or containing nicotine from any source, that is intended for human consumption, including any component, part, or accessory of a tobacco product (except for raw materials other than tobacco used in manufacturing a component, part, or accessory of a tobacco product); and
(2) Does not mean an article that is a drug under section 201(g)(1) of the Federal Food, Drug, and Cosmetic Act; a device under section 201(h) of the Federal Food, Drug, and Cosmetic Act; a combination product described in section 503(g) of the Federal Food, Drug, and Cosmetic Act; or a food under 201(f) of the Federal Food, Drug, and Cosmetic Act if such article contains no nicotine or no more than trace amounts of naturally occurring nicotine.
21 U.S.C. 371, 374, 387e(j), 387i, 387j; Pub. L. 117-103, 136 Stat. 49.
21 U.S.C. 371, 374, 387a, 387i, 387j; Pub. L. 117-103, 136 Stat. 49.
21 U.S.C. 301
(1) Means any product made or derived from tobacco, or containing nicotine from any source, that is intended for human consumption, including any component, part, or accessory of a tobacco product (except for raw materials other than tobacco used in manufacturing a component, part, or accessory of a tobacco product); and
(2) Does not mean an article that is a drug under section 201(g)(1) of the Federal Food, Drug, and Cosmetic Act; a device under section 201(h) of the Federal Food, Drug, and Cosmetic Act; a combination product described in section 503(g) of the Federal Food, Drug, and Cosmetic Act; or a food under 201(f) of the Federal Food, Drug, and Cosmetic Act if such article contains no nicotine or no more than trace amounts of naturally occurring nicotine.
21 U.S.C. 387a(b), 387f(d), Pub. L. 117-103, 136 Stat. 49.
(1) Means any product made or derived from tobacco, or containing nicotine from any source, that is intended for human consumption, including any component, part, or accessory of a tobacco product (except for raw materials other than tobacco used in manufacturing a component, part, or accessory of a tobacco product); and
(2) Does not mean an article that is a drug under section 201(g)(1) of the Federal Food, Drug, and Cosmetic Act; a device under section 201(h) of the Federal Food, Drug, and Cosmetic Act; a combination product described in section 503(g) of the Federal Food, Drug, and Cosmetic Act; or a food under 201(f) of the Federal Food, Drug, and Cosmetic Act if such article contains no nicotine or no more than trace amounts of naturally occurring nicotine.
Coast Guard, Department of Homeland Security (DHS).
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for waters of the Atlantic Ocean, adjacent to Cape Canaveral, FL. This safety zone would implement a special activities provision of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021. The Coast Guard is establishing this safety zone for the launch of the Terran 1 rocket, which is being launched by Relativity Space. The temporary safety zone will be located within the Coast Guard District Seven area of responsibility offshore of Cape Canaveral, Florida. This rule prohibits U.S.-flagged vessels from entering the temporary safety zone unless authorized by the District Commander of the Seventh Coast Guard District or a designated representative. Foreign-flagged vessels are encouraged to remain outside the safety zone. This action is necessary to protect vessels and waterway users from the potential hazards created by launch of the Terran 1 rocket, flying over the U.S. Exclusive Economic Zone (EEZ).
This rule is effective without actual notice from March 20, 2023, through 4 p.m. on March 23, 2023. For the purposes of enforcement, actual notice will be used from 10 a.m. on March 16, 2023, through March 20, 2023.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email LT Ryan Gilbert, District Seven, Waterways Management Branch, U.S. Coast Guard; telephone 305-415-6750, email
On January 1, 2021, the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Pub. L. 116-283) (Authorization Act) was enacted. Section 8343 (134 Stat. 4710) calls for the Coast Guard to conduct a 2-year pilot program to establish and implement a process to establish safety zones to address special activities,
The Coast Guard has long monitored space activities impacting the maritime domain and taken actions to ensure the safety of vessels and the public as needed during space launch operations. In conducting this activity, the Coast Guard engages with other government agencies, including the Federal Aviation Administration (FAA) and National Aeronautics and Space Administration (NASA). This engagement is necessary to ensure statutory and regulatory obligations are met to ensure the safety of launch operations and waterway users.
The Coast Guard has an existing permanent regulated navigation area (RNA) that prevents vessels from operating in the waters adjacent to the Cape Canaveral launch area; however, that area only extends to the limits of the territorial sea.
The Terran 1 will be the first rocket launched of the Terran Program. Rockets built by Relativity Space for the Terran program are constructed using a novel 3D printing technology that has never been successfully employed in the United States. While the Terran rocket has conducted tests of its engines, it has not yet been launched into low earth orbit. Therefore, this launch presents a higher risk profile than with a typical launch. Based on these factors, it has been determined that the best way to reduce risk is to establish this temporary safety zone abutting the established RNA in § 165.775.
Once the Terran 1 rocket has been launched, the Coast Guard will notify the public through a Broadcast Notice to Mariners (BNM) that any remaining safety zone enforcement times and dates are no longer needed.
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable. This safety zone must be established by March 16, 2023, in order to protect vessels and waterway users from the potential hazards associated with the launch of the Terran 1 rocket.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under section 8343 of the Authorization Act. The Seventh District Commander has determined that there are potential hazards in the U.S. EEZ created by the launch of the Terran 1 rocket. The purpose of this rule is to ensure safety of vessels and waterway users before, during, and after the scheduled launch.
This rule establishes a temporary safety zone that will be subject to enforcement starting on March 16, 2023, through March 23, 2023, from 10 a.m. to 4 p.m. each day, until the Terran 1 rocket is launched. Once the Terran 1 rocket has been launched, the Coast Guard will notify the public that the temporary safety zone has been cancelled, through a BNM.
This temporary safety zone will cover certain navigable waters in the path of the rocket being launched from Cape Canaveral, FL. The safety zone will cover approximately 650 square miles and is roughly shaped like an elongated trapezoid. It will directly abut the RNA established in § 165.775. U.S.-flagged vessels will be prohibited from entering the temporary safety zone unless authorized by the District Commander of the Seventh Coast Guard District or a designated representative. Foreign-flagged vessels are encouraged to remain outside the safety zone. The coordinates of the safety zone are provided in the regulatory text, and a map will be provided in the docket.
No U.S.-flagged vessel or person will be permitted to enter the safety zone without obtaining permission from the District Commander or a designated representative.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the size, location, duration, and scope of the temporary safety zone. The temporary safety zone is limited in size and location to only to the areas where Terran 1 rocket launch may pose a danger to vessels outside the RNA. The temporary safety zone is limited in scope, as vessel traffic will be able to
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A. above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves enforcement of a safety zone for approximately 5 or 6 hours during the duration of the rocket launch of the Terran 1 rocket. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.
(a)
(b)
(c)
(2) To seek permission to enter, transit through, anchor in or remain within the safety zone contact Sector Jacksonville by telephone at (904) 714-7557 or the District Commander's representative via VHF-FM radio on channel 16. Those in the safety zone must comply with all lawful orders or directions given to them by the District Commander or a designated representative.
(d)
(2) Once the Terran 1 rocket has been launched, the safety zone will no longer be needed. At that time, the Coast Guard will notify the public of the cancellation of the safety zone through a Broadcast Notice to Mariners on VHF-FM channel 16, and through social media.
(e)
Great Lakes St. Lawrence Seaway Development Corporation, DOT.
Final rule; correction.
The Great Lakes St. Lawrence Seaway Development Corporation (GLS) and the St. Lawrence Seaway Management Corporation (SLSMC) of Canada, under international agreement, jointly publish and presently administer the St. Lawrence Seaway Tariff of Tolls in their respective jurisdictions. On March 13, 2023, GLS published a final rule that set forth the level of tolls assessed on all commodities and vessels transiting the facilities operated by the GLS and the SLSMC. Due to a technical problem in production, a footnote was numbered incorrectly. This document corrects the error.
This correction is effective on March 22, 2023.
Carrie Mann Lavigne, Chief Counsel, Great Lakes St. Lawrence Seaway Development Corporation, 180 Andrews Street, Massena, New York 13662; (315) 764-3200.
The Great Lakes St. Lawrence Seaway Development Corporation (GLS) and the St. Lawrence Seaway Management Corporation (SLSMC) of Canada, under international agreement, jointly publish and presently administer the St. Lawrence Seaway Tariff of Tolls (Schedule of Fees and Charges in Canada) in their respective jurisdictions. A final rule amending 33 CFR part 402 published March 13, 2023, at 88 FR 15274, carried an incorrect footnote designation in a table in § 402.12. This document corrects that error.
In FR Doc. 2023-05007 appearing on page 15274 in the
Issued at Washington, DC, under authority delegated at 49 CFR part 1.101 Great Lakes St. Lawrence Seaway Development Corporation.
Environmental Protection Agency (EPA).
Final rule; notice of administrative change.
The Environmental Protection Agency (EPA) is updating the materials that are incorporated by reference (IBR) into the Alabama State Implementation Plan (SIP). The regulations affected by this update have been previously submitted by Alabama and approved by EPA. EPA is also notifying the public of corrections to the Code of Federal Regulations (CFR) tables that identify material incorporated by reference into the Alabama SIP. This update affects the materials that are available for public inspection at the National Archives and Records Administration (NARA) and the EPA Regional Office.
This action is effective March 20, 2023.
The SIP materials whose incorporation by reference into 40 CFR part 52 is finalized through this action are available for inspection at the following locations: Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, GA 30303; and
Sarah LaRocca, Air Regulatory Management Section, Air Planning and Implementation Branch, Air and Radiation Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. Ms. LaRocca can be reached via telephone at (404) 562-8994 and via electronic mail at
Each state has a SIP containing the control measures and strategies used to attain and maintain the national ambient air quality standards (NAAQS). The SIP is extensive, containing such elements as air pollution control regulations, emission inventories, monitoring networks, attainment demonstrations, and enforcement mechanisms.
Each state must formally adopt the control measures and strategies in the SIP after the public has had an opportunity to comment on them and then submit the proposed SIP revisions to EPA. Once these control measures and strategies are approved by EPA, and after notice and comment, they are incorporated into the federally-approved SIP and are identified in part 52—“Approval and Promulgation of Implementation Plans,” Title 40 of the Code of Federal Regulations (40 CFR part 52). The full text of the state regulation approved by EPA is not reproduced in its entirety in 40 CFR part 52 but is “incorporated by reference.” This means that EPA has approved a given state regulation or specified changes to a given regulation with a specific effective date. The public is referred to the location of the full text version should they want to know which measures are contained in a given SIP. The information provided allows EPA and the public to monitor the extent to which a state implements a SIP to attain and maintain the NAAQS and to take enforcement action for violations of the SIP.
The SIP is a living document which the state can revise as necessary to address the unique air pollution problems in the state. Therefore, EPA from time to time must take action on proposed revisions containing new and/or revised regulations. A submission from a state can revise one or more rules in their entirety or portions of rules. The state indicates the changes in the submission (such as by using redline/strikethrough text) and EPA then takes action on the requested changes. EPA establishes a docket for its actions using a unique Docket Identification Number, which is listed in each action. These dockets and the complete submission are available for viewing on
On May 22, 1997 (62 FR 27968), EPA revised the procedures for incorporating by reference, into the Code of Federal Regulations, materials approved by EPA into each state SIP. These changes revised the format for the identification of the SIP in 40 CFR part 52, streamlined the mechanisms for announcing EPA approval of revisions to a SIP, and streamlined the mechanisms for EPA's updating of the IBR information contained for each SIP in 40 CFR part 52. The revised procedures also called for EPA to maintain “SIP Compilations” that contain the federally approved regulations and source-specific permits submitted by each state agency. EPA generally updates these SIP Compilations on an annual basis. Under the revised procedures, EPA must periodically publish an informational document in the rules section of the
In this action, EPA is providing notice of an update to the materials incorporated by reference into the Alabama SIP as of August 31, 2022 and identified in 40 CFR 52.50(c) and (d). This update includes SIP materials approved by EPA since the last IBR update.
EPA has determined that this action falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedure Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make an action effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). This administrative action simply codifies provisions which are already in effect as a matter of law in Federal and approved state programs, makes typographical/ministerial revisions to the tables in the CFR, and makes ministerial changes to the prefatory heading to the tables in the CFR. Under section 553(b)(3)(B) of the APA, an agency may find good cause where procedures are “impracticable, unnecessary, or contrary to the public interest.” Public comment for this administrative action is “unnecessary” and “contrary to the public interest” since the codification (and corrections) only reflect existing law. Immediate notice of this action in the
In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of previously EPA-approved regulations promulgated by Alabama and federally effective prior to August 31, 2022. EPA has made, and will continue to make, these materials generally available through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations.
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
EPA also believes that the provisions of section 307(b)(1) of the CAA pertaining to petitions for judicial review are not applicable to this action. This is because prior EPA rulemaking actions for each individual component of the Alabama SIP Compilation previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR part 52, is amended as follows:
42 U.S.C. 7401 et seq. Subpart B—Alabama
(b)
(2) EPA Region 4 certifies that the rules/regulations provided by EPA in the SIP compilation at the addresses in paragraph (b)(3) of this section are an exact duplicate of the officially promulgated State rules/regulations which have been approved as part of the State Implementation Plan as of the dates referenced in paragraph (b)(1) of this section.
(3) Copies of the materials incorporated by reference may be inspected at the Region 4 EPA Office at 61 Forsyth Street SW, Atlanta, GA 30303. To obtain the material, please call (404) 562-9022. You may also inspect the material with an EPA approval date prior to August 31, 2021, for Alabama, at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, please email
(c)
Environmental Protection Agency (EPA).
Final rule; notice of administrative change.
The Environmental Protection Agency (EPA) is updating the materials that are incorporated by reference (IBR) into the Georgia State Implementation Plan (SIP). The regulations affected by this update have been previously submitted by Georgia and approved by EPA. In this notice, EPA is also notifying the public of corrections and clarifying changes to the Code of Federal Regulations (CFR) tables that identify material incorporated by reference into the Georgia SIP. This update affects the materials that are available for public inspection at the National Archives and Records Administration (NARA) and the EPA Regional Office.
This action is effective March 20, 2023.
The SIP materials whose incorporation by reference into 40 CFR part 52 is finalized through this action are available for inspection at the following locations: Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, GA 30303; and
Sarah LaRocca, Air Regulatory Management Section, Air Planning and Implementation Branch, Air and Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. Ms. LaRocca can be reached via telephone at (404) 562-8994 or via electronic mail at
Each state has a SIP containing the control measures and strategies used to attain and maintain the national ambient air quality standards (NAAQS). The SIP is extensive, containing such elements as air pollution control regulations, emission inventories, monitoring networks, attainment demonstrations, and enforcement mechanisms.
Each state must formally adopt the control measures and strategies in the SIP after the public has had an opportunity to comment on them and then submit the proposed SIP revisions to EPA. Once these control measures and strategies are approved by EPA, and after notice and comment, they are incorporated into the federally-approved SIP and are identified in part 52—“Approval and Promulgation of Implementation Plans,” Title 40 of the Code of Federal Regulations (40 CFR part 52). The full text of the state regulation approved by EPA is not reproduced in its entirety in 40 CFR part 52 but is “incorporated by reference.” This means that EPA has approved a given state regulation or specified changes to a given regulation with a specific effective date. The public is referred to the location of the full text version should they want to know which measures are contained in a given SIP. The information provided allows EPA and the public to monitor the extent to which a state implements a SIP to attain and maintain the NAAQS and to take enforcement action for violations of the SIP.
The SIP is a living document which the state can revise as necessary to address the unique air pollution problems in the state. Therefore, EPA from time to time must take action on proposed revisions containing new or revised state regulations. A submission from a state can revise one or more rules in their entirety or portions of rules. The state indicates the changes in the submission (such as by using redline/strikethrough text), and EPA then takes action on the requested changes. EPA establishes a docket for its actions using a unique Docket Identification Number, which is listed in each action. These dockets and the complete submission are available for viewing on
On May 22, 1997 (62 FR 27968), EPA revised the procedures for incorporating by reference, into the Code of Federal Regulations, materials approved by EPA into each SIP. These changes revised the format for the identification of the SIP in 40 CFR part 52, streamlined the mechanisms for announcing EPA approval of revisions to a SIP, and streamlined the mechanisms for EPA's updating of the IBR information contained for each SIP in 40 CFR part 52. The revised procedures also called for EPA to maintain “SIP Compilations” that contain the federally approved regulations and source-specific permits submitted by each state agency.
EPA generally updates these SIP Compilations on an annual basis. Under the revised procedures, EPA must periodically publish an informational document in the rules section of the
In this action, EPA is providing notice of an update to the materials incorporated by reference into the Georgia SIP as of August 31, 2022, and identified in 40 CFR 52.570(c) and (d). This update includes SIP materials approved by EPA since the last IBR update.
A. Correcting Table (c)'s title, from “
B. Correcting the header of paragraph (c), from “EPA Approved Georgia Regulations” to “EPA-Approved Georgia Regulations”
C. Under 391-3-1-02(a), the explanation is revised from, “Except for paragraph 391-3-1-02(a)1 (as approved on 3/16/2006).” to “Except for paragraph 391-3-1-02(2)(a)1.”
D. Under 391-3-1-.02(2)(nnn), “NO
E. Under 391-3-1-.02(5), “Open Burning,” the EPA approval date is revised from “2/9/2010, 75 FR 6309” to “5/28/2019, 84 FR 24393” and a note is added in the explanation column to read: “Except subparagraph 391-3-1-.02(5)(c), which was approved on July 10, 2001, with a state effective date of August 16, 2000.”
F. Under 391-3-1-.01, 391-3-1-.02(5), 391-3-1-.02(6), 391-3-1-.03(13), the phrases “State-effective” and “state-effective” are revised to remove the hyphen.
A. Correcting the header of paragraph (d), from “EPA Approved Georgia Source-Specific Requirements” to “EPA-Approved Georgia Source-Specific Requirements”
B. The Plant Atkinson permits, specifically 4922-033-1319-0, 4911-033-1320-0, 4911-033-1321-0, 4911-033-1322-0, and 4911-033-6949, have been reordered to be in sequential order.
EPA has determined that this action falls under the “good cause” exemption in the section 553(b)(3)(B) of the Administrative Procedure Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make an action effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). This administrative action simply codifies provisions which are already in effect as a matter of law in Federal and approved state programs, makes typographical/ministerial revisions to the tables in the CFR, and makes ministerial changes to the prefatory heading to the tables in the CFR. Under section 553(b)(3)(B) of the APA, an agency may find good cause where procedures are “impracticable, unnecessary, or contrary to the public interest.” Public comment for this administrative action is “unnecessary” and “contrary to the public interest” since the codification (and corrections) only reflect existing law. Immediate notice of this action in the
In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of previously EPA-approved regulations promulgated by Georgia and federally effective prior to August 31, 2022. EPA has made, and will continue to make, these materials generally available through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations.
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
EPA also believes that the provisions of section 307(b)(1) of the CAA pertaining to petitions for judicial review are not applicable to this action. This is because prior EPA rulemaking actions for each individual component of the Georgia SIP compilations previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of such rulemaking action. Thus, EPA believes judicial review of this action under section 307(b)(1) of the CAA is not available.
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Accordingly, for reasons stated in the preamble, 40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(b)
(2) EPA Region 4 certifies that the rules/regulations provided by EPA in the SIP compilation at the addresses in paragraph (b)(3) of this section are an exact duplicate of the officially promulgated State rules/regulations which have been approved as part of the State Implementation Plan as of the dates referenced in paragraph (b)(1) of this section.
(3) Copies of the materials incorporated by reference may be inspected at the Region 4 EPA Office at 61 Forsyth Street SW, Atlanta, GA 30303. To obtain the material, please call (404) 562-9022. You may also inspect the material with an EPA approval date prior to August 31, 2022, for Georgia, at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, please email
(c)
(d)
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of azoxystrobin in or on mango, papaya, and oil palm. Syngenta Crop Protection, LLC requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective March 20, 2023. Objections and requests for hearings must be received on or before May 19, 2023 and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2021-0729, is available at
Daniel Rosenblatt, Registration Division (7505T), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (202) 566-2875; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Office of the Federal Register's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2021-0729 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before May 19, 2023. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2021-0729, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for azoxystrobin including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with azoxystrobin follows.
In an effort to streamline its publications in the
EPA has previously published a tolerance rulemaking for azoxystrobin, most recently on November 15, 2018, in which EPA concluded, based on the available information, that there is a reasonable certainty that no harm would result from aggregate exposure to azoxystrobin and established tolerances for residues of that pesticide chemical. EPA is incorporating previously published sections from the 2018 rulemaking as described further in this rulemaking, as they remain unchanged.
For a discussion of the toxicological profile of azoxystrobin, see Unit III.A. of the 2018 rulemaking (83 FR 57333) (FRL-9985-45).
For a summary of the toxicological points of departure/levels of concern used for the safety assessment, see Unit III.B. of the 2018 rulemaking.
Much of the exposure assessment remains the same, although updates have occurred to accommodate exposures from the petitioned-for tolerances. The updates are discussed in this section; for a description of the rest of the EPA approach to and assumptions for the exposure assessment, see Unit III.C. of the 2018 rulemaking.
Azoxystrobin is currently registered for use on turf, ornamentals, and antimicrobial uses as a materials preservative in paints and plastics that could result in residential exposures. The residential risk estimate that was used in the aggregate assessment is hand-to-mouth incidental oral exposures to preserved vinyl flooring for children aged 1 to less than 2 years old. EPA's conclusions concerning cumulative risk remain unchanged from the 2018 rulemaking.
EPA continues to conclude that there is reliable data to support the reduction of the Food Quality Protection Act (FQPA) safety factor to 1X for all exposure scenarios except acute exposure. For assessing acute dietary risk, EPA continues to retain an FQPA factor of 3X. See Unit III.D. of the 2018 rulemaking for a discussion of the Agency's rationale for that determination.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate points of departure (PODs) to ensure that an adequate margin of exposure (MOE) exists.
Acute dietary risks are below the Agency's level of concern of 100% of the aPAD; they are 29% of the aPAD for children 1 to 2 years old, the population group receiving the greatest exposure. Chronic dietary risks are below the Agency's level of concern of 100% of the cPAD; they are 66% of the cPAD for children 1 to 2 years old, the population group receiving the greatest exposure.
The Agency analyzed short-term aggregate risk by aggregating chronic dietary (food and drinking water) exposure with incidental oral hand-to-mouth post-application exposure to children 1 to <2 years old from preserved vinyl flooring. EPA has concluded the combined short-term
As stated in Unit III. E. of the 2018 rulemaking, azoxystrobin is not expected to pose an intermediate-term risk; therefore, the intermediate-term aggregate risk would be equivalent to the chronic dietary exposure estimate.
Based on the lack of evidence of carcinogenicity in two acceptable rodent carcinogenicity studies, azoxystrobin is not expected to pose a cancer risk to humans.
Therefore, based on these risk assessments and information described above, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to azoxystrobin residues. More detailed information can be found at
For a discussion of the available analytical enforcement method, see Unit IV.A. of the 2018 rulemaking.
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex.
The Codex has established MRLs for azoxystrobin in or on mango at 0.7 ppm and papaya at 0.3 ppm, which are lower than the current U.S. tolerances for residues of azoxystrobin in or on mango at 2.0 ppm and papaya at 2.0 ppm. The petitioner requested increasing the tolerance for mango to 4 ppm and the tolerance for papaya to 6 ppm to support the import of these commodities from other countries. The residue data support the increased tolerances. Codex has not established an MRL for residues of azoxystrobin in or on palm oil.
Therefore, an import tolerance is established for residues of azoxystrobin, methyl (E)-2-[2-[6-(2-cyanophenoxy)pyrimidin-4-yloxy]phenyl]-3-methoxyacrylate, in or on palm, oil at 0.06 ppm, and existing tolerances are amended for azoxystrobin residues in or on mango at 4 ppm and papaya at 6 ppm.
This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal Governments, on the relationship between the National Government and the States or Tribal Governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I as follows:
21 U.S.C. 321(q), 346a and 371.
The additions and revisions read as follows:
(a) * * *
(1) * * *
Federal Maritime Commission.
Final rule.
The Federal Maritime Commission (Commission) amends its Rules of Practice and Procedure governing the compromise, assessment, mitigation, settlement, and collection of civil penalties. These changes to the Commission regulations align with the statutory changes in the Ocean Shipping Reform Act of 2022 on penalties or refunds.
The effective date is April 19, 2023.
William Cody, Secretary; Phone: (202) 523-5725; Email:
On June 16, 2022, the President signed the Ocean Shipping Reform Act of 2022 (“OSRA 2022”) into law,
Before OSRA 2022, section 41107 stated that any person that violates the Shipping Act or a regulation or order of the Commission issued under the Shipping Act is liable for a civil penalty. OSRA 2022 changed the language in this section governing potential liability of a violator by adding the phrase “or, in addition to or in lieu of a civil penalty, is liable for the refund of a charge” immediately after the term civil penalty. Accordingly, the Commission may now order that a person is liable for “a civil penalty or, in addition to or in lieu of a civil penalty, is liable for the refund of a charge” for any violation of the Shipping Act, Commission regulations, or Commission order.
As a result, the term “refund” now appears in two key provisions of the Shipping Act. First, in addition to appearing in sections 41107 and 41109 (as amended by OSRA 2022), the term “refund” also appears in newly enacted section 41310, which explicitly addresses the issue of charge complaints. That provision specifies, among other things, that upon a finding by the Commission that a carrier's charges do not comply with the Shipping Act, the Commission shall promptly order the refund of those charges paid.
OSRA 2022 also made identical changes to 46 U.S.C. 41109. Section 41109 provides how to assess civil penalties and how to determine their amounts. Section 41109 as amended by OSRA 2022 states that the Commission may, after notice and opportunity for a hearing, “assess a civil penalty” or “in addition to, or in lieu of a civil penalty . . . order a refund of money.” 46 U.S.C. 41109(a)(1). OSRA 2022 also amended section 41109 by specifying the factors in determining “the amount of a civil penalty assessed or refund of money ordered.” 46 U.S.C. 41109(b)(1). While section 41109 now applies for assessment of penalties or refund, the Commission believes that section 41109's revised factors are applicable only to assessment of penalties.
OSRA 2022 also provided that if the Commission orders a refund of money in addition to a civil penalty, the amount of civil penalty must be decreased by any additional amounts included in the refund of money in excess of the “actual injury” as defined in the Shipping Act at 46 U.S.C. 41305(a).
Therefore, the Commission makes conforming amendments to its regulations for civil penalties. The Commission is also making one technical change to update a term in 46 CFR 502.605(c).
The Administrative Procedure Act (APA) requires that “[g]eneral notice of proposed rulemaking shall be published in the
The Regulatory Flexibility Act, 5 U.S.C. 601-612, provides that whenever an agency publishes a notice of proposed rulemaking under the APA, 5 U.S.C. 553, the agency must prepare and make available for public comment a regulatory flexibility analysis (RFA) describing the impact of the rule on small entities, unless the head of the agency certifies that the rulemaking will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 603-605. As stated above, however, the APA notice requirement does not apply to this rulemaking for the Commission's practice and procedure. Therefore, the APA does not require the Commission to publish a notice of proposed rulemaking in this instance, and the Commission did not prepare an RFA.
The Commission's regulations categorically exclude certain rulemakings from any requirement to prepare an environmental assessment or an environmental impact statement because they do not increase or decrease air, water or noise pollution or the use of fossil fuels, recyclables, or energy. 46 CFR 504.4. This rule amends the Commission's rules of practice and procedure at 46 CFR part 502. This rule thus falls within the categorical exclusion for matters related solely to “[p]romulgation of procedural rules pursuant to 46 CFR part 502.” 46 CFR 504.4(a)(4). Therefore, no environmental assessment or environmental impact statement is required.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) requires an agency to seek and receive approval from the Office of Management and Budget (OMB) before collecting information from the public. 44 U.S.C. 3507. The agency must submit collections of information in proposed rules to OMB in conjunction with the publication of the notice of proposed rulemaking. 5 CFR 1320.11. This rule does not contain any collections of information as defined by 44 U.S.C. 3502(3) and 5 CFR 1320.3(c).
The Commission assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulatory and Deregulatory Actions (Unified Agenda). The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda, available at
Administrative practice and procedure, Claims, Equal access to justice, Investigations, Lawyers, Maritime carriers, Penalties, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Federal Maritime Commission amends 46 CFR part 502 as follows:
5 U.S.C. 504, 551, 552, 553, 556(c), 559, 561-569, 571-584; 591-596; 18 U.S.C. 207; 28 U.S.C. 2112(a); 31 U.S.C. 9701; 46 U.S.C. 305, 40103-40104, 40304, 40306, 40501-40503, 40701-40706, 41101-41109, 41301-41310, 44101-44106; 5 CFR part 2635.
The purpose of this subpart is to implement the statutory provisions of section 19 of the Merchant Marine Act, 1920 (46 U.S.C. 42101-42109), section 13 of the Shipping Act of 1984 as amended (46 U.S.C. 41107-41109), and sections 2(c) and 3(c) of Public Law 89-777 (46 U.S.C. 44104) by establishing rules and regulations governing the compromise, assessment, settlement and collection of civil penalties arising under certain designated provisions of the Merchant Marine Act, 1920, the Shipping Act of 1984, Public Law 89-777, and/or any order, rule, or regulation (except for procedural rules and regulations contained in this part) issued or made by the Commission in the exercise of its powers, duties and functions under those statutes.
(h)
(a)
(b)
(i) The nature, circumstances, extent, and gravity of the violation committed;
(ii) With respect to the violator:
(A) The degree of culpability;
(B) Any history of prior offenses;
(C) The ability to pay; and
(D) Such other matters as justice may require; and
(iii) The amount of any refund of money ordered under 46 U.S.C. 41310.
(2)
(ii)
(A) Considered to be compensation paid to the applicable claimant; and
(B) Deducted from the total amount of damages awarded to that claimant in a civil action against the violator relating to the applicable violation.
(c)
By the Commission.
Animal and Plant Health Inspection Service, USDA.
Proposed rule; extension of comment period.
We are extending the comment period for our proposed rule that would amend the animal disease traceability regulations. The proposed rule would require that eartags applied on or after a date 6 months (180 days) after publication in the
The comment period for the proposed rule published on January 19, 2023 (88 FR 3320) is extended. We will consider all comments that we receive on or before April 19, 2023.
You may submit comments by either of the following methods: Federal eRulemaking Portal: Go to
•
Supporting documents and any comments we receive on this docket may be viewed at
Dr. Aaron Scott, Director, National Animal Disease Traceability and Veterinary Accreditation Center, Strategy & Policy, Veterinary Services, APHIS, 2150 Centre Ave., Fort Collins, CO 80526;
On January 19, 2023, we published in the
Comments on the proposed rule were required to be received on or before March 20, 2023. We are extending the comment period on Docket No. APHIS-2021-0020 until April 19, 2023. This action will allow interested persons additional time to prepare and submit comments.
7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to revise existing regulations for a Regulated Navigation Area in Tampa Bay, Florida by updating the geographic boundaries of Egmont Channel in the Gulf of Mexico. The proposed change is designed to align the coordinates in the regulation with the coordinates needed to properly control traffic in the Captain of the Port St. Petersburg Zone. The current coordinates do not reflect the Regulated Navigation Area that the Coast Guard intended to put in place. The Coast Guard invites your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before April 19, 2023.
You may submit comments identified by docket number USCG-2022-0962 using the Federal Decision Making Portal at
If you have questions about this proposed rulemaking, call or email Marine Science Technician First Class Regina L. Cuevas, Sector St. Petersburg Prevention Department, Coast Guard; telephone (813) 228-2191, email
The purpose of this proposed rule is to correct a mistake made by the Coast Guard when listing the geographical coordinates of an RNA. The Coast Guard is proposing this rulemaking under authority in the Ports and Waterways Safety Act, 46 U.S.C. 70034.
On July 27, 2015, the Coast Guard published a final rule entitled, “Navigation and Navigable Waters; Technical, Organizational, and Conforming Amendments.” 80 FR 44274. This action was taken to make non-substantive technical, organizational, and conforming amendments to existing regulations throughout Title 33 of the Code of Federal Regulations.
In 2022, it was brought to the attention of Coast Guard that there was an error in the coordinates listed in that Final Rule and that the second coordinate was off by approximately four degrees of longitude, which equates to approximately 200 nautical miles. After reviewing the cooridnates and past
This rule proposes modifying 33 CFR 165.753(a) to reflect the actual geographic position of the port entrance. The proposed rule would move the current plotted position for the regulated navigation area (RNA) to the actual plotted position of 27°35.2′ N, 083°00.4′ W.
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on two specific factors: (1) persons and vessels may operate within the RNA when authorized by Captain of the Port of St. Petersburg or a designated representative; and (2) the RNA is already in place, this regulatory action only represents a the correction of an error in the boundaries.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the Regulated Navigation area may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132 (Federalism), if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please call or email the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the potential effects of this proposed rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a correction of a geographic coordinate identifying the entrance Bouy for Tampa Bay. Normally such actions are categorically excluded from further review under paragraph L60a of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A preliminary Record of Environmental Consideration
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
Harbors, Marine safety, Navigation (water) Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.
(a) The following is a regulated navigation area (RNA): All the navigable waters of Tampa Bay, Hillsborough Bay and Old Tampa Bay, including all navigable waterways tributary thereto. Also included are the waters of Egmont Channel, Gulf of Mexico from Tampa Bay, Tampa Bay Entrance, approximate position (27°35.2′ N, 083°00.4′ W).
USAID.
Notice of information collection; request for comment.
USAID Bureau for Legislative and Public Affairs (LPA) and USAID/Ghana Mission are collaborating to conduct research regarding public perception of USAID programs in Ghana. The goal of this research is to use both qualitative and quantitative methods to gain insights into Ghanaian people's awareness and perceptions of development and USAID assistance programs and activities. The research will also narrow preferred media channels. The research data in the report will be aggregated and not provide PII or other privacy-related information. USAID LPA invites the general public and other Federal agencies to take this opportunity to comment on the following new information collection, as required by the Paperwork Reduction Act of 1995.
Comments will be accepted until May 5, 2023.
To access and review all the documents related to the information collection listed in this notice, please access the survey questionnaire at
Written requests for information or comments submitted by postal mail or delivery should be addressed to Lauren Shaw, the Director of International Communications, at 1300 Pennsylvania Avenue, Suite 6.10A, Washington, DC 20523 or via email at
We are soliciting public comments to permit USAID to:
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record.
Rural Utilities Service, USDA.
Notice of funding opportunity.
The Rural Utilities Service (RUS or the Agency), a Rural Development (RD) agency of the United States Department of Agriculture (USDA), announces the acceptance of applications under the Community Connect Grant (CCG) program for Fiscal Year 2023. The Agency has approximately $79 million for FY 2023. These grant funds will be made available to eligible applicants to construct broadband networks that provide service on a community-oriented connectivity basis in rural areas. All applicants are responsible for any expenses incurred in developing their applications.
Completed applications for grants must be submitted electronically by no later than 11:59 a.m. Eastern Time (ET), June 20, 2023.
All applications must be submitted electronically at:
Randall Millhiser at
• Assisting rural communities to recover economically through more and better market opportunities and through improved infrastructure.
• Ensuring all rural residents have equitable access to RD programs and benefits from RD funded projects.
• Reducing climate pollution and increasing resilience to the impacts of climate change through economic support to rural communities.
1.
2.
3.
4.
1.
(a) Incorporated organization;
(b) Indian tribe or tribal organization, as defined in 25 U.S.C. 5304;
(c) State government;
(d) Local unit of government;
(e) Any other legal entity, including a cooperative, private corporation, or limited liability company organized on a for-profit or not-for-profit basis.
References in this program to a state, state government, or state agency are meant to include the Commonwealth of Puerto Rico, the Virgin Islands of the United States, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, the Federated States of Micronesia, Palau, and the Marshall Islands.
Applicants must have the legal capacity and authority to enter into contracts, to comply with applicable federal statutes and regulations, and to own and operate the broadband facilities as proposed in their application. Corporations that have been convicted of a federal felony within the past 24 months are not eligible. Any corporation that has been assessed to have any unpaid federal tax liability, for which all judicial and administrative remedies have been exhausted or have lapsed and is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability, is not eligible for financial assistance.
2.
3.
(a) Proposed Funded Service Area (PFSA). The applicant must define a contiguous geographic, area located entirely within an eligible rural area, in which Broadband Service does not exist and where the applicant proposes to offer service at the Broadband Grant Speed to all residential and business customers. The PFSA may consist of multiple municipalities and may be located in more than one state.
(i) RUS will validate that broadband service does not exist in areas that applicants describe as having no broadband access or access that is less than 25 Megabits per second (Mbps) downstream plus 3 Mbps upstream.
(ii) The broadband grant speed is 100 Mbps downstream and 20 Mbps upstream for fixed terrestrial broadband service, whether fixed or wireless.
(iii) A PFSA must not overlap with service areas of current RUS borrowers and grantees.
(iv) Areas receiving, or areas that have received final approval for, other federal funding to construct terrestrial facilities providing at least 25/3 Mbps service in the project Proposed Funded Service Area as of the date of this notice, and which have been reported to the agency, are ineligible. As a result, no Community Connect funds may be used to duplicate costs, services, connections, facilities, or equipment that have been authorized under such areas. Applicants submitting a project to serve an area in which the same entity has already received final approval for other federal funding must explain in the application why Community Connect funding is being requested and why RUS should provide additional funding, as funds must not be used for duplicative purposes. Awardees that receive both other federal funds and Community Connect funding must submit a statement certifying that the funds requested from Community Connect have not and will not be reimbursed by another federal award nor used to reimburse another federal award, and that the Awardee will keep separate
(v) A certification from the appropriate tribal official is required if service is being proposed over or on Tribal Lands. The appropriate tribal official is the Tribal Council of the Tribal Government with jurisdiction over the Tribal Lands at issue. Any applicant that fails to provide a certification to provide service on the Tribal Lands identified in the PFSA will not be considered for funding. Tribal Lands are identified on the GIS layers included in the Community Connect mapping tool located at
(vi) The Consolidated Appropriations Act, 2022 (Pub. L. 117-103) and the Consolidated Appropriations Act, 2023 (Pub. L. 117-328), included funding under the ReConnect Program for Community Project Funding/Congressionally Directed Spending projects. The proposed service areas for these projects are not eligible for funding under this FOA. A GIS layer of the proposed service areas for these projects will be made available in the Community Connect mapping tool located at:
(b) Essential Community Facilities. The applicant must propose to offer free service at the Broadband Grant Speed to all participating Essential Community Facilities located within the PFSA for at least two years.
(c) Community Center. The applicant must provide a Community Center within the PFSA with a minimum of 2, and up to 10, computer access points and wireless access at the Broadband Grant Speed, free of all charges, to all users for at least two years. Grant funds used for the improvement, expansion, construction, or acquisition of a community center must not exceed the lesser of 10 percent of the requested grant amount or $150,000.
1.
2.
(a)
(b)
3.
(a) At the time of application, each applicant must have a Unique Entity Identifier (UEI) and an active registration in the System for Award Management (SAM) before submitting its application in accordance with 2 CFR part 25. Instructions for obtaining the UEI are available at
(b) Applicant must maintain an active SAM registration, with current, accurate and complete information, at all times during which it has an active Federal award or an application under consideration by a federal awarding agency.
(c) Applicant must ensure they complete the Financial Assistance General Certifications and Representations in SAM.
(d) Applicants must provide a valid UEI in its application, unless determined exempt under 2 CFR 25.110.
(e) The Agency will not make an award until the applicant has complied with all SAM requirements including providing the UEI. If an applicant has not fully complied with the requirements by the time the Agency is ready to make an award, the Agency may determine that the applicant is not qualified to receive a federal award and use that determination as a basis for making a federal award to another applicant.
4.
(a)
(b)
(c)
5.
6.
The Community Connect Portal requires all users to obtain Level II eAuthentication accounts and for applicant users to submit an Authorized Representative Request (ARR) and a resolution in order to access the portal to submit an application. These procedures may take several business days to complete; therefore, the applicant should complete the registration, credentialing, and authorization procedures before submitting an application. Instructions on creating a Level II eAuthentication account are available at:
RUS also reserves the right to ask applicants for clarifying information and additional verification of assertions in the application.
1.
(a)
(b)
(c)
(d)
(i) If the Administrator determines that a community within “trust land” (as defined in 38 U.S.C. 3765) has a high need for the benefits of the Program, the Administrator may designate the community as a “substantially underserved trust area” (as defined in section 306F of the REAct).
(ii) To receive consideration under SUTA, the applicant must submit to the Agency a completed application that includes all information requested in 7 CFR part 1700, subpart D. In addition, the application must identify the discretionary authorities within Subpart D that it seeks to have applied to its application.
2.
Grants are awarded in rank order, subject to the availability of funds and consistent with 7 CFR 1739.16 and 7 CFR 1739.17. It should be noted that an application receiving fewer points can be selected over an application receiving more points in the event that there are insufficient funds available to cover the costs of the higher scoring application or if the higher scoring application would consume a disproportionate amount of funds available relative to its ranking., as stated in 7 CFR 1739.16(f).
The Agency reserves the right to offer the applicant a lower amount than the amount proposed in the application, as stated in 7 CFR 1739.16(g).
If the Agency receives more than one proposal from the same applicant, then the Agency will only consider the application with the highest score, except in accordance with 7 CFR 1739.16(f).
1.
(a) RUS notifies applicants whose projects are selected for awards by mailing and/or emailing a copy of an award letter. The receipt of an award letter does not authorize the applicant to commence performance under the award. After sending the award letter, the Agency will send an agreement that contains all the terms and conditions for the grant.
(b) An applicant must execute and return the grant agreement, accompanied by any additional items required by the agreement, within the number of days specified in the selection notice letter.
2.
(a) Executing a CCG Agreement.
(b) Using Form SF 270, “Request for Advance or Reimbursement,” to request reimbursements (along with the submission of receipts for expenditures, timesheets, and any other documentation to support the request for reimbursement).
(c) Ensuring that records are maintained to document all activities and expenditures utilizing CCG funds and matching funds (receipts for expenditures are to be included in this documentation).
(d) Complying with policies, guidance, and requirements as described in the following applicable Code of Federal Regulations, and any successor regulations:
(i) 2 CFR parts 200 and 400 (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards). The government must be provided an exclusive first lien on all grant assets during the service obligation of the grant, and thereafter any sale or disposition of grant assets must comply with the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, codified in 2 CFR part 200. Note that this part will apply to ALL grant funds of an Awardee, regardless of the entity status or type of organization.
(ii) 2 CFR parts 417 and 180 (Governmentwide Nonprocurement Debarment and Suspension).
(iii) Complying with Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency.” For information on limited English proficiency and agency-specific guidance, go to
(iv) Accountability and Compliance with Civil Rights Laws. The regulation found at 7 CFR part 1901 Subpart E contains policies and procedures for implementing the regulations of the Department of Agriculture issued pursuant to Title VI of the Civil Rights Act of 1964, Title VIII of the Civil Rights Act of 1968, Title IX, Section 504 of the Rehabilitation Act of 1973, Executive Order 13166, Executive Order 11246, and the Equal Credit Opportunity Act of 1974, as they relate to Rural Development. Nothing herein shall be interpreted to prohibit preference to American Indians on Indian Reservations.
(
(
3.
(a)
(b)
(i) Existing network service improvements and facility upgrades, as well as new equipment and capacity enhancements that support high-speed broadband access for educational institutions, health care providers, and public safety service providers;
(ii) The estimated number of end users who are currently using or forecasted to use the new or upgraded infrastructure;
(iii) The progress towards fulfilling the objectives for which the assistance was granted;
(iv) The speed and average price of the most subscribed tier of the Awardee's broadband service offerings in the Project's service area; and
(v) The average price of broadband service in the Project's service area;
(c)
(d)
(e)
(i) First Tier Subawards of $25,000 or more (unless they are exempt under 2 CFR part 170) must be reported by the recipient to
(ii) The total compensation of the recipient's executives (the five most highly compensated executives) must be reported by the recipient (if the recipient meets the criteria under 2 CFR part 170) to
(iii) The total compensation of the subrecipient's executives (the five most highly compensated executives) must be reported by the subrecipient (if the subrecipient meets the criteria under 2 CFR part 170) to the recipient by the end of the month following the month in which the subaward was made.
(f)
The CCG website maintains up-to-date resources and contact information for the CCG Program. The CCG has a Contact page located at
1.
2.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the information collection requirements associated with the programs, as covered in this notice, have been approved by the Office of Management and Budget (OMB) under OMB Control Number 0572-0127.
All recipients under this Notice are subject to the requirements of 7 CFR part 1970.
All applicants, in accordance with 2 CFR part 25, must be registered in SAM and have a UEI number as stated in Section D.3 of this notice. All recipients of Federal financial assistance are required to report information about first-tier subawards and executive total compensation in accordance with 2 CFR part 170.
All grants made under this notice are subject to Title VI of the Civil Rights Act of 1964 as required by the USDA (7 CFR part 15, subpart A—Nondiscrimination in Federally-Assisted Programs of the Department of Agriculture—Effectuation of Title VI of the Civil Rights Act of 1964) and Section 504 of the Rehabilitation Act of 1973, Title VIII of the Civil Rights Act of 1968, Title IX, Executive Order 13166 (Limited English Proficiency), Executive Order 11246,
In accordance with Federal civil rights laws and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Mission Areas, agencies, staff offices, employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/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.
Program information may be made available in languages other than English. Persons with disabilities who require alternative means of communication to obtain program information (
To file a program discrimination complaint, a complainant should complete a Form AD-3027, USDA Program Discrimination Complaint Form, which can be obtained online at:
(1)
(2)
(3)
USDA is an equal opportunity provider, employer, and lender.
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 Georgia Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a business meeting via web conference. The purpose of the meeting is to discuss post-report activities and review proposed topics from the Committee for their next civil rights project.
Wednesday, April 5, 2023, from 1 p.m.-2 p.m. ET.
The meeting will be held via Zoom.
Victoria Moreno, Acting DFO, at
Committee meetings are available to the public through the meeting link or telephone number listed 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. Closed captions will be provided. 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 details found through the web link above. To request additional accommodations, please email
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 Sarah Villanueva at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit Office, 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 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 North Carolina Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a virtual business meeting via Zoom at 12:00 p.m. ET on Tuesday, April 18, 2023. The purpose of this meeting is to continue revising the report on Legal Financial Obligations in the state.
The meeting will take place on Tuesday, April 18, 2023, from 12:00 p.m.-1:30 p.m. ET.
Victoria Moreno, DFO, at
Committee meetings are available to the public through the videoconference 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, public minutes of the meeting will include a list of persons who are present at the meeting. 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 for individuals who are deaf, deafblind, or hard of hearing. To request additional accommodations, please email
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 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
U.S. Commission on Civil Rights.
Announcement of virtual business meetings.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act (FACA) that the California Advisory Committee (Committee) will hold a series of virtual business meetings via
These meetings will take place on:
• Tuesday, April 18, 2023, from 1:00 p.m.-2:30 p.m. PT.
• Tuesday, May 16, 2023, from 1:00 p.m.-2:30 p.m. PT.
• Friday, June 16, 2023, from 1:00 p.m.-2:30 p.m. PT.
Zoom Link to Join:
•
•
•
Brooke Peery, Designated Federal Officer (DFO) 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 meeting. Written comments may be emailed to Brooke Peery (DFO) at
Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at
Please click on the “Meeting Details” and “Documents” links. Records generated from this meeting may also be inspected and reproduced at the Regional Programs Unit, as they become available, both before and after the meeting. Persons interested in the work of this Committee are directed to the Commission's website,
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, April 12, 2023, at 3 p.m. (CT). The purpose of the meeting is to discuss the Committee's project on voting rights in the state.
The meeting will take place on Wednesday, April 12, 2023, from 3 p.m.-4:30 p.m. (CST).
Victoria Moreno at
This meeting is available to the public
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 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 Utah Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a virtual business meeting via Zoom at 12:00 p.m. MT on Monday, April 17, 2023. The purpose of this meeting is to discuss potential projects of study.
The meeting will take place on Monday, April 17, 2023, from 12:00 p.m.-1:00 p.m. MT.
David Barreras, DFO, at
Committee meetings are available to the public through the videoconference 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, public minutes of the meeting will include a list of persons who are present at the meeting. 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 for individuals who are deaf, deafblind, or hard of hearing. To request additional accommodations, please email
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 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
U.S. Commission on Civil Rights.
Announcement of virtual business meetings.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act (FACA) that the California Advisory Committee (Committee) will hold a series of virtual business meetings via
These meetings will take place on:
• Tuesday, July 11, 2023, from 1:00 p.m.-2:30 p.m. PT.
• Friday, August 11, 2023, from 1:00 p.m.-2:30 p.m. PT.
Zoom Link to Join:
•
•
Brooke Peery, Designated Federal Officer (DFO) at
Members of the public are entitled to make comments during the open period at the
Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at
Please click on the “Meeting Details” and “Documents” links. Records generated from this meeting may also be inspected and reproduced at the Regional Programs Unit, as they become available, both before and after the meeting. Persons interested in the work of this Committee are directed to the Commission's website,
Commission on Civil Rights.
Notice; update to meeting time.
The Commission on Civil Rights published a notice in the
Kayla Fajota (DFO),
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of these expedited sunset reviews, the U.S. Department of Commerce (Commerce) finds that revocation of the antidumping duty (AD) orders on certain cold-drawn mechanical tubing of carbon and alloy steel from the People's Republic of China (China), the Federal Republic of Germany (Germany), India, Italy, the Republic of Korea (Korea), and Switzerland would be likely to lead to continuation or recurrence of dumping at the levels indicated in the “Final Results of Reviews” section of this notice.
Applicable March 20, 2023.
Whitley Herndon, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-6274.
On January 3, 2023, Commerce published the notice of initiation of the sunset review of the AD orders on certain cold-drawn mechanical tubing of carbon and alloy steel from China, Germany, India, Italy, Korea, and Switzerland
On January 17, 2023, ArcelorMittal Tubular Products, Michigan Seamless Tube, LLC, PTC Alliance Corp., Webco Industries, Inc., and Zekelman Industries, Inc. (collectively, the domestic interested parties) notified Commerce of their intent to participate within the 15-day period specified in 19 CFR 351.218(d)(1)(i).
On February 1, 2023, Commerce received complete substantive responses to the
The scope of the
A complete discussion of all issues raised in these sunset reviews is provided in the accompanying Issues and Decision Memorandum.
Pursuant to sections 751(c)(1) and 752(c)(1) and (3) of the Act, Commerce determines that revocation of the
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return/destruction or conversion to judicial protective order of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
We are issuing and publishing the results in accordance with sections 751(c), 752(c), and 771(i)(1) of the Act and 19 CFR 351.218.
The products covered by these orders are cold-drawn mechanical tubing of carbon and alloy steel (cold-drawn mechanical tubing) of circular cross-section, 304.8 mm or more in length, in actual outside diameters less than 331mm, and regardless of wall thickness, surface finish, end finish or industry specification. The subject cold-drawn mechanical tubing is a tubular product with a circular cross-sectional shape that has been cold-drawn or otherwise cold-finished after the initial tube formation in a manner that involves a change in the diameter or wall thickness of the tubing, or both. The subject cold-drawn mechanical tubing may be produced from either welded (
Subject cold-drawn mechanical tubing is typically certified to meet industry specifications for cold-drawn tubing including but not limited to:
(1) American Society for Testing and Materials (ASTM) or American Society of Mechanical Engineers (ASME) specifications ASTM A-512, ASTM A-513 Type 3 (ASME SA513 Type 3), ASTM A-513 Type 4 (ASME SA513 Type 4), ASTM A-513 Type 5 (ASME SA513 Type 5), ASTM A-513 Type 6 (ASME SA513 Type 6), ASTM A-519 (cold-finished);
(2) SAE International (Society of Automotive Engineers) specifications SAE J524, SAE J525, SAE J2833, SAE J2614, SAE J2467, SAE J2435, SAE J2613;
(3) Aerospace Material Specification (AMS) AMS T-6736 (AMS 6736), AMS 6371, AMS 5050, AMS 5075, AMS 5062, AMS 6360, AMS 6361, AMS 6362, AMS 6371, AMS 6372, AMS 6374, AMS 6381, AMS 6415;
(4) United States Military Standards (MIL) MIL-T-5066 and MIL-T-6736;
(5) foreign standards equivalent to one of the previously listed ASTM, ASME, SAE, AMS or MIL specifications including but not limited to:
(a) German Institute for Standardization (DIN) specifications DIN 2391-2, DIN 2393-2, DIN 2394-2);
(b) European Standards (EN) EN 10305-1, EN 10305-2, EN 10305-4, EN 10305-6 and European national variations on those standards (
(c) Japanese Industrial Standard (JIS) JIS G 3441 and JIS G 3445; and
(6) proprietary standards that are based on one of the above-listed standards.
The subject cold-drawn mechanical tubing may also be dual or multiple certified to more than one standard. Pipe that is multiple certified as cold-drawn mechanical tubing and to other specifications not covered by this scope, is also covered by the scope of these orders when it meets the physical description set forth above.
Steel products included in the scope of these orders are products in which: (1) Iron predominates, by weight, over each of the other contained elements; and (2) the carbon content is 2 percent or less by weight.
For purposes of this scope, the place of cold-drawing determines the country of origin of the subject merchandise. Subject merchandise that is subject to minor working in a third country that occurs after drawing in one of the subject countries including, but not limited to, heat treatment, cutting to length, straightening, nondestruction testing, deburring or chamfering, remains within the scope of these orders.
All products that meet the written physical description are within the scope of these orders unless specifically excluded or covered by the scope of an existing order. Merchandise that meets the physical description of cold-drawn mechanical tubing above is within the scope of these orders even if it is also dual or multiple certified to an otherwise excluded specification listed below. The following products are outside of, and/or specifically excluded from, the scope of these orders:
(1) Cold-drawn stainless steel tubing, containing 10.5 percent or more of chromium
(2) products certified to one or more of the ASTM, ASME or American Petroleum Institute (API) specifications listed below:
The products subject to these orders are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7304.31.3000, 7304.31.6050, 7304.51.1000, 7304.51.5005, 7304.51.5060, 7306.30.5015, 7306.30.5020, 7306.50.5030. Subject merchandise may also enter under numbers 7306.30.1000 and 7306.50.1000. The HTSUS subheadings above are provided for convenience and customs purposes only. The written description of the scope of these orders are dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) continues to determine that Alcha International Holdings Limited (Alcha International), Jiangsu Alcha Aluminum Group Co., Ltd (Jiangsu Alcha), and Baotou Alcha Aluminum Co., Ltd. (Batou Alcha) (collectively, Alcha), the only entity subject to this administrative review of the antidumping duty (AD) order on common alloy aluminum sheet (aluminum sheet) from the People's Republic of China (China), is part of the China-wide entity. The period of review (POR) is February 1, 2021, through January 31, 2022.
Applicable March 20, 2023.
Frank Schmitt, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4880.
Commerce published the preliminary results of this administrative review on November 16, 2022.
The merchandise covered by the
We received no comments concerning, and we have made no changes to, the
Because no party requested a review of the China-wide entity, and we did not self-initiate a review, the China-wide entity rate (
Commerce will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review in accordance with section 751(a)(2)(C) of the Act. For Alcha, we will instruct CBP to apply the China-wide rate of 59.72 percent to all entries of subject merchandise during the POR. 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 upon publication of the final results of this administrative review for all shipments of subject merchandise from China entered, or withdrawn from warehouse, for consumption on or after the publication date of this notice, as provided by section 751(a)(2)(C) of the Act: (1) for previously investigated or reviewed Chinese and non-Chinese exporters that are not under review in this segment of the proceeding but have separate rates, the cash deposit rate will continue to be the exporter's existing cash deposit rate; (2) for all Chinese exporters of subject merchandise that do not have a separate rate, including Alcha, the cash deposit rate will be the China-wide rate of 59.72 percent; and (3) for all non-Chinese exporters of subject merchandise that do not have a separate rate, the cash deposit rate will be the rate applicable to the Chinese exporter(s) that supplied the non-Chinese exporter. These cash deposit requirements, when imposed, shall remain in effect until further notice.
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 and/or countervailing duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping and/or countervailing duties occurred and the subsequent assessment of double antidumping duties, and/or an increase in the amount of antidumping duties by the amount of the countervailing duties.
This notice also serves as the only reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing these final results of administrative review in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(h) and 351.221(b)(5).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) preliminarily determines that countervailable subsidies are being provided to producers and exporters of paper file folders from India for the period of investigation (POI) January 1, 2021, through December 31, 2021. Interested parties are invited to comment on this preliminary determination.
Applicable March 20, 2023.
Thomas Martin, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3936.
This preliminary determination is made in accordance with section 703(b) of the Tariff Act of 1930, as amended (the Act). Commerce published the notice of initiation of this countervailing duty (CVD) investigation on November 8, 2022.
The product covered by this investigation is paper file folders from India. For a complete description of the scope of the investigation,
In accordance with the preamble to Commerce's regulations,
Commerce is conducting this investigation in accordance with section 701 of the Act. For each of the subsidy programs found to be countervailable, Commerce preliminarily determines that there is a subsidy,
Commerce notes that, in making these findings, it relied, in part, on facts available and, because it finds that one respondent, and also (in certain instances) the Government of India, did not act to the best of their ability to respond to Commerce's requests for information. Consequently, Commerce has drawn an adverse inference where appropriate in selecting from among the facts otherwise available.
As noted in the Preliminary Decision Memorandum, in accordance with section 705(a)(1) of the Act and 19 CFR 351.210(b)(4), Commerce is aligning the final CVD determination in this investigation with the final
Sections 703(d) and 705(c)(5)(A) of the Act provide that in the preliminary determination, Commerce shall determine an estimated all-others rate for companies not individually examined. Pursuant to section 705(c)(5)(A)(i) of the Act, this rate shall normally be an amount equal to the weighted average of the estimated subsidy rates established for those companies individually examined, excluding any zero and
In this investigation, the only individually calculated rate that is not zero,
Commerce preliminarily determines that the following estimated countervailable subsidy rates exist:
In accordance with section 703(d)(1)(B) and (d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of subject merchandise as described in the scope of the investigation section entered, or withdrawn from warehouse, for consumption on or after the date of the publication of this notice in the
Commerce intends to disclose its calculations and analysis performed to interested parties in this preliminary determination within five days of its public announcement, in accordance with 19 CFR 351.244(b).
As provided in section 782(i)(1) of the Act, Commerce intends to verify the information relied upon in making its final determination.
A timeline for the submission of case briefs and written comments will be notified to interested parties at a later date. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than seven days after the deadline for case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, whether any participant is a foreign national, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at a time and date to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.
In accordance with section 703(f) of the Act, Commerce will notify the U.S. International Trade Commission (ITC) of its determination. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether imports of paper file folders from India are materially injuring, or threaten material injury to, the U.S. industry.
This determination is issued and published pursuant to sections 703(f) and 777(i) of the Act, and 19 CFR 351.205(c).
The products within the scope of this investigation are file folders consisting primarily of paper, paperboard, pressboard, or other cellulose material, whether coated or uncoated, that has been folded (or creased in preparation to be folded), glued, taped, bound, or otherwise assembled to be suitable for holding documents. The scope includes all such folders, regardless of color, whether or not expanding, whether or not laminated, and with or without tabs, fasteners, closures, hooks, rods, hangers, pockets, gussets, or internal dividers. The term “primarily” as used in the first sentence of this scope means 50 percent or more of the total product weight, exclusive of the weight of fasteners, closures, hooks, rods, hangers, removable tabs, and similar accessories, and exclusive of the weight of packaging.
Subject folders have the following dimensions in their folded and closed position: lengths and widths of at least 8 inches and no greater than 17 inches, regardless of depth. The scope covers all varieties of folders, including but not limited to manila folders, hanging folders, fastener folders, classification folders, expanding folders, pockets, jackets, and wallets. Excluded from the scope are:
• mailing envelopes with a flap bearing one or more adhesive strips that can be used permanently to seal the entire length of a side such that, when sealed, the folder is closed on all four sides;
• binders, with two or more rings to hold documents in place, made from paperboard or pressboard encased entirely in plastic;
• non-expanding folders with a depth exceeding 2.5 inches and that are closed or closeable on the top, bottom, and all four sides (
• expanding folders that have (1) 13 or more pockets, (2) a flap covering the top, (3) a latching mechanism made of plastic and/
• expanding folders that have an outer surface (other than the gusset, handles, and/or closing mechanisms) that is covered entirely with fabric, leather, and/or faux leather;
• fashion folders, which are defined as folders with all of the following characteristics: (1) plastic lamination covering the entire exterior of the folder, (2) printing, foil stamping, embossing (
• portfolios, which are folders having (1) a width of at least 16 inches when open flat, (2) no tabs or dividers, and (3) one or more pockets that are suitable for holding letter size documents and that cover at least 15 percent of the surface area of the relevant interior side or sides; and
• report covers, which are folders having (1) no tabs, dividers, or pockets, and (2) one or more fasteners or clips, each of which is permanently affixed to the center fold, to hold papers securely in place.
Imports of the subject merchandise are provided for under Harmonized Tariff Schedule of the United States (HTSUS) category 4820.30.0040. Subject imports may also enter under other HTSUS classifications. While the HTSUS subheading is provided for convenience and customs purposes, the written description of the scope of the investigation is dispositive.
Office of the Under Secretary of Defense for Personnel and Readiness (OUSD(P&R)), Department of Defense (DoD).
15-Day information collection notice.
Consistent with the Paperwork Reduction Act of 1995 and its implementing regulations, this document provides notice DoD is submitting an Information Collection Request to the Office of Management and Budget (OMB) to collect information on Active Duty, Reserve, and National Guard used in evaluating existing policies and programs, establishing baseline measures before implementing new policies and programs, and monitoring the progress of policies/programs that make a difference in the lives of Service members and their families. DoD requests emergency processing and OMB authorization to collect the information after publication of this notice for a period of 18 months.
Comments must be received by April 4, 2023.
The Department has requested emergency processing from OMB for this information collection request by 15 days after publication of this notice. Interested parties can access the supporting materials and collection instrument as well as submit comments and recommendations to OMB at
Angela Duncan, 571-372-7574, or
In 2021, the White House identified a priority goal to reduce military and veteran suicide by advancing evidence-based approaches to improve Lethal Means Safety (LMS). This priority goal focuses on increasing time and space between a person in crisis and their access to lethal means, including firearms, medications, ligature points, and other lethal objects. No systematic evidence currently exists on how to best integrate effective education about lethal means safety into early military career training settings to ensure maximum receptiveness and subsequent adoption of safe storage practices. This project directly addresses DoDI 6400.09, DoD Policy on Integrated Primary Prevention of Self-Directed Harm and Prohibited Abuse or Harm (2020), which outlines a plan for a holistic prevention system that includes data-driven strategies. The purpose of the study is to conduct a needs assessment to determine the optimal approach for encouraging greater adoption of LMS within the military culture. The goal is to encourage Service members to store firearms securely, in a way that avoids misuse, accidents, self-inflicted injuries, and suicide. Focus groups will be conducted to help collect information that allows the DoD to understand when, where, and how Service members are introduced to principles of lethal means safety, particularly around safe handling of firearms, and to identify potential opportunities to capitalize on existing training and safety practices to enhance adoption of safe storage practices. This study is being conducted by Peraton, a DoD contractor, and is being sponsored by the Defense Suicide Prevention Office, in partnership with the Defense Personnel Assessment Center. Peraton will conduct up to 34 focus groups or key informant interviews, with up to 340 Service members and civilian support personnel, across all Services. The study findings will help inform DoD and the Service level plans to encourage greater adoption of lethal means safety practices among Service members by seamlessly inculcating education about the importance of lethal means safety within early military career training. Introducing these concepts early in Service members' careers aims to enhance receptiveness and adoption of lethal means safety practices that can contribute to reduced injuries and deaths including suicides, accidents, unauthorized use, and domestic violence.
Office of the Under Secretary of Defense for Personnel and Readiness (OUSD(P&R)), Department of Defense (DoD).
5-Day emergency information collection notice.
The DoD has submitted to Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by March 27, 2023.
Written comments and recommendations for the proposed information collection should be sent within 5 days of publication of this notice to
Angela Duncan, 571-372-7574,
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Requests for copies of the information collection proposal should be sent to Ms. Duncan at
Defense Health Agency (DHA), Department of Defense (DoD).
60-Day information collection notice.
In compliance with the
Consideration will be given to all comments received by May 19, 2023.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Department of Defense, Washington Headquarters Services, ATTN: Executive Services Directorate, Directives Division, 4800 Mark Center
The respondents will be adult men with stress urinary incontinence. They will be responding to this information collection because this is required if they want to trial the novel ECC Eagle external condom catheter. Each collection instrument will be done electronically via Qualtrics, a secure web-based survey platform. Patients will access this via their smartphone. The results will automatically be received via Qualtrics when they submit the responses.
Participants in the ECC Eagle trial will get to keep the external condom catheter they used for the study. There is no other gift, payment, or incentive to participate.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of availability for public comment.
The Department of the Army is publishing this notice to solicit comment on an environmental assessment of implementation of Section 165 of the Water Resources Development Act of 2020 which directs the Secretary of the Army to establish and implement a pilot program carrying out continuing authority projects in small or disadvantaged communities.
Comments must be received by April 19, 2023.
You may submit comments, identified by docket number COE-2023-0003, using any of these methods:
1.
2.
3.
4.
Mr. Gib Owen at
The Department of the Army is publishing this notice to solicit comment on an environmental assessment prepared to support the implementation of Section 165 of the Water Resources Development Act (WRDA) of 2020 (Pub. L. 116-260). Section 165(a) of the
The contents of the documents do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or departmental policies.
a.
b.
c.
d.
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, Tribal, or local governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. In addition, per 32 CFR 339.7 (85 FR 32299), the same tests for significance also apply to guidance documents. This proposed Section 165 Pilot program has been found not to be a significant guidance action.
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i.
Department of the Navy, U.S. Department of Defense (DoD).
Notice of Partially Closed Meeting.
The DoD is publishing this notice to announce that the following Federal Advisory Committee meeting of the U.S. Naval Academy Board of Visitors, hereafter “Board,” will take place.
Open to the public, March 21, 2023, from 9 a.m. to 11 a.m. Closed to the public, March 21, 2023, from 11 a.m. to noon (12 p.m.).
This meeting will be held at the U.S. Naval Academy in Annapolis, Maryland (MD). Pending prevailing health directives, the meeting will be handicap accessible. Escort is required.
Major Alexandra Fitzgerald, USMC, Executive Secretary to the Board of Visitors, Office of the Superintendent, U.S. Naval Academy, Annapolis, MD 21402-5000, 410-293-1503,
This meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) of 1972 (5 United States Code (U.S.C.)), Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), the General Services Administration's (GSA) Federal Advisory Committee Management Final Rule (41 Code of Federal Regulations (CFR) part 102-3).
Proposed meeting agenda for March 21, 2023.
Current details on the board of visitors may be found at
The executive session of the meeting from 11 a.m. to 12 p.m. on March 21, 2023, will consist of discussions of new and pending administrative or minor disciplinary infractions and non-judicial punishments involving midshipmen attending the Naval Academy to include but not limited to, individual honor or conduct violations within the Brigade, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. For this reason, the executive session of this meeting will be closed to the public, as the discussion of such information cannot be adequately segregated from other topics, which precludes opening the executive session of this meeting to the public. Accordingly, the Secretary of the Navy, in consultation with the Department of the Navy General Counsel, has determined in writing that the meeting shall be partially closed to the public because the discussions during the executive session from 11 a.m. to noon (12 p.m.) will be concerned with matters protected under sections 552b(c)(5), (6), and (7) of title 5, U.S.C.
Due to circumstances beyond the control of the Designated Federal Officer, the United States Naval Academy Board of Visitors was unable to provide public notification required by 41 CFR 102-3.150(a) concerning its March 21, 2023 meeting. Accordingly, the Advisory Committee Management Officer for the DoD, pursuant to 41 CFR 102-3.150(b), waives the 15-calendar day notification requirement.
Office of Elementary and Secondary Education (OESE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act (PRA) of 1995, the Department is proposing an extension without change of a currently approved information collection request (ICR).
Interested persons are invited to submit comments on or before April 19, 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 Donna Sabis-Burns, 202-453-7077.
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.
The grant applications submitted for this program are evaluated on the basis of how well an applicant addresses the selection criteria and are used to determine applicant eligibility and amount of award for projects selected for funding. The criteria are not expected to change prior to a future competition.
This collection is being submitted under the Streamlined Clearance Process for Discretionary Grant Information Collections (1894-0001). Therefore, the 30-day public comment period notice will be the only public comment notice published for this information collection.
Office of Finance and Operations (OFO), 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 April 19, 2023.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Stephanie Valentine, (202) 550-7416.
The Department, in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Department is soliciting comments on the proposed information collection request (ICR) that is described below. 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.
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 May 19, 2023.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Beth Grebeldinger, (202) 377-3018.
The Department, in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Department is soliciting comments on the proposed information collection request (ICR) that is described below. 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, Department of Education.
Notice.
The Department of Education is issuing a notice inviting applications for fiscal year (FY) 2023 for CSP Grants to State Entities, Assistance Listing Number (ALN) number 84.282A. This notice relates to the approved information collection under OMB control number 1810-0767.
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
Adrienne Hawkins, U.S. Department of Education, 400 Maryland Avenue SW, Washington, DC 20202-5970. Telephone: (202)453-5638. 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.
The CSP State Entity program provides financial assistance to State entities to support charter schools that serve elementary and secondary school students in States with a specific State statute authorizing the granting of charters to schools. Charter schools receiving funds under the CSP State Entity program may also serve students in early childhood education programs or postsecondary students.
On July 6, 2022, the Department published in the
This priority is:
To meet this priority, an applicant must demonstrate that the State entity has taken steps to ensure that all authorized
An applicant must identify on the abstract form and in the project narrative section of its application the priority or priorities it wishes the Department to consider for purposes of earning competitive preference priority points. The Department will not review or award points for any competitive preference priority that an applicant fails to clearly identify as a competitive preference priority or priorities it wishes the Department to consider for purposes of earning competitive preference priority points. An application may receive a total of up to 10 additional points under the competitive preference priorities.
These priorities are:
To meet this priority, the State entity must demonstrate that it is located in a State that—
(a) Allows at least one entity that is not a local educational agency (LEA) to be an authorized public chartering agency for developers seeking to open a charter school in the State; or
(b) In the case of a State in which LEAs are the only authorized public chartering agencies, the State has an appeals process for the denial of an application for a charter school.
To be eligible to receive points under this priority, the State entity must demonstrate that it is located in a State that ensures equitable financing, as compared to traditional public schools, for charter schools and students in a prompt manner.
To be eligible to receive points under this priority, the State entity must demonstrate that it is located in a State that uses best practices from charter schools to help improve struggling schools and LEAs.
To be eligible to receive points under this priority, the State entity must demonstrate that it is located in a State that provides charter schools one or more of the following:
(a) Funding for facilities.
(b) Assistance with facilities acquisition.
(c) Access to public facilities.
(d) The ability to share in bonds or mill levies.
(e) The right of first refusal to purchase public school buildings.
(f) Low- or no-cost leasing privileges.
To be eligible to receive points under this priority, the State entity must demonstrate that it supports charter schools that serve at-risk students through activities such as dropout prevention, dropout recovery, or comprehensive career counseling services.
This priority is:
(a) The Secretary is particularly interested in funding applications that propose to encourage, but not require, eligible applicants for subgrants to propose projects that include a new collaboration, or the continuation of an existing collaboration, with at least one traditional public school or traditional school district that is designed to benefit students or families served by at least one member of the collaboration, is designed to lead to increased and improved educational opportunities for students served by at least one member of the collaboration, and includes implementation of one or more of the following:
(1) Co-developed or shared curricular and instructional resources or academic course offerings.
(2) Professional development opportunities for teachers and other educators, which may include professional learning communities, opportunities for teachers to earn additional certifications, such as in a high-need area or national board certification, and partnerships with educator preparation programs to support teaching residencies.
(3) Evidence-based (as defined in section 8101(21) of the ESEA) practices to improve academic performance for underserved students.
(4) Policies and practices to create safe, supportive, and inclusive learning environments, such as systems of positive behavioral intervention and support.
(5) Transparent enrollment and retention practices and processes that include clear and consistent disclosure to families of policies or requirements (
(6) A shared transportation plan and system that reduces transportation costs for members of the collaboration and takes into consideration various transportation options, including public transportation and district-provided or shared transportation options, cost-sharing or free or reduced-cost fare options, and any distance considerations for prioritized bus services.
(7) A shared special education collaborative designed to address a significant barrier or challenge faced by participating charter schools and traditional public schools in improving academic or developmental outcomes and services for students with disabilities (as defined in section 8101 of the ESEA).
(8) A shared English learner collaborative designed to address a significant barrier or challenge faced by participating charter schools or traditional public schools in improving academic outcomes for English learners (as defined in section 8101 of the ESEA).
(9) Other collaborations, such as the sharing of innovative and best practices, designed to address a significant barrier or challenge faced by participating charter schools or traditional public schools and designed to improve academic outcomes for all students served by members of the collaboration.
(b) The State entity certifies that it will ask each eligible applicant that proposes a project that includes such a collaboration to—
(1) Provide in its subgrant application a description of the collaboration that—
(i) Describes each member of the collaboration and whether the collaboration would be a new or existing commitment;
(ii) States the purpose and duration of the collaboration;
(iii) Describes the anticipated roles and responsibilities of each member of the collaboration;
(iv) Describes how the collaboration will benefit one or more members of the collaboration, including how it will benefit students or families affiliated with a member and lead to increased or improved educational opportunities for students, and meet specific and measurable, if applicable, goals;
(vi) Describes the resources members of the collaboration will contribute; and
(vii) Contains any other relevant information; and
(2) Within 120 days of receiving a subgrant award or within 120 days of the date the collaboration is scheduled to begin, whichever is later, provide evidence of participation in the collaboration (which may include, but is not required to include, a memorandum of understanding).
These application requirements are from section 4303(f) of the ESEA (20 U.S.C. 7221b(f)) and from the 2022 NFP. The Department will not fund an application that does not meet each application requirement.
In addressing the application requirements, applicants must clearly identify which application requirement they are addressing. An applicant must address requirements (a)(1)(i), (a)(1)(vii), (a)(1)(ix), (a)(2)(ii), and (a)(2)(iii) in its response to paragraph (a)(1) of the Quality of the Project Design selection criterion; requirement (a)(8) in its response to paragraph (a)(4) of the Quality of the Project Design selection criterion; requirements (a)(1)(ii), (a)(1)(xiii), (a)(3)(i), (a)(3)(ii), (a)(3)(iii), (a)(5), and (a)(7) in its response to the Quality of Eligible Subgrant Applicants selection criterion; requirements (a)(1)(vi), (a)(1)(x), and (a)(9) in its response to paragraph (c)(1) of the State Plan selection criterion; requirements (a)(1)(iii), (a)(1)(iv), (a)(1)(viii), and (a)(1)(xi) in its response to paragraph (c)(3) of the State Plan selection criterion; and requirement (a)(4) in its response to paragraph (d)(1) of the Quality of the Management Plan selection criterion. An applicant must respond to the application requirements in paragraph (a) that are not listed above in the Project Narrative.
Applications for funding under the CSP State Entity program must contain the following:
(a) Description of Program—A description of the State entity's objectives in running a quality charter school program and how the objectives
(1) A description of how the State entity will—
(i) Support the opening of charter schools through the startup of new charter schools and, if applicable, the replication of high-quality charter schools, and the expansion of high-quality charter schools (including the proposed number of new charter schools to be opened, high-quality charter schools to be opened as a result of the replication of a high-quality charter school, or high-quality charter schools to be expanded under the State entity's program) (4303(f));
(ii) Inform eligible charter schools, developers, and authorized public chartering agencies of the availability of funds under the program (4303(f));
(iii) Work with eligible applicants to ensure that the eligible applicants access all Federal funds that such applicants are eligible to receive, and help the charter schools supported by the applicants and the students attending those charter schools—
(A) Participate in the Federal programs in which the schools and students are eligible to participate;
(B) Receive the commensurate share of Federal funds the schools and students are eligible to receive under such programs; and
(C) Meet the needs of students served under such programs, including students with disabilities and English learners (4303(f));
(iv) Ensure that authorized public chartering agencies, in collaboration with surrounding LEAs where applicable, establish clear plans and procedures to assist students enrolled in a charter school that closes or loses its charter to attend other high-quality schools (4303(f));
(v) In the case of a State entity that is not a State educational agency (SEA)—
(A) Work with the SEA and charter schools in the State to maximize charter school participation in Federal and State programs for which charter schools are eligible; and
(B) Work with the SEA to operate the State entity's program under section 4303 of the ESEA, if applicable (4303(f));
(vi) Ensure that each eligible applicant that receives a subgrant under the State entity's program—
(A) Is using funds provided under this program for one of the activities described in section 4303(b)(1) of the ESEA; and
(B) Is prepared to continue to operate charter schools funded under section 4303 of the ESEA in a manner consistent with the eligible applicant's application for such subgrant once the subgrant funds under this program are no longer available (4303(f));
(vii) Support—
(A) Charter schools in LEAs with a significant number of schools identified by the State for comprehensive support and improvement under section 1111(c)(4)(D)(i) of the ESEA; and
(B) The use of charter schools to improve struggling schools, or to turn around struggling schools (4303(f));
(viii) Work with charter schools on—
(A) Recruitment and enrollment practices to promote inclusion of all students, including by eliminating any barriers to enrollment for educationally disadvantaged students (who include foster youth and unaccompanied homeless youth); and
(B) Supporting all students once they are enrolled to promote retention, including by reducing the overuse of discipline practices that remove students from the classroom (4303(f));
(ix) Share best and promising practices between charter schools and other public schools (4303(f));
(x) Ensure that charter schools receiving funds under the State entity's program meet the educational needs of their students, including children with disabilities and English learners (4303(f));
(xi) Support efforts to increase charter school quality initiatives, including meeting the quality authorizing elements described in section 4303(f)(2)(E) of the ESEA (4303(f));
(xii)(A) In the case of a State entity that is not a charter school support organization, a description of how the State entity will provide oversight of authorizing activity, including how the State will help ensure better authorizing, such as by establishing authorizing standards that may include approving, monitoring, and re-approving or revoking the authority of an authorized public chartering agency based on the performance of the charter schools authorized by such agency in the areas of student achievement, student safety, financial and operational management, and compliance with all applicable statutes and regulations; and
(B) In the case of a State entity that is a charter school support organization, a description of how the State entity will work with the State to support the State's system of technical assistance and oversight of the authorizing activity of authorized public chartering agencies, as described in application requirement (a)(1)(xii)(A) (4303(f)); and
(xiii) Work with eligible applicants receiving a subgrant under the State entity's program to support the opening of new charter schools or charter school models described in application requirement (a)(1)(i) that are high schools (4303(f));
(2) A description of the extent to which the State entity—
(i) Is able to meet and carry out Competitive Preference Priorities 1 through 5;
(ii) Is working to develop or strengthen a cohesive statewide system to support the opening of new charter schools and, if applicable, the replication of high-quality charter schools, and the expansion of high-quality charter schools; and
(iii) Is working to develop or strengthen a cohesive strategy to encourage collaboration between charter schools and LEAs on the sharing of best practices (4303(f));
(3) A description of how the State entity will award subgrants, on a competitive basis, including—
(i) A detailed description of how the State entity will review applications from eligible applicants, including—
(A) How eligibility will be determined;
(B) How peer reviewers will be recruited and selected, including efforts the applicant will make to recruit peer reviewers from diverse backgrounds and underrepresented groups;
(C) How subgrant applications will be reviewed and evaluated;
(D) How cost analyses and budget reviews will be conducted to ensure that costs are necessary, reasonable, and allocable to the subgrant;
(E) How applicants will be assessed for risk (
(F) How funding decisions will be made (2022 NFP);
(ii) A description of the application each eligible applicant desiring to receive a subgrant will be required to submit, which application must include the following:
(A) A description of the roles and responsibilities of eligible applicants, partner organizations, and charter management organizations (CMO), including the administrative and contractual roles and responsibilities of such partners (4303(f));
(1) For any existing or proposed contract between a charter and a for-
(A) A copy of the existing contract with the for-profit management organization or a description of the terms of the contract, including the name and contact information of the management organization; the cost (
(B) A description of any business or financial relationship between the charter school developer and the management organization, including payments, contract terms, and any property owned, operated, or controlled by the management organization or related individuals or entities that will be used by the charter school;
(C) The name and contact information for each member of the governing board of the charter school and a list of the management organization's officers, chief administrator, or other administrators, and any staff involved in approving or executing the management contract; and a description of any actual or perceived conflicts of interest, including financial interests, and how the applicant will resolve any actual or perceived conflicts of interest to ensure compliance with 2 CFR 200.318(c);
(D) A description of how the applicant will ensure that members of the governing board of the charter school are not selected, removed, controlled, or employed by the management organization and that the charter school's legal, accounting, and auditing services will be procured independently from the management organization;
(E) An explanation of how the applicant will ensure that the management contract is severable, severing the management contract will not cause the proposed charter school to close, the duration of the management contract will not extend beyond the expiration date of the school's charter, and renewal of the management contract will not occur without approval and affirmative action by the governing board of the charter school; and
(F) A description of the steps the applicant will take to ensure that it maintains control over all student records and has a process in place to provide those records to another public school or school district in a timely manner upon the transfer of a student from the charter school to another public school, including due to closure of the charter school, in accordance with section 4308 of the ESEA (2022 NFP).
(G) A description of the quality controls agreed to between the eligible applicant and the authorized public chartering agency involved, such as a contract or performance agreement; how a school's performance in the State's accountability system and impact on student achievement (which may include student academic growth) will be one of the most important factors for renewal or revocation of the school's charter; and how the State entity and the authorized public chartering agency involved will reserve the right to revoke or not renew a school's charter based on financial, structural, or operational factors involving the management of the school (4303(f));
(H) A description of how the autonomy and flexibility granted to a charter school is consistent with the definition of charter school in section 4310 of the ESEA (4303(f));
(I) A description of how the eligible applicant will solicit and consider input from parents and other members of the community on the implementation and operation of each charter school that will receive funds under the State entity's program (4303(f));
(J) A description of the eligible applicant's planned activities and expenditures of subgrant funds to support opening and preparing for the operation of new charter schools, opening and preparing for the operation of replicated high-quality charter schools, or expanding high-quality charter schools, and how the eligible applicant will maintain financial sustainability after the end of the subgrant period (4303(f));
(K) A description of how the eligible applicant will support the use of effective parent, family, and community engagement strategies to operate each charter school that will receive funds under the State entity's program (4303(f)); and
(L) A needs analysis and description of the need for the proposed project, including how the proposed project would serve the interests and meet the needs of students and families in the communities the charter school intends to serve. The needs analysis, which may consist of information and documents previously submitted to an authorized public chartering agency to address need, must include, but is not necessarily limited to, the following:
(1) Descriptions of the local community support, including information that demonstrates interest in, and need for, the charter school; benefits to the community; and other evidence of demand for the charter school that demonstrates a strong likelihood the charter school will achieve and maintain its enrollment projections. Such information may include information on waiting lists for the proposed charter school or existing charter schools or traditional public schools, data on access to seats in high-quality public schools in the districts from which the charter school expects to draw students, and family interest in specialized instructional approaches proposed to be implemented at the charter school.
(2) Information on the proposed charter school's projected student enrollment and evidence to support the projected enrollment based on the needs analysis and other relevant data and factors, such as the methodology and calculations used.
(3) An analysis of the proposed charter school's projected student demographics and a description of the demographics of students attending public schools in the local community in which the charter school would be located and the school districts from which the students are, or would be, drawn to attend the charter school; a description of how the applicant plans to establish and maintain a racially and socio-economically diverse student body, including proposed strategies (that are consistent with applicable legal requirements) to recruit, admit, enroll, and retain a diverse student body. An applicant that is unlikely to establish and maintain a racially and socio-economically diverse student body at the proposed charter school because the charter school would be located in a racially or socio-economically segregated or isolated community, or due to the charter school's specific education mission, must describe—
(A) Why it is unlikely to be able to establish and maintain a racially and socio-economically diverse student body at the proposed charter school;
(B) How the anticipated racial and socio-economic makeup of the student body would promote the purposes of the CSP to provide high-quality educational opportunities to all students, which may include a specialized educational program or mission; and
(C) The anticipated impact of the proposed charter school on the racial and socio-economic diversity of the public schools and school districts from which students would be drawn to attend the charter school.
(4) A robust family and community engagement plan designed to ensure the active participation of families and the community that includes the following:
(A) How families and the community were, are, or will be engaged in determining the vision and design for the charter school, including specific examples of how families' and the community's input was, is, or is expected to be incorporated into the vision and design for the charter school.
(B) How the charter school will meaningfully engage with both families and the community to create strong and ongoing partnerships.
(C) How the charter school will foster a collaborative culture that involves the families of all students, including underserved students, in ensuring their ongoing input in school decision-making.
(D) How the charter school's recruitment, admissions, enrollment, and retention processes will engage and accommodate families from various backgrounds, including English learners, students with disabilities, and students of color, including by holding enrollment and recruitment events on weekends or during non-standard work hours, making interpreters available, and providing enrollment and recruitment information in widely accessible formats (
(E) How the charter school has engaged or will engage families and the community to develop an instructional model to best serve the targeted student population and their families, including students with disabilities and English learners.
(5) How the plans for the operation of the charter school will support and reflect the needs of students and families in the community, including consideration of district or community assets and how the school's location, or anticipated location if a facility has not been secured, will facilitate access for the targeted student population (
(6) A description of the steps the applicant has taken or will take to ensure that the proposed charter school (A) would not hamper, delay, or negatively affect any desegregation efforts in the community in which the charter school would be located and the public school districts from which students are, or would be, drawn to attend the charter school, including efforts to comply with a court order, statutory obligation, or voluntary efforts to create and maintain desegregated public schools; and (B) to ensure that the proposed charter school would not otherwise increase racial or socio-economic segregation or isolation in the schools from which the students are, or would be, drawn to attend the charter school. (2022 NFP).
(iii)(A) A description of how the State entity, in awarding subgrants to eligible applicants, will give priority to eligible applicants that propose projects that include the creation, replication, or expansion of a high-quality charter school that is developed and implemented—
(1) With meaningful and ongoing engagement with current or former teachers and other educators; and
(2) Using a community-centered approach that includes an assessment of community assets, informs the development of the charter school, and includes the implementation of protocols and practices designed to ensure that the charter school will use and interact with community assets on an ongoing basis to create and maintain strong community ties.
(B) In its application, an eligible applicant must provide a high-quality plan that demonstrates how its proposed project would meet the requirements in paragraph (a)(6)(iii)(A) of these application requirements, accompanied by a timeline for key milestones that span the course of planning, development, and implementation of the charter school.
(4) In the case of a State entity that partners with an outside organization to carry out the State entity's quality charter school program, in whole or in part, a description of the roles and responsibilities of the partner (4303(f));
(5) A description of how the State entity will ensure that each charter school receiving funds under the State entity's program has considered and planned for the transportation needs of the school's students (4303(f));
(6) A description of how the State in which the State entity is located addresses charter schools in the State's open meetings and open records laws (4303(f));
(7) A description of how the State entity will support diverse charter school models, including models that serve rural communities (4303(f));
(8) Evidence to support the requested funds and projected enrollment, such as explanations regarding the methodology and calculations (2022 NFP); and
(9) A description, including a timeline, of how the State entity will monitor and report on subgrant performance in accordance with 2 CFR 200.329, and address and mitigate subgrantee risk, including—
(i) How subgrantees will be selected for in-depth monitoring, including factors that indicate higher risk (
(ii) How identified subgrantee risk will be addressed;
(iii) How subgrantee expenditures will be monitored;
(iv) How monitors will be trained;
(v) How monitoring findings will be shared with subgrantees;
(vi) How corrective action plans will be used to resolve monitoring findings;
(vii) How the State entity will ensure transparency so that monitoring findings and corrective action plans are available to families and the public; and
(viii) How the State entity will work with authorized public chartering agencies to share information regarding the monitoring of subgrantees, including in areas related to fiscal protocols and organizational governance, for the purpose of reducing the reporting burden on charter schools (2022 NFP).
(b) Assurances—Assurances by the State entity that—
(1) Each charter school receiving funds through the State entity's program will have a high degree of autonomy over budget and operations, including autonomy over personnel decisions (4303(f));
(2) The State entity will support charter schools in meeting the educational needs of their students, including children with disabilities and English learners (4303(f));
(3) The State entity will ensure that the authorized public chartering agency of any charter school that receives funds under the State entity's program adequately monitors each charter school under the authority of such agency in recruiting, enrolling, retaining, and meeting the needs of all students, including children with disabilities and English learners (4303(f));
(4) The State entity will provide adequate technical assistance to eligible applicants to meet the objectives described in application requirement (a)(1)(8) (4303(f));
(5) The State entity will promote quality authorizing, consistent with State law, such as through providing technical assistance to support each authorized public chartering agency in the State to improve such agency's ability to monitor the charter schools authorized by the agency, including by—
(i) Assessing annual performance data of the schools, including, as appropriate, graduation rates, student academic growth, and rates of student attrition;
(ii) Reviewing the schools' independent, annual audits of financial statements prepared in accordance with generally accepted accounting principles and ensuring that any such audits are publicly reported; and
(iii) Holding charter schools accountable to the academic, financial, and operational quality controls agreed to between the charter school and the authorized public chartering agency involved, such as renewal, non-renewal, or revocation of the school's charter (4303(f));
(6) The State entity will work to ensure that charter schools are included with the traditional public schools in decision-making about the public school system in the State (4303(f));
(7) The State entity will ensure that each charter school receiving funds under the State entity's program makes publicly available, consistent with the dissemination requirements of the annual State report card under section 1111(h) of the ESEA, including on the website of the school, information to help parents make informed decisions about the education options available to their children, including—
(i) Information on the educational program;
(ii) Student support services;
(iii) Parent contract requirements (as applicable), including any financial obligations or fees;
(iv) Enrollment criteria (as applicable); and
(v) Annual performance and enrollment data for each of the subgroups of students, as defined in section 1111(c)(2) of the ESEA, except that such disaggregation of performance and enrollment data shall not be required in a case in which the number of students in a group is insufficient to yield statistically reliable information or the results would reveal personally identifiable information about an individual student (4303(f)).
(8) The State Entity will ensure that each charter school receiving CSP funding has not and will not enter into a contract with a for-profit management organization, including a nonprofit management organization operated by or on behalf of a for-profit entity, under which the management organization, or its related entities, exercises full or substantial administrative control over the charter school and, thereby, the CSP project (2022 NFP).
(9) Each charter school receiving CSP funding will provide an assurance that any management contract between the charter school and a for-profit management organization, including a nonprofit CMO operated by or on behalf of a for-profit entity, guarantees or will guarantee that—
(i) The charter school maintains control over all CSP funds, makes all programmatic decisions, and directly administers or supervises the administration of the subgrant;
(ii) The management organization does not exercise full or substantial administrative control over the charter school (and, thereby, the CSP project), except that this does not limit the ability of a charter school to enter into a contract with a management organization for the provision of services that do not constitute full or substantial control of the charter school project funded under the CSP (
(iii) The charter school's governing board has access to financial and other data pertaining to the charter school, the management organization, and any related entities; and
(iv) The charter school is in compliance with applicable Federal and State laws and regulations governing conflicts of interest, and there are no actual or perceived conflicts of interest between the charter school and the management organization (2022 NFP).
(10) Each charter school receiving CSP funding will post on its website, on an annual basis, a copy of any management contract between the charter school and a for-profit management organization, including a nonprofit management organization operated by or on behalf of a for-profit entity, and report information on such contract to the State entity, including—
(i) A copy of the existing contract with the for-profit organization or a detailed description of the terms of the contract, including the name and contact information of the management organization, the cost (
(ii) A description of any business or financial relationship between the charter school developer or CMO and the management organization, including payments, contract terms, and any property owned, operated, or controlled by the management organization or related individuals or entities to be used by the charter school;
(iii) The names and contact information for each member of the governing boards of the charter school and a list of management organization's officers, chief administrator, and other administrators, and any staff involved in approving or executing the management contract; and a description of any actual or perceived conflicts of interest, including financial interests, and how the applicant resolved or will resolve any actual or perceived conflicts of interest to ensure compliance with 2 CFR 200.318(c); and
(iv) A description of how the charter school ensured that such contract is severable and that a change in management companies will not cause the proposed charter school to close (2022 NFP).
(11) Each charter school receiving CSP funding will disclose, as part of the enrollment process, any policies and requirements (
(12) Each charter school receiving CSP funding will hold or participate in a public hearing in the local community in which the proposed charter school would be located to obtain information
(13) No eligible applicant receiving funds under the State entity's program will use implementation funds for a charter school until after the charter school has received a charter from an authorized public chartering agency and has a contract, lease, mortgage, or other documentation indicating that it has a facility in which to operate. Consistent with sections 4303(b)(1), 4303(h)(1)(B), and 4310(6) of the ESEA, an eligible applicant may use CSP planning funds for post-award planning and design of the educational program of a proposed new or replicated high-quality charter school that has not yet opened, which may include hiring and compensating teachers, school leaders, and specialized instructional support personnel; providing training and professional development to staff; and other critical planning activities that need to occur prior to the charter school opening when such costs cannot be met from other sources. (2022 NFP).
(14) Within 120 days of the date of any subgrant award notifications, the grantee will post on its website:
(i) A list of the charter schools slated to receive CSP funds, including the following for each school:
(A) The name, address, and grades served.
(B) A description of the education model.
(C) If the charter school has contracted with a for-profit management organization, the name of the management organization, the amount of CSP funding the management organization will receive from the school, and a description of the services to be provided.
(D) The award amount, including any funding that has been approved for the current year and any additional years of the CSP grant for which the school will receive support.
(E) The grant or subgrant application (redacted as necessary).
(F) The peer review materials, including reviewer comments and scores (redacted as necessary) from the subgrant competition (2022 NFP).
(c) Waivers—Requests for information about waivers, including—
(1) A request and justification for waivers of any Federal statutory or regulatory provisions that the State entity believes are necessary for the successful operation of the charter schools that will receive funds under the State entity's program under section 4303 of the ESEA or, in the case of a State entity that is a charter school support organization, a description of how the State entity will work with the State to request such necessary waivers, where applicable; and
(2) A description of any State or local rules, generally applicable to public schools, that will be waived or otherwise not apply to such schools.
The following definitions are from sections 4303(a), 4310, and 8101 of the ESEA (20 U.S.C. 7221b(a), 7221i, and 7801); 34 CFR 77.1; and the 2022 NFP.
(1) In accordance with a specific State statute authorizing the granting of charters to schools, is exempt from significant State or local rules that inhibit the flexible operation and management of public schools, but not from any rules relating to the other requirements of this definition;
(2) Is created by a developer as a public school, or is adapted by a developer from an existing public school, and is operated under public supervision and direction;
(3) Operates in pursuit of a specific set of educational objectives determined by the school's developer and agreed to by the authorized public chartering agency;
(4) Provides a program of elementary or secondary education, or both;
(5) Is nonsectarian in its programs, admissions policies, employment practices, and all other operations, and is not affiliated with a sectarian school or religious institution;
(6) Does not charge tuition;
(7) Complies with the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities
(8) Is a school to which parents choose to send their children, and that—
(i) Admits students on the basis of a lottery, consistent with section 4303(c)(3)(A) of the ESEA, if more students apply for admission than can be accommodated; or
(ii) In the case of a school that has an affiliated charter school (such as a school that is part of the same network of schools), automatically enrolls students who are enrolled in the immediate prior grade level of the affiliated charter school and, for any additional student openings or student openings created through regular attrition in student enrollment in the affiliated charter school and the enrolling school, admits students on the basis of a lottery as described in paragraph (i);
(9) Agrees to comply with the same Federal and State audit requirements as do other elementary schools and secondary schools in the State, unless such State audit requirements are waived by the State;
(10) Meets all applicable Federal, State, and local health and safety requirements;
(11) Operates in accordance with State law;
(12) Has a written performance contract with the authorized public chartering agency in the State that includes a description of how student performance will be measured in charter schools pursuant to State assessments that are required of other schools and pursuant to any other assessments mutually agreeable to the authorized public chartering agency and the charter school; and
(13) May serve students in early childhood education programs or postsecondary students (section 4310(2) of the ESEA).
(1) Assistance to developers during the planning, program design, and initial implementation of a charter school; and
(2) Technical assistance to operating charter schools (section 4310(4) of the ESEA).
(1) A child (i) with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to as “emotional disturbance”), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and (ii) who, by reason thereof, needs special education and related services.
(2) For a child aged 3 through 9 (or any subset of that age range, including ages 3 through 5), may, at the discretion of the State and the LEA, include a child (i) experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: physical development, cognitive development, communication development, social or emotional development, or adaptive development; and (ii) who, by reason thereof, needs special education and related services (section 8101(4) of the ESEA).
(1) Human assets, including capacities, skills, knowledge base, and abilities of individuals within a community; and
(2) Social assets, including networks, organizations, businesses, and institutions that exist among and within groups and communities (2022 NFP).
(1) A Head Start program or an Early Head Start program carried out under the Head Start Act (42 U.S.C. 9831
(2) A State licensed or regulated child care program; or
(3) A program that (i) serves children from birth through age 6 that addresses the children's cognitive (including language, early literacy, and early mathematics), social, emotional, and physical development; and (ii) is (A) a State prekindergarten program, (B) a program authorized under section 619 (20 U.S.C. 1419) or part C of the IDEA, or (C) a program operated by an LEA (section 8101(16) of the ESEA).
(1) Applied to an authorized public chartering authority to operate a charter school; and
(2) Provided adequate and timely notice to that authority (section 4310(6) of the ESEA).
(1) Who is aged 3 through 21;
(2) Who is enrolled or preparing to enroll in an elementary school or secondary school;
(3)(i) Who was not born in the United States or whose native language is a language other than English;
(ii)(A) Who is a Native American or Alaska Native, or a native resident of the outlying areas; and
(B) Who comes from an environment where a language other than English has had a significant impact on the individual's level of English language proficiency; or
(iii) Who is migratory, whose native language is a language other than English, and who comes from an environment where a language other than English is dominant; and
(4) Whose difficulties in speaking, reading, writing, or understanding the
(i) The ability to meet the challenging State academic standards;
(ii) The ability to successfully achieve in classrooms where the language of instruction is English; or
(iii) The opportunity to participate fully in society (section 8101(20) of the ESEA).
(1) Shows evidence of strong academic results, which may include strong student academic growth, as determined by a State;
(2) Has no significant issues in the areas of student safety, financial and operational management, or statutory or regulatory compliance;
(3) Has demonstrated success in significantly increasing student academic achievement, including graduation rates where applicable, for all students served by the charter school; and
(4) Has demonstrated success in increasing student academic achievement, including graduation rates where applicable, for each of the subgroups of students, as defined in section 1111(c)(2) of the ESEA, except that such demonstration is not required in a case in which the number of students in a group is insufficient to yield statistically reliable information or the results would reveal personally identifiable information about an individual student (section 4310(8) of the ESEA).
(1) A State educational agency;
(2) A State charter school board;
(3) A Governor of a State; or
(4) A charter school support organization (section 4303(a) of the ESEA).
(1) A student who is living in poverty or is served by schools with high concentrations of students living in poverty.
(2) A student of color.
(3) A student who is a member of a federally recognized Indian Tribe.
(4) An English learner (as defined in section 8101 of the ESEA).
(5) A child or student with a disability (as defined in section 8101 of the ESEA).
(6) A disconnected youth.
(7) A migrant student.
(8) A student experiencing homelessness or housing insecurity.
(9) A student who is in foster care.
(10) A pregnant, parenting, or caregiving student.
(11) A student impacted by the justice system, including a formerly incarcerated student.
(12) A student performing significantly below grade level (2022 NFP).
Contingent upon the availability of funds and the quality of applications, we may make additional awards in subsequent years from the list of unfunded applications from this competition.
1.
Under section 4303(e)(1) of the ESEA, no State entity may receive a grant under this competition for use in a State in which a State entity is currently using a CSP State Entity grant.
State entities located in States in which a State entity has a current CSP State Entity grant that is operating under a no-cost extension (
Consistent with section 4303(e)(1), if a State entity is approved for a new CSP State Entity grant under this competition for use in a State in which a State entity has a current CSP State Entity grant that is operating under a no-cost extension (or that is in its final budget period and does not request a no-cost extension at least 10 calendar days before the end of the performance period specified in the Federal award in accordance with 2 CFR 200.308(e)(2)), the current State entity grantee must either (a) obligate all grant funds prior to the end of the current budget period; or (b) request a waiver under section 4303(d)(5) of the ESEA to enable it to complete grant activities. In the absence of an approved waiver, the current State entity grantee must complete all grant activities and begin the grant closeout process (
State entities in States in which an SEA has a current CSP Grant for SEAs that was awarded under the Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act of 2001 (
2. a.
b.
c.
3.
(b) Under section 4303(d)(2) of the ESEA, when awarding subgrants to eligible applicants, a State Entity must use a peer review process to review applications.
4.
For this competition, the maximum amount of subgrant funds a State Entity may award to a subgrantee per new charter school, replicated high-quality charter school, or expanded high-quality charter school over a 5-year subgrant period is $2,000,000.
(b)
(ii) A non-Federal entity that expends less than $750,000 during the non-Federal entity's fiscal year in Federal awards is exempt from Federal audit requirements for that year, except as noted in 2 CFR 200.503 (Relation to other audit requirements), but records must be available for review or audit by appropriate officials of the Federal agency, pass-through entity, and Government Accountability Office. (2 CFR 200.501(d)).
1.
2.
Because we plan to make successful applications available to the public, you may wish to request confidentiality of business information.
Consistent with Executive Order 12600, please designate in your application any information that you believe is exempt from disclosure under Exemption 4. In the appropriate Appendix section of your application, under “Other Attachments Form,” please list the page number or numbers on which we can find this information. For additional information, please see 34 CFR 5.11(c).
3.
4.
A subgrant awarded by a State entity under this program shall be for a period of not more than 5 years, of which an eligible applicant may use not more than 18 months for planning and program design. An eligible applicant may not receive more than one subgrant under this program for each individual charter school for a 5-year period, unless the eligible applicant demonstrates to the State entity that such individual charter school has at least 3 years of improved educational results for students enrolled in such charter school, with respect to the elements described in section 4310(8)(A) and (D) of the ESEA.
Likewise, a charter school that previously was awarded a subgrant from a State entity under this program (or the former CSP Grants for State Educational Agencies program) is ineligible to receive funds to carry out the same activities under the CMO program (ALN number 84.282M) or Developer program (ALN numbers 84.282B and 84.282E), including for opening or preparing to operate a new charter school, or for replication or expansion.
(a) Open and prepare for the operation of new charter schools;
(b) Open and prepare for the operation of replicated high-quality charter schools; or
(c) Expand high-quality charter schools.
Under section 4303(h) of the ESEA, an eligible applicant receiving a subgrant under this program shall use such funds to support activities related to opening and preparing for the operation of new charter schools or replicating or expanding high-quality charter schools, which shall include one or more of the following:
(a) Preparing teachers, school leaders, and specialized instructional support personnel, including through paying costs associated with—
(i) Providing professional development; and
(ii) Hiring and compensating, during the eligible applicant's planning period specified in the application for subgrant funds, one or more of the following:
(A) Teachers.
(B) School leaders.
(C) Specialized instructional support personnel.
(b) Acquiring supplies, training, equipment (including technology), and educational materials (including developing and acquiring instructional materials).
(c) Carrying out necessary renovations to ensure that a new school building complies with applicable statutes and regulations, and minor facilities repairs (excluding construction).
(d) Providing one-time, startup costs associated with providing transportation to students to and from the charter school.
(e) Carrying out community engagement activities, which may include paying the cost of student and staff recruitment.
(f) Providing for other appropriate, non-sustained costs related to opening, replicating, or expanding high-quality charter schools when such costs cannot be met from other sources.
(a) Are distributed throughout different areas, including urban, suburban, and rural areas; and
(b) Will assist charter schools representing a variety of educational approaches.
We reference additional regulations outlining funding restrictions in the
5.
• 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.
Applications must be in English, and peer reviewers will only consider supporting documents submitted with the application that are in English.
The recommended page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the recommended page limit does apply to all of the application narrative.
6.
For further information about the pre-application meeting, contact Adrienne Hawkins, U.S. Department of Education, 400 Maryland Avenue SW, Washington, DC 20202-5970. Telephone: (202) 453-4538. Email:
1.
(a)
(1) The extent to which the proposed project demonstrates a rationale (34 CFR 75.210(c)(2)(xxix)) (up to 5 points);
(2) The extent to which the methods of evaluation include the use of objective performance measures that are clearly related to the intended outcomes of the project and will produce both quantitative and qualitative data to the extent possible (34 CFR 75.210(h)(2)(iv)) (up to 5 points);
(3) The ambitiousness of the State entity's objectives for the quality charter school program carried out under the CSP State Entity program (section 4303(g)(1)(B) of the ESEA (20 U.S.C. 7221b(g)(1)(B)) (up to 5 points);
(4) The extent to which the projected number of subgrant awards for each grant project year is supported by evidence of demand and need, and the extent to which the proposed average subgrant award amount is supported by evidence of the need of applicants (2022 NFP) (up to 20 points).
(b)
(c)
(1) Adequately monitor the eligible applicants receiving subgrants under the State entity's program (section 4303(g)(1)(D)(i) (20 U.S.C. 7221b(g)(1)(D)(i))) (up to 10 points);
(2) Work with the authorized public chartering agencies involved to avoid duplication of work for the charter schools and authorized public chartering agencies (section 4303(g)(1)(D)(ii) (20 U.S.C. 7221b(g)(1)(D)(ii))) (up to 5 points);
(3) Provide technical assistance and support for—
(i) The eligible applicants receiving subgrants under the State entity's program; and
(ii) Quality authorizing efforts in the State (section 4303(g)(1)(D)(iii) of ESEA (20 U.S.C. 7221b(g)(1)(D)(iii))) (up to 10 points);
(4) The State entity's plan to solicit and consider input from parents and other members of the community on the implementation and operation of charter schools in the State (section 4303(g)(1)(E) of ESEA (20 U.S.C. 7221b(g)(1)(E))) (up to 5 points); and
(5) The degree of flexibility afforded by the State's charter school law and how the State entity will work to maximize the flexibility provided to charter schools under such law (section 4303(g)(1)(A) of ESEA (20 U.S.C. 7221b(g)(1)(A))) (up to 5 points).
(d)
(1) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks (34 CFR 75.210(g)(2)(i)) (up to 10 points);
(2) The adequacy of procedures for ensuring feedback and continuous improvement in the operation of the proposed project (34 CFR 75.210(g)(2)(ii)) (up to 3 points); and
(3) The extent to which the time commitments of the project director and principal investigator and other key project personnel are appropriate and adequate to meet the objectives of the proposed project (34 CFR 75.210(g)(2)(iv)) (up to 2 points).
2.
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).
3.
4.
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.
5.
(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).
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
(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, including a description of the State entity's objectives in providing technical assistance to eligible applicants and authorized public chartering agencies under section 4303(b)(2) of the ESEA, and the activities identified to provide such technical assistance, including any activities related to serving students with disabilities and English learners; and the impact of the State entity's actions or, if no known impact, an explanation of why. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
(c) In accordance with section 4303(i) of the ESEA, each State entity receiving a grant under this section must submit to the Secretary, at the end of the third year of the 5-year grant period (or at the end of the second year if the grant period is less than 5 years), and at the end of such grant period, a report that includes the following:
(1) The number of students served by each subgrant awarded under this section and, if applicable, the number of new students served during each year of the period of the subgrant.
(2) A description of how the State entity met the objectives of the quality charter school program described in the State entity's application, including—
(A) How the State entity met the objective of sharing best and promising practices as outlined in section 4303(f)(1)(A)(ix) of the ESEA in areas such as instruction, professional development, curricula development, and operations between charter schools and other public schools; and
(B) If known, the extent to which such practices were adopted and implemented by such other public schools.
(3) The number and amount of subgrants awarded under this program to carry out activities described in section 4303(b)(1)(A) through (C) of the ESEA.
(4) A description of—
(A) How the State entity complied with, and ensured that eligible applicants complied with, the assurances included in the State entity's application; and
(B) How the State entity worked with authorized public chartering agencies, and how the agencies worked with the management company or leadership of the schools that received subgrant funds under this program, if applicable.
(d) Under 34 CFR 75.250(b), the Secretary may provide a grantee with additional funding for data collection, analysis, and reporting. In this case, the Secretary establishes a data collection period.
5.
(b)
(1)
(2)
(3)
(4)
All grantees must submit an annual performance report with information that is responsive to these performance measures.
6.
In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, 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).
7.
8. Technical Assistance: Applicants approved for funding under this competition will be required to participate in all technical assistance offerings, to include project directors' meetings and other on-site gatherings sponsored by the Department and its contracted technical assistance providers and partners throughout the life of the grant.
You may also access documents of the Department published in the
Office of Special Education and Rehabilitative Services, Department of Education.
Notice.
The Secretary is publishing the following list of correspondence from the U.S. Department of Education (Department) received by individuals during quarters two, three, and four of calendar year 2022. The correspondence describes the Department's interpretations of the Individuals with Disabilities Education Act (IDEA) or the regulations that implement IDEA. The letters and other documents described in this list, with personally identifiable information redacted, as appropriate, can be found at
Rebecca Walawender, U.S. Department of Education, 400 Maryland Avenue SW, Room 5103, Potomac Center Plaza, Washington, DC 20202-2500. Telephone: (202) 245-7399. 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.
The following list identifies correspondence for three quarters, April 1, 2022, through December 31, 2022. Under section 607(f) of IDEA, the Secretary is required to publish this list in the
○ Letter dated April 7, 2022, to Garth Tymeson, regarding the provision of physical education, including adapted physical education and the least restrictive environment, to children with disabilities under the Individuals with Disabilities Education Act (IDEA).
○ Letter dated April 15, 2022, to Perry Zirkel, related to implementation of State complaint, due process complaint, and due process hearing procedures required under the Individuals with Disabilities Education Act (IDEA).
No letters.
○ Letter dated November 1, 2022, to Virginia Sharpless, addressing child find procedures to assist, and not hinder, parents when they are requesting an initial evaluation of their child for special education and related services.
○ Letter dated November 16, 2022, to Jacquelyn Flanigan, clarifying that any student found eligible under the Individuals with Disabilities Education Act (IDEA) who is enrolled by their parent in a private school, whether or not they have a current or prior individualized education program or services plan, must be counted when calculating the proportionate share of IDEA Part B funds for equitable services to parentally-placed private school children with disabilities. The letter also addressed the use of a Memorandum of Understanding between a public agency and a private school addressing the provision of equitable services.
You may also access documents of the Department published in the
Office of Elementary and Secondary Education, Department of Education.
Notice; correction.
On March 14, 2023, the Department of Education (Department) published in the
This correction is applicable March 20, 2023.
Joanne Osborne, U.S. Department of Education, 400 Maryland Avenue SW, Room 3E306, Washington, DC 20202. Telephone: (202) 401-1265. 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.
On March 14, 2023, we published the NIA in the
All other information in the NIA remains the same.
In FR Doc. 2023-05120 appearing on page 15689 in the
On page 15689, under
You may also access documents of the Department published in the
Office of the Under Secretary for Infrastructure, U.S. Department of Energy.
Notice and request for comment.
The Department of Energy (DOE) invites public comment on a proposed collection of information that DOE is developing for submission to the Office of Management and Budget (OMB) for clearance, pursuant to the Paperwork Reduction Act of 1995.
Comments regarding this proposed information collection request (ICR) must be received on or before May 19, 2023. If you anticipate any difficulty in submitting comments within that period, contact the person listed in the
Written comments may be sent to Julius Goldberg-Lewis, 1000 Independence Ave. SW, Washington, DC 20585, (240) 364-4382, or by email at
A copy of this information collection request, with applicable supporting documentation, may be obtained by contacting Julius Goldberg-Lewis, U.S. Department of Energy, 1000 Independence Ave. SW, Washington, DC 20585, (240) 364-4382, or by email at
This proposed information collection request contains:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
This document of the Department of Energy was signed on March 14, 2023, by Kathleen Hogan, Principal Deputy Under Secretary for Infrastructure, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been
Office of Environmental Management, U.S. Department of Energy.
Notice of availability.
The U.S. Department of Energy (DOE) announces the availability of the
The Final WIR Evaluation and WIR Determination are available on the internet at
For further information about the Final WIR Evaluation or WIR Determination, please contact Mr. Richard Valle by mail at U.S. Department of Energy, Office of River Protection, P.O. Box 450, MSIN H6-60, Richland, WA 99352, by phone at (509) 376-7256, or by email at
DOE currently stores radioactive waste in underground tanks at the Hanford Site in the State of Washington. The waste was generated, in part, by the prior reprocessing of spent nuclear fuel for defense-related activities during the Manhattan Project and Cold War eras. Hanford's current mission focuses on the cleanup and remediation of those wastes and ultimate closure of the site. As part of that mission, DOE is retrieving waste from the Hanford tanks, separating the low-activity waste (LAW) from other waste in the Hanford tanks and vitrifying (immobilizing in a glass matrix) some of the LAW. DOE has not selected a supplemental treatment method for the remaining LAW in the Hanford tanks.
The Final WIR Evaluation concerns approximately 2,000 gallons of waste from Hanford Tank SY-101, which, under the proposed TBI Demonstration, will be pretreated at the Hanford Site to remove most key radionuclides, then treated and solidified (grouted) at an offsite, permitted, commercial facility and disposed of at a licensed and permitted mixed low-level radioactive waste disposal facility outside the State of Washington. For the proposed TBI Demonstration, about 2,000 gallons of Tank SY-101 supernate (the uppermost liquid layer of the tank waste that contains low levels of insoluble, long-lived radionuclides) will be pretreated using: in-tank settling, followed by decanting, filtering, and processing through ion exchange media. The decanting (pumping without disturbing the underlying saltcake layer), filtering and ion exchange pretreatment will take place within an In Tank Pretreatment System, installed in Tank SY-101. The pretreated liquid will be transferred into totes (Type A shipping packages). Trucks will transport the shipping packages to a commercial treatment facility, either Perma-Fix Northwest in Richland, Washington, Energy
Implementation of the proposed offsite treatment and offsite disposal is contingent upon completion of analysis and issuance of a decision document as required by the National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4321,
DOE issued DOE Order 435.1 and DOE Manual 435.1-1 under the authority of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011
The Final WIR Evaluation, including its appendices and supporting references, documents and demonstrates that the criteria in Section II.B.(2)(a) of DOE Manual 435.1-1 will be met. As to the first criterion, key radionuclides will be removed to the maximum extent technically and economically practical. Pretreatment will remove approximately 98.8% of the key radionuclides (including cesium-137 and its daughter, barium-137m) from the approximately 2,000 gallons of Tank SY-101 supernate. About 1.8 curies will remain in the pretreated waste. Regarding the second criterion, the solidified waste will meet the waste acceptance criteria for the Energy
DOE consulted with the NRC and received comments from States, Tribal Nations, stakeholders and the public. After carefully considering NRC consultative advice and comments received, DOE prepared the Final WIR Evaluation. Based on the Final WIR Evaluation, DOE determined, as documented in the associated WIR Determination, that the waste is incidental to reprocessing, is not HLW, and will be managed as LLW. Additionally, DOE determined the pretreated LAW from Tank SY-101—from which key radionuclides will have been removed to the maximum extent technically and economically practical—will be managed as LLW, subject to the analysis and commitments in the Final WIR Evaluation and WIR Determination.
This document of the Department of Energy was signed on March 14, 2023, by R. M. Hendrickson, Acting Associate Principal Deputy Assistant Secretary for Regulatory and Policy Affairs, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
Take notice that the Commission has received the following Natural Gas & Oil Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following qualifying facility filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas & Oil Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
As announced in the Notice of Roundtable and Request for Panelists issued in this proceeding on January 27, 2023, the Federal Energy Regulatory Commission (Commission or FERC) will convene a Commissioner-led roundtable to discuss environmental justice and equity in its jurisdictional infrastructure permitting processes. The roundtable will be held on Wednesday, March 29, 2023, from 9:30 a.m. to 3:30 p.m. Eastern time, in the Commission Meeting Room at the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. The roundtable will be publicly webcasted.
The roundtable will be open for the public to attend both in-person and virtually. Registration is not required and there is no fee for attendance. In-person seating will be provided on a first-come, first-serve basis on the day of the event and overflow rooms will be available. A link to the public webcast will be available the day of the event on the Commission's website,
Attached to this Supplemental Notice is a revised agenda for this event with the confirmed panelists and potential discussion topics.
Simultaneous Spanish translation will be available for virtual attendees. The event will be recorded, and English and Spanish recordings will be posted within one day of the event. English and Spanish transcriptions will also be made available following the event at no charge.
Commission conferences are accessible under section 508 of the Rehabilitation Act of 1973. American Sign Language Interpretation will be provided for in-person attendees and the live stream will feature closed captioning. For additional accessibility accommodations, please send an email to
For more information about this roundtable, please contact
This is a supplemental notice in the above-referenced proceeding of MFT Energy US 1 LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is April 3, 2023.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the
In addition to publishing the full text of this document in the
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a. Application Type: Application for Temporary Variance of Flow Release Limit Requirement.
b.
c.
d.
e.
f.
g.
h.
i.
j. Deadline for filing comments, motions to intervene, and protests: April 12, 2023.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, and protests using the Commission's eFiling system at
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared an environmental assessment (EA) for the BSC Compression Replacement Project, proposed by Boardwalk Storage Company, LLC (BSC) in the above-referenced docket. BSC requests authorization to abandon by removal one existing electric driven 10,000 horsepower (HP) compression unit, place one existing electric driven 10,000 hp compressor unit on standby, and install a new electric driven 9,000 hp compressor unit, station piping, and other auxiliary facilities at the Choctaw Compressor Station in Iberville Parish, Louisiana.
The environmental assessment (EA) assesses the potential environmental effects of the construction and operation of the BSC Compression Replacement Project in accordance with the requirements of the National Environmental Policy Act (NEPA). The FERC staff concludes that approval of the proposed project, with appropriate mitigating measures, would not constitute a major Federal action significantly affecting the quality of the human environment.
The Commission mailed a copy of the
The EA 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 EA may do so. Your comments should focus on the EA's disclosure and discussion of potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure that the Commission has the opportunity to consider your comments prior to making its decision on this project, it is important that we receive your comments in Washington, DC on or before 5:00 p.m. Eastern Time on April 12, 2023.
For your convenience, there are three methods you can use to file your comments to the Commission. The Commission encourages electronic filing of comments and has staff available to assist you at (866) 208-3676 or
(1) You can file your comments electronically using the eComment feature on the Commission's website (
(2) You can also file your comments electronically using the eFiling feature 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 (CP22-494-000) 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.
Filing environmental comments will not give you intervenor status, but you do not need intervenor status to have your comments considered. Only intervenors have the right to seek rehearing or judicial review of the Commission's decision. At this point in this proceeding, the timeframe for filing timely intervention requests has expired. Any person seeking to become a party to the proceeding must file a motion to intervene out-of-time pursuant to Rule 214(b)(3) and (d) of the Commission's Rules of Practice and Procedures (18 CFR 385.214(b)(3) and (d)) and show good cause why the time limitation should be waived. 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 which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
On March 8, 2023, Pacific Gas and Electric Company submitted to the Federal Energy Regulatory Commission (Commission) a copy of its application for a Clean Water Act section 401(a)(1) water quality certification filed with the California State Water Resources Control Board, in conjunction with the above captioned project. Pursuant to 40 CFR 121.6 and section 5.23(b) of the Commission's regulations,
If the California State Water Resources Control Board fails or refuses to act on the water quality certification request on or before the above date, then the agency certifying authority is deemed waived pursuant to section 401(a)(1) of the Clean Water Act, 33 U.S.C. 1341(a)(1).
Take notice that on March 03, 2023, Columbia Gas Transmission (Columbia), 700 Louisiana Street, Suite 1300, Houston, Texas 77002-2700, filed in the above referenced docket, a prior notice request pursuant to sections 157.205 and 157.216(b) of the Federal Energy Regulatory Commission's (Commission) regulations under the Natural Gas Act (NGA), and Columbia's blanket certificate issued in Docket No. CP83-76-000,
In addition to publishing the full text of this document in the
Any questions concerning this application should be directed to David A. Alonzo, Manager, Project Authorizations, Columbia Gas Transmission, LLC, 700 Louisiana Street, Suite 1300, Houston, Texas 77002-2700, at (832) 320-5477 or
Pursuant to section 157.9 of the Commission's Rules of Practice and Procedure,
There are three ways to become involved in the Commission's review of this project: you can file a protest to the project, you can file a motion to intervene in the proceeding, and you can file comments on the project. There is no fee or cost for filing protests, motions to intervene, or comments. The deadline for filing protests, motions to intervene, and comments is 5 p.m. Eastern Time on May 12, 2023. How to file protests, motions to intervene, and comments is explained below.
Pursuant to section 157.205 of the Commission's regulations under the NGA,
Protests must comply with the requirements specified in section 157.205(e) of the Commission's regulations,
Any person has the option to file a motion to intervene in this proceeding. Only intervenors have the right to request rehearing of Commission orders issued in this proceeding and to subsequently challenge the Commission's orders in the U.S. Circuit Courts of Appeal.
To intervene, you must submit a motion to intervene to the Commission in accordance with Rule 214 of the Commission's Rules of Practice and Procedure
All timely, unopposed motions to intervene are automatically granted by operation of Rule 214(c)(1). Motions to intervene that are filed after the intervention deadline are untimely and may be denied. Any late-filed motion to intervene must show good cause for being late and must explain why the time limitation should be waived and provide justification by reference to factors set forth in Rule 214(d) of the Commission's Rules and Regulations. A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies (paper or electronic) of all documents filed by the applicant and by all other parties.
Any person wishing to comment on the project may do so. The Commission considers all comments received about the project in determining the appropriate action to be taken. To ensure that your comments are timely and properly recorded, please submit your comments on or before May 12, 2023. The filing of a comment alone will not serve to make the filer a party to the proceeding. To become a party, you must intervene in the proceeding.
There are two ways to submit protests, motions to intervene, and comments. In both instances, please reference the Project docket number CP23-84-000 in your submission:
(1) You may file your protest, motion to intervene, and comments by using the Commission's eFiling feature, which is located on the Commission's website (
(2) You can file a paper copy of your submission by mailing it to the address below. Your submission must reference the Project docket number CP23-84-000.
The Commission encourages electronic filing of submissions (option 1 above) and has eFiling staff available to assist you at (202) 502-8258 or
Protests and motions to intervene must be served on the applicant either by mail or email (with a link to the document) at: David A. Alonzo, Manager, Project Authorizations, Columbia Gas Transmission, LLC, 700 Louisiana Street, Suite 1300, Houston, TX 77002-2700 or
Throughout the proceeding, additional information about the project will be available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. For more information and to register, go to
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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k. Pursuant to section 4.32(b)(7) of 18 CFR of the Commission's regulations, if any resource agency, Indian Tribe, or person believes that an additional scientific study should be conducted in order to form an adequate factual basis for a complete analysis of the
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The Commission strongly encourages electronic filing. Please file additional study requests and requests for cooperating agency status using the Commission's eFiling system at
m. The application is not ready for environmental analysis at this time.
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o. In addition to publishing the full text of this notice in the
You may also register online at
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Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice of ready for environmental analysis.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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The federal agencies invited to cooperate above and any other federal, state, local, and tribal agencies with
l. Pursuant to section 4.32(b)(7) of 18 CFR of the Commission's regulations, if any resource agency, Native-American Tribe, or person believes that an additional scientific study should be conducted in order to form an adequate factual basis for a complete analysis of the application on its merit, the resource agency, Native-American Tribe, or person must file a request for a study with the Commission not later than 60 days from the date of filing of the application, and serve a copy of the request on the applicant.
m. Deadline under 42 U.S.C. 4370m-2(a)(2)(B) for responses from the specific federal agencies invited to cooperate in item k: March 27, 2023.
Deadline for filing additional study requests and deadline for agencies, other than the specific federal agencies invited to cooperate in item k, to file requests for cooperating agency status: April 28, 2023.
The Commission strongly encourages electronic filing. Please file additional study requests and requests for cooperating agency status using the Commission's eFiling system at
n. The application is not ready for environmental analysis at this time.
o. The proposed pumped storage project would involve constructing the following new facilities: (1) a 5,695-foot-long lined compacted rock-fill dam that would create a 46.8-acre upper reservoir that would be lined with an impermeable polyvinylchloride liner to reduce leakage and would be surrounded by a 10-foot-high wildlife and security fence; (2) a 6,629-foot-long compacted earth-fill embankment dam that would create a 62.8-acre lower reservoir that would be lined with an impermeable liner to reduce leakage and would be surrounded by a 10-foot-high wildlife and security fence; (3) a water conveyance system connecting the upper and lower reservoirs that consists of the following structures: (a) an ungated vertical inlet/outlet bellmouth-type structure located at the bottom of the upper reservoir with a 65-foot-deep conical transition to provide flow into a 20-foot-diameter, 2,260-foot-high reinforced concrete-lined vertical headrace shaft; (b) a 20-foot-diameter, 240-foot-long horizontal steel-lined high-pressure headrace tunnel; (c) three 11-foot-diameter, 134- to 200-foot-long steel-lined underground penstocks, each with a turbine main inlet valve just upstream of each pump-turbine unit; (d) three 13-foot-diameter, 352- to 448-foot-long steel-lined draft tube tunnels of, that transition to concrete-lined tunnels of unknown length, downstream of the transformer cavern; (e) a 22-foot-diameter, 7,610-foot-long concrete-lined tailrace tunnel that terminates at the inlet/outlet structure; and (f) an approximately 92.5-foot-wide intake/outlet structure with trashracks, designed as a horizontal fan-shaped diffusor, that extends more than 100 feet from the tailrace tunnel and isolates the lower reservoir from the tailrace tunnel by a pair of 10.5-foot by 25-foot stoplogs in slots extending down from the intake/outlet structure; (4) a 367-foot-long, 83-foot-wide, 191-foot-high underground powerhouse cavern containing three 333-megawatt Francis pump-turbines and three generator-motors; (5) a 300-foot-long, 62-foot-wide, 93-foot-high underground transformer cavern containing three-phase step-up transformers connected to the powerhouse cavern by three busbar tunnels of unknown dimensions; (6) three 345-kilovolt underground circuits connecting from the unit transformers in the transformer cavern through a 4,950-foot-long, 24-foot-diameter, D-shaped cable tunnel to the new switchyard; (7) a 400-foot-long by 370-foot-wide fenced outdoor switchyard where the circuits would be combined into a single 345-kilovolt transmission line; (8) a 25-mile-long, 345-kilovolt overhead transmission line that connects to the grid at the existing NV Energy Robinson Summit substation (the point of interconnection); (9) a 5,108-foot-long 30-foot-diameter, D-shaped shotcrete-lined main access tunnel to provide access to the powerhouse and transformer caverns; (10) six other secondary access tunnels for accessing the transformer and powerhouse caverns (4 tunnels), the tailrace, and the headrace; (11) access roads, including: (a) 4,872-foot-long lower reservoir perimeter road; (c) a 572-foot-long switchyard access road; (d) a 37,300-foot-long, permanent, dual-lane paved upper reservoir access road; (e) a 6,200-foot-long upper reservoir perimeter road; and (f) an unknown number of access roads for transmission line access; (12) a gated, signed, and signaled railroad crossing for construction vehicle traffic across the active Nevada Northern Railway HiLine track; (13) a permanent, approximately 1,005,000-cubic-yard spoil disposal site; (14) an unknown number of temporary explosives storage facilities of unknown dimensions; and (15) appurtenant facilities. A new, alternative upper reservoir access road is being considered that would utilize an approximately 3.5-mile long, permanent, dual-lane paved roadway that would connect the proposed upper reservoir location to White Pine County Road 29 (NV-486), through the Duck Creek Range and across Duck Creek. Additionally, a gated, signed, and signaled railroad crossing for construction vehicle traffic across the currently inactive Nevada Northern Railway Mainline track is also being considered, if the track is reactivated.
The project would also utilize existing portions of unknown lengths of U.S. highway 93 and an existing unimproved, unpaved vehicle track as the proposed western access road, and an unknown number of existing access roads and tracks of unknown length to access the proposed transmission line and temporary explosives storage facilities. Additionally, an unknown number of existing power distribution lines would need to be re-routed and upgraded before construction of the project to avoid impacts as a result of lower reservoir construction and to facilitate crossings at the western access road. Further, an unidentified ridge road of unknown length would need to be rerouted to bypass construction and permanent facilities. NV Energy would also need to design and construct a new bay at the Robinson Summit Substation for the interconnection of the project.
The water used for construction, to initially fill the new lower reservoir, and to provide make-up water would come from four new groundwater wells in the Steptoe Valley, located to the south of the lower reservoir. The initial volume of water necessary to fill the
p. In addition to publishing the full text of this document in the
You may also register online at
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r. Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice of ready for environmental analysis.
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric reliability filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency (EPA).
Notice of request for nominations.
The U.S. Environmental Protection Agency (EPA) invites nominations from a diverse range of qualified candidates to be considered for appointment to its Good Neighbor Environmental Board. Approximately ten vacancies are expected to be filled by December 2023. For appointment
Eugene Green, Designated Federal Officer, Office of Resources and Business Operations, Federal Advisory Committee Management Division, U.S. Environmental Protection Agency, telephone 202-564-2432.
The EPA is seeking nominations from a variety of sectors along the U.S.-Mexico border including representatives from business and industry, academia, non-governmental organizations, local, county, and Tribal governments.
According to the mandates of FACA, committees are required to support diversity across a broad range of constituencies, sectors, and groups. In accordance with Executive Order 14035 (June 25, 2021) and consistent with law, EPA values and welcomes opportunities to increase diversity, equity, inclusion, and accessibility on its federal advisory committees. EPA's federal advisory committees strive to have a workforce that reflects the diversity of the American people.
To learn more about the GNEB, please visit
The following criteria will be used to evaluate nominees:
• Nominations must include: (1) a statement of interest, (2) resume or curriculum vitae (CV) and (3) a short biography describing professional and educational qualifications, including a list of relevant activities and any current or previous service on advisory committees as well as the nominee's current business address, email address, and daytime telephone number. The statement of interest should describe how the nominee's background, knowledge, and experience would add value to the committee's work, and how the individual's qualifications would contribute to the overall diversity of the GNEB. To help the Agency in evaluating the effectiveness of its outreach efforts, please include in the statement of interest how you learned of this opportunity.
• Nominees from the academic sector should also provide a letter of support authorizing the applicant to represent the views of a particular school/college (
• Please be aware that EPA's policy is that, unless otherwise prescribed by statute, members generally are appointed for a two-year term. For appointment consideration, interested nominees should submit the application materials electronically via email to Eugene Green at
Environmental Protection Agency (EPA).
Notice.
EPA is required under the Toxic Substances Control Act (TSCA), as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act, to make information publicly available and to publish information in the
Comments identified by the specific case number provided in this document must be received on or before April 19, 2023.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2022-0132, through the
This document provides the receipt and status reports for the period from 2/01/2023 to 2/28/2023. The Agency is providing notice of receipt of PMNs, SNUNs, and MCANs (including amended notices and test information); an exemption application under 40 CFR part 725 (Biotech exemption); TMEs, both pending and/or concluded; NOCs to manufacture a new chemical substance; and a periodic status report on new chemical substances that are currently under EPA review or have recently concluded review.
EPA is also providing information on its website about cases reviewed under the amended TSCA, including the section 5 PMN/SNUN/MCAN and exemption notices received, the date of receipt, the final EPA determination on the notice, and the effective date of EPA's determination for PMN/SNUN/MCAN notices on its website at:
Under the Toxic Substances Control Act (TSCA), 15 U.S.C. 2601
Any person who intends to manufacture (including import) a new chemical substance for a non-exempt commercial purpose, or to manufacture or process a chemical substance in a non-exempt manner for a use that EPA has determined is a significant new use, is required by TSCA section 5 to provide EPA with a PMN, MCAN, or SNUN, as appropriate, before initiating the activity. EPA will review the notice, make a risk determination on the chemical substance or significant new use, and take appropriate action as described in TSCA section 5(a)(3).
TSCA section 5(h)(1) authorizes EPA to allow persons, upon application and under appropriate restrictions, to manufacture or process a new chemical substance, or a chemical substance subject to a significant new use rule (SNUR) issued under TSCA section 5(a)(2), for “test marketing” purposes, upon a showing that the manufacture, processing, distribution in commerce, use, and disposal of the chemical will not present an unreasonable risk of injury to health or the environment. This is referred to as a test marketing exemption, or TME. For more information about the requirements applicable to a new chemical go to:
Under TSCA sections 5 and 8 and EPA regulations, EPA is required to publish in the
This action provides information that is directed to the public in general.
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In the past, EPA has published individual notices reflecting the status of TSCA section 5 filings received, pending, or concluded. In 1995, the Agency modified its approach and streamlined the information published in the
For the PMN/SNUN/MCANs that have passed an initial screening by EPA during this period, Table I provides the following information (to the extent that
As used in each of the tables in this unit, (S) indicates that the information in the table is the specific information provided by the submitter, and (G) indicates that this information in the table is generic information because the specific information provided by the submitter was claimed as CBI. Submissions which are initial submissions will not have a letter following the case number. Submissions which are amendments to previous submissions will have a case number followed by the letter “A” (
In Table II of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the NOCs that have passed an initial screening by EPA during this period: The EPA case number assigned to the NOC including whether the submission was an initial or amended submission, the date the NOC was received by EPA, the date of commencement provided by the submitter in the NOC, a notation of the type of amendment (
If you are interested in information that is not included in these tables, you may contact EPA's technical information contact or general information contact as described under
Environmental Protection Agency (EPA).
Notice, extension of comment period.
In the
The comment period for the notice that published on February 17, 2023, at 88 FR 10320, is extended. Comments must be received on or before May 19, 2023.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2023-0061,
This document extends the public comment period established in the
EPA received requests to extend the comment period and believes it is appropriate to do so in order to give stakeholders additional time to review the notices and prepare comments. If you have questions, consult the technical person listed under
The following items were adopted by the Commission on March 14, 2023 and deleted from the list of items scheduled for consideration at the Thursday, March 16, 2023, Open Meeting. The items were previously listed in the Commission's Sunshine Notice on Thursday, March 9, 2023.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before May 19, 2023. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele, (202) 418-2991.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y, (12 CFR part 225) to engage de novo, or to acquire or control voting securities or assets of a company, including the companies listed below, that engages either directly or through a subsidiary or other company, in a nonbanking activity that is listed in § 225.28 of Regulation Y (12 CFR 225.28) or that the Board has determined by Order to be closely related to banking and permissible for bank holding companies. Unless otherwise noted, these activities will be conducted throughout the United States.
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington, DC 20551-0001, not later than April 3, 2023.
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Board of Governors of the Federal Reserve System.
The notificants listed below have applied under the Change in Bank Control Act (Act) (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the applications are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington, DC 20551-0001, not later than April 3, 2023.
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Board of Governors of the Federal Reserve System.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice.
The Centers for Disease Control and Prevention (CDC), within the Department of Health and Human Services (HHS), is seeking nominations for membership on the Board of Scientific Counselors, National Institute for Occupational Safety and Health (BSC, NIOSH). The BSC, NIOSH consists of 15 experts in fields associated with occupational safety and health.
Nominations for membership on the BSC, NIOSH must be received no later than April 19, 2023. Packages received after this time will not be considered for the current membership cycle.
All nominations should be mailed to NIOSH Docket 278, c/o Ms. Pauline Benjamin, Committee Management Specialist, NIOSH, CDC, 1600 Clifton Road NE, Mailstop V24-4, Atlanta, Georgia 30329-4027 or emailed to
Maria Strickland, M.P.H., Designated Federal Officer, Board of Scientific Counselors, National Institute for Occupational Safety and Health, Centers for Disease Control and Prevention, Patriots Plaza 1, 395 E Street SW, Suite 9200, Washington, District of Columbia 20201. Telephone: (202) 245-0649; Email:
Nominations are sought for individuals who have the expertise and qualifications necessary to contribute to the accomplishment of the objectives of the BSC, NIOSH. Nominees will be selected based on expertise in pertinent disciplines involved in occupational safety and health, such as occupational medicine, occupational nursing, industrial hygiene, occupational safety, engineering, toxicology, chemistry, safety and health education, ergonomics, epidemiology, biostatistics, psychology, wellness, research translation, and evaluation. Federal employees will not be considered for membership. Members may be invited to serve for up to four-year terms. Selection of members is based on candidates' qualifications to contribute to the accomplishment of BSC, NIOSH objectives (
HHS policy stipulates that committee membership be balanced in terms of points of view represented and the committee's function. Appointments shall be made without discrimination on the basis of age, race, ethnicity, gender, sexual orientation, gender identity, HIV status, disability, and cultural, religious, or socioeconomic status. Nominees must be U.S. citizens and cannot be full-time employees of the U.S. Government. Current participation on Federal workgroups or prior experience serving on a Federal advisory committee does not disqualify a candidate; however, HHS policy is to avoid excessive individual service on advisory committees and multiple committee memberships. Committee members are Special Government Employees, requiring the filing of financial disclosure reports at the beginning of and annually during their terms. CDC reviews potential candidates for BSC, NIOSH membership each year and provides a slate of nominees for consideration to the Secretary of HHS for final selection. HHS notifies selected candidates of their appointment near the start of the term in January 2024, or as soon as the HHS selection process is completed. Note that the need for different expertise varies from year to year and a candidate who is not selected in one year may be reconsidered in a subsequent year. Candidates should submit the following items:
Current curriculum vitae, including complete contact information (telephone numbers, mailing address, email address)
Cover letter, including a description of the candidate's qualifications and why the candidate would be a good fit for the BSC, NIOSH
At least one letter of recommendation from person(s) not employed by the U.S. Department of Health and Human Services. Candidates may submit letter(s) from current HHS employees if they wish, but at least one letter must be submitted by a person not employed by an HHS agency (
Nominations may be submitted by the candidate or by the person/organization recommending the candidate.
The Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of availability.
The National Institute for Occupational Safety and Health (NIOSH) in the Centers for Disease Control and Prevention (CDC), an Operating Division of the Department of Health and Human Services (HHS), announces the availability of the final American Indian and Alaska Native Worker Safety and Health Strategic Plan.
The final document was published on March 10, 2023 on the CDC website.
The document is found in the Supplemental Materials tab of the docket (CDC-2022-0078) and at
Elizabeth Dalsey, National Institute for Occupational Safety and Health, Centers for Disease Control and Prevention, Mailstop P-16, W 6th Ave. and Kipling St., Denver, CO 80225. Telephone (303) 236-5955 (not a toll-free number). Email:
On June 28, 2022, NIOSH published a request for public review in the
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of meeting.
In accordance with regulatory provisions, the Centers for Disease Control and Prevention (CDC) announces the following meeting for the Board of Scientific Counselors, National Center for Injury Prevention and Control (BSC, NCIPC or Board). This meeting is partially open to the public.
The meeting will be held on May 3, 2023, from 1 p.m. to 3 p.m., EDT (CLOSED); and May 4, 2023, from 9:30 a.m. to 3:30 p.m., EDT (OPEN). The public comment period will be at the end of the open session of the meeting on May 4, 2023, from 3:10 p.m. to 3:25 p.m., EDT.
Webinar, Atlanta, Georgia. All participants must register by using the following link to attend the open session:
Christopher R. Harper, Ph.D., Senior Epidemiologist, National Center for Injury Prevention and Control, Centers for Disease Control and Prevention, 4770 Buford Highway NE, Mailstop S-1069, Atlanta, Georgia 30341. Telephone: (404) 718-8330; Email:
Portions of the meeting referenced above will be closed to the public in accordance with provisions set forth in section 552b(c)(4) and (6), title 5 U.S.C., and the Determination of the Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, CDC, pursuant to Public Law 92-463 (5 U.S.C. 1009), as amended.
The Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign
Centers for Medicare & Medicaid Services, Health and Human Services (HHS).
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by May 19, 2023.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
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2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, please access the CMS PRA website by copying and pasting the following web address into your web browser:
William N. Parham at (410) 786-4669.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency 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 requires Federal agencies to publish a 60-day notice in the
1.
CMS developed the survey using the Consumer Assessment of Health Providers and Systems (CAHPS®) principles (
The psychometric testing helped determine psychometric properties and provided an initial measure of performance for Marketplaces and QHPs to use for quality improvement. Based on psychometric test results, CMS further refined the questionnaire and sampling design to conduct the 2015 beta test of the QHP Enrollee Survey. CMS previously obtained clearance for the 2016-2023 administrations of the QHP Enrollee Survey. At this time, CMS is requesting to renew approval for the information collection related to the QHP Enrollee Experience Survey in 2024-2026. These activities are necessary to ensure that CMS fulfills legislative mandates established by section 1311(c)(4) of the Affordable Care Act to develop an “enrollee satisfaction survey system” and provide such information on Marketplace websites. CMS is also seeking approval to remove the flu vaccine question and revise the race and ethnicity questions to align with the 2011 HHS Data Collection Standard for the QHP Enrollee Survey 2024 administration.
Centers for Medicare & Medicaid Services, Health and Human Services (HHS).
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by May 19, 2023.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, please access the CMS PRA website by copying and pasting the following web address into your web browser:
William N. Parham at (410) 786-4669.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency 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 requires federal agencies to publish a 60-day notice in the
1.
The Medicare Current Beneficiary Survey (MCBS) is the most comprehensive and complete survey available on the Medicare population and is essential in capturing data not otherwise collected through our operations. The MCBS is a nationally-representative, longitudinal survey of Medicare beneficiaries that we sponsor and is directed by the Office of Enterprise Data and Analytics (OEDA). MCBS data collection includes both in-person and phone interviewing. The survey captures beneficiary information whether aged or disabled, living in the community or facility, or serviced by managed care or fee-for-service. Data produced as part of the MCBS are enhanced with our administrative data (
The MCBS continues to provide unique insight into the Medicare program and helps CMS and our external stakeholders better understand and evaluate the impact of existing programs and significant new policy initiatives. In the past, MCBS data have been used to assess potential changes to the Medicare program. For example, the MCBS was instrumental in supporting the development and implementation of the Medicare prescription drug benefit by providing a means to evaluate prescription drug costs and out-of-pocket burden for these drugs to Medicare beneficiaries. Beginning in 2024, this proposed revision to the clearance will add a few new measures to existing questionnaire sections and will remove COVID-19-related content that is no longer relevant for administration. Updated respondent materials are also included in this request. The revisions will result in a net decrease in respondent burden as compared to the current clearance due to the removal of COVID-19 items.
Food and Drug Administration, Department of Health and Human Services (HHS).
Notice.
The Food and Drug Administration (FDA, Agency, or we) is announcing conforming changes to its guidances issued under the Federal Food, Drug, and Cosmetic Act (FD&C
Conforming changes to reflect the changes to FDA's guidance are made beginning March 20, 2023.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of this guidance to the Center for Tobacco Products, Food and Drug Administration, Document Control Center, 10903 New Hampshire Ave., Bldg. 71, Rm. G335, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your request or include a Fax number to which the guidance document may be sent. See the
Paul Hart or Laura Chilaka, Center for Tobacco Products (CTP), Food and Drug Administration, Document Control Center, 10903 New Hampshire Ave., Bldg. 71, Rm. G335, Silver Spring, MD 20993, 877-287-1373,
The Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act) (Pub. L. 111-31) was enacted on June 22, 2009, amending the FD&C Act and providing FDA with the authority to regulate tobacco products. Section 201(rr) of the FD&C Act (21 U.S.C. 321(rr)), as amended by the Tobacco Control Act, defined the term “tobacco product” to mean any product made or derived from tobacco that is intended for human consumption, including any component, part, or accessory of a tobacco product (except for raw materials other than tobacco used in manufacturing a component, part, or accessory of a tobacco product). It further stated that the term “tobacco product” does not mean an article that is a drug under section 201(g)(1), a device under section 201(h), or a combination product described in section 503(g) of the FD&C Act (21 U.S.C. 353(g)).
The Consolidated Appropriations Act of 2022 (the Appropriations Act) (Pub. L. 117-103), enacted on March 15, 2022, amended the definition of the term “tobacco product” in section 201(rr) of the FD&C Act to include products that contain nicotine from any source. It further amended the definition to exclude articles that are foods under section 201(f) of the FD&C Act if such articles contain no nicotine or no more than trace amounts of naturally occurring nicotine. The Appropriations Act also amended section 901(b) of the FD&C Act (21 U.S.C. 387a(b)), which concerns FDA authority over tobacco products, by adding a sentence stating chapter IX of the FD&C Act shall also apply to any tobacco product containing nicotine that is not made or derived from tobacco. As a result, tobacco products that contain non-tobacco nicotine (NTN), including synthetic nicotine, are now subject to the provisions in chapter IX of the FD&C Act (21 U.S.C. 387 to 387t), including but not limited, to the:
• Adulteration and misbranding provisions (sections 902 and 903 of the FD&C Act);
• Required submission of ingredient listing and reporting of harmful and potentially harmful constituents for all tobacco products (section 904 of the FD&C Act);
• Required establishment registration and product listing (section 905 of the FD&C Act);
• Prohibition of selling tobacco products to individuals under 21 years of age (section 906(d)(5) of the FD&C Act);
• Requirement that new tobacco products have an FDA marketing order (section 910 of the FD&C Act) in effect; and
• Requirement that modified risk tobacco products have a modified risk order in effect (section 911 of the FD&C Act).
The Appropriations Act further states that products that are tobacco products under the amended definition in section 201(rr) of the FD&C Act shall be subject to all requirements of regulations for tobacco products and specifies that the term “tobacco product” in regulations and guidance issued, in whole or in part, under the FD&C Act shall have the meaning of, and shall be deemed amended to reflect the meaning of, the amended definition in section 201(rr). As a result, beginning April 14, 2022, tobacco products that contain NTN, including synthetic nicotine, are subject to the provisions that apply to tobacco products in FDA's regulations, including, but not limited to:
• Refuse to accept criteria for premarket submissions (21 CFR 1105.10);
• Content and format requirements for premarket tobacco product applications (21 CFR part 1114);
• Exemption from substantial equivalence requirements (21 CFR part 1107, subpart A); and
• Prohibition of the distribution of free samples (21 CFR 1140.16(d)).
The Appropriations Act directs FDA to publish a notice in the
FDA is updating the definition of “tobacco product” in guidances issued, in whole or in part, under the FD&C Act, to reflect the amendments made by the Appropriations Act. The definition of “tobacco product,” where included in the text of FDA guidance, is being updated to reflect the statutory amendments by adding the phrase “or containing nicotine from any source” after the words “from tobacco,” and incorporating the exclusion of articles that are foods as defined in section 201(f) of the FD&C Act if such articles contain no nicotine or no more than trace amounts of naturally occurring nicotine.
The guidance documents listed in table 1 are, or will be,
These revised final guidances are being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115) and represent the current thinking of FDA on the topic discussed in each guidance. They do not establish any legally enforceable rights or responsibilities for any person and are not legally binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. You may submit comments on any guidance at any time (see
The amendments made by the Appropriations Act result in changes to
Persons with access to the internet may obtain an electronic version of the guidance documents at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or the Agency) has determined the regulatory review period for JIVI and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of the U.S. Patent and Trademark Office (USPTO), Department of Commerce, for the extension of a patent which claims that human biological product.
Anyone with knowledge that any of the dates as published (see
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.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Beverly Friedman, Office of Regulatory Policy, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6250, Silver Spring, MD 20993, 301-796-3600.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: a testing phase and an approval phase. For human biological products, the testing phase begins when the exemption to permit the clinical investigations of the biological product becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human biological product and continues until FDA grants permission to market the biological product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of USPTO may award (for example, half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human biological product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA has approved for marketing the human biologic product JIVI (antihemophilic factor (recombinant), PEGylated-aucl). JIVI is indicated for use in previously treated adults and adolescents (12 years of age and older) with hemophilia A (congenital Factor VIII deficiency) for: (1) on-demand treatment and control of bleeding episodes; (2) perioperative management of bleeding; and (3) routine prophylaxis to reduce the frequency of bleeding episodes. Subsequent to this approval, the USPTO received a patent term restoration application for JIVI (U.S. Patent No. 7,632,921) from Bayer HealthCare LLC, and the USPTO requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated September 12, 2019, FDA advised the USPTO that this human biological product had undergone a regulatory review period and that the approval of JIVI represented the first permitted commercial marketing or use of the product. Thereafter, the USPTO requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for JIVI is 2,991 days. Of this time, 2,626 days occurred during the testing phase of the regulatory review period, while 365 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the USPTO applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 1,677 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit either electronic or written comments and, under 21 CFR 60.24, ask for a redetermination (see
Submit petitions electronically to
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a draft guidance for industry entitled “Pharmacogenomic Data Submissions.” This draft guidance is intended to facilitate progress in the field of pharmacogenomics and the use of pharmacogenomic data in drug development. The draft guidance is intended to clarify the contexts in which pharmacogenomic study findings and data must be included in submissions related to investigational new drug applications (INDs), new drug applications (NDAs), and biologics license applications (BLAs) based on the FDA's regulations. In addition, this document provides recommendations to sponsors and applicants on the format and content of the pharmacogenomic data submissions.
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by June 20, 2023.
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.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of the draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002 or the Center for Biologics Evaluation and Research, Office of Communication, Outreach, and Development, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20903. Send one self-addressed adhesive label to assist that office in processing your requests. See the
FDA is announcing the availability of a draft guidance for industry entitled “Pharmacogenomic Data Submissions.” The draft guidance outlines FDA's expectations for the submission of data from pharmacogenomic studies considering the advances in genomics research that have occurred since FDA published final guidance on “Pharmacogenomic Data Submissions” in 2005. This guidance, when finalized, will replace the 2005 final guidance.
Pharmacogenomic studies that evaluate the effect of variations in DNA or RNA characteristics on drug concentrations or response have the potential to help identify sources of inter-individual variability and characterize the pharmacologic effects of a drug. In some cases, pharmacogenomic studies can identify biomarkers that make it possible to individualize therapy. In addition, pharmacogenomic biomarkers that have well-accepted mechanistic and clinical significance are currently being integrated into drug development (
Sponsors submitting or holding INDs, NDAs, or BLAs are subject to FDA requirements for submitting data to the Agency that are relevant to drug safety and effectiveness (including 21 CFR 312, 314, and 601). However, the regulations were developed before the advent of widespread animal or human genetic testing (
In addition, this draft guidance has also removed references to the Voluntary Genomic Data Submission program (VGDS; later referred to as Voluntary eXploratory Data Submission program, or VXDS). The VGDS program created a pathway for voluntary exchanges between FDA and the pharmaceutical industry or other stakeholders regarding genomic and other biomarker studies in the context of individual drug development programs. The program helped the Agency gain knowledge regarding genomics research in the context of drug development and
• The VGDS program created a pathway and infrastructure for stakeholders to voluntarily submit genomic or other data to FDA, when such data are not otherwise required to be submitted to FDA. Such a submission pathway could support regulatory science initiatives (
• FDA requests public input on particular platforms or technologies that would benefit most from standardization.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on pharmacogenomic data submissions to the Agency. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
While this guidance contains no collection of information, it does refer to previously approved FDA collections of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521) is not required for this guidance. The previously approved collections of information are subject to review by OMB under the PRA. The collections of information in 21 CFR parts 50 and 56 pertaining to informed consent have been approved under OMB control number 0910-0130. The collections of information in 21 CFR part 312 pertaining to submissions of investigational new drug applications (IND), including clinical trial design and study protocols, IND Safety Reports, Annual Reports and voluntary pharmacogenomic data have been approved under OMB control number 0910-0014. The collections of information in 21 CFR part 314 pertaining to submissions of new drug applications have been approved under OMB control number 0910-0001. The collections of information in 21 CFR part 601 pertaining to submissions of biologics license applications have been approved under OMB control number 0910-0338.
Persons with access to the internet may obtain the draft guidance at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or the Agency) has determined the regulatory review period for IC-8 APTHERA INTRAOCULAR LENS and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of the U.S. Patent and Trademark Office (USPTO), Department of Commerce, for the extension of a patent which claims that medical device.
Anyone with knowledge that any of the dates as published (see
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
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Beverly Friedman, Office of Regulatory Policy, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6250, Silver Spring, MD 20993, 301-796-3600.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: a testing phase and an approval phase. For medical devices, the testing phase begins with a clinical investigation of the device and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the device and continues until permission to market the device is granted. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of USPTO may award (half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a medical device will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(3)(B).
FDA has approved for marketing the medical device IC-8 APTHERA INTRAOCULAR LENS. IC-8 APTHERA INTRAOCULAR LENS is indicated for unilateral implantation for the visual correction of aphakia and to create monovision in patients age 22 or older who have been diagnosed with bilateral operable cataract, who have up to 1.5D of astigmatism in the implanted eye and who do not have a history of retinal disease and who are not predisposed to experiencing retinal disease in the future. Subsequent to this approval, the USPTO received a patent term restoration application for IC-8 APTHERA INTRAOCULAR LENS (U.S. Patent No. 9,005,281) from AcuFocus, Inc., and the USPTO requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated January 10, 2023, FDA advised the USPTO that this medical device had undergone a regulatory review period and that the approval of IC-8 APTHERA INTRAOCULAR LENS represented the first permitted commercial marketing or use of the product. Thereafter, the USPTO requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for IC-8 APTHERA INTRAOCULAR LENS is 1,341 days. Of this time, 827 days occurred during the testing phase of the regulatory review period, while 514 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the USPTO applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 928 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit either electronic or written comments and, under 21 CFR 60.24, ask for a redetermination (see
Submit petitions electronically to
Notice is hereby given that I have delegated to the Assistant Deputy Secretary for National Security within the Office of the Secretary (OS), Immediate Office of the Secretary (IOS), Office of National Security (ONS), the authorities vested in me as the Secretary of Health and Human Services for managing the Controlled Unclassified Information Program under Executive Order 13556, now and hereafter.
This authority may be redelegated, but only within ONS. Exercise of this authority shall be in accordance with established policies, procedures, guidelines, and regulations as prescribed by the E.O. 13556 and 32 CFR part 2002 “Controlled Unclassified Information.”
This delegation of authority is effective immediately upon signature.
Notice of amendment.
The Secretary of Health and Human Services (HHS) is issuing this notice pursuant to section 564 of the Federal Food, Drug, and Cosmetic (FD&C) Act. On March 15, 2023, the Secretary amended the February 4, 2020 determination made pursuant to section 564 of the FD&C Act and determined pursuant to his authority under section 564(b)(1)(C) that there is a public health emergency, or a significant potential for a public health emergency, that affects, or has a significant potential to affect, national security or the health and security of United States citizens living abroad and that involves a biological agent, namely the novel (new) coronavirus (nCoV) first detected in Wuhan City, Hubei Province, China in 2019 (2019-nCoV, or SARS-CoV-2).
The section 564(b)(1)(C) determination that was originally issued on February 4, 2020, is amended as of March 15, 2023.
Paige Ezernack: 202-260-0365,
Under section 564 of the FD&C Act, the Commissioner of the Food and Drug Administration (FDA), acting under delegated authority from the Secretary of HHS, may issue an EUA authorizing (1) the emergency use of an unapproved drug, an unapproved or uncleared device, an unlicensed biological product, or an unapproved animal drug; or (2) an unapproved use of an approved drug, approved or cleared device, licensed biological product, or conditionally approved animal drug. Before an EUA may be issued, the Secretary of HHS must declare that circumstances exist justifying the authorization based on one of four determinations: (1) a determination by the Secretary of Homeland Security that there is a domestic emergency, or a significant potential for a domestic emergency, involving a heightened risk of attack with a chemical, biological, radiological, or nuclear (“CBRN”) agent or agents; (2) the identification of a material threat by the Secretary of Homeland Security pursuant to section 319F-2 of the Public Health Service (PHS) Act sufficient to affect national security or the health and security of United States citizens living abroad; (3) a determination by the Secretary of Defense that there is a military emergency, or a significant potential for a military emergency, involving a heightened risk to United States military forces, including personnel operating under the authority of title 10 or title 50, of attack with (i) a CBRN agent or agents; or (ii) an agent or agents that may cause, or are otherwise associated with, an imminently life-threatening and specific risk to United States military forces; or (4) a determination by the Secretary that there is a public health emergency, or a significant potential for a public health emergency, that affects, or has a significant potential to affect, national security or the health and security of United States citizens living abroad, and that involves a CBRN agent or agents, or a disease or condition that may be attributable to such agent or agents.
Based on any of these four determinations, the Secretary of HHS may then issue a declaration(s) that circumstances exist that justify the issuance of an EUA(s), at which point the FDA Commissioner may issue an EUA(s) for certain products if the criteria for issuance under section 564 of the FD&C Act are met. The section 564 declaration(s) terminate only when the Secretary of HHS determines that the termination requirements of section 564(b)(2)(A) of the FD&C Act are met. Additionally, section 564(b)(3) provides that the Secretary shall provide advance notice, by publication in the
On February 4, 2020, pursuant to his authority under section 564 of the FD&C Act, the Secretary of HHS determined that the circumstances in section 564(b)(1) exist because “there is a public health emergency that has a significant potential to affect national security or the health and security of United States citizens living abroad and that involves a novel (new) coronavirus (nCoV) first detected in Wuhan City, Hubei Province, China in 2019 (2019-nCoV).” 85 FR 7316.
It is now well established that SARS-CoV-2 is constantly evolving and continues to be an ongoing challenge. As of January 30, 2023, SARS-CoV-2 has led to over 753 million cases of COVID-19, including 6.8 million deaths worldwide. This is due, in part, to variations in the virus that may allow it to spread more easily or make it resistant to treatments or decreased vaccine effectiveness. There is also a risk that eventually a variant will emerge that will escape the protection provided by the current generation of vaccines against severe disease. For example, the SARS-CoV-2 Omicron variant has continued to evolve into sublineages with additional mutations in the spike glycoprotein and the
In light of this, I have now amended the February 4, 2020 determination to recognize the fact that there is “a public health emergency,
The four previously-issued section 564 declarations that refer to the February 4, 2020 determination have not been terminated by the Secretary because, among other things, the circumstances described in section 564(b)(1) continue to exist—
Based on the February 4, 2020 determination, in February and March 2020, the Secretary of HHS, pursuant to section 564 of the FD&C Act and subject to the terms of any authorization issued under that section, declared that circumstances exist justifying the authorization of emergency use of: (1) in vitro diagnostics for detection and/or diagnosis of this novel coronavirus, 85 FR 7316; (2) personal respiratory protective devices, 85 FR 13907; (3) other medical devices including alternative products used as medical devices, 85 FR 17335; and (4) drugs and biological products, 85 FR 18250.
These section 564 declarations continue in effect. Specifically, under section 564(b)(2)(A), a declaration made under section 564 will not terminate unless the Secretary determines that “the circumstances described in [section 564(b)(1)] have ceased to exist,” or there is “a change in the approval status of the [authorized] product such that the circumstances described in subsection (a)(2) have ceased to exist.” Section 564(b)(2)(A) of the FD&C Act. The first basis for termination is not met because the circumstances described in section 564(b)(1) have not ceased to exist; to the contrary, as described above, I have determined that the circumstances described in section 564(b)(1)(C) continue to exist. The second basis for termination is not met because each declaration covers many products, or emergency uses of products, at least some of which remain “unapproved” within the meaning of section 564(a)(2).
Consistent with section 564(f), the EUAs issued under these declarations remain in effect until the earlier of the termination of relevant section 564 declarations or revocation of the EUAs. Accordingly, the currently-in-effect EUAs issued under the section 564 determination/declarations for COVID-19 also continue in effect.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The 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 purpose of this meeting is to evaluate requests for preclinical development resources for potential new therapeutics for the treatment of cancer. The outcome of the evaluation will provide information to
Toby Hecht, Ph.D., Executive Secretary, Development Experimental Therapeutics Program, National Cancer Institute, NIH, 9609 Medical Center Drive, Room 3W110, Rockville, Maryland 20850, 240-276-5683,
Pursuant to Public Law 92-463, notice is hereby given of a meeting of the Substance Abuse and Mental Health Services Administration's (SAMHSA) Advisory Committee for Women's Services (ACWS) on April 25, 2023.
The meeting will include discussions on assessing SAMHSA's current strategies, including the mental health and substance use needs of the women and girls population. Additionally, the ACWS will be addressing priorities regarding the impact of COVID-19 on the behavioral health needs of women and children and directions around behavioral health services and access for women and children.
The meeting is open to the public and will be held at 5600 Fishers Lane, Rockville, Maryland 20857. Interested persons may present data, information, or views, orally or in writing, on issues pending before the committee. Written submissions should be forwarded to the contact person by April 15, 2023. Oral presentations from the public will be scheduled at the conclusion of the meeting. Individuals interested in making oral presentations are encouraged to notify the contact person on or before April 15, 2023. Up to five minutes will be allotted for each presentation as time allows.
The meeting may be accessed via telephone or web meeting. To obtain the call-in number and access code, submit written or brief oral comments, or request special accommodations for persons with disabilities, please register on-line at
Substantive meeting information and a roster of ACWS members may be obtained either by accessing the SAMHSA Committees' Web,
Substance Abuse and Mental Health Services Administration, HHS.
Notice.
Pursuant to Public Law 92-463, notice is hereby given of the meeting on April 25, 2023, of the Substance Abuse and Mental Health Services Administration (SAMHSA), Center for Mental Health Services National Advisory Council (CMHS NAC).
The meeting is open to the public and will include consideration of the meeting minutes from the August 18, 2022, SAMHSA, CMHS NAC meeting; updates from the CMHS Director; a discussion from SAMHSA's Assistant Secretary; a discussion on Certified Community Behavioral Health Clinic; a discussion on School Based Mental Health Services; a discussion on Mental Health Block Grant; a discussion on Black Youth Suicide Prevention Activities; and a discussion on CMHS/SAMHSA Response to Disasters.
The meeting will be held at SAMHSA, 5600 Fishers Lane, 5N54, Rockville, MD 20857. Attendance by the public will be limited to space available and will be limited to the open sessions of the meeting. Interested persons may present data, information, or views, orally or in writing, on issues pending before the Council. Presentations from the public will be scheduled at the conclusion of the meeting. Individuals interested in making public comment must notify the contact person, Pamela Foote, CMHS NAC Designated Federal Officer (DFO) on or before April 14, 2023. Up to three minutes will be allotted for each public comment as time permits. Written comments received in advance of the meeting will be considered for inclusion in the official record.
The open meeting session may also be accessed virtually. Please register on-line at
Transportation Security Administration, DHS.
30-Day notice.
This notice announces that the Transportation Security Administration (TSA) has forwarded the Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652-0067, abstracted below, to OMB for review and approval of an extension of the currently approved collection under the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. The collection involves gathering information from individuals who wish to adopt a TSA canine through the TSA Canine Training Center (CTC) Adoption Program.
Send your comments by April 19, 2023. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Christina A. Walsh, TSA PRA Officer, Information Technology (IT), TSA-11, Transportation Security Administration, 6595 Springfield Center Drive, Springfield, VA 20598-6011; telephone (571) 227-2062; email
TSA published a
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Office of the Assistant Secretary for Policy Development and Research, Department of Housing and Urban Development, HUD.
Notice of Revised Fiscal Year (FY) 2023 Fair Market Rents (FMRs).
This notice updates the FY 2023 FMRs for five areas based on new survey data.
Effective Date: The revised FY 2023 FMRs for these five areas are applicable on April 19, 2023.
Questions related to use of FMRs or voucher payment standards should be directed to the respective local HUD program staff. For technical information on the methodology used to develop FMRs or a listing of all FMRs, please call the HUD USER information line at 800-245-2691 (toll-free), email the Program Parameters and Research Division via
On September 1, 2022, HUD published the FY 2023 FMRs, requested comments on the FY 2023 FMRs, and outlined procedures for requesting a reevaluation of an area's FY 2023 FMRs (87 FR 53761). This notice revises FY 2023 FMRs for five areas based on data provided to HUD.
The updated FY 2023 FMRs appear in the following table. The FMRs are based on surveys conducted by the area public housing agencies (PHAs) and reflect the estimated 40th percentile rent levels trended to FY 2023.
The FMRs for the affected areas are revised as follows:
HUD has published these revised FMR values on the HUD USER website at:
This notice involves establishment of a rate and does not constitute a development decision affecting the physical condition of specific project areas or building sites. Accordingly, under 24 CFR 50.19(c)(6), this notice is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).
HUD Office of Community Planning and Development, 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 can be sent within 60 days of publication of this notice to
Interested persons are also invited to submit comments regarding this proposal by name and/or OMB Control Number and can be sent 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 for Colette (this is not a toll-free number) or email at
Colette Pollard, Reports Management Officer, REE, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Colette Pollard at email or
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
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.
Principal Deputy Assistant Secretary for Community Planning and Development, Marion McFadden, having reviewed and approved this document, is delegating the authority to electronically sign this document to submitter, Aaron Santa Anna, who is the Federal Register Liaison for HUD, for purposes of publication 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, 7th Street SW, Room 8210, Washington, DC 20410; email Colette Pollard at
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
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 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. 3507.
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, 7th Street SW, Room 8210, Washington, DC 20410; email Colette Pollard at
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
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,
(5) ways to minimize the burden of the collection of information on those who are to respond, including the use of 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.
Fish and Wildlife Service, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the U.S. Fish and Wildlife Service (Service), are proposing a new information collection in use without Office of Management and Budget (OMB) approval.
Interested persons are invited to submit comments on or before May 19, 2023.
Send your comments on the information collection request (ICR) by one of the following methods (please reference “1018-Grassland Easements” in the subject line of your comments):
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To request additional information about this ICR, contact Madonna L. Baucum, Service Information Collection Clearance Officer, by email at
In accordance with the Paperwork Reduction Act (PRA, 44 U.S.C. 3501
As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are especially interested in public comment addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How might the agency minimize the burden of the collection of
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
In the United States, the Prairie Pothole Region is located within the northern Great Plains, in parts of Iowa, Minnesota, Montana, North Dakota, and South Dakota. Characterized by thousands of shallow, glacially formed wetlands known as potholes, the Prairie Pothole Region provides habitat for globally significant populations of breeding waterfowl. In addition, the Prairie Pothole Region is important as breeding and migratory habitat for many species of grassland and wetland-dependent birds. The Migratory Bird Hunting and Conservation Stamp Act (16 U.S.C. 718d(b)(3)) and the Safe, Accountable, Flexible, Efficient Transportation Equity Act (Pub. L. 109-59, section 1119) authorize the U.S. Fish and Wildlife Service (Service) to enter into grassland easements with private landowners. The Service acquires easements from willing sellers only. Once approved, the easements are a permanent (perpetual) easement between the Service and all present and future landowners.
A grassland easement is a legal agreement signed with the United States of America, through the Service, that pays the landowner to permanently keep their land in grass. Eligible property must lie within an approved county and have potential value to wildlife. Highest priority lands are large tracts of grassland with high wetland densities, and native prairie or soils most likely to be converted to cropland. Landowners retain the right to open or close their lands to hunting and trapping, as they have in the past. In addition, subsurface rights such as oil, gas, and minerals are not affected. However, the easement may limit enrollment or participation in U.S. Department of Agriculture programs where base acres of cropland are used to determine program eligibility, such as the Conservation Reserve Program. Landowners should contact their local Farm Service Agency for information regarding eligibility. Property subject to a grassland easement remains on local tax rolls. By selling easements, landowners receive funds to pay down debt, reinvest in capital improvements, or buy other lands to maintain and/or expand working lands.
Landowners who sell a grassland easement to the Service agree to maintain permanent vegetative cover such as forbs, grasses, and low shrubs. The value the Service pays is affected by the easement type and the permitted uses. Land encumbered by a grassland easement may not be cultivated. If the landowner retains grazing rights, grazing is allowed anytime during the year. However, mowing, haying, and grass seed harvesting are restricted, and may be delayed until after July 15 each year. This specific restriction is designed to help grassland nesting species, such as ducks and pheasants, complete their nesting before the grass is disturbed.
The Service collects the following information in conjunction with the administration of grassland easements:
To apply for the Grassland Easement Program, landowners must contact the Service to speak to a realty specialist or field biologist, who can explain the program and answer questions from the landowner. If the landowner decides they would like to participate in the program, a site inspection will be scheduled.
A Service realty specialist estimates the value of the easement based on the assessed value of the proposed land. In situations where a landowner is purchasing the land under a contract for deed, in order for an easement to be placed on the property, both the purchaser and the contract seller, who holds the legal title, must sign the easement agreement. When the Service accepts the easement, the landowner will receive a letter, sent via certified mail, notifying them of the acceptance of the easement being recorded at the county courthouse. A copy of the easement will be included with the certified letter.
Typically, within 8-12 months after the easement is signed, the Service makes one single lump-sum payment to the landowner, in the form of an electronic funds transfer (EFT) from the U.S. Treasury, for the full amount specified in the easement. The Interior Business Center will issue an IRS Form 1099-S at the end of the calendar year. The payment may not be taxable; however, it should be reported on the landowner's Federal income tax return.
The Service is required to monitor easements annually. It is the responsibility of the refuge manager to monitor and inspect easements for compliance, maintain communications with landowners, and ensure habitat values lost or damaged as a result of easement violations are restored. To avoid easement violations, landowners must contact their local Service representative before performing any alterations that may impact vegetation or wetlands within the easement boundary. Violation of easement terms may result in legal prosecution, fines, and restitution.
Should the quality of the grassland easement deteriorate, the landowner may obtain a Special Use Permit (FWS Form 3-1383-G) to replant or rejuvenate tame (non-native) grassland habitat. The Service encourages grasses suitable to the landowner's needs and also to the long-term benefit of wildlife. Cost-sharing or donated seed may be available through Federal, State, or private organizations. Form 3-1383-G is currently approved under OMB Control No. 1018-0102.
The Service obtains title information from the abstracter at no cost to the landowner. The title is checked to determine that all owners of record have signed the easement. Service attorneys review the case and furnish an opinion of title. If the opinion indicates any title defects, Service personnel assist the landowner in correcting the defects before the Service accepts the easement. The process usually takes 6 to 9 months.
Usually, mortgages do not affect easement transactions. If the mortgage holder needs to consent to the easement, we will ask the mortgage holder for a signed statement known as a subordination agreement, which subordinates the rights of the mortgage to those of the easement. Payment of easements where there is a mortgage or contract for deed is dependent on the mortgage holder or the contract seller and the terms of the landowner's agreement with them. They may require that all or part of the money be applied to the mortgage or contract balance, or they may allow the entire payment to go to the landowner.
Existing farm sites and other permanent structures are excluded from grassland easements. Planning for future improvements or expansions of existing farm sites or structures is important and should be considered at the time the easement is executed, when practical. Requests for improvements may be allowed and will require prior Service approval. To avoid easement violations, landowners must contact their local Service representative before manipulating permanent vegetative cover on easement lands.
Mowing before July 15 to control weeds is prohibited without prior written approval by the Service.
Easements, and the associated covenants and agreements, run with the land and are binding on all persons and entities who come into ownership or possession of the lands subject to the easement. The landowner must notify the Regional Director in writing of any sale or transfer at least 30 days following the sale or transfer of any portion of the lands subject to this easement.
Landowners may be required to maintain and/or furnish documentation such as records of ownership, sales, property characteristics, and corresponding assessed values of record, upon request, as part of the application process or associated information collections.
Landowners are responsible for the management of and costs associated with noxious weed and pest control, and must also pay any fees associated with subordination agreements. They may file a claim for reimbursement from the Government.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Fish and Wildlife Service, Interior.
Notice of receipt of permit application; request for comments.
We, the U.S. Fish and Wildlife Service, have received an application for a permit to conduct activities intended to enhance the propagation and survival of endangered species under the Endangered Species Act. We invite the public and local, State, Tribal, and Federal agencies to comment on this application. Before issuing the requested permit, we will take into consideration any information that we receive during the public comment period.
We must receive your written comments on or before April 19, 2023.
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Karen Colson, Acting Regional Recovery Permit Coordinator, Ecological Services, (208) 685-6956 (telephone);
We, the U.S. Fish and Wildlife Service, invite the public to comment on an application for a permit under section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
With some exceptions, the ESA prohibits activities that constitute take of listed species unless a Federal permit is issued that allows such activity. The ESA's definition of “take” includes such activities as pursuing, harassing, trapping, capturing, or collecting, in addition to hunting, shooting, harming, wounding, or killing.
A recovery permit issued by us under section 10(a)(1)(A) of the ESA authorizes the permittee to conduct activities with endangered or threatened species for scientific purposes that promote recovery or for enhancement of propagation or survival of the species. These activities often include such prohibited actions as capture and collection. Our regulations implementing section 10(a)(1)(A) for these permits are found in the Code of Federal Regulations (CFR) at 50 CFR 17.22 for endangered wildlife species, 50 CFR 17.32 for threatened wildlife species, 50 CFR 17.62 for endangered plant species, and 50 CFR 17.72 for threatened plant species.
Proposed activities in the following permit request are for the recovery and enhancement of propagation or survival of the species in the wild. The ESA requires that we invite public comment before issuing this permit. Accordingly, we invite local, State, Tribal, and Federal agencies and the public to submit written data, views, or arguments with respect to this application. The comments and recommendations that will be most useful and likely to influence agency decisions are those supported by quantitative information or studies.
Written comments we receive become part of the administrative record associated with this action. 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 request in your comment that we withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public disclosure in their entirety.
If we decide to issue a permit to the applicant listed in this notice, we will publish a notice in the
We publish this notice under section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the U.S. Fish and Wildlife Service
Interested persons are invited to submit comments on or before April 19, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To request additional information about this ICR, contact Madonna L. Baucum, Service Information Collection Clearance Officer, by email at
In accordance with the Paperwork Reduction Act (PRA, 44 U.S.C. 3501
On October 4, 2022, we published in the
Publishing location-specific mortality information, as the commenter suggested, is not feasible because it could result in an increased risk of illegal/unauthorized take. Furthermore, for monitoring the effectiveness of management interventions, it is not always feasible to measure effectiveness of indirect preventative techniques due to the variability in year-to-year variation in where experimental populations overlap with livestock, and landowners are not required to report on their use of indirect preventative techniques to the Service as they are often voluntary measures.
Additionally, the commenter's third and fourth suggestions request information regarding investigations performed by the Service's Office of Law Enforcement. This information cannot be shared during ongoing investigations; however, once investigations are resolved, the outcomes of cases may be shared at
As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are especially interested in public comment addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How might the agency minimize the burden of the collection of information on those who are to respond, including 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. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
(1)
a. Unintentional taking incidental to otherwise lawful activities (
b. Animal husbandry actions authorized to manage the population (
c. Take in defense of human life;
d. Take related to defense of property (if authorized); or
e. Take in the form of authorized harassment.
(2)
The information that we collect includes:
a. Name, address, and phone number of reporting party,
b. Species involved,
c. Type of incident,
d. Quantity of take,
e. Location and time of the reported incident, and
f. Description of the circumstances related to the incident.
(3)
Service recovery specialists use this information to determine the success of reintroductions in relation to established recovery plan goals for the experimental populations of vertebrate endangered and threatened species involved. In addition, this information helps us to assess the effectiveness of control activities in order to develop better means to reduce problems with livestock for those species where depredation is a problem.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Fish and Wildlife Service, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the U.S. Fish and Wildlife Service (Service), are proposing emergency clearance of a new collection of information.
Interested persons are invited to submit comments on or before May 19, 2023.
Send your comments on the information collection request (ICR) by one of the following methods (reference “1018-BCPSA Registration” in the subject line of your comment):
•
•
•
To request additional information about this ICR, contact Madonna L. Baucum, Service Information Collection Clearance Officer, by email at
In accordance with the Paperwork Reduction Act (PRA, 44 U.S.C. 3501
As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are especially interested in public comment addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How might the agency minimize the burden of the collection of information on those who are to respond, including 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. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The BCPSA makes it unlawful for any person to—(A) import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce, or in a manner substantially affecting interstate or foreign commerce, or (B) breed or possess any live prohibited wildlife species (16 U.S.C. 3372(e)(1)). The BCPSA also makes it unlawful for any person to attempt to commit any of these acts with prohibited wildlife species (16 U.S.C. 3372(a)(4)). Violators of the BCPSA are subject to civil and criminal penalties (16 U.S.C. 3373), and big cats bred, possessed, imported, exported, transported, sold, received, acquired, or purchased contrary to the provisions of the BCPSA shall be subject to forfeiture to the United States (16 U.S.C. 3374).
The BCPSA also authorizes a limited exception from the prohibition on possession for a person or entity to register live specimens of prohibited wildlife species if certain requirements are met and continue to be met (16 U.S.C. 3372(e)(2)(E)). The exception is intended to allow current owners of big cats at the time of enactment of the BCPSA to keep their big cats; however, they must register with the Service; are not allowed to breed, acquire, or sell big cats; and cannot allow direct contact between the public and their big cats (H. Rept. No. 117-428, p. 17 (July 22, 2022)). By registering their big cats no later than the statutory deadline (June 18, 2023), the person or entity (registrant) may continue to possess registered big cats that were born before the date of enactment (December 20, 2022) and legally in their possession on or before the date of enactment, as long as the registrant meets and continues to meet all requirements of 16 U.S.C. 3372(e)(2)(E).
To qualify to continue to possess live specimens of prohibited wildlife species (also referred to as “big cats”) under 16 U.S.C. 3372(e)(2)(E), a registrant must register all live specimens of prohibited wildlife species in their possession with the United States Fish and Wildlife Service no later than June 18, 2023. The purpose of the registration form is to enable owners of big cats who want to continue to possess their big cats in accordance with 16 U.S.C. 3372(e)(2)(E) to register all live specimens of big cats in their possession with the Service no later than June 18, 2023. The Service will use the information collected to verify eligibility to possess big cats under the BCPSA in accordance with 16 U.S.C. 3372(e)(2)(E).
Big cats bred or possessed in violation of the BCPSA and any big cat that is not registered on or before June 18, 2023, shall be subject to forfeiture for violation of the BCPSA prohibition on possession, unless another limited exception applies in accordance with the BCPSA. (16 U.S.C. 3372(e)(2)(A)-(D), 3374(a)). These other exceptions apply only to qualifying entities exhibiting big cats to the public under a Class C license from the Department of Agriculture, or a Federal facility registered with the Department of Agriculture that exhibits animals; State colleges, State universities, State agencies, or State-licensed veterinarians; qualifying wildlife sanctuaries; or qualifying transporters only when in custody of any big cat solely for the purpose of expeditiously transporting the big cat to a person who qualifies for an exception under the BCPSA.
To meet the requirements for an exception from the prohibition on possession under 16 U.S.C. 3372(e)(2)(E), the registrant must:
• Register each individual big cat in their possession with the U.S. Fish and Wildlife Service by no later than 180 days after the date of enactment of the BCPSA, December 20, 2022 (
• Not breed, acquire, or sell any big cat after the date of the enactment of the BCPSA, December 20, 2022 (The requirement that the registrant not breed, acquire, or sell any prohibited wildlife species after December 20, 2022, applies regardless of whether the activity is intrastate, interstate, or international) (16 U.S.C. 3372(e)(2)(E)(ii)); and
• Not allow direct contact between the public and any big cat after the date of the enactment of the BCPSA, December 20, 2022 (16 U.S.C. 3372(e)(2)(E)(iii).
To meet the requirements under 16 U.S.C. 3372(e)(2)(E), the big cat(s) in the registrant's possession must:
• Have been born before the date of enactment of the BCPSA, December 20, 2022 (16 U.S.C. 3372(e)(2)(E));
• Not have been acquired by the registrant after the date of enactment, December 20, 2022 (
• Have been registered by the owner with the U.S. Fish and Wildlife Service by no later than 180 days after the date of enactment of the BCPSA, December 20, 2022 (
The Service recognizes that there may have been big cats bred before the effective date of the BCPSA, that were subsequently born on or after the effective date of the BCPSA. The text of the BCPSA only allows big cats born before the effective date of the BCPSA to be registered under 16 U.S.C. 3372(e)(2)(E). If a big cat is not registered, then it may not be possessed by its owner under the limited exception of 16 U.S.C. 3372(e)(2)(E); and, if each big cat owned by a registrant is not registered by the statutory deadline (
It remains the responsibility of registrants to follow all local, State, and Federal laws and regulations for possession of and other activities with prohibited wildlife species, and registration under the BCPSA does not constitute authorization to engage in any activity prohibited by such laws and regulations. For example, most big cats are listed as either endangered or threatened under the Endangered Species Act and take of such species and their offspring is prohibited, with limited exceptions for take authorized by statute, regulation, or permit (16 U.S.C. 1531
To comply with the requirements of the BCPSA, the Service will seek OMB approval of FWS Form 3-200-11, “Registration Form—Big Cat Public Safety Act (Pub. L. 117-243, December 20, 2022, 136 Stat 2336), which will collect the following information:
• Name, birth date, and contact information of individual applicant;
• Name, tax ID number, and contact information of business, corporation, or trust, if applicable;
• Information for officer of business, corporation, or trust, if applicable;
• Detailed information for big cats possessed (not including hybrids), to include:
• Detailed information for hybrid big cats possessed, to include:
• Information collected to amend original registration, to include:
A copy of FWS Form 3-200-11 is available to the public by submitting a request to the Service Information Collection Clearance Officer using one of the methods identified in the
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Fish and Wildlife Service, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act, we, the U.S. Fish and Wildlife Service, are proposing to renew an information collection without change.
Interested persons are invited to submit comments on or before May 19, 2023.
Send your comments on the information collection request (ICR) by one of the following methods (reference Office of Management and Budget (OMB) Control Number 1018-0168 in the subject line of your comment):
•
•
•
Madonna L. Baucum, Service Information Collection Clearance Officer, by email at
In accordance with the Paperwork Reduction Act (PRA; 44 U.S.C. 3501
As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are especially interested in public comment addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How might the agency minimize the burden of the collection of information on those who are to respond, including 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. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
In 2017, we issued a final rule (July 24, 2017, 82 FR 34263), developed under a co-management process involving the Alaska Department of Fish and Game and Alaska Native representatives, that amended the permanent migratory bird subsistence harvest regulations at 50 CFR 92.6 to enable Alaska Native people to sell authentic native articles of handicraft or clothing that contain inedible byproducts from migratory birds that were taken for food during the Alaska migratory bird subsistence harvest season. Article II(4)(b) of the Protocol dictates that sales will be under strictly limited situations. The sale by Alaska Native people of a limited number of handicrafts containing inedible migratory bird parts provides a small source of additional income that we conclude is necessary for the “essential needs” of Alaska Native people in predominantly rural Alaska. This limited opportunity for sale is consistent with the language of the Protocol and is expressly noted in the Letter of Submittal dated May 20, 1996, for the Treaty Protocol, specifically Article II(4)(b) of the Protocol, to be consistent with the customary and traditional uses of Alaska Native people. The activity by Alaska Native people is also consistent with the preservation and maintenance of migratory bird stocks.
Alaska Native artists will show eligibility with a Tribal enrollment card, Bureau of Indian Affairs card, or membership in the Silver Hand program. The State of Alaska Silver Hand program helps Alaska Native artists promote their work in the marketplace and enables consumers to identify and purchase authentic Alaska
The final rule requires that FWS Form 3-2484 (a simple certification which is not subject to the PRA) or a Silver Hand insignia accompany each Alaska Native article of handicraft or clothing that contains inedible migratory bird parts. It also requires all consignees, sellers, and purchasers to retain this documentation with each item and produce it upon the request of a law enforcement officer. The final rule also requires that artists maintain adequate records of the certification or Silver Hand insignia with each item and requires artists and sellers/consignees to provide the documentation to buyers. These recordkeeping and third-party notification requirements are subject to the PRA and require OMB approval.
The public may request copies of a Form 3-2484 contained in this information collection by sending a request to the Service Information Collection Clearance Officer (see
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
National Park Service, Interior.
Notice.
The National Park Service is soliciting electronic comments on the significance of properties nominated before March 4, 2023, for listing or related actions in the National Register of Historic Places.
Comments should be submitted electronically by April 4, 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 March 4, 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.
Additional documentation has been received for the following resource:
Nomination submitted by Federal Preservation Officers:
The State Historic Preservation Officer reviewed the following nomination and responded to the Federal Preservation Officer within 45 days of receipt of the nomination and supports listing the property in the National Register of Historic Places.
Dated: March 8, 2023.
Bureau of Ocean Energy Management (BOEM), Interior.
Notice of no competitive interest determination.
BOEM provides notice of its determination that competitive interest does not exist in the area identified in “Research Lease on the [OCS] in the Gulf of Maine, Request for Competitive Interest (RFCI)” published in the
Effective March 20, 2023.
Luke Feinberg, Bureau of Ocean Energy Management, Office of Renewable Energy Programs, 45600 Woodland Road (VAM-OREP), Sterling, Virginia 20166,
This DNCI is made pursuant to subsection 8(p)(3) of the OCS Lands Act (43 U.S.C. 1337(p)(3)) and its implementing regulations at 30 CFR 585.239. Subsection 8(p)(3) of the OCS Lands Act requires that an OCS renewable energy lease, easement, or right-of-way (ROW) be issued “on a competitive basis unless the Secretary [of the Interior] determines after public notice of a proposed lease, easement, or [ROW] that there is no competitive interest.” The Secretary delegated the authority to make such determinations to BOEM.
This DNCI provides public notice that BOEM determined competitive interest does not exist in the proposed research lease area. This determination does not guarantee that the State of Maine will receive a research lease. After publication of this notice, BOEM may proceed with the research leasing process using the procedures described in 30 CFR 585.239. The next steps in that process include initiating an environmental review of potential impacts from leasing activities associated with the proposed research lease, siting the lease within the area identified in the RFCI, and negotiating lease terms.
A map of Maine's proposed research lease area can be found at:
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at
General information concerning the Commission may also be obtained by accessing its internet server at United States International Trade Commission (USITC) at
The Commission has received a complaint and a submission pursuant to § 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Wangs Alliance Corporation d/b/a WAC Lighting on March 10, 2023. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain LED landscape lighting devices, components thereof, and products containing same. The complaint names as respondent: Hinkley Lighting, Inc. of Avon Lake, OH. The complainant requests that the Commission issue a limited exclusion order, cease and desist orders, and impose a bond upon respondent alleged infringing articles during the 60-day Presidential review period pursuant to 19 U.S.C. 1337(j).
Proposed respondents, other interested parties, and members of the public are invited to file comments on any public interest issues raised by the complaint or § 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions on the public interest must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above. Submissions should refer to the docket number (“Docket No. 3672) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of §§ 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
On March 14, 2023, the Department of Justice lodged a proposed Agreement and Consent Decree Concerning Distribution of Certain Assets Among Claimants (“Consent Decree”) with the United States District Court for the Eastern District of New York in a lawsuit entitled
In this action, the United States obtained a judgement for recovery of response costs as provided under Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. 9607(a), from Lawrence Aviation Industries, Inc., and Gerald Cohen, related to their historical operations at Lawrence Aviation Industries, Inc., in Port Jefferson, New York (“the Site”). The proposed Consent Decree resolves the United States' remaining claim against Defendant 125 Acres of Land More or Less (“Defendant 125 Acres”), which comprises six parcels of land.
Under the proposed Consent Decree, Defendant 125 Acres will be sold and the United States and other persons that have filed claims in rem with respect to Defendant 125 Acres will receive proceeds from the sale as described in Appendix B to the proposed Consent Decree. Potential uses of the various parcels of land following the sale are described in Section VI of the Consent Decree. The sale will be effected by SCLB Holdings, LLC, a domestic limited liability company created by the Suffolk County Landbank Corporation (the “Landbank”). The sale will follow foreclosure on Suffolk County tax liens by SCLB Holdings, LLC. Neither the Landbank nor SCLB Holdings, LLC have claims against Defendant 125 Acres.
The publication of this notice opens a period for public comment on the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Consent Decree may be examined and downloaded at this Justice Department website:
Please enclose a check or money order for $13.50 (25 cents per page reproduction cost) payable to the United States Treasury.
Criminal Justice Information Services Division, Federal Bureau of Investigation, Department of Justice.
60-day notice.
The Criminal Justice Information Services (CJIS) Division, Federal Bureau of Investigation (FBI), Department of Justice (DOJ) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. Friction Ridge Cards: Arrest and Institution FD-249; Applicant FD-258; Identity History Summary Request FD-1164; FBI Standard Palm Print FD-884; Supplemental Finger and Palm Print FD-884a; Voluntary Appeal File Fingerprint FD-1212; Firearm-Related Challenge Fingerprint FD-1211.
The DOJ encourages public comment and will accept input until May 19, 2023.
If you have additional comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Larry E. Cotton-Zinn, Management and Program Analyst, Criminal History Information and Policy Unit, CJIS, FBI, BTC-3, 1000 Custer Hollow Road; Clarksburg, WV 26306; phone: 304-625-5590 or email
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Employment and Training Administration (ETA), Labor.
Notice.
The Workforce Innovation Opportunity Act (WIOA), requires the Secretary of Labor (Secretary) to conduct reallotment of certain WIOA formula allotted funds based on ETA-9130 financial reports submitted by states at of the end of the prior Program Year (PY). This notice publishes the Dislocated Worker PY 2022 funds for recapture by state and the amount to be reallotted to eligible states.
This notice is effective March 20, 2023.
Ms. Kimberly Vitelli, Administrator, U.S. Department of Labor, Office of Workforce Investment, Employment and Training Administration, Room C-4510, 200 Constitution Avenue NW, Washington, DC. Telephone (202) 693-3639 (this is not a toll-free number) or fax (202) 693-3981.
In the Fiscal Year (FY) 2022 Consolidated Appropriations Act, Congress appropriated WIOA PY 2022 funds in two portions: (1) funds available for obligation July 1, 2022 (
WIOA regulations at 20 CFR 683.135 describe the procedures the Secretary uses for recapture and reallotment of funds. ETA will not recapture any PY 2022 funds for the Adult and Youth programs because there are no states where PY 2021 unobligated funds exceed the statutory requirements of 20 percent of state allotted funds. However, for the Dislocated Worker program, Ohio and Puerto Rico had unobligated PY 2021 funds in excess of 20 percent of their allotments. Therefore, ETA will recapture a total of $4,957,289 from PY 2022 funding from Ohio and Puerto Rico and reallot those funds to the remaining eligible states, as required by WIOA Section 132(c).
ETA will issue a Notice of Award to the states to reflect the recapture and reallotment of these funds. The adjustment of funds will be made to the FY 2023 advance portion of the PY 2022 allotments, which ETA issued in October 2022. The attached tables display the net changes to PY 2022 formula allotments.
WIOA and its implementing regulations do not provide specific requirements by which states must distribute realloted funds, so states have flexibility to determine the methodology used. For any state subject to recapture of funds, WIOA Section 132(c)(5) requires the Governor to prescribe equitable procedures for reacquiring funds from the state and local areas.
As mentioned, the recapture/reallotment adjustments will be made to the FY 2023 advance portion of the PY 2022 allotment. Therefore, for reporting purposes, states must reflect the recapture/reallotment amount (decrease or increase) in the “Total Federal Funds Authorized” line of any affected FY 2023 ETA 9130 financial reports (State Dislocated Worker Activities, Statewide Rapid Response, Local Dislocated Worker Activities) in a manner consistent with the method of distribution of these amounts to state and local areas used by the state. The state must include an explanation of the adjustment in the remarks section of the adjusted reports.
As part of ETA's transition away from legacy systems, the new Payment Management System (PMS) Financial Reporting System will go live for ETA grant recipients' submission of the quarterly ETA 9130 financial reports on April 3, 2023. PMS is operated by the U.S. Department of Health and Human Services, which will conduct training for ETA grant recipients on the use of the new reporting system. Additional guidance and information on the access and use of the PMS Financial Reporting System for the submission of future ETA 9130 quarterly financial reports is provided in Training and Employment Notice (TEN) No. 16-22. The PMS Financial Reporting System training sessions will be recorded and available for future reference.
Notice.
The Department of Labor's (DOL or Department) Employment and Training Administration (ETA) is soliciting comments concerning a proposed revision for the authority to conduct the information collection request (ICR) titled, “Job Corps Hall of Fame.” This comment request is part of continuing Departmental efforts to reduce paperwork and respondent burden in accordance with the Paperwork Reduction Act of 1995 (PRA).
Consideration will be given to all written comments received by May 19, 2023.
A copy of this ICR with applicable supporting documentation, including a description of the likely respondents, proposed frequency of response, and estimated total burden, may be obtained for free by contacting Hilda Alexander by telephone at 202-693-3843 (this is not a toll-free number), TTY 1-877-889-5627 (this is not a toll-free number), or by email at
Submit written comments about, or requests for a copy of, this ICR by mail or courier to the U.S. Department of Labor, Employment and Training—Job Corps, 200 Constitution Ave. NW, N-4459, Washington DC 20210; by email:
Hilda Alexander by telephone at 202-693-3843 (this is not a toll-free number) or by email at
DOL, as part of continuing efforts to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies an opportunity to comment on proposed and/or continuing collections of information before submitting them to the Office of Management and Budget (OMB) for final approval. This program helps to ensure requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements can be properly assessed.
WIOA authorizes the collection of information from Job Corps applicants to determine eligibility for the Job Corps program. 29 U.S.C. 3194-3195. Applicant and student data is maintained in accordance with the Department's Privacy Act System of Records Notice DOL/GOVT-2 Job Corps Student Records authorizes this information collection.
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 it is approved by OMB under the PRA 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 Control Number.
Interested parties are encouraged to provide comments to the contact shown in the
Submitted comments will also be a matter of public record for this ICR and posted on the internet, without redaction. DOL encourages commenters not to include personally identifiable information, confidential business data, or other sensitive statements/information in any comments.
DOL is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
• Evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, (
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Occupational Safety & Health Administration (OSHA)-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 April 19, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Comments are invited on: (1) whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; (2) the accuracy of the agency's estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Nicole Bouchet by telephone at 202-693-0213, or by email at
The purpose of this standard and its information collection requirements is to provide protection for workers from the adverse effects associated with
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.
Legal Services Corporation.
Request for comments.
The Legal Services Corporation (LSC) seeks public comment on draft revisions to its
April 21, 2023, at 11:59 p.m. Eastern Time is the deadline for all comments to be submitted to LSC. LSC will not consider comments submitted after the deadline.
Comments must be submitted as follows:
• Acrobat PDF format.
•
•
Questions should be sent to
The Legal Services Corporation (LSC) seeks comment on draft revisions to its
LSC first adopted the Baselines in 2008 and revised them in 2015. The Baselines address the use of technology in providing high-quality legal services to clients. They set out the technology capacities that LSC grantees should have in place or have available to them through a vendor or a partner. They also serve as a resource for LSC during reviews of grantees' program quality. They are not minimum requirements.
The draft revisions reflect the significant changes in the way legal services are delivered because of the COVID-19 pandemic as well as the growth in cybersecurity threats since 2015. They include consideration of remote/hybrid work environments, cloud computing and policies, new security baselines for networks and data, document management strategies, social media policy, and the use of web and video conferencing systems. A summary of significant updates by section can be found in the draft document.
LSC issues this notice pursuant to 42 U.S.C. 2996g(e).
Legal Services Corporation.
Notice.
The Legal Services Corporation (LSC) issues this Notice describing the application and award process for up to $19,000,000 in grants to support the delivery of legal services related to the consequences of hurricanes, flooding, wildfires, severe storms, and other extreme weather that occurred in calendar year 2022.
On or before May 1, 2023,
Pre-applications for 2022 Disaster Supplemental Project and Incurred Costs Grants must be submitted through LSC's grants management system
We strongly encourage you to email LSC's Disaster Team at
LSC will have $19,000,000 available for 2022 Disaster Supplemental Appropriation
LSC Disaster Project Grants include a new opportunity this year. Any LSC Grantee, regardless of whether they have an eligible disaster in their service area, that has extensive experience in disaster response and preparation may apply for a Project Grant to provide mentorship and collaboration services to other 2022 Disaster Supplemental Appropriations Grantees.
LSC will award two types of grants under the 2022 Disaster Supplemental Appropriation funding opportunity: Project Grants and Incurred Costs Grants. Applicants are encouraged to apply for both Project and Incurred Costs grants, if applicable.
(1)
(2)
Applicants can apply for any grant amount above $25,000. There is no cap amount on the funds an eligible applicant can request for grants that are within the total funding available.
Applicants must be current LSC grantees receiving Basic Field—General, Basic Field—Agricultural Worker, or Basic Field—Native American funding.
In addition, any LSC Grantee, regardless of whether they have an eligible disaster in their service area, that has extensive experience in disaster response and preparation may apply for a Project Grant to provide mentorship and collaboration services to other 2022 Disaster Supplemental Appropriations Grantees.
Organizations and entities that are not current LSC grantees are not eligible to apply directly to LSC for these grants. Nonetheless, collaborations between LSC grantees and project partner organizations can strengthen disaster delivery systems and avoid duplication of services and are therefore encouraged.
If you are unsure if your organization is eligible to apply or have questions about the eligible disasters list, please contact the LSC Disaster Team at
Applicants are permitted to use Project and Incurred Costs Grant funds for any activities and expenses that are allowable pursuant to the LSC Act if they are related to the consequences of hurricanes, flooding, wildfires, severe storms, and other extreme weather that occurred in the calendar year 2022.
Funds from these grants cannot be used for disaster preparedness activities for future disasters, except insofar as funded activities undertaken to respond to the listed disasters will also have continuing value in preparing for and responding to future disasters.
In addition to hiring and supporting staff, eligible activities can include, but are not limited to, the leasing of new office space in an area hard-hit by a disaster and adjacent to survivors with legal needs related to the disaster, purchasing office equipment and supplies, hiring a project or grant manager, or hiring of other administrative support staff—if the activities and expenses are related to the consequences of eligible disasters.
Before submitting an application involving a subgrant or third-party contract with grant funds, applicants should be familiar with LSC's subgrant and contracting requirements at 45 CFR parts 1627 (Subgrants) and 1630 (Cost Standards), particularly as they pertain to paying third-parties to conduct programmatic activities. Certain contracts and all subgrants require prior approval under 45 CFR parts 1627 (Subgrants) and 1630 (Cost Standards). Applicants must also consider arrangements with other organizations as part of their compliance with the program integrity requirements of 45 CFR 1610.8.
LSC issues this notice pursuant to 42 U.S.C. 2996g(e).
National Archives and Records Administration (NARA).
Notice.
NARA is proposing to request that the Office of Management and Budget (OMB) reinstate a discontinued information collection and renew three other information collections. The reinstated information collection is used by companies and organizations that want to digitize archival holdings with privately-owned equipment. The first renewal information collection is prepared by organizations that want to make paper-to-paper copies of archival holdings with their personal copiers at the National Archives at the College Park facility. The second renewal is used to advise requesters of (1) the correct procedures to follow when requesting certified copies of records for use in civil litigation or criminal actions in courts of law, and (2) what kinds of information they must provide NARA so the agency can find those records. The third renewal information collection is used when veterans, dependents, and other authorized individuals request information from or copies of documents in military personnel, military medical records, and dependent medical records. We invite you to comment on this proposed information collection.
We must receive written comments on or before May 19, 2023.
Send comments to Paperwork Reduction Act Comments (MP), Room 4100; National Archives and Records Administration; 8601 Adelphi Road; College Park, MD 20740-6001, or email them to
Contact Tamee Fechhelm by telephone at 301-837-1694 with requests for additional information or copies of the proposed information collection and supporting statement.
Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13), we invite the public and other Federal agencies to comment on proposed information collections. The comments and suggestions should address one or more of the following points: (a) whether we need the proposed information collection to properly perform our agency functions;
In this notice, we solicit comments concerning the following information collections:
1.
2.
3.
4.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation (NSF) announces the following meeting:
Advisory Committee for Mathematical and Physical Sciences (#66).
April 19, 2023; 10:15 a.m. to 4:30 p.m., April 20, 2023: 9 a.m. to 3:05 p.m.
NSF, 2415 Eisenhower Avenue, Alexandria, VA 22314.
Hybrid participation for AC Members and Presenters. Other visitors and guests will be able to virtually attend the meeting.
To attend the virtual meeting, please send your request for the virtual meeting link to Michelle Bushey at the following email address:
Open.
Ciara Dalton, National Science Foundation, 2415 Eisenhower Avenue, Room C 9000, Alexandria, Virginia 22314; Telephone: 703/292-4328.
To provide advice, recommendations and counsel on major goals and policies pertaining to MPS programs and activities.
National Science Foundation.
Submission for OMB review; comment request.
The National Center for Science and Engineering Statistics (NCSES) within the National Science Foundation (NSF) has submitted the following information collection requirements to OMB for review and clearance under the Paperwork Reduction Act of 1995. This is the second notice for public comment; the first was published in the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 2415 Eisenhower Avenue, Suite E7400, Alexandria, Virginia 22314; telephone (703) 292-7556; or send email to
Copies of the submission may be obtained by calling 703-292-7556. NSF 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.
This request to extend the information collection for three years is to cover the 2024 and 2025 SED survey cycles. Data are obtained primarily via Web survey from each person earning a research doctorate at the time they receive the degree. Graduate schools help distribute the SED to their graduating doctorate recipients. Nonrespondents to the web survey are followed up by computer-assisted telephone interviewing.
The survey will be collected in conformance with the NSF Act of 1950, as amended, and the Privacy Act of 1974. Responses from individuals are voluntary. Data are collected on their field of specialty, educational background, sources of support in graduate school, debt level, postgraduation plans, and demographic characteristics. NCSES will ensure that all individually identifiable information collected will be kept strictly confidential and will be used for research or statistical purposes, analyzing data, and preparing scientific reports and articles.
National Science Foundation.
Submission for OMB review; comment request.
The National Science Foundation (NSF) has submitted the following information collection requirement to OMB for review and clearance under the Paperwork Reduction Act of 1995. This is the second notice for public comment; the first was published in the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 2415 Eisenhower Avenue, Alexandria, Virginia 22314; telephone (703) 292-7556; or send email to
Copies of the submission may be obtained by calling 703-292-7556. NSF 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.
NSF's Directorate for Technology, Innovation, and Partnerships (TIP) doubles down on the agency's commitment to support use-inspired research and the translation of research results to the market and society. In doing so, the new directorate strengthens the intense interplay between foundational and use-inspired work, enhancing the full cycle of discovery and innovation. This is best illustrated through the programs within the TIP Directorate portfolio—America's Seed Fund, Convergence Accelerator, Innovation Corps (I-Corps), Partnerships for Innovation, Pathways to Enable Open-Source Ecosystems, and Regional Innovation Engines—all reflect and represent the various phases of the technology transition/translation spectrum, while accentuating the core theme of use-inspired and solution-oriented research.
Due to the specialized nature of these programs, it is necessary for the TIP Directorate to refine its reviewer recruitment efforts and reach out to individuals that have the adequate and appropriate combinations of expertise and experience to serve as proposal reviewers for these programs. To recruit cognizant reviewers that have the set of unique skills and credentials—ones that meet and align well with the needs of these programs, the NSF TIP Directorate requests the Office of Management and Budget (OMB) approval of a customizable, directorate-wide
There are two parts to the Form. The first part is similar to the agency-wide Reviewer Request Form (NSF 428A), in that information pertaining to the individual's name, contact information, demographics, education level, and professional experience will be asked. The second part will vary based on the program, as some programs in TIP are more topically-driven, and/or theme-focused than others. The information collected on the second part encompasses, but is not limited to, the following areas: type of employing institutions, areas of expertise, provision of the individual's LinkedIn or professional web page, and potential conflict of interests. Such data collection will enable the Program Directors to better assess whether the combination of experience, expertise, and skills of the interested individuals are adequate and well-suited to help the programs to evaluate proposals through the merit review criteria as set forth by the agency and the National Science Board. (For more information on NSF merit review principles and criteria, please consult the NSF Proposal & Award Policies & Procedures Guides (PAPPG), Chapter III.A.)
Following standard OMB requirements, NSF will require OMB approval in advance and provide OMB with a copy of the form containing these questions and/or data fields. Data collected will be used strictly for reviewer recruiting purposes. The data collection burden to the individuals will be limited to no more than 10 minutes of the respondents' time in each instance.
Weeks of March 20, 27, April 3, 10, 17, 24, 2023. The schedule for Commission meetings is subject to change on short notice. The NRC Commission Meeting Schedule can be found on the internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings or need this meeting notice or the transcript or other information from the public meetings in another format (
Public and closed.
Members of the public may request to receive the information in these notices electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555, at 301-415-1969, or by email at
There are no meetings scheduled for the week of March 20, 2023.
There are no meetings scheduled for the week of April 3, 2023.
There are no meetings scheduled for the week of April 10, 2023.
There are no meetings scheduled for the week of April 24, 2023.
For more information or to verify the status of meetings, contact Wesley Held at 301-287-3591 or via email at
The NRC is holding the meetings under the authority of the Government in the Sunshine Act, 5 U.S.C. 552b.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Indirect transfer of licenses; extending effectiveness of order.
The U.S. Nuclear Regulatory Commission (NRC) is issuing an order to extend until May 25, 2024, the effectiveness of a May 25, 2021, order, which approved the indirect transfer of Public Service Company of New Mexico's interests in Renewed Facility Operating License Nos. NPF-41, NPF-51, and NPF-74 for the Palo Verde Nuclear Generating Station (Palo Verde), Units 1, 2, and 3, respectively, and the associated general license for the Palo Verde independent spent fuel storage installation to Avangrid, Inc.
The order was issued on March 14, 2023, and was effective upon issuance.
Please refer to Docket ID NRC-2021-0031 when contacting the NRC about the availability of information regarding this document. You may obtain publicly available information related to this document using any of the following methods:
•
•
•
Dennis J. Galvin, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-6256, email:
The text of the order is attached.
For the Nuclear Regulatory Commission.
Arizona Public Service Company (APS) is the licensed operator and a licensed co-owner of Renewed Facility Operating License Nos. NPF-41, NPF-51, and NPF-74 for the Palo Verde Nuclear Generating Station (Palo Verde), Units 1, 2, and 3, respectively, and the associated general license for the Palo Verde independent spent fuel storage installation (the licenses). Palo Verde is located in Maricopa County, Arizona. The other licensed co-owners (tenants-in-common), Salt River Project Agricultural Improvement and Power District; Southern California Edison Company; El Paso Electric Company;
By application dated December 2, 2020 (Agencywide Documents Access and Management System (ADAMS) Accession No. ML20337A344), as supplemented by letters dated February 26, 2021, and May 14, 2021 (ML21061A156 and ML21134A244, respectively), APS, on behalf of PNM, Avangrid, Inc. (Avangrid), and their corporate affiliates (together, the applicants), requested, pursuant to Section 184 of the Atomic Energy Act of 1954, as amended, and Title 10 of the
By letter dated February 10, 2023 (ADAMS Accession No. ML23041A441), the applicants submitted a written application to further extend the effectiveness of the indirect transfer order by 1 year, until May 25, 2024. As stated in the application, by order dated December 8, 2021, the New Mexico Public Regulation Commission (NMPRC) declined to issue the regulatory approvals necessary for the applicants to consummate the proposed indirect transfer. The applicants have obtained all other required regulatory approvals, but they cannot proceed with the transfer without the approval of the NMPRC. On January 3, 2022, the applicants filed a Notice of Appeal of the NMPRC order to the Supreme Court of New Mexico. It is not expected, however, that these further legal proceedings will be resolved within the 1-year effectiveness of the extended indirect transfer order (
Based on the above, the NRC staff has determined that the applicants have shown good cause for extending the effectiveness of the indirect transfer order by 1 year, as requested.
Accordingly, pursuant to Sections 161b, 161i, and 184 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2201(b), 2201(i), and 2234; and 10 CFR 50.80 and 10 CFR 72.50,
This Order is effective upon issuance.
For further details with respect to this Order, see the written application for extension dated February 10, 2023, which is available electronically through ADAMS in the NRC Library at
Dated: March 14, 2023.
For the Nuclear Regulatory Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe C2 Exchange, Inc. (the “Exchange” or “C2”) proposes to update its Fees Schedule. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend the Cboe Data Services, LLC (“CDS”) section of its Fees Schedule.
The Exchange first proposes to eliminate references to CDS and rename the section “Market Data Fees” to align with the heading of its affiliates, BZX Options and EDGX Options. The Exchange notes that no substantive changes are being made with the elimination of the references to CDS fees. Rather, the proposed change more accurately reflects the Exchange's role as it relates to its market data products as CDS is merely an affiliate that is the Cboe contracting entity for all U.S. equities and options market data products, but the data products themselves are made available by the Exchange. The Exchange also proposes to reformat the layout of the fees under the Cboe Data Services, LLC (“CDS”) section of the Fees Schedule to align with formatting of the corresponding section in the fees schedules of the Exchange's options exchanges, Cboe BZX Exchange, Inc. (“BZX Options”) and Cboe EDGX Exchange, Inc. (“EDGX Options”), including adding a new “Definitions” section under the CDS Fees (or as proposed, the Market Data Fees) section.
In order to provide consistent rules and terminology amongst the Exchange and its affiliated options exchanges, Cboe Options Exchange, Inc. (“Cboe Options”), Cboe BZX Exchange, Inc. (“BZX Options”) and Cboe EDGX Exchange, Inc. (“EDGX Options”) (collectively, “Affiliates”) the Exchange is proposing to amend various definitions and product names to harmonize with such terms used by its affiliates BZX Options and EDGX Options, specifically.
The Exchange also proposes to rename the following market data products and fees and use the proposed names herein, in order to align with the naming convention used by the Exchange's affiliates, BZX Options, EDGX Options and Cboe Options, as applicable for similar data products and fees.
The Exchange believes the proposed changes to eliminate, modify and adopt the terms discussed above will add additionally transparency to the Fees Schedule and will protect investors, as the changes provide more clarity within the rule and more harmonized rule language across the Fees Schedules of the Cboe affiliated options exchanges. Further, the Exchange notes that the changes are non-substantive changes or provide additional detail in the rule regarding current market participants that purchase or use the Exchange's market data products. None of these differences impact the manner in which any of the terms and corresponding fees apply, including how the Exchange would have otherwise characterized a Distributor or User (Professional or Non-Professional).
The Exchange first proposes to modify its current User Fees. The Exchange currently charges a “User Fee” of $50 per month per Device or user ID for use of the data in the C2 Options Top Data Feed by “Display Only Service” users. The current User fee is payable only for “external” Display Only Service users who receive C2 Options Top.
The Exchange lastly proposes to establish a $10,000 per month Enterprise Fee that will permit a Distributor to purchase a monthly (and optional) Enterprise license to receive the C2 Options Top Data for distribution
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
The Exchange first notes that it operates in a highly competitive environment. Indeed, there are currently 16 registered options exchanges that trade options. Based on publicly available information, no single options exchange has more than 17% of the market share.
Moreover, the C2 Options Top Data Feed is distributed and purchased on a voluntary basis, in that neither the Exchange nor market data distributors are required by any rule or regulation to make this data available. Accordingly, Distributors and Users can discontinue use at any time and for any reason, including due to an assessment of the reasonableness of fees charged. Additionally, only those Distributors that deem a product to be of sufficient overall value and usefulness would purchase them for distribution to Users. Further, Distributors are not required to distribute, and Users are not required to receive, any one particular data product and may choose to receive none, one, or several of the Exchange's market data products. Indeed less than 25% of the Exchange's market data subscriptions is for C2 Options Top. As described above, market participants have a wide variety of alternative market data products from which to choose, such as similar proprietary data products offered by other exchanges and consolidated data. Further, the Exchange is not required to make any proprietary data products available or to offer any specific pricing alternatives to any customers. Moreover, persons (including broker-dealers) who subscribe to any exchange proprietary data feed must also have equivalent access to consolidated Options Information
The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Particularly, in Regulation NMS, the Commission highlighted the importance
The Exchange believes the proposed changes to adopt new Professional and Non-Professional User fees are reasonable as the User fees continue to be to be in line with User fees assessed by other exchanges for similar data.
The proposed Enterprise Fee for C2 Options Top Feed is equitable and reasonable as the proposed fee could result in a fee reduction for Distributors with a large number of Professional and Non-Professional Users. If a Distributor has a smaller number of Professional Users of C2 Options Top Data, then it may continue using the per User structure and benefit from the proposed per C2 Options Top User Fee reductions. By reducing prices for recipient firms with a large number of Professional and Non-Professional Users, the Exchange believes that more firms may choose to receive and to distribute C2 Options Top Data, thereby expanding the distribution of this market data for the benefit of investors.
The Exchange further believes that the proposed Enterprise Fee is reasonable because it will simplify reporting for certain recipients that have large numbers of Professional and Non-Professional Users. Firms that pay the proposed Enterprise Fee will not have to report the number of Users on a monthly basis as they currently do, but rather will only have to count Professional and Non-Professional users every six months, which is a significant reduction in administrative burden. Finally, as described above the Enterprise Fee is entirely optional. A firm that does not have a sufficient number of Users to benefit from purchase of the license need not do so.
The Exchange lastly believes the proposed changes relating to the defined terms and terminology will provide additional specificity and clarity, while also harmonizing the various definition with that of its affiliates. Doing so would ensure consistent terms amongst the Exchange and its affiliates, thereby reducing the potential for confusion amongst market data subscribers of the Exchange's and its affiliates' market data products. Additionally, the proposed new terms are identical to the terms already used by the Exchange's affiliates BZX Options and EDGX Options. Similarly, the Exchange believes the proposal to reformate the fees will provide for a more streamlined fees schedule, thereby reducing potential confusion. Accordingly, the Exchange believes the proposed changes remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, protect investors and the public interest.
The Exchange does not believe that the proposed rule change would result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange operates in a highly competitive environment, and its ability to price top-of-book data is constrained by competition among exchanges that offer similar data products to their customers. Top-of-book data is broadly disseminated by competing U.S. options exchanges and through OPRA. There are therefore a number of alternative products available to market participants and investors, including products offered by certain competing exchanges, as well as OPRA. In this competitive environment potential Distributors are free to choose which competing product to purchase to satisfy their need for market information. Often, the choice comes down to price, as market data customers look to purchase cheaper data products, and quality, as market participants seek to purchase data that represents significant market liquidity.
The Exchange believes that the proposed fees do not put any market participants at a relative disadvantage compared to other market participants.
The Exchange believes that the proposed fees do not impose a burden on competition or on other SROs that is not necessary or appropriate in furtherance of the purposes of the Act. In particular, market participants are not forced to subscribe to C2 Options Top Data, or any of the Exchange's data feeds, as described above. As noted, the quote and last sale data contained in the Exchange's C2 Option Top feed is identical to the data sent to OPRA for redistribution to the public. Accordingly, Exchange top-of-book data is widely available today from a number of different sources.
Because market data customers can find suitable substitute feeds, an exchange that overprices its market data products stands a high risk that users may substitute another product. These competitive pressures ensure that no one exchange's market data fees can impose an undue burden on competition, and the Exchange's proposed fees do not do so here.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On July 7, 2022, National Securities Clearing Corporation (“NSCC”) filed with the Securities and Exchange Commission (“Commission”) proposed rule change SR-NSCC-2022-009 (the “Proposed Rule Change”) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
On September 1, 2022, pursuant to Section 19(b)(2) of the Act,
For the reasons discussed below, the Commission is approving the Proposed Rule Change.
NSCC provides clearing, settlement, risk management, central counterparty services, and a guarantee of completion for virtually all broker-to-broker trades involving equity securities, corporate and municipal debt securities, and unit investment trust transactions in the U.S. markets. A key tool that NSCC uses to manage its credit exposure to its members is collecting an appropriate Required Fund Deposit (
A member's margin consists of a number of applicable components, each of which addresses specific risks faced by NSCC.
First, NSCC would add an intraday volatility charge to its margin requirement, which would increase the margin it collects from members whose trading portfolios experience large and unexpected intraday volatility. NSCC performed an impact study with respect to this change that reviewed member positions at 4:00 p.m. between January 3, 2020 and May 28, 2021. The study showed that the proposal would have resulted in approximately eight intraday volatility charges collected on an average day during that time period, at an average of $31.6 million, ranging in size from $251,000 to $1.35 billion.
Second, NSCC would amend its margin requirement to eliminate the intraday backtesting charge because the charge relies upon an assumption that may lead to undercounting potential backtesting deficiencies.
NSCC's methodology for calculating the volatility component of a member's required margin depends on the type of security and whether the security has sufficient pricing or trading history for NSCC to robustly estimate the volatility component using statistical techniques. Generally, for most securities (that is, equity securities), NSCC calculates the volatility component using, among other things, a parametric Value at Risk (“VaR”) model, which results in a “VaR Charge.”
Based on that daily testing, NSCC may assess a backtesting charge, which is designed to collect additional margin generally from any member whose 12-month trailing backtesting coverage falls below or risks falling below the 99 percent confidence level.
NSCC proposes to implement an intraday volatility charge that would be part of its members' margin requirement to better address the volatility risks presented by members' intraday net unsettled positions between the collections of margin at the start of each business day.
NSCC states that, on days when there is increased volatility in the market, it would provide notice to its members that an intraday volatility charge may be collected. If NSCC determines to collect an intraday volatility charge, NSCC would issue a notice by electronic mail to those members who are subject to that charge, who would be able to view the amount to be collected in NSCC's clearing fund management system.
When calculating the intraday volatility charge, NSCC proposes to adjust the net unsettled positions by excluding any position for which shares have either been delivered to the CNS System which is used by NSCC to account for and settle transactions or received by the member from the CNS System to satisfy all or any portion of that position. NSCC states it believes that, for purposes of this calculation, it would be appropriate to assume the positions for which the shares have been delivered and received would settle at the end of the day, so that the calculation would be more effectively driven by any significant intraday changes to the volatility risks presented by members' adjusted intraday net unsettled positions.
NSCC proposes to retain the discretion within its Rules to lower this threshold if it determines that a reduction would be appropriate to mitigate risks to NSCC, for example, during volatile market conditions or market events that cause increases in trading volume, or when NSCC believes a lower threshold is appropriate to mitigate risks presented by members whose portfolios may present relatively greater risks to NSCC on an overnight basis.
NSCC monitors volatility in 15-minute increments throughout the business day.
In determining whether to collect an intraday volatility charge, after the occurrence of a threshold trigger, NSCC would utilize the same escalation procedures that are currently in place when making similar determinations with respect to its current authority to impose intraday mark-to-market charges. Specifically, NSCC would utilize a predetermined escalation matrix that identifies the level of the required approver within the NSCC Market Risk group based on the amount of the calculated intraday volatility charge that would be collected.
NSCC is also proposing to eliminate the intraday backtesting charge. NSCC states that, in connection with recent regulatory feedback, it has determined that the current methodology for calculating the intraday backtesting charge relies upon an assumption that NSCC would cease to act for a member that has paid all of its intraday margin requirements, when it is possible that would not be the case.
More specifically, if NSCC collects margin from a member intraday, but does not include that amount as part of the member's margin when backtesting, resulting in a backtesting deficiency and a subsequent intraday backtesting charge, that member would have covered its risk to NSCC twice—first as intraday margin collected from that member and second as an intraday backtesting charge.
Section 19(b)(2)(C) of the Act
Section 17A(b)(3)(F) of the Act
As described above in Section II.B, NSCC proposes to add an intraday volatility charge to its margin requirements that NSCC may collect when certain thresholds are met. As discussed in more detail in Section III.C
Moreover, as described above in Section II.C, NSCC proposes to eliminate the intraday backtesting charge because it is based on an unreasonable assumption and is not necessary, in light of the proposed intraday volatility charge, for NSCC to address its intraday market risk exposures and backtesting coverage metrics. NSCC provided information regarding the impact of the proposed intraday backtesting charge elimination on its backtesting coverage.
With respect to both aspects of this proposal, the Commission believes that, by allowing NSCC to collect sufficient margin, the proposal should help ensure that, in the event of a member default, NSCC's operation of its critical clearance and settlement services would not be disrupted because of insufficient financial resources. Accordingly, the Commission finds that NSCC's proposal should help NSCC to continue providing prompt and accurate clearance and settlement of securities transactions, consistent with Section 17A(b)(3)(F) of the Act.
Moreover, as described in Section II above, NSCC would access the mutualized clearing fund should a defaulted member's own margin be insufficient to satisfy losses to NSCC caused by the liquidation of that member's portfolio. Because NSCC's proposal to adopt an intraday volatility charge should help ensure that NSCC has collected sufficient margin from members, the proposed changes would also help minimize the likelihood that NSCC would have to access the clearing fund, thereby limiting non-defaulting members' exposure to mutualized losses. The Commission believes that by helping to limit the exposure of NSCC's non-defaulting members to mutualized losses, the proposed changes should help NSCC assure the safeguarding of securities and funds which are in its custody or control, consistent with Section 17A(b)(3)(F) of the Act.
Rule 17Ad-22(e)(4)(i) under the Act requires that each covered clearing agency, such as NSCC, establish, implement, maintain and enforce written policies and procedures reasonably designed to effectively identify, measure, monitor, and manage its credit exposures to participants and those arising from its payment, clearing, and settlement processes, including by maintaining sufficient financial resources to cover its credit exposure to each participant fully with a high degree of confidence.
The proposed change to adopt an intraday volatility charge would allow NSCC to better manage its credit exposures to members by maintaining sufficient resources to cover those credit exposures fully with a high degree of confidence. Specifically, and as discussed further in Section III.C
Moreover, the proposed change to eliminate the intraday backtesting charge set forth in Section II.C would eliminate a charge that is currently calculated based on an unreasonable assumption and is not necessary for NSCC to address its intraday market risk exposures and backtesting coverage metrics. As discussed above,
Therefore, for the reasons discussed above, the Commission finds that the Proposed Rule Change is reasonably designed to enable NSCC to effectively identify, measure, monitor, and manage its credit exposure to members, and those arising from its payment, clearing, and settlement processes, including by maintaining sufficient financial resources to cover its credit exposure to each member fully with a high degree of confidence consistent with Rule 17Ad-22(e)(4)(i).
Rule 17Ad-22(e)(6)(i) under the Act requires that each covered clearing agency that provides central counterparty services, like NSCC, establish, implement, maintain and enforce written policies and procedures reasonably designed to cover its credit exposures to its participants by establishing a risk-based margin system that, at a minimum, considers, and produces margin levels commensurate with, the risks and particular attributes of each relevant product, portfolio, and market.
As described above in Section II, each member's margin consists of a number of applicable components, each of which is calculated to address specific risks faced by NSCC. The Commission agrees that the proposal to adopt an intraday volatility charge set forth in Section II.B should enable NSCC to more effectively address the risks presented by significant intraday changes to market volatility or a member's portfolio of net unsettled positions. NSCC provided information regarding the impact of the proposed intraday volatility charge on its margin collection.
One commenter raised concerns with respect to the analysis cited by NSCC in the Proposed Rule Change, stating that NSCC did not provide any data to support its assertion that it occasionally observed significant intraday changes to market price volatility.
As set forth in the proposed rule text filed with this Proposed Rule Change,
One commenter stated that the proposal did not specify how far NSCC could reduce the intraday volatility charge threshold.
Moreover, given the deficiencies in the current calculation of the intraday backtesting charge, the Commission believes NSCC's proposal to eliminate the intraday backtesting charge would continue to allow NSCC to maintain a risk-based margin system that considers, and produces margin levels commensurate with the risks of its members' portfolios.
Accordingly, the Commission finds the proposal is consistent with Rule 17Ad-22(e)(6)(i) under the Act because it is designed to assist NSCC in maintaining a risk-based margin system that considers, and produces margin levels commensurate with, the risks of portfolios that experience significant volatility on an intraday basis.
Rule 17Ad-22(e)(23)(ii) under the Act requires that each covered clearing agency, like NSCC, establish, implement, maintain and enforce written policies and procedures reasonably designed to provide sufficient information to enable participants to identify and evaluate the risks, fees, and other material costs they incur by participating in NSCC.
As described above in Section II.B, NSCC is proposing to amend its Rules to include a description of the intraday volatility charge, including the thresholds that would trigger the collection of the charge, the exceptions to the collection of the charge when the thresholds are met, the method by which NSCC would calculate that charge, and NSCC's discretion to reduce the percent threshold that triggers the collection of the charge, including the circumstances when NSCC may exercise this discretion. Additionally, NSCC represents that members would be able to continue to use existing tools, including the ability to view the calculated volatility charge in 15-minute increments throughout the business day
Finally, one commenter asserted that the proposal failed to provide any information regarding what would happen if a member fails to meet an intraday volatility charge.
Accordingly, the Commission finds that the Proposed Rule Change would enable NSCC to establish, implement, maintain, and enforce written policies and procedures reasonably designed to provide sufficient information to enable members to identify and evaluate the risks, fees, and other material costs they incur as NSCC members, consistent with Rule 17Ad-22(e)(23)(ii).
On the basis of the foregoing, the Commission finds that the Proposed Rule Change is consistent with the requirements of the Act and in particular with the requirements of Section 17A of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold an Open Meeting on Wednesday, March 22, 2023 at 10:00 a.m.
The meeting will be webcast on the Commission's website at
The meeting will begin at 10:00 a.m. (ET) and will be open to the public via webcast on the Commission's website at
1. The Commission will consider whether to adopt amendments to Form PF, the confidential reporting form for certain registered investment advisers to private funds, to require current reporting for certain private fund advisers and revise certain reporting requirements.
2. The Commission will consider whether to:
a. Propose to require the electronic filing or submission on the Commission's Electronic Data Gathering, Analysis, and Retrieval (EDGAR) system, using structured data where appropriate, of several forms, notices, and reports required under the Exchange Act;
b. Propose to rescind Form 19b-4(e) and require the information currently contained in Form 19b-4(e) instead to be publicly posted on the listing self-regulatory organization's website; and remove the requirement in Form 19b-4 for a manual signature and the related manual signature retention requirement;
c. Propose to amend the Commission's Informal and Other Procedures to reflect that Form 1 and Form 1-N would be submitted electronically and to make certain technical revisions;
d. Propose to amend the requirement for supplemental materials for registered clearing agencies to require that a clearing agency post to its website the required supplemental information, rather than submit such material in paper copy to the Commission;
e. Propose to allow electronic signatures in certain broker-dealer filings and proposing amendments regarding the Financial and Operational Combined Uniform Single Report (Form X-17A-5) to harmonize with other rules, make technical corrections, and provide clarifications; and
f. Propose to require that notices made pursuant to Rule 3a71-3(d)(1)(vi) be withdrawn in specified circumstances.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact Vanessa A. Countryman from the Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe EDGX Exchange, Inc. (the “Exchange” or “EDGX Options”) proposes to amend its Fee Schedule. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its Fee Schedule to modify its market data fees for EDGX Options Top.
The Exchange first proposes to reduce the rates for Professional and Non-Professional User fees for EDGX Options Top. The Exchange currently charges Internal Distributors and External Distributors that redistribute any of the EDGX Options Data Feeds different fees for their Professional Users
The Exchange lastly proposes to establish a $20,000 per month Enterprise Fee that will permit a Distributor to purchase a monthly (and optional) Enterprise license to receive the EDGX Options Top Data for distribution to an unlimited number of Professional and Non-Professional Users. The Enterprise Fee is an alternative to Professional and Non-Professional User fees and will permit a Distributor to pay a flat fee to receive the data for an unlimited number of Professional and Non-Professional Users, which the Exchange proposes to make clear in the Fee Schedule. The Enterprise Fee may provide an opportunity to reduce fees. For example, if a Distributor distributes EDGX Options Top to 15,000 Professional Users who each receive EDGX Options Top at $5.00 per month (as proposed), then that Distributor will pay $75,000 per month in Professional Users fees. If the Distributor instead were to purchase the proposed Enterprise license, then it would alternatively pay a flat fee of $20,000 for an unlimited number of Professional and Non-Professional Users. A Distributor must pay a separate Enterprise Fee for each entity that controls the display of EDGX Options Top if it wishes for such Users to be covered by the Enterprise Fee rather than by per User fees.
The Exchange lastly proposes to modify the definition of Professional User under the definitions section of the Market Data Fees section to clarify that a Professional “User” is any natural person recipient of an Exchange Market Data product who is not a Non-Professional User. The proposed modification also aligns the definition with that of the definition used by the
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
The Exchange first notes that it operates in a highly competitive environment. Indeed, there are currently 16 registered options exchanges that trade options. Based on publicly available information, no single options exchange has more than 17% of the market share.
Moreover, the EDGX Options Top is distributed and purchased on a voluntary basis, in that neither the Exchange nor market data distributors are required by any rule or regulation to make this data available. Accordingly, Distributors and Users can discontinue use at any time and for any reason, including due to an assessment of the reasonableness of fees charged. As described above, market participants have a wide variety of alternative market data products from which to choose, such as similar proprietary data products offered by other exchanges and consolidated data. Further, the Exchange is not required to make any proprietary data products available or to offer any specific pricing alternatives to any customers. Moreover, persons (including broker-dealers) who subscribe to any exchange proprietary data feed must also have equivalent access to consolidated Options Information
The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Particularly, in Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
The Exchange believes the proposed changes to reduce the rates of the current Professional and Non-Professional User fees are reasonable as Distributors will be subject to lower rates for EDGX Options Top User fees. Additionally, the User fees continue to be in line with and/or lower than User fees assessed by other exchanges for similar data.
The Exchange believes that the proposed fees are equitable and not unfairly discriminatory because they will be charged uniformly to Distributors who distribute EDGX Options Top. The Exchange also believes continuing to offer EDGX Options Top Data to Non-Professional
The Exchange next notes it is not required to charge a single User fee to cover all its available data products, but none-the-less has opted to not charge for separate User Fees for both feeds since EDGX Options Top was adopted in January 2018.
The proposed Enterprise Fee for EDGX Options Top Feed is equitable and reasonable as the proposed fee could result in a fee reduction for Distributors with a large number of Professional and Non-Professional Users. If a Distributors has a smaller number of Professional Users of EDGX Options Top Data, then it may continue using the per User structure and benefit from the proposed per EDGX Options Top User Fee reductions. By reducing prices for recipient firms with a large number of Professional and Non-Professional Users, the Exchange believes that more firms may choose to receive and to distribute EDGX Options Top Data, thereby expanding the distribution of this market data for the benefit of investors.
The Exchange further believes that the proposed Enterprise Fee is reasonable because it will simplify reporting for certain recipients that have large numbers of Professional and Non-Professional Users. Firms that pay the proposed Enterprise Fee will not have to report the number of Users on a monthly basis as they currently do, but rather will only have to count Professional and Non-Professional Users every six months, which is a significant reduction in administrative burden. Finally, as described above the Enterprise Fee is entirely optional. A firm that does not have a sufficient number of Users to benefit from purchase of the license need not do so.
The Exchange lastly believes the proposed non-substantive clarifying changes will alleviate potential confusion, thereby removing impediments to and perfecting the mechanism of a free and open market and a national market system, and, in general, protecting investors and the public interest.
The Exchange does not believe that the proposed rule change would result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange operates in a highly competitive environment, and its ability to price top-of-book data is constrained by competition among exchanges that offer similar data products to their customers. Top-of-book data is broadly disseminated by competing U.S. options exchanges and through OPRA. There are therefore a number of alternative products available to market participants and investors, including products offered by certain competing exchanges, as well as OPRA. In this competitive environment potential Distributors are free to choose which competing product to purchase to satisfy their need for market information. Often, the choice comes down to price, as market data customers look to purchase cheaper data products, and quality, as market participants seek to purchase data that represents significant market liquidity.
The Exchange believes that the proposed fees do not put any market participants at a relative disadvantage compared to other market participants. As discussed, the proposed fees would apply to all similarly situated recipient firms of EDGX Options Top on an equal and non-discriminatory basis. The Exchange believes the differentiated fees for Professional and Non-Professional Users of EDGX Options Top is appropriate given Professional Users are categorized as such based on their employment and participation in financial markets, and thus, are compensated to participate in the markets. Non-Professional Users too can receive significant financial benefits through their participation in the markets, however the Exchange believes it is reasonable to charge more to those Users who are more directly engaged in the markets. The Exchange therefore believes that the proposed fee neither favors nor penalizes one or more categories of market participants in a manner that would impose an undue burden on competition.
The Exchange believes that the proposed fees do not impose a burden on competition or on other SROs that is not necessary or appropriate in furtherance of the purposes of the Act. In particular, market participants are not forced to subscribe to EDGX Options Top Data, or any of the Exchange's data feeds, as described above. As noted, the quote and last sale data contained in the Exchange's EDGX Options Top feed is identical to the data sent to OPRA for redistribution to the public. Accordingly, Exchange top-of-book data is therefore widely available today from a number of different sources.
Because market data customers can find suitable substitute feeds, an exchange that overprices its market data products stands a high risk that users may substitute another product. These competitive pressures ensure that no one exchange's market data fees can impose an undue burden on competition, and the Exchange's proposed fees do not do so here.
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) proposes to update the Cboe Data Services, LLC Fee Schedule. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend the fees set forth in the Cboe Data Services, LLC (“CDS”) Fee Schedule.
The Exchange first proposes to consolidate the Cboe Data Services, LLC (CDS) Fee Schedule and the Cboe Options Fees Schedule. Historically, the CDS Fee Schedule set forth fees relating to real-time Cboe Options market data products and has been maintained separately from the Cboe Options Fees Schedule. The Exchange proposes to eliminate the CDS Fee Schedule in its entirety and relocate the fees under the CDS Fees Schedule to the Cboe Options Fees Schedule. The Exchange believes this provides a more streamlined fee schedule for Cboe Options fees and allows TPHs to more readily and easily find all fees applicable to Cboe Options. The Exchange notes that no substantive changes are being made with the relocation of the CDS fees other than those discussed further below. The Exchange lastly notes that each of its affiliated options exchanges also reflect
In order to provide consistent rules and terminology amongst the Exchange and its affiliated options exchanges, C2 Options, Cboe BZX Exchange, Inc. (“BZX Options”) and Cboe EDGX Exchange, Inc. (“EDGX Options”) (collectively, “Affiliates”) the Exchange is proposing to amend various definitions and product names to harmonize with such terms used by its affiliates BZX Options and EDGX Options, specifically.
The Exchange also proposes to rename the following market data products and use the proposed names herein, in order to align with the naming convention used by the Exchange's affiliates, BZX Options and EDGX Options, for similar data products.
The Exchange believes the proposed changes to eliminate, modify and adopt the terms discussed above will add additionally transparency to the Fees Schedule and will protect investors, as the changes provide more clarity within the rule and more harmonized rule language across the Fees Schedules of the Cboe affiliated options exchanges. Further, the Exchange notes that the changes are non-substantive changes or provide additional detail in the rule regarding current market participants that purchase or use the Exchange's market data products. None of these differences impact the manner in which any of the terms and corresponding fees apply, including how the Exchange would have otherwise characterized a Distributor or User (Professional or Non-Professional).
The Exchange next proposes to modify the current monthly Data Fee for Cboe Options Top. Currently, the Exchange assesses a “Data Fee” of $9,000 per month for internal use and external redistribution of the Cboe Options Top Data Feed. A Distributor receiving the Cboe Options Top Data Feed from another entity or directly from the Exchange is assessed the Data Fee by the Exchange and is entitled to use the Data internally and/or distribute it externally. The Exchange now proposes to adopt separate fees for internal and external distribution. Specifically, the Exchange proposes to maintain the current monthly fee of $9,000 for internal distribution but adopt a lower fee of $5,000 per month for external distribution.
The Exchange next proposes to modify its current User Fees. The Exchange currently charges a “User Fee” of $50 per month per Device or user ID for use of the data in the Cboe Options Top Data Feed by “Display Only Service” users. The current User fee is payable only for “external” Display Only Service users who receive Cboe Options Top.
Next, the Exchange proposes to eliminate a fee waiver for Customers of Cboe Options Top Data. In particular, the CDS Fee Schedule currently provides that the monthly data fee of $9,000 per month for the Cboe Options Depth feed
The Exchange lastly proposes to establish a $300,000 per month Enterprise Fee that will permit a Distributor to purchase a monthly (and optional) Enterprise license to receive the Cboe Options Top Data for distribution to an unlimited number of Professional and Non-Professional Users. The Enterprise Fee is an alternative to Professional and Non-Professional User fees and will permit a Distributor to pay a flat fee to receive the data for an unlimited number of Professional and Non-Professional Users, which the Exchange proposes to make clear in the Fee Schedule. Like User fees, the Enterprise Fee would be assessed in addition to the Distribution Fees. The Enterprise Fee may provide an opportunity to reduce fees. For example, if a Distributor has 20,000 Professional Users who each receive Cboe Options Top at $15.50 per month (as proposed), then that Distributor will pay $310,000 per month in Professional Users fees. If the Distributor instead were to purchase the proposed Enterprise license, it would alternatively pay a flat fee of $300,000 for an unlimited number of Professional and Non-Professional Users. A Distributor must pay a separate Enterprise Fee for each entity that controls the display of Cboe Options Top if it wishes for such Users to be covered by the Enterprise Fee rather than by per User fees.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
The Exchange first notes that it operates in a highly competitive environment. Indeed, there are currently 16 registered options exchanges that trade options. Based on publicly available information, no single options exchange has more than 17% of the market share.
Moreover, the Cboe Options Top Data Feed is distributed and purchased on a voluntary basis, in that neither the Exchange nor market data distributors are required by any rule or regulation to make this data available. Accordingly, Distributors and Users can discontinue use at any time and for any reason, including due to an assessment of the reasonableness of fees charged. As described above, market participants have a wide variety of alternative market data products from which to choose, such as similar proprietary data products offered by other exchanges and consolidated data. Further, the Exchange is not required to make any proprietary data products available or to
The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Particularly, in Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
The Exchange believes the proposed External Distribution fee is reasonable as it would represent a decreased fee for any Distributor who is only interested in distributing Cboe Options Top externally. By providing an opportunity for lower cost access to U.S. options market data, Cboe Options Top benefits a wide range of investors that participate in the national market system and makes it more broadly available. The Exchange believes the proposed fees for external distribution of Cboe Options Top will also continue to be allocated fairly and equitably, and are not unfairly discriminatory, as the proposed fee will apply equally to all Distributors that choose to subscribe to Cboe Options Top and distribute that data to external Users. More specifically, as proposed, all External Distributors of Cboe Options Top will be subject to the same external distribution fee, regardless of the type of business that they operate, or the use they plan to make of the data feed. Thus, all External Distributors would have access to Cboe Options Top for purposes of external distribution on the same equitable and non-discriminatory terms.
The Exchange believes that it is also fair and equitable, and not unfairly discriminatory to charge different fees for internal and external distribution of the Cboe Options Top. Although the proposed distribution fee charged to External Distributors will be lower than the existing distribution fee charged to Internal Distributors, External Distributors are subject to Non-Professional user fees to which Internal Distributors are not subject, in addition to Professional User fees (or alternatively the proposed Enterprise Fee). Furthermore, the proposal is designed to incentivize External Distributors to subscribe to Cboe Options Top Data. Moreover, as noted above, Internal Distributors of Cboe Options Top will still have the benefit of receiving Cboe Options Depth at no additional cost, whereas such waiver will not be available for External Distributors of Cboe Options Top. The Exchange also notes that Cboe Options Depth is more likely to be used by Professional Users, including employees of Distributors, whereas Cboe Options Top is more likely to be used by Non-Professional Users who, by definition, do not receive the data for commercial purposes (
The Exchange believes the proposed changes to adopt new Professional and Non-Professional User fees are reasonable as the User fees continue to be in line with User fees assessed by other exchanges for similar data.
The Exchange next notes it is not required to charge a single distribution fee to cover more than one of its available data products, but none-the-less has opted to not charge for separate data fees for Cboe Options Depth and Cboe Options COB for Distributors of Cboe Options Top, since such waiver was adopted in January 1, 2015.
The proposed Enterprise Fee for Cboe Options Top Feed is equitable and reasonable as the proposed fee could result in a fee reduction for Distributors with a large number of Professional and Non-Professional Users. If a Distributor has a smaller number of Professional Users of Cboe Options Top Data, then it may continue using the per User structure and benefit from the proposed per Cboe Options Top User Fee reductions. By reducing prices for recipient firms with a large number of Professional and Non-Professional Users, the Exchange believes that more firms may choose to receive and to distribute Cboe Options Top Data, thereby expanding the distribution of this market data for the benefit of investors.
The Exchange further believes that the proposed Enterprise Fee is reasonable because it will simplify reporting for certain recipients that have large numbers of Professional and Non-Professional Users. Firms that pay the proposed Enterprise Fee will not have to report the number of Users on a monthly basis as they currently do, but rather will only have to count Professional and Non-Professional users every six months, which is a significant reduction in administrative burden. Finally, as described above the Enterprise Fee is entirely optional. A firm that does not have a sufficient number of Users to benefit from purchase of the license need not do so.
The Exchange lastly believes the proposed changes relating to the defined terms and terminology will provide additional specificity and clarity, while also harmonizing the various definition with that of its affiliates. Doing so would ensure consistent terms amongst the Exchange and its affiliates, thereby reducing the potential for confusion amongst market data subscribers of the Exchange's and its affiliates' market data products. Additionally, the proposed new terms are identical to the terms already used by the Exchange's affiliates BZX Options and EDGX Options. Similarly, the Exchange believes the proposal to relocate the fees in the CDS Fees Schedule to the Cboe Options Fees Schedule will provide for a more streamlined fees schedule and allow TPHs to more readily and easily find all fees applicable to Cboe Option, thereby reducing potential confusion. Further, the Exchange is the only exchange of the Cboe options exchanges that currently maintains a separate fees schedule for its market data product fees. Accordingly, the Exchange believes the proposed changes remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, protect investors and the public interest.
The Exchange does not believe that the proposed rule change would result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange operates in a highly competitive environment, and its ability to price top-of-book data is constrained by competition among exchanges that offer similar data products to their customers. Top-of-book data is broadly disseminated by competing U.S. options exchanges and through OPRA. There are therefore a number of alternative products available to market participants and investors, including products offered by certain competing exchanges, as well as OPRA. Further, the Exchange's proposal to eliminate the waiver for the Cboe Options Depth data fee for External Distributors of Cboe Options Top does not modify the existing fee amounts, but simply eliminates a waiver to receive such data free of charge that the Exchange is not required to maintain. Other exchanges are free to adopt a similar waiver if they choose. In this competitive environment potential Distributors are free to choose which competing product to purchase to satisfy their respective needs for market information. Often, the choice comes down to price, as market data participants look to purchase cheaper data products, and quality, as market participants seek to purchase data that represents significant market liquidity.
The Exchange believes that the proposed fees do not put any market participants at a relative disadvantage compared to other market participants. As discussed, the proposed fees and eliminated waiver would apply to all similarly situated Distributors of Cboe Options Top on an equal and non-discriminatory basis. The Exchange believes the reduced fees for External Distributors and not Internal Distributors of Cboe Options Top is appropriate given External Distributors are subject to the proposed Non-Professional user fees to which Internal Distributors are not subject, in addition to the proposed Professional User fees. Additionally, Internal Distributors will continue to receive the benefit of a fee waiver for Cboe Options Depth, which is the more commonly used product for internal distribution amongst Professional Users. The Exchange believes the differentiated fees for Professional and Non-Professional Users of Cboe options Top is appropriate given Professional Users are categorized as such based on their employment and participation in financial markets, and thus, are compensated to participate in the markets. Non-Professional Users too can receive significant financial benefits through their participation in the markets, however the Exchange believes it is reasonable to charge more to those Users who are more directly engaged in the markets. The Exchange therefore believes that the proposed fee neither favors nor penalizes one or more categories of market participants in a
The Exchange believes that the proposed fees do not impose a burden on competition or on other SROs that is not necessary or appropriate in furtherance of the purposes of the Act. In particular, market participants are not forced to subscribe to Cboe Options Top Data, or any of the Exchange's data feeds, as described above. As noted, the quote and last sale data contained in the Exchange's Cboe Options Top feed is identical to the data sent to OPRA for redistribution to the public, including data relating to the Exchange's proprietary and exclusively listed products. Accordingly, Exchange top-of-book data is therefore widely available today from a number of different sources.
Because market data customers can find suitable substitute feeds, an exchange that overprices its market data products stands a high risk that users may substitute another product. These competitive pressures ensure that no one exchange's market data fees can impose an undue burden on competition, and the Exchange's proposed fees do not do so here.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Phlx's Pricing Schedule at Options 7, Section 4, “Multiply Listed Options Fees (Includes options overlying equities, ETFs, ETNs and indexes which are Multiply Listed) (Excludes SPY).”
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The
Phlx proposes to amend its Pricing Schedule at Options 7, Section 4, “Multiply Listed Options Fees (Includes options overlying equities, ETFs, ETNs and indexes which are Multiply Listed) (Excludes SPY).”
Recently, Phlx established a QCC Growth Tier Rebate within section B of Options 7, Section 4 to encourage Phlx members and member organizations to transact a greater number of QCC Orders on Phlx. In order to qualify for the QCC Growth Tier Rebate, a member's or member organization's total floor transaction,
Further, a member or member organization may alternatively achieve the QCC Growth Tier Rebate if a member's or member organization's Open Outcry Floor Transaction
Today, the Exchange pays the QCC Growth Tier Rebates per Phlx House Account. Specifically, the Exchange pays a $0.20 per contract QCC Growth Tier Rebate on a QCC Order comprised of a Customer or Professional order on one side and a Lead Market Maker, Market Maker, Broker-Dealer, or Firm order on the other side. Further, the Exchange pays a $0.26 per contract QCC Growth Tier Rebate on a QCC Order comprised of a Lead Market Maker, Market Maker, Broker-Dealer, or Firm order on one side and a Lead Market Maker, Market Maker, Broker-Dealer, or Firm order on the other side.
At this time, the Exchange proposes to continue to pay the QCC Growth Tier Rebate on all qualifying executed electronic QCC Orders, as defined in Options 3, Section 12, and Floor QCC Orders, as defined in Options 8, Section 30(e), except where the transaction is either: (i) Customer-to-Customer; (ii) Customer-to-Professional; (iii) Professional-to-Professional; or (iv) a dividend, merger, short stock interest, reversal and conversion, jelly roll, and box spread strategy executions (as defined in Options 7, Section 4).
The proposed exclusions are similar to the exclusions for payments on QCC Rebates in section A of Options 7, Section 4. Of note, currently, QCC Growth Tier Rebates are not paid on Customer-to-Customer, Customer-to-Professional, or Professional-to-Professional QCC Orders because the QCC Growth Tier Rebate specifies it is only paid on a QCC Order comprised of a Customer or Professional order on one side and a Lead Market Maker, Market Maker, Broker-Dealer, or Firm order on the other side, and a QCC Order comprised of a Lead Market Maker, Market Maker, Broker-Dealer, or Firm order on one side and a Lead Market Maker, Market Maker, Broker-Dealer, or Firm order on the other side. The Exchange is including these exclusions to the QCC Growth Tier Rebate to mirror the exclusions within QCC Rebates in section A.
Notwithstanding, the limitation on eligible orders to receive a QCC Growth Tier Rebate, the Exchange believes that the QCC Growth Tier Rebate will continue to encourage market participants to send QCC orders to Phlx for execution in an effort to earn higher QCC Rebates.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Commission and the courts have repeatedly expressed their preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, while adopting a series of steps to improve the current market model, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
Likewise, in
Further, “[n]o one disputes that competition for order flow is `fierce.' . . . As the SEC explained, `[i]n the U.S.
The Exchange's proposal to amend the QCC Growth Tier Rebate to pay the QCC Growth Tier on all qualifying executed electronic QCC Orders except where the transaction is either Customer-to-Customer; Customer-to-Professional; Professional-to-Professional; or a dividend, merger, short stock interest, reversal and conversion, jelly roll, and box spread strategy executions (as defined in Options 7, Section 4) is reasonable because despite the limitation on eligible orders to receive a QCC Growth Tier Rebate, the Exchange believes that this rebate will continue to provide incentives for members and member organizations to engage in substantial amounts of trading activity which would serve to bring additional open outcry liquidity to the trading floor and additional QCC Order Flow to Phlx. This incentive may also encourage members and member organizations to commence sending such order flow to Phlx for the opportunity to earn this rebate. The proposed exclusions are similar to the exclusions for payments on QCC Rebates in section A of Options 7, Section 4.
The Exchange's proposal to amend the QCC Growth Tier Rebate to pay the QCC Growth Tier on all qualifying executed electronic QCC Orders except where the transaction is either Customer-to-Customer; Customer-to-Professional; Professional-to-Professional; or a dividend, merger, short stock interest, reversal and conversion, jelly roll, and box spread strategy executions (as defined in Options 7, Section 4) is equitable and not unfairly discriminatory because any member or member organization may qualify for the QCC Growth Tier Rebate. Further, the Exchange will uniformly apply the proposed exceptions for eligible QCC Orders.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The proposal does not impose an undue burden on inter-market competition. The Exchange believes its proposal remains competitive with other options markets and will offer market participants with another choice of where to transact options. The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees to remain competitive with other exchanges. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited.
The proposed amendments do not impose an undue burden on intra-market competition. In terms of intra-market competition, the Exchange does not believe that its proposals will place any category of market participant at a competitive disadvantage. The Exchange believes that the proposed amendments to the QCC Rebate Growth Tier Rebates will continue to provide incentives for members and member organizations to engage in substantial amounts of trading activity which would serve to bring additional open outcry liquidity to the trading floor and additional QCC Order Flow to Phlx.
The Exchange's proposal to amend the QCC Growth Tier Rebate to pay the QCC Growth Rebates on all qualifying executed electronic QCC Orders except where the transaction is either Customer-to-Customer; Customer-to-Professional; Professional-to-Professional; or a dividend, merger, short stock interest, reversal and conversion, jelly roll, and box spread strategy executions (as defined in Options 7, Section 4) does not impose an undue burden on competition because any member or member organization may qualify for the QCC Growth Tier Rebate. Further, the Exchange will uniformly apply the proposed exceptions for eligible QCC Orders.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
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: (i) necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to File Number SR-Phlx-2023-08 and should be submitted on or before April 10, 2023.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
In the event that the time, date, or location of this meeting changes, an announcement of the change, along with the new time, date, and/or place of the meeting will be posted on the Commission's website at
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) and (10) and 17 CFR 200.402(a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and (a)(10), permit consideration of the scheduled matters at the closed meeting.
The subject matter of the closed meeting will consist of the following topics:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings;
Resolution of litigation claims; and
Other matters relating to examinations and enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting agenda items that may consist of adjudicatory, examination, litigation, or regulatory matters.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe EDGX Exchange, Inc. (the “Exchange” or “EDGX”) proposes to amend Exchange Rules 11.3(a)-(b), to: (1) define the term “Sponsored Access”; (2) provide that the Sponsored Participant rules of the Exchange apply only to the trading of equities; and (3) to codify that the agreement required by and between the Sponsoring Member and Sponsored Participant must include a provision that any Sponsored Access relationship must follow the requirements of SEC Rule 15c3-5, the Market Access Rule (“MAR”).
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this filing is to amend Exchange Rule 11.3(a)-(b) to: (1) define the term “Sponsored Access”; (2) provide that the Sponsored Participant rules of the Exchange apply only to the trading of equities; and (3) to codify that the agreement required by and between the Sponsoring Member and Sponsored Participant must include a provision that any Sponsored Access relationship must follow the requirements of the MAR.
Per current Exchange rules a “Sponsored Participant”
Additionally, the Exchange seeks to amend Rule 11.3(a) to provide that the application of the Exchange's Sponsored Participant rule applies only to Sponsored Members of the Exchange's equities market and does not apply to Options Members
The Exchange seeks to codify that the agreement currently required under Exchange Rule 11.3(b)(2), by and between the Sponsoring Member and Sponsored Participant, must include a provision that any Sponsored Access relationship must follow the requirements of the MAR. While Sponsoring Members have existing obligations under the MAR because they are providing market access to their Sponsored Participants, the Exchange believes the proposed amendment will help to reinforce such obligations. Sponsored Participants will now be required to contractually agree with their Sponsoring Members to follow the requirements of the MAR.
The Exchange believes that the proposed addition of 11.3(b)(2)(J) will reinforce to Sponsoring Members that Sponsored Access relationships must comply with the SEC's MAR, as well as Exchange rules regarding the provision of market access. As noted above, such relationships generally include where a broker-dealer allows its customer to use the broker-dealer's market participant identifier (“MPID”) or other mechanism or mnemonic to enter orders into the Exchange's System that bypass the Sponsoring Member's order handling system and are electronically routed directly to the Exchange by the Sponsored Participant, including through a service bureau or other third-party technology provider.
The Exchange notes further that the proposed addition of 11.3(b)(2)(J) is non-substantive in nature for Sponsoring Members because as broker-dealers providing market access, Sponsoring Members are already required to comply with the MAR, as well as with existing Exchange Rules regarding market access. Indeed, per the Exchange's current Sponsored Participant rules the Sponsoring
The proposed addition of Rule 11.3(b)(2)(J) is potentially substantive in nature to Sponsored Participants in that the proposed amendment adds a requirement to the agreement by and between the Sponsoring Member and Sponsored Participant, requiring the Sponsored Participant to contractually agree to follow the requirements of the MAR. Importantly, as part of their obligation to comply with Exchange Rules and procedures, existing Sponsoring Members will be expected to amend any existing contractual arrangements with their Sponsored Participants to include the new contractual provision proposed by the Exchange.
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
As noted above, the Exchange believes that defining Sponsored Access will provide Sponsoring Members with greater clarity as to which types of market access relationships
The proposed change will also help to reduce confusion by codifying a definition for such activity on the Exchange that is consistent with other industry practices currently in place elsewhere. The Exchange further notes that the proposed Sponsored Access definition is reasonable and does not affect investor protection because the proposed change does not present any novel or unique issues, as the proposed Sponsored Access definition has previously been adopted by Nasdaq.
Furthermore, the Exchange believes that limiting Exchange Rule 11.3(a)-(b)(1)-(3) to Sponsoring Members providing direct electronic access to Sponsored Participants of the Exchange's equities market will contribute to the protection of investors and the public interest by simplifying the Exchange's rules and making them easier for Members and Options Members to understand, thus bolstering their collective understanding of the Exchange's rules. Moreover, as noted above, the Exchange currently has no Options Members registered as Sponsoring Members and has yet to receive a request from Options Members to establish a Sponsored Access relationship. Accordingly, the Exchange does not believe that this proposed rule change will significantly alter Options Members' relationship with the Exchange or impose upon them any new obligations, and no longer wishes to have its Sponsored Access program apply to its options market.
As noted above, the proposed addition of 11.3(b)(2)(J) will reinforce to Sponsoring Members that Sponsored Access relationships must comply with the SEC's MAR, as well as Exchange Rules regarding the provision of market access. Also, by adding proposed paragraph 11.3(b)(2)(J), Sponsored Participants are now required to contractually agree that their Sponsored Access to the Exchange must follow the requirements of the MAR.
In this regard, the proposed amendment will help to ensure that by and between the Sponsoring Member and Sponsored Participant that all orders entered onto the Exchange pursuant to a Sponsored Access relationship will follow the requirements of the MAR. As discussed, the Exchange believes the proposed addition of 11.3(b)(2)(J) is non-substantive in nature for Sponsoring Members because as broker-dealers providing market access, Sponsoring Members are already required to comply with the MAR, as well as with existing Exchange Rules regarding market access. The proposed addition of Rule 11.3(b)(2)(J) is potentially substantive in nature to Sponsored Participants in that the proposed amendment adds a new requirement to the relationship by and between the Sponsoring Member and Sponsored Participant, requiring the Sponsored Participant to contractually agree to follow the requirements of the MAR.
Accordingly, the proposed rule change will help to promote just and equitable principles of trade, remove impediments to and perfect the mechanism of a free and open market and national market system, and, in general to protect investors and the public interest.
For the reasons noted below, the Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The proposed Sponsored Access definition does not impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed definition merely seeks to make clear to Sponsoring Members that Sponsored Access is a relationship subject to Exchange Rule 11.3(a)-(b)(1)-(3). Moreover, Sponsored Access is a voluntary arrangement that a Sponsoring Member voluntarily elects to enter with its Sponsoring Participant. A Member is not required to become a Sponsoring Member, and in fact, may decline to enter such a relationship with its customers.
Moreover, providing that Exchange Rule 11.3(a)-(b)(1)-(3) will only apply
Additionally, the Exchange does not believe that the proposed rule change will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. Notably, other exchanges have in place similar rules and documentation requirements applicable to sponsored participants and their sponsoring members.
The proposed rule change to explicitly cite the MAR in Rule 11.3(b)(2)(J) does not impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. As noted above, this change is non-substantive as Sponsoring Members are currently responsible for complying with the MAR with respect to their provision of Sponsored Access to Sponsored Participants. While the proposed addition of Rule 11.3(b)(2)(J) is potentially substantive in nature to Sponsored Participants because it requires a Sponsored Participant to contractually agree with its Sponsoring Member to follow the requirements of the MAR, the Exchange notes the proposed contractual requirement also exists in the Nasdaq rulebook
The Exchange 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, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
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 will 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.
Securities and Exchange Commission (“Commission” or “SEC”).
Notice.
Notice of an application under section 6(c) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 2(a)(32), 5(a)(1), 22(d) and 22(e) of the Act and rule 22c-1 under the Act and under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and 17(a)(2) of the Act.
Applicants request an order (“Order”) that permits: (a) the Funds (as described in the Reference Order (as defined below)) to issue shares (“Shares”) redeemable in large aggregations only (“creation units”); (b) secondary market transactions in Shares to occur at negotiated market prices rather than at net asset value; (c) certain Funds to pay redemption proceeds, under certain circumstances, more than seven days after the tender of Shares for redemption; and (d) certain affiliated persons of a Fund to deposit securities into, and receive securities from, the Fund in connection with the purchase and redemption of creation units. The relief in the Order would incorporate by reference terms and conditions of the same relief of a previous order granting the same relief sought by applicants, as that order may be amended from time to time (“Reference Order”).
The RBB Fund, Inc., The RBB Fund Trust, Quasar Distributors LLC, and F/m Investments LLC, DBA North Slope Capital LLC.
The application was filed on February 28, 2023.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing on any application by emailing the SEC's Secretary at
The Commission:
Trace W. Rakestraw, Senior Special Counsel, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
For Applicants' representations, legal analysis, and conditions, please refer to Applicants' application, dated February 28, 2023, which may be obtained via the Commission's website by searching for the file number at the top of this document, or for an Applicant using the Company name search field on the SEC's EDGAR system. The SEC's EDGAR system may be searched at
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe BZX Exchange, Inc. (the “Exchange” or “BZX Options”) proposes to amend its Fee Schedule. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its fees Fee Schedule to modify its market data fees for BZX Options Top.
The Exchange first proposes to reduce the rates for Professional and Non-Professional User fees for BZX Options Top. The Exchange currently charges Internal Distributors and External Distributors that redistribute any of the BZX Options Data Feeds different fees for their Professional Users
The Exchange next proposes to increase the current monthly Enterprise Fee. The Enterprise Fee permits a recipient firm (
The Exchange lastly proposes to add references to “Depth” in the description of the Distribution Fees and Enterprise Fee under the BZX Options Depth Feed table to clarify which data feed such fees currently applies to, thereby alleviating potential confusion. The Exchange also proposes to replace references to “Recipient firm” with “Distributors” to more accurately reflect the type of market participants the fees are applicable to, thereby alleviating potential confusion. Lastly, the Exchange proposes to modify the definition of Professional User under the definitions section of the Market Data Fees section to clarify that a Professional “User” is any natural person recipient of an Exchange Market Data product who is not a Non-Professional User. The proposed modification also aligns the definition with that of the definition used by the Exchange's affiliates Cboe Exchange, Inc. and Cboe C2 Exchange, Inc.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
The Exchange first notes that it operates in a highly competitive environment. Indeed, there are currently 16 registered options exchanges that trade options. Based on publicly available information, no single options exchange has more than 17% of the market share.
Moreover, the BZX Options Top is distributed and purchased on a voluntary basis, in that neither the Exchange nor market data distributors are required by any rule or regulation to make this data available. Accordingly, Distributors and Users can discontinue use at any time and for any reason, including due to an assessment of the reasonableness of fees charged. As described above, market participants have a wide variety of alternative market data products from which to choose, such as similar proprietary data products offered by other exchanges and consolidated data. Further, the Exchange is not required to make any proprietary data products available or to offer any specific pricing alternatives to any customers. Moreover, persons (including broker-dealers) who subscribe to any exchange proprietary data feed must also have equivalent access to consolidated Options Information
The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Particularly, in Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
The Exchange believes the proposed changes to reduce the rates of the current Professional and Non-Professional User fees are reasonable as Distributors will be subject to lower BZX Options Top User fees. Additionally, the User fees continue to be in line with and/or lower than User fees assessed by other exchanges for similar data.
The Exchange believes that the proposed fees are equitable and not unfairly discriminatory because they will be charged uniformly to recipient firms and Users. The Exchange also believes continuing to offer BZX Options Top Data to Non-Professional Users at a lower cost than Professional Users results in greater equity among data recipients, as Professional Users are categorized as such based on their employment and participation in financial markets, and thus, are compensated to participate in the markets. Although Non-Professional Users too can receive significant financial benefits through their participation in the markets, the Exchange believes it is reasonable to charge more to those Users who are more directly engaged in the markets.
The Exchange next notes it is not required to charge a single User fee to cover all its available data products, but none-the-less has not charged separate User Fees for both BZX Options Top and BZX Options Depth since BZX Options Top was adopted in March 2018.
The proposed increased Enterprise Fee for BZX Options Top Feed is equitable and reasonable as the proposed fee could still result in a fee reduction for Distributors with a large number of Professional and Non-Professional Users. If a Distributor has a smaller number of Professional Users of BZX Options Top, then it may continue using the per User structure and benefit from the proposed per BZX Options Top User Fee reductions. By reducing prices Distributors with a large number of Professional and Non-Professional Users, the Exchange believes that more firms may choose to receive and to distribute BZX Options Top Data, thereby expanding the distribution of this market data for the benefit of investors. The Exchange notes that currently no Distributors have purchased an Enterprise license. The Exchange believes however, that the proposed lower User fees for BZX Options Top may incentivize additional External Distributors to distribute BZX Options Top an enlist additional Users. As noted, as a Distributor's User base grows, it may make sense for a Distributor to purchase the alternative Enterprise license to cap its fees. In connection with this potential increase in Users, the Exchange believes it is therefore also reasonable to increase the Enterprise Fee. That said, as described above, the Enterprise Fee is entirely optional. A firm that does not have a sufficient number of Users to benefit from purchase of the license need not do so.
The Exchange further believes that the Enterprise Fee, even as amended, is reasonable because it simplifies reporting for certain recipients that have large numbers of Professional and Non-Professional Users. Firms that pay the proposed Enterprise Fee do have to report the number of Users on a monthly basis as they currently do, but rather only have to count authorized users every six months, which is a significant reduction in administrative burden.
The Exchange lastly believes the proposed non-substantive clarifying changes will alleviate potential confusion, thereby removing impediments to and perfecting the mechanism of a free and open market and a national market system, and, in general, protecting investors and the public interest.
The Exchange does not believe that the proposed rule change would result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange operates in a highly competitive environment, and its ability to price top-of-book data is constrained by competition among exchanges that offer similar data products to their customers. Top-of-book data is broadly disseminated by competing U.S. options exchanges and through OPRA. There are therefore a number of alternative products available to market participants and investors, including products offered by certain competing exchanges, as well as OPRA. In this competitive environment potential Distributors are free to choose which competing product to purchase to satisfy their need for market information. Often, the choice comes down to price, as market data customers look to purchase cheaper data products, and quality, as market participants seek to purchase data that represents significant market liquidity.
The Exchange believes that the proposed fees do not put any market participants at a relative disadvantage compared to other market participants. As discussed, the proposed fees would apply to all similarly situated Distributors of BZX Options Top on an equal and non-discriminatory basis. The Exchange believes the differentiated fees for Professional and Non-Professional Users of BZX Options Top is appropriate given Professional Users are categorized as such based on their employment and participation in financial markets, and thus, are compensated to participate in the markets. Non-Professional Users too can receive significant financial benefits through their participation in the markets, however the Exchange believes it is reasonable to charge more for those Users who are more directly engaged in the markets. The Exchange therefore believes that the proposed fee neither favors nor penalizes one or more categories of market participants in a manner that would impose an undue burden on competition.
The Exchange believes that the proposed fees do not impose a burden on competition or on other SROs that is not necessary or appropriate in furtherance of the purposes of the Act. In particular, market participants are not forced to subscribe to BZX Options Top, or any of the Exchange's data feeds, as described above. Also as described above, there are numerous substitute products offered by other national securities exchanges, as well as OPRA. Because market data customers can find suitable substitute feeds, an exchange that overprices its market data products stands a high risk that users may substitute another product. These competitive pressures ensure that no one exchange's market data fees can impose an undue burden on competition, and the Exchange's proposed fees do not do so here.
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
60-Day notice and request for comments.
The Small Business Administration (SBA) intends to request approval, from the Office of Management and Budget (OMB) for the collection of information described below. The Paperwork Reduction Act (PRA) of 1995 requires federal agencies to publish a notice in the
Submit comments on or before May 19, 2023.
Send all comments to Takeisha Hodge, Program Support Manager, Office of HUBZone Program, Small Business Administration, Washington, DC 20416.
Takeisha Hodge, Program Support Manage, Office of HUBZone Program, 202-255-7022,
This collection is essential to the Agency's mission because if SBA designates an area as a Governor-designated covered area, based on the information provided by the State Governor, additional small businesses may become eligible for certification as HUBZone small business concerns, which in turn will provide them with more contracting opportunities. These additional contracting opportunities create incentives for individuals to start small businesses and allow existing small businesses to grow. SBA has taken all practicable steps to consult with interested agencies and members of the public to minimize the burden of this information collection. SBA intends to make available on its Website a list of the areas within each State that meet the statutory definition of “covered area” according to the most recent Bureau of the Census data. This will minimize the burden on State governments by eliminating the need to gather this data and do the necessary analysis to determine which areas may meet the definition of “covered area.” Finally, pursuant to 5 CFR 1320.13(d), SBA also requests a waiver from the requirement to publish a 60-day notice in the
SBA is requesting comments on (a) Whether the collection of information is necessary for the agency to properly perform its functions; (b) whether the burden estimates are accurate; (c) whether there are ways to minimize the burden, including through the use of automated techniques or other forms of information technology; and (d) whether there are ways to enhance the quality, utility, and clarity of the information.
60-Day notice and request for comments.
The Small Business Administration (SBA) intends to request approval, from the Office of Management and Budget (OMB) for the collection of information described below. The Paperwork Reduction Act (PRA) of 1995 requires federal agencies to publish a notice in the
Submit comments on or before May 19, 2023.
Send all comments to Paul Kirwan, Financial Analyst, Office of Credit Risk Management, Small Business Administration, Washington, DC 20416.
Paul Kirwans, Office of Credit Risk Management, Office of Financial Assistance,
This information collection consists of SBA
SBA is requesting comments on (a) Whether the collection of information is necessary for the agency to properly perform its functions; (b) whether the burden estimates are accurate; (c) whether there are ways to minimize the burden, including through the use of automated techniques or other forms of information technology; and (d) whether there are ways to enhance the quality, utility, and clarity of the information.
Federal Aviation Administration (FAA), DOT.
Notice of request to release airport property.
The FAA proposes to rule and invite public comment on the release of land at the Dona Ana County International Jetport under the provisions of Section 23 of the Airport and Airway development Act of 1970.
Comments must be received April 19, 2023.
Comments on this application may be mailed or delivered to the FAA at the following address: Mr. Justin Barker, Manager, Federal Aviation Administration, Southwest Region, Airports Division, Louisiana/New Mexico Airports Development Office, ASW-640, Fort Worth, Texas, 76177.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Mr. William Provance, Airport Director, at the following address: 8014 Airport Road, Santa Teresa, New Mexico 88008.
Ms. Heidi Higginbotham, Program Manager, Federal Aviation Administration, Louisiana/New Mexico Airports Development Office, ASW-640, 10101 Hillwood Parkway, Fort Worth, Texas 76177, Telephone: (817) 222-5144, Email:
The Dona Ana County International Jetport under the provisions of Section 23 of the Airport and Airway development Act of 1970.
The following is a brief overview of the request:
The County of Dona Ana requests the release of 5.68 acres of land requested which consists of two parcels of vacant land with a combined land area. Parcel #1 contains 4.645-acres and is triangular with frontage along Airport Road. Parcel #2 contains 1.035-acres and is triangular, north of Airport Road in Santa Teresa, New Mexico. The land was acquired by Deed conveyed to the city from the United States of America Bureau of Land Management Section 23 of the Airport and Airway development Act of 1970. The land proposed for release will be swapped for 12.027 acres by Paseo Del Norte, LLC. The property to be released will ultimately be sold to Franklin Mountain for the development of a logistics park. The benefit to civil aviation has long-term impacts from the logistics park with plans to construct an air cargo handling facility.
Any person may inspect the request in person at the FAA office listed above under
In addition, any person may, upon request, inspect the application, notice and other documents relevant to the application in person at the Dona Ana County Legal/Risk Department, telephone number (575) 647-7200.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The
Written comments should be submitted by April 19, 2023.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Tanya Glines by email at:
Recording safety directive compliance and retaining these records is necessary to determine if unsafe conditions have been corrected on SLSA aircraft, which assists in ensuring that an SLSA aircraft is in a condition safe for flight prior to its operation within the national airspace.
Respondents include owners/operators of SLSA, aircraft mechanics, and LSA repairmen with a maintenance rating. The records of SLSA safety directive compliance are retained by the aircraft owner/operator, who must keep the records for the life of the SLSA aircraft and transfer them to the new owner at the time the aircraft is sold. The burden estimates are based on the current number of registered SLA and a projected future growth rate.
Federal Aviation Administration, DOT.
Notice of approval of the John F. Kennedy International Airport (JFK) noise compatibility program.
The Federal Aviation Administration (FAA) announces its findings for the noise compatibility program submitted by JFK. See
The effective date of the FAA's approval of the JFK noise compatibility program is March 14, 2023.
Andrew Brooks, Regional Environmental Program Manager, Airports Division, Federal Aviation Administration, 1 Aviation Plaza, Room 516, Jamaica, NY 11434. Phone Number: 718-553-2511.
This notice announces FAA's approval of the noise compatibility program (NCP) for JFK, effective on March 14, 2023. Per United States Code section 47504 (49 U.S.C. 47504) and Title 14, Code of Federal Regulations (CFR) part 150, an airport sponsor who previously submitted a noise exposure map (NEM) may submit to the FAA a noise compatibility program which sets forth the measures taken or proposed by the airport sponsor for the reduction of existing non-compatible land uses and prevention of additional non-compatible land uses within the area covered by the NEMs. As required by 49 U.S.C. 47504, such programs must be developed in consultation with interested and affected parties including local communities, government agencies, airport users, and the FAA. The FAA does not substitute its judgment for that of the airport sponsor with respect to which measures should be recommended for action. The FAA approval or disapproval of an airports recommendations in their noise compatibility program are made in accordance with the requirements and standards pursuant to 49 U.S.C. 47504 and 14 CFR part 150, which is limited to the following determinations:
a. The noise compatibility program was developed in accordance with the provisions and procedures of 14 CFR 150.23;
b. Program measures are reasonably consistent with achieving the goals of reducing existing non-compatible land uses around the airport and preventing the introduction of additional non-compatible land uses;
c. Program measures would not create an undue burden on interstate or foreign commerce, unjustly discriminate against types or classes of aeronautical uses, violate the terms of airport grant agreements, or intrude into areas preempted by the Federal Government; and
d. Program measures relating to the use of flight procedures can be implemented within the period covered by the program without derogating safety, adversely affecting the efficient use and management of the navigable airspace and air traffic control systems, or adversely affecting other powers and responsibilities of the Administrator prescribed by law.
Specific limitations of FAA's approval of NCPs are delineated in 14 CFR 150.5. Approval is not a determination concerning the acceptability of land uses under Federal, state, or local law. Approval does not by itself constitute an FAA implementing action. A request for Federal action or approval to implement specific noise compatibility measures may be required, and an FAA decision on the request may require an
JFK submitted the noise exposure maps, descriptions, and other documentation produced during the noise compatibility planning study to the FAA and the FAA determined that the NEMs for JFK were in compliance with applicable requirements under 14 CFR 150, effective May 19, 2017 (Noise Exposure Map Notice for John F. Kennedy International Airport, New York City, New York, 82 FR 24770-24771, May 30, 2017). The FAA formally received the NCP based on the accepted NEMs for JFK on September 7, 2022. The airport operator requested that the FAA review the submitted material and that the noise mitigation measures, to be implemented jointly by the airport and surrounding communities, be approved as an NCP. The formal review period, limited by law to a maximum of 180 days with the exception of noise abatement procedures, was initiated on September 16, 2022. Notice of the intent to review the NCP was published in the
The JFK proposed NCP is comprised of actions designed for phased implementation by airport management and adjacent jurisdictions within the next one to five years. It was requested that the FAA evaluate and approve this material as a noise compatibility program as described in 49 U.S.C. 47504. The FAA began its review of the program on September 16, 2022 and was required by a provision of 49 U.S.C. 47504 to approve or disapprove the program within 180 days, other than the use of new or modified flight procedures for noise control in accordance with 14 CFR part 150.35(a). Failure to approve or disapprove such program within the 180-day period shall be deemed an approval of such program.
The submitted program contained 22 proposed measures to minimize impacts of aviation noise on and off the airport. The FAA completed its review and determined that the procedural and substantive requirements of the 49 U.S.C. 47504 and 14 CFR part 150 were satisfied. A Record of Approval for the overall program was issued by the FAA effective March 14, 2023.
The specific program elements and their individual determinations are as follows:
These determinations are set forth in detail in the Record of Approval signed by the FAA Airports Eastern Division Director on March 14, 2023. The Record of Approval, as well as other evaluation materials and the documents comprising the submittal, are available for review at the FAA office listed above. The Record of Approval also will be available on the internet on the FAA's website at
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FMCSA announces its plan to submit the Information Collection Request (ICR) described below to the Office of Management and Budget (OMB) for its review and approval and invites public comment. FMCSA requests approval to renew the ICR titled “Unified Registration System, FMCSA Registration/Updates,” OMB Control No. 2126-0051. This ICR applies to new registrants seeking initial operating authority from FMCSA. New registrants seeking operating authority must use online Form MCSA-1, accessible via the Unified Registration System (URS).
Comments on this notice must be received on or before April 19, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Mr. Jeff Secrist, Office of Registration, Chief, Registration, Licensing, and Insurance Division, DOT, FMCSA, West Building 6th Floor, 1200 New Jersey Avenue SE, Washington, DC 20590-0001; 202-385-2367;
FMCSA registers for-hire motor carriers of regulated commodities and of passengers, under 49 U.S.C. 13902(a); surface freight forwarders, under 49 U.S.C. 13903; property brokers, under 49 U.S.C. 13904; and certain Mexico-domiciled motor carriers, under 49 U.S.C. 13902(c). These motor carriers may conduct transportation services in the United States only if they are registered with FMCSA. Each registration is effective from the date specified and remains in effect for such period as the Secretary of Transportation determines by regulations.
The final rule titled “Unified Registration System,” (78 FR 52608) dated August 23, 2013, implemented statutory provisions for an online registration system for entities that are subject to FMCSA's licensing, registration, and certification regulations. URS streamlines the registration process and serves as a clearinghouse and repository of information on motor carriers, brokers, freight forwarders, intermodal equipment providers, hazardous materials safety permit applicants, and cargo tank facilities required to register with FMCSA. When developing URS, FMCSA planned that the OP-1 series of forms (except for OP-1(MX)) would ultimately be folded into one overarching form (MCSA-1), which would be used by all motor carriers seeking authority.
FMCSA began a phased rollout of URS in 2015. The first phase, which became effective on December 12, 2015, impacts only first-time applicants seeking an FMCSA-issued registration. FMCSA had planned subsequent rollout phases for existing registrants; however, there have been substantial delays, and subsequent phases have not been rolled out to date.
On January 17, 2017, FMCSA issued a final rule titled “Unified Registration System; Suspension of Effectiveness,” which indefinitely suspended URS effectiveness dates for existing registrants only (82 FR 5292). Pursuant to this final rule, FMCSA is still accepting forms OP-1, OP-1(P), OP-1(FF), and OP-1(NNA) for existing registrants wishing to apply for additional authorities. Separately, FMCSA requires Form OP-1(MX) for Mexico-domiciled carriers that wish to operate beyond the U.S. municipalities on the U.S.-Mexico border and their commercial zones.
As described above, only first-time applicants seeking an FMCSA-issued registration must apply for authority via URS, using Form MCSA-1. Under URS, all forms described in the current ICR, except OP-1(MX), are folded into Form MCSA-1. Information collection activities associated with the OP-1 series of forms are covered under a different ICR, titled “Licensing Applications for Motor Carrier Operating Authority,” OMB Control No. 2126-0016.
Form MCSA-1 requests information to identify the applicant, the nature and scope of its proposed operations, safety-related details, and information regarding the drivers and vehicles it plans to use in U.S. operations. FMCSA and the States use registration information collected via Form MCSA-1 to track motor carriers, freight forwarders, brokers, and other entities they regulate. Registering motor carriers is essential to being able to identify carriers so that their safety performance can be tracked and evaluated. The data make it possible to link individual trucks to the responsible motor carrier, thus implementing the mandate under 49 U.S.C. 31136(a)(1); that is, ensuring that CMVs are maintained and operated safely. In general, registration information collected via Form MCSA-1 informs prioritization of the Agency's activities and aids in assessing and statistically analyzing the safety outcomes of those activities.
The current information collection supports the DOT Strategic Goal of Safety. It streamlines registration processes and ensures that FMCSA can more efficiently track motor carriers, freight forwarders, brokers, and other entities regulated by the Agency.
Issued under the authority of 49 CFR 1.87.
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FMCSA announces its plan to submit the Information Collection Request (ICR) described below to the Office of Management and Budget (OMB) for its review and approval and invites public comment. The FMCSA requests approval to renew an ICR titled, “Request for Revocation of Authority Granted.”
Comments on this notice must be received on or before May 19, 2023.
You may submit comments identified by Federal Docket Management System (FDMS) Docket Number FMCSA-2023-0079 using any of the following methods:
•
•
•
•
Jeff Secrist, Office of Registration and Safety Information, DOT, FMCSA, West Building 6th Floor, 1200 New Jersey Avenue SE, Washington, DC 20590-0001; 202-385-2367; email
Issued under the authority of 49 CFR 1.87.
Maritime Administration, DOT.
60-Day
The Maritime Administration (MARAD) invites public comments on our intention to request the Office of Management and Budget (OMB) approval to renew an information collection in accordance with the Paperwork Reduction Act of 1995. The proposed collection OMB 2133-0554 (Application and Reporting Elements for Participation in the Tanker Security Program) will be used to evaluate the eligibility of the applicant for participation in the Tanker Security Program (TSP). A minor change request to include a privacy act statement for the collection of personally identifiable information will be added to the form for this collection. The Paperwork Reduction Act of 1995 requires that we publish this notice in the
Comments must be submitted on or before May 19, 2023.
You may submit comments identified by Docket No. DOT-MARAD-2023-0055 through one of the following methods:
•
•
Comments are invited on: (a) whether the proposed collection of information is necessary for the Department's performance; (b) the accuracy of the estimated burden; (c) ways for the Department to enhance the quality, utility and clarity of the information collection; and (d) ways that the burden could be minimized without reducing the quality of the collected information. The agency will summarize and/or include your comments in the request for OMB's clearance of this information collection.
David Hatcher, (202) 366-0688, Office of Sealift Support, Maritime Administration, 1200 New Jersey Avenue SE, Washington, DC 20590, Email:
This information collection supports the Department of Transportation's strategic goal for National Security. A fuel tanker study required by the fiscal year 2020 National Defense Authorization Act (FY20 NDAA) examined the sufficiency of the U.S.-flagged tanker fleet to meet National Defense Strategy (NDS) requirements. The report's summary found there to be a substantial risk to the nation's defense associated with a heavy reliance on foreign-flagged tankers, particularly within a contested environment. The location, timing, and specific missions associated with some tanker requirements dictate the need for U.S.- flagged assets, for which there currently are insufficient numbers available. The report's gap analysis found a clear and critical need for a tanker security program to increase U.S.-flagged tanker capacity, to reduce the risk of reliance on foreign-flagged tankers for the most important fuel missions, and to ensure the Department of Defense (DoD) has sufficient tanker capabilities to meet NDS objectives.
In response to the FY20 NDAA Fuel Tanker Study, Congress directed in the FY21 NDAA, with minor adjustments in the FY22 NDAA, that the Secretary of Transportation, in consultation with the Secretary of Defense, establish a fleet of active, commercially viable, militarily useful, privately owned product tanker vessels to meet national defense and other security requirements and maintain a United States presence in international commercial shipping. The Maritime Administration worked with the DoD's United States Transportation Command to identify and shape TSP requirements and timelines.
By Order of the Acting Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to issue coastwise endorsement eligibility determinations for foreign-built vessels which will carry no more than twelve passengers for hire. A request for such a determination has been received by MARAD. By this notice, MARAD seeks comments from interested parties as to any effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. Information about the requestor's vessel, including a brief description of the proposed service, is listed below.
Submit comments on or before April 19, 2023.
You may submit comments identified by DOT Docket Number MARAD-2023-0059 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
James Mead, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-459, Washington, DC 20590. Telephone 202-366-5723, Email
As described in the application, the intended service of the vessel NUNYA is:
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit the information you claim to be confidential commercial information by email to
In the event MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to issue coastwise endorsement eligibility determinations for foreign-built vessels which will carry no more than twelve passengers for hire. A request for such a determination has been received by MARAD. By this notice, MARAD seeks comments from interested parties as to any effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. Information about the requestor's vessel, including a brief description of the proposed service, is listed below.
Submit comments on or before April 19, 2023.
You may submit comments identified by DOT Docket Number MARAD-2023-0056 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
James Mead, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-459, Washington, DC 20590. Telephone 202-366-5723, Email
As described in the application, the intended service of the vessel AURA is:
The complete application is available for review identified in the DOT docket as MARAD 2023-0056 at
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit the information you claim to be confidential commercial information by email to
In the event MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to issue coastwise endorsement eligibility determinations for foreign-built vessels which will carry no more than twelve passengers for hire. A request for such a determination has been received by MARAD. By this notice, MARAD seeks comments from interested parties as to any effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. Information about the requestor's vessel, including a brief description of the proposed service, is listed below.
Submit comments on or before April 19, 2023.
You may submit comments identified by DOT Docket Number MARAD-2023-0057 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
James Mead, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-459, Washington, DC 20590. Telephone 202-366-5723, Email
As described in the application, the intended service of the vessel UNDERDOG is:
The complete application is available for review identified in the DOT docket as MARAD 2023-0057 at
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit the information you claim to be confidential commercial information by email to
In the event MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to issue coastwise endorsement eligibility determinations for foreign-built vessels which will carry no more than twelve passengers for hire. A request for such a determination has been received by MARAD. By this notice, MARAD seeks comments from interested parties as to any effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. Information about the requestor's vessel, including a brief description of the proposed service, is listed below.
Submit comments on or before April 19, 2023.
You may submit comments identified by DOT Docket Number MARAD-2023-0065 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
James Mead, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-459, Washington, DC 20590. Telephone 202-366-5723, Email
As described in the application, the intended service of the vessel A LITTLE ROMANCE is:
The complete application is available for review identified in the DOT docket as MARAD 2023-0065 at
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit the information you claim to be confidential commercial information by email to
In the event MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to issue coastwise endorsement eligibility determinations for foreign-built vessels which will carry no more than twelve passengers for hire. A request for such a determination has been received by MARAD. By this notice, MARAD seeks comments from interested parties as to any effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. Information about the requestor's vessel, including a brief description of the proposed service, is listed below.
Submit comments on or before April 19, 2023.
You may submit comments identified by DOT Docket Number MARAD-2023-0064 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
James Mead, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-459, Washington, DC 20590. Telephone 202-366-5723, Email James.Mead
As described in the application, the intended service of the vessel GEM is:
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit the information you claim to be confidential commercial information by email to
In the event MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to issue coastwise endorsement eligibility determinations for foreign-built vessels which will carry no more than twelve passengers for hire. A request for such a determination has been received by MARAD. By this notice, MARAD seeks comments from interested parties as to any effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. Information about the requestor's vessel, including a brief description of the proposed service, is listed below.
Submit comments on or before April 19, 2023.
You may submit comments identified by DOT Docket Number MARAD-2023-0062 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
James Mead, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-459, Washington, DC 20590. Telephone 202-366-5723, Email
As described in the application, the intended service of the vessel CADENCE is:
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit the information you claim to be confidential commercial information by email to
In the event MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to issue coastwise endorsement eligibility determinations for foreign-built vessels which will carry no more than twelve passengers for hire. A request for such a determination has been received by MARAD. By this notice, MARAD seeks comments from interested parties as to any effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. Information about the requestor's vessel, including a brief description of the proposed service, is listed below.
Submit comments on or before April 19, 2023.
You may submit comments identified by DOT Docket Number MARAD-2023-0060 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
James Mead, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-459, Washington, DC 20590. Telephone 202-366-5723, Email
As described in the application, the intended service of the vessel ADAGIO is:
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit the information you claim to be confidential commercial information by email to
In the event MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to issue coastwise endorsement eligibility determinations for foreign-built vessels which will carry no more than twelve passengers for hire. A request for such a determination has been received by MARAD. By this notice, MARAD seeks comments from interested parties as to any effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. Information about the requestor's vessel, including a brief description of the proposed service, is listed below.
Submit comments on or before April 19, 2023.
You may submit comments identified by DOT Docket Number MARAD-2023-0063 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
James Mead, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-459, Washington, DC 20590. Telephone 202-366-5723, Email
As described in the application, the intended service of the vessel SERIOUSLY is:
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit the information you claim to be confidential commercial information by email to
In the event MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to issue coastwise endorsement eligibility determinations for foreign-built vessels which will carry no more than twelve passengers for hire. A request for such a determination has been received by MARAD. By this notice, MARAD seeks comments from interested parties as to any effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. Information about the requestor's vessel, including a brief description of the proposed service, is listed below.
Submit comments on or before April 19, 2023.
You may submit comments identified by DOT Docket Number MARAD-2023-0058 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
James Mead, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-459, Washington, DC 20590. Telephone 202-366-5723, Email
As described in the application, the intended service of the vessel SCORPION is:
The complete application is available for review identified in the DOT docket as MARAD 2023-0058 at
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit the information you claim to be confidential commercial information by email to
In the event MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to issue coastwise endorsement eligibility determinations for foreign-built vessels which will carry no more than twelve passengers for hire. A request for such a determination has been received by MARAD. By this notice, MARAD seeks comments from interested parties as to any effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. Information about the requestor's vessel, including a brief description of the proposed service, is listed below.
Submit comments on or before April 19, 2023.
You may submit comments identified by DOT Docket Number MARAD-2023-0061 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
James Mead, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-459, Washington, DC 20590. Telephone 202-366-5723, Email
As described in the application, the intended service of the vessel SEA JEWEL is:
The complete application is available for review identified in the DOT docket as MARAD 2023-0061 at
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit the information you claim to be confidential commercial information by email to
In the event MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit
By Order of the Maritime Administrator.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice and request for comments on a request for approval of a new information collection.
In compliance with the Paperwork Reduction Act of 1995 (PRA), this notice announces that the Information Collection Request (ICR) summarized below will be submitted to the Office of Management and Budget (OMB) for review and approval. The ICR describes the nature of the information collection and its expected burden. This is a new collection of information to conduct an experiment to gather both objective and subjective data regarding occupant/passenger seat preference in Automated Driving System-Dedicated Vehicles (ADS-DVs). A
Comments must be submitted on or before April 19, 2023.
Written comments and recommendations for the proposed information collection, including suggestions for reducing burden, should be submitted to the Office of Management and Budget at
For additional information or access to background documents, contact Debbie Sweet, Office of Vehicle Safety Research (NVS-010), (202) 366-7179, National Highway Traffic Safety Administration, W46-413, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590.
Under the PRA (44 U.S.C. 3501
49 U.S.C. 30181, 30182, and 30183 authorize the Secretary of Transportation (NHTSA by delegation) to conduct research, development, and testing programs, including activities related to new and emerging technologies that impact, or that may impact, motor vehicle safety. NHTSA proposes to collect information from the public regarding occupant/passenger seat preference in Automated Driving System-Dedicated Vehicles (ADS-DVs). Adults aged 18 and older will participate in an on-road study after giving informed consent. Participants will ride in one passenger vehicle and two ADS-DVs on a closed test track. Questionnaire data will be collected at the beginning and end of participation for each participant. Objective data will be collected via the data acquisition systems installed in each study vehicle. The data from each participant will be
There are four information collections for the study. The (1) Eligibility Questionnaire will be used to identify eligible participants for this study; results from this questionnaire will not be kept or analyzed. Candidates who are selected for the study will participate in a single test-track experiment and will complete two additional questionnaires while participating in the experiment. The (2) Demographic Questionnaire will be used for description of the participant sample (
The National Highway Traffic Safety Administration's (NHTSA's) mission is to save lives, prevent injuries, and reduce economic losses resulting from motor vehicle crashes. ADS technology is rapidly developing, and current Federal motor vehicle safety standards (FMVSS) and/or NHTSA guidance may need to be adapted to ensure this technology is deployed safely. Many of NHTSA's FMVSS focus on particular seating positions and thus, changes in seating preferences could impact those FMVSS. This study will provide NHTSA information about the seating preferences of occupants in vehicles that do not require a human driver in the left front seat. Several safety outcomes stem from occupant seating preference, which may change in the future as Automated Driving Systems (ADS) change seating configurations and the way people use vehicles. ADS-Dedicated Vehicles (ADS-DVs) are vehicles that lack manually operated driving controls, and therefore do not require a human driver or occupant to drive the vehicle or sit in the left front seat (the “driver's seat” in conventional vehicles). In conventional vehicles, there is the basic assumption that a human will always be in the left front seat while the vehicle is operating because a human driver would be necessary to operate those vehicles. ADS-DVs provide the opportunity for occupants to sit in any seat they choose in the vehicle. It is currently unknown where occupants may choose to sit when riding in an ADS-DV. Moreover, new seating configurations for occupants of ADS-DVs may necessitate changes to how and where information is presented to occupants about their responsibilities as occupants (
1. Describe the occupant distribution for ADS-DVs (
2. Use the prototype HMI to evaluate whether occupants would choose to initiate a ride in an ADS-DV without a seatbelt.
A
The eligibility questionnaire will have a maximum of 28 questions and NHTSA estimates it will take approximately 20 minutes to complete. Therefore, NHTSA estimates the total time associated with completing eligibility questionnaires to be 67 hours (200 responses × 20 minutes = 66.7 hours). Study Intake (reading study information sheet and obtaining participant consent, general study instruction) is expected to take 10 minutes to complete. Both the demographic and post-experiment questionnaires will have a maximum of 20 questions and NHTSA estimates that it will take each eligible participant 10 minutes to complete the demographic questionnaire and 10 minutes to complete the post-experiment questionnaire. Therefore, NHTSA estimates the total burden for Study Intake to be 17 hours (100 responses × 10 minutes = 16.67 hours), Demographic Questionnaire to be 17 hours (100 responses × 10 minutes = 16.67 hours), and the Post Experiment questionnaire to be 17 hours (100 responses × 10 minutes = 16.67 hours). Study participation (
The table below shows the estimated burden hours for this information collection, which accounts for the maximum number of expected responses and drop-outs.
Office of the Comptroller of the Currency (OCC), Treasury.
Notice of Federal advisory committee meeting.
The OCC announces a meeting of the Mutual Savings Association Advisory Committee (MSAAC).
A public meeting of the MSAAC will be held on Tuesday, April 4, 2023, beginning at 8:15 a.m. Eastern Daylight Time (EDT). The meeting will be in person and virtual.
The OCC will host the April 4, 2023 meeting of the MSAAC at the OCC's offices at 400 7th Street SW, Washington, DC 20219 and virtually.
Michael R. Brickman, Deputy Comptroller for Specialty Supervision, (202) 649-5420, Office of the Comptroller of the Currency, Washington, DC 20219. If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services. You also may access prior MSAAC meeting materials on the MSAAC page of the OCC's website.
Under the authority of the Federal Advisory Committee Act (the Act), 5 U.S.C. 1001
Members of the public may submit written statements to the MSAAC. The OCC must receive written statements no later than 5:00 p.m. EDT on Thursday, March 30, 2023. Members of the public may submit written statements to
Members of the public who plan to attend the meeting should contact the OCC by 5:00 p.m. EDT on Thursday, March 30, 2023, to inform the OCC of their desire to attend the meeting and whether they will attend in person or virtually, and to obtain information about participating in the meeting. Members of the public may contact the OCC via email at
Office of Foreign Assets Control, Treasury.
Notice.
The Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See Supplementary Information section for effective date(s).
OFAC: Andrea Gacki, Director, tel.: 202-622-2420; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490; Assistant Director for Licensing, tel.: 202-622-2480; or Assistant Director
The Specially Designated Nationals and Blocked Persons List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On March 15, 2023, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following persons are blocked under the relevant sanctions authorities listed below.
1. MEHMEDAGIC, Osman (a.k.a. “OSMICA”), Mis Irbina No. 18, Sarajevo 71000, Bosnia and Herzegovina; DOB 01 Nov 1962; POB Sarajevo, Bosnia and Herzegovina; nationality Bosnia and Herzegovina; Gender Male; National ID No. 0111962172659 (Bosnia and Herzegovina) (individual) [BALKANS-EO14033].
Designated pursuant to section 1(a)(v) of Executive Order 14033 of June 8, 2021, “Blocking Property and Suspending Entry into the United States of Certain Persons Contributing to the Destabilizing Situation in the Western Balkans” (E.O. 14033), 86 FR 31079 (June 10, 2021), 3 CFR 2021 Comp., p. 591, for being responsible for or complicit in, or to have directly or indirectly engaged in, corruption related to the Western Balkans, including corruption by, on behalf of, or otherwise related to a government in the Western Balkans, or a current or former government official at any level of government in the Western Balkans, such as the misappropriation of public assets, expropriation of private assets for personal gain or political purposes, or bribery.
2. STANKOVIC, Dragan, Bosnia and Herzegovina; DOB 21 Jul 1984; POB Banja Luka, Bosnia and Herzegovina; nationality Bosnia and Herzegovina; citizen Bosnia and Herzegovina; Gender Male (individual) [BALKANS-EO14033].
Designated pursuant to section 1(a)(iii) of E.O. 14033 for being responsible or complicit in, or to have directly or indirectly engaged in, a violation of, or an act that has obstructed or threatened the implementation of, any regional security, peace, cooperation, or mutual recognition agreement or framework or accountability mechanism related to the Western Balkans, including the Prespa Agreement of 2018; the Ohrid Framework Agreement of 2001; United Nations Security Council Resolution 1244; the Dayton Accords; or the Conclusions of the Peace Implementation Conference Council held in London in December 1995, including the decisions or conclusions of the High Representative, the Peace Implementation Council, or its Steering Board; or the International Criminal Tribunal for the former Yugoslavia, or, with respect to the former Yugoslavia, the International Residual Mechanism for Criminal Tribunals.
3. GACANIN, Edin (a.k.a. “Tito”), Bosnia and Herzegovina; Dubai, United Arab Emirates; Netherlands; DOB 12 Oct 1982; POB Bosnia and Herzegovina; nationality Bosnia and Herzegovina; alt. nationality Netherlands; Gender Male (individual) [ILLICIT-DRUGS-EO14059].
Designated pursuant to section 1(a)(i) of Executive Order 14059 of December 15, 2021, “Imposing Sanctions on Foreign Persons Involved in the Global Illicit Drug Trade,” 86 FR 71549 (December 17, 2021), 3 CFR 2021 Comp., p. 715, for having engaged in, or attempted to engage in, activities or transactions that have materially contributed to, or pose a significant risk of materially contributing to, the international proliferation of illicit drugs or their means of production.
The UCR Finance Subcommittee Chair will welcome attendees, call the meeting to order, call roll for the Subcommittee, confirm whether a quorum is present, and facilitate self-introductions.
The UCR Executive Director will verify the publication of the meeting notice on the UCR website and distribution to the UCR contact list via email followed by the subsequent publication of the notice in the
The agenda will be reviewed, and the Subcommittee will consider adoption of the agenda.
➢Subcommittee action only to be taken in designated areas on agenda.
Draft minutes from the November 15, 2022 Subcommittee meeting at the Westin New Orleans will be reviewed. The Subcommittee will consider action to approve.
The UCR Finance Subcommittee Chair and UCR Depository Manager will lead a discussion on which reserve funds should receive allocations of unspent 2022 administrative funds and interest earned on those funds. The Subcommittee may take action to recommend to the Board allocations of unspent 2022 administrative funds and interest earned on those funds to reserve funds.
The UCR Finance Subcommittee Chair will lead a discussion on the implementation of the UCR Investment Policy. The Subcommittee may make changes consistent with the UCR Investment Policy or if required by the Investment Policy to recommend changes to the Board.
The UCR Finance Subcommittee Chair will lead a discussion regarding possible amendments to the Financial Reserve Fund Policy and the Unbudgeted Expense Reserve Policy. The Subcommittee may take action to recommend to the Board possible amendments to the Financial Reserve Fund and Unbudgeted Expense Reserve Policies.
The UCR Depository Manager will review the revenues received from the 2022 and 2023 plan year fees.
The UCR Finance Subcommittee Chair and UCR Executive Director will provide an update on the current status of the 2024 UCR fee recommendations made to FMCSA.
The UCR Finance Subcommittee Chair and UCR Depository Manager will provide an update on the preliminary analysis of the 2025 fee recommendations.
The UCR Finance Subcommittee Chair and UCR Depository Manager will provide an update on UCR finances and related topics, to include current market rates on deposits, CDs, and Treasuries.
The UCR Finance Subcommittee Chair will call for any other items Subcommittee members would like to discuss.
The UCR Finance Subcommittee Chair will adjourn the meeting.
The agenda will be available no later than 5:00 p.m. Eastern time, March 15, 2023 at:
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), 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) or 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 May 19, 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), 810 Vermont Ave. NW, Washington, DC 20420, (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.
By direction of the Secretary.
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. 10, that the Special Medical Advisory Group (the Committee) will meet on Thursday, April 20, 2023, from 9 a.m. to 3:30 p.m. Eastern Standard Time (EST), at the Board of Veterans Appeals, 425 I St. NW (Conference Room 4E.400) in Washington, DC 20001. Members of the Committee may join in person or virtually. The public may attend virtual and in person. Limited public stakeholder seating will be made available due to on-going safety/health protocols in place in the meeting location.
The meeting is open to the public, except when the Committee is discussing Electronic Health Record Modernization (EHRM) updates between 9:30 a.m. ET-11:30 p.m. EST. The EHRM updates discussion is closed in accordance with 5 U.S.C. 552(c)(2)(4). Any related presentation material will not be available to the public.
The purpose of the Committee is to advise the Secretary of Veterans Affairs and the Under Secretary for Health on the care and treatment of Veterans, and other matters pertinent to the Veterans Health Administration.
On April 20, 2023, in addition to EHRM updates, the agenda for the meeting will include discussions on clinical practice management optimization best practices, partnering with the community to enroll Veterans in care in support of the PACT Act and
The meeting can be joined by phone at 404-397-1596 (Access code: 27601528045) and via Webex at:
Members of the public may submit written statements for review by the Committee to: Department of Veterans Affairs, Special Medical Advisory Group—Office of Under Secretary for Health (10), Veterans Health Administration, 810 Vermont Ave. NW, Washington, DC 20420 or by email at
Any member of the public wishing to attend the meeting or seeking additional information should email
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. 10, that the Advisory Committee on Prosthetics and Special-Disabilities is having a meeting and site visit to be held on April 18-19, 2023. The meeting sessions will begin and end as follows:
The meeting will be a hybrid meeting, held in-person at the Spinal Cord Injury (SCI) Building. Middle Dining Room, James A. Haley Veterans Hospital, 13000 Bruce B. Downs Boulevard, Tampa, Florida; and virtually via WebEx conferencing. A limited number of public stakeholder seats will be made available due to ongoing health and safety protocols that are enforced at the James A. Haley Veterans Hospital VA Tampa Healthcare System; the public also may attend the meeting virtually via WebEx conferencing.
The purpose of the Committee is to advise the Secretary of Veterans Affairs on VA's prosthetics programs designed to provide state-of-the-art prosthetics and the associated rehabilitation research, development, and evaluation of such technology. The Committee also provides advice to the Secretary on special-disabilities programs, which are defined as any program administered by the Secretary to serve Veterans with spinal cord injuries, blindness or visual impairments, loss of extremities or loss of function, deafness or hearing impairment, and other serious incapacities in terms of daily life functions.
On April 18, 2023, the Committee will convene in open (hybrid) sessions, from 8:30 a.m.-10 a.m. EST, with introductory remarks and a presentation from the Advisory Committee Management Office. The Committee will convene closed sessions from 10 a.m.-3 p.m. EST as the Committee members tour the Tampa Polytrauma Rehabilitation Center; Spinal Cord Injury Center; Amputation Specialty Clinic and Prosthetic Fabrication Lab. Beginning at 3 p.m. EST, the meeting session will reconvene an open (hybrid) session; and the day will conclude with presentations from VA's National Occupational Therapy Program; National Physical Therapy Program; and National Spinal Cord Injury System of Care Program.
On April 19, 2023, the Committee will convene in open sessions at the Spinal Cord Injury (SCI) Building, Middle Dining Room, James A. Haley Veterans Hospital with presentations on VA's National Physical Medicine and Rehabilitation; Polytrauma System of Care; Amputation System of Care; Chiropractic System of Care; and VA's Orthotic and Pedorthic Clinical Services Programs.
The Committee will be in open session for an abbreviated time; therefore, no time will be allocated for receiving oral presentations from the public. Members of the public may submit written statements for review by the Committee in advance of the meeting. Public comments may be received no later than April 11, 2023, for inclusion in the official meeting record. Please send these comments to Dr. Lauren Racoosin, Designated Federal Officer, Rehabilitation and Prosthetic Services, Veterans Health Administration, at
Due to ongoing health and safety protocols, there will be limited seating at this facility. Only those members of the public (first 10 public stakeholders) who confirm their attendance will be allowed to attend in-person.
To join by phone 14043971596/Access code: 2764 861 8609.
Recordings and transcript of the meeting will be posted on the Advisory Committee on Prosthetics and Special-Disabilities Programs website:
Environmental Protection Agency (EPA).
Final rule.
This action finalizes editorial and technical revisions to the Environmental Protection Agency's (EPA's) Method 23 (Determination of Polychlorinated Dibenzo-
This final rule is effective on March 20, 2023. The incorporation by reference (IBR) of certain publications listed in the rule is approved by the Director of the Federal Register as of March 20, 2023.
The U.S. Environmental Protection Agency (EPA) has established a docket for this action under Docket ID No. EPA-HQ-OAR-2016-0677. All documents in the docket are listed on the
For further questions about this final action, contact Dr. Raymond Merrill, Office of Air Quality Planning and Standards (OAQPS), Air Quality Assessment Division (AQAD), Environmental Protection Agency, Research Triangle Park, NC 27711; mail drop E143-02; telephone number: (919) 541-5225; fax number: (919) 541-0516; email address:
The final amendments to Method 23 apply to stationary sources that are subject to certain provisions of 40 CFR parts 60, 62, 63, 79, and 266. The source categories and entities potentially affected are listed in Table 1 of this preamble. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. This table lists the types of entities that EPA is now aware could potentially be affected by this action. Other types of entities not listed in the table could also be affected.
If you have any questions regarding the applicability of the final changes to Method 23, contact the person listed in the preceding
The docket number for this action is Docket ID No. EPA-HQ-OAR-2016-0677. In addition to being available in the docket, an electronic copy of the final method revisions is available on the Technology Transfer Network (TTN) website at
Under Clean Air Act (CAA) section 307(b)(1), judicial review of this final rule is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by May 19, 2023. Moreover, under section 307(b)(2) of the CAA, the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce these requirements. Section 307(d)(7)(B) of the CAA further provides that “[o]nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review.” This section also provides a mechanism for the EPA to convene a proceeding for reconsideration, “[i]f the person raising an objection can demonstrate to the EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment, (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, WJC South Building, 1200 Pennsylvania Ave. NW, Washington, DC 20460, with a copy to both the person listed in the preceding
The EPA's Method 23 (Determination of Polychlorinated Dibenzo-
The EPA promulgated Method 23 (Appendix A of 40 Code of Federal Regulations (CFR) Part 60, Test Methods) on February 13, 1991 (56 FR 5758). Since promulgation, the ability to measure PCDD and PCDF has evolved as analytical laboratories, EPA, and state entities have developed new standard operating procedures and methods to reflect improvements in sampling and analytical techniques. Examples of newer PCDD/PCDF methods include:
• Office of Land and Emergency Management (OLEM) Solid Waste (SW) SW-846 EPA Method 8290A, Polychlorinated Dibenzo-
• Office of Water (OW) EPA Method 1613, Tetra- through Octa-Chlorinated Dioxins and Furans by Isotope Dilution HRGC/HRMS.
• California Environmental Protection Agency Air Resources Board (CARB) Method 428, Determination of Polychlorinated Dibenzo-
Beginning in 2016, the EPA held a series of informal discussions with stakeholders to identify technical issues related to the sampling and analysis of PCDD and PCDF and potential revisions to Method 23. The stakeholders consisted of a cross section of interested parties including representatives from state regulatory entities, various EPA offices, analytical laboratories, regulated sources, emission testing firms, analytical standards vendors, instrument vendors, and others with experience in sampling and analysis of PCDD and PCDF and with the equipment, materials, and performance of Method 23 and other PCDD/PCDF methods. In the discussions, EPA also sought stakeholder input regarding their experience combining procedures for sampling and analysis of PCDD and PCDF with procedures for sampling and analysis of PAH and PCB emitted from
The EPA is incorporating by reference American Society for Testing and Materials (ASTM) D6911-15 and ASTM D4840-99(2018)e1 in Method 23. ASTM D6911-15 includes a guide for packaging and shipping environmental samples for laboratory analysis and ASTM D4840-99(2018)e1 includes a standard guide for sample chain-of-custody procedures. These standards were developed and adopted by ASTM International and may be obtained from
In this action, we are finalizing technical revisions and editorial changes to clarify and update the requirements and procedures specified in Method 23 and reformatting the method to conform with the current EPA method format (see
Our intent for the final revisions is to ensure that Method 23 is implemented consistently. EPA has updated the method procedures to include many current best practices. We have added flexibility to the method based on meeting quality control requirements.
The primary focus of the final revisions to Method 23 is to change the method from a prescriptive method to a method which allows users to have flexibility in implementing the method (
The EPA's second focus for the final revisions is to modify the method to allow isotope dilution with isotopically labeled compounds for each target compound. Quantitation is based on isotope dilution, moving from nine to 17 labeled compounds for 17 target toxic 2,3,7,8-substituted PCDD/PCDF. These revisions to the method are possible because additional isotopically labeled standards for the target compounds have become available from vendors since the original promulgation of Method 23. The final revisions eliminate biases with recovery correction based on individual corresponding labeled compounds.
The third major focus for the EPA's final revisions to Method 23 is to include options for combining sampling and analysis of PCDD/PCDF with sampling and analysis of PAH and PCB to allow the measurement of these toxic semivolatile organic compounds (SVOC). Therefore, PCB and PAH were added to the list of target compounds measured by Method 23.
The EPA's final amendments to Method 23 in response to public comments are presented below for each section of Method 23. The proposed revisions to sections of Method 23 that EPA is not changing based on public comments are finalized as proposed. A summary of public comments and our responses are provided in a separate response to comments document in the docket for this action.
In this action, EPA is renaming Section 1.0 from “Applicability and Principle” to “Scope and Application,” and revising the text to expand the target compounds for Method 23 to include PCB and PAH. We are also adding statements that emphasize the need for working knowledge of the EPA Methods 1 through 5 of Appendices A-1, A-2, and A-3 to 40 CFR part 60, isotope dilution, and the use of high-resolution gas chromatography/high resolution mass spectrometry (HRGC/HRMS) when applying Method 23. We are also adding language to specify that Method 23 is performance-based and allows users to modify parts of the method to overcome interferences or to substitute alternative materials and equipment provided that all performance criteria in the method are met.
The EPA is renaming Section 2.0 from “Apparatus” to “Summary of Method,” and revising Section 2.0 to provide an overview of the method's sampling and analytical procedures. We are also moving the current language in Section 2.0, which describes the materials needed to conduct Method 23, to a new Section 6.0 (Equipment and Supplies).
The current version of Method 23 does not include definitions of key terms and variables used in Method 23. In this action, we are adding a new Section 3.0 titled “Definitions.” We are defining acronyms and technical terms to improve the clarity of the method principles and procedures. We are also moving language from the current Section 3.0 to a new Section 7.0 (Reagents, Media, and Standards).
The current version of Method 23 does not discuss the conditions that can potentially interfere with measurements obtained using the method. In this action, we are adding a new Section 4.0 titled “Interferences,” that presents the potential causes and recommendations for avoiding or mitigating interferences or sample contamination. We are stating that enhanced selectivity, or confidence in the data, is based on the fractionation, GC separation, HRMS sensitivity, and monitoring for polychlorinated diphenyl ether (PCDPE) interferences. We are also moving language from the current Section 4.0 to a new Section 8.0 (Sample Collection, Preservation, and Storage).
Currently, Method 23 does not provide procedures for safety. In this action, we are adding a new Section 5.0 titled “Safety,” that presents the health hazards and procedures for minimizing risks to field and laboratory personnel when conducting Method 23. We are also moving language from the current Section 5.0 to a new Section 11.0 (Analysis Procedure).
In this action, we are renumbering and moving the current language in Section 2.0 (Apparatus) to a new
In Section 6, we are also finalizing changes to:
• Prohibit the use of brominated flame-retardant coated tape in assembling the sampling train and use of silicon tubing in direct contact with flue gases to avoid sample contamination.
• Revise the specification for a rotary evaporator with a note to use a Kuderna-Danish concentrator for PCB and PAH to avoid the loss of higher vapor pressure target compounds.
• Remove specifications for the graduated cylinder to improve the accuracy of moisture measurements and make Method 23 more consistent with other isokinetic sampling methods.
• Remove the volume requirement for wash bottles to allow greater flexibility in field sample recovery.
We are also moving language from Method 23's current Section 6.0 to new Section 10.0 (Calibration and Standardization).
In this action, the EPA is renumbering and moving the current language in Section 3.0 (Reagents) to a new Section 7.0 titled “Reagents, Media, and Standards,” and making clarifying edits and technical revisions to the specifications. Table 4 of this preamble identifies the new numbering for the subsections currently in Section 3.0 and Table 5 of this preamble identifies new specifications (and the associated subsection) we are including in Section 7.0.
We are replacing the filter precleaning procedures of the current method with specifications for conducting a filter quality control check. We are also deleting unnecessary specifications (presented in Table 6 of this preamble) to reflect modern methods. We are renaming the isotopic spiking standard mixtures to better relate the standards to their use in the final method. We are ensuring that the isotopically labeled spiking standards are named consistently throughout the final method.
We are also moving the current Section 7.0 to a new Section 9.0 (Quality Control).
In this action, the EPA is renumbering and moving the current language in Section 4.0 (Procedure) to a new Section 8.0 titled “Sample Collection, Preservation, and Storage,” and making clarifying edits and technical revisions to the current procedures for sampling and field sample recovery. The new Section 8.0 also includes added requirements for sample storage conditions and holding times.
Under the sampling procedures of Method 23, we are finalizing revisions to the current requirements in Section 4.1.1 for pretest preparations. Table 7 of this preamble identifies the new numbering to revise and replace the requirements in Section 4.1.
Table 8 of this preamble shows the specifications we are adding to the new Section 8.0. This action finalizes a minimum sample volume and sampling time requirements at each traverse point for continuous industrial processes that align Method 23 with other isokinetic stationary source methods, such as Method 5. The sampling time at each traverse point for batch industrial processes ensure measurements are made for the entire process cycle. The final filter check requirements add details that were absent from the original Method 23 and align the method with the requirements of other isokinetic stationary source methods, such as Methods 5, 26A, and 29, also in Appendix A of this Part. The final adsorbent module orientation requirements clarify the configuration of the adsorbent module to ensure that condensed moisture flows through the module into the water collection impinger. We are adding sampling filter temperature monitoring requirements to align Method 23 with other isokinetic stationary source methods. Also, we are adding adsorbent module temperature monitoring to confirm that the sorbent material was not exposed to elevated temperatures that could bias sample collection and results.
Under sample recovery procedures, we are finalizing technical revisions as shown in Table 9 of this preamble. In this action, we are also adding specifications as shown in Table 10 of this preamble.
In the new Section 8.2.6, acetone and toluene rinses are collected in one bottle rather than separately. New Section 8.2.8 measures moisture by weight rather than by volume.
In this action, the EPA is moving and renumbering the current Section 7.0 (Quality Control) to a new Section 9.0 titled “Quality Control,” and making clarifying and technical revisions to the new Section 9.0. We are adding an introductory note that addresses maintaining, and documenting quality control compliance required in Method 23. We are adding a new subsection that clarifies the recordkeeping and reporting necessary to demonstrate compliance with quality control requirements of this method. We are also adding specifications for conducting pre-sampling, pre-extraction, and pre-analysis standard recoveries of isotopically-labeled standards and adding specifications for:
• Initial demonstration of capability (IDC).
• Quality Control Sample (QCS).
• Method detection limits (MDL).
• Laboratory method blank (LMB).
• Estimated detection limits (EDL).
• Field train proof blank.
It should be noted that the EDLs as proposed remain in the method and are sample specific. It should also be noted that the second source QCS also serves as an initial calibration verification. We are also moving language from the current Section 9.0 to new Section 12.0 (Data Analysis and Calculations).
In this action, the EPA is renumbering and moving the text in Section 6.0 (Calibration) of the current method to a new Section 10.0 titled “Calibration and Standardization,” and making clarifying and technical revisions to the specifications for calibrating the sampling and the HRGC/HRMS systems. We are adding specifications for tuning the HRMS system, moving the specification for HRMS resolution (currently in Section 5) to this new section, and adding text on the procedures for assessing the relative standard deviation for the mean instrument response factors to bring Method 23 up to date with current laboratory practice. We are also
In this action, the EPA is renumbering and moving the text in Section 5.0 (Analysis) of the current method to a new Section 11.0 titled “Analysis Procedure,” and making clarifying and technical revisions to the current specifications for sample extraction and sample cleanup and fractionation. We are also adding a new subsection describing how sample extract aliquots are prepared for cleanup and analysis.
We are also adding the specifications and recommendations for analysis procedures shown in Table 11 of this preamble.
In this action, the EPA is renumbering and moving the current language in Section 9.0 (Calculations) to a new Section 12.0 titled “Data Analysis and Calculations,” and revising the equation variable list. We are revising the equations shown in Table 12 of this preamble.
This section specifies that the CCV RRFs are used to quantify the target compounds rather than the initial calibration RRFs. We are also removing and replacing the current equations in Method 23 with the equations shown in Table 13 of this preamble to accommodate the final changes to the method procedures.
In this action, the EPA is adding a new Section 13.0 titled “Method Performance,” that includes the specifications shown in Table 14 of this preamble. The new Section 13 provides the basis for assessing accuracy with LMBs, increases labeled standards, and establishes performance criteria to monitor method performance.
In this action, the EPA is adding a new Section 14.0 titled “Pollution Prevention,” that specifies the procedures for minimizing or preventing pollution associated with preparing and using Method 23 standards.
In this action, the EPA is adding a new Section 15.0 titled “Waste Management,” that specifies the laboratory responsibilities for managing the waste streams associated with collecting and analyzing Method 23 samples.
In this action, the EPA is renumbering and moving the current language in Section 10.0 (Bibliography) to a new Section 16.0 titled “Bibliography.” We are deleting previous reference number 3 which is no longer relevant and adding new citations for the following references:
In this action, the EPA is adding a new Section 17 titled “Tables, Diagrams, Flow Charts, and Validation Data,” that contains all tables, diagrams, flow charts, and validation data referenced in Method 23. We are revising Figures 23-1 and 23-2 and renaming and/or renumbering the current Method 23 tables as shown in Table 15 of this preamble.
We are also adding Figure 23-3 (Soxhlet/Dean-Stark Extractor) and Figure 23-4 (Sample Preparation Flow Chart) and adding the tables listed in Table 16 of this preamble.
In 40 CFR 60.17(h), we are incorporating by reference ASTM D4840-99(2018)e1, Standard Guide for Sample Chain-of-Custody Procedures, and amending the reference to ASTM D6911-15, Guide for Packaging and Shipping Environmental Samples for Laboratory Analysis, to include for use in Method 23.
In 40 CFR part 60, subpart CCCC, we are revising 40 CFR 60.2125(g)(2) and (j)(2) to realign the requirement for quantifying isomers to the reorganized Section 11.4.2.4 in the revisions of Method 23.
In 40 CFR part 60, subpart DDDD, we are revising 40 CFR 60.2690(g)(2) and (j)(2) to realign the requirement for identifying isomers to the reorganized Section 11.4.2.4 in the revisions of Method 23.
In 40 CFR 63.849(a)(13) and (a)(14), we are replacing CARB Method 428 with EPA Method 23 for the measurement of PCB emissions from roof monitors not employing wet roof scrubbers.
In 40 CFR 63.1208(b)(1), we are removing the requirement for administrator's approval to use Method 23 for measuring PCDD/PCDF emissions from hazardous waste combustors.
In 40 CFR 63.1625(b)(10), we are replacing CARB Method 429 with EPA Method 23 for measuring the emissions of PAH from ferromanganese electric arc furnaces.
In Table 3 to Subpart AAAAAAA, we are replacing the requirement for analysis of PAH by SW-846 Method 8270 with a requirement to use EPA Method 23. Specifically, we are deleting “with analysis by SW-846 Method 8270D” in row 6 of Table 3 to Subpart AAAAAAA. Because revisions to Method 23 eliminate the use of methylene chloride in field sampling activities, we are also removing footnote “b” in Table 3 to Subpart AAAAAAA.
In 40 CFR 266.104, we are adding EPA Method 23 as an alternative to SW-846 Method 0023A. We proposed to make this change to 40 CFR 266.104. In addition to this specific change, we are making a conforming change in 40 CFR part 266 Appendix IX. EPA considers this conforming change a logical outgrowth of the proposed revisions to Method 23.
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose an information collection burden under the PRA. The revisions being promulgated in this action to Method 23 do not add information collection requirements, but make corrections, clarifications, and updates to existing testing methodology.
I certify that this action does not have a significant economic impact on a substantial number of small entities under the RFA. This action does not impose any requirements on small entities. The final revisions to Method 23 do not impose any requirements on regulated entities. Rather, the final changes improve the quality of the results when required by other rules to use Method 23. Revisions to Method 23 allow contemporary advances in analysis techniques to be used. Further, the final changes in Method 23 analysis procedures reduce the impact of this method by bringing it into alignment with other agency methods.
This action does not contain any unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538. The action imposes no enforceable duty on any State, local or tribal governments or the private sector.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on the Indian Tribal Governments, on the relationship between the national government and the Indian Tribal Governments, or on the distribution of power and responsibilities among Indian Tribal Governments and the various levels of government. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in Section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not establish or revise a standard that provides protection to children against environmental health and safety risks.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This action involves technical standards. The EPA will use ASTM D6911-15 (Guide for Packaging and Shipping Environmental Samples for Laboratory Analysis) and ASTM D4840-99(2018)e1 (Standard Guide for Sample Chain-of-Custody Procedures). These ASTM standards cover best practices that guide sample shipping and tracking from collection through analysis.
These standards were developed and adopted by ASTM International. The standard may be obtained from
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 low-income populations.
The EPA believes that this type of action does not concern human health or environmental conditions and, therefore, cannot be evaluated with respect to potentially disproportionate and adverse effects on people of color, low-income populations and/or Indigenous peoples. This action updates Method 23, which will improve the quality of the results when required by other rules to use Method 23.
This action is subject to the CRA and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
This final rule is not subject to the provisions of CAA section 307(d). This final rule does not promulgate any of the actions listed in CAA section 307(d)(1).
Environmental protection, Air pollution control, Hazardous air pollutants, Incorporation by reference, Method 23, Polychlorinated biphenyls, Polychlorinated dibenzofurans, Polychlorinated dibenzo-p-dioxins, Polycyclic aromatic compounds, Test methods.
Environmental protection, Air pollution control, Method 23, New source performance, Polychlorinated biphenyls, Polychlorinated dibenzofurans, Polychlorinated dibenzo-p-dioxins, Polycyclic aromatic hydrocarbons, Test methods.
Environmental protection, Air pollution control, Hazardous air pollutants, Hazardous waste, Method 23, Polychlorinated biphenyls, Polychlorinated dibenzofurans, Polychlorinated dibenzo-p-dioxins, Polycyclic aromatic hydrocarbons, Test methods, Waste management.
For the reasons stated in the preamble, the Environmental Protection Agency amends Title 40, Chapter I of the Code of Federal Regulations as follows:
42 U.S.C. 7401
The addition and revision read as follows:
(h) * * *
(168) ASTM D4840-99(2018)e1 Standard Guide for Sample Chain-of-Custody Procedures, approved August 2018; IBR approved for Appendix A-7: Method 23.
(194) ASTM D6911-15 Standard Guide for Packaging and Shipping Environmental Samples for Laboratory Analysis, approved January 15, 2015; IBR approved for Appendix A-7: Method 23; Appendix A-8: Method 30B.
(g) * * *
(2) Quantify isomers meeting identification criteria in Section 11.4.3.4 of Method 23, regardless of whether the isomers meet identification criteria in Section 11.4.3.4.1 of Method 23. You must quantify the isomers per Section 11.4.3.5 of Method 23. (Note: You may reanalyze the sample aliquot or split to reduce the number of isomers to meet the identification criteria in Section 11.4.3.4 of Method 23.)
(j) * * *
(2) Quantify isomers meeting identification criteria in Section 11.4.3.4 of Method 23, regardless of whether the isomers meet identification Section 11.4.3.4.1 of Method 23. You must quantify the isomers per Section 11.4.3.5 of Method 23. (Note: You may reanalyze the sample aliquot or split to reduce the number of isomers to meet the identification criteria in Section 11.4.3.4 of Method 23.)
(g) * * *
(2) Quantify isomers meeting identification criteria in Section 11.4.3.4 of Method 23, regardless of whether the isomers meet identification Section 11.4.3.4.1 of Method 23. You must quantify the isomers per Section 11.4.3.5 of Method 23. (Note: You may reanalyze the sample aliquot or split to reduce the number of isomers to meet the identification criteria in Section 11.4.3.4 of Method 23.)
(j) * * *
(2) Quantify isomers meeting identification criteria in Section 11.4.3.4 of Method 23, regardless of whether the isomers meet identification Section 11.4.3.4.1 of Method 23. You must quantify the isomers per Section 11.4.3.5 of Method 23. (Note: You may reanalyze the sample aliquot or split to reduce the number of isomers to meet the identification criteria in Section 11.4.3.4 of Method 23.); and
This method identifies and determines the concentration of specific PCDD, PCDF, PCB, and PAH compounds. Gaseous and particulate bound target pollutants are withdrawn from the gas stream isokinetically and collected in the sample probe, on a glass fiber or quartz filter, and on a packed column of adsorbent material. This method is not intended to differentiate between target compounds in particulate or vapor fractions. The target compounds are extracted from the combined sample collection media. Portions of the extract are chromatographically fractionated to remove interferences, separated into individual compounds or simple mixtures by HRGC, and measured with HRMS. This method uses isotopically labeled standards to improve method accuracy and precision through isotope dilution quantitation.
3.12.1 Monochlorobiphenyl (MoCB). Any or all three monochlorinated biphenyl isomers.
3.12.2 Dichlorobiphenyl (DiCB). Any or all 12 dichlorinated biphenyl isomers.
3.12.3 Trichlorobiphenyl (TrCB). Any or all 24 trichlorinated biphenyl isomers.
3.12.4 Tetrachlorobiphenyl (TeCB). Any or all 42 tetrachlorinated biphenyl isomers.
3.12.5 Pentachlorobiphenyl (PeCB). Any or all 46 pentachlorinated biphenyl isomers.
3.12.6 Hexachlorobiphenyl (HxCB). Any or all 42 hexachlorinated biphenyl isomers.
3.12.7 Heptachlorobiphenyl (HpCB). Any or all 24 heptachlorinated biphenyl isomers.
3.12.8 Octachlorobiphenyl (OcCB). Any or all 12 octachlorinated biphenyl isomers.
3.12.9 Nonachlorobiphenyl (NoCB). Any or all three nonachlorinated biphenyl isomers.
3.12.10 Decachlorobiphenyl (DeCB). Biphenyl fully chlorinated with 10 chlorine atom substituents replacing hydrogen in the parent compound.
3.13.1 Tetrachlorodibenzo-
3.13.2 Pentachlorodibenzo-
3.13.3 Hexachlorodibenzo-
3.13.4 Heptachlorodibenzo-
3.13.5 Octachlorodibenzo-
3.14.1 Tetrachlorodibenzofuran (TeCDF). Any or all 38 tetrachlorinated dibenzofuran isomers.
3.14.2 Pentachlorodibenzofuran (PeCDF). Any or all 28 pentachlorinated dibenzofuran isomers.
3.14.3 Hexachlorodibenzofuran (HxCDF). Any or all 16 hexachlorinated dibenzofuran isomers.
3.14.4 Heptachlordibenzofuran (HpCDF). Any or all four heptachlorinated dibenzofuran isomers.
3.14.5 Octachlorodibenzofuran (OCDF). Dibenzofuran fully chlorinated with eight chlorine atom substituents replacing hydrogen in the parent compound.
3.15.1 Hexachlorodiphenyl ether (HxCDPE). Any or all 42 hexachlorinated diphenyl ether isomers.
3.15.2 Heptachlorodiphenyl ether (HpCDPE). Any or all 24 heptachlorinated diphenyl ether isomers.
3.15.3 Octachlorodiphenyl ether (OCDPE). Any or all 12 octachlorinated diphenyl ether isomers.
3.15.4 Nonachlorodiphenyl ether (NCDPE). Any or all three nonachlorinated diphenyl ether isomers.
3.15.5 Decachlorodiphenyl ether (DCDPE).
Despite interferences, confidence of the data is based on the enhanced selectivity of fractionation, gas chromatograph (GC) separation and detector resolving power, the QC check ions, and monitoring PCDPE.
6.1.1 Nozzle. The nozzle must be made of quartz, borosilicate glass, or titanium. Stainless steel nozzles should not be used.
6.1.2 Probe Liner. Use either polytetrafluoroethylene (PTFE), borosilicate, or quartz glass probe liners with a heating system capable of maintaining a probe gas temperature of 120 ± 14 °C (248 ± 25 °F) during sampling, or such other temperature as specified by an applicable subpart of the standards or as approved by the Administrator. Use a PTFE ferrule or single-use PTFE coated O-ring to achieve the seal at the nozzle end of the probe for stack temperatures up to about 300 °C (572 °F). Use a quartz glass liner and integrated quartz nozzle for stack temperatures between 300 and 1,200 °C (572 and 2,192 °F).
6.1.3 Filter Holder. Use a filter holder of borosilicate glass with a PTFE frit or PTFE-coated wire filter support. The holder design should provide a positive seal against leakage from the outside or around the filter. The holder should be durable, easy to load, leak-free in normal applications, and positioned immediately following the probe and cyclone bypass (or cyclone, if used) with the active side of the filter perpendicular to the source of the flow.
6.1.4 Filter Heating System. Use any heating system capable of monitoring and maintaining the temperature around the filter to ensure that the sample gas temperature exiting the filter is 120 ± 14 °C (248 ± 25 °F) during sampling or such other temperature as specified by an applicable subpart of the standards or approved by the Administrator for a particular application.
6.1.5 Filter Temperature Sensor. Install a temperature sensor capable of measuring temperature to within ±3 °C (5.4 °F) so that the sensing tip protrudes at least 1.3 centimeters (cm) (1-2 in.) into the sample gas exiting the filter. Encase the sensing tip of the sensor in glass or PTFE, if needed.
6.1.6 Sample Transfer Line. The sample transfer line transports gaseous emissions from the heated filter holder to the condenser and must be heat traced and constructed of glass or PTFE with connecting fittings that form leak-free, vacuum-tight connections without using sealing greases or tapes. Keep the sample transfer lines as short as possible and maintain the lines at a temperature of 120 °C ± 14 °C (248 °F ± 25 °F) using active heating when necessary. Orient the sample transfer lines with the downstream end lower than the upstream end so that any condensate will flow away from the filter and into the condenser.
6.1.7 Condenser. Glass, water-jacketed, coil-type with compatible fittings. Orient the condenser to cause moisture to flow down to the adsorbent module to facilitate condensate drainage. Figure 23-2 of this method shows a schematic diagram of the condenser.
6.1.8 Water Circulating Bath. Use a bath pump circulating system capable of providing chilled water flow to the condenser and adsorbent module water jackets. Typically, a submersible pump is placed in the impinger ice water bath to circulate the ice water contained in the bath. Verify the function of this system by
6.1.9 Adsorbent Module. Use a water-jacketed glass container to hold up to 40 grams (g) of the solid adsorbent. Figure 23-2 of this method shows a schematic diagram of the adsorbent module. Other physical configurations of the adsorbent resin module/condenser assembly are acceptable if the configuration contains the requisite amount of solid adsorbent and maintains the minimum length-to-width adsorbent bed ratio of two-to-one. Orient the adsorbent module vertically to facilitate condensate drainage. The connecting fittings must form leak-free, vacuum-tight seals. Include a coarse glass frit in the adsorbent module to retain the adsorbent.
6.1.10 Impingers. Use five impingers connected in series with leak-free ground glass fittings or any similar leak-free noncontaminating fittings. The first impinger must be a short-stem (water-dropout) design or equivalent. The second, fourth, and fifth impingers must be of the Greenburg-Smith design, modified by replacing the tip with a 1.3 cm (
6.2.1 Fitting Caps. Use leak-free ground glass fittings or any similar leak-free non-contaminating fitting to cap the sections of the sampling train exposed to the sample gas. Alternatively, use PTFE tape or contaminant-free aluminum foil for this purpose (see Section 6.2.6 of this method).
6.2.2 Wash Bottles. Use PTFE bottles.
6.2.3 Probe-Liner, Probe-Nozzle, and Filter-Holder Brushes. Use inert bristle brushes with precleaned stainless steel or PTFE handles. Extensions of the probe brush must be made of stainless steel or PTFE and be at least as long as the probe. Use brushes that are properly sized and shaped to remove accumulated material from the nozzle and probe liner if used.
6.2.4 Filter Storage Container. Use a sealed filter holder, wide-mouth amber glass jar with PTFE-lined cap, or glass petri dish sealed with PTFE tape. Purchase precleaned amber glass jars and petri dishes, or clean according to the glassware cleaning procedures listed in Section 8.1.1.1 of this method.
6.2.5 Field Balance. Use a weighing device capable of measurements to an accuracy of 0.5 g.
6.2.6 Aluminum Foil. Use heavy duty aluminum foil cleaned by rinsing three times with hexane or toluene and stored in a pre-cleaned glass petri dish or glass jar. Do not use aluminum foil to wrap or contact filter samples due to the possibility of reaction between the sample and the aluminum.
6.2.7 Silica Adsorbent Storage Container. Use an air-tight container to store silica gel.
6.2.8 Glass Sample Storage Container. Recover samples in amber glass bottles, 500- or 1000-milliliters (mL) with leak-free PTFE-lined caps. Either purchase precleaned bottles or clean containers according to glassware cleaning procedures listed in Section 8.1.1.1 of this method.
6.3 Sample Extraction Equipment.
6.3.1 Sample Container. Use 125- and 250-mL amber glass bottles with PTFE-lined caps.
6.3.2 Test Tubes. Use glass test tubes or small (
6.3.3 Soxhlet/Dean-Stark Extraction Apparatus.
6.3.3.1 Soxhlet Apparatus. Use 200-mL capacity thimble holder capable of holding 43 × 123-millimeter (mm) extraction thimbles, with receiving flask (typically round-bottom).
6.3.3.2 Moisture Trap. Use Dean-Stark or Barret with fluoropolymer stopcock trap to fit between the Soxhlet extractor body and the condenser as shown in Figure 23-3 of this method.
6.3.3.3 Extraction Thimble. Use quartz, glass, or glass fiber thimble, typically 43 × 123 mm to fit Soxhlet apparatus. The use of cellulose thimbles for sample extraction in this method is prohibited.
6.3.3.4 Heating Mantle. Use a hemispherical shaped heating mantle to fit round-bottom flask.
6.3.4 Kuderna-Danish (KD) Concentrator. Use an apparatus consisting of a three-ball Snyder column, a flask with leak-free joint to accept the three-ball Snyder column at the top, a leak-free joint to receive a graduated concentration tube at the bottom and a heating mantle.
6.3.5 Nitrogen Evaporative Concentrator. Use a nitrogen evaporative concentrator equipped with a water bath with the temperature controlled in the range of 30 to 60 °C (86 to 140 °F) (N-Evap Organomation Associates, Inc., South Berlin, MA, or equivalent).
6.3.6 Separatory Funnels. Use glass or PTFE 2-liter separatory funnels.
6.4 Glass Liquid Chromatography Columns.
6.4.1 Pasteur Pipettes. Use disposable pipettes, or glass serological pipettes typically 150 mm long × 6 mm ID.
6.4.2 Liquid Chromatography Columns. 200 to 300 mm long × 20 mm ID with 250-mL reservoir.
6.5 Analytical Equipment.
6.5.1 Gas Chromatograph. Use a gas chromatograph consisting of the following components:
6.5.1.1 GC Oven. Use an oven capable of maintaining the separation column at the proper operating temperature ± 1.0 °C (1.8 °F) and performing programmed increases in temperature at rates of at least 40 °C/min with isothermal hold.
6.5.1.2 GC Temperature Monitor. Use a temperature monitor to measure column oven temperature to ± 1.0 °C (1.8 °F).
6.5.1.3 GC Flow System. Use an electronic pressure control or equivalent gas metering system to control carrier gas flow or pressure.
6.5.1.4 GC Injection Port. Use a split/splitless injection port in the splitless mode or on-column injection port for the capillary column.
6.5.2 Capillary GC Column. Use different columns for the analysis of the different target compound classes in this method, if needed. Perform the resolution checks in Sections 10.2.3.5 and 10.2.3.6 of this method to document the required resolution. Compound separation must meet the resolution specifications in Section 10.2.3.5 of this method and the identification specifications found in Section 11.4.3.4 of this method.
6.5.2.1 PCDD/PCDF Column. Gas chromatographic columns used to measure PCDD/PCDF should be capable of achieving separation of the 17 PCDD/PCDF target compounds from the nearest eluting target compound(s). The valley height resolution between 2,3,7,8-substituted TeCDD and TeCDF and the nearest eluting isomers must not exceed 25% of the taller of the two peaks. The valley height resolution between all other target PCDD/PCDF compounds and the nearest eluting targets (or interference) must not exceed 40% of the taller of the two peaks.
6.5.2.2 PAH Column. Use column systems for measuring PAH that can achieve separation of anthracene and phenanthrene at m/z 178 such that the valley between the peaks does not exceed 50% of the taller of the two peaks, and benzo[
6.5.2.3 PCB Column. Use column systems for measuring PCB that can achieve unique resolution and identification of the toxics for determination of a TEQ
6.5.3 Mass Spectrometer. Instrument employing 28 to 70 electron volt ionization. The instrument and data system must be capable of repetitive monitoring of at least 12 exact m/z values with a mass resolution defined in Section 10.2.1 within the measurement mass range. The recommended lock-mass ions to be used for mass drift correction are presented in Tables 23-4, 23-5, and 23-6 of this method for PCDD/PCDF, PAH, and PCB, respectively, as applicable to target analytes. Mass drifts of 5 parts per million (ppm) or more can have serious effects on instrument performance.
6.5.4 Mass Spectrometer Data System. Use a data system compatible with the mass spectrometer and capable of sequencing and monitoring multiple groups of selected ions.
6.5.5 Analytical Balance. Use an analytical balance to measure within 0.1 milligram (mg).
7.1 Filter. Glass fiber filters, without organic binder, exhibiting at least 99.95% efficiency (<0.05% penetration) on 0.3-micron dioctyl phthalate smoke particles.
7.1.1 Conduct a QC check on the filter lot prior to the field test to demonstrate that filters are free from contamination or interference by extracting and analyzing a minimum of three filters from each lot as follows. Spike with pre-extraction and pre-extraction filter recovery standards for target compounds to be measured and extract each filter separately with toluene as described in Section 11 of this method. After extraction, remove the filters and the solvent from the filters under clean conditions (
7.2.1 Conduct a QC check on the cleaned adsorbent lot or batch following the extraction and analyses procedures in Section 11 of this method, including adding applicable labeled standards. The cleaned adsorbent must meet the criteria described for LMB in Section 13.1 of this method. An LMB conducted with an adsorbent lot or batch can serve this purpose.
7.2.2 Storage. Store adsorbent in a solvent-rinsed nonporous clean container and secure lid.
7.7 Sample Recovery Reagents.
7.7.1 Acetone. Pesticide grade or better.
7.7.2 Toluene. Pesticide grade or better.
7.8 Sample Extraction and Cleanup.
7.8.1 Potassium Hydroxide. American Chemical Society (ACS) grade, 2% (weight/volume) in water.
7.8.2 Sodium Sulfate. Granulated or powdered, reagent grade. Evaluate for cleanliness prior to use with an LMB. The LMB must meet the requirements in Section 13.1 of this method for target compounds. Store in a clean glass container with a PTFE-lined screw cap.
7.8.3 Sulfuric Acid. Reagent grade.
7.8.4 Sodium Hydroxide. 1.0 N. Weigh 40 g of sodium hydroxide into a 1-liter volumetric flask. Dilute to 1 liter with water.
7.8.5 Hexane. Pesticide grade or better.
7.8.6 Methanol. Pesticide grade or better.
7.8.7 Toluene. Pesticide grade or better.
7.8.8 High-Boiling Alkanes Used as Keeper Solvents (
7.8.9 Liquid Column Chromatography Packing Materials. Use the following column chromatography packing materials, as needed, to prepare sample extracts by fractionation and removal of interferences. Commercially prepacked cleaning columns may be available for this purpose. The liquid column chromatography packing materials must be adequate to clean the samples to be fit for purpose and meet the performance criteria of this method. All procedures for preparing column chromatography packing materials are recommendations shown to meet the performance specifications required for the recovery of labeled compounds described in Section 13 of this method.
7.8.9.1 Alumina. Use either acidic or basic alumina in the cleanup of sample extracts. Use the same type of alumina for all samples in an analytical sequence, including those used to demonstrate LMB performance.
7.8.9.1.1 Acidic Alumina (Sigma-Aldrich® 199966 or equivalent). Brockmann activity grade 1, 100-200 mesh. Prior to use, activate the alumina by heating for 12 hours at 130 °C (266 °F). Store in a desiccator. You may use pre-activated alumina purchased from a supplier as received.
7.8.9.1.2 Basic Alumina (Sigma-Aldrich® 19943 or equivalent). Brockmann activity grade 1. Activate by heating to 600 °C (1,112 °F) for a minimum of 24 hours. Do not heat to over 700 °C (1,292 °F) because this can lead to reduced capacity for retaining the target compounds. Store at 130 °C (266 °F) in a covered flask. Recommended storage time for acidic alumina is up to five days from baking. Use prepacked alumina columns immediately after opening the vacuum-sealed pouch or container.
7.8.9.2 Florisil®. Activated, 60-100 mesh recommended. Heat previously activated Florisil® in a glass container loosely covered with aluminum foil in an oven at 130 to 150 °C (266 to 302 °F) for a minimum of 24 hours. Allow to cool and store activated Florisil® silica in a desiccator.
7.8.9.3 Silica Gel. Use either activated, acid- or base-coated silica gel in the cleanup of sample extracts. Use the same type of silica gel for all samples in an analytical sequence, including those used to demonstrate LMB performance.
7.8.9.3.1 Activated Silica Gel. Supelco® 1-3651, Bio-Sil® A, 100-200 mesh (or equivalent). Prior to use, silica gel should be activated by solvent rinsing and heat activation. It is recommended to rinse with methylene chloride and activate the silica gel by heating for at least 1 hour at 180 °C (356 °F). After allowing to cool, rinse the silica gel sequentially with methanol and toluene. Heat the rinsed silica gel at 50 °C (122 °F) for 10 minutes, then increase the temperature gradually to 180 °C (356 °F) over 25 minutes and maintain the gel at this temperature for 90 minutes. Allow to cool in a desiccator to room temperature and store in a glass container with a PTFE-lined screw cap. Alternative conditioning procedure may be used if the performance criteria in Section 13.1 are met for target compounds.
7.8.9.3.2 Acidic Silica Gel (30% weight/weight). Combine 100 g of activated silica gel with 44 g of concentrated sulfuric acid in a clean screw-capped glass container and agitate thoroughly. Disperse the solids with a stirring rod until obtaining a uniform mixture of acid-coated silica gel. Store the mixture in a glass container with a PTFE-lined screw cap.
7.8.9.3.3 Basic Silica Gel. Combine 30 g of 1 N sodium hydroxide with 100 g of activated silica gel in a clean screw-capped glass container and agitate thoroughly. Disperse solids with a stirring rod until obtaining a uniform mixture of base-coated silica gel. Store the mixture in glass container with a PTFE-lined screw cap.
7.8.9.4 Carbon/Celite® 545 (or equivalent solid support). Use of a carbon-based column
7.8.10 Nitrogen. 99.999% (ultra-high) purity.
7.9 Sample Analysis.
7.9.1 Helium. 99.999% (ultra-high) purity.
7.9.2 Spiking Standards. Prepare spiking standards quantitatively at a convenient concentration (
7.9.3 Pre-Sampling Adsorbent Standard. Prepare stock standard solutions in nonane to enable spiking so that the isotopically labeled compounds in the final sample extract are at the concentration shown under the heading “Pre-sampling Adsorbent Standard” in Tables 23-7, 23-8, and 23-9 of this method, for applicable target compound classes.
7.9.4 Pre-extraction Filter Recovery Standard. Prepare stock standard solutions in nonane to enable spiking so that the isotopically labeled compounds in the final sample extract are at the concentration shown under the heading “Pre-extraction Filter Recovery Standard” in Tables 23-7, 23-8, and 23-9 of this method, for applicable target compound classes.
7.9.5 Pre-extraction Standard. Prepare stock standard solutions in nonane to enable spiking so that the isotopically labeled compounds in the final sample extract are at the concentration shown under the heading “Pre-extraction Standard” in Tables 23-7, 23-8, and 23-9 of this method, for applicable target compound classes.
7.9.6 Pre-analysis Standard. Prepare stock standard solutions in nonane to enable spiking so that the isotopically labeled compounds in the final sample extract are at the concentration shown under the heading “Pre-analysis Standard” in Tables 23-7, 23-8, and 23-9 of this method, for applicable target compound classes.
8.1.1 Pretest Preparation.
8.1.1.1 Cleaning Glassware. Clean glassware thoroughly before using. This section provides a recommended procedure, but any protocol that consistently results in contamination-free glassware meeting the LMB criteria in Section 13.1 of this method is acceptable.
8.1.1.1.1 Soak all glassware in hot soapy water (Alconox® or equivalent).
8.1.1.1.2 Rinse with hot tap water.
8.1.1.1.3 Rinse with deionized/distilled water.
8.1.1.1.4 Rinse with methanol.
8.1.1.1.5 Rinse with toluene.
8.1.1.1.6 Baking glassware up to 400 °C (752 °F) for a minimum of 2 hours may be necessary to remove contaminants or interferents from particularly dirty samples. Allow glassware to cool after baking.
8.1.1.1.7 Cover glassware openings with clean glass fitting caps or cleaned aluminum foil (see Section 6.2.6 of this method).
8.1.1.1.8 Rinse glassware immediately before use with acetone and toluene.
8.1.1.2 Adsorbent Module. Load the modules in a clean area to avoid contamination. Fill a module with 20 to 40 g of XAD-2. Spike modules before the sampling event, but do not spike the modules in the field. Add the pre-sampling adsorbent standard to the top quarter of the adsorbent bed rather than onto the top or bottom of the adsorbent bed. Add sufficient spike (picograms (pg)/module) to result in the final sample theoretical concentrations specified in Tables 23-7, 23-8, and 23-9 of this method for PCDD/PCDF, PAH, and PCB, respectively, and to be above the lowest calibration concentration to ensure the standard recovery is quantitative. For samples with known or anticipated target compound concentration significantly higher or lower than the specified concentration in these tables, adjust the pre-sampling adsorbent standard concentration to the expected native compound concentration, but no less than 10 times the method detection limit (MDL). Follow the XAD-2 with cleaned glass wool and tightly cap both ends of the module. For analysis that includes PAH, use spiked modules within 14 days of preparation. See Table 23-10 of this method for storage conditions.
8.1.1.3 Sampling Train. Figure 23-1 of this method shows the complete sampling train. Follow the best practices by maintaining all sampling train components according to the procedure described in APTD-0576 Maintenance, Calibration, and Operation of Isokinetic Source-sampling Equipment (U.S. EPA 1972).
8.1.1.4 Silica Gel. Weigh several 200 to 300 g portions of silica gel in an air-tight container to the nearest 0.5 g. Record the total weight of the silica gel plus container, on the outside of each container. As an alternative, directly weigh the silica gel in its impinger or sampling holder just prior to sampling.
8.1.1.5 Filter. Check each filter against light for irregularities and flaws or pinhole leaks. Pack the filters flat in a clean glass container. Do not mark filters with ink or any other contaminating substance.
8.1.2 Preliminary Determinations. Use the procedures specified in Section 8.2 of Method 5 of Appendix A-3 to 40 CFR part 60.
8.1.2.1 Sample Volume. Unless otherwise specified in an applicable rule, regulation, or permit, sample for a minimum of 2 minutes at each traverse point. This method recommends sampling a minimum of 2.5 dry standard cubic meters (dscm).
8.1.2.2 For continuously operating processes, use the same sampling time at each traverse point. To avoid timekeeping errors, use an integer, or an integer plus one-half minute, for each traverse point.
8.1.2.3 For batch processes, determine the minimum operating cycle duration, dividing the sampling time evenly between the required numbers of traverse points. After sampling all traverse points once, sample each point again for the same duration of time per sampling point in reverse order until the operating cycle is completed. Sample all traverse points at least once during each test run.
8.1.3 Preparation of Sampling Train.
8.1.3.1 During field preparation and assembly of the sampling train, keep all train openings where contamination can enter sealed until just prior to assembly or until sampling is about to begin. To protect the adsorbent module from radiant heat and sunlight, you must wrap the module with aluminum foil or other suitable material capable of shielding the module from light. The XAD-2 adsorbent resin temperature must never exceed 50 °C (122 °F) because thermal decomposition will occur. Clean and prepare a complete set of sampling train components that will contact the sample for each sampling run, including one complete set to be used as a field train proof blank as a tool to evaluate equipment preparation and potential contamination during sample recovery as described in Section 9.6 of this method.
8.1.3.2 Place approximately 100 mL of water in the second and third impingers but leave the first and fourth impingers empty. Transfer approximately 200 g or more of silica gel from its container to the fifth impinger. Weigh each impinger and the adsorbent module, including the fitting caps, to the nearest 0.5 g using the field balance and record the weight for moisture determination. Remove the aluminum foil from the adsorbent module before weighing. Keep the module out of direct sunlight and rewrap the module with foil immediately after recording the module weight.
8.1.3.3 Using tweezers or clean disposable surgical gloves, place a filter in the filter holder. Be sure that the filter is properly centered, and the gasket properly placed, to prevent the sample gas stream from circumventing the filter. Check the filter for tears after completing the assembly.
8.1.3.4 Prepare the inside of the sampling probe and nozzle by brushing each component while rinsing three times each with acetone and toluene. Install the selected nozzle, using the connecting systems described in Section 6.1.2 of this method. Mark the probe with heat resistant tape or by some other method to denote the proper distance into the stack or duct for each sampling point. Assemble the train as shown in Figure 23-1 of this method. Orient the adsorbent module vertically so condensed moisture drains into the first impinger. See APTD-0576 Maintenance, Calibration, and Operation of Isokinetic Source-sampling Equipment (U.S. EPA 1972) for details.
8.1.3.5 Turn on the recirculation pump to the adsorbent module and condenser coil and begin monitoring the temperature of the gas entering the adsorbent module. Ensure proper temperature of the gas entering the adsorbent module before proceeding.
8.1.4 Leak-Check Procedure. Same as Section 8.4 of Method 5 of Appendix A-3 to 40 CFR part 60.
8.1.5 Sampling Train Operation. Same as Sections 8.5.1 through 8.5.9 of Method 5 of Appendix A-3 to 40 CFR part 60.
8.1.5.1 Monitor the filter temperature with a sensor and record the filter temperature during sampling to ensure a sample gas temperature exiting the filter of 120 °C ± 14 °C (248 °F ± 25 °F), or such other temperature as specified by an applicable subpart of the standards or approved by the Administrator for an application of this method.
8.1.5.2 During testing, you must record the temperature of the gas entering the XAD-2 adsorbent module. The temperature of the gas must not exceed 20 °C (68 °F) for efficient capture of the target compounds.
8.2.1 When the probe can be safely handled, wipe off all external particulate matter near the tip of the probe. Conduct a post-test leak check. Remove the probe from the train and close off both ends with PTFE tape or clean aluminum foil. Seal off the inlet to the train with PTFE tape, a ground glass cap, or clean aluminum foil.
8.2.2 Transfer the probe and impinger assembly to the cleanup area. This method recommends cleaning and enclosing this area to minimize the chances of losing or contaminating the sample. To avoid sample contamination and unnecessary exposure to toxic chemicals, smoking or eating in the sample recovery area shall not be allowed.
8.2.3 Inspect the train prior to and during disassembly. Note and record any abnormal conditions (
8.2.4 Container No. 1. Either seal the filter holder or carefully remove the filter from the filter holder and place it in its identified container. If it is necessary to remove the filter, use a pair of cleaned tweezers to handle the filter. If necessary, fold the filter such that the particulate cake is inside the fold. Carefully transfer to the container any particulate matter and filter fibers that adhere to the filter holder gasket by using a dry inert bristle brush and a sharp-edged blade. Seal the container and store cool (≤20 °C, 68 °F) for transport to the laboratory.
8.2.5 Adsorbent Module Sample. Remove the module from the train, tightly cover both ends with fitting caps and PTFE tape, remove the foil, drain the recirculating water from the module, weigh and record the module weight, and label the adsorbent module. Moisture measurement in the field using the Method 23 train requires weighing the adsorbent module before sampling and after sampling as part of the sample recovery.
8.2.6 Container No. 2. Quantitatively recover material deposited in the nozzle, the front half of the filter holder, and the cyclone, if used, by brushing while rinsing three times with acetone followed by three rinses with toluene. Collect all the rinses in Container No. 2.
8.2.7 Rinse the back half of the filter holder three times with acetone followed by three rinses with toluene. Rinse the sample transfer line between the filter and the condenser three times with acetone followed by three rinses with toluene. If using a separate condenser and adsorbent module, rinse the condenser three times with acetone followed by three rinses with toluene. Collect all the rinses in Container No. 2 and mark the level of the liquid on the container.
8.2.8 Moisture Weight. Weigh the adsorbent module, impingers, and silica gel impinger to within ±0.5 g using the field balance and record the weights. This information is required to calculate the moisture content of the effluent gas. For PCDD/PCDF-only measurements, discard the liquid after measuring and recording the weight.
8.2.9 Container No. 3. You must save and analyze impinger water samples if PAH and/or PCB are the target compounds. Quantitatively recover impinger water samples for analysis if PAH and/or PCB are the target compounds by rinsing three times with acetone followed by three rinses with toluene. Collect impinger water and rinses in Container No. 3 and mark the level of the liquid on the container.
8.2.10 Silica Gel. Note the color of the indicating silica gel to determine if it has been completely spent and report its condition on the field data sheet.
8.2.11 Field Sample Handling, Preservation, Storage, and Transport. Store all field samples temporarily in cool (≤20 °C, 68 °F) and dark conditions prior to transport to the laboratory. Ship samples cool (≤20 °C, 68 °F), shielded from ultraviolet light. In addition, follow the procedures in American Society for Testing and Materials (ASTM) D6911-15 (Guide for Packaging and Shipping Environmental Samples for Laboratory Analysis) for all samples, where appropriate. To avoid contamination of the samples, pay special attention to cleanliness during transport, field handling, sampling, recovery, and laboratory analysis, as well as during preparation of the adsorbent cartridges.
8.2.12 Sample Custody. Proper procedures and documentation for sample chain of custody are critical to ensuring data integrity. Follow the chain of custody procedures in ASTM D4840-99(2018)e1 (Standard Guide for Sample Chain-of-Custody Procedures) for all samples (including field samples and blanks).
8.3.1 Table 23-10 of this method summarizes the sample storage conditions and laboratory hold times.
8.3.2 Store sampling train rinses and filter samples in the dark at the storage conditions in Table 23-10 from the time the laboratory receives the samples until analysis.
8.3.3 You may store adsorbent samples for PCDD/PCDF or PCB analysis prior to extraction in the dark at 6 °C (43 °F) or less for up to one year from the time the laboratory receives the samples.
8.3.4 Protect adsorbent samples destined for PAH analysis from ultraviolet light. You may store adsorbent samples for PAH analysis in the dark at 6 °C (43 °F) or less for up to 30 days from the time the laboratory receives the samples.
8.3.5 Analyze PAH extracts within 40 days of extraction.
8.3.6 You may store sample aliquots including archived extracts of PCDD/PCDF, PAH and/or PCB samples in the dark at −10 °C (14 °F) or less for up to one year. Sample extracts must not be stored with pierced septa.
9.1.1 Sample numbers and other sample identifiers. Each sample must have a unique identifier.
9.1.2 Field sample volume.
9.1.3 Field sampling date.
9.1.4 Extraction dates.
9.1.5 Analysis dates and times.
9.1.6 Analysis sequence/run chronology.
9.1.7 Quantitation Reports.
9.1.7.1 This method does not consider EMPC-flagged data to be zero concentrations. Calculate and report the EMPC concentrations.
9.1.7.2 In determining compliance with any PCDD and PCDF standard developed using zero for values that are below the EDL of the method, including federal emission standards using Method 23 promulgated under 40 CFR parts 60 and 63 prior to March 20, 2023, use zero for the determination of total and weighted concentrations when the target compound is not detected. For all other circumstances, unless otherwise specified in applicable regulations, permits, or other requirements, when a target compound is measured at or below EDL, use EDL as the concentration for calculating compliance.
9.1.7.3 For each sample you must report EDLs, MDLs, LMBs and Field Train Proof Blank results and target compound analysis results.
9.2.1 Pre-sampling Adsorbent Standard and Pre-extraction Filter Recovery Standard Recoveries. Pre-sampling adsorbent standard and pre-extraction filter recovery standard recoveries must demonstrate on a per sample basis that recovery of the labeled standard achieved the requirements in Section 13 of this method. Recoveries below the acceptable range for the pre-sampling adsorbent standard may be an indication of breakthrough in the sampling train.
9.2.1.1 If the pre-sampling adsorbent standard average percent recovery is below 70%, the sampling run is not valid, and the stack test must be repeated. As an alternative, you do not have to repeat the stack test for invalid analyses if the pre-sampling adsorbent standard average percent recovery is 25% or more and you divide the final results by the fraction of the pre-sampling adsorbent standard average percent recovery.
9.2.1.2 If the percent recovery of all the pre-extraction filter recovery standard compounds is below 70%, you may reanalyze the sample. If the recovery is still below the limit, the filter sampling extraction is not valid, and you must repeat the stack or vent sampling and subsequent analysis.
9.2.2 Pre-extraction Standard Recoveries. Pre-extraction standard recoveries must demonstrate on a per sample basis that recovery of the labeled standard achieved the requirements in Section 13.15 of this method. If the recovery criteria are not met, you may reanalyze the sample. If the recovery criteria are still not met, the sampling run is not valid, and the stack test must be repeated. Recoveries outside the acceptable range for pre-extraction standard are an indication that sample preparation procedures did not adequately address sample and or sample matrix processing to recover native target compounds.
9.2.3 Pre-analysis Standard Response. Pre-analysis standard recoveries must demonstrate on a per sample basis that adequate labeled standard signal meets the requirements in Section 13.16 of this method. Add pre-analysis standard to every sample (including blanks, QC samples, and calibration solutions) in a known concentration. If the prepared samples do not meet the pre-analysis standard response criteria, you may reanalyze and/or prepare and analyze archive samples to attempt meeting requirements for the compounds that do not meet the pre-analysis standard response criteria. Poor sensitivity compared to initial calibration response may indicate injection errors or instrument drift.
9.3.1 Perform initial calibration following the procedures in Section 10. The lowest calibration standard used to establish the initial calibration must not be less than three times the MDL. The initial calibration must meet performance criteria in Section 13.9.
9.3.2 Lowest Calibration Concentration Confirmation. Establish a target concentration for the lowest calibration standard based on the intended use of the method. The lowest calibration concentration may be established by a laboratory or programmatic lowest quantitative reporting requirement. The laboratory calibration curve must be set at or below this level. Perform seven replicate analyses of a calibration sample prepared at proposed lowest calibration concentration. The replicate analyses of the lowest calibration concentrations standards must meet the criteria in Sections 13.9 and 13.17.1.
9.3.3 Calculate Lowest Calibration Statistics. Calculate the mean and standard deviation for each analyte in these replicates (those used in Section 9.3.2). Determine the Half Range for the Prediction Interval of Results (HRPIR) using Equation 23-13. Calculate the Upper and Lower Limits for the Prediction Interval of Results (PIR) with Equations 23-14 and 23-15.
9.3.4 Lowest Calibration Point Acceptance Criteria. The laboratory's ability to measure analyte concentrations down to the lowest calibration point is confirmed if the criteria presented in Section 13.17.1 are met. If these criteria are not met, the lowest calibration point as been set too low and must be confirmed at a higher concentration.
9.3.5 Demonstration of Low System Background. Analyze an LMB after the highest standard in the calibration range. If an automated extraction system is used, an LMB must be extracted on each port. Performance criteria are presented in Section 13.1. Note: When using automated systems, the same systems must be used for samples and QC samples, such as blanks and resin checks.
9.3.6 Initial Calibration Verification. A QCS must be analyzed during the IDC, and then following each initial calibration thereafter (at a minimum quarterly). A QCS is a mid-level standard prepared from a second source standard or prepared from a source of standards different from the source of calibration standards. The purpose of the QCS is to verify the integrity of the primary calibration standards. The acceptance criterion is presented in Section 13.11.
9.3.7 MDL. Perform an MDL determination using a minimum of seven spiked combined filter/sorbent media samples, spiked within 2 to 10 times of the expected MDL, and seven LMBs (combined filter/sorbent media) through all the steps of the method following the requirements in 40 CFR part 136 Appendix B. Confirm target compounds meet the qualitative identification criteria in Sections 13.12 and 13.13. The criteria for the MDL determination are presented in Section 13.6.1 of this method.
9.3.8 MDL Confirmation. Confirm newly determined MDLs by preparing a low-level spiked combined filter/sorbent media sample by spiking the sorbent with native target compounds at 1 to 5 times the MDL and pre-extraction standard at the concentration used to analyze field samples and analyze. The criterion for the MDL confirmation is presented in Section 13.6.1 of this method.
9.3.9 Demonstration of Precision. Prepare, extract, and analyze seven replicate spiked samples in a valid Extraction Batch. Fortify the spiked samples near the midpoint of the initial calibration curve. The criterion is presented in Section 13.17.2 and Table 23-18. Demonstration is repeated for failed compounds only.
9.3.10 Demonstration of Accuracy. Using the same set of replicate data generated for
10.2.1 Mass Resolution. Tune the HRMS instrument to a resolving power of at least 10,000 at 10% percent of the peak height or 25,000 at 50% percent of the peak height. The resolving power for PAH and PCB analysis may be 8,000 at 10% of the peak height or 15,000 at 50% of the peak height. Assess the resolution at three exact m/z's representing the low-, mid-, and high-m/z range of the masses used to measure the target compound class. You may use peak matching and the chosen perfluoro-kerosene (PFK) or perfluorotributylamine (FC43) reference peak to verify that the exact mass is within 5 ppm of the required value.
10.2.2 Initial Calibration. Calibrate the HRGC/HRMS system using a minimum of five concentrations over a range that brackets expected field sample concentrations and the concentration of isotopically labeled standards in spiked samples. Tables 23-11, 23-12, and/or 23-13 of this method show the calibration concentrations recommended by this method, as applicable to the target compound classes. Determine the initial relative response factors for the target compounds and isotopically labeled standards using the initial calibration. Criteria for the initial calibration is in Section 13.9 of this method.
10.2.2.1 Lock-Mass Ions. Tables 23-4, 23-5, and 23-6 of this method present the recommended mass spectrometer lock-mass ions for PCDD/PCDF, PAH, and PCB, respectively. The reference compounds PFK or FC43 have ions that may be selected as your lock-mass and QC check ions. Monitor the QC check ions specified in these tables to verify instrument stability during the analysis (see Section 13.8 for performance criteria). Additional cleanup of the sample extract (or archive extract) and reanalysis is necessary for failure to maintain the lock-mass during analysis.
10.2.2.2 The relative standard deviation (RSD) for the mean calibration relative response factor from each of the unlabeled analytes and isotopically labeled compounds used in an analysis must be less than or equal to the values in Table 23-14 of this method.
10.2.2.3 The signal-to-noise (S/N) ratio for the GC/MS signal present in every selected ion current profile must be greater than or equal to 10 in all concentrations of calibration standards for unlabeled targets and isotopically labeled standards. The ion abundance ratios must be within the control limits in Table 23-15 of this method.
10.2.3 Continuing Calibration Verification.
10.2.3.1 Prepare the CCV standard at the same time as the batch of field samples using the same labeled standards. Prepare CCV standards at mid-level of the calibration (C3 level from Tables 23-11, 23-12, or 23-13 of this method). Inject a CCV standard, for the target compound class, at least once every 12 hours during an analysis sequence. Calculate the RRF for each compound and compare each RRF to the corresponding mean RRF obtained during the initial calibration. The RRF for each native compound measured in a CCV must not deviate from the initial calibration RRF by more than the limits shown in Table 23-14.
10.2.3.2 The ion abundance ratios must be within the allowable control limits shown in Table 23-15 of this method.
10.2.3.3 The S/N ratio for the GC/MS signal present in every selected ion current profile must be greater than or equal to 10.
10.2.3.4 Repeat the initial calibration when there is a failure to meet the requirements for acceptable CCV standard analysis.
10.2.3.5 Column Separation Check. Use the results from a CCV to verify and document the resolution required in Section 13.2, 13.3, or 13.4 of this method for the target compound classes analyzed with this method. If target compounds are not sufficiently resolved to meet the requirement, an analysis on a confirmation column is recommended (see Section 13.5 of this method).
10.2.3.6 If you use a confirmation column, perform the resolution check in Section 10.2.3.5 of this method to document the required resolution on the confirmation column. See Section 13.5 of this method on confirmation columns, if needed.
11.1.1 Optional Soxhlet Precleaning. Place an extraction thimble (see Section 6.3.3.3 of this method) and a plug of glass wool into the Soxhlet apparatus equipped with a Dean-Stark trap, charge the apparatus with toluene, and reflux for a minimum of 3 hours. Remove the toluene and discard it. Remove the extraction thimble from the extraction system and place it in a glass beaker to catch the solvent rinses from sample transfer to the extraction thimble. Retain the clean glass wool plug. Alternatively, confirm that the LMB for associated reagents, materials, and media meets the performance requirements in Section 13.1 of this method.
11.1.2 Container No. 1 (Filter) Preparation. Spike the filter with the appropriate pre-extraction filter recovery standard to result in the final sample extract concentrations shown in Tables 23-7, 23-8, and 23-9 of this method taking care that all spike liquid is distributed on the filter. Allow the filter to dry enough to prevent overspill, then transfer the filter and the contents of Container No. 1 directly to the glass extraction thimble in the glass solvent rinse catch beaker so that the filter will be completely immersed in the solvent during extraction.
11.1.3 Adsorbent Module. Spike the adsorbent with the appropriate pre-extraction standard to result in the final sample extract concentrations shown in Tables 23-7, 23-8, and 23-9 of this method, as applicable, spiked into the adsorbent, not on top of the adsorbent. Transfer the adsorbent material to the glass extraction thimble in the glass solvent rinse catch beaker. Rinse the module into the thimble in the beaker with the contents of Container No. 1. Alternatively, suspend the adsorbent module directly over the extraction thimble in a beaker, then, using a wash bottle containing methanol, flush the XAD-2 into the thimble onto the filter. Thoroughly rinse the interior of the glass module that contained the XAD-2 with toluene.
11.1.4 Container No. 2 (Acetone and Toluene Rinses). Concentrate the sample to a volume of no less than 5 mL. Concentrate samples containing toluene using a heating mantle and three-ball Snyder column or a rotary evaporator. Rinse sample Container No. 2 three times with small portions of toluene and add these to the concentrated solution and concentrate further to no less than 5 mL. This residue contains particulate matter removed in the rinse of the train probe and nozzle. Rinse the concentrated material from Container No. 2 into the glass extraction thimble containing the filter and the XAD-2 resin.
11.1.5 Transfer the solvent contained in the glass solvent rinse catch beaker to the extraction apparatus solvent reservoir. Rinse the beaker into the Soxhlet extraction apparatus solvent reservoir three times with small portions of toluene.
11.1.6 Container No. 3 (Impinger Water and Rinses). For PAH and PCB analysis, transfer the contents of Container No. 3 to a separatory funnel. Adjust to pH 2 with 6 N sulfuric acid, if necessary. Rinse the sample container with three successive 10-mL aliquots of the toluene and add these rinses to the separatory funnel. Extract the sample by vigorously shaking the separatory funnel for 5 minutes. After complete separation of the phases, remove the solvent and filter it through a bed of precleaned, dry sodium sulfate into the Soxhlet extraction apparatus solvent reservoir. Repeat the extraction step two additional times. Adjust the pH to 11 with 6 N sodium hydroxide, re-extract the impinger water and rinses, and filter it through a bed of precleaned, dry sodium sulfate into the Soxhlet extraction apparatus solvent reservoir. Rinse the sodium sulfate into the extraction apparatus solvent reservoir with fresh solvent and discard the sodium sulfate.
11.1.7 Add the appropriate pre-extraction standard for the target compound classes (to result in the final sample extract concentrations shown in Tables 23-7, 23-8, and 23-9 of this method) to the extraction thimble containing the combined filter and adsorbent sample fractions. Cover the contents of the extraction thimble with the cleaned glass wool plug to prevent the XAD-2 resin from splashing into the solvent reservoir of the extractor. Place the extraction thimble into the Soxhlet extraction apparatus.
11.1.8 Pour additional toluene to fill the solvent reservoir to approximately two-thirds capacity. Add PTFE boiling chips and assemble the apparatus.
11.1.9 Adjust the heat source to cause the extractor to cycle approximately three times per hour. Extract the sample for sufficient time to meet the pre-extraction standard recovery performance criteria in Section 13.15 of this method. The solvent should cycle completely through the system a minimum of 48 times.
11.2 Sample Aliquots for Cleanup and Analysis.
11.2.1 After extraction, allow the Soxhlet apparatus to cool.
11.2.2 Initial Extract Concentration. You may perform an initial concentration of the sample extract using the techniques (
11.2.3 Allow the sample extract to cool. You should use a minimum of one half of the sample extract for PCDD/PCDF analysis. You may archive the remaining sample extract or further split the sample extract for PCB and/or PAH analysis and archive.
11.2.4 If necessary, further concentrate the sample extract for cleanup and analysis using concentration techniques (
11.3.1 PAH and PCDPE Fractionation and Cleanup. You may use a Florisil® column to remove PAH and PCDPE from the sample extract. You may also fractionate sample extracts using Florisil® as the first cleanup step to separate PAH for analysis.
11.3.1.1 Pack a 6-mm ID chromatographic column or equivalent diameter glass pipet with a glass wool plug followed by approximately 1.5 g (approximately 2 mL) of activated Florisil®. Add approximately 1 cm (approximately 1 mL) of anhydrous sodium sulfate followed by a glass wool plug to the head of the column. Pre-elute the column with 10 mL of methylene chloride followed by 10 mL of hexane and discard the eluate.
11.3.1.2 When the solvent is within 1 mm of the packing, transfer the concentrated extract (up to 5 mL) to the top of the Florisil® column, rinse the sample container twice with 1 to 2 mL of hexane, adding each rinse to the column, and elute the column with 35 mL of 5% dichloromethane in hexane. This fraction (Fraction 1) should contain target PCB, and selected hydrocarbons and chlorinated monoaromatic compounds.
11.3.1.3 Elute the column with 35 mL of 15% of dichloromethane in hexane and collect the eluate. This fraction (Fraction 2) should contain target PCDD/PCDF compounds.
11.3.1.4 Elute the column with 50 mL of 50% dichloromethane in hexane. The fraction (Fraction 3) should contain target PAH.
11.3.1.5 If necessary to remove any remaining polar organic compounds, elute the column with 70 mL of 15% acetone in hexane.
11.3.2 PCDD/PCDF and PCB Fractionation and Cleanup. You may remove PAH from the original aliquot of sample extract used for PCDD/PCDF analysis as described in Section 11.3.1 of this method. Design the column cleanup chromatography for PCDD/PCDF and PCB such that two consecutive fractions are collected (one with PCDD/PCDF and one with PCB) without impacting the detection limits. Depending on the source and sample matrix of the original sample, one or more of the following column cleanup approaches may be necessary to further remove polyhalogenated diphenyl ethers. You may use any number of permutations found in the referenced literature for this cleanup if the pre-extraction standard recoveries from field and LMB samples meet the associated performance criteria in Section 13 of this method. Alternatively, you may use an automated cleanup approach that meets the labeled spike recovery requirements in Section 13 of this method.
11.3.2.1 Silica Gel Column Chromatography. Pack one end of a glass column, approximately 20 mm ID × 230 mm long, with glass wool. Add in sequence to the glass column, 1 g of silica gel, 2 g of sodium hydroxide impregnated silica gel, 1 g of silica gel, 4 g of acid-modified silica gel, 1 g of silica gel, and 1 cm layer of anhydrous sodium sulfate. Pre-elute the column with 30 to 50 mL of hexane leaving a small quantity of hexane above the sodium sulfate layer. Discard the pre-elution hexane. Add the
11.3.2.2 Silver Nitrate Silica Gel Column Chromatography. Pack a column (6 mm ID, 150 mm in length) sequentially with 1 g of silica gel and 1 g of 10% silver nitrate silica gel followed by a layer of about 10 mm of sodium sulfate (anhydrous). Wash the column sufficiently with hexane, elute until the liquid level reaches to the upper end of the column, and then transfer the concentrated sample (about 5 mL). Rinse the container several times with a small amount of hexane, elute with 200 mL of hexane at a flow rate about 2.5 mL/min (approximately one drop per second) to elute PCDD/PCDF.
11.3.2.3 Multi-layer Silica Gel Column Chromatography. You may use a multi-layer silica gel column in place of separate silica columns. Pack a column of 20 mm ID and 300 mm in length sequentially by the dry pack method with 0.9 g of silica gel, 3.0 g of 2% potassium hydroxide silica gel, 0.9 g of silica gel, 4.5 g of 44% sulfuric acid silica gel, 6.0 g of 22% sulfuric acid silica gel, 0.9 g of silica gel, 3.0 g of 10% silver nitrate silica gel, 2.0 g of silica gel and 6.0 g of sodium sulfate (anhydrous). Wash the column sufficiently with hexane, elute until the liquid level reaches to the upper end of the column, and then load the sample solution. Rinse the container several times with a small amount of hexane, elute with 150-200 mL of hexane at a flow rate about 2.5 mL/min (approximately one drop per second) to elute PCDD/PCDF.
11.3.2.4 Basic Alumina Column Chromatography. Pack a column (20 mm ID, 300 mm in length) with approximately 6 to 12 g of basic alumina. Pre-elute the column with 50 to 100 mL of hexane. Transfer the concentrated extract from the previous column cleanup to the top of the basic alumina column. Allow the sample to flow into the column leaving a small quantity of solvent above the top of the bed. Rinse the extract container with two additional 1-mL rinses of hexane and apply each rinse to the column separately as the previous addition elutes. Elute the column with 100 mL hexane to remove the interferences. Elute the PCDD/PCDF from the column with 20 to 40 mL of 50% methylene chloride in hexane. The ratio of methylene chloride to hexane may vary depending on the activity of the alumina used in the column preparation. Do not let the head of the column go without solvent. The first 100 mL hexane eluate is not used for subsequent PCDD/PCDF analysis. The eluate is concentrated to approximately 0.5 mL using the nitrogen evaporative concentrator.
11.3.2.5 Carbopack® C/Celite® 545 Column or Equivalent. Cut both ends from a 10 mL disposable Pasteur pipette (see Section 6.4.1 of this method) to produce a 10 cm column. Fire-polish both ends and flare both ends if desired. Insert a glass wool plug at one end and pack the column with 0.55 g of Carbopack®/Celite® (see Section 7.8.9.4 of this method) to form an adsorbent bed approximately 2 cm long. Insert a glass wool plug on top of the bed to hold the adsorbent in place. Pre-elute the column with 5 mL of toluene followed by 2 mL of methylene chloride:methanol:toluene (15:4:1 volume/volume (v/v)), 1 mL of methylene chloride:cyclohexane (1:1 v/v), and 5 mL of hexane. If the flow rate of eluate exceeds 0.5 mL/minute, discard the column. Do not let the head of the column go without solvent. Add the sample extract to the column. Rinse the sample container twice with 1 mL portions of hexane and apply separately to the column. Apply 2 mL of hexane to the head of the column to complete the transfer. Elute the interfering compounds with two 3 mL portions of hexane, 2 mL of methylene chloride:cyclohexane (1:1 v/v), and 2 mL of methylene chloride:methanol:toluene (15:4:1 v/v). Discard the eluate. Invert the column and elute the PCDD/PCDF with 20 mL of toluene. If carbon particles are present in the eluate, filter through glass-fiber filter paper. Concentrate the eluate to approximately 0.5 mL using the nitrogen evaporative concentrator for further cleanup or analysis by HRGC/HRMS.
11.4.1 Analyze the sample extract with an HRGC/HRMS using the instrumental parameters in Sections 11.4.2 and 11.4.3 of this method.
11.4.1.1 Immediately prior to analysis, add an aliquot (typically 20 microliters (µl)) of the pre-analysis standard to result in the final sample extract concentrations in Tables 23-7, 23-8, and 23-9 of this method to each sample as appropriate for the compounds you are measuring by this method.
11.4.1.2 Inject an aliquot of the sample extract into the GC, typically 1 µl. You may perform separate analyses using different GC columns for each of the target compound classes. Perform calibration and sample analysis for each target compound class using the same instrument operating conditions including injection volume.
11.4.1.2.1 If target compounds are not resolved sufficiently from other target compounds or interferences in the sample to meet the requirements in Section 10.2.3.5 or 10.2.3.6 of this method, as applicable to the compound class being analyzed, or as otherwise specified in an applicable regulation, permit, or other requirement, analyze sample (or another aliquot of the sample) using an alternative column that provides elution order to uniquely quantify the target compounds subject to interference on the first GC column.
11.4.1.2.2 You may use column systems other than those recommended in this method provided the analyst is able to demonstrate, using calibration and CCVs, that the alternative column system is able to meet the applicable specifications of Section 10.2.3.5 or 10.2.3.6 of this method.
11.4.2 Example Gas Chromatograph Operating Conditions.
11.4.2.1 Injector. Configured for capillary column, splitless, 250 °C (482 °F).
11.4.2.2 Carrier Gas. Helium, 1 to 2 mL/min.
11.4.2.3 Oven. Optimize the GC temperature program to achieve the required separation and target compound recovery for the GC column in use. Table 23-16 of this method presents the typical conditions for a DB5-MS column.
11.4.3 High-Resolution Mass Spectrometer.
11.4.3.1 Ionization Mode. Electron ionization.
11.4.3.2 Source Temperature. Maintain the source temperature in the range of 250 to 300 °C (482 to 572 °F).
11.4.3.3 Ion Monitoring Mode. Tables 23-4, 23-5, and 23-6 of this method summarize the various ions to be monitored for PCDD/PCDF, PAH, and PCB, respectively.
11.4.3.4 Identification Criteria for Target Compounds. Use the following identification criteria for the characterization of target compounds in this method. The available native and isotopically labeled standards allow the unique identification of all PCDD/PCDF, PAH, and selected PCB congeners analyzed in this method. Also see Sections 13.12 and 13.13 of this method for identification criteria for PCDD/PCDF/PCB and PAH target compounds, respectively.
11.4.3.4.1 For PCDD/PCDF and PCB, Table 23-15 of this method provides acceptance limits for the integrated ion abundance ratio of primary and secondary target compound ions. When the ion abundance ratio for a target analyte is outside the performance criteria, you may reanalyze samples on an alternative GC column to resolve chemical interferences, tune the mass spectrometer to operate at a higher mass resolution to discriminate against the interference(s), and/or further cleanup an archived sample to remove the interference(s). Report analysis results as an EMPC when a response meets identification criteria except the ion abundance ratio criteria or when a peak representing a PCDPE has been detected at the retention time. This method does not consider EMPC-flagged data to be zero concentrations.
11.4.3.4.2 The retention time for the analytes must be within 3 seconds of the corresponding labeled pre-extraction standard.
11.4.3.4.3 The signals for the two exact masses in Tables 23-4 and 23-6 of this method for PCDD/PCDF and PCB, respectively, must be present and must reach their maximum response within two seconds of each other.
11.4.3.4.4 Identify and quantify specific target compounds or isomers that do not have corresponding pre-extraction standard compounds by comparing to the pre-extraction standard of the same compound class with the nearest retention time to target compound.
11.4.3.4.5 For the identification of specific PCB congeners, the retention time of the native congener must be within 0.006 relative retention time (RRT) units of the pre-extraction standard.
11.4.3.4.6 For qualitative identification, the S/N ratio for the GC signal present in every selected ion current profile for native compound response must be greater than or equal to 2.5.
11.4.3.4.7 The separation of target compounds, including 2,3,7,8-TeCDD and 2,3,7,8-TeCDF, must satisfy the separation criteria in Section 10.2.3.5 of this method and all the identification criteria specified in Sections 11.4.3.4.1 through 11.4.3.4.6 of this method. See Section 13.5 of this method on confirmation columns, if needed.
11.4.3.4.8 Chlorodiphenyl Ether Interference. If chromatographic peaks are detected at the retention time of any PCDF in any of the m/z channels used to monitor PCDPE, there is evidence of a positive interference and you may opt to flag data noting the interference and keep the value to calculate PCDF concentration as EMPC or reanalyze to remove or shift the interference. This method recommends alumina (see Section 11.3.2.4 of this method) and Florisil® (see Section 11.3.1 of this method) liquid column chromatography packing materials for removal of PCDPE during sample cleanup.
11.4.3.4.9 The recommended MS lock-mass ions are specified in Tables 23-4, 23-5, and 23-6 of this method for PCDD/PCDF, PAH, and PCB, respectively. Monitor the QC check ions to verify instrument stability during the analysis. If the QC check ion signal varies by more than 25% from the average response across the run, flag results for all isomers at corresponding retention time as the lock-mass ions or QC check ions. You have the option to reanalyze after additional cleanup on the sample (or an archived portion of the sample if the archive is available), or after dilution of the sample. Alternately, determine through additional quality review whether the target analyte and its corresponding isotopically labeled standard are equally affected by the change in lock-mass ions and/or QC check ions. When you reanalyze a sample, ensure all concentration calculations are reported from the reanalyzed sample.
11.4.3.4.10 For the identification of PAH, the RRT of each native to its labeled compound must be within 0.006 RRT units compared to the corresponding RRTs in the continuing calibration. The signals for the characteristic ion listed in Table 23-5 of this method must be present.
11.4.3.5 Quantitation. Measure the response of each native target compound and the corresponding pre-extraction standard. Using the CCV RRF, calculate the mass of each target compound, using equations in Section 12.7 of this method. Use the pre-extraction standard to correct the native target compounds result for variations in performance of the extraction, cleanup, and concentration steps of the analysis. Recovery of pre-extraction standard must meet the minimum specifications in Section 9.2. of this method to ensure that the method performance and reliability have not been compromised by unacceptable losses during sample processing. Table 23-17 of this method shows the assignments for pre-extraction standard compounds for use in calculating the response factor and the concentrations of PCB. Recoveries of all labeled standard compounds must meet the minimum recovery specifications in Section 13 of this method. Note: Unacceptably low recoveries can be an indication of a sample processing step that caused the low recoveries, such as spiking errors.
11.4.3.5.1 Use Equation 23-7 to calculate the amount of each target compound or group in the sample.
11.4.3.5.2 Use Equation 23-8 to calculate the concentration per dscm of each target compound or group in the gas.
11.4.3.5.3 Quantify native PCDD and PCDF in its homologous series using the corresponding native and pre-extraction standard response in its homologous series. For example, use
11.4.3.5.4 As an option or as required or specified in applicable regulations, permits, or other requirements, you may quantify any or all other PCB congeners as resolved or coeluting combinations using the RRF of the nearest eluting native target PCB in the same homolog group and the pre-extraction standard assigned in Appendix A to this method.
11.4.3.5.5 As an option or as required or specified in applicable regulations, permits, or other requirements, report the total concentration of congeners at a given level of chlorination (homolog;
11.4.3.5.6 As an option or if required in an applicable regulation, permit or other requirement, total PCB may be reported by summing all congeners identified at all window-defining congeners (WDCs) as assigned in Appendix A to this method.
Half Range (HR) for the Predication Interval of Results
Upper and Lower Limits for the Prediction Interval of Results
Data generated with this method must be fit for purpose. Applicable results of method performance criteria in this section must be reported. Consequences of failed quality criteria are provided with the criteria in this section.
13.6.1 MDL. The MDLs are determined following the procedures in Section 9.3.7 of this method. MDLs are confirmed by
13.6.2 EDL. If the sample specific EDLs are less than 50% of the emission standard, the EDLs are acceptable.
13.9.1 The RSD for mean RRF from each of the target analytes and labeled standards in the calibration samples must not exceed the values in Table 23-14 of this method.
13.9.2 The S/N in every selected ion current profile must be ≥10 for all unlabeled targets and labeled standards in the calibration samples.
13.9.3 The ion abundance ratios must be within the control limits in Table 23-15 of this method.
13.10.1 The RRF for each unlabeled and labeled compound measured in a CCV must not deviate from the initial calibration RRF by more than the limits shown in Table 23-14 of this method.
13.10.2 The ion abundance ratios must be within the control limits in Table 23-15 of this method.
13.10.3 The S/N ratio for the GC/MS signal present in every selected ion current profile must be greater than or equal to 10.
13.10.4 Repeat the initial calibration when there is a failure to meet the requirements for an acceptable CCV analysis.
13.10.5 Column Separation Check. Use the results from a CCV to verify and document the resolution required in Sections 13.2, 13.3, or 13.4 of this method for the target compound classes analyzed with this method. The separation criteria are applicable to all the compounds in a target class whether analyzed by a single or multiple GC columns. If a confirmation column is used, document required resolution (see Section 13.5).
13.12.1 Target compounds must have ion abundance ratios within the control limits in Table 23-15 of this method. PAH target compounds have single ion identifiers with no ion abundance ratio requirement. Report analysis results as an EMPC when a response meets identification criteria but fails the ion abundance ratio criteria or when a peak representing a PCDPE has been detected at the target compound retention time.
13.12.2 The retention time for the analytes must be within 3 seconds of the corresponding pre-extraction standard.
13.12.3 The monitored ions, shown in Table 23-4 of this method for a given PCDD/PCDF, must reach their maximum response within 2 seconds of each other.
13.12.4 The monitored ions, shown in Table 23-6 of this method for a given PCB, must reach their maximum response within 2 seconds of each other.
13.12.5 For the identification of specific PCB, the RRT of the native congener must be within 0.006 RRT units of the pre-extraction standard RRT.
13.12.6 The S/N ratio for the monitored ions for native compounds must be greater than or equal to 2.5.
13.12.7 Identify and quantify isomers that do not have corresponding pre-extraction standard compounds by comparing to the pre-extraction standard of the same compound class with the nearest retention time to the target compound.
13.12.8 If chromatographic peaks are detected at the retention time of any PCDD/PCDF in any of the m/z channels used to monitor PCDPE, there is evidence of interference and positive bias. Data must be flagged to indicate an interference. You may report the total with bias for the affected target. To reduce the bias, you may use a confirmatory column or perform additional clean up on an archived sample followed by reanalysis.
13.13.1 The signals for the characteristic ion listed in Table 23-5 of this method must be present.
13.13.2 The RRT between each native and labeled compound must be within 0.006 RRT units.
13.14.1 If the recovery of all the pre-sampling adsorbent standard compounds is below 70%, the sampling runs are not valid, and you must repeat the stack or vent sampling. As an alternative, you do not have to repeat the test if the average pre-sampling adsorbent standard recovery is 25% or more and you divide the final results by the average fraction of pre-sampling adsorbent standard recovery.
13.14.2 If the recovery of all the pre-extraction filter recovery standard compounds is below 70%, you may reanalyze the sample. If the recovery criteria are still not met, the sampling recovery is not valid, and you must repeat the stack or vent sampling.
13.17.1 Lowest calibration concentration. The Upper PIR Limit must be less than, or equal, to 150%; and the Lower PIR Limit must be greater than, or equal to, 50%. If these criteria are not met, the lowest calibration point has been set too low and must be confirmed at a higher concentration.
13.17.2 Demonstration of precision. The percent relative standard deviation (%RSD) of the concentrations from the replicate analyses must be less than 20% for all target analytes. Demonstration would be repeated for failed compounds only.
13.17.3 Demonstration of accuracy. The average % recovery for each target analyte must be within 70 to 130%. Demonstration would be repeated for failed compounds only.
The target compounds used as standards in this method are prepared in extremely small amounts and pose little threat to the environment when managed properly. Prepare standards in volumes consistent with laboratory use to minimize the disposal of excess volumes of expired standards.
15.1 The laboratory is responsible for complying with all federal, state, and local regulations governing waste management, particularly the hazardous waste identification rules and land disposal restrictions, and for protecting the air, water, and land by minimizing and controlling all releases from fume hoods and bench operations. The laboratory must also comply with any sewage discharge permits and regulations. The EPA's
XAD-2® resin, as supplied by the original manufacturer, is impregnated with a bicarbonate solution to inhibit microbial growth during storage. Remove both the salt solution and any residual extractable chemicals used in the polymerization process before use. Prepare the resin by a series of water and organic extractions, followed by careful drying.
2.1 You may perform the extraction using a Soxhlet extractor or other apparatus that generates resin meeting the requirements in Section 13.1 of Method 23. Use an all-glass thimble containing an extra-coarse frit for extraction of the resin. The frit is recessed 10-15 mm above a crenellated ring at the bottom of the thimble to facilitate drainage. Because the resin floats on methylene chloride, carefully retain the resin in the extractor cup with a glass wool plug and stainless-steel screen. This process involves sequential extraction with the following recommended solvents in the listed order.
•
•
•
•
•
•
2.2 You may use alternative extraction procedures to clean large batches of resin. Any size extractor may be constructed; the choice depends on the needs of the sampling programs. The resin is held in a glass or stainless-steel cylinder between a pair of coarse and fine screens. Spacers placed under the bottom screen allow for even distribution of clean solvent. Clean solvent is circulated through the resin for extraction. A flow rate is maintained upward through the resin to allow maximum solvent contact and prevent channeling.
2.2.1 Experience has shown that 1 mL/g of resin extracted is the minimum necessary to extract and clean the resin. The aqueous rinse is critical to the subsequent organic rinses and may be accomplished by simply flushing the canister with about 1 liter of distilled water for every 25 g of resin. A small pump may be useful for pumping the water through the canister. You should perform the water extraction at the rate of about 20 to 40 mL/min.
2.2.2 All materials of construction are glass, PTFE, or stainless steel. Pumps, if used, should not contain extractable materials.
3.1 Dry the adsorbent of extraction solvent before use. This section provides a recommended procedure to dry adsorbent that is wet with solvent. However, you may use other procedures if the cleanliness requirements in Section 13.1 of Method 23 are met.
3.2 Drying Column. A simple column with suitable retainers will hold all the XAD-2 from the extractor or the Soxhlet extractor, as shown in Figure B-1, with sufficient space for drying the bed while generating a minimum backpressure in the column.
3.3 Drying Procedure: Dry the adsorbent using clean inert gas. Liquid nitrogen from a standard commercial liquid nitrogen cylinder has proven to be a reliable source of large volumes of gas free from organic contaminants. You may use high-purity tank nitrogen to dry the resin. However, you should pass the high-purity nitrogen through a bed of activated charcoal approximately 150 mL in volume prior to entering the drying apparatus.
3.3.1 Connect the gas vent of a liquid nitrogen cylinder or the exit of the activated carbon scrubber to the column by a length of precleaned copper tubing (
3.3.2 Allow the methylene chloride to drain from the resin prior to placing the resin in the drying apparatus.
3.3.3 Flow nitrogen through the drying apparatus at a rate that does not fluidize or agitate the resin. Continue the nitrogen flow until the residual solvent is removed.
42 U.S.C. 7401
(a) * * *
(13) Method 23 of Appendix A-7 of 40 CFR part 60 for the measurement of Polychlorinated Biphenyls (PCBs) where stack or duct emissions are sampled; and
(14) Method 23 of Appendix A-7 of 40 CFR part 60 and Method 14 or Method 14A in Appendix A to Part 60 of this chapter or an approved alternative method for the concentration of PCB where emissions are sampled from roof monitors not employing wet roof scrubbers.
(b) * * *
(1)
(A) Method 0023A, Sampling Method for Polychlorinated Dibenzo-p-Dioxins and Polychlorinated Dibenzofurans emissions from Stationary Sources, EPA Publication SW-846 (incorporated by reference—see § 63.14); or
(B) Method 23, provided in Appendix A, Part 60 of this chapter.
(ii) You must sample for a minimum of three hours, and you must collect a minimum sample volume of 2.5 dscm.
(iii) You may assume that nondetects are present at zero concentration.
(b) * * *
(10) Method 23 of Appendix A-7 of 40 CFR part 60 to determine PAH.
42 U.S.C. 1006, 2002(a), 3001-3009, 3014, 3017, 6905, 6906, 6912, 6921, 6922, 6924-6927, 6934, and 6937.
(e) * * *
(1) During the trial burn (for new facilities or an interim status facility applying for a permit) or compliance test (for interim status facilities), determine emission rates of the tetra-octa congeners of chlorinated dibenzo-p-dioxins and dibenzofurans (CDDs/CDFs) using Method 0023A, Sampling Method for Polychlorinated Dibenzo-p-Dioxins and Polychlorinated Dibenzofurans Emissions from Stationary Sources, EPA Publication SW-846, as incorporated by reference in § 260.11 of this chapter or Method 23, provided in Appendix A-7, Part 60 of this chapter.
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to list the Texas heelsplitter (
We will accept comments received or postmarked on or before May 19, 2023. Comments submitted electronically using the Federal eRulemaking Portal (see
You may submit comments by one of the following methods:
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Debra Bills, Field Supervisor, U.S. Fish and Wildlife Service, Arlington Ecological Services Field Office, 501 West Felix Street, Suite 1105, Fort Worth, Texas 76115; telephone 817-277-1100. 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.
Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat concurrent with listing to the maximum extent prudent and determinable. Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protections; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. Section 4(b)(2) of the Act states that the Secretary must make the designation on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impacts of specifying any particular area as critical habitat.
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:
(1) The species' biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current ranges, including distribution patterns and the locations of any additional populations of these species;
(d) Historical and current population levels, and current and projected trends; and
(e) Past and ongoing conservation measures for the species, their habitats, or both.
(2) Threats and conservation actions affecting these species, including:
(a) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.
(b) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to these species.
(c) Existing regulations or conservation actions that may be addressing threats to these species.
(3) Additional information concerning the historical and current status of these species.
(4) Information on regulations that are necessary and advisable to provide for the conservation of the Louisiana pigtoe and that we can consider in developing a 4(d) rule for the species. We particularly seek information concerning the extent to which we should include any of the section 9 prohibitions in the 4(d) rule or whether we should consider any additional exceptions from the prohibitions in the 4(d) rule.
(5) Specific information on:
(a) The amount and distribution of Texas heelsplitter and Louisiana pigtoe habitat;
(b) Any additional areas occurring within the range of the Louisiana pigtoe,
(c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and
(d) To evaluate the potential to include areas not occupied at the time of listing, we particularly seek comments regarding whether occupied areas are adequate for the conservation of the species. Additionally, please provide specific information regarding whether or not unoccupied areas would, with reasonable certainty, contribute to the conservation of the species and contain at least one physical or biological feature essential to the conservation of the species. We also seek comments or information regarding whether areas not occupied at the time of listing qualify as “habitat” for the species.
(7) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
(8) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation, and the related benefits of including or excluding specific areas.
(9) Information on the extent to which the description of probable economic impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts and any additional information regarding probable economic impacts that we should consider.
(10) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act. If you think we should exclude any additional areas, please provide information supporting a benefit of exclusion.
(11) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.
Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, do not provide substantial information necessary to support a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or a threatened species must be made solely on the basis of the best scientific and commercial data available and section
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
If you submit information via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
Because we will consider all comments and information we receive during the comment period, our final determinations may differ from this proposal. Based on the new information we receive (and any comments on that new information), we may conclude that Texas heelsplitter is threatened instead of endangered or that Louisiana pigtoe is endangered instead of threatened, or we may conclude that one or both species do not warrant listing as either an endangered species or a threatened species. For critical habitat, our final designations may not include all areas proposed, may include some additional areas that meet the definition of critical habitat, or may exclude some areas if we find the benefits of exclusion outweigh the benefits of inclusion. In addition, we may change the parameters of the prohibitions or the exceptions to those prohibitions in the 4(d) rule if we conclude it is appropriate in light of comments and new information we receive. For example, we may expand the prohibitions to include prohibiting additional activities if we conclude that those additional activities are not compatible with conservation of the species. Conversely, we may establish additional exceptions to the prohibitions in the final rule if we conclude that the activities would facilitate or are compatible with the conservation and recovery of the species.
We have scheduled a public informational meeting and public hearing on this proposed rule. We will hold the public informational meeting and public hearing on the date and at the times provided above under
The public hearing will provide interested parties an opportunity to present verbal testimony (formal, oral comments) regarding this proposed rule. The public informational meeting will be an opportunity for dialogue with the Service. The public hearing is a forum for accepting formal verbal testimony. In the event there is a large attendance, the time allotted for oral statements may be limited. Therefore, anyone wishing to make an oral statement at the public hearing for the record is encouraged to provide a prepared written copy of their statement to us through the Federal eRulemaking Portal, or U.S. mail (see
The Texas heelsplitter was identified as a category 2 candidate species on January 6, 1989 (54 FR 554). The category 2 designation was assigned to taxa for which information indicated that proposing to list as endangered or threatened was possibly warranted, but for which conclusive data on biological vulnerability and threats were not currently available to support proposed rules. The species remained so designated in subsequent candidate notices of review (CNORs) (56 FR 58804, November 21, 1991; 59 FR 58982, November 15, 1994). In the February 28, 1996, CNOR (61 FR 7596), we discontinued the designation of category 2 species as candidates; therefore, with the publication of that CNOR, the Texas heelsplitter was no longer a candidate species.
On June 25, 2007, we were petitioned to list both the Texas heelsplitter and Louisiana pigtoe. We published a substantial 90-day finding for Texas heelsplitter on December 15, 2009 (74 FR 66260), and for Louisiana pigtoe on December 16, 2009 (74 FR 66866).
This document constitutes our 12-month warranted petition finding, our proposed listing rule, and our proposed critical habitat rule for the Texas heelsplitter and Louisiana pigtoe.
A species status assessment (SSA) team prepared an SSA report for the Texas heelsplitter and Louisiana pigtoe. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. In accordance with our joint policy on peer review published in the
A thorough review of the taxonomy, life history, and ecology of the Texas heelsplitter and Louisiana pigtoe is presented in the SSA report (USFWS 2022, entire), and briefly summarized here.
Freshwater mussels, including the Texas heelsplitter and Louisiana pigtoe, have a complex life history involving parasitic larvae, called glochidia, which are wholly dependent on host fish. As freshwater mussels are generally sessile (immobile), dispersal is accomplished primarily through the behavior of host fish and their tendencies to travel upstream and against the current in rivers and streams. Mussels are broadcast spawners; males release
Glochidia die if they fail to find a host fish, attach to the wrong species of host fish, attach to a fish that has developed immunity from prior infestations, or attach to the wrong location on a host fish (Neves 1991, p. 254; Bogan 1993, p. 599). Successful glochidia encyst (enclose in a cyst-like structure) on the host's tissue, draw nutrients from the fish, and develop into juvenile mussels (Arey 1932, pp. 214-215). The glochidia will remain encysted for about a month through a transformation to the juvenile stage. Once transformed, the juveniles will excyst from the fish and drop to the substrate.
Freshwater mussel species vary in both onset and duration of spawning, how long developing larvae are held in the marsupial gill chambers (gills used for holding eggs and glochidia), and which fish species serve as hosts. The mechanisms employed by mussel species to increase the likelihood of interaction between host fish and glochidia vary by species.
Mussels are generally immobile; their primary opportunity for dispersal and movement within the stream comes when glochidia attach to a mobile host fish (Smith 1985, p. 105). Upon release from the host, newly transformed juveniles drop to the substrate on the bottom of the stream. Those juveniles that drop in unsuitable substrates die because their immobility prevents them from relocating to more favorable habitat. Juvenile freshwater mussels burrow into interstitial substrates and grow to a larger size that is less susceptible to predation and displacement from high-flow events (Yeager
Host specificity can vary across mussel species, which may have specialized or generalized relationships with one or more taxa of fish. Mussels have evolved a wide variety of adaptations to facilitate transmission of glochidia to host fish, including mantle displays (lures) mimicking fish or invertebrates; packages of glochidia (conglutinates) that mimic worms, insect larvae, larval fish, or fish eggs; and release of glochidia in mucous webs that entangle fish (Strayer
The Texas heelsplitter was first described as the species
Although information specific to Texas heelsplitter reproduction is unavailable, other species from the tribe Lampsilini release glochidia in packets, called conglutinates, and are known to use mantle lures to attract sight feeding fishes that attack and rupture the marsupium, thereby becoming infested by glochidia (Barnhart
A related freshwater mussel species, bleufer (
Texas heelsplitters occur in streams and rivers of the Trinity, Neches, and Sabine drainages in east Texas and in the Sabine River at the western border of Louisiana on substrates consisting of “firm mud, sand, or finer gravels bottoms, in still to moderate flows” and sometimes associated with fallen timber (Howells 2014, p. 69; Howells 2010b, p. 3 and table 2.3). Additionally, Texas heelsplitters can tolerate manmade impoundments and have been found in several East Texas reservoirs (Howells 2010b, p. 3).
The Louisiana pigtoe was originally described as the species
Louisiana pigtoe are bradytictic (
The primary host fish for Louisiana pigtoe has not been confirmed. Bullhead minnow (
A single juvenile Louisiana pigtoe from the Neches River, Texas, was reported to grow 15 mm (0.6 in) during its first year from an initial shell length of 2 mm (0.08 in) (Ford
Louisiana pigtoes occur in medium- to large-sized streams throughout portions of east Texas, Louisiana, west Mississippi, southeast Oklahoma, and southwest Arkansas (Vidrine 1993, p. 66; Howells
Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations in title 50 of the Code of Federal Regulations set forth the procedures for determining whether a species is an endangered species or a threatened species, issuing protective regulations for threatened species, and designating critical habitat for endangered and threatened species. In 2019, jointly with the National Marine Fisheries Service, the Service issued a final rule that revised the regulations in 50 CFR part 424 regarding how we add, remove, and reclassify endangered and threatened species and the criteria for designating listed species' critical habitat (84 FR 45020; August 27, 2019). On the same day, the Service also issued final regulations that, for species listed as threatened species after September 26, 2019, eliminated the Service's general protective regulations automatically applying to threatened species the prohibitions that section 9 of the Act applies to endangered species (84 FR 44753; August 27, 2019).
The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether any species is an endangered species or a threatened species because of any of the following factors:
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects.
We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself.
However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future.
The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. The term “foreseeable future” extends only so far into the future as the Services can reasonably determine that both the future threats and the species' responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.
The SSA report documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the species, including an assessment of the potential threats to the species. The SSA report does not represent a decision by the Service on whether the species should be proposed for listing as an endangered or threatened species under the Act. It does, however, provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found at Docket No. FWS-R2-ES-2022-0026 on
To assess the viability of the Texas heelsplitter and Louisiana pigtoe, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation supports the
The SSA process can be categorized into three sequential stages. During the first stage, we evaluated each individual species' life-history needs. The next stage involved an assessment of the historical and current condition of each species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about each species' responses to positive and negative environmental and anthropogenic influences. Throughout all of these stages, we used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decision.
In this discussion, we review the biological condition of the species and their resources, and the threats that influence the species' current and future condition, in order to assess the species' overall viability and the risks to that viability. We analyze these factors both individually and cumulatively to determine the current condition of the species and project the future condition of the species under several plausible future scenarios.
Using various timeframes and the current and projected future resiliency, redundancy, and representation, we describe the species' levels of viability over time. For the Texas heelsplitter and Louisiana pigtoe to maintain viability, their populations or some portion thereof must be sufficiently resilient. A number of factors influence the resiliency of their populations, including occupied stream length, abundance, and recruitment. Elements of the species' habitat that determine whether Texas heelsplitter and Louisiana pigtoe populations can grow to maximize habitat occupancy influence those factors, thereby increasing the resiliency of populations. These resiliency factors and habitat elements are discussed in detail in the SSA report and summarized here.
Most freshwater mussels, including the Texas heelsplitter and Louisiana pigtoe, are found in aggregations called mussel beds that vary in size from about 50 to over 5,000 square meters (m
For our analysis, we consider populations extending greater than 50 river miles (river mi) (80 kilometers (km)) to have a high probability of persistence to stochastic events because a single event is unlikely to affect the entire population. Populations occupying reaches between 20 and 50 river mi (32 and 80 km) have moderate resiliency to stochastic events, while populations occupying reaches less than 20 mi (32.19 km) have low resiliency. Note that we define populations occupying a stream length at or approaching zero miles as being functionally extirpated (populations with abundance that is currently at such low levels that we expect them to become extirpated in the near future) or extirpated.
Populations require a minimum number of individuals to ensure stability and persistence. This threshold is often referred to as the minimum viable population and is generally calculated through a population viability analysis that estimates extinction risk given a number of input variables. There are no published minimum viable population estimates for the Texas heelsplitter or Louisiana pigtoe; therefore, it is unknown how many individuals are required to sustain populations of these mussels. However, population health is dependent on species abundance as well as water availability and the ability for mussels to meet life-history needs within their habitats, which were evaluated as part of the SSA.
It is important to recognize that Louisiana pigtoe observations used to determine abundance in the SSA report may include misidentified individuals. Without genetic confirmation, identification of Louisiana pigtoe in the field based on shell morphology is questionable, with seasoned experts accurately identifying the species only 76 percent of the time (Inoue 2018, p. 1). Unfortunately, genetic testing was not available for the majority of reported Louisiana pigtoe historical observations, which relied solely on shell morphological characteristics for species identification (Randklev 2018, entire). Since there is no way to know the margin of error or to otherwise account for potential misidentifications, we determined abundance for Louisiana pigtoe based on reported observations (as is) and did not adjust or modify the survey data to compensate for potential misidentifications. We do not consider misidentification to be an issue for Texas heelsplitter observations, since they are recognizable based on morphological characteristics observed in the field and not easily confused with other species.
Mussel abundance in a given stream reach is a product of the number of mussel beds and the density of mussels within those beds. For populations of Texas heelsplitter and Louisiana pigtoe to be healthy (
Sufficiently resilient Texas heelsplitter and Louisiana pigtoe populations must also be reproducing and recruiting young individuals into the population to replace individuals lost to old age, disease, or predation. Population size and abundance are a reflection of habitat conditions, environmental stressors, and other past influences on the population. The ability of populations to successfully reproduce and recruit will determine if a population may be stable, increasing, or decreasing over time. For example, a large, dense mussel population that contains mostly old individuals is not likely to remain large and dense into the future if there are few young individuals to sustain the population over time (
We reviewed the potential risk factors (
Freshwater mussels require water in sufficient quantity and quality on a consistent basis to complete their life cycles and those of their host fishes. Water quality can be degraded through contamination or alteration of water chemistry. Environmental contaminants include a broad array of natural, synthetic, and chemical substances introduced to the environment that can be hazardous to living organisms. Chemical contaminants are ubiquitous throughout the environment and are a major contributor to the current declining status of freshwater mussel species nationwide (Augspurger
There are approximately 386 treatment plant discharge permits issued for the Trinity River Basin from its headwaters above the Dallas-Fort Worth metroplex down to the Gulf of Mexico (Texas Commission on Environmental Quality (TCEQ) 2018, entire). The San Jacinto Basin, although geographically smaller than most other basins in Texas, has approximately 1,052 treatment plant outfalls, while the Neches and Sabine rivers have 218 and 191 outfalls, respectively. In addition, some industrial permits can discharge millions of gallons per day and have ammonia limits that exceed levels that inhibited growth in juvenile fatmucket (
An additional type of water quality impairment is the alteration of water quality parameters such as dissolved oxygen, temperature, total dissolved solids (TDS), and salinity levels. Dissolved oxygen levels may be reduced from increased nutrients in the water
Total dissolved solids, a measure of the mineral content of water (
Contaminant spills are also a concern. Texas leads the nation in crude oil and natural gas production, and various chemicals, refined fuels, and wastewater related to oil and natural gas exploration are routinely transported along highways. These facilities and equipment used for extraction, transportation, and refinement of hazardous materials are all potential sources of hazardous spills, and can originate from human error, equipment failure, or catastrophic events like industrial accidents, fires, or floods. Although spills are relatively short-term events and may be localized, water resources nearby can be severely impacted and degraded for years after the incident along with the biological resources that inhabit the area. A reduction in surface flow drought, instream diversions, or groundwater extraction serve to concentrate contaminant and salinity levels, increases water temperatures in streams, and exacerbates effects to Texas heelsplitter and Louisiana pigtoe.
Poor water quality affects most Texas heelsplitter and Louisiana pigtoe populations currently to some degree, and future water quality is expected to decrease due to decreasing stream flow and increasing temperatures. We foresee threats to water quality increasing into the future due to the effects of climate change as demand and competition for limited water resources grows (USFWS 2022, pp. 61-62).
Altered hydrology, through changes to historical flow regimes, leads to inundation, or low- or high-flow conditions that may reduce the quality of affected habitats to the point where they are no longer suitable for freshwater mussels. While Texas heelsplitter and Louisiana pigtoe have adapted to survive natural fluctuations in flows, populations that experience sustained higher than normal flows, prolonged flooding, or unnatural fluctuations in the frequency or intensity of high/low flows or extended (or repeated) drying events will not persist. Virtually every watershed within the range of these two freshwater mussels has experienced some level of alteration, a trend that has continued into the 21st century, particularly in areas with rapid population growth.
Inundation of previously free-flowing rivers and streams by impoundments has arguably had the single largest human-related impact on the distribution of freshwater mussels. The construction of reservoirs and other impoundments permanently alters the hydrology and, hence, the ecology of rivers, often with deleterious effects to water quality, water quantity, host fish movement, and dispersal of mussel glochidia, nutrient cycling, sediment deposition, fate and transport of contaminants, and numerous other changes to the physical, chemical, and biological characteristics of affected areas (upstream and downstream). The close relationship of flow to mussels makes them uniquely vulnerable to hydrology changes.
Both mussel species are adapted to flowing water (lotic habitats) rather than standing water (lentic habitats). Louisiana pigtoe require free-flowing water to survive. The Texas heelsplitter has also been observed in lentic habitats and appears to be tolerant of reservoir conditions; this species may occur in higher densities in areas of reservoirs that are influenced by stream inflows where conditions more closely resemble their preferred riverine habitat (Whisenant 2019, p. 1; Neck and Howells 1995, p. 15).
Inundation of mussel habitat has primarily occurred upstream of dams, including major flood control and water supply reservoirs, such as Toledo Bend Reservoir, and smaller structures like low water vehicle crossings and diversion dams typically found along tributaries on privately owned land. These structures alter the hydrology of rivers by slowing, impeding, or diverting normal flow patterns, and increasing deposition in some areas and eliminating the interstitial spaces that juvenile Texas heelsplitters and Louisiana pigtoes inhabit.
Large reservoirs that release water from the hypolimnion, the deeper water is cold and often devoid of oxygen and necessary nutrients, can adversely affect mussel survival, as cold water can stunt mussel growth and delay or hinder spawning (Vaughn and Taylor 1999, p. 917). Cold water releases from reservoirs like Broken Bow Lake in southeast Oklahoma can affect water temperatures for miles downstream. These cold releases create an extinction gradient, where freshwater mussels are absent or presence is low near the dam, and abundance does not rebound until some distance downstream where ambient conditions raise the water temperature to within the tolerance limits of mussels (Davidson
The construction of dams for flood control and drinking water supply, and the subsequent management of water releases from those reservoirs (
During flood events, along with water, rivers transport sediment, mostly as solids, suspended in the water column. The increase in flooding severity results in greater sediment transport, with important effects to substrate stability and benthic habitats for freshwater mussels, as well as other organisms that are dependent on stable benthic habitats. Further, water released by dams is usually clear due to reduced sediment load and results in incision (downcutting of the bed) and coarsening of the bed material until a new equilibrium is reached (Kondolf 1997, p. 535). The extent to which downcutting and erosion occurs as a result of dam releases varies, but in some cases leads to bank collapse, burial of mussel beds, and mortality. Conversely, depending on how dam releases are conducted, reduced flood peaks can lead to accumulations of fine sediment in the river bed (
Operation of reservoirs for flood control, water supply, and recreation results in altered hydrologic regimes,
Very low flows and low water levels are also detrimental to Texas heelsplitter and Louisiana pigtoe populations. Droughts that occurred in the recent past led to extremely low flows in several east Texas rivers. Some rivers, or portions thereof, are resilient to drought because they are spring-fed (Calcasieu, Neches rivers), contain large volumes of water (Trinity River), have large reservoirs in the upper reaches that release water for downstream users (all, excluding Calcasieu River), or have significant return flows (Pearl, Sabine, Trinity rivers); however, drought in combination with increasing trends in groundwater extraction may lead to lower river flows of longer duration than previously recorded. Reservoir releases can be managed to some extent, but in many cases dam operators must stop releases during droughts to conserve water and protect water supplies, or to maximize flood releases during major floods to protect public safety and property, both can negatively affect mussels downstream.
Streamflow and overall discharge for rivers inhabited by the Texas heelsplitter and Louisiana pigtoe are expected to decline due to climate change and projected increases in temperatures and evaporation rates, resulting in more frequent and intense droughts (Lafontaine
Many streams within the range of these two freshwater mussel species receive significant groundwater inputs from multiple springs associated with aquifers. As spring flows decline due to drought, climate change, or groundwater pumping, habitat for freshwater mussels in affected streams is reduced and could eventually cease to exist. While the Texas heelsplitter and Louisiana pigtoe may survive short periods of low flow, as low flows persist, mussels can be subjected to oxygen deprivation, increased water temperature, stranding, increased predation, and, ultimately, desiccation which leads to reduced survivorship, reproduction, and recruitment to the population. High-flow events can lead to increased risk of mortality through physical removal, transport, or burial of mussels as unstable substrates are transported downstream by flood waters (entrainment) and dislodged mussels are later redeposited in locations that may not be suitable habitat.
The distribution of mussel communities and their habitats is affected by large floods returning at least once during the typical life span of an individual mussel (generally from 3-30 years), as mediated by the presence of flow refuges, where shear stress is relatively low, sediments are relatively stable, and mussels must either tolerate high-frequency disturbances or be eliminated and can colonize only areas that are infrequently disturbed between events (Strayer 1999, pp. 468-469). Shear stress and relative shear stress are limiting to mussel abundance and species richness (Randklev
The Texas heelsplitter and Louisiana pigtoe undoubtedly evolved in the presence of extreme hydrological conditions, including severe droughts leading to dewatering, and heavy rains leading to damaging scour events and movement of mussels and substrate, although the frequency, duration, and intensity of these events may be different from what is observed today. These same patterns led to the development of flood control and storage reservoirs throughout Texas in the 20th century. The increasing variability, frequency, and severity of extreme weather events is a contributing factor to the contraction of populations for both species.
Another source of alteration to hydrology is from sand and gravel mining directly from rivers or from adjacent alluvial deposits (Kondolf 1997, p. 541). Instream mining directly impacts river habitats by removal of substrates used by mussels, and can indirectly affect river habitats through channel incision, bed coarsening, and lateral channel instability (Kondolf 1997, p. 541). Excavation of pits in or near to the channel can create a knickpoint, which can contribute to erosion (and mobilization of substrate) associated with head cutting (Kondolf 1997, p. 541). Pits associated with off-channel mining of the floodplain can become involved during floods, such that the pits become hydrologically connected, and thus can affect sediment dynamics in the stream or river (Kondolf 1997, p. 545). Sand and gravel mines occurred historically and continue to operate in some basins throughout the ranges of the Texas heelsplitter and Louisiana pigtoe.
Specifically, a change to the number of days with zero flow was limiting for the Louisiana pigtoe, and the number of high pulses was limiting for the Texas heelsplitter. In summary, results to date indicate natural flow regimes have been altered in east Texas rivers, as was expected, which has led to modification of instream habitats and contributed to declines in freshwater mussels (Khan and Randklev 2019, entire). These findings agree with the estimate of many experts, who based on their research believe: (1) Portions of the Trinity River have been significantly modified and may no longer support mussels (particularly in the upper basin where stream hydrology and geomorphology have been permanently altered), and (2) the Neches River is the least altered and has some of the best remaining mussel habitat, along with the most abundant and diverse mussel populations, in east Texas.
Texas heelsplitters and Louisiana pigtoes inhabit microhabitat along river stream beds that have abundant
Under a natural flow regime, sediments are naturally washed away from one microhabitat to another, the amount of sediment in the substrate is relatively stable, and different reaches within a river or stream may be aggrading or degrading sediment at any given time (Poff
Sediment accumulation can be exacerbated when there is a simultaneous increase in the sources of fine sediments in a watershed, including streambank erosion from development, agricultural activities, livestock and wildlife grazing, in-channel disturbances, roads, and crossings, among others (Poff
Historically, the Texas heelsplitter and Louisiana pigtoe were likely distributed in areas with suitable habitat throughout the river basins described above under Background. Today, the remaining Texas heelsplitter and Louisiana pigtoe populations are isolated from one another by major reservoirs, habitat alterations, and de-watering events, prolonged drought, among other reasons, such that natural recolonization of areas previously extirpated is extremely unlikely, if not impossible, due to barriers to host fish movement. With the exception of the Louisiana pigtoe populations in the Red River Basin in Arkansas and Oklahoma, there is currently no opportunity for substantial interaction among extant Texas heelsplitter and Louisiana pigtoe populations, resulting in genetic isolation.
The impacts of reservoirs are significant, causing permanent changes to fish movement, water quality, and hydrology, with cascading effects to river ecology and aquatic species that utilize areas downstream. Small populations are more affected by limited host fish immigration potential because they are susceptible to genetic drift (random loss of genetic diversity) and inbreeding depression. At the species level, populations that are eliminated due to stochastic events cannot be recolonized naturally, leading to reduced overall redundancy and representation.
The confirmed or assumed primary host fish species for both the Texas heelsplitter and Louisiana pigtoe are known to be common and widespread throughout the range of both mussel species and are therefore not believed to be a limiting factor to dispersal at this time (Nico and Sturtevant 2022, entire; Nico
Most reservoirs function primarily to provide water supply and/or flood control, and meeting those objectives typically involves holding on to as much water as possible (
Direct mortality includes any activity or event, whether human-induced or natural, that results in the death of mussels within a localized area due to removal, crushing, burying, consumption, desiccation, or poisoning. Potential activities or events causing direct mortality include, but are not limited to, development projects (such as bridge replacement, stream channelization, and impoundment construction), undeveloped low-water crossings with vehicular traffic that intersect mussel beds, bank collapse, accidental release of hazardous materials, predation, vandalism, and collection (whether for scientific purposes or recreation) (USFWS 2022, pp. 57-58). The frequency, intensity, and magnitude of these impacts likely vary in time and by location and are difficult to quantify with any certainty other than to acknowledge that they exist and negatively affect mussel survival to some degree.
Predation on freshwater mussels is a natural ecological interaction. Raccoons, feral hogs, muskrats, snapping turtles, and fish are known to prey upon mussels (East
Additionally, certain mussel beds within some populations, due to ease of access, are vulnerable to over-collection and vandalism. These areas have well known and well documented mussel beds that are often sampled multiple times annually by various researchers for various scientific projects. Populations subjected to repeated sampling or monitoring may experience increased stress or higher rates of mortality. Mortality may also occur in areas where local fishing enthusiasts have been observed using freshwater mussels as bait. The risk of direct mortality from recreation or over-collection for scientific purposes are compounded by the additional stressors discussed in this section, which can influence mussel survival in a cumulative manner. Because collection of Louisiana pigote is localized and could affect populations, we carried this risk factor forward as a population-level threat. Service biologists recently hosted a meeting with State biologists, consultants, and academia who are involved in mussel research to discuss ongoing monitoring and scientific collections and to reduce the likelihood of over-harvesting mussels from any given population (USFWS 2018, p. 1), and we anticipate this collaboration among researchers will continue into the future with ongoing coordination and annual meetings.
Invasive species, such as Asian clam (
Although zebra mussel infestations occur in several Texas reservoirs, including Lewisville Lake and Lake Livingston, populations have not yet become established in nearby river habitats occupied by the Texas heelsplitter and Louisiana pigtoe (Ford
Feral hogs occur throughout the range of both mussel species and are known to engage in a variety of activities that cause bank and streambed damage, contribute to erosion and increased sedimentation, and their presence appears to cause native mussel diversity and abundance to decrease through organic enrichment of the water and unfavorable changes to microbial community composition (Kaller
Invasive macrophyte infestations of floating water hyacinth, hydrilla, and giant salvinia negatively impact native mussels and their host fish throughout the southern half of the ranges of the Texas heelsplitter and Louisiana pigtoe by creating hypoxic conditions through respiration and during decay (Karatayev and Burlakova 2007, p. 298; USGS 2019b, entire; USGS 2019c, entire; USGS 2019d, entire). Dense mats of hydrilla can also impede native mussel movement during periods of fluctuating surface water levels, leaving them stranded as water levels recede.
Climate change in the form of the change in timing and amount of precipitation and air temperature increase is occurring, and continued greenhouse gas emissions at or above current rates will cause further warming (Intergovernmental Panel on Climate Change (IPCC) 2021, pp. 1-13-1-15). Warming in Texas is expected to be greatest in the summer (Maloney
While projected changes to rainfall in Texas may seem relatively small (U.S. Global Change Research Program (USGCRP) 2017, p. 217), higher temperatures caused by anthropogenic activity will lead to increased soil water deficits because of higher rates of evapotranspiration. In turn, higher evapotranspiration rates will likely result in increasing drought severity in future climate scenarios, and the warming atmosphere is projected to continue across the United States (USGCRP 2017, p. 231). Even if precipitation and groundwater recharge remain at current levels, increased groundwater pumping and resulting aquifer shortages due to increased temperatures are nearly certain (Loaiciga
Effects of climate change, such as changes to seasonal rainfall patterns, air temperature increases, and increases in drought frequency and intensity, have been shown to be occurring throughout the ranges of the Texas heelsplitter and Louisiana pigtoe (Andreadis and Lettenmaier 2006, p. 3; USGCRP 2017, p. 188); these effects are expected to exacerbate several of the stressors discussed above, such as water temperature and flow loss (Wuebbles
In the analysis of the future condition for the Texas heelsplitter and Louisiana pigtoe, climate change is considered further under various plausible future scenarios, serving to exacerbate already deteriorating conditions through an increase of fine sediments, changes to water quality, loss of flowing water, and predation, among others.
Our analysis of the past, current, and future influences on the needs of the Texas heelsplitter and Louisiana pigtoe for long-term viability revealed that there are four that pose the greatest impact on current condition and future viability: degradation of water quality, altered hydrology, substrate changes, and habitat fragmentation, all of which are exacerbated by climate change.
The level of interest among stakeholders, regulatory agencies, and partners to better understand the status, threats, and conservation of freshwater mussels in Texas has increased significantly since 2017, when the Service initiated reviews of several Texas mussel species for possible listing under the Act. This led to improved communication among interested parties and multiple partnerships seeking to conduct research and improve our understanding of the health and distribution of mussel populations across Texas, as well as increased efforts to protect and conserve known populations. Although there are currently no formal conservation agreements in place designed to specifically provide benefits to the Texas heelsplitter or Louisiana pigtoe, we are in discussions with multiple stakeholders who are interested in strengthening partnerships to conserve rare species, including several river authorities that are in the process of developing candidate conservation agreements with assurances (CCAAs). The CCAAs, if finalized, would implement voluntary conservation actions in river basins that would result in a net conservation benefit for the species. Additionally, several stakeholders have voluntarily funded research to ensure that we have the best available information upon which to base a listing decision, and we commend them for their efforts to improve the science of freshwater mussels in Texas. Interested stakeholders and potential future conservation partners include the Trinity River Authority, Lower Neches Valley Authority, North Texas Municipal Water District, Sabine River Authority, the Cities of Dallas and Fort Worth, Tarrant Regional Water District, Texas Department of Transportation, Texas Parks and Wildlife Department, U.S. Army Corps of Engineers, Texas Comptroller of Public Accounts, Texas A&M University, Texas State University, and others.
With regard to silvicultural operations that occur on forested areas across the range of the species, we recognize that private timber companies routinely implement State-approved best management practices (BMPs; as reviewed by Cristan
Some voluntary habitat restoration projects have been completed on private lands within the river basins currently known to be occupied by one or both species. These restoration projects include upland and riparian habitat enhancements coordinated by our State, Federal, and nongovernmental partners, as well as our Partners for Fish and Wildlife Program. There are also regulatory mechanisms in place to protect water quality and quantity, such as protections afforded by the Clean Water Act (33 U.S.C. 1251
Here we discuss the current and future condition of each known population, taking into account the risks to those populations that are currently occurring, as well as management actions that are currently occurring to address those risks. We consider climate change to be currently occurring, resulting in changes to the timing and amount of rainfall affecting streamflow, which can alter stream characteristics such as an increase in stream temperatures, erosion, and the accumulation of fine sediments. The current condition of each species and population is based upon the cumulative effects of these factors. In the SSA report, for each species and population, we developed and assigned condition categories for three population factors (occupied stream length, abundance, reproduction/recruitment; see
There are five remaining Texas heelsplitter populations, occurring in three adjacent river basins (Neches, Sabine, and Trinity River basins) in east Texas and on the Sabine River to the western border of Louisiana. Historically, populations likely occurred throughout the entirety of each basin where connectivity was not an issue and conditions were suitable. Based on our analysis, three populations are considered to have a low current condition, and two populations are considered functionally extirpated/extirpated (see Table 1, below).
Redundancy describes the ability of a species to withstand and recover from catastrophic events. High redundancy is achieved through multiple populations that serve to spread risk, thereby reducing the impact that any one event might have in terms of overall loss to the species. Redundancy is characterized by having multiple healthy, resilient populations distributed across the range of the species. It can be measured by population number, resiliency, spatial extent, and degree of connectivity. Our analysis explored the influence of the number, distribution, and connectivity of populations on the species' ability to withstand catastrophic events.
Within the identified representation areas (Neches, Sabine, and Trinity River basins), only the Neches and Trinity River basins currently have at least one known population (the Sabine River/Toledo Bend population in the Sabine River Basin and Grapevine Lake in the Trinity River Basin are considered functionally extirpated). The Neches River Basin currently has two populations (Neches River and Lower Neches River populations); however, these populations are hydrologically isolated, and therefore provide only minimal redundancy.
Representation describes the ability of a species to adapt to changing environmental conditions over time. It is characterized by the breadth of genetic and environmental diversity within and among populations. Our analysis explores the relationship between the species life history and the influence of genetic and ecological diversity and the species ability to adapt to changing environmental conditions over time.
We consider the Texas heelsplitter to have representation in the form of genetic, geographic, and ecological diversity in the three currently occupied river basins. Because there are no freshwater connections between the three basins, we treated each river basin as separate areas of representation.
Overall, there are 13 remaining populations of Louisiana pigtoe in multiple river drainages throughout portions of east Texas (Big Cypress-Sulphur, Neches-Angelina, Sabine, and San Jacinto river basins), Louisiana (Calcasieu, Sabine, and Pearl river systems), west Mississippi (Pearl River), southeast Oklahoma (Little River), and southwest Arkansas (Cossatot, Saline, Rolling Fork, and Little rivers). Because reported populations from the Ouachita River system in Arkansas were determined to be phylogenetically distinct (a separate species) from Louisiana pigtoe, they were not considered in the SSA. In 2019, an additional population was discovered within the Lower Neches Valley River
Historically, the Louisiana pigtoe likely occurred throughout each basin wherever conditions were suitable and connectivity was not an issue, with populations connected by fish migration; however, due primarily to impoundments, the populations are currently isolated from one another, and repopulation of functionally extirpated/extirpated locations is unlikely to occur without human assistance. Two populations are currently considered to be in high condition, four populations are in moderate condition, five populations are in low condition, and two populations are considered functionally extirpated/extirpated (see Table 2, below).
Within identified representation areas, the Big Cypress-Sulphur, Calcasieu-Mermentau, Pearl, and San Jacinto River basins each have only one known current population, and therefore lack redundancy should catastrophic events occur that cause extirpation of one or a few populations. The Sabine River Basin has two separate populations (Sabine River and Bayou Anacoco populations) but lacks redundancy due to the Sabine River population being functionally extirpated. The Neches and Red River basins each currently have three known populations (the Lower Little River population in the Red River Basin is considered functionally extirpated), however each population is hydrologically isolated within their respective river basins and are, therefore, considered to provide only limited redundancy.
We consider Louisiana pigtoe to have representation in the form of genetic, ecological, and geographical diversity between each of seven river basins: Big Cypress-Sulphur, Calcasieu-Mermentau, Neches, Pearl, Red, Sabine, and San Jacinto. Because there are no un-impounded, freshwater connections that allow movement between the seven basins, each river was considered a separate area of representation.
As part of the SSA, we developed multiple future condition scenarios to capture the range of uncertainties
We forecasted the Louisiana pigtoe's responses to two plausible future scenarios of environmental conditions projected across the next 10, 25, and 50 years. Ten years represents one to two generations of mussels, assuming an average reproductive life span of five to 10 years. Twenty-five years similarly represents at least two to four mussel generations and 50 years represents at least five or more generations of mussels. The scenarios project the threats into the future and consider the impacts those threats could have on the viability of the Louisiana pigtoe. We apply the concepts of resiliency, redundancy, and representation to the future scenarios to describe possible future conditions of the Louisiana pigtoe. The scenarios described in the SSA report represent only two possible future conditions. Uncertainty is inherent in any projection of future condition, so we must consider plausible scenarios to make our determinations. When assessing the future, viability is not a specific state, but rather a continuous measure of the likelihood that the species will sustain populations over time.
We included climate change in our future scenarios as a factor that would add to the negative impacts of the primary threats on the species' habitat. Climate change is expected to alter the natural flow regime through increased drought and flooding worsening desiccation, scour, and sedimentation. Global climate models project changes in global temperature and other associated climatic changes based on potential future scenarios of greenhouse gas concentrations in the atmosphere (
Scenario 1 assesses the species' responses to moderate increases in stressors influencing Louisiana pigtoe populations. Scenario 1 is based on RCP 4.5 emission trajectory and associated model projections, and represents medium-term increases in emissions followed by a decline through the rest of the century. Scenario 2 assesses the species' responses to severe increases in stressors and is based on RCP 8.5 projections. Scenario 2 also includes anthropogenic actions, such as the construction of new reservoirs, wastewater treatment plants, and other currently proposed projects, and manifests as a future where the hydrological conditions of many of the rivers and streams currently occupied by Louisiana pigtoe are altered such that base flows are diminished, floods are more severe if not more frequent, and mussels and their habitats are adversely affected through degradation of water quality and quantity. These altered hydrological conditions are primarily caused by a combination of increasing anthropogenic stressors and climate change. Due to a lack of resolution of the available data, we were unable to distinguish any meaningful difference between a moderate increase in stressors and a moderate decrease in stressors. As a result, we limited the future forecasts to these two scenarios, which we projected over a 50-year period. We restricted our evaluation to 50 years primarily due to limitations projecting non-modeled, extrapolated future conditions for water quality, road density, and habitat fragmentation. Fifty years encompasses about 5 generations of the Louisiana pigtoe; additionally, projected human population growth and the limitations of existing resources are expected to increase and interact with climate effects to exacerbate the effects of drought which is likely to impact water quality and quantity (
Under Scenario 1, populations of the Louisiana pigtoe decline in resiliency, redundancy, and representation over time as conditions moderately decline from current conditions. One population will remain in moderate condition, seven in low condition, and five functionally extirpated in 50 years. This species will lose two areas of representation, diminishing the overall adaptive capacity to future environmental change in the next 50 years (see Table 3).
Under Scenario 2, populations of the Louisiana pigtoe further decline in resiliency, redundancy, and representation over time as the effects of climate change impact populations through extremely low stream flows, severe increases in sedimentation, reductions in water quality, and an increase in potential for desiccation of habitat. Eight populations of Louisiana pigtoe are expected to become either functionally extirpated or extirpated within 50 years, with the remaining five populations in low condition. The Louisiana pigtoe is projected to lose four of the seven current representation areas in 50 years, with eight populations remaining or becoming extirpated; therefore, the adaptive capacity of this species is projected to be severely reduced in the future (see Table 4).
We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have not only analyzed individual effects on the species, but we have also analyzed their potential cumulative effects. We incorporate the cumulative effects into our SSA analysis when we characterize the current and future condition of the species. To assess the current and future condition of the species, we undertake an iterative analysis that encompasses and incorporates the threats individually and then accumulates and evaluates the effects of all the factors that may be influencing the species, including threats and conservation efforts. Water quality degradation, altered hydrology, changes to habitat structure/substrate, habitat fragmentation, invasive species, climate change, and collecting are all factors that influence or could influence the viability of these two freshwater mussel species. These factors also have the potential to act cumulatively to impact Texas heelsplitter and Louisiana pigtoe viability and their cumulative impacts were considered in our characterization of the species' current and future condition in the SSA. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis.
Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of an endangered species or a threatened species. The Act defines an “endangered species” as a species in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether a species meets the definition of an endangered species or a threatened species because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.
After evaluating threats to the Texas heelsplitter and Louisiana pigtoe and
Populations of the Texas heelsplitter and Louisiana pigtoe are faced with a myriad of stressors from natural and anthropogenic sources that pose a risk to their survival in both large and small river segments. Climate change has the noteworthy distinction of being able to directly or indirectly exacerbate the most relevant stressors to freshwater mussels wherever they occur. Climate projections suggest persistent droughts over the continental United States that are longer, cover more area, and are more intense than what has been experienced in the 20th century (APA 2019, p. 4; Terando
The threats to the species, acting alone or in combination with each other and climate change, could result in the extirpation of additional mussel populations, further reducing the overall redundancy and representation of the Texas heelsplitter and Louisiana pigtoe. Historically, each species, bolstered by large, interconnected populations (
The Texas heelsplitter has declined significantly in overall distribution and abundance over the past 100 or more years. Most known populations of the Texas heelsplitter are isolated and currently exist in very low numbers (low abundance), have limited evidence of recruitment, and are believed to occupy much less habitat than in the past (range contraction). Of the five remaining populations of Texas heelsplitter, three are small in abundance and have low resiliency, and two are considered functionally extirpated/extirpated. While the three low resiliency populations (Neches River/B.A. Steinhagen Reservoir, Lower Neches River, and Trinity River/Lake Livingston) have habitat in high or moderate current condition, all three have very little evidence of reproduction and are therefore likely to decline due to a lack of young individuals joining the population as the population ages. Low abundance, combined with the lack of evidence of reproduction and recruitment, results in populations with very little population resiliency. Overall, these low levels of resiliency, redundancy, and representation currently result in the Texas heelsplitter having a high risk of extinction.
Our analysis of the species' current condition, as well as the conservation efforts discussed above, show that the Texas heelsplitter is in danger of extinction throughout all of its range due to the severity and immediacy of threats currently impacting their populations. The risk of extinction is high because the remaining fragmented populations have a high risk of extirpation, are isolated, and have limited potential for recolonization. We find that a threatened species status is not appropriate for the Texas heelsplitter because its current range is already contracted, all populations are fragmented and isolated from one another, the threats are occurring across the entire range of this species, and the species currently exhibits low resiliency, redundancy, and representation. Because these conditions place the species already in danger of extinction throughout its range, a threatened status is not appropriate.
Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. We have determined that the Texas heelsplitter is in danger of extinction throughout all of its range and accordingly did not undertake an analysis of any significant portion of its range. Because the Texas heelsplitter warrants listing as endangered throughout all of its range, our determination does not conflict with the decision in
Our review of the best available scientific and commercial information indicates that the Texas heelsplitter meets the Act's definition of an endangered species. Therefore, we propose to list the Texas heelsplitter as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.
Many Louisiana pigtoe populations are relatively abundant, but populations are isolated from one another; therefore, the species is unable to recolonize following stochastic events that may reduce or eliminate populations. Additionally, many populations occur in degraded habitats. Although some
We considered whether the Louisiana pigtoe is presently in danger of extinction throughout all of its range and determined that endangered status is not appropriate. The current conditions as assessed in the SSA report show two of the populations in two of the representative units are in high current condition, and four are in moderate current condition; they are not currently subject to declining flows or extreme flow events. While threats are currently acting on the species and many of those threats are expected to continue into the future, we did not find that the species is currently in danger of extinction throughout all of its range.
In the future, as extreme flow events become more frequent as rainfall patterns change, and increased urbanization results in reduced groundwater levels, we expect even these populations to be at an increased risk of extirpation. Given the likelihood of climate change and other anthropogenic effects in the foreseeable future, within 50 years we estimate at least five populations will become (or remain) functionally extirpated/extirpated, seven will be in low condition, and one population will be in moderate condition. In the future, we anticipate that the Louisiana pigtoe will have reduced viability, with no highly resilient populations and limited representation and redundancy.
According to our assessment of plausible future scenarios in the SSA report, the species is likely to become an endangered species in the foreseeable future of 50 years throughout all of its range. Fifty years encompasses about 5 generations of the Louisiana pigtoe; additionally, projected human population growth and the limitations of existing resources are expected to increase and interact with climate effects to exacerbate the effects of drought on surface water resources throughout all of its range. These effects are likely to impact the ability to provide the minimum flow needed by the Louisiana pigtoe. As a result, we expect increased incidences of low flows followed by scour events, as well as persistent decreased water quality, to be occurring in 50 years.
After evaluating threats to the species and assessing the cumulative effect of the threats under the Act's section 4(a)(1) factors, we find that the Louisiana pigtoe populations will continue to decline over the next 50 years so that this species is likely to become in danger of extinction throughout all of its range within the foreseeable future due to increased frequency of drought and extremely high-flow events, decreased water quality, and decreased substrate suitability.
Thus, after assessing the best available information, we determine that the Louisiana pigtoe is not currently in danger of extinction but is likely to become in danger of extinction within the foreseeable future throughout all of its range.
Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. The court in
Following the court's holding in Everson, we now consider whether there are any significant portions of the species' range where the species is in danger of extinction now (
For the Louisiana pigtoe, we consider abundance to be the most direct measure of the health and status of the species (see
We examined the range of Louisiana pigtoe for biologically meaningful portions that may be at higher risk of extirpation, as reflected by current population resiliency. The range of Louisiana pigtoe is relatively large, and populations are distributed in varying conditions across the range. Therefore, we examined the range based on accepted mussel faunal provinces (
The Interior Highlands faunal province is characterized by upland streams in the Ozark and Ouachita mountains. This province has numerous endemic aquatic species of both fish and freshwater mussels, due to the isolation of the river systems within the province from each other and from other upland river systems (Haag 2012, pp. 82-83). In this faunal province, the Lower Little River is functionally extirpated, with the remaining populations in moderate (Little River and Saline River) or high (Cossatot River) condition. While the populations in this faunal province are subject to threats such as erratic flows capable of causing bed movement or dislocation of mussels, increased sedimentation, altered water chemistry (
The Sabine-Trinity faunal province is located in the central Gulf Coast of Texas, and characterized by lowland streams and rivers, with lentic and wetland habitats bordering the main channels (Haag 2012, pp. 86-87). In this faunal province, the Upper Calcasieu River, Angelina River, Lower Neches River, and the East Fork San Jacinto River are in low condition, the Sabine River is functionally extirpated, with the remaining populations in moderate (Big Cypress Bayou) or high condition (Neches River). While the populations in this faunal province are being affected by impoundments resulting in threats such as excessive sedimentation and water quality degradation, as well as ongoing agricultural activities, groundwater withdrawals, and surface water diversions, these threats are primarily occurring in the future. Under a moderate increase in stressors based on the lower greenhouse gas emissions trajectory (RCP 4.5), model projections expect an increase in global mean surface temperatures that will alter precipitation events resulting in more extreme drought and flooding conditions that reduces water quality, mobilizes substrates, eroded habitat or deposits sentiments on Louisiana pigtoe populations in the next 25-50 years. The Sabine-Trinity faunal province are not currently in danger of extinction; therefore, they do not have a different status from the remainder of the species' range.
The Pontchartrain-Pearl-Pascagoula faunal province lies entirely within the Coastal Plain and is characterized by lowland streams filled with sandy and fine sediments, with lentic and wetland habitats alongside the main stream channels (Haag 2012, p. 87.). This province has numerous endemic aquatic species of both fish and freshwater mussels, the majority of which are shared with the Mobile Basin province (Haag 2012, pp. 87-89), and includes the Pearl River population in an overall low condition. The Pearl River population in this faunal province is subject to threats such as erratic flows from water releases from the Ross Barrett Dam that are capable of causing bed movement or dislocation of mussels, increased sedimentation, and altered water chemistry (
We evaluated the available information about this portion of the range of Louisiana pigtoe that occupies the upper Pearl River in this context, assessing its biological significance in terms of the three habitat criteria (habitat/structure, hydrology, and water quality; see
Therefore, no portion of the species' range provides a basis for determining that the species is in danger of extinction in a significant portion of its range, and we determine that the species is likely to become in danger of extinction within the foreseeable future throughout all of its range. This does not conflict with the courts' holdings in
Our review of the best available scientific and commercial information indicates that the Louisiana pigtoe meets the Act's definition of a threatened species. Therefore, we propose to list the Louisiana pigtoe as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act.
Conservation measures provided to species listed as endangered or threatened species under the Act include recognition as a listed species, planning and implementation of recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies, including the Service, and the prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Section 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.
The recovery planning process begins with development of a recovery outline made available to the public soon after a final listing determination. The recovery outline guides the immediate implementation of urgent recovery actions while a recovery plan is being developed. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) may be established to develop and implement recovery plans. The recovery planning process involves the identification of actions that are necessary to halt and reverse the species' decline by addressing the threats to its survival and recovery. The recovery plan identifies recovery criteria for review of when a species may be ready for reclassification from endangered to threatened (“downlisting”) or removal from protected status (“delisting”), and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery outline, draft recovery plan, final recovery plan, and any revisions will be available on our website as they are completed (
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (
If these species are listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the States of Arkansas, Oklahoma, Louisiana, Mississippi, and Texas would be eligible for Federal funds to implement management actions that promote the protection or recovery of the Texas heelsplitter and Louisiana pigtoe. Information on our grant programs that are available to aid species recovery can be found at:
Although the Texas heelsplitter and Louisiana pigtoe are only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for these species. Additionally, we invite you to submit any new information on these species whenever it becomes available and any information you may have for recovery planning purposes (see
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.
Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the Federal Emergency Management Agency (related to disaster recovery projects), National Park Service, Natural Resources Conservation Service, National Wildlife Refuge System, U.S. Army, U.S. Army Corps of Engineers, and the U.S. Forest Service.
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered wildlife. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any species listed as an endangered species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. The statute also contains certain exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.
It is our policy, as published in the
For the Texas heelsplitter, based on the best available information, the following actions are unlikely to result in a violation of section 9, if these activities are carried out in accordance with existing regulations and permit requirements; this list is not comprehensive:
(1) Normal agricultural and silvicultural practices, including herbicide and pesticide use, that are carried out in accordance with any existing regulations, permit and label requirements, and best management practices; and
(2) Normal residential landscaping activities.
Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act, if they are not authorized in accordance with applicable law; this list is not comprehensive:
(1) Unauthorized handling or collecting of the species;
(2) Unauthorized destruction or alteration of Texas heelsplitter habitat by dredging, channelization, impoundment, diversion, recreational vehicle operation within the stream channel, sand or gravel removal, or other activities that result in the destruction or significant degradation of channel or bank stability, streamflow/water quantity, substrate composition, and water quality used by the species for foraging, cover, and reproduction;
(3) Modification of the channel or water flow of any stream, including the withdrawal (decrease) or supplementation (increase) of surface or ground waters where the Texas heelsplitter is known to occur;
(4) Livestock grazing that results in direct or indirect destruction of riparian or instream habitat; and
(5) Unauthorized discharge of chemicals (including pesticides and fertilizers in violation of label restrictions), household waste, silt, sediments, fill material, or other pollutants (
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Arlington Ecological Services Field Office (see
Section 4(d) of the Act contains two sentences. The first sentence states that the Secretary shall issue such regulations as she deems necessary and advisable to provide for the conservation of species listed as threatened. The U.S. Supreme Court has noted that statutory language similar to the language in section 4(d) of the Act authorizing the Secretary to take action that she “deems necessary and advisable” affords a large degree of deference to the agency (see
The courts have recognized the extent of the Secretary's discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, courts have upheld, as a valid exercise of agency authority, rules developed under section 4(d) that included limited prohibitions against takings (see
The provisions of this proposed 4(d) rule would promote conservation of the Louisiana pigtoe by encouraging riparian landscape conservation while also meeting the conservation needs of the Louisiana pigtoe. By streamlining those projects that follow best management practices and improve instream habitat (such as streambank
As mentioned previously in Available Conservation Measures, section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action that is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of Federal actions that are subject to the section 7 consultation process are actions on State, Tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
These requirements are the same for a threatened species with a species-specific 4(d) rule. For example, a Federal agency's determination that an action is “not likely to adversely affect” a threatened species will require the Service's written concurrence. Similarly, a Federal agency's determination that an action is “likely to adversely affect” a threatened species will require formal consultation and the formulation of a biological opinion.
Exercising the Secretary's authority under section 4(d) of the Act, we have developed a proposed rule that is designed to address the Louisiana pigtoe's specific conservation needs. As discussed previously in Summary of Biological Status and Threats, we have concluded that the Louisiana pigtoe is likely to become in danger of extinction within the foreseeable future primarily due to habitat changes such as the accumulation of fine sediments, altered hydrology, and impairment of water quality; predation and collection; and barriers to fish movement. Section 4(d) requires the Secretary to issue such regulations as she deems necessary and advisable to provide for the conservation of each threatened species and authorizes the Secretary to include among those protective regulations any of the prohibitions that section 9(a)(2) of the Act prescribes for endangered species. We find that, if finalized, the protections, prohibitions, and exceptions in this proposed rule as a whole satisfy the requirement in section 4(d) of the Act to issue regulations deemed necessary and advisable to provide for the conservation of the Louisiana pigtoe.
The protective regulations we are proposing for the Louisiana pigtoe incorporate prohibitions from section 9(a)(1) to address the threats to the species. Section 9(a)(1) prohibits the following activities for endangered wildlife: importing or exporting; take; possession and other acts with unlawfully taken specimens; delivering, receiving, transporting, or shipping in interstate or foreign commerce in the course of commercial activity; or selling or offering for sale in interstate or foreign commerce. This protective regulation includes most of these prohibitions for the Louisiana pigtoe because the Louisiana pigtoe is at risk of extinction in the foreseeable future and putting these prohibitions in place will help to preserve the species' remaining populations, slow its rate of decline, and decrease synergistic, negative effects from other stressors.
In particular, this proposed 4(d) rule would provide for the conservation of the Louisiana pigtoe by prohibiting the following activities, unless they fall within specific exceptions or are otherwise authorized or permitted: Importing or exporting; take; possession and other acts with unlawfully taken specimens; delivering, receiving, transporting, or shipping in interstate or foreign commerce in the course of commercial activity; or selling or offering for sale in interstate or foreign commerce.
Under the Act, “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Some of these provisions have been further defined in regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by direct and indirect impacts, intentionally or incidentally. Regulating incidental and intentional take would help preserve the species' remaining populations, slow their rate of decline, and decrease synergistic, negative effects from other stressors. Therefore, we propose to prohibit take of the Louisiana pigtoe, except for take resulting from those actions and activities specifically excepted by the 4(d) rule.
Exceptions to the prohibition on take would include most of the general exceptions to the prohibition against take of endangered wildlife, as set forth in 50 CFR 17.21 and certain other specific activities that we propose for exception, as described below.
The proposed 4(d) rule would also provide for the conservation of the species by allowing exceptions that incentivize conservation actions or that, while they may have some minimal level of take of the Louisiana pigtoe, are not expected to rise to the level that would have a negative impact (
(1) Channel restoration projects that create natural, physically stable (streambanks and substrate remaining relatively unchanging over time), ecologically functioning streams or stream and wetland systems (containing an assemblage of fish, mussels, other invertebrates, and plants) that are reconnected with their groundwater aquifers. These projects can be accomplished using a variety of methods, but the desired outcome is a natural channel with low shear stress (force of water moving against the channel); bank heights that enable reconnection to the floodplain; a reconnection of surface and groundwater systems, resulting in perennial flows in the channel; riffles and pools composed of existing soil, rock, and wood instead of large imported materials; low compaction of soils within adjacent riparian areas; and inclusion of riparian wetlands and woodland buffers. This exception to the
(2) Bioengineering methods such as streambank stabilization using live native stakes (live, vegetative cuttings inserted or tamped into the ground in a manner that allows the stake to take root and grow), live native fascines (live branch cuttings, usually willows, bound together into long, cigar-shaped bundles), or native brush layering (cuttings or branches of easily rooted tree species layered between successive lifts of soil fill). These methods must not include the sole use of quarried rock (rip-rap) or the use of rock baskets or gabion structures. In addition, to reduce streambank erosion and sedimentation into the stream, work using these bioengineering methods must be performed at base flow or low water conditions and when significant rainfall is not predicted. Further, streambank stabilization projects must keep all equipment out of the stream channels and water. Similar to channel restoration projects, this exception to the proposed 4(d) rule for incidental take would promote conservation of Louisiana pigtoe by creating stable stream channels that are less likely to scour during high-flow events, thereby increasing population resiliency.
(3) Soil and water conservation practices and riparian and adjacent upland habitat management activities that restore instream habitats for the species, restore adjacent riparian habitats that enhance stream habitats for the species, stabilize degraded and eroding stream banks to limit sedimentation and scour of the species' habitats, and restore or enhance nearby upland habitats to limit sedimentation of the species' habitats. We recommend that these practices and activities comply with specifications and technical guidelines developed by the U.S. Department of Agriculture's Natural Resources Conservation Service (NRCS), as soil and water conservation practices and aquatic species habitat restoration projects associated with NRCS conservation plans are designed to improve water quality and enhance fish and aquatic species habitats. This exception to the proposed 4(d) rule for incidental take would promote conservation of Louisiana pigtoe by creating stable stream channels and reducing sediment inputs to the stream, thereby increasing population resiliency.
We include other standard exceptions to the prohibitions in the proposed 4(d) rule for the Louisiana pigtoe.
Despite these prohibitions regarding threatened species, we may under certain circumstances issue permits to carry out one or more otherwise-prohibited activities, including those described above. The regulations that govern permits for threatened wildlife state that the Director may issue a permit authorizing any activity otherwise prohibited with regard to threatened species. These include permits issued for the following purposes: for scientific purposes, to enhance propagation or survival, for economic hardship, for zoological exhibition, for educational purposes, for incidental taking, or for special purposes consistent with the purposes of the Act (50 CFR 17.32). The statute also contains certain exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.
We recognize the special and unique relationship with our State natural resource agency partners in contributing to conservation of listed species. State agencies often possess scientific data and valuable expertise on the status and distribution of endangered, threatened, and candidate species of wildlife and plants. State agencies, because of their authorities and their close working relationships with local governments and landowners, are in a unique position to assist us in implementing all aspects of the Act. In this regard, section 6 of the Act provides that we must cooperate to the maximum extent practicable with the States in carrying out programs authorized by the Act. Therefore, any qualified employee or agent of a State conservation agency that is a party to a cooperative agreement with us in accordance with section 6(c) of the Act, who is designated by his or her agency for such purposes, would be able to conduct activities designed to conserve Louisiana pigtoe that may result in otherwise prohibited take without additional authorization.
Nothing in this proposed 4(d) rule would change in any way the recovery planning provisions of section 4(f) of the Act, the consultation requirements under section 7 of the Act, or our ability to enter into partnerships for the management and protection of the Louisiana pigtoe. However, interagency cooperation may be further streamlined through planned programmatic consultations for the species between us and other Federal agencies, where appropriate. We ask the public, particularly State agencies and other interested stakeholders that may be affected by the proposed 4(d) rule, to provide comments and suggestions regarding additional guidance and methods that we could provide or use, respectively, to streamline the implementation of this proposed 4(d) rule (see Information Requested, above).
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species' occurrences, as determined by the Secretary (
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land
Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) the prohibitions found in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary may, but is not required to, determine that a designation would not be prudent in the following circumstances:
(i) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species;
(ii) The present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or threats to the species' habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available.
As discussed earlier in this document, there are well documented beds of Louisiana pigtoe that are sampled for scientific projects, and to a lesser degree collected by fishing enthusiasts for use as bait. Because these areas are already well known, and they are not being collected for private collections, there is currently no additional imminent threat of collection or vandalism identified under Factor B for these species, and identification and mapping of critical habitat is not expected to initiate any such threat. In our SSA and proposed listing determination for the Texas heelsplitter and Louisiana pigtoe, we determined that the present or threatened destruction, modification, or curtailment of habitat or range is a threat to these species and that those threats in some way can be addressed by section 7(a)(2) consultation measures. These species occur wholly in the jurisdiction of the United States, and we are able to identify areas that meet the definition of critical habitat. Therefore, because none of the circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) have been met and because
Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the Texas heelsplitter and Louisiana pigtoe is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well known to identify any area that meets the definition of “critical habitat.” When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where these species are located. This and other information represent the best scientific data available and led us to conclude that the designation of critical habitat is determinable for the Texas heelsplitter and Louisiana pigtoe.
In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas we will designate as critical habitat from within the geographical area occupied by the species at the time of listing, we consider the physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection. The regulations at 50 CFR 424.02 define “physical or biological features essential to the conservation of the species” as the features that occur in specific areas and that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity.
For example, physical features essential to the conservation of the species might include gravel of a particular size required for spawning, alkaline soil for seed germination, protective cover for migration, or susceptibility to flooding or fire that maintains necessary early-successional habitat characteristics. Biological features might include prey species, forage grasses, specific kinds or ages of trees for roosting or nesting, symbiotic fungi, or a particular level of nonnative species consistent with conservation needs of the listed species. The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic essential to support the life history of the species.
In considering whether features are essential to the conservation of the species, we may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species. These characteristics include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing (or development) of offspring; and habitats that are protected from disturbance.
We derive the specific physical or biological features (PBFs) essential for the conservation of the Texas heelsplitter and Louisiana pigtoe from studies of these species' habitat, ecology, and life history. The life histories of these two freshwater mussel species are very similar—mussels need suitable water quality, flowing water, suitable substrate, flow refuges, and appropriate host fish—and so we will discuss their common habitat needs and then describe their species-specific needs.
Freshwater mussels, as a group, are sensitive to changes in water quality, including parameters such as dissolved oxygen, salinity, ammonia, and environmental pollutants (
The release of pollutants into streams from point and nonpoint sources have immediate impacts on water quality conditions and may make environments unsuitable for habitation by mussels. Early life stages of freshwater mussels are some of the most sensitive organisms of all species to ammonia and copper (Augspurger
Finally, water temperature plays a critical role in the life history of freshwater mussels. High water temperatures can cause valve closure, reduced reproductive output, and death. Laboratory studies investigating the effects of thermal stress on glochidia and adults have indicated thermal stress may occur at 27 °C (80.6 °F) (Bonner
Based on the above information, we determine that stream reaches with the following water quality parameters are suitable for the Texas heelsplitter and Louisiana pigtoe:
• Water temperature below 27 °C (80.6 °F);
• Dissolved oxygen levels greater than 3 mg/L;
• Low salinity (less than 2 ppt) and total dissolved solids;
• Low total ammonia and nitrogen (below 0.3-0.7 mg/L total ammonia nitrogen);
• Low levels of copper, nickel, and other trace metals;
• Low levels of pesticides, sulfate, chloride, potassium, and other harmful constituents; and
• Low pollutants and environmental contaminants common to wastewater.
Most freshwater mussels, including the Texas heelsplitter and Louisiana pigtoe, are found in aggregations, called mussel beds, that vary in size from about 50 to greater than 5,000 square meters (m
The Texas heelsplitter needs low to moderately flowing streams, and tolerates impoundments (lakes, reservoirs, or pools without flow). All life stages of the Texas heelsplitter require substrates consisting of firm mud, sand, finer gravels, and mixtures of those with high organic matter content. The Louisiana pigtoe needs flowing water for survival and occurs in medium- to large-sized streams and rivers associated with riffle, run, and sometimes larger backwater tributary habitats. All life stages of the Louisiana pigtoe require substrates consisting of cobble/rock, sand/gravel/woody debris, and runs with subdominant gravel mixtures. River reaches with continuous flow support all life stages of these two species of freshwater mussels, while those with little or no flow do not. Flow rates needed by each species will vary depending on the species and the river size, location, and substrate type. Habitat locations must be relatively free of fine sediments for both species such that the mussels are not smothered.
As discussed above, freshwater mussel larvae are parasites that must attach to a host fish to develop into juvenile mussels. The Texas heelsplitter and Louisiana pigtoe use a variety of host fish, many of which are widely distributed throughout their ranges. The presence of these fish species, either singly or in combination, supports the life-history needs of these two species of freshwater mussels:
• Texas heelsplitter: freshwater drum (
• Louisiana pigtoe: red shiner (
In summary, we derive the specific PBFs essential to the conservation of Texas heelsplitter and Louisiana pigtoe from studies of these species' habitat, ecology, and life history as described above. Additional information can be found in the SSA report available on
We have determined that the following PBFs are essential to the conservation of the Texas heelsplitter:
1. Water quality parameters within the following ranges:
a. Water temperature below 27 °C (80.6 °F);
b. Dissolved oxygen levels greater than 3 mg/L;
c. Low salinity (less than 2 ppt) and total dissolved solids;
d. Low total ammonia and nitrogen (below 0.3-0.7 mg/L total ammonia nitrogen);
e. Low levels of copper, nickel, and other trace metals;
f. Low levels of pesticides, sulfate, chloride, potassium, and other harmful constituents; and
g. Low pollutants and environmental contaminants common to wastewater.
2. Moderately flowing water rates suitable to prevent excess sedimentation but not so high as to dislodge individuals or sediment; or no water flow, if in an impoundment (lake, reservoir, or pool without flow).
3. Substrate including bedrock and boulder crevices, point bars, and vegetated run habitat comprising sand, gravel, and larger cobbles.
4. Freshwater drum (
We have determined that the following PBFs are essential to the conservation of the Louisiana pigtoe:
1. Water quality parameters within the following ranges:
a. Water temperature below 27 °C (80.6 °F);
b. Dissolved oxygen levels greater than 3 mg/L;
c. Low salinity (less than 2 ppt) and total dissolved solids;
d. Low total ammonia and nitrogen (below 0.3-0.7 mg/L total ammonia nitrogen);
e. Low levels of copper, nickel, and other trace metals;
f. Low levels of pesticides, sulfate, chloride, potassium, and other harmful constituents; and
g. Low pollutants and environmental contaminants common to wastewater.
2. Moderately flowing water rates suitable to prevent excess sedimentation but not so high as to dislodge individuals or sediment.
3. Stable bank and riffle habitats with bedrock and boulder crevices, point bars, and vegetated run habitat comprising sand, gravel, and larger cobbles.
4. Red shiner (
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection. The features essential to the conservation of the Texas heelsplitter and Louisiana pigtoe may require special management considerations or protections to reduce the following threats: increased fine sediment, changes in water quality impairment, altered hydrology from both inundation and flow loss/scour, predation and collection, and barriers to fish movement.
Management activities that could ameliorate these threats include, but are not limited to: Use of best management practices (BMPs) designed to reduce sedimentation, erosion, and bank side destruction; protection of riparian corridors and retention of sufficient canopy cover along banks; exclusion of livestock and nuisance wildlife (feral hogs, exotic ungulates); moderation of
In summary, we find that the occupied areas we are proposing to designate as critical habitat contain the PBFs that are essential to the conservation of the species and that may require special management considerations or protection. Special management considerations or protection may be required of the Federal action agency to eliminate, or to reduce to negligible levels, the threats affecting the PBFs of each unit.
As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat. We are not currently proposing to designate any areas outside the geographical area occupied by the Texas heelsplitter and Louisiana pigtoe because we have determined that the occupied areas are sufficient to conserve the species.
We anticipate that recovery will require conserving the genetic diversity of extant populations across the species' current ranges and maintaining and, where necessary, improving habitat and habitat connectivity to ensure the long-term viability of the Texas heelsplitter and Louisiana pigtoe. This proposed critical habitat designation delineates the habitat that is physically occupied and used by the species rather than delineating all land or aquatic areas that influence the species. We recognize that there may be additional occupied areas outside of the proposed areas designated as critical habitat that we are not aware of at the time of this designation that may be necessary for the conservation of the species. We have determined that the areas currently occupied by the Texas heelsplitter and Louisiana pigtoe would maintain each species' resiliency, redundancy, and representation and are sufficient to conserve these two species. Therefore, we are not currently proposing to designate any areas outside the geographical area occupied by the species.
Sources of data for this proposed critical habitat include multiple databases maintained by universities and State agencies, scientific and agency reports, and numerous survey reports on streams throughout the species' range (Service 2022, pp. 16-24).
The proposed critical habitat designations do not include all rivers and streams known to have been occupied by the species historically; instead, they focus on rivers and streams occupied at the time of listing that have retained the necessary PBFs that will allow for the maintenance and expansion of existing populations. A stream reach may not have all of the PBFs to be included as proposed critical habitat; in such reaches, our goal is to recover the species by restoring the missing PBFs. We defined “occupied” units as stream channels with observations of one or more live individuals. Specific habitat areas were delineated based on reports of live individuals and recently dead shells. We include “recent dead shell material” to delineate the boundaries of a unit because recently dead shell material at a site indicates the species is present in that area. Recently dead shells have tissue remaining on the shells or have retained a shiny nacre, indicating the animal died within days or weeks of finding the shell. It is highly unlikely that a dead individual represents the last remaining individual of the population, and recently dead shells are an accepted indicator of a species' presence (
We are relying on evidence of occupancy from data collected in 2000 to the present. This is because freshwater mussels may be difficult to detect, and some sites are not visited multiple times. Additionally, these species live at least 15 to 20 years. Because adults are less sensitive to habitat changes than juveniles, changes in population sizes usually occur over decades rather than years. As a result, areas where individuals were collected within the last 20 years are expected to remain occupied now. Additionally, any areas that were surveyed around 20 years ago and do not have subsequent surveys were reviewed for any large-scale habitat changes (
For areas proposed as critical habitat, we delineated critical habitat unit boundaries using the following criterion: Evaluate habitat suitability of stream segments within the geographic area occupied at the time of listing, and retain those segments that contain some or all of the PBFs to support life-history functions essential for conservation of the species. Humanmade reservoirs are not considered natural habitat for either species and may not contain all of the PBFs; therefore, they were not delineated as critical habitat for Texas heelsplitter, which occurs in some reservoirs. The recovery vision for Texas heelsplitter will not be focused on enhancing the species in these areas.
As a final step, we evaluated those occupied stream segments retained through the above analysis and refined the starting and ending points by evaluating the presence or absence of appropriate PBFs. We selected upstream and downstream cutoff points to reference existing easily recognizable geopolitical features including confluences, highway crossings, and county lines. Using these features as end points allows the public to clearly understand the boundaries of critical habitat. Unless otherwise specified, any stream beds located directly beneath bridge crossings or other landmark features used to describe critical habitat spatially, such as stream confluences, are considered to be wholly included within the critical habitat unit. Critical habitat stream segments were then mapped using ArcMap version 10.6.1 (ESRI, Inc.), a Geographic Information Systems program.
We consider the following streams and rivers to be occupied by the Texas heelsplitter at the time of proposed listing: Neches River, Sabine River, and Trinity River.
We consider the following streams and rivers to be occupied by the Louisiana pigtoe at the time of proposed listing: Angelina River, Big Cypress Bayou, Calcasieu River, Cossatot River, Little River, Neches River, Pearl River, Rolling Fork, Sabine River, Saline River, San Jacinto River, and Sulphur River.
When determining proposed critical habitat boundaries, we made every
We are proposing to designate as critical habitat three units for the Texas heelsplitter and six units for the Louisiana pigtoe based on one or more of the PBFs being present to support the Texas heelsplitter's or Louisiana pigtoe's life-history processes. Some units contain all of the identified physical or biological features and support multiple life-history processes. Some units contain only some of the PBFs necessary to support the Texas heelsplitter's or Louisiana pigtoe's particular use of that habitat.
The proposed critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document under Proposed Regulation Promulgation. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on
We are proposing to designate approximately 832 river mi (1,339 km) in three units as critical habitat for Texas heelsplitter and approximately 1,028 river mi (1,654 km) in six units for the Louisiana pigtoe. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for Texas heelsplitter and Louisiana pigtoe. All units are occupied by their respective species. The three areas we propose as critical habitat for Texas heelsplitter are all in Texas and are: (1) Trinity River, (2) Sabine River, and (3) Neches River. The six areas we propose as critical habitat for Louisiana pigtoe are: (1) Little River (Arkansas/Oklahoma), (2) Sabine River (Louisiana/Texas), (3) Neches River (Texas), (4) San Jacinto River (Texas), (5) Calcasieu River (Louisiana), and (6) Pearl River (Louisiana/Mississippi). One proposed Louisiana pigtoe critical habitat subunit, LAPT-1a (Upper Little River, Oklahoma; 25.7 river miles (41.4 km)), is located within the Choctaw Reservation, but not on any lands held in trust for the Tribe, or owned or managed by the Tribe. Tables 5 and 6 show the proposed critical habitat units, the adjacent riparian area ownership, and the approximate area of each unit.
We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the Texas heelsplitter (TXHS) or Louisiana pigtoe (LAPT) below.
The Trinity River Subunit is being affected by impoundments, wastewater return flows, ongoing agricultural activities, and development resulting in excessive sedimentation, water quality degradation, ground water withdrawals, and surface water diversions. Therefore, special management considerations may be required to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. There is no overlap with any designated critical habitat for other listed species.
The Bedias Creek Subunit is influenced by drought, low flows, and flooding (leading to scour), and the subunit is being affected by ongoing agricultural activities and development resulting in excessive sedimentation, water quality degradation, ground water withdrawals, and surface water diversions. Therefore, special management may be required to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. There is no overlap with any designated critical habitat for other listed species.
The Upper Sabine River Subunit is influenced by drought, low flows, and flooding (leading to scour), and the subunit is being affected by impoundments, ongoing agricultural activities, and development resulting in excessive sedimentation, water quality degradation, ground water withdrawals, and surface water diversions. Therefore, special management considerations may be required to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. There is an overlap of 110.05 river mi (177.11 km) of this unit with proposed critical habitat for the Louisiana pigtoe.
The Lake Fork Creek Subunit is influenced by drought, low flows, and flooding (leading to scour), and the subunit is being affected by impoundments, ongoing agricultural activities, and development resulting in excessive sedimentation, water quality degradation, ground water withdrawals, and surface water diversions. Therefore, special management considerations may be required to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. There is no overlap with any designated critical habitat for other listed species.
The Patroon Bayou Subunit is influenced by drought, low flows, and flooding (leading to scour), and the subunit is being affected by ongoing agricultural activities and development resulting in excessive sedimentation, water quality degradation, ground water withdrawals, and surface water diversions. Therefore, special management considerations may be required to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. There is no overlap with any designated critical habitat for other listed species.
The Upper Neches River Subunit is influenced by drought, low flows, and flooding (leading to scour), and the subunit is being affected by impoundments, ongoing agricultural activities, and development resulting in excessive sedimentation, water quality degradation, ground water withdrawals, and surface water diversions. Therefore, special management considerations may be required to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. There is an overlap of 200.38 river mi (322.48 km) of this unit with proposed critical habitat for the Louisiana pigtoe.
The Lower Angelina River Subunit is influenced by drought, low flows, and flooding (leading to scour), and the subunit is being affected by impoundments, ongoing agricultural activities, and development resulting in excessive sedimentation, water quality degradation, ground water withdrawals, and surface water diversions. Therefore, special management considerations may be required to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. There is no overlap with any designated critical habitat for other listed species.
The Lower Neches River Subunit is influenced by drought, low flows, and flooding (leading to scour); and the subunit is being affected by impoundments, ongoing agricultural activities, and development resulting in excessive sedimentation, water quality degradation, groundwater withdrawals, and surface water diversions. Therefore, special management considerations may be required to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. There is an overlap of 76.35 river mi (122.87 km) of this unit with proposed critical habitat for the Louisiana pigtoe.
Drought conditions and flooding in the Little River are seldom extreme; however, this subunit is affected by hydroelectric dam-related cold water releases in the Mountain Fork from Broken Bow Reservoir and ongoing agricultural activities, resulting in excessive sedimentation, water quality degradation, ground water withdrawals, and surface water diversions. Therefore, special management considerations may be required to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. The Upper Little River Subunit is occupied by four federally listed freshwater mussels, the endangered pink mucket (
Drought conditions and flooding in Rolling Fork are seldom extreme; however, this subunit is affected by impoundments and ongoing agricultural activities, resulting in excessive sedimentation, water quality degradation, ground water withdrawals, and surface water diversions. Therefore, special management considerations may be required to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. There is no overlap with any designated critical habitat for other listed species.
Drought conditions and flooding in the Cossatot River are seldom extreme; however, this subunit is affected by impoundments and ongoing agricultural activities, resulting in excessive sedimentation, water quality degradation, ground water withdrawals, and surface water diversions. Therefore, special management considerations may be required to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. There is no overlap with any designated critical habitat for other listed species.
Drought conditions and flooding in the Saline River are seldom extreme; however, this subunit is affected by impoundments and ongoing agricultural activities, resulting in excessive sedimentation, water quality degradation, ground water withdrawals, and surface water diversions. Therefore, special management considerations may be required to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. There is no overlap with any designated critical habitat for other listed species.
The Upper Sabine River Subunit is occupied by the Louisiana pigtoe and contains all the PBFs essential to the conservation of the species most of the year. However, drought conditions and flooding in the Sabine River can be extreme, causing the species to experience either extreme low-flow conditions with associated reduced water quality or extreme high flows that mobilize substrates, erode habitat, or deposit sediment on Louisiana pigtoe populations. The City of Longview, Texas, is located north of the subunit at approximately one-third of the reach length upstream from the downstream terminus. Industrial and municipal wastewater associated with this urban area are discharged into the Sabine River Basin. The Upper Sabine River Subunit is influenced by drought, low flows, and flooding (leading to scour), and the subunit is being affected by impoundments, ongoing agricultural activities, and development resulting in excessive sedimentation, water quality degradation, ground water withdrawals, and surface water diversions. Therefore, special management considerations may be required to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. There is an overlap of 110.05 river mi (177.11 km) of this unit with proposed critical habitat for the Texas heelsplitter.
Three sand and gravel mining operations and one paper mill that exist adjacent to this subunit likely negatively affect water quality from activities that generate point and non-point source pollution. Wastewater and storm water runoff associated with these activities are discharged into Anacoco Bayou drainage. The Anacoco Bayou Subunit is influenced by drought, low flows, and flooding (leading to scour), and the subunit is being affected by impoundments, as well as ongoing mining and industrial activities resulting in excessive sedimentation, water quality degradation, ground water withdrawals, and surface water diversions. Therefore, special management considerations may be required to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. There is no overlap with any designated critical habitat for other listed species.
The Upper Neches River Subunit is influenced by drought, low flows, and flooding (leading to scour), and the subunit is being affected by impoundments, ongoing agricultural activities, and development resulting in excessive sedimentation, water quality degradation, ground water withdrawals, and surface water diversions. Therefore, special management considerations may be required to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. The entire subunit overlaps with proposed critical habitat for the Texas heelsplitter.
The Upper Angelina River Subunit is influenced by drought, low flows, and flooding (leading to scour); the subunit is being affected by impoundments, ongoing agricultural activities, and development resulting in excessive sedimentation, water quality degradation, ground water withdrawals, and surface water diversions. Therefore, special management considerations may be required to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. There is no overlap with any designated critical habitat for other listed species.
The Lower Neches River Subunit is influenced by drought, low flows, and flooding (leading to scour); the subunit is being affected by impoundments, ongoing agricultural activities, and development resulting in excessive sedimentation, water quality degradation, groundwater withdrawals, and surface water diversions. Therefore, special management considerations may be required to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. The entire subunit overlaps with proposed critical habitat for the Texas heelsplitter.
The Village Creek Subunit is influenced by drought, low flows, and flooding (leading to scour); the subunit is being affected by impoundments, ongoing agricultural activities, and development resulting in excessive sedimentation, water quality degradation, ground water withdrawals, and surface water diversions. Therefore, special management considerations may be required to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. There is no overlap with any designated critical habitat for other listed species.
The Big Sandy Creek Subunit is influenced by drought, low flows, and flooding (leading to scour), and the subunit is being affected by ongoing agricultural activities and development resulting in excessive sedimentation, water quality degradation, ground water withdrawals, and surface water diversions. Therefore, special management considerations may be required to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. There is no overlap with any designated critical habitat for other listed species.
The East Fork San Jacinto River Unit includes 23.3 river mi (37.5 km) of the East Fork San Jacinto River in Liberty and Montgomery Counties, Texas. The downstream boundary of this unit is located at the FM 1485 bridge approximately 1 mile (1.6 km) east of Lake Houston Wilderness Park. The upstream boundary coincides with the Low Water Bridge Road (FM 388) bridge approximately 1.6 mi (2.6 km) northwest of Cleveland, Texas. Adjacent riparian areas are privately owned. Although located 10 mi northwest of the Houston metropolitan area, this reach is mostly rural and predominately within riparian woodlands, but it is bordered by developed areas. Four sand and gravel mining operations are located adjacent to this unit. The East Fork San Jacinto River Unit is occupied by the Louisiana pigtoe and contains all the PBFs essential to the conservation of the species most of the year. However, drought conditions and flooding in the East Fork San Jacinto River can be extreme, causing the species to experience either extreme low-flow conditions with associated reduced water quality or extreme high flows that mobilize substrates, erode habitat, or deposit sediments on Louisiana pigtoe populations.
The East Fork San Jacinto River Unit is influenced by drought, low flows, and flooding (leading to scour), and the unit is being affected by ongoing agricultural activities and development resulting in excessive sedimentation, water quality
The Upper Calcasieu River Subunit is influenced by drought, low flows, and flooding (leading to scour), and the subunit is being affected by ongoing agricultural activities and development resulting in excessive sedimentation, water quality degradation, ground water withdrawals, and surface water diversions. Therefore, special management considerations may be required to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. There is no overlap with any designated critical habitat for other listed species.
The Whisky Chitto Creek Subunit is influenced by drought, low flows, and flooding (leading to scour), and the subunit is being affected by ongoing agricultural activities and development resulting in excessive sedimentation, water quality degradation, ground water withdrawals, and surface water diversions. Therefore, special management considerations may be required to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. There is no overlap with any designated critical habitat for other listed species.
The Tenmile Creek Subunit is influenced by drought, low flows, and flooding (leading to scour), and the subunit is being affected by ongoing agricultural activities and development resulting in excessive sedimentation, water quality degradation, ground water withdrawals, and surface water diversions. Therefore, special management considerations may be required to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. There is no overlap with any designated critical habitat for other listed species.
The Pearl River Unit consists of 86.6 river mi (139.3 km) in St. Tammany and Washington parishes, Louisiana, and Marion and Pearl River Counties, Mississippi. The Pearl River splits into two significant channels within Bogue Chitto National Wildlife Refuge, and a navigation channel is associated with the west channel. Proposed critical habitat river mileage is calculated from the east channel only, but the Pearl River Unit does include the west channel by definition. The navigation channel is excluded from the unit. Following the east channel, the Pearl River Unit extends upstream along the Louisiana/Mississippi State line from the I-59 bridge located 1 mile (1.6 km) south of Nicholson, Mississippi, to where the Pearl River enters Louisiana from Mississippi, which is located 3.9 mi (6.3 km) southeast of Sandy Hook, Mississippi. The west channel extends from the I-59 bridge located 0.9 mi (1.4 km) northeast of Pearl River, Louisiana, and continues upstream to its confluence with the east channel, which is located approximately 2.7 mi (4.3 km) west of Industrial, Mississippi. Ownership of adjacent riparian areas is 44 percent private, 14 percent State, and 42 percent Federal. This reach is largely rural and predominately within riparian woodlands. The Pearl River Unit is occupied by the Louisiana pigtoe and contains all the PBFs essential to the conservation of the species most of the year. However, drought conditions and flooding in the Pearl River can be extreme, causing the species to experience either extreme low-flow conditions with related reduced water quality or extreme high flows that mobilize substrates, erode habitat, or deposit sediment on Louisiana pigtoe populations.
The Pearl River Unit is influenced by drought, low flows, and flooding (leading to scour), and the subunit is being affected by impoundments, ongoing agricultural activities, and development resulting in excessive sedimentation, water quality degradation, ground water withdrawals, and surface water diversions. Therefore, special management considerations may be required to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. The entire subunit overlaps with critical habitat for the federally listed Gulf sturgeon (
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.
We published a final rule revising the definition of destruction or adverse modification on August 27, 2019 (84 FR 44976). Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, Tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
Compliance with the requirements of section 7(a)(2) is documented through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended purpose of the action,
(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal agencies to reinitiate consultation on previously reviewed actions. These requirements apply when the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law) and, subsequent to the previous consultation: (a) if the amount or extent of taking specified in the incidental take statement is exceeded; (b) if new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (c) if the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion or written concurrence; or (d) if a new species is listed or critical habitat designated that may be affected by the identified action.
In such situations, Federal agencies sometimes may need to request reinitiation of consultation with us, but Congress also enacted some exceptions in 2018 to the requirement to reinitiate consultation on certain land management plans on the basis of a new species listing or new designation of critical habitat that may be affected by the subject Federal action. See 2018 Consolidated Appropriations Act, Public Law 115-141, Div, O, 132 Stat. 1059 (2018).
The key factor related to the destruction or adverse modification determination is whether implementation of the proposed Federal action directly or indirectly alters the designated critical habitat in a way that appreciably diminishes the value of the critical habitat as a whole for the conservation of the listed species. As discussed above, the role of critical habitat is to support physical or biological features essential to the conservation of a listed species and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may violate section 7(a)(2) of the Act by destroying or adversely modifying such habitat, or that may be affected by such designation.
Activities that we may, during a consultation under section 7(a)(2) of the Act, consider likely to destroy or adversely modify critical habitat include, but are not limited to, actions that would: (1) Alter the minimum flow or the existing flow regime (for example, impoundment, channelization, water diversion, water withdrawal, or hydropower generation); (2) significantly alter water chemistry or temperature (for example, release of chemicals, biological pollutants, or heated effluents into surface water or connected groundwater at a point source or by dispersed release (nonpoint source)); (3) significantly increase sediment deposition within the stream channel (for example, excessive sedimentation from livestock grazing; road construction; channel alteration; timber harvest; off-road vehicle use; agricultural, industrial, or urban development; or other watershed and floodplain disturbances); and (4) significantly alter channel morphology or geometry (for example, channelization, impoundment, road and bridge construction, mining, dredging, or destruction of riparian vegetation). These activities may lead to changes in water flows and levels that would degrade or eliminate the mussel or its fish host and/or their habitats. These actions can also lead to increased sedimentation and degradation in water quality to levels that are beyond the tolerances of the mussels or their fish hosts.
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that the Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense (DoD), or designated for its use, that are subject to an integrated natural resources management plan (INRMP) prepared under section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation. No DoD lands with a completed INRMP are within the proposed critical habitat designations.
Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. Exclusion decisions are governed by the regulations at 50 CFR 424.19 and the Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act (hereafter, the “2016 Policy”; 81 FR 7226, February 11, 2016), both of which were developed jointly with the National Marine Fisheries Service (NMFS). We also refer to a 2008 Department of the Interior Solicitor's opinion entitled “The Secretary's Authority to Exclude Areas from a Critical Habitat Designation under section 4(b)(2) of the Endangered Species Act” (M-37016).
In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise discretion to exclude the area only if such exclusion would not result in the extinction of the species. In making the determination to exclude a particular area, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. In our final rules, we explain any decision to exclude areas, as well as decisions not to exclude, to demonstrate that the decision is reasonable. We describe below the process that we use for taking into consideration each category of impacts and any initial analyses of the relevant impacts.
Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate the impacts that a specific critical habitat designation may have on restricting or modifying specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat for the particular species. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.”
The “without critical habitat” scenario represents the baseline for the analysis, which includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat (
For this particular designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from this proposed designations of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the Texas heelsplitter and the Louisiana pigtoe (IEc 2021, entire). We began by conducting a screening analysis of the proposed designations of critical habitat in order to focus our analysis on the key factors that are likely to result in incremental economic impacts. The purpose of the screening analysis is to filter out particular geographic areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. In particular, the screening analysis considers baseline costs (
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with the E.O. regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly affected entities, where practicable and reasonable. If sufficient data are available, we assess to the extent practicable the probable impacts to both directly and indirectly
In our IEM, we attempted to clarify the distinction between the effects that would result from the species being listed and those attributable to the critical habitat designation (
The proposed critical habitat designations for the Texas heelsplitter and Louisiana pigtoe include a total of nine units, all of which are occupied by their respective species. Ownership of riparian lands adjacent to the nine proposed units includes 1,214 river mi (1,954 km; 82.2 percent) in private ownership, and 262 river mi (422 km; 17.8 percent) in public (Federal, State, or Local) ownership. In these areas, any actions that may affect the two species or their habitats would also affect designated critical habitat.
Total incremental costs of critical habitat designation for the Texas heelsplitter and Louisiana pigtoe are not expected to exceed $51,800 (2021 dollars) per year. The costs are reflective of: (1) All proposed units are considered occupied, (2) project modifications requested to avoid adverse modification are likely to be the same as those recommended to avoid jeopardy in occupied habitat for these species, and (3) a portion of the proposed designations receive baseline protection from the presence of critical habitat for co-occurring listed mussel species with similar habitat needs. Because consultation would be required as a result of the listing of the Texas heelsplitter and Louisiana pigtoe and is already required in some of these areas as a result of the presence of other listed species and critical habitats, the economic costs of the critical habitat designation would likely be primarily limited to additional administrative efforts to consider adverse modification for these two species in section 7 consultations.
Based on the consultation history regarding historical projects and activities overlapping the proposed critical habitat areas for the Texas heelsplitter and Louisiana pigtoe, the number of future consultations, including technical assistance efforts, is likely to be no more than nine per year across all nine units. Overall, transportation and utilities activities are expected to result in the largest portion of consultations for both the Texas heelsplitter and Louisiana pigtoe and, therefore, to incur the highest costs. The geographic distribution of future section 7 consultations and associated costs are likely to be most heavily concentrated in all three proposed units for the Texas heelsplitter, and in proposed Units 2 and 3 for the Louisiana pigtoe. However, even assuming consultation activity increases substantially, incremental administrative costs are still likely to remain well under $100 million per year. Therefore, based on the definition of significance in E.O. 12866, they would not be significant.
The entities most likely to incur incremental costs are parties to section 7 consultations, including Federal action agencies and, in some cases, third parties, most frequently State agencies or municipalities. Activities we expect would be subject to consultations that may involve private entities as third parties are farms and ranches acquiring funding through Federal agricultural programs, oil and gas production regulated by the Federal Energy Regulatory Commission, and infrastructure projects that involve Federal funding or authorization. However, based on coordination efforts with State and local agencies, the cost to private entities in these sectors is expected to be relatively minor (administrative costs of less than $10,000 per consultation effort) and would not be significant (
We are soliciting data and comments from the public on the DEA discussed above. During the development of a final designation, we will consider the information presented in the DEA and any additional information on economic impacts we receive during the public comment period to determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4(b)(2) and our implementing regulations at 50 CFR 424.19. We may exclude an area from critical habitat if we determine that the benefits of
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or areas that pose potential national-security concerns (
However, we cannot automatically exclude requested areas. When DoD, DHS, or another Federal agency requests exclusion from critical habitat on the basis of national-security or homeland-security impacts, we must conduct an exclusion analysis if the Federal requester provides information, including a reasonably specific justification of an incremental impact on national security that would result from the designation of that specific area as critical habitat. That justification could include demonstration of probable impacts, such as impacts to ongoing border-security patrols and surveillance activities, or a delay in training or facility construction, as a result of compliance with section 7(a)(2) of the Act. If the agency requesting the exclusion does not provide us with a reasonably specific justification, we will contact the agency to recommend that it provide a specific justification or clarification of its concerns relative to the probable incremental impact that could result from the designation. If we conduct an exclusion analysis because the agency provides a reasonably specific justification or because we decide to exercise the discretion to conduct an exclusion analysis, we will defer to the expert judgment of DoD, DHS, or another Federal agency as to: (1) Whether activities on its lands or waters, or its activities on other lands or waters, have national-security or homeland-security implications; (2) the importance of those implications; and (3) the degree to which the cited implications would be adversely affected in the absence of an exclusion. In that circumstance, in conducting a discretionary section 4(b)(2) exclusion analysis, we will give great weight to national-security and homeland-security concerns in analyzing the benefits of exclusion.
In preparing this proposal, we have determined that the lands within the proposed designations of critical habitat for Texas heelsplitter and Louisiana pigtoe are not owned or managed by the DoD or DHS, and, therefore, we anticipate no impact on national security or homeland security.
Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security discussed above. To identify other relevant impacts that may affect the exclusion analysis, we consider a number of factors, including whether there are permitted conservation plans covering the species in the area—such as HCPs, safe harbor agreements (SHAs), or candidate conservation agreements with assurances (CCAAs)—or whether there are non-permitted conservation agreements and partnerships that may be impaired by designation of, or exclusion from, critical habitat. In addition, we look at whether Tribal conservation plans or partnerships, Tribal resources, or government-to-government relationships of the United States with Tribal entities may be affected by the designation. We also consider any State, local, social, or other impacts that might occur because of the designation.
When analyzing other relevant impacts of including a particular area in a designation of critical habitat, we weigh those impacts relative to the conservation value of the particular area. To determine the conservation value of designating a particular area, we consider a number of factors, including, but not limited to, the additional regulatory benefits that the area would receive due to the protection from destruction or adverse modification as a result of actions with a Federal nexus, the educational benefits of mapping essential habitat for recovery of the listed species, and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat.
In the case of the Texas heelsplitter and Louisiana pigtoe, the benefits of critical habitat include public awareness of the presence of these species and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for the Texas heelsplitter and Louisiana pigtoe due to protection from destruction or adverse modification of critical habitat. Continued implementation of an ongoing management plan that provides conservation equal to or more than the protections that result from a critical habitat designation would reduce those benefits of including that specific area in the critical habitat designation.
We evaluate the existence of a conservation plan when considering the benefits of inclusion. We consider a variety of factors, including, but not limited to, whether the plan is finalized; how it provides for the conservation of the essential physical or biological features; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future; whether the conservation strategies in the plan are likely to be effective; and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information.
After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh those of inclusion. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction of the species. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation.
HCPs for incidental take permits under section 10(a)(1)(B) of the Act provide for partnerships with non-Federal entities to minimize and mitigate impacts to listed species and their habitat. In some cases, HCP permittees agree to do more for the conservation of the species and their habitats on private lands than designation of critical habitat would provide alone. We place great value on the partnerships that are developed
CCAAs and SHAs are voluntary agreements designed to conserve candidate and listed species, respectively, on non-Federal lands. In exchange for actions that contribute to the conservation of species on non-Federal lands, participating property owners are covered by an “enhancement of survival” permit under section 10(a)(1)(A) of the Act, which authorizes incidental take of the covered species that may result from implementation of conservation actions, specific land uses, and, in the case of SHAs, the option to return to a baseline condition under the agreements. We also provide enrollees assurances that we will not impose further land-, water-, or resource-use restrictions, or require additional commitments of land, water, or finances, beyond those agreed to in the agreements.
When we undertake a discretionary section 4(b)(2) exclusion analysis based on permitted conservation plans such as CCAAs, SHAs, and HCPs, we consider the following three factors:
(i) Whether the permittee is properly implementing the conservation plan or agreement;
(ii) Whether the species for which critical habitat is being designated is a covered species in the conservation plan or agreement; and
(iii) Whether the conservation plan or agreement specifically addresses the habitat of the species for which critical habitat is being designated and meets the conservation needs of the species in the planning area.
In preparing this proposal, we have determined that there are currently no HCPs or other management plans for the Texas heelsplitter or Louisiana pigtoe. The proposed designation of critical habitat for the Louisiana pigtoe includes the Choctaw Reservation in Oklahoma, but not any lands held in trust for the tribe, or owned or managed by the tribe. No Tribal lands fall within the range of the Texas heelsplitter or the boundaries of the proposed critical habitat designations. Therefore the proposed designations do not include any Tribal lands or trust resources. We anticipate no impact on Tribal lands, partnerships, or HCPs from the proposed critical habitat designations.
We are currently working with the Sabine River Authority of Louisiana, State of Louisiana, and Sabine River Authority of Texas to develop CCAAs that address activities conducted by the River Authorities and States with conservation measures specifically designed to provide a net conservation benefit to the covered species, including the Texas heelsplitter and Louisiana pigtoe, in the covered area for the term for each of the CCAAs. We are also working with the Trinity River Authority of Texas to develop a CCAA that would address activities conducted by the Trinity River Authority and State with conservation measures specifically designed to provide a net conservation benefit to the covered species, including the Texas heelsplitter, in the covered area for the term of the CCAA. While these agreements are not yet completed, if and when they are, we may consider excluding areas covered by the completed agreements from our critical habitat designations.
At this time, we are not considering any exclusions from the proposed designations based on economic impacts, national security impacts, or other relevant impacts—such as partnerships, management, or protection afforded by cooperative management efforts—under section 4(b)(2) of the Act. In preparing this proposal, we have determined that the proposed designation of critical habitat for the Louisiana pigtoe includes Choctaw Reservation in Oklahoma, but not any lands held in trust for the Tribe, or owned or managed by the Tribe. No tribal lands fall within the range of the Texas heelsplitter or the boundaries of the proposed critical habitat designations. Therefore we have determined that no HCPs or other management plans for the Texas heelsplitter or Louisiana pigtoe currently exist, and the proposed designations do not include any Tribal lands or trust resources. Therefore, we anticipate no impact on Tribal lands, partnerships, or HCPs from the proposed critical habitat designations, and, thus, as described above, we are not considering excluding any particular areas on the basis of the presence of conservation agreements or impacts to trust resources. Some areas within the proposed designations are included in proposed CCAAs. If finalized, we will consider the lands covered in the CCAAs for exclusion in the development of the final designations. However, we have contacted the Choctaw Nation of Oklahoma to request information on any possible impacts and will include such information in our final review.
If through the public comment period we receive information that we determine indicates that there are economic, national security or other relevant impacts from designating particular areas as critical habitat, then as part of developing the final designation of critical habitat, we will evaluate that information and may conduct a discretionary exclusion analysis to determine whether to exclude those areas under authority of section 4(b)(2) and our implementing regulations at 50 CFR 424.19. If we receive a request for exclusion of a particular area and after evaluation of supporting information we do not exclude, we will fully explain our decision in the final rule for this action. (Please see
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this proposed rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine whether potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in light of recent court decisions, Federal agencies are required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself; in other words, the RFA does not require agencies to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies would be directly regulated if we adopt the proposed critical habitat designations. The RFA does not require evaluation of the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that, if made final as proposed, the proposed critical habitat designations will not have a significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designations would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if made final, the proposed critical habitat designations would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.
Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Facilities that provide energy supply, distribution, or use occur within some units of the proposed critical habitat designations (for example, dams, pipelines) and may potentially be affected. We determined that consultations, technical assistance, and requests for species lists may be necessary in some instances. In our economic analysis, we did not find that the proposed critical habitat designations would significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This proposed rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or Tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or Tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or
(2) We do not believe that this proposed rule would significantly or uniquely affect small governments because the vast majority of the lands being proposed for critical habitat designation are owned by the Federal Government; States of Arkansas, Louisiana, Mississippi, Oklahoma, and Texas; and private individuals. These entities do not fit the definition of “small governmental jurisdiction.” One proposed unit (TXHS-2a) includes a very small portion of land owned by the local government, but that is only 1 percent of that one unit. Therefore, a Small Government Agency Plan is not required.
In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the Texas heelsplitter and Louisiana pigtoe in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures, or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed for the proposed designation of critical habitat for the Texas heelsplitter and the Louisiana pigtoe, and it concludes that, if adopted, these designations of critical habitat do not pose significant takings implications for lands within or affected by the designations.
In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of the proposed critical habitat designations with, appropriate State resource agencies. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the proposed rule does not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The proposed designations may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical or biological features of the habitat necessary for the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist State and local governments in long-range planning because they no longer have to wait for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) of the Act would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the proposed rule would not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, this proposed rule identifies the physical or biological features essential to the conservation of the species. The proposed areas of critical habitat are presented on maps, and the proposed rule provides several options for the interested public to obtain more detailed location information, if desired.
This proposed rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with federally recognized Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. We have determined that no Tribal lands fall within the boundaries of the proposed critical habitat for the Texas heelsplitter or Louisiana pigtoe, so no Tribal lands would be affected by the proposed designations.
A complete list of references cited in this rulemaking is available on the internet at
The primary authors of this proposed rule are the staff members of the Fish and Wildlife Service's Species Assessment Team and the Arlington Ecological Services Field Office.
Endangered and threatened species, Exports, Imports, Plants, Reporting and recordkeeping requirements, Transportation, Wildlife.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
(h) * * *
(f) [Reserved]
(g) Louisiana pigtoe (
(1)
(i) Import or export, as set forth at § 17.21(b) for endangered wildlife.
(ii) Take, as set forth at § 17.21(c)(1) for endangered wildlife.
(iii) Possession and other acts with unlawfully taken specimens, as set forth at § 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of commercial activity, as set forth at § 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at § 17.21(f) for endangered wildlife.
(2)
(i) Conduct activities as authorized by a permit under § 17.32.
(ii) Take, as set forth at § 17.21(c)(2) through (4) for endangered wildlife.
(iii) Take as set forth at § 17.31(b).
(iv) Possess and engage in other acts with unlawfully taken wildlife, as set forth at § 17.21(d)(2) for endangered wildlife.
(v) Take incidental to an otherwise lawful activity caused by:
(A) Channel restoration projects that create natural, physically stable, ecologically functioning streams (or stream and wetland systems) that are reconnected with their groundwater aquifers.
(B) Bioengineering methods such as streambank stabilization using live native stakes (live, vegetative cuttings inserted or tamped into the ground in a manner that allows the stake to take root and grow), live native fascines (live branch cuttings, usually willows, bound together into long, cigar-shaped bundles), or native brush layering (cuttings or branches of easily rooted tree species layered between successive lifts of soil fill). These methods must not include the sole use of quarried rock (rip-rap) or the use of rock baskets or gabion structures. In addition, to reduce streambank erosion and sedimentation
(C) Soil and water conservation practices and riparian and adjacent upland habitat management activities that restore instream habitats for the species, restore adjacent riparian habitats that enhance stream habitats for the species, stabilize degraded and eroding stream banks to limit sedimentation and scour of the species' habitats, and restore or enhance nearby upland habitats to limit sedimentation of the species' habitats. We recommend that these practices and activities comply with specifications and technical guidelines developed by the U.S. Department of Agriculture's Natural Resources Conservation Service.
(f)
(1) Critical habitat units are depicted for Anderson, Angelina, Cherokee, Ellis, Freestone, Gregg, Grimes, Hardin, Harrison, Henderson, Houston, Jasper, Jefferson, Kaufman, Leon, Madison, Navarro, Orange, Panola, Polk, Rains, Rusk, Sabine, Shelby, Smith, Trinity, Tyler, Upshur, Van Zandt, Walker, and Wood Counties, Texas, on the maps in this entry.
(2) Within these areas, the physical or biological features essential to the conservation of Texas heelsplitter consist of the following components within impoundments and streambeds:
(i) Water quality parameters within the following ranges:
(A) Water temperature below 27 °C (80.6 °F);
(B) Dissolved oxygen levels greater than 3 milligrams per liter (mg/L);
(C) Low salinity (less than 2 parts per thousand) and total dissolved solids;
(D) Low total ammonia and nitrogen (below 0.3-0.7 mg/L total ammonia nitrogen);
(E) Low levels of copper, nickel, and other trace metals;
(F) Low levels of pesticides, sulfate, chloride, potassium, and other harmful constituents; and
(G) Low pollutants and environmental contaminants common to wastewater.
(ii) Moderately flowing water rates suitable to prevent excess sedimentation but not so high as to dislodge individuals or sediment; or no water flow, if in an impoundment (lake, reservoir, or pool without flow).
(iii) Substrate including bedrock and boulder crevices, point bars, and vegetated run habitat comprising sand, gravel, and larger cobbles.
(iv) Freshwater drum (
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on the effective date of the final rule.
(4) Data layers defining map units were created on a base of U.S. Geological Survey digital ortho-photo quarter-quadrangles, and critical habitat units were then mapped using Universal Transverse Mercator (UTM) Zone 14N coordinates. The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at the Service's internet site at
(5) Index map of critical habitat units for the Texas heelsplitter follows:
(6) Unit TXHS-1: Trinity River Unit; Anderson, Ellis, Freestone, Grimes, Henderson, Houston, Kaufman, Leon, Madison, Navarro, and Walker Counties, Texas.
(i) Unit TXHS-1 consists of two subunits:
(A) Subunit TXHS-1a (Trinity River) is comprised of 212.8 river miles (mi) (342.4 kilometers (km)) in Anderson, Ellis, Freestone, Henderson, Houston, Kaufman, Leon, Madison, and Navarro Counties, Texas. This subunit is composed of lands in State (5 percent) and private (95 percent) ownership.
(B) Subunit TXHS-1b (Bedias Creek) is comprised of 28.9 river mi (46.5 km) in Grimes, Madison, and Walker Counties, Texas. All of the riparian lands that border this subunit are in private ownership.
(ii) Unit TXHS-1 includes stream channel up to bankfull height.
(iii) Map of Unit TXHS-1 follows:
(7) Unit TXHS-2: Sabine River Unit; Gregg, Harrison, Panola, Rains, Rusk, Sabine, Shelby, Smith, Upshur, Van Zandt, and Wood Counties, Texas.
(i) Unit TXHS-2 consists of three subunits:
(A) Subunit TXHS-2a (Upper Sabine River) is comprised of 237.4 river mi (382 km) in Gregg, Harrison, Panola, Rains, Rusk, Smith, Upshur, Van Zandt, and Wood Counties, Texas. The riparian lands that border this subunit include Federal (2 percent), State (4 percent), local (1 percent), and private (93 percent) ownership.
(B) Subunit TXHS-2b (Lake Fork Creek) consists of 13.8 river mi (22.2 km) in Wood County, Texas. All of the riparian lands that border this subunit are in private ownership.
(C) Subunit TXHS-2c (Patroon Bayou) includes 19.9 river mi (32 km) in Sabine and Shelby Counties, Texas. The riparian lands that border this subunit are in Federal (7 percent) and private (93 percent) ownership.
(ii) Unit TXHS-2 includes stream channel up to bankfull height.
(iii) Map of Unit TXHS-2 follows:
(8) Unit TXHS-3: Neches River Unit; Anderson, Angelina, Cherokee, Hardin, Houston, Jasper, Jefferson, Orange, Polk, Trinity, and Tyler Counties, Texas.
(i) Unit TXHS-3 consists of three subunits:
(A) Subunit TXHS-3a (Upper Neches River) is comprised of 227.9 river mi (366.7 km) of stream in Anderson, Angelina, Cherokee, Houston, Jasper, Polk, Trinity, and Tyler Counties, Texas. The riparian lands that border this subunit are in Federal (12 percent) and private (88 percent) ownership.
(B) Subunit TXHS-3b (Lower Angelina River) consists of 14.7 river mi (23.7 km) in Jasper County, Texas. The riparian lands that border this subunit are in Federal (11 percent) and private (89 percent) ownership.
(C) Subunit TXHS-3c (Lower Neches River) includes 76.3 river mi (122.8 km) in Hardin, Jasper, Jefferson, Orange, and Tyler Counties, Texas. The riparian lands that border this subunit are in Federal (5 percent), State (7 percent), and private (88 percent) ownership.
(ii) Unit TXHS-3 includes stream channel up to bankfull height.
(iii) Map of Unit TXHS-3 follows:
(1) Critical habitat units are depicted for Howard, Little River, and Sevier Counties, Arkansas; Allen, Beauregard, Rapides, St. Tammany, Vernon, and Washington parishes, Louisiana; Marion and Pearl River Counties, Mississippi; McCurtain County, Oklahoma; and Anderson, Angelina, Cherokee, Gregg, Hardin, Harrison, Houston, Jasper, Jefferson, Liberty, Montgomery, Nacogdoches, Orange, Panola, Polk, Rusk, Smith, Trinity, Tyler, Upshur, and Wood Counties, Texas, on the maps in this entry.
(2) Within this area, the physical or biological features essential to the conservation of Louisiana pigtoe consist of the following components within streambeds:
(i) Water quality parameters within the following ranges:
(A) Water temperature below 27 °C (80.6 °F);
(B) Dissolved oxygen levels greater than 3 milligrams per liter (mg/L);
(C) Low salinity (less than 2 parts per thousand) and total dissolved solids;
(D) Low total ammonia and nitrogen (below 0.3-0.7 mg/L total ammonia nitrogen);
(E) Low levels of copper, nickel, and other trace metals;
(F) Low levels of pesticides, sulfate, chloride, potassium, and other harmful constituents; and
(G) Low pollutants and environmental contaminants common to wastewater.
(ii) Moderately flowing water rates suitable to prevent excess sedimentation but not so high as to dislodge individuals or sediment.
(iii) Stable bank and riffle habitats with bedrock and boulder crevices, point bars, and vegetated run habitat comprising sand, gravel, and larger cobbles.
(iv) Red shiner (
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on the effective date of the final rule.
(4) Data layers defining map units were created on a base of U.S. Geological Survey digital ortho-photo quarter-quadrangles, and critical habitat units were then mapped using Universal Transverse Mercator (UTM) Zone 14N coordinates. The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at the Service's internet site at
(5) Index map of critical habitat units for the Louisiana pigtoe follows:
(6) Unit LAPT-1: Little River Unit; Howard, Little River, and Sevier Counties, Arkansas, and McCurtain County, Oklahoma.
(i) Unit LAPT-1 consists of four subunits:
(A) Subunit LAPT-1a (Upper Little River) is comprised of consists of approximately 88 river miles (mi) (141.6 kilometers (km)) in Little River and Sevier Counties, Arkansas, and McCurtain County, Oklahoma. The riparian lands that border this subunit are in Federal (26 percent), State (1 percent), and private (42 percent) ownership, and private land with the Choctaw Reservation (23 percent), but not any lands held in trust for the Tribe, or owned or managed by the Tribe.
(B) Subunit LAPT-1b (Rolling Fork) is comprised of 29.9 river mi (47.9 km) in Sevier County, Arkansas. All of the riparian lands that border this subunit are in private ownership.
(C) Subunit LAPT-1c (Cossatot River) includes 47.2 river mi (75.9 km) in Sevier County, Arkansas. The riparian lands that border this subunit are in Federal (15 percent) and private (85 percent) ownership.
(D) Subunit LAPT-1d (Saline River) consists of 42.6 river mi (68.5 km) along the Howard/Sevier County line in southeast Arkansas. All of the riparian
(ii) Unit LAPT-1 includes stream channel up to bankfull height.
(iii) Map of Unit LAPT-1 follows:
(7) Unit LAPT-2: Sabine River Unit; Beauregard and Vernon parishes, Louisiana, and Gregg, Harrison, Panola, Rusk, Smith, Upshur, and Wood Counties, Texas.
(i) Unit LAPT-2 consists of two subunits:
(A) Subunit LAPT-2a (Upper Sabine River) consists of 110.1 river mi (177.2 km) in Gregg, Harrison, Panola, Rusk, Smith, Upshur, and Wood Counties, Texas. The riparian lands that border this subunit are in Federal (2 percent), State (2 percent), and private (96 percent) ownership.
(B) Subunit LAPT-2b (Anacoco Bayou) includes 12.2 river mi (19.6 km)
(ii) Unit LAPT-2 includes stream channel up to bankfull height.
(iii) Map of Unit LAPT-2 follows:
(8) Unit LAPT-3: Neches River Unit; Anderson, Angelina, Cherokee, Hardin, Houston, Jasper, Jefferson, Nacogdoches, Orange, Polk, Trinity, and Tyler Counties, Texas.
(i) Unit LAPT-3 consists of five subunits:
(A) Subunit LAPT-3a (Upper Neches River) consists of 200.4 river mi (322.4 km) through parts of Anderson, Angelina, Cherokee, Houston, Polk, Trinity, and Tyler Counties, Texas. The riparian lands that border this subunit are in Federal (11 percent) and private (89 percent) ownership.
(B) Subunit LAPT-3b (Upper Angelina River) consists of 67.4 river mi (108.4 km) in Angelina, Cherokee, and Nacogdoches Counties, Texas. The riparian lands that border this subunit are in Federal (50 percent) and private (50 percent) ownership.
(C) Subunit LAPT-3c (Lower Neches River) includes 76.2 river mi (122.6 km) in Hardin, Jasper, Jefferson, Orange, and Tyler Counties, Texas. The riparian lands that border this subunit are in Federal (5 percent), State (7 percent), and private (88 percent) ownership.
(D) Subunit LAPT-3d (Village Creek) consists of 54.9 river mi (88.3 km) of stream in Hardin County, Texas. The riparian lands that border this subunit are in Federal (78 percent), State (2 percent), and private (20 percent) ownership.
(E) Subunit LAPT-3e (Big Sandy Creek) consists of 43.7 river mi (70.3 km) of stream in Hardin, Polk, and Tyler Counties, Texas. The riparian lands that border this subunit are in Federal (95 percent) and private (5 percent) ownership.
(ii) Unit LAPT-3 includes stream channel up to bankfull height.
(iii) Map of Unit LAPT-3 follows:
(9) Unit LAPT-4: East Fork San Jacinto River Unit; Liberty and Montgomery Counties, Texas.
(i) Unit LAPT-4 consists of 23.3 river mi (37.5 km) in Liberty and Montgomery Counties, Texas. All of the riparian lands that border this unit are in private ownership.
(ii) Unit LAPT-4 includes stream channel up to bankfull height.
(iii) Map of Unit LAPT-4 follows:
(10) Unit LAPT-5: Calcasieu River Unit; Allen, Rapides, and Vernon parishes, Louisiana.
(i) Unit LAPT-5 consists of three subunits:
(A) Subunit LAPT-5a (Upper Calcasieu River) includes 92 river mi (148 km) in Allen and Rapides parishes, Louisiana. The riparian lands that border this subunit are in Federal (22 percent) and private (78 percent) ownership.
(B) Subunit LAPT-5b (Whisky Chitto Creek) includes 21.7 river mi (34.9 km) in Allen Parish, Louisiana. The riparian lands that border this subunit are in State (99 percent) and private (1 percent) ownership.
(C) Subunit LAPT-5c (Tenmile Creek) consists of 32 river mi (51.5 km) in Allen, Rapides, and Vernon parishes, Louisiana. The riparian lands that border the subunit are in State (2 percent) and private (98 percent) ownership.
(ii) Unit LAPT-5 includes stream channel up to bankfull height.
(iii) Map of Unit LAPT-5 follows:
(11) Unit LAPT-6: Pearl River Unit; St. Tammany and Washington parishes, Louisiana, and Marion and Pearl River Counties, Mississippi.
(i) Unit LAPT-6 consists of 86.6 river mi (139.3 km) in St. Tammany and Washington parishes, Louisiana, and Marion and Pearl River Counties, Mississippi. The riparian lands that border this unit are in Federal (42 percent), State (14 percent), and private (44 percent) ownership.
(ii) Unit LAPT-6 includes stream channel up to bankfull height.
(iii) Map of Unit LAPT-6 follows:
Department of Housing and Urban Development, General Services Administration, and Department of Health and Human Services.
Proposed rule.
The Department of Housing and Urban Development (HUD), the General Services Administration (GSA), and the Department of Health and Human Services (HHS) (the Agencies) each have distinct responsibilities in the administration of the Title V program, authorized by the McKinney-Vento Homeless Assistance Act. The program makes suitable Federal real properties categorized as underutilized, unutilized, excess, or surplus available to States, local government agencies, and 501(c)(3) tax-exempt non-profit organizations for use to assist the homeless. In 2016, the Federal Assets Sales and Transfer Act amended Title V of the McKinney-Vento Homeless Assistance Act. This proposed rule would incorporate required statutory changes and current practices; update references and terminology that are now outdated; and revise procedures for more efficient program administration in the Agencies' regulations.
Interested persons are invited to submit comments regarding this proposed rule. All submissions must refer to the above docket number and title. There are two methods for submitting public comments.
To receive consideration as public comments, comments must be submitted through one of the two methods specified above. Again, all submissions must refer to the docket number and title of the rule.
For information regarding each agency's implementation of these regulations, the contact information for that agency follows.
The Agencies welcome and are 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 1991, the Agencies jointly published a regulation (56 FR 23789 (May 24, 1991)), codified at 24 CFR part 581, 41 CFR part 102-75, and 45 CFR part 12a, implementing the provisions of Title V of the McKinney-Vento Homeless Assistance Act (McKinney-Vento Act or Title V) (42 U.S.C. 11411). The 1991 regulation established procedures for collecting information from landholding agencies about excess, surplus, unutilized, and underutilized properties under their control and the criteria for determining the properties' suitability for use as homeless assistance. It also provided procedures and timelines for the application process and agency review of submitted applications to use such properties for homeless assistance. The regulation has not been updated since its publication in 1991. Since that time, however, the McKinney-Vento Act has been amended several times by new legislation, including the Homeless Emergency Assistance and Rapid Transition to Housing Act (Sec. 1003, Pub. L. 111-22, 1632, 1664-65), the Federal Property Management Reform Act of 2016 (114 Pub. L. 318, 130 Stat. 1608), and most significantly, section 22 of the Federal Assets Sales and Transfer Act of 2016 (FASTA) (Pub. L. 114-287, 130 Stat. 1463 (codified at 40 U.S.C. 1303 note)).
Under Section 501 of Title V, HUD handles the suitability determination and HHS processes applications from eligible organizations and monitors transferred property for compliance with programmatic requirements. GSA supports both agencies at various stages throughout the entire process. Specifically, GSA screens real properties reported by a particular agency as excess with other Federal agencies to determine if they are required for use by any other Federal agency pursuant to 42 U.S.C. 11411(f)(3). Properties reported to GSA for disposal are submitted by GSA to HUD for a determination of suitability for use to assist the homeless. Pursuant to 42 U.S.C. 11411(b)(1)(B), after HUD makes its suitability determination, HUD reports the determination to GSA, and GSA notifies HUD whether there is a continuing need for the property within the Federal government. In practice, if GSA has information that there is a continuing Federal need for the property, GSA notifies HUD of the continuing need when GSA submits property information to HUD for the suitability determination. If there is no continuing Federal need for the property, the property is determined surplus to the needs of the Federal government, and if HUD determines the property to be suitable, then the property is available for application to HHS for homeless assistance use. Pursuant to 42 U.S.C. 11411(f)(3)(A), if HHS receives and approves an application for surplus property and recommends to GSA that the property be conveyed to the applicant for homeless assistance use, GSA assigns the property to HHS. HHS then deeds or leases the property to the applicant for the purpose(s) stated in the approved application, unless a competing request for the property under 40 U.S.C. 550 is determined by GSA or HHS to be so meritorious and compelling as to outweigh the needs of the homeless.
Pursuant to 42 U.S.C. 11411(a), HUD is the agency authorized to determine whether a property is suitable for homeless assistance use. HUD must request information from Federal landholding agencies regarding unutilized, underutilized, excess, and surplus Federal real properties (including land, buildings, and fixtures) based on the requirements of 42 U.S.C. 11411(a). As required by 42 U.S.C. 11411(a), HUD must determine which of those properties are suitable for homeless assistance no later than thirty days after receiving the information. Once HUD has determined a property is suitable for use to assist the homeless based on HUD's suitability criteria, HUD must then promptly notify each Federal agency of the suitability determination made pursuant to HUD's suitability criteria. The landholding agency must respond to HUD within 45 days regarding whether the property is available for use to assist the homeless. No later than 15 days after the end of the 45-day period, HUD must publish a list of all reviewed properties on the HUD website, whether HUD determined a reviewed property to be suitable for use to assist the homeless, and whether the property is available for application for use to assist the homeless. HUD must also publish annually all properties that were identified as suitable for use to assist the homeless, but were reported to be unavailable, and why the properties were unavailable, as required by 42 U.S.C. 11411(c)(1)(D). GSA also hosts a website listing property available for homeless assistance.
Pursuant to 42 U.S.C. 11411(c)(1)(C), if HUD determines a property is not suitable for homeless assistance use, it must identify the reasons for its determination. If HUD determines a property is unsuitable for homeless assistance use, there is a 20-day holding period to allow any representative of the homeless to request that HUD review the unsuitability determination. HUD must review any such requests and make a final determination pursuant to 42 U.S.C. 11411(d)(3), implemented in the regulations at 24 CFR 581.4.
After HUD publishes its list of suitable properties that are available for application, an eligible organization may apply to HHS for use of any such property. HHS reviews applications to use suitable properties to assist the homeless under 42 U.S.C. 11411(e). After HHS receives an initial application, HHS has 10 days, unless extended by HHS, to review it and make a determination as to whether the initial application is approvable. HHS must maintain a public record of all actions taken regarding an application under 42 U.S.C. 11411(e)(3). If HHS approves an initial application, the applicant then has 45 days to provide a final application detailing a reasonable plan to finance the approved homeless assistance program under 42 U.S.C. 11411(e)(4). HHS must make a final determination and complete all actions on the final application within 15 days of receipt of a final application pursuant to 42 U.S.C. 11411(e)(5). HHS is then responsible for pursuing the transfer of a suitable property to an approved applicant. In the case of excess or surplus properties, HHS will request assignment of the property from GSA, and if GSA assigns the property to HHS, HHS will enter into a lease or deed with the successful applicant. In the case of unutilized or underutilized property, HHS will process applications for the use of the property, but the individual landholding agency will enter into the lease or permit agreement with the successful applicant. HHS is also the responsible agency for ensuring post-transfer compliance and monitoring activities for those properties transferred by HHS.
As previously noted, FASTA made several changes to the McKinney-Vento Act. Section 22 of FASTA amended the McKinney-Vento Act to allow for HUD's suitability determinations to be posted electronically; to eliminate subsequent posting of previously reported properties determined unsuitable with no changes; to change the timeframes related to how long suitable and available properties are held for homeless assistance use; to change the number of days by which eligible organizations must submit an expression of interest to HHS from 60 days to 30 days from the date of HUD's publication; to create a two-phased application process; to shorten the initial application processing period from 90 days to 75 days; and, if approved, provide the applicant 45 days to submit a final application. If HHS does not approve a final application after approving an initial application, disposal of the property may proceed in accordance with applicable law.
In addition to 42 U.S.C. 11411 and the current regulations, the Title V Program is guided by Federal court decisions, including the March 13, 2017, revised Order in
This proposed rule would establish procedures conforming to FASTA, incorporate other legislative changes, and codify established policies and processes that the Agencies use to govern the program. For greater readability, in instances where requirements found in other sections of the proposed rule are referenced by citation, this proposed rule would instead incorporate those provisions in each agency's individual regulations, rather than just the citation, to provide a broader and clearer understanding of the Title V program requirements. This proposed rule would also provide revised suitability criteria for clarity and to address GAO's recommendation in its 2014 report entitled
The changes in the proposed rule would amend the Agencies' individual regulations found in Title 24 (HUD), Title 41 (GSA), and Title 45 (HHS) of the Code of Federal Regulations. Provisions of this proposed rule that apply to the Agencies collectively would be found in each agency's regulations. HUD's and GSA's regulations have included all sections applicable to all three Agencies within its regulations found in Title 24 and Title 41, respectively. HHS's regulation will only include provisions directly applicable to HHS.
Throughout this proposed rule, the Agencies have renumbered various existing sections of their respective regulations. This proposed rule references the current section numbers in discussing changes to the applicable sections unless otherwise stated. Also of note, within this proposed regulation, variations of the terms United States and Federal government are intended to be used interchangeably.
This proposed rule would remove definitions that are no longer relevant, revise other definitions to conform to existing legislation, and incorporate new definitions, some of which are currently used but are not defined in the existing Title V regulation. The updated definitions would modify 24 CFR 581.1, 41 CFR 102-75.1160, and 45 CFR 12a.1 to provide clarity and consistency regarding the Agencies' roles and requirements for potential Title V applicants. The definitions of
The definitions of
The definition of
The definition of
Lastly, the proposed rule would add the following definitions:
The definitions of
The proposed rule would expand the sections of the Agencies' regulations that identify which properties are not subject to the joint regulation by adding properties that are not subject to Federal Real Property Council reporting requirements to this list, in accordance with 40 U.S.C. 623(i). Additionally, 24 CFR 581.2, 41 CFR 102-75.1161, and 45 CFR 12a.2, would be updated to reflect that properties not subject to the joint regulation include buildings and property at military installations that were approved for closure under the Defense Base Closure and Realignment Act of 1990 after October 25, 1994. The proposed rule would also amend 24 CFR 581.2(b)(2), 41 CFR 102-75.1161(b)(2), and 45 CFR 12.a.2(b)(2), to make clear that machinery and equipment that is not related personal property is not subject to the joint regulation, and that machinery and equipment that is related personal property is not subject to the regulation if GSA or the landholding agency
The McKinney-Vento Act requires HUD to canvass landholding agencies quarterly and requires the landholding agencies to respond with property information within 25 days. HUD is then required to make a suitability determination on the property within 30 days of receipt of the property information. Because of the high number of properties being reported to HUD, HUD began accepting property information from landholding agencies on an ongoing basis. This proposed rule would codify this existing process at 24 CFR 581.3(a) and 41 CFR 102-75.1162(a). It also would provide that HUD's canvass of landholding agencies will include information about previously reported properties only if the property's status or classification changed, or if improvements were made to the property since the property was last reported to HUD. It would clarify that landholding agencies will respond to HUD's information collecting canvass in accordance with 40 U.S.C. 524. This proposed rule would clarify in 24 CFR 581.3(a) and 41 CFR 102-75.1162(a) that a completed property checklist is the vehicle for submitting property information to HUD. Consistent with FASTA, paragraphs (d) of 24 CFR 581.3 and 41 CFR 102-75.1162 would provide that HUD will review properties with a change in status for suitability and repost the property information on the HUD website.
HUD has 30 days from the time it receives property information from landholding agencies or GSA to make a suitability determination. Currently, property that is determined unsuitable may not be made available for any other purpose for 20 days after publication under 24 CFR 581.4(e) and 41 CFR 102-75.1175(e). To request a review of a property determined unsuitable for homeless assistance use, a representative of the homeless must contact HUD within 20 days of the publication of notice that a property is unsuitable pursuant to 24 CFR 581.4(f)(1) and 41 CFR 102-75.1175(f)(1). Under 24 CFR 581.4(f)(4) and 41 CFR 102-75.1175(f)(1) of the current regulation, HUD is required to notify the landholding agency of the request to review the unsuitability determination and advise the landholding agency that it should refrain from initiating disposal procedures until HUD has completed its reconsideration regarding unsuitability. Regulations found at 24 CFR 581.4(f)(4)(i) and 41 CFR 102-75.1175(f)(4)(i) currently provide that HUD will act on all review requests within 30 days after receiving the landholding agency's response and will notify the representative of the homeless and the landholding agency in writing of its decision. There is currently no deadline, however, for the landholding agency to respond to HUD's request for additional information. The current regulation also does not outline the determination process after HUD receives or does not receive the landholding agency's response. As a result, the Agencies are proposing in 24 CFR 581.4(f)(4) and 41 CFR 102-75.1163(f)(4) of this proposed rule that unless HUD and the landholding agency agree to an extended period, the deadline for the landholding agency to respond to HUD's request for additional information would be 20 days from the date that the landholding agency is notified of the request to review the unsuitability determination. If the landholding agency fails to meet the deadline or request an extension, HUD would proceed with the appeal review with the property information provided in the survey it already has and information submitted in the appeal request provided by the representative of the homeless. This proposed rule would add at proposed paragraph (f)(4)(i) of 24 CFR 581.4 and 41 CFR 102-75.1163 that HUD will act on requests for review where the landholding agency or GSA has failed to meet the deadline within 30 days of such deadline.
This rule would also propose to incorporate required statutory changes under FASTA in proposed sections 24 CFR 581.4(e), (f)(1), and (f)(4)(ii) and 41 CFR 102-75.1163(e), (f)(1), and (f)(4)(ii) that allow HUD to post suitability determinations on a HUD website or a successor technology that is equally accessible and available to the public. This proposed rule would update processes by removing the identified toll-free number from 24 CFR 581.8(b) and revising it to state that HUD will establish and maintain “a toll-free number” for the public to obtain specific information about Title V property reviewed for suitability. Persons with inquiries regarding property suitability and other Title V related questions will be instructed to submit questions through the HUD Title V website, or such other method as HUD may require in proposed 24 CFR 581.4(f)(1) and 41 CFR 102-75.1163(f)(1). Persons with disabilities may also request an alternative method for submitting inquiries when it may be necessary as a reasonable accommodation under Federal fair housing laws.
Currently under 24 CFR 581.5 and 41 CFR 102-75.1180, landholding agencies are required to submit a report to GSA of properties determined as excess along with a copy of any HUD suitability determination. These sections in HUD's and GSA's regulations would remain substantially the same but would be updated for clarity. Within Title 41, this proposed rule would contain this section at the redesignated 41 CFR 102-75.1164.
This proposed rule would revise the criteria in 24 CFR 581.6 and 41 CFR 102-75.1185 that HUD uses to determine suitability to make the criteria clearer and more user-friendly for both the Agencies and applicants. The Agencies propose to reframe this section by dividing the suitability criteria into two categories: (1) properties deemed suitable unless the properties have any of the characteristics listed in paragraph (a),
In proposed paragraph (a)(1), the proposed rule would revise the criteria relating to property located near a container or facility storing, handling, or processing flammable or explosive materials to provide for suitability if HUD can determine, based on information provided by the landholding agency or GSA, that the property complies with the acceptable separation distance standards at 24 CFR part 51, subpart C and the HUD Guidebook, “Siting of HUD-Assisted Projects Near Hazardous Facilities” or a successor guidebook, or that appropriate mitigating measures, as defined in 24 CFR 51.205, are already in place. The proposed rule would remove the reference to 2000 feet and the references to gasoline stations, tank trucks, above ground containers “with a capacity of 100 gallons or less,” and larger containers providing heating or power. Instead, the proposed rule would utilize the more useful acceptable separation distance standards and would exclude containers and facilities that are not hazards, as defined in 24 CFR 51.201. Additionally, in proposed paragraph (a)(2), the proposed rule would add coastal barriers as a suitability criterion; properties located in a Coastal Barrier System Unit would be determined unsuitable because most new federal expenditures and financial assistance, including federal flood insurance, are prohibited within Coastal Barrier System Units.
This proposed rule would also rename the documented deficiencies criterion currently at 24 CFR 581.6(a)(5) and 41 CFR 102-75.1185(a)(5) as “Site Safety Conditions” in newly redesignated paragraph (a)(3) and focus that criterion solely on a property's physical characteristics, including, as examples, properties that exhibit significant contamination from hazardous substances, as defined by 42 U.S.C. 9601, periodic flooding, sinkholes, or landslides.
The proposed rule would move the criteria regarding floodways, national security concerns, runway clear zones, and inaccessible property into paragraph (b), as property presumed unsuitable unless information to enable HUD to determine it suitable is provided. The proposed rule would also remove the reference in the current rule to floodways that have been “contained or corrected”, since the meaning of “corrected” is unclear and a floodplain that is “contained” might still adversely affect the use of portions of the site that are located within the “contained” floodway to assist the homeless.
The proposed rule also includes specific questions for public comment in section III regarding suitability criteria. The Agencies considered several changes to this section and do not expect these proposed changes to affect the number of properties deemed suitable.
The proposed rule would add a section General Policies of HHS to mirror 45 CFR part 12.3 instead of incorporating that regulation. The section highlights the minimum criteria for eligibility for and transfers of surplus property.
HHS is responsible for accepting expressions of interest for properties published by HUD as suitable and available for homeless assistance purposes. Pursuant to FASTA, the period in which eligible organizations must submit an expression of interest has changed from 60 days to 30 days from the date of HUD's publication. Therefore, eligible organizations must now submit an expression of interest to HHS within 30 days of HUD's publication date. This proposed change would be found at 24 CFR 581.10, 41 CFR 102-75.1169, and 45 CFR 12a.4. In an effort to increase efficiency and be environmentally conscious, HHS will accept such expressions of interest by email at
HHS is responsible for receiving and evaluating applications submitted by eligible organizations for properties deemed suitable and available. Prior to FASTA, eligible organizations were required to submit a single application within 90 days after HHS's receipt of an acceptable expression of interest. Under FASTA, the process now requires that an eligible organization submit an initial application within 75 days following HHS's receipt of an expression of interest, unless extended by HHS. If HHS approves the initial application, then a final application, setting forth a reasonable financial plan, must be submitted within 45 days of HHS's approval of the initial application. This proposed rule would incorporate the two-stage application process outlined in FASTA and which HHS currently follows.
The proposed rule would revise the regulation to make the application requirements more clear, concise, and consistent with the instructions accompanying the application packet. This proposed rule would expand the existing regulations found at 24 CFR 581.9, 41 CFR 102-75.1200 and 45 CFR 12a.9 to describe the specific document an applicant must submit with its application to demonstrate its ability to hold title to property for the requested purpose(s). This proposed rule would also modify the current regulations found at 24 CFR 581.9(b)(2), 41 CFR 102-75.1200(b)(2) and 45 CFR 12a.5(b)(2) to require that applicants certify, rather than merely indicate, that their use of the property and any modification(s) made to the property, conform to all applicable building codes and local use restrictions, or similar limitations, including local zoning regulations. The modification is meant to ensure an applicant's proposed program is capable of being developed and operated following transfer without hindrances posed by local codes, regulations and/or similar limitations. These updates would also incorporate existing practice that applicants requesting lesser portions of the listed real property will be denied. These updated provisions would be found at the newly redesignated paragraphs (a)(1) and (a)(2) of 24 CFR 581.11, 41 CFR 102-75.1170, and 45 CFR 12a.5.
This proposed rule would also expand current 24 CFR 581.9(b)(3), 41 CFR 102-75.1200(b)(3) and 45 CFR 12a.9(b)(3) to advise applicants that the description of the proposed program must also include how the applicant intends to implement the proposed
This proposed rule would also modify 24 CFR 581.9(b)(4) and 581.9(b)(5), 41 CFR 102-75.1200(b)(4) and 102-75.1200(b)(5) and 45 CFR 12a.9(b)(4) and 12a.9(b)(5) for greater clarity regarding the application process. These updated paragraphs would be found at newly redesignated paragraphs (a)(4) and (a)(5) of 24 CFR 581.11, 41 CFR 102-75.1170, and 45 CFR 12a.5. Regarding paragraph (a)(4), an applicant would be required to demonstrate both that there is an immediate need to acquire the property for the proposed program and the applicant's ability to utilize all of the Federal real property for which it is applying. Additionally, this paragraph would be expanded to clarify that an applicant is required, per the application instructions, to provide details concerning modifications to the property that need to be completed before the program can become operational.
This proposed rule would also clarify 24 CFR 581.9(b)(4), 41 CFR 102-75.1200(b)(4) and 45 CFR 12a.9(b)(4), the requirements needed to demonstrate an applicant's ability to finance and operate the proposed program. Finances typically prove to be the most difficult for transferees to navigate to ensure that monies are available to successfully operate the program and adequately maintain the property during the duration of the transfer term. Formulating a reasonable financial plan during the application process ensures that an applicant has the methods and means to carry out the application proposal. The requisite information provides HHS more confidence in making a determination on an application and is designed to both spare applicants the time and expense associated with a transfer that is likely to fail and protect the United States' residual interest in the transferred property. Therefore, rather than requiring that an applicant merely “indicate” it has financial ability, this proposed rule would revise this section to incorporate HHS's current practice of requiring that an applicant “demonstrate” its financial ability. A reasonable financial plan must, at a minimum, be specific and be accompanied by supporting documentation which demonstrates that the proposed plan is likely to succeed; and neither diminish the value of the government's interest in the property nor impair the government's ability to revert and immediately dispose of the property with clear title, free of any lien or encumbrance. Further, this section would memorialize current practice, which permits HHS to grant, to an otherwise approved applicant, a short-term lease when a zoning change is required or an applicant's financial plan proposes to utilize Low-Income Housing Tax Credits or other funding sources that typically take longer to process than other forms of financing. This enables the approved applicant to gain site control of the property that may be required for funding and additional time to provide HHS the requisite information to ensure the Federal government's interest in the property is adequately protected. These proposed changes would be found at newly redesignated paragraph (a)(6) of 24 CFR 581.11, 41 CFR 102-75.1170, and 45 CFR 12a.5.
This proposed rule would modify 24 CFR 581.9(b)(6), 41 CFR 102-75.1200(b)(6) and 45 CFR 12a.9(b)(6) to clearly state property insurance requirements and the purpose thereof, thereby allowing for the omission of the reference to other provisions of the Agencies' regulations. This proposed rule would amend 24 CFR 581.9(b)(9), 41 CFR 102-75.1200(b)(9) and 45 CFR 12a.4(b)(9) pertaining to local government notification of the applicant's application for acquisition of surplus property for the proposed purpose. The section would be amended to incorporate HHS's current practice of requiring that an applicant notify the local government in writing and provide evidence of such rather than simply indicate in its application that it has done so. These changes would be codified at newly redesignated paragraphs (a)(9) and (a)(12), respectively, of 24 CFR 581.11, 41 CFR 102-75.1170, and 45 CFR 12a.5.
The proposed rule would revise and expand 24 CFR 581.9, 41 CFR 102-75.1200, and 45 CFR 12a.9 to clarify the requirements regarding the transfer of surplus property and to comply with FASTA. Pursuant to FASTA, an applicant has the discretion to apply for Federal real property for a permit, lease, or deed. An applicant applying for a deed must comply with local zoning and certify such in its application by providing the required documentation. This proposed rule would incorporate HHS's current policy that transfers by deed will only be made subsequent to the appropriate certification that the proposed program is not in conflict with State or local zoning restrictions, building codes, or similar limitations, omitting the need to reference other provisions of the Agencies' regulations.
This proposed rule would also revise 24 CFR 581.9(c), 581.9(d), and 581.9(e), 41 CFR 102-75.1200(c), 102-75.1200(d), and 102-75.1200(e), and 45 CFR 12a.9(c), 12a.9(d), and 12a.9(e) to conform to legislative changes required by FASTA. Under FASTA, an initial application is now due 75 days following HHS's receipt of an expression of interest. This differs from the current regulation requiring the application, in its entirety, be submitted within 90 days of an applicant's expression of interest. This proposed rule would revise paragraph (c) of the previously referenced sections to set forth the new deadline for submitting an initial application. Additionally, FASTA reduced the time for HHS to review an initial application from 25 days to 10 days of its receipt. This proposed rule would reflect this change and revise paragraph (d) of the above referenced sections within the Agencies' individual regulations. It would also revise the ranking system and criteria contained in this section. An initial application would be evaluated based on the three statutory criteria: services offered; need; and experience. Criteria would no longer be evaluated with ranking weights; rather, all criteria would be of equal weight, and failure to meet any one criterion would result in the application being disapproved. Additionally, each paragraph within this section would be revised to conform to legislative changes pursuant to FASTA and to eliminate any confusion caused by the March 13, 2017, revised Order
This proposed rule would add an entirely new section regarding transfer documents to conform to legislative changes made pursuant to FASTA. Applicants are permitted to apply for surplus property for acquisition by lease, deed, or permit. For clarifying purposes, the proposed rule would add this section to include relevant provisions of 41 CFR part 102-75 and 45 CFR part 12 pertaining to general terms and conditions of transfers. This proposed change improves the readability of the regulation and removes the need for additional cross-references. Additionally, the proposed rule omits the provision that requires the reversion or abrogation of transferred property, at the discretion of HHS, should the property not be placed into use within 8 years. This change allows more flexibility to resolve such issues on a case-by-case basis and, based on conversations with transferees, provides more assurances to funders that property may not be automatically reverted should the property not be placed into use within 8 years. These proposed changes would be captured at newly redesignated 24 CFR 581.14, 41 CFR 102-75.1172, and 45 CFR 12a.7.
At 24 CFR 581.9(b)(8), 41 CFR 102-75.1200(b)(8), and 45 CFR 12a.9(b)(8), the current regulation already provides general application requirements as they pertain to environmental information. The proposed rule would expand these sections to clarify and to mirror requirements and policies currently required by NEPA and other related Acts. This proposed rule would contain this expanded clarification at 24 CFR 581.16, 41 CFR 102-75.1174, and 45 CFR 12a.8.
This proposed rule would modify 24 CFR 581.12, 41 CFR 102-75.1215, and 45 CFR 12a.12 to comply with FASTA. Under FASTA, Federal real properties shall only be held for 30 days to permit homeless providers an opportunity to submit a notice of interest instead of the previous 60-day holding period. Additionally, FASTA requires GSA or the landholding agency to proceed with disposal of surplus property 75 days following receipt of an initial expression of interest if no initial application or requests for extensions have been received by HHS, or within 45 days after an approved initial application if no final application has been received. This means that no disposal action can be taken by GSA or the landholding agency, as appropriate, until all Title V actions are completed. The proposed rule would codify these changes in the newly redesignated 24 CFR 581.17, 41 CFR 102-75.1175, and 45 CFR 12a.9.
This proposed rule would add 24 CFR 581.18, 41 CFR 102-75.1176, and 45 CFR 12a.10 to clearly articulate a transferee's utilization requirements and potential enforcement actions that may be taken, at the discretion of HHS, should noncompliance occur. HHS's policies have not changed but are included in the regulation to clarify program requirements to applicants and transferees. This section also includes the Federal government's requirements of transferees in the event of a reversion action. Such reversionary language is currently included in transfer documents.
The proposed rule would add 24 CFR 581.19, 41 CFR 102-75.1177, and 45 CFR 12a.11 to incorporate HHS's current policy as it relates to “other uses” of surplus property by transferees. The proposed rule would make clear the requirements of transferees should a transferee request approval to utilize the property, or a portion thereof, for uses other than those stated in the approved original application. In adding this section, the Agencies address questions and requests made by transferees since inception of the program.
The abrogation process is discussed in various sections of the current regulation, and this proposed rule would establish 24 CFR 581.20, 41 CFR 102-75.1178, and revise 45 CFR 12a.12 to more clearly articulate the instances in which HHS may abrogate the conditions and restrictions in the transfer document. This proposed rule would address the abrogation process in its own section for clarity and simplicity.
For clarifying purposes, the proposed rule would add this section to include provisions of 45 CFR part 12.14 pertaining to compliance inspections and reports. HHS's policies have not changed but are included in the regulation to be clearer for the public and removes the need for additional cross-references. These policies would be captured at 24 CFR 581.21, 41 CFR 102-75.1179, and 45 CFR 12a.13.
Title V, as amended by FASTA, does not provide for internal administrative review of HHS application decisions. Accordingly, the proposed rule would establish 24 CFR 581.22 and 41 CFR 102-75.1180, and modify 45 CFR 12a.14 to codify HHS's existing policy that no agency reconsideration or appeal shall be granted. HHS's application decision constitutes final agency action in accordance with the Administrative Procedure Act (5 U.S.C. 704).
This proposed rule would make changes throughout HUD's and GSA's existing regulations and implement FASTA amendments to the McKinney-Vento Act, including that suitability determinations for properties are published electronically on the HUD website and that HUD will post a list of all properties reviewed, including a description of the property, its address, and classification on the HUD website, rather than in the
Additional technical changes would be made throughout the regulations for clarity, including at proposed sections 24 CFR 581.8 and 581.12, 45 CFR 12a.6, and 41 CFR 102-75.1167 and 102-75.1171.
The proposed changes to regulations found at 24 CFR part 581 relate to each agency's responsibilities under the McKinney-Vento Act in an effort to provide the public with a comprehensive understanding of the Title V process. Part 581 would continue to contain HUD's responsibilities under Title V while also publishing all changes discussed above, including new sections explained above in II.A.10, II.A.11, and II.A.13 through II.A.16.
The regulations found at 41 CFR 102-75 (subpart H) would relate to GSA's role in the use of Federal real property to assist the homeless along with the other Agencies' responsibilities. Since this regulation will be published jointly with HUD and HHS, subpart H would be updated to include all changes discussed above, including new sections explained above in II.A.10, II.A.11, and II.A.13 through II.A.16. This proposed rule would also update subpart H to include a section on waivers previously contained in HUD's regulations at 24 CFR 581.13 but never published in GSA's regulations. Lastly, sections in subpart H would be renumbered throughout the regulation as noted above.
The regulations found at 45 CFR 12a would solely relate to HHS's portion of the proposed rule. Part 12a would be updated to include all changes discussed above, except sections that are not applicable to HHS, which include II.A.3 through II.A.6. The changes to Part 12a would also include new sections explained in II.A.10, II.A.11, and II.A.13 through II.A.16.
HUD and GSA seek public comment on the suitability criteria in 24 CFR 581.6 and 41 CFR 102-75.1165 and on the proposal to exclude property from the screening process if it is only available for removal for off-site use. For each of the questions asked below, and regarding any other issue, the Agencies are interested in public comment on whether and how the Agencies should refine the suitability criteria such that HUD can determine properties suitable under the statute notwithstanding certain conditions that will not be remedied by landholding agencies before property is transferred by long-term lease or deed. Specifically, the Agencies seek comment on how suitability criteria can protect the public from conditions that represent a clear threat to personal physical safety and health if left unremedied, while not inappropriately identifying properties as unsuitable due to low-risk conditions that HUD determines can easily be remedied by a transferee. Additionally, HHS seeks public comment regarding potential barriers to the development of a plan to finance under the modified application process in this proposed rule. While the following questions are not exhaustive, the Agencies are particularly interested in comments on the following questions:
Under Executive Order 12866 (Regulatory Planning and Review), a determination must be made by the Office of Management and Budget (OMB) regarding whether a regulatory action is significant and therefore subject to review in accordance with the requirements of the executive order. This proposed rule was determined to be a “significant regulatory action” as defined in Section 3(f) of the order (although not an economically significant regulatory action under 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. This rule streamlines the process for Federal surplus transfers pursuant to the Federal Assets and Sales Act of 2016.
This proposed rule was determined to be a significant regulatory action under section 3(f) of Executive Order 12866 (although not an economically significant regulatory action under the order). The Agencies prepared an initial Regulatory Impact Analysis (RIA) that addresses the costs and benefits of the proposed rule and is part of the docket file for this rule.
A Finding of No Significant Impact (FONSI) with respect to the environment has been made in accordance with HUD regulations at 24 CFR part 50, which implement Section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). The FONSI is available for public inspection between the hours of 8 a.m. and 5 p.m. weekdays in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW, Room 10276, Washington, DC 20410-0500. Due to security measures at the HUD Headquarters building, please schedule an appointment to review the
The Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-1538) 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 mandate on any state, local, or tribal government, or on the private sector, within the meaning of UMRA.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This proposed rule imposes no additional requirements on small entities. The rule conforms the Agencies' existing regulation with required statutory changes under the Federal Assets Sale and Transfer Act of 2016 and other legislative changes. This proposed rule also provides for HUD's suitability determinations to be published electronically rather than in the
Executive Order 13132 (entitled “Federalism”) prohibits, to the extent practicable and permitted by law, 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 preempts state law, unless the relevant requirements of Section 6 of the Executive Order are met. This rule does not have federalism implications and does not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.
The information collection requirements for part 581 contained in this proposed rule pertain to HHS's Title V application. HHS's information collection requirements have been approved by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB control number 0937-0191. 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.
Executive Orders (E.O.s) 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. This proposed rule is not anticipated to be a significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.
This rule is not a major rule under 5 U.S.C. 804(2). Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (codified at 5 U.S.C. 801-808), also known as the Congressional Review Act or CRA, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. A major rule under the CRA cannot take effect until 60 days after it is published in the
GSA certifies this rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The proposed rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Under Executive Order 12866 (Regulatory Planning and Review), a determination must be made by the Office of Management and Budget (OMB) regarding whether a regulatory action is significant and therefore subject to review in accordance with the requirements of the order. This rule was determined to be a “significant regulatory action” as defined in Section 3(f) of the order (although not an economically significant regulatory action under 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. This rule streamlines the process for Federal surplus property transfers pursuant to the Federal Assets and Sales Act of 2016.
The Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-1538) 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 mandate on any state, local, or tribal government, or on the private sector, within the meaning of UMRA.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
Executive Order 13132 (entitled “Federalism”) prohibits to the extent practicable and permitted by law, 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 preempts state law, unless the relevant requirements of Section 6 of the Executive Order are met. This rule does not have federalism implications and does not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.
Under the Paperwork Reduction Act, all Departments are required to submit to the Office of Management and Budget for review and approval or any reporting or recordkeeping requirements in a proposed or final rule. This proposed rule amendment does contain information collection requirements which have been approved by the Office of Management and Budget under control number 0937-0191.
Administrative practice and procedure, Homeless, Reporting and recordkeeping requirements, Surplus Government property.
Federal buildings and facilities, Government property management, Rates and fares, Surplus Government property.
Government Property, Surplus Government Property, Grant programs—health, Grant programs—housing and community development, Homeless, Housing, Public Assistance Programs.
Accordingly, for the reasons stated above, HUD proposes to amend 24 CFR part 581 as follows:
42 U.S.C. 11411 note; 42 U.S.C. 3535(d).
The revisions and additions read as follows:
(a) This part applies to Federal property that has been designated by Federal landholding agencies as unutilized, underutilized, excess or surplus and is therefore subject to the provisions of Title V of the McKinney Act, as amended (42 U.S.C. 11411).
(b) The following categories of properties are not subject to this part (regardless of whether they may be unutilized or underutilized):
(1) Buildings and property at military installations that were approved for closure under the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Pub. L. 101-510; 10 U.S.C. 2687 note) after October 25, 1994.
(2) Machinery and equipment not determined to be related personal property by the landholding agency or GSA or determined to be related personal property that the landholding agency or GSA chooses to dispose of separate from real property.
(3) Government-owned, contractor-operated machinery, equipment, land, and other facilities reported excess for sale only to the using contractor and subject to a continuing military requirement.
(4) Properties subject to special legislation directing a particular action.
(5) Properties subject to a court order that, for any reason, precludes transfer for use to assist the homeless under the authority of 42 U.S.C. 11411.
(6) Property not subject to Federal Real Property Council reporting requirements in accordance with 40 U.S.C. 623(i).
(7) Mineral rights interests independent of surface rights.
(8) Air space interests independent of surface rights.
(9) Indian Reservation land subject to 40 U.S.C. 523.
(10) Property interests subject to reversion.
(11) Easements.
(12) Any building or fixture that is excess, or surplus, that is on land owned by a landholding agency, where the underlying land is not excess or surplus.
(13) Property purchased in whole or in part with Federal funds if title to the property is not held by a Federal landholding agency as defined in this part.
(a)
(b)
(1) was included in a list of suitable properties published that year by HUD, and
(2) remains available for application for use to assist the homeless or has become available for application during that year.
(d)
(a)
(b)
(d)
(1) The suitability determination for a particular piece of property, and the reasons for that determination; and
(2) The landholding agency's response to the determination pursuant to the requirements of § 581.7(a).
(e)
(f)
(1) To request review of a determination of unsuitability, a representative of the homeless must contact HUD, in writing, through the U.S. Mail, email, or the HUD website, or such other method as HUD may require, within 20 days of publication of notice of unsuitability.
(2) Requests for review of a determination of unsuitability may be made only by representatives of the homeless.
(3) The request for review must specify the grounds on which it is based,
(4) Upon receipt of a request to review a determination of unsuitability, HUD will notify the landholding agency or GSA that such a request has been made. The landholding agency or GSA shall have 20 days from receipt of the notice from HUD, or an extended period agreed to between HUD and the landholding agency or GSA, to provide any information pertinent to the review. The landholding agency or GSA must refrain from initiating disposal procedures until HUD has completed its reconsideration regarding unsuitability. If the landholding agency or GSA fails to meet the deadline, HUD will move forward with the appeal review with the property information it already has and information submitted in the appeal request provided by the representative of the homeless.
(i) HUD will act on all requests for review within 30 days of receipt of the landholding agency's or GSA's response, or, if the landholding agency or GSA failed to meet the deadline, within 30 days of such deadline, and will notify the representative of the homeless and the landholding agency or GSA in writing of its decision.
(ii) If a property is determined suitable as a result of the review, HUD will request the landholding agency's or GSA's determination of availability pursuant to § 581.7, upon receipt of which HUD will promptly publish the determination on the HUD website.
The revisions and additions read as follows:
(a) * * *
(b) If a landholding agency reports an excess property to GSA that HUD has already determined to be suitable for use to assist the homeless, GSA will screen the property pursuant to paragraph (h) of this section and will advise HUD of the availability of the property for use by the homeless as provided in paragraph (e) of this section. In lieu of the above, GSA may submit a new checklist to HUD and follow the procedures in paragraphs (c) through (h) of this section.
(c) If a landholding agency reports an excess property to GSA that has not been reviewed by HUD for homeless assistance suitability, GSA will complete a property checklist, based on information provided by the landholding agency, and will forward this checklist to HUD for a suitability determination. This checklist will reflect any change in classification, such as from unutilized or underutilized to excess or surplus.
(e) When GSA receives notification from HUD listing suitable excess properties, GSA will transmit a response to HUD within 45 days regarding the availability of the property. GSA's response will include the following for each identified property:
(1) A statement that there is no other compelling Federal need for the property and, therefore, the property will be determined surplus; or
(2) A statement that there is further and compelling Federal need for the property (including a full explanation of such need) and that, therefore, the property is not presently available for use to assist the homeless.
(f) When GSA submits a checklist to HUD in accordance with paragraphs (b) and (c) of this section, the information regarding the availability of the property, as specified in paragraph (e)(1) and (2) of this section, may be included with the checklist if it is known at the time of submittal.
(g) When a surplus property is determined as suitable, confirmed as available by GSA, and notice is published on the HUD website, GSA will concurrently notify HHS, State and local government units, and known homeless assistance providers that have expressed interest in the particular property, and other organizations, as appropriate, concerning suitable properties.
(h) Upon submission of a Report of Excess to GSA, GSA may screen the property for Federal use. In addition, GSA may screen State and local governmental units and eligible non-profit organizations to determine interest in the property in accordance with current regulations. (See 41 CFR 102-75.1220, 102-75.255 and 102-75.350).
(i) The landholding agency will retain custody and accountability and will protect and maintain any property that is reported excess to GSA as provided in 41 CFR 102-75.965.
(a) In general, properties will be determined suitable unless a property's characteristics include one or more of the following conditions:
(1)
(2)
(3)
(b) In the cases below, properties will be determined unsuitable, unless the landholding agencies provide information to enable HUD to determine the property is suitable:
(1)
(2)
(3)
(4)
(a) Within 45 days after receipt of notification from HUD pursuant to § 581.4(a) that a property has been determined to be suitable, each landholding agency or GSA must transmit to HUD a statement of one of the following:
(1) In the case of unutilized or underutilized property—
(i) An intention to declare the property excess;
(ii) An intention to make the property available for use to assist the homeless; or
(iii) The reasons why the property cannot be declared excess or made available for use to assist the homeless. The reasons given must be different from those listed as suitability criteria in § 581.6.
(2) In the case of excess property which has been reported to GSA—
(i) A statement that there is no compelling Federal need for the property, and, therefore, the property will be determined surplus; or
(ii) A statement that there is a further and compelling Federal need for the property (including a full explanation of such need) and therefore, the property is not presently available for use to assist the homeless.
(b) [Reserved]
(a) No later than 15 days after the most recent 45-day period has elapsed for receiving responses from the landholding agencies or GSA regarding availability, HUD will post on the HUD website a list of all properties reviewed, including a description of the property, its address, and classification. The following designations will be made:
(1) Properties that are suitable and available.
(2) Properties that are suitable and unavailable.
(3) Properties that are suitable and to be declared excess.
(4) Properties that are unsuitable.
(b) HUD will establish and maintain a toll-free number for the public to obtain specific information about properties in paragraph (a) of this section.
(c) No later than 15 days after the most recent 45-day period has elapsed for receiving responses from the landholding agencies or GSA regarding availability, HUD will transmit to the United States Interagency Council on Homelessness (USICH) a copy of the list of all properties in paragraph (a) of this section. The USICH will immediately distribute to all state and regional homeless coordinators area-relevant portions of the list. The USICH will encourage the state and regional homeless coordinators to disseminate this information widely.
(d) No later than February 15 of each year, HUD will publish in the
(e) HUD will publish an annual list of properties determined suitable, but which agencies reported unavailable including the reasons such properties are not available.
(a) It is the policy of HHS to foster and assure maximum utilization of surplus property for homeless assistance purposes.
(b) Transfers may be made only to eligible organizations.
(c) Eligible organizations must be authorized, in the State in which the requested property is located, to carry out the activity for which it requests the property.
(d) Property will be requested for assignment only when HUD has made a final determination that the property is suitable for use to assist the homeless, GSA has determined it is available, and HHS has determined it is needed for homeless assistance purposes. The amount of real and related personal property to be transferred shall not exceed normal operating requirements of the applicant. Such property will not be requested for assignment unless it is needed at the time of application for homeless assistance purposes or will be so needed within the immediate or foreseeable future.
(e) Transfers by deed will be made only after the applicant's financial plan is approved and the applicant provides certification that the proposed program is permissible under all applicable State and local zoning restrictions, building codes, and similar limitations.
(a) Properties published by HUD as suitable and available pursuant to § 581.8, for application for use to assist the homeless shall not be available for any other purpose for a period of 30 days beginning on the date of publication. Any eligible organization interested in any underutilized, unutilized, excess, or surplus property for use to assist the homeless must send to HHS a written expression of interest in that property within 30 days after the property has been published on the HUD website.
(b) Although a property may be determined suitable by HUD, HUD's determination does not mean a property is necessarily useable for the purpose(s) stated in the application, nor does it guarantee subsequent conveyance or transfer of a property.
(c) If a written expression of interest to apply for suitable property for use to assist the homeless is received by HHS within the 30-day holding period, such property may not be made available for any other purpose until the date HHS or the appropriate landholding agency has completed action on the application submitted pursuant to that expression of interest.
(d) The expression of interest should identify the specific property, briefly describe the proposed use, include the name of the organization, and indicate whether it is a public body or a private, non-profit organization. The expression of interest must be sent to HHS by email,
(1) HHS will notify the landholding agency (for unutilized and underutilized properties) or GSA (for excess and surplus properties) when an expression of interest has been received for a certain property.
(e) An expression of interest may be sent to and accepted by HHS any time after the 30-day holding period has expired only if the property remains available as determined by GSA or the landholding agency for application to assist the homeless. In such a case, an application submitted pursuant to this expression of interest may be approved for use by the homeless if:
(1) There are no pending applications or written expressions of interest made under any law for use of the property for any purpose; and
(2) In the case of excess or surplus property, GSA has not received a bona fide offer to purchase that property or advertised for the sale of the property by public auction.
(a) Upon receipt of an expression of interest, HHS will send an application packet to the interested entity. The application packet requires the applicant to provide certain information, including the following—
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(i) specifically describe all anticipated costs and sources of funding for the proposed program, including any property modifications;
(ii) be accompanied by supporting documentation which demonstrates that the proposed plan is likely to succeed;
(iii) demonstrate that the applicant is ready, willing, able, and authorized to assume care, custody, and maintenance of the property;
(iv) demonstrate that it has secured the necessary dedicated funds, or the ability to obtain such funds, to carry out the approved proposed program and plan of use for the property, including administrative expenses incident to the transfer by deed, lease, or permit;
(v) not diminish the value of the government's interest in the property nor impair the government's ability to revert and immediately dispose of the property free of any and all liens, encumbrances, or anything else which renders the property unmarketable. Deed transfers will only be made after an applicant demonstrates its financial plan adequately protects the United States' interest in the property; and
(vi) neither subject the Federal government's interest in the property to foreclosure nor impose obligations (
(8)
(9)
(10)
(11)
(12)
(13)
(b)
(c)
(d)
(1) Upon receipt of an initial application, HHS will review it for completeness, and, if incomplete, may, in its discretion, return it or ask the applicant to furnish any missing or additional required information prior to final evaluation of the initial application.
(2) HHS will evaluate each initial application within 10 days of receipt and will promptly advise the applicant of its decision. All initial applications will be reviewed on the basis of the following elements:
(i)
(ii)
(iii)
(e)
(1) If HHS approves an initial application, HHS will notify the applicant and provide the applicant 45 days in which to provide a final application. The final application shall set forth a reasonable plan to finance, as specified in § 581.11(a)(7), the approved program as set forth in the initial application. Applicants may not modify the approved initial application within its final application proposal.
(2) Upon receipt of the final application, HHS will make a determination within 15 days and notify the applicant.
(3) Unlike with initial applications, requests for extensions are not authorized by 42 U.S.C. 11411 and thus will not be considered for final applications.
(4) Applications are evaluated on a first-come, first-served basis. HHS will notify all organizations that have submitted expressions of interest for a particular property whether an earlier application received for that property has been approved.
(f)
(a) Unutilized and underutilized properties.
(1) When HHS approves an application, it will so notify the applicant and forward a copy of the application to the landholding agency. The landholding agency will execute the lease, or permit document, as appropriate, in consultation with the applicant.
(2) The landholding agency maintains the discretion to decide the following:
(i) The length of time the property will be available. (Leases and permits will be for a period of at least one year unless the applicant requests a shorter term.)
(ii) The terms and conditions of the lease or permit document (except that a landholding agency may not charge any fees or impose any costs).
(b) Excess and surplus properties.
(1) When HHS approves an application, it will so notify the applicant and request that GSA assign the property to HHS for transfer. Requests to GSA for the assignment of surplus property to HHS for homeless assistance purposes will be based on the following conditions:
(i) HHS has a fully approved application for the property;
(ii) The applicant is able, willing, and authorized to assume immediate care, custody, and maintenance of the property;
(iii) The applicant is able, willing and authorized to pay the administrative expenses incident to the transfer; and
(iv) The applicant has secured the necessary funds, or had demonstrated the ability to obtain such funds, to carry out the approved program of use of the property.
(2) Upon receipt of an acceptable assignment, HHS will execute the transfer document in accordance with the procedures and requirements set out in this part and any other terms and conditions HHS and GSA determine are appropriate or necessary. Custody and accountability of the property will remain throughout the lease term with the landholding agency (
(3) Prior to assignment to HHS, GSA may consider other Federal uses and other important national needs in deciding the disposition of surplus property. Priority of consideration will normally be given to uses to assist the homeless. However, both GSA and HHS may consider any competing request for the property made under 40 U.S.C. 550 that is so meritorious and compelling
(4) Whenever GSA or HHS decides in favor of a competing request over a request for property for homeless assistance, the agency making the decision will transmit to the appropriate committees of Congress an explanatory statement which details the need satisfied by conveyance of the surplus property, and the reasons for determining that such need was so meritorious and compelling as to outweigh the needs of the homeless.
(a) Surplus property may be conveyed to eligible organizations pursuant to 40 U.S.C. 550(d) and 42 U.S.C. 11411, as amended, by lease or deed, at the applicant's discretion.
(b) Transfers of surplus property for homeless assistance purposes are in exchange for the transferee's agreement to fully utilize the property for homeless assistance purposes in accordance with the terms specified in the transfer document.
(c) A transfer of surplus property for homeless purposes is subject to the disapproval of GSA within 30 days after notice is given to GSA of the proposed transfer.
(d) Surplus property transferred pursuant to this part will be disposed on an “as is, where is,” basis without warranty of any kind except as may be stated in the transfer document.
(e) Unless excepted by GSA in its assignment, the disposal of property includes mineral rights associated with the surface estate.
(f) Transfers of surplus property under this part will be made with the following general terms and conditions:
(1) For the period provided in the transfer document, the transferee shall utilize all the surplus property it receives solely and continuously for an approved program and plan of use, in accordance with 42 U.S.C. 11411 and these regulations, except that:
(i) The transferee has 12 months from the date of transfer to place the surplus property into use, if HHS did not approve in writing, construction of new facilities or major renovation of the property when it approved the final application;
(ii) The transferee has 36 months from the date of transfer to place the surplus property into use, if the transferee proposes construction of new facilities or major renovation of the property and HHS approves it in writing at the time it approves the final application;
(iii) If the applicable time limitation is not met, the transferee shall either commence payments in cash to the Federal government for each month thereafter during which the proposed use has not been implemented or take such other action as set forth at § 581.18 as is deemed appropriate by HHS. Such monthly payments shall be computed on the basis of the current fair market value of the property, as conveyed, at the time of the first payment and dividing it by 360 months. At HHS's discretion, the payment may be waived if the transferee makes a sufficient showing of continued progress to place the property into use or if an unforeseeable event occurs which prevents the property from being put into use within the applicable timeframe; and
(iv) HHS may permit use of surplus property at any time during the period of restriction by an entity other than the transferee in accordance with § 581.19.
(2) The transferee will not be permitted to encumber, sell, lease or sublease, rent, mortgage, or otherwise dispose of the property, or any part thereof, without the prior written authorization of HHS. In the event the property is sold, leased or subleased, encumbered, disposed of, or is used for purposes other than those set forth in an approved plan without the consent of HHS, all revenues or the reasonable value of other benefits received by the transferee directly or indirectly from such use, as determined by HHS, will be considered to have been received and held in trust by the transferee for the account of the United States and will be subject to the direction and control of HHS. The provisions of this paragraph shall not impair or affect the rights reserved to the United States in paragraph (f)(8) of this section, or the right of HHS to impose conditions to its consent.
(3) The transferee will file with HHS such reports on its maintenance and use of the transferred property and any other reports or information deemed necessary by HHS.
(4) The transferee shall pay all administrative costs incidental to the transfer, including but not limited to—transfer taxes; surveys; appraisals; title searches; the transferee's legal fees; and recordation expenses. Transferee is solely responsible for such costs and may not seek reimbursement from the Federal government for any reason.
(5) The transferee shall protect, preserve, maintain, and repair the property to ensure that the property remains in as good a condition as when received.
(6) The transferee shall protect the residual financial interest of the United States in the surplus property by insurance or such other means as HHS directs. Where loss or damage to the transferred property occurs, all proceeds from insurance shall be promptly used by the transferee for the purpose of repairing and restoring the property to its former condition or replacing it with equivalent or more suitable facilities. If not so used, there shall be paid to the United States that part of the insurance proceeds that is attributable to the Government's residual interest in the property lost, damaged, or destroyed. Further, transferee shall neither take any action nor allow any action which diminishes the residual financial interest of the United States.
(7) The transferee shall abide by all applicable Federal Civil Rights laws including those specified in the covenants and conditions contained in the transfer document, prohibiting the transferee from discriminating on the basis of, including but not limited to, race, color, national origin, religion, sex, familial status or disability in the use of the property.
(8) In the event of substantial noncompliance with any conditions of the deed as determined by HHS, whether caused by the legal or other inability of the transferee, its successors and assigns, to perform any of the obligations of the transfer document, the Federal government has an immediate right of reentry thereon, and to cause all right, title, and interest in and to the property to revert to the United States, and the transferee shall forfeit all right, title, and interest in and to the property. In such event, transferee shall execute a quitclaim deed and take all other actions necessary to return the property to the United States within ninety (90) days of a written request from the Federal government, extended only at the discretion of the Federal government. Transferee shall cooperate with the United States in the event of a reversion and agrees that the United States need not seek judicial intervention before exercising its right to revert, reenter and reconvey the property.
(9) In the event title is reverted to the United States for noncompliance or voluntarily reconveyed to the United States, the transferee shall, at the option of HHS, be required to: reimburse the United States for the decrease in value of the property not due to market conditions, reasonable wear and tear, acts of God, or approved alterations completed by the transferee to adapt the property to the homeless use for which the property was transferred; and reimburse the United States for any costs incurred in reverting title to or
(10) With respect to leased property, in the event of substantial noncompliance with any of the conditions of the lease, as determined by HHS or the landholding agency, the right of occupancy and possession shall, at the option of HHS or the landholding agency, be terminated. In the event a leasehold is terminated by the United States for substantial noncompliance or is voluntarily surrendered, the lessee shall be required, at the option of HHS, to reimburse the United States for the decrease in value of the property not due to market conditions, reasonable wear and tear, acts of God, or approved alterations completed by the lessee to adapt the property to the homeless use for which the property was leased. With respect to any termination of leasehold resulting from noncompliance, the United States, shall, in addition thereto, be reimbursed for such costs as may be incurred in recovering possession of the property, including reasonable attorneys' fees.
(11) Any other term or condition that HHS and GSA determine appropriate or necessary.
(12) With respect to surplus property transferred by deed, the terms and conditions including those in paragraph (f) of this section, apply for a period of thirty (30) years of use in accordance with a program of use approved in writing by HHS. The thirty-year (30) period may, in HHS's sole discretion, be extended or restarted in the event the property is not fully utilized or is retransferred to a successor entity. Expiration of the foregoing terms and conditions does not release the transferee from continuing compliance, as appropriate, with any conditions that may run with the land,
(13) With respect to surplus property transferred by lease, the terms and conditions including those in paragraph (f) of this section, extend for the entire initial lease and for any subsequent renewal periods, unless specifically excluded in writing by HHS.
(g) Related personal property may be transferred or leased as a part of the realty and in accordance with real property procedures.
(h) Completion of Transfer Term and Reversion of Title. Transferees will be responsible for the protection and maintenance of the property during the time that they possess the property. Upon termination of the lease term or reversion of title to the United States, the transferee will be responsible for removing improvements made to the property if directed to by the United States and, in such event, will be responsible for restoration of the property or the costs associated with restoring the property. If improvements made by the transferee are not voluntarily removed by the transferee and the United States consents, they will become the property of the United States. If the United States does not consent, the transferee shall reimburse the United States for reasonable costs of removal. GSA or the landholding agency, as appropriate, will assume responsibility for protection and maintenance of a property when the lease terminates or title reverts.
(i) Transferees, by obtaining the consent of HHS, may abrogate the restrictions set forth in paragraph (f) of this section for all or any portion of the property in accordance with the provisions of § 581.20.
The landholding agency or GSA will defer action to dispose of properties determined unsuitable for homeless assistance for 20 days after the date that notice of a property is posted on the HUD website. HUD will inform landholding agencies or GSA if appeal of an unsuitability determination is filed by a representative of the homeless pursuant to § 581.4(f). HUD will advise the agency to refrain from initiating disposal procedures until HUD has completed its reconsideration process regarding unsuitability. Thereafter, or if no appeal has been filed after 20 days, GSA or the appropriate landholding agency may proceed with disposal action in accordance with applicable law.
(a) HHS, prior to making a final decision to convey or lease, or to amend, reform, or grant an approval or release with respect to a previous conveyance or lease of, surplus property for homeless purposes, will act in accordance with applicable provisions of the National Environmental Policy Act of 1969, the National Historic Preservation Act of 1966, the National Archeological Data Preservation Act, and other related acts. No lease to use surplus property shall allow the lessee to make, or cause to be made, any irreversible change in the conditions of said property, and no lease shall be employed for the purpose of delaying or avoiding compliance with the requirements of these Acts, unless approved by the United States.
(b) Applicants shall be required to provide such information as HHS deems necessary to make an assessment of the impact of the proposed Federal action on the human environment. Materials contained in the applicant's official request, responses to a standard questionnaire prescribed by HHS, as well as other relevant information, will be used by HHS in making said assessment.
(c) If the assessment reveals:
(1) that the proposed Federal action involved properties of historical significance which are listed, or eligible for listing, in the National Register of Historic Places; or
(2) that a more than insignificant impact on the human environment is reasonably foreseeable as a result of the proposed action; or
(3) that the proposed Federal action could result in irreparable loss or destruction of archeologically significant items or data, HHS will, except as provided for in paragraph (d) of this section, prepare and distribute, or cause to be prepared or distributed, such notices and statements and obtain such approvals as are required by the above cited Acts.
(d) If a proposed action involves other Federal agencies in a sequence of actions, or a group of actions, directly related to each other because of their functional interdependence, HHS may enter into and support a lead agency agreement to designate a single lead agency which will assume primary responsibility for coordinating the assessment of environmental effects of proposed Federal actions, preparing and distributing such notices and statements, or obtaining such approvals, as are required by the above cited Acts. The procedures of the designated lead agency will be utilized in conducting the environmental assessment. In the event of disagreement between HHS and another Federal agency, HHS will reserve the right to abrogate the lead agency agreement with the other Federal agency.
(a) At the end of the 30-day holding period described in § 581.10(a), HHS will notify GSA, or the landholding agency, as appropriate, if an expression of interest has been received for a certain property. Where there is no expression of interest, GSA or the landholding agency, as appropriate, will
(b) Upon notice from HHS that all applications have been disapproved, or if no initial applications have been received within 75 days after an expression of interest, or no final application has been received within 45 days after an approved initial application, disposal may proceed in accordance with applicable law.
(a)
(1) Where property or any portion thereof was not used or is not being used for the purposes for which transferred, or is sold, leased or subleased, encumbered, disposed of, or used for purposes other than those in the approved program and plan of use, without the prior written consent of HHS, HHS may require the transferee to—
(i) Place the property into immediate use for an approved purpose and extend the period of restriction in the transfer document for an additional term as determined by HHS;
(ii) Hold in trust all revenues and the reasonable value of other benefits received by the transferee directly or indirectly from that use for the United States subject to the direction and control of HHS;
(iii) Return title to such property to the United States or to relinquish any leasehold interest therein;
(iv) Abrogate the conditions and restrictions of the transfer, as set forth in § 581.20;
(v) Make cash payments to the United States, as directed by HHS, equivalent to the current fair market rental value of the surplus property, as transferred, for each month during which the program and plan of use has not been implemented and continues to not be implemented; or
(vi) Any other remedy that HHS determines appropriate or necessary.
(2) Where the transferee desires to place the property into temporary use to assist the homeless other than that for which the property was transferred, written approval from HHS must be obtained, and will be conditioned upon HHS's authority to permit the use and such terms as HHS may impose.
(3) If HHS or the landholding agency determines that a lessee or sublessee of a transferee is in substantial noncompliance with a term or condition of the lease, or if the lessee voluntarily surrenders the premises, HHS may require termination of the lease and impose sanctions described in paragraph (a)(1) of this section, as appropriate.
(b)
(a) A transferee may permit the use of all or a portion of the surplus property by another eligible entity as described in § 581.1 for homeless assistance purposes, only upon those terms and conditions HHS determines appropriate, if:
(1) The transferee submits a written request to HHS explaining the purpose of and need for another eligible entity's use of the property, program plan, and other relevant information requested by HHS;
(2) HHS determines that the proposed use would not substantially limit the program and plan of use by the transferee and that the use will not unduly burden the Federal government;
(3) HHS's written consent is obtained by the transferee in advance;
(4) HHS approves the use instrument in advance and in writing; and
(5) HHS advises GSA and there is no disapproval by GSA within thirty (30) days.
(b) [Reserved].
(a) HHS may abrogate the conditions and restrictions in the transfer document if:
(1) The transferee submits to HHS a written request that HHS abrogate the conditions and restrictions in the transfer document as to all or any portion of the surplus property;
(2) HHS determines the terms and conditions of the proposed abrogation and determines that the proposed abrogation is in the best interest of the United States; and
(3) HHS transmits the abrogation request to GSA and there is no disapproval by GSA within 30 days after notice is given. If GSA disapproves, GSA will state, in writing, to HHS the reason(s) for the disapproval.
(b) HHS abrogates the conditions and restrictions in the transfer document only upon receipt of the appropriate consideration, including cash payment, to the United States, as directed by HHS, which is based on the formula contained in the transfer document, and any other terms and conditions HHS deems appropriate to protect the interest of the United States.
Transferees are required to allow HHS to conduct compliance inspections and to submit such compliance reports and actions as are deemed necessary by HHS. At a minimum, the transferee will be required to submit an annual utilization report regarding the operation and maintenance of the property, including current images of the entire property and such information as HHS shall require.
There is no right to administrative review within HHS, including requests for reconsideration or appeal, of agency decisions on applications and other discretionary decisions.
Accordingly, for the reasons stated above, GSA proposes to amend 41 CFR part 102-75 subpart H as follows:
40 U.S.C. 121(c), 521-523, 541-559; E.O. 12512, 50 FR 18453, 3 CFR, 1985 Comp., p. 340.
The following definitions are also pursuant to 24 CFR part 581.1 and 45 CFR part 12a.1.
(a) This subpart applies to Federal property that has been designated by Federal landholding agencies as unutilized, underutilized, excess or surplus and is therefore subject to the provisions of Title V of the McKinney Act, as amended (42 U.S.C. 11411).
(b) The following categories of properties are not subject to this subpart (regardless of whether they may be unutilized or underutilized):
(1) Buildings and property at military installations that were approved for closure under the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Pub. L. 101-510; 10 U.S.C. 2687 note) after October 25, 1994.
(2) Machinery and equipment not determined to be related personal property by the landholding agency or GSA or determined to be related personal property that the landholding agency or GSA chooses to dispose of separate from real property.
(3) Government-owned, contractor-operated machinery, equipment, land, and other facilities reported excess for sale only to the using contractor and subject to a continuing military requirement.
(4) Properties subject to special legislation directing a particular action.
(5) Properties subject to a court order that, for any reason, precludes transfer for use to assist the homeless under the authority of 42 U.S.C. 11411.
(6) Property not subject to Federal Real Property Council reporting requirements in accordance with 40 U.S.C. 623(i).
(7) Mineral rights interests independent of surface rights.
(8) Air space interests independent of surface rights.
(9) Indian Reservation land subject to 40 U.S.C. 523.
(10) Property interests subject to reversion.
(11) Easements.
(12) Any building or fixture that is excess, or surplus, that is on land owned by a landholding agency, where the underlying land is not excess or surplus.
(13) Property purchased in whole or in part with Federal funds if title to the property is not held by a Federal landholding agency as defined in this subpart.
(a)
(b)
(1) was included in a list of suitable properties published that year by HUD, and
(2) remains available for application for use to assist the homeless or has become available for application during that year.
(c)
(d)
(a)
(b)
(c)
(d)
(1) The suitability determination for a particular piece of property, and the reasons for that determination; and
(2) The landholding agency's response to the determination pursuant to the requirements of § 102-75.1166(a).
(e)
(f)
(1) To request review of a determination of unsuitability, a representative of the homeless must contact HUD, in writing, through the U.S. Mail, email, or the HUD website, or such other method as HUD may require, within 20 days of publication of notice of unsuitability.
(2) Requests for review of a determination of unsuitability may be made only by representatives of the homeless.
(3) The request for review must specify the grounds on which it is based,
(4) Upon receipt of a request to review a determination of unsuitability, HUD will notify the landholding agency or GSA that such a request has been made. The landholding agency or GSA shall have 20 days from receipt of the notice from HUD, or an extended period agreed to between HUD and the landholding agency or GSA, to provide any information pertinent to the review. The landholding agency or GSA must refrain from initiating disposal procedures until HUD has completed its reconsideration regarding unsuitability. If the landholding agency or GSA fails to meet the deadline, HUD will move forward with the appeal review with the property information it already has and information submitted in the appeal request provided by the representative of the homeless.
(i) HUD will act on all requests for review within 30 days of receipt of the landholding agency's or GSA's response, or, if the landholding agency or GSA failed to meet the deadline, within 30 days of such deadline, and will notify the representative of the homeless and the landholding agency or GSA in writing of its decision.
(ii) If a property is determined suitable as a result of the review, HUD will request the landholding agency's or GSA's determination of availability pursuant to § 102-75.1166, upon receipt of which HUD will promptly publish the determination on the HUD website.
(a) Each landholding agency must submit a report to GSA of properties it determines excess. Each landholding agency must also provide a copy of HUD's suitability determination, if any, including HUD's identification number for the property.
(b) If a landholding agency reports an excess property to GSA that HUD has already determined to be suitable for use to assist the homeless, GSA will screen the property pursuant to paragraph (h) of this section and will advise HUD of the availability of the property for use by the homeless as provided in paragraph (e) of this section. In lieu of the above, GSA may submit a new checklist to HUD and follow the procedures in paragraphs (c) through (h) of this section.
(c) If a landholding agency reports an excess property to GSA that has not been reviewed by HUD for homeless assistance suitability, GSA will complete a property checklist, based on information provided by the landholding agency, and will forward this checklist to HUD for a suitability determination. This checklist will reflect any change in classification, such as from unutilized or underutilized to excess or surplus.
(d) Within 30 days after GSA's submission, HUD will advise GSA of the suitability determination.
(e) When GSA receives notification from HUD listing suitable excess properties, GSA will transmit a response to HUD within 45 days. GSA's response will include the following for each identified property:
(1) A statement that there is no other compelling Federal need for the property and, therefore, the property will be determined surplus; or
(2) A statement that there is further and compelling Federal need for the property (including a full explanation of such need) and that, therefore, the property is not presently available for use to assist the homeless.
(f) When GSA submits a checklist to HUD in accordance with paragraphs (b) and (c) of this section, the information regarding the availability of the property, as specified in paragraph (e)(1) and (2) of this section, may be included with the checklist if it is known at the time of submittal.
(g) When a surplus property is determined as suitable, confirmed as available by GSA, and notice is published on the HUD website, GSA will concurrently notify HHS, State and local government units, and known homeless assistance providers that have expressed interest in the particular property, and other organizations, as appropriate, concerning suitable properties.
(h) Upon submission of a Report of Excess to GSA, GSA may screen the property for Federal use. In addition, GSA may screen State and local governmental units and eligible non-profit organizations to determine interest in the property in accordance with current regulations. (See 41 CFR 102-75.1220, 102-75.255 and 102-75.350).
(i) The landholding agency will retain custody and accountability and will protect and maintain any property that is reported excess to GSA as provided in 41 CFR 102-75.965.
(a) In general, properties will be determined suitable unless a property's characteristics include one or more of the following conditions:
(1)
(2)
(3)
(b) In the cases below, properties will be determined unsuitable, unless the landholding agencies provide information to enable HUD to determine the property is suitable:
(1)
(2)
(3)
(4)
(a) Within 45 days after receipt of notification from HUD pursuant to § 102-75.1162(a) that a property has been determined to be suitable, each landholding agency or GSA must transmit to HUD a statement of one of the following:
(1) In the case of unutilized or underutilized property—
(i) An intention to declare the property excess;
(ii) An intention to make the property available for use to assist the homeless; or
(iii) The reasons why the property cannot be declared excess or made available for use to assist the homeless. The reasons given must be different from those listed as suitability criteria in § 102-75.1165.
(2) In the case of excess property which has been reported to GSA—
(i) A statement that there is no compelling Federal need for the property, and, therefore, the property will be determined surplus; or
(ii) A statement that there is a further and compelling Federal need for the property (including a full explanation of such need) and therefore, the property is not presently available for use to assist the homeless.
(b) [Reserved]
(a) No later than 15 days after the most recent 45-day period has elapsed for receiving responses from the landholding agencies or GSA regarding availability, HUD will post on the HUD website a list of all properties reviewed, including a description of the property, its address, and classification. The following designations will be made:
(1) Properties that are suitable and available.
(2) Properties that are suitable and unavailable.
(3) Properties that are suitable and to be declared excess.
(4) Properties that are unsuitable.
(b) HUD will establish and maintain a toll-free number for the public to obtain specific information about properties in paragraph (a) of this section.
(c) No later than 15 days after the most recent 45-day period has elapsed for receiving responses from the landholding agencies or GSA regarding availability, HUD will transmit to the United States Interagency Council on Homelessness (USICH) a copy of the list of all properties in paragraph (a) of this section. The USICH will immediately distribute to all state and regional homeless coordinators area-relevant portions of the list. The USICH will encourage the state and regional homeless coordinators to disseminate this information widely.
(d) No later than February 15 of each year, HUD will publish in the
(e) HUD will publish an annual list of properties determined suitable, but which agencies reported unavailable including the reasons such properties are not available.
(a) It is the policy of HHS to foster and assure maximum utilization of surplus property for homeless assistance purposes.
(b) Transfers may be made only to eligible organizations.
(c) Eligible organizations must be authorized, in the State in which the requested property is located, to carry out the activity for which it requests the property.
(d) Property will be requested for assignment only when HUD has made a final determination that the property is suitable for use to assist the homeless, GSA has determined it is available, and HHS has determined it is needed for homeless assistance purposes. The amount of real and related personal property to be transferred shall not exceed normal operating requirements of the applicant. Such property will not be requested for assignment unless it is needed at the time of application for homeless assistance purposes or will be so needed within the immediate or foreseeable future.
(e) Transfers by deed will be made only after the applicant's financial plan is approved and the applicant provides certification that the proposed program is permissible under all applicable State and local zoning restrictions, building codes, and similar limitations.
(a) Properties published by HUD as suitable and available pursuant to § 102-75.1167, for application for use to assist the homeless shall not be available for any other purpose for a period of 30 days beginning on the date of publication. Any eligible organization interested in any underutilized, unutilized, excess, or surplus property for use to assist the homeless must send to HHS a written expression of interest in that property within 30 days after the property has been published on the HUD website.
(b) Although a property may be determined suitable by HUD, HUD's determination does not mean a property is necessarily useable for the purpose(s) stated in the application, nor does it guarantee subsequent conveyance or transfer of a property.
(c) If a written expression of interest to apply for suitable property for use to assist the homeless is received by HHS within the 30-day holding period, such property may not be made available for any other purpose until the date HHS or the appropriate landholding agency has completed action on the application submitted pursuant to that expression of interest.
(d) The expression of interest should identify the specific property, briefly describe the proposed use, include the name of the organization, and indicate whether it is a public body or a private, non-profit organization. The expression of interest must be sent to HHS by email,
(1) HHS will notify the landholding agency (for unutilized and underutilized properties) or GSA (for excess and surplus properties) when an expression of interest has been received for a certain property.
(e) An expression of interest may be sent to and accepted by HHS any time after the 30-day holding period has expired only if the property remains available as determined by GSA or the landholding agency for application to assist the homeless. In such a case, an application submitted pursuant to this expression of interest may be approved for use by the homeless if:
(1) There are no pending applications or written expressions of interest made under any law for use of the property for any purpose; and
(2) In the case of excess or surplus property, GSA has not received a bona fide offer to purchase that property or advertised for the sale of the property by public auction.
(a) Upon receipt of an expression of interest, HHS will send an application packet to the interested entity. The application packet requires the applicant to provide certain information, including the following—
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(i) specifically describe all anticipated costs and sources of funding for the proposed program, including any property modifications;
(ii) be accompanied by supporting documentation which demonstrates that the proposed plan is likely to succeed;
(iii) demonstrate that the applicant is ready, willing, able, and authorized to assume care, custody, and maintenance of the property;
(iv) demonstrate that it has secured the necessary dedicated funds, or the ability to obtain such funds, to carry out the approved proposed program and plan of use for the property, including administrative expenses incident to the transfer by deed, lease, or permit;
(v) not diminish the value of the government's interest in the property nor impair the government's ability to revert and immediately dispose of the property free of any and all liens, encumbrances, or anything else which renders the property unmarketable. Deed transfers will only be made after an applicant demonstrates its financial plan adequately protects the United States' interest in the property; and
(vi) neither subject the Federal government's interest in the property to foreclosure nor impose obligations (
(8)
(9)
(10)
(11)
(12)
(13)
(b)
(c)
(d)
(1) Upon receipt of an initial application, HHS will review it for completeness, and, if incomplete, may, in its discretion, return it or ask the applicant to furnish any missing or additional required information prior to final evaluation of the initial application.
(2) HHS will evaluate each initial application within 10 days of receipt and will promptly advise the applicant of its decision. All initial applications will be reviewed on the basis of the following elements:
(i)
(ii)
(iii)
(e)
(1) If HHS approves an initial application, HHS will notify the applicant and provide the applicant 45 days in which to provide a final application. The final application shall set forth a reasonable plan to finance, as specified in § 102-75.1170(a)(6), the approved program as set forth in the initial application. Applicants may not modify the approved initial application within its final application proposal.
(2) Upon receipt of the final application, HHS will make a determination within 15 days and notify the applicant.
(3) Unlike with initial applications, requests for extensions are not authorized by 42 U.S.C. 11411 and thus will not be considered for final applications.
(4) Applications are evaluated on a first-come, first-served basis. HHS will notify all organizations that have submitted expressions of interest for a particular property whether an earlier application received for that property has been approved.
(f)
(a) Unutilized and underutilized properties.
(1) When HHS approves an application, it will so notify the applicant and forward a copy of the application to the landholding agency. The landholding agency will execute the lease, or permit document, as appropriate, in consultation with the applicant.
(2) The landholding agency maintains the discretion to decide the following:
(i) The length of time the property will be available. (Leases and permits will be for a period of at least one year unless the applicant requests a shorter term.)
(ii) The terms and conditions of the lease or permit document (except that a landholding agency may not charge any fees or impose any costs).
(b) Excess and surplus properties.
(1) When HHS approves an application, it will so notify the applicant and request that GSA assign the property to HHS for transfer. Requests to GSA for the assignment of surplus property to HHS for homeless assistance purposes will be based on the following conditions:
(i) HHS has a fully approved application for the property;
(ii) The applicant is able, willing, and authorized to assume immediate care, custody, and maintenance of the property;
(iii) The applicant is able, willing and authorized to pay the administrative expenses incident to the transfer; and
(iv) The applicant has secured the necessary funds, or had demonstrated the ability to obtain such funds, to carry out the approved program of use of the property.
(2) Upon receipt of an acceptable assignment, HHS will execute the transfer document in accordance with the procedures and requirements set out in this subpart and any other terms and conditions HHS and GSA determines are appropriate or necessary. Custody and accountability of the property will remain throughout the lease term with the landholding agency (
(3) Prior to assignment to HHS, GSA may consider other Federal uses and
(4) Whenever GSA or HHS decides in favor of a competing request over a request for property for homeless assistance, the agency making the decision will transmit to the appropriate committees of Congress an explanatory statement which details the need satisfied by conveyance of the surplus property, and the reasons for determining that such need was so meritorious and compelling as to outweigh the needs of the homeless.
(a) Surplus property may be conveyed to eligible organizations pursuant to 40 U.S.C. 550(d) and 42 U.S.C. 11411, as amended, by lease or deed, at the applicant's discretion.
(b) Transfers of surplus property for homeless assistance purposes are in exchange for the transferee's agreement to fully utilize the property for homeless assistance purposes in accordance with the terms specified in the transfer document.
(c) A transfer of surplus property for homeless purposes is subject to the disapproval of GSA within 30 days after notice is given to GSA of the proposed transfer.
(d) Surplus property transferred pursuant to this subpart will be disposed on an “as is, where is,” basis without warranty of any kind except as may be stated in the transfer document.
(e) Unless excepted by GSA in its assignment, the disposal of property includes mineral rights associated with the surface estate.
(f) Transfers of surplus property under this subpart will be made with the following general terms and conditions:
(1) For the period provided in the transfer document, the transferee shall utilize all the surplus property it receives solely and continuously for an approved program and plan of use, in accordance with 42 U.S.C. 11411 and these regulations, except that:
(i) The transferee has 12 months from the date of transfer to place the surplus property into use, if HHS did not approve in writing, construction of new facilities or major renovation of the property when it approved the final application;
(ii) The transferee has 36 months from the date of transfer to place the surplus property into use, if the transferee proposes construction of new facilities or major renovation of the property and HHS approves it in writing at the time it approves the final application;
(iii) If the applicable time limitation is not met, the transferee shall either commence payments in cash to the Federal government for each month thereafter during which the proposed use has not been implemented or take such other action as set forth at § 102-75.1176 as is deemed appropriate by HHS. Such monthly payments shall be computed on the basis of the current fair market value of the property, as conveyed, at the time of the first payment and dividing it by 360 months. At HHS's discretion, the payment may be waived if the transferee makes a sufficient showing of continued progress to place the property into use or if an unforeseeable event occurs which prevents the property from being put into use within the applicable timeframe; and
(iv) HHS may permit use of surplus property at any time during the period of restriction by an entity other than the transferee in accordance with § 102-75.1177.
(2) The transferee will not be permitted to encumber, sell, lease or sublease, rent, mortgage, or otherwise dispose of the property, or any part thereof, without the prior written authorization of HHS. In the event the property is sold, leased or subleased, encumbered, disposed of, or is used for purposes other than those set forth in an approved plan without the consent of HHS, all revenues or the reasonable value of other benefits received by the transferee directly or indirectly from such use, as determined by HHS, will be considered to have been received and held in trust by the transferee for the account of the United States and will be subject to the direction and control of HHS. The provisions of this paragraph shall not impair or affect the rights reserved to the United States in paragraph (f)(8) of this section, or the right of HHS to impose conditions to its consent.
(3) The transferee will file with HHS such reports on its maintenance and use of the surplus property and any other reports or information deemed necessary by HHS.
(4) The transferee shall pay all administrative costs incidental to the transfer, including but not limited to—transfer taxes; surveys; appraisals; title search; the transferee's legal fees; recordation expenses, etc. Transferee is solely responsible for such costs and may not seek reimbursement from the Federal government for any reason.
(5) The transferee shall protect, preserve, maintain, and repair the property to ensure that the property remains in as good a condition as when received.
(6) The transferee shall protect the residual financial interest of the United States in the surplus property by insurance or such other means as HHS directs. Where loss or damage to the transferred property occurs, all proceeds from insurance shall be promptly used by the transferee for the purpose of repairing and restoring the property to its former condition or replacing it with equivalent or more suitable facilities. If not so used, there shall be paid to the United States that part of the insurance proceeds that is attributable to the Government's residual interest in the property lost, damaged, or destroyed. Further, transferee shall neither take any action nor allow any action which diminishes the residual financial interest of the United States.
(7) The transferee shall abide by all applicable Federal Civil Rights laws including those specified in the covenants and conditions contained in the transfer document, prohibiting the transferee from discriminating on the basis of, including but not limited to, race, color, national origin, religion, sex, familial status or disability in the use of the property.
(8) In the event of substantial noncompliance with any conditions of the deed as determined by HHS, whether caused by the legal or other inability of the transferee, its successors and assigns, to perform any of the obligations of the transfer document, the Federal government has an immediate right of reentry thereon, and to cause all right, title, and interest in and to the property to revert to the United States, and the transferee shall forfeit all right, title, and interest in and to the property. In such event, transferee shall execute a quitclaim deed and take all other actions necessary to return the property to the United States within ninety (90) days of a written request from the Federal government, extended only at the discretion of the Federal government. Transferee shall cooperate with the United States in the event of a reversion and agrees that the United States need not seek judicial intervention before exercising its right to revert, reenter and reconvey the property.
(9) In the event title is reverted to the United States for noncompliance or voluntarily reconveyed to the United
(10) With respect to leased property, in the event of substantial noncompliance with any of the conditions of the lease, as determined by HHS or the landholding agency, the right of occupancy and possession shall, at the option of HHS or the landholding agency, be terminated. In the event a leasehold is terminated by the United States for substantial noncompliance or is voluntarily surrendered, the lessee shall be required, at the option of HHS, to reimburse the United States for the decrease in value of the property not due to market conditions, reasonable wear and tear, acts of God, or approved alterations completed by the lessee to adapt the property to the homeless use for which the property was leased. With respect to any termination of leasehold resulting from noncompliance, the United States, shall, in addition thereto, be reimbursed for such costs as may be incurred in recovering possession of the property, including reasonable attorneys' fees.
(11) Any other term or condition that HHS and GSA determine appropriate or necessary.
(12) With respect to surplus property transferred by deed, the terms and conditions including those in paragraph (f) of this section, apply for a period of thirty (30) years of use in accordance with a program of use approved in writing by HHS. The thirty-year (30) period may, in HHS's sole discretion, be extended or restarted in the event the property is not fully utilized or is retransferred to a successor entity. Expiration of the foregoing terms and conditions does not release the transferee from continuing compliance, as appropriate, with any conditions that may run with the land,
(13) With respect to surplus property transferred by lease, the terms and conditions including those in paragraph (f) of this section, extend for the entire initial lease and for any subsequent renewal periods, unless specifically excluded in writing by HHS.
(g) Related personal property may be transferred or leased as a part of the realty and in accordance with real property procedures.
(h) Completion of Transfer Term and Reversion of Title. Transferees will be responsible for the protection and maintenance of the property during the time that they possess the property. Upon termination of the lease term or reversion of title to the United States, the transferee will be responsible for removing improvements made to the property if directed to by the United States and, in such event, will be responsible for restoration of the property or the costs associated with restoring the property. If improvements made by the transferee are not voluntarily removed by the transferee and the United States consents, they will become the property of the United States. If the United States does not consent, the transferee shall reimburse the United States for reasonable costs of removal. GSA or the landholding agency, as appropriate, will assume responsibility for protection and maintenance of a property when the lease terminates or title reverts.
(i) Transferees, by obtaining the consent of HHS, may abrogate the restrictions set forth in paragraph (f) of this section for all or any portion of the property in accordance with the provisions of § 102-75.1178.
The landholding agency or GSA will defer action to dispose of properties determined unsuitable for homeless assistance for 20 days after the date that notice of a property is posted on the HUD website. HUD will inform landholding agencies or GSA if appeal of an unsuitability determination is filed by a representative of the homeless pursuant to § 102-75.1163(f). HUD will advise the agency to refrain from initiating disposal procedures until HUD has completed its reconsideration process regarding unsuitability. Thereafter, or if no appeal has been filed after 20 days, GSA or the appropriate landholding agency may proceed with disposal action in accordance with applicable law.
(a) HHS, prior to making a final decision to convey or lease, or to amend, reform, or grant an approval or release with respect to a previous conveyance or lease of, surplus property for homeless purposes, will act in accordance with applicable provisions of the National Environmental Policy Act of 1969, the National Historic Preservation Act of 1966, the National Archeological Data Preservation Act, and other related acts. No lease to use surplus property shall allow the lessee to make, or cause to be made, any irreversible change in the conditions of said property, and no lease shall be employed for the purpose of delaying or avoiding compliance with the requirements of these Acts, unless approved by the United States.
(b) Applicants shall be required to provide such information as HHS deems necessary to make an assessment of the impact of the proposed Federal action on the human environment. Materials contained in the applicant's official request, responses to a standard questionnaire prescribed by HHS, as well as other relevant information, will be used by HHS in making said assessment.
(c) If the assessment reveals:
(1) that the proposed Federal action involved properties of historical significance which are listed, or eligible for listing, in the National Register of Historic Places; or
(2) that a more than insignificant impact on the human environment is reasonably foreseeable as a result of the proposed action; or
(3) that the proposed Federal action could result in irreparable loss or destruction of archeologically significant items or data, HHS will, except as provided for in paragraph (d) of this section, prepare and distribute, or cause to be prepared or distributed, such notices and statements and obtain such approvals as are required by the above cited Acts.
(d) If a proposed action involves other Federal agencies in a sequence of actions, or a group of actions, directly related to each other because of their functional interdependence, HHS may enter into and support a lead agency agreement to designate a single lead
(a) At the end of the 30-day holding period described in § 102-75.1169(a), HHS will notify GSA, or the landholding agency, as appropriate, if an expression of interest has been received for a certain property. Where there is no expression of interest, GSA or the landholding agency, as appropriate, will proceed with disposal in accordance with applicable law.
(b) Upon notice from HHS that all applications have been disapproved, or if no initial applications have been received within 75 days after an expression of interest, or no final application has been received within 45 days after an approved initial application, disposal may proceed in accordance with applicable law.
(a)
(1) Where property or any portion thereof was not used or is not being used for the purposes for which transferred, or is sold, leased or subleased, encumbered, disposed of, or used for purposes other than those in the approved program and plan of use, without the prior written consent of HHS, HHS may require the transferee to—
(i) Place the property into immediate use for an approved purpose and extend the period of restriction in the transfer document for an additional term as determined by HHS;
(ii) Hold in trust all revenues and the reasonable value of other benefits received by the transferee directly or indirectly from that use for the United States subject to the direction and control of HHS;
(iii) Return title to such property to the United States or to relinquish any leasehold interest therein;
(iv) Abrogate the conditions and restrictions of the transfer, as set forth in § 102-75.1178;
(v) Make cash payments to the United States, as directed by HHS, equivalent to the current fair market rental value of the surplus property, as transferred, for each month during which the program and plan of use has not been implemented and continues to not be implemented; or
(vi) Any other remedy that HHS determines appropriate or necessary.
(2) Where the transferee desires to place the property into temporary use to assist the homeless other than that for which the property was transferred, written approval from HHS must be obtained, and will be conditioned upon HHS's authority to permit the use and such terms as HHS may impose.
(3) If HHS or the landholding agency determines that a lessee or sublessee of a transferee is in substantial noncompliance with a term or condition of the lease, or if the lessee voluntarily surrenders the premises, HHS may require termination of the lease and impose sanctions described in paragraph (a)(1) of this section, as appropriate.
(b)
(a) A transferee may permit the use of all or a portion of the surplus property by another eligible entity as described in § 102-75.1160 for homeless assistance purposes, only upon those terms and conditions HHS determines appropriate, if:
(1) The transferee submits a written request to HHS explaining the purpose of and need for another eligible entity's use of the property, program plan, and other relevant information requested by HHS;
(2) HHS determines that the proposed use would not substantially limit the program and plan of use by the transferee and that the use will not unduly burden the Federal government;
(3) HHS's written consent is obtained by the transferee in advance;
(4) HHS approves the use instrument in advance and in writing; and
(b) [Reserved].
(a) HHS may abrogate the conditions and restrictions in the transfer document if:
(1) The transferee submits to HHS a written request that HHS abrogate the conditions and restrictions in the transfer document as to all or any portion of the surplus property;
(2) HHS determines the terms and conditions of the proposed abrogation and determines that the proposed abrogation is in the best interest of the United States; and
(3) HHS transmits the abrogation request to GSA and there is no disapproval by GSA within 30 days after notice is given. If GSA disapproves, GSA will state, in writing, to HHS the reason(s) for the disapproval.
(b) HHS abrogates the conditions and restrictions in the transfer document only upon receipt of the appropriate consideration, including cash payment, to the United States, as directed by HHS, which is based on the formula contained in the transfer document, and any other terms and conditions HHS deems appropriate to protect the interest of the United States.
Transferees are required to allow HHS to conduct compliance inspections and to submit such compliance reports and actions as are deemed necessary by HHS. At a minimum, the transferee will be required to submit an annual utilization report regarding the operation and maintenance of the property, including current images of the entire property and such information as HHS shall require.
There is no right to administrative review within HHS, including requests for reconsideration or appeal, of agency decisions on applications and other discretionary decisions.
The Secretary of HUD may waive any requirement of this subpart (over which the Secretary of HUD has jurisdiction) that is not required by law, whenever it is determined that undue hardship would result from applying the requirement, or where application of the requirement would adversely affect the purposes of the program. Each waiver will be in writing and will be supported by documentation of the pertinent facts and grounds. The Secretary periodically will publish notice of granted waivers on the HUD website.
Accordingly, for the reasons stated above, HHS proposes to amend 45 CFR part 12a as follows:
42 U.S.C. 11411; 40 U.S.C. 550.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(t)
(u)
(v)
(w)
(x)
(y)
(z)
(a) This part applies to Federal property that has been designated by Federal landholding agencies as unutilized, underutilized, excess or surplus and is therefore subject to the provisions of Title V of the McKinney Act, as amended (42 U.S.C. 11411).
(b) The following categories of properties are not subject to this part (regardless of whether they may be unutilized or underutilized):
(1) Buildings and property at military installations that were approved for closure under the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101-510; 10 U.S.C. 2687 note) after October 25, 1994.
(2) Machinery and equipment not determined to be related personal property by the landholding agency or GSA or determined to be related personal property that the landholding agency or GSA chooses to dispose of separate from real property.
(3) Government-owned, contractor-operated machinery, equipment, land, and other facilities reported excess for sale only to the using contractor and subject to a continuing military requirement.
(4) Properties subject to special legislation directing a particular action.
(5) Properties subject to a court order that, for any reason, precludes transfer for use to assist the homeless under the authority of 42 U.S.C. 11411.
(6) Property not subject to Federal Real Property Council reporting requirements in accordance with 40 U.S.C. 623(i).
(7) Mineral rights interests independent of surface rights.
(8) Air space interests independent of surface rights.
(9) Indian Reservation land subject to 40 U.S.C. 523.
(10) Property interests subject to reversion.
(11) Easements.
(12) Any building or fixture that is excess, or surplus, that is on land owned by a landholding agency, where the underlying land is not excess or surplus.
(13) Property purchased in whole or in part with Federal funds if title to the property is not held by a Federal landholding agency as defined in this part.
(a) It is the policy of HHS to foster and assure maximum utilization of surplus property for homeless assistance purposes.
(b) Transfers may be made only to eligible organizations.
(c) Eligible organizations must be authorized, in the State in which the requested property is located, to carry out the activity for which it requests the property.
(d) Property will be requested for assignment only when HUD has made a final determination that the property is suitable for use to assist the homeless, GSA has determined it is available, and HHS has determined it is needed for homeless assistance purposes. The amount of real and related personal property to be transferred shall not exceed normal operating requirements of the applicant. Such property will not be requested for assignment unless it is needed at the time of application for homeless assistance purposes or will be so needed within the immediate or foreseeable future.
(e) Transfers by deed will be made only after the applicant's financial plan is approved and the applicant provides certification that the proposed program is permissible under all applicable State and local zoning restrictions, building codes, and similar limitations.
(a) Properties published by HUD as suitable and available pursuant to 24 CFR 581.8, for application for use to assist the homeless shall not be available for any other purpose for a period of 30 days beginning on the date of publication. Any eligible organization interested in any underutilized, unutilized, excess, or surplus property for use to assist the homeless must send to HHS a written expression of interest in that property within 30 days after the property has been published on the HUD website.
(b) Although a property may be determined suitable by HUD, HUD's determination does not mean a property is necessarily useable for the purpose(s) stated in the application, nor does it guarantee subsequent conveyance or transfer of a property.
(c) If a written expression of interest to apply for suitable property for use to assist the homeless is received by HHS within the 30-day holding period, such property may not be made available for any other purpose until the date HHS or the appropriate landholding agency has completed action on the application submitted pursuant to that expression of interest.
(d) The expression of interest should identify the specific property, briefly describe the proposed use, include the name of the organization, and indicate whether it is a public body or a private, non-profit organization. The expression of interest must be sent to HHS by email,
(1) HHS will notify the landholding agency (for unutilized and underutilized properties) or GSA (for excess and surplus properties) when an expression of interest has been received for a certain property.
(e) An expression of interest may be sent to and accepted by HHS any time after the 30-day holding period has expired only if the property remains available as determined by GSA or the landholding agency for application to assist the homeless. In such a case, an application submitted pursuant to this expression of interest may be approved for use by the homeless if:
(1) There are no pending applications or written expressions of interest made under any law for use of the property for any purpose; and
(2) In the case of excess or surplus property, GSA has not received a bona fide offer to purchase that property or advertised for the sale of the property by public auction.
(a) Upon receipt of an expression of interest, HHS will send an application packet to the interested entity. The application packet requires the applicant to provide certain information, including the following—
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(i) specifically describe all anticipated costs and sources of funding for the proposed program, including any property modifications;
(ii) be accompanied by supporting documentation which demonstrates that the proposed plan is likely to succeed;
(iii) demonstrate that the applicant is ready, willing, able, and authorized to assume care, custody, and maintenance of the property;
(iv) demonstrate that it has secured the necessary dedicated funds, or the ability to obtain such funds, to carry out the approved proposed program and plan of use for the property, including administrative expenses incident to the transfer by deed, lease, or permit;
(v) not diminish the value of the government's interest in the property nor impair the government's ability to revert and immediately dispose of the property free of any and all liens, encumbrances, or anything else which renders the property unmarketable. Deed transfers will only be made after an applicant demonstrates its financial plan adequately protects the United States' interest in the property; and
(vi) neither subject the Federal government's interest in the property to foreclosure nor impose obligations (
(8)
(9)
(10)
(11)
(12)
(13)
(b)
(c)
(d)
(1) Upon receipt of an initial application, HHS will review it for completeness, and, if incomplete, may, in its discretion, return it or ask the applicant to furnish any missing or additional required information prior to final evaluation of the initial application.
(2) HHS will evaluate each initial application within 10 days of receipt and will promptly advise the applicant of its decision. All initial applications will be reviewed on the basis of the following elements:
(i)
(ii)
(iii)
(e)
(1) If HHS approves an initial application, HHS will notify the applicant and provide the applicant 45 days in which to provide a final application. The final application shall set forth a reasonable plan to finance, as specified in § 12a.5(a)(7), the approved program as set forth in the initial application. Applicants may not modify the approved initial application within its final application proposal.
(2) Upon receipt of the final application, HHS will make a determination within 15 days and notify the applicant.
(3) Unlike with initial applications, requests for extensions are not authorized by 42 U.S.C. 11411 and thus will not be considered for final applications.
(4) Applications are evaluated on a first-come, first-served basis. HHS will notify all organizations that have submitted expressions of interest for a particular property whether an earlier application received for that property has been approved.
(f)
(a) Unutilized and underutilized properties.
(1) When HHS approves an application, it will so notify the applicant and forward a copy of the application to the landholding agency. The landholding agency will execute the lease, or permit document, as appropriate, in consultation with the applicant.
(2) The landholding agency maintains the discretion to decide the following:
(i) The length of time the property will be available. (Leases and permits will be for a period of at least one year unless the applicant requests a shorter term.)
(ii) The terms and conditions of the lease or permit document (except that a landholding agency may not charge any fees or impose any costs).
(b) Excess and surplus properties.
(1) When HHS approves an application, it will so notify the applicant and request that GSA assign the property to HHS for transfer. Requests to GSA for the assignment of surplus property to HHS for homeless assistance purposes will be based on the following conditions:
(i) HHS has a fully approved application for the property;
(ii) The applicant is able, willing, and authorized to assume immediate care, custody, and maintenance of the property;
(iii) The applicant is able, willing and authorized to pay the administrative expenses incident to the transfer; and
(iv) The applicant has secured the necessary funds, or had demonstrated the ability to obtain such funds, to carry out the approved program of use of the property.
(2) Upon receipt of an acceptable assignment, HHS will execute the transfer document in accordance with the procedures and requirements set out in this part and any other terms and conditions HHS and GSA determine are appropriate or necessary. Custody and accountability of the property will remain throughout the lease term with the landholding agency (
(3) Prior to assignment to HHS, GSA may consider other Federal uses and other important national needs in deciding the disposition of surplus property. Priority of consideration will normally be given to uses to assist the homeless. However, both GSA and HHS may consider any competing request for the property made under 40 U.S.C. 550 that is so meritorious and compelling that it outweighs the needs of the homeless.
(4) Whenever GSA or HHS decides in favor of a competing request over a request for property for homeless assistance, the agency making the decision will transmit to the appropriate committees of Congress an explanatory statement which details the need satisfied by conveyance of the surplus property, and the reasons for determining that such need was so meritorious and compelling as to outweigh the needs of the homeless.
(a) Surplus property may be conveyed to eligible organizations pursuant to 40 U.S.C. 550(d) and 42 U.S.C. 11411, as amended, by lease or deed, at the applicant's discretion.
(b) Transfers of surplus property for homeless assistance purposes are in exchange for the transferee's agreement to fully utilize the property for homeless assistance purposes in accordance with the terms specified in the transfer document.
(c) A transfer of surplus property for homeless purposes is subject to the disapproval of GSA within 30 days after notice is given to GSA of the proposed transfer.
(d) Surplus property transferred pursuant to this part will be disposed on an “as is, where is,” basis without warranty of any kind except as may be stated in the transfer document.
(e) Unless excepted by GSA in its assignment, the disposal of property includes mineral rights associated with the surface estate.
(f) Transfers of surplus property under this part will be made with the following general terms and conditions:
(1) For the period provided in the transfer document, the transferee shall utilize all the surplus property it receives solely and continuously for an approved program and plan of use, in accordance with 42 U.S.C. 11411 and these regulations, except that:
(i) The transferee has 12 months from the date of transfer to place the surplus property into use, if HHS did not approve in writing, construction of new facilities or major renovation of the property when it approved the final application;
(ii) The transferee has 36 months from the date of transfer to place the surplus property into use, if the transferee proposes construction of new facilities or major renovation of the property and HHS approves it in writing at the time it approves the final application;
(iii) If the applicable time limitation is not met, the transferee shall either commence payments in cash to the Federal government for each month thereafter during which the proposed use has not been implemented or take such other action as set forth at § 12a.10 as is deemed appropriate by HHS. Such monthly payments shall be computed on the basis of the current fair market value of the property, as conveyed, at the time of the first payment and dividing it by 360 months. At HHS's discretion, the payment may be waived if the transferee makes a sufficient showing of continued progress to place the property into use or if an unforeseeable event occurs which prevents the property from being put into use within the applicable timeframe; and
(iv) HHS may permit use of surplus property at any time during the period of restriction by an entity other than the transferee in accordance with § 12a.11.
(2) The transferee will not be permitted to encumber, sell, lease or sublease, rent, mortgage, or otherwise dispose of the property, or any part thereof, without the prior written authorization of HHS. In the event the property is sold, leased or subleased, encumbered, disposed of, or is used for purposes other than those set forth in an approved plan without the consent of HHS, all revenues or the reasonable value of other benefits received by the transferee directly or indirectly from such use, as determined by HHS, will be considered to have been received and held in trust by the transferee for the account of the United States and will be subject to the direction and control of HHS. The provisions of this paragraph shall not impair or affect the rights reserved to the United States in paragraph (f)(8) of this section, or the right of HHS to impose conditions to its consent.
(3) The transferee will file with HHS such reports on its maintenance and use of the transferred property and any other reports or information deemed necessary by HHS.
(4) The transferee shall pay all administrative costs incidental to the transfer, including but not limited to—transfer taxes; surveys; appraisals; title searches; the transferee's legal fees; and recordation expenses. Transferee is solely responsible for such costs and may not seek reimbursement from the Federal government for any reason.
(5) The transferee shall protect, preserve, maintain, and repair the property to ensure that the property remains in as good a condition as when received.
(6) The transferee shall protect the residual financial interest of the United States in the surplus property by insurance or such other means as HHS directs. Where loss or damage to the transferred property occurs, all proceeds from insurance shall be promptly used by the transferee for the purpose of repairing and restoring the property to its former condition or replacing it with equivalent or more suitable facilities. If not so used, there shall be paid to the United States that part of the insurance proceeds that is attributable to the Government's residual interest in the property lost, damaged, or destroyed. Further, transferee shall neither take any action nor allow any action which diminishes the residual financial interest of the United States.
(7) The transferee shall abide by all applicable Federal Civil Rights laws including those specified in the covenants and conditions contained in the transfer document, prohibiting the transferee from discriminating on the basis of, including but not limited to, race, color, national origin, religion, sex, familial status or disability in the use of the property.
(8) In the event of substantial noncompliance with any conditions of the deed as determined by HHS, whether caused by the legal or other inability of the transferee, its successors and assigns, to perform any of the obligations of the transfer document, the Federal government has an immediate right of reentry thereon, and to cause all right, title, and interest in and to the property to revert to the United States, and the transferee shall forfeit all right, title, and interest in and to the property. In such event, transferee shall execute a quitclaim deed and take all other actions necessary to return the property to the United States within ninety (90) days of a written request from the Federal government, extended only at the discretion of the Federal government. Transferee shall cooperate with the United States in the event of a reversion and agrees that the United States need not seek judicial intervention before exercising its right to revert, reenter and reconvey the property.
(9) In the event title is reverted to the United States for noncompliance or voluntarily reconveyed to the United States, the transferee shall, at the option of HHS, be required to: reimburse the United States for the decrease in value of the property not due to market conditions, reasonable wear and tear, acts of God, or approved alterations completed by the transferee to adapt the property to the homeless use for which the property was transferred; and reimburse the United States for any costs incurred in reverting title to or possession of the property, including reasonable attorneys' fees.
(10) With respect to leased property, in the event of substantial noncompliance with any of the conditions of the lease, as determined by HHS or the landholding agency, the right of occupancy and possession shall, at the option of HHS or the landholding agency, be terminated. In the event a leasehold is terminated by the United States for substantial noncompliance or is voluntarily surrendered, the lessee shall be required, at the option of HHS, to reimburse the United States for the decrease in value of the property not due to market conditions, reasonable wear and tear, acts of God, or approved alterations completed by the lessee to adapt the property to the homeless use for which the property was leased. With respect to any termination of leasehold resulting from noncompliance, the United States, shall, in addition thereto, be reimbursed for such costs as may be incurred in recovering possession of the property, including reasonable attorneys' fees.
(11) Any other term or condition that HHS and GSA determine appropriate or necessary.
(12) With respect to surplus property transferred by deed, the terms and conditions including those in paragraph (f) of this section, apply for a period of thirty (30) years of use in accordance with a program of use approved in writing by HHS. The thirty-year (30) period may, in HHS's sole discretion, be extended or restarted in the event the property is not fully utilized or is retransferred to a successor entity. Expiration of the foregoing terms and conditions does not release the transferee from continuing compliance, as appropriate, with any conditions that may run with the land,
(13) With respect to surplus property transferred by lease, the terms and conditions including those in paragraph (f) of this section, extend for the entire initial lease and for any subsequent renewal periods, unless specifically excluded in writing by HHS.
(g) Related personal property may be transferred or leased as a part of the realty and in accordance with real property procedures.
(h) Completion of Transfer Term and Reversion of Title. Transferees will be responsible for the protection and maintenance of the property during the time that they possess the property. Upon termination of the lease term or reversion of title to the United States, the transferee will be responsible for removing improvements made to the property if directed to by the United States and, in such event, will be responsible for restoration of the property or the costs associated with restoring the property. If improvements made by the transferee are not voluntarily removed by the transferee and the United States consents, they will become the property of the United States. If the United States does not consent, the transferee shall reimburse the United States for reasonable costs of removal. GSA or the landholding agency, as appropriate, will assume responsibility for protection and maintenance of a property when the lease terminates or title reverts.
(i) Transferees, by obtaining the consent of HHS, may abrogate the restrictions set forth in paragraph (f) of this section for all or any portion of the property in accordance with the provisions of § 12a.12.
(a) HHS, prior to making a final decision to convey or lease, or to amend, reform, or grant an approval or release with respect to a previous conveyance or lease of, surplus property for homeless purposes, will act in accordance with applicable provisions of the National Environmental Policy Act of 1969, the National Historic Preservation Act of 1966, the National Archeological Data Preservation Act, and other related acts. No lease to use surplus property shall allow the lessee to make, or cause to be made, any irreversible change in the conditions of said property, and no lease shall be employed for the purpose of delaying or avoiding compliance with the requirements of these Acts, unless approved by the United States.
(b) Applicants shall be required to provide such information as HHS deems necessary to make an assessment of the impact of the proposed Federal action on the human environment. Materials contained in the applicant's official request, responses to a standard questionnaire prescribed by HHS, as well as other relevant information, will be used by HHS in making said assessment.
(c) If the assessment reveals:
(1) that the proposed Federal action involved properties of historical significance which are listed, or eligible for listing, in the National Register of Historic Places; or
(2) that a more than insignificant impact on the human environment is reasonably foreseeable as a result of the proposed action; or
(3) that the proposed Federal action could result in irreparable loss or destruction of archeologically significant items or data, HHS will, except as provided for in paragraph (d) of this section, prepare and distribute, or cause to be prepared or distributed, such notices and statements and obtain such approvals as are required by the above cited Acts.
(d) If a proposed action involves other Federal agencies in a sequence of actions, or a group of actions, directly related to each other because of their functional interdependence, HHS may enter into and support a lead agency agreement to designate a single lead agency which will assume primary responsibility for coordinating the assessment of environmental effects of proposed Federal actions, preparing and distributing such notices and statements, or obtaining such approvals, as are required by the above cited Acts. The procedures of the designated lead agency will be utilized in conducting the environmental assessment. In the event of disagreement between HHS and another Federal agency, HHS will reserve the right to abrogate the lead agency agreement with the other Federal agency.
(a) At the end of the 30-day holding period described in § 12a.4(a), HHS will notify GSA, or the landholding agency, as appropriate, if an expression of interest has been received for a certain property. Where there is no expression of interest, GSA or the landholding agency, as appropriate, will proceed with disposal in accordance with applicable law.
(b) Upon notice from HHS that all applications have been disapproved, or if no initial applications have been received within 75 days after an expression of interest, or no final application has been received within 45 days after an approved initial application, disposal may proceed in accordance with applicable law.
(a)
(1) Where property or any portion thereof was not used or is not being used for the purposes for which transferred, or is sold, leased or subleased, encumbered, disposed of, or used for purposes other than those in the approved program and plan of use, without the prior written consent of HHS, HHS may require the transferee to—
(i) Place the property into immediate use for an approved purpose and extend the period of restriction in the transfer document for an additional term as determined by HHS;
(ii) Hold in trust all revenues and the reasonable value of other benefits received by the transferee directly or indirectly from that use for the United States subject to the direction and control of HHS;
(iii) Return title to such property to the United States or to relinquish any leasehold interest therein;
(iv) Abrogate the conditions and restrictions of the transfer, as set forth in § 12a.12;
(v) Make cash payments to the United States, as directed by HHS, equivalent to the current fair market rental value of the surplus property, as transferred, for each month during which the program and plan of use has not been implemented and continues to not be implemented; or
(vi) Any other remedy that HHS determines appropriate or necessary.
(2) Where the transferee desires to place the property into temporary use to assist the homeless other than that for which the property was transferred, written approval from HHS must be obtained, and will be conditioned upon HHS's authority to permit the use and such terms as HHS may impose.
(3) If HHS or the landholding agency determines that a lessee or sublessee of a transferee is in substantial noncompliance with a term or condition of the lease, or if the lessee voluntarily surrenders the premises, HHS may require termination of the lease and impose sanctions described in paragraph (a)(1) of this section, as appropriate.
(b)
A transferee may permit the use of all or a portion of the surplus property by another eligible entity as described in § 12a.1(d) for homeless assistance purposes, only upon those terms and conditions HHS determines appropriate, if:
(a) The transferee submits a written request to HHS explaining the purpose of and need for another eligible entity's use of the property, program plan, and other relevant information requested by HHS;
(b) HHS determines that the proposed use would not substantially limit the program and plan of use by the transferee and that the use will not unduly burden the Federal government;
(c) HHS's written consent is obtained by the transferee in advance;
(d) HHS approves the use instrument in advance and in writing; and
(e) HHS advises GSA and there is no disapproval by GSA within thirty (30) days.
(a) HHS may abrogate the conditions and restrictions in the transfer document if:
(1) The transferee submits to HHS a written request that HHS abrogate the conditions and restrictions in the transfer document as to all or any portion of the surplus property;
(2) HHS determines the terms and conditions of the proposed abrogation and determines that the proposed abrogation is in the best interest of the United States; and
(3) HHS transmits the abrogation request to GSA and there is no disapproval by GSA within 30 days after notice is given. If GSA disapproves, GSA will state, in writing, to HHS the reason(s) for the disapproval.
(b) HHS abrogates the conditions and restrictions in the transfer document only upon receipt of the appropriate consideration, including cash payment, to the United States, as directed by HHS, which is based on the formula contained in the transfer document, and any other terms and conditions HHS deems appropriate to protect the interest of the United States.
Transferees are required to allow HHS to conduct compliance inspections and to submit such compliance reports and actions as are deemed necessary by HHS. At a minimum, the transferee will be required to submit an annual utilization report regarding the operation and maintenance of the property, including current images of the entire property and such information as HHS shall require.
There is no right to administrative review within HHS, including requests for reconsideration or appeal, of agency decisions on applications and other discretionary decisions.