Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Defense Acquisition Regulations System
Navy Department
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
Indian Affairs Bureau
Land Management Bureau
Alcohol, Tobacco, Firearms, and Explosives Bureau
Drug Enforcement Administration
Copyright Royalty Board
Federal Highway Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
National Highway Traffic Safety Administration
Pipeline and Hazardous Materials Safety Administration
Community Development Financial Institutions Fund
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.
To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.
Equal Employment Opportunity Commission.
Correcting amendment.
The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is hereby making a technical amendment to the regulations implementing Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”). Currently, the authority citation includes a typographical error. This final action will make the authority citation accurate. The amendment is administrative in nature and does not make any substantive changes to the regulations governing GINA.
This correction is effective March 22, 2023.
Kerry Leibig, Senior Attorney Advisor, at 202-921-2663 or
Title II of GINA was enacted to protect job applicants, current and former employees, labor union members, and apprentices and trainees from discrimination based on their genetic information. The regulations implementing the law were first published in the
Administrative practice and procedure, Equal employment opportunity.
Accordingly, 29 CFR part 1635 is corrected by making the following correcting amendment:
110 Stat. 233; 42 U.S.C. 2000ff.
For the Commission,
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary security zone for certain waters of the Cooper River near Charleston and Mount Pleasant, South Carolina. This action is necessary to provide for the security and protection of life on these navigable waters near the Arthur Ravenel Jr. Bridge over the Cooper River during the Cooper River Bridge Run. This rulemaking would prohibit persons and vessels entering the security zone unless authorized by the Captain of the Port Charleston or a designated representative.
This rule is effective from 7:30 a.m. until 10:30 a.m., on April 1, 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 MST1 Thomas J. Welker, Sector Charleston, Waterways Management Division, U.S. Coast Guard; telephone (843) 740-3184, email
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 it is impracticable and contrary to the public interest. The developments and planning for official patrol of the security zone prevented sufficient the Coast Guard from taking action sooner, therefore the Coast Guard lacks sufficient time to provide for a comment period and then consider those comments before issuing the rule, since this rule is needed by April 1, 2023. It would be contrary to the public interest to delay promulgating this rule, as it is necessary to protect the safety and security of participants while on the Arthur Ravenel Jr. Bridge.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70124. The Captain of the Port Charleston (COTP) has determined that this event requires certain waterside security measures to protect the bridge and event participants from destruction, loss, or injury from sabotage or other subversive acts, accidents, or other causes of a similar nature.
This rule establishes a security zone from 7:30 a.m. until 10:30 a.m. on April 1, 2023. The security zone would cover all navigable waters encompassed within the following points beginning at 32°48′32″ N, 079°56′08″ W, thence east to 32°48′20″ N, 079°54′18″ W, thence south to 32°47′20″ N, 079°54′29″ W, thence west to 32°47′20″ N, 079°55′28″ W, thence north to origin. All coordinates are 1984 World Geodetic System (WGS 84). No vessel or person will be permitted to enter, transit through, anchor in or remain within the security zone without obtaining permission from the COTP or a designated representative. If authorization to enter, transit through, anchor in, or remain within the security zone is granted by the COTP or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the COTP 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: (1) the security zone would only be enforced for a total of three hours; (2) although persons and vessels may not enter, transit through, anchor in, or remain within the zone without authorization from the COTP or a designated representative, they would be able operate in the surrounding areas during the enforcement period; (3) persons and vessels may still enter, transit through, anchor in, or remain within the areas during the enforcement period if authorized by the COTP or a designated representative; and (4) the Coast Guard will provide advance notification of the zone to the local maritime community by Broadcast Notice to Mariners, or by on-scene designated representatives.
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 security 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 a security zone lasting only 3 hours that will prohibit persons and vessels from
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, contact the COTP or the COTP's representative by telephone at 843-740-7050 or via VHF radio on channel 16. Those in the security zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
(d)
United States Patent and Trademark Office, Department of Commerce.
Final rule.
The United States Patent and Trademark Office (Office or USPTO) amends patent fees for small and micro entities set forth in its regulations to implement the provisions of the Consolidated Appropriations Act, 2023—which included the Unleashing American Innovators Act of 2022 (UAIA). The UAIA, signed into law on December 29, 2022, supports the USPTO's efforts to reduce the innovation ecosystem's barriers to entry. The UAIA increased fee discounts for small entities from 50% to 60% and fee discounts for micro entities from 75% to 80% for fees for filing, searching, examining, issuing, appealing, and maintaining patent applications and patents. The UAIA also increased fee discounts for small entities from 75% to 80% for filing a basic nonprovisional utility application electronically.
Brendan Hourigan, Director, Office of Planning and Budget, by telephone at 571-272-8966, or by email at
The Office issues this final rule to amend 37 CFR parts 1 and 41 to reflect amendments enacted by the UAIA on December 29, 2022.
The changes in this final rule apply to any small or micro entity that pays any patent fee set forth in this final rule. The reduced fee rates (60% for small entities and 80% for micro entities) apply to any small entity asserting small entity status and to any micro entity certifying micro entity status for filing, searching, examining, issuing, appealing, and maintaining patent applications and patents.
Due to the USPTO's requirement to provide advance notification to the World Intellectual Property Organization (WIPO) for certain fee changes before such fee changes can take effect, as provided under the Hague Agreement and the Patent Cooperation Treaty, the discount to certain small and micro fees are delayed until the expiration of the applicable notification period. The changes to § 1.18(b)(1) shall apply to those international design applications under the Hague Agreement having a date of international registration on or after May 1, 2023. Certain changes to § 1.445(a)(2) and (a)(3) shall apply to those international applications under the Patent Cooperation Treaty having a receipt date on or after April 1, 2023. The changes to § 1.445(a)(5) and § 1.482 shall take effect on April 1, 2023.
The following table shows all of the small entity and micro entity fees in 37 CFR parts 1 and 41 that are being adjusted in this final rule to reflect the new small entity and micro entity discounts. Only the fee amounts for small and micro entities set forth below are being adjusted. Any other fees paid by small and micro entities are not affected by this final rule.
Accordingly, prior notice and opportunity for public comment for the changes in this rulemaking are not required pursuant to 5 U.S.C. 553(b) or (c), or any other law.
In addition, the Office finds good cause pursuant to the authority at 5 U.S.C. 553(b)(B) and (d)(3) to dispense with prior notice and opportunity for public comment, and to publish this final rule with an immediate effective date, because such procedures are impracticable and contrary to the public interest. The discount percentages and the fees to which they are applicable are set by the terms of the UAIA, and the Office has no discretion to make changes in those areas. The UAIA amendments were effective as of the date of enactment of the statute, which is December 29, 2022. Thus, this final rule revises the patent fees for filing, searching, examining, issuing, appealing, and maintaining patent applications and patents, to reflect the new discount percentages immediately. If this rulemaking were to be delayed to allow for prior notice and opportunity for public comment and a 30-day delay in effective date, USPTO's regulations would remain out of date with the current fees adjusted by statute, which would create confusion as to current fee amounts. Thus, the USPTO implements this final rule without prior notice and opportunity for comment and with immediate effect.
Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.
Administrative practice and procedure, Biologics, Courts, Freedom of information, Inventions and patents, Reporting and recordkeeping requirements, Small businesses.
Administrative practice and procedure, Inventions and patents, Lawyers, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, the USPTO amends 37 CFR parts 1 and 41 as follows:
35 U.S.C. 2(b)(2), unless otherwise noted.
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7. Effective March 22, 2023, § 1.21 is amended by revising the tables in paragraphs (o)(1) and (2) to read as follows:
(o) * * *
(1) * * *
(2) * * *
The revisions and additions read as follows:
(a) * * *
(1) * * *
(i) * * *
(A) For an international application having a receipt date that is on or after December 29, 2022:
(B) For an international application having a receipt date that is on or after October 2, 2020 and before December 29, 2022:
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(i) For an international application having a receipt date that is on or after April 1, 2023:
(ii) For an international application having a receipt date that is on or after October 2, 2020, and before April 1, 2023:
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(3) * * *
(i) For an international application having a receipt date that is on or after April 1, 2023:
(ii) For an international application having a receipt date that is on or after October 2, 2020 and before April 1, 2023:
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10. Effective March 22, 2023, § 1.492 is amended by revising the tables in paragraphs (a), (b)(2) through (4), (c)(2), (d) through (f), and (h) through (j) to read as follows.
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35 U.S.C. 2(b)(2), 3(a)(2)(A), 21, 23, 32, 41, 134, 135, and Pub. L. 112-29.
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Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving revisions to the Alaska State Implementation Plan submitted on May 16, 2022, and August 11, 2022. The revisions update Alaska's adoption by reference date for Federal regulations relied upon for implementation of the air program, including permitting requirements and air pollution test methods. The revisions also add procedures for electronic submission of documents for air permits and other authorizations, update air permitting and emission fees, add additional clarifying language to the fee provisions, and specify emissions inventory reporting requirements. The EPA has determined that the submitted revisions are consistent with Clean Air Act requirements.
This final rule is effective April 21, 2023.
The EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2022-0721. All documents in the docket are listed on the
Jeff Hunt, EPA Region 10, 1200 Sixth Avenue (Suite 155), Seattle, WA 98101, at (206) 553-6357, or
Throughout this document wherever “we” or “our” is used, it is intended to refer to the EPA.
Each state has a SIP containing the control measures and strategies to attain and maintain the national ambient air quality standards (NAAQS). Alaska establishes state air quality regulations in Alaska Administrative Code Title 18 Environmental Conservation, Chapter 50 Air Quality Control (18 AAC 50) and submits these regulations for EPA approval and incorporation by reference into the Alaska SIP in the Code of Federal Regulations (CFR) at 40 CFR part 52, subpart C.
On May 16, 2022, and August 11, 2022, Alaska submitted revisions to the SIP and the EPA proposed to approve the changes on January 18, 2023 (88 FR 2873).
The EPA is approving, and incorporating by reference, certain revisions to the Alaska SIP, submitted on May 16, 2022, and August 11, 2022, as being consistent with Clean Air Act section 110 and part C and D requirements for the permitting of major stationary sources. Upon the effective date of this final action, the Alaska SIP will include the following regulations:
• 18 AAC 50.035 Documents, Procedures and Methods Adopted by Reference, except (a)(6), (a)(9), and (b)(4), state effective April 16, 2022, which adopts by reference certain Federal test procedures and methods for determining compliance with the NAAQS;
• 18 AAC 50.040 Federal Standards Adopted by Reference, except (a), (b), (c), (d), (e), (g), (j) and (k), state effective April 16, 2022, which adopts by reference certain Federal regulations for the permitting of new or modified major stationary sources;
• 18 AAC 50.270 Electronic Submission Requirements, state effective September 7, 2022, which establishes requirements and procedures for the electronic submission of permitting forms and other documents;
• 18 AAC 50.275 Consistency of Reporting Methodologies, state effective September 7, 2022, requiring consistent methodology in reporting air emissions;
• 18 AAC 50.400 Permit Administration Fees, except (a), (b), (c), and (i), state effective September 7, 2022, which establishes permit administration fees, compliance fees, and air quality emission fees.
In this document, the EPA is finalizing regulatory text in an EPA final rule that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the regulations described in section II of this preamble. The EPA has made, and will continue to make, these materials generally available through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and
• 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 Clean Air Act.
Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. The EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”
The air agency did not evaluate environmental justice considerations as part of its SIP submittal; the Clean Air Act and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of this action, it is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and it will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
This action is subject to the Congressional Review Act, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 22, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:
42 U.S.C. 7401
The revisions and additions read as follows:
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a revision to the Indiana particulate matter State Implementation Plan (SIP) that Indiana submitted to EPA on September 16, 2021, for the Vertellus Agriculture and Nutrition Specialties, LLC (Vertellus) facility located in Indianapolis, Marion County. Indiana requested revisions to incorporate site-specific updates to the particulate matter emission limits for Vertellus. The updates reflect revised emission rates for particulate matter resulting from process changes related to control strategies for other pollutants. The SIP submission request also removes requirements that applied to units no longer in operation and updates language to reflect a switch from petroleum oil to natural gas for certain units. These changes represent a decrease in overall particulate matter emissions.
This final rule is effective on April 21, 2023.
EPA has established a docket for this action under Docket ID EPA-R05-OAR-2021-0640. All documents in the docket are listed on the
Alisa Liu, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-3193,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
This rule takes final action on the September 16, 2021, request from the Indiana Department of Environmental Management (IDEM) to incorporate revisions to Indiana's particulate matter rules contained in Indiana Administrative Code (IAC), Title 326, Article 6.5, Rule 6. Marion County, “Vertellus Agriculture & Nutrition Specialties LLC” (326 IAC 6.5-6-31), which became effective on September 19, 2021. (Indiana Rule LSA #19-82). As requested by Vertellus, IDEM's revisions changed the particulate matter emission limits on several units where Vertellus made process and fuel changes to comply with the revised SO
In the NPRM, EPA provided a 30-day review and comment period for the proposed rule. The comment period ended on October 31, 2022. We received comments from two individuals during the comment period. These comments are in the rulemaking docket.
Comments from one individual were supportive of EPA's action but requested clarification. Those comments are summarized and addressed below.
The particulate matter and SO
Comments from a second individual raised issues not addressed in EPA's proposed rulemaking, and that are neither germane nor relevant to this action. Moreover, none of the comments address a specific regulation or provision in question or recommend a different action on the SIP submission from what EPA proposed. Therefore, we are finalizing our action as proposed.
EPA is approving Indiana's September 16, 2021, request to revise its particulate matter SIP because the revised rule at 326 IAC 6.5-6-31 applicable to Vertellus strengthens the SIP by reducing allowable particulate matter emissions.
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 the Indiana Regulations described in section I of this preamble and set forth in the amendments to 40 CFR part 52 below. EPA has made, and will continue to make, these documents generally available through
Under the CAA the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and
• 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.
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal
Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”
IDEM did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.
This action is subject to the Congressional Review Act, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 22, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.
For the reasons stated in the preamble, title 40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Nuclear Regulatory Commission.
Proposed rule; reopening of comment period.
On February 13, 2023, the U.S. Nuclear Regulatory Commission (NRC) provided an opportunity for public comment on a proposed rule to revise the Holtec International HI-STORM 100 listing within the “List of approved spent fuel storage casks” to renew the initial certificate (Amendment No. 0) and Amendment Nos. 1 through 15 to Certificate of Compliance No. 1014. The NRC published the companion proposed rule concurrently with a direct final rule. The renewal of the initial certificate and Amendment Nos. 1 through 15 would revise the certificate of compliance's conditions and technical specifications to address aging management activities related to the structures, systems, and components important to safety of the dry storage system to ensure that these will maintain their intended functions during the period of extended storage operations. The public comment period closed on March 15, 2023. The NRC is reopening the public comment period to allow additional time for members of the public to develop and submit comments.
The comment period for the document published on February 13, 2023 (88 FR 9195) has been reopened. Comments should be filed no later than April 14, 2023. Comments received after this date will be considered, if it is practical to do so, but the Commission is only able to ensure consideration of comments received on or before this date.
Please include Docket ID NRC-2022-0109 in your comment submission. The NRC requests that you submit comments through the Federal rulemaking website at
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Kristina Banovac, telephone: 301-415-7116, email:
Please refer to Docket ID NRC-2022-0109 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:
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The NRC encourages electronic comment submission through the Federal Rulemaking Website (
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
On February 13, 2023, the NRC provided opportunity for public comment on a proposed rule to revise the Holtec International HI-STORM 100 listing within the “List of approved spent fuel storage casks” to renew the initial certificate (Amendment No. 0) and Amendment Nos. 1 through 15 to Certificate of Compliance No. 1014 (88 FR 9195). The NRC published the companion proposed rule concurrently with a direct final rule (88 FR 9106; February 13, 2023). The renewal of the initial certificate and Amendment Nos. 1 through 15 would revise the certificate of compliance's conditions and technical specifications to address aging management activities related to the structures, systems, and components important to safety of the dry storage system to ensure that these will maintain their intended functions during the period of extended storage operations.
The proposed revisions relate to the renewal of the certificates of compliance to allow for continued storage of spent fuel under title 10 of the
The public comment period closed on March 15, 2023. The NRC received two requests to extend the comment period for the proposed rule and the concurrent direct final rule. The NRC is reopening the public comment period to allow additional time for members of the public to develop and submit comments. The comment period is reopened and now closes on April 14, 2023, which is 60 days after the initial opening of the public comment period.
The NRC may post materials related to this document, including public comments, on the Federal rulemaking website at
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Proposed guide; extension of comment period.
On February 21, 2023, the U.S. Nuclear Regulatory Commission (NRC) solicited comments on draft regulatory guide (DG), DG-5065, “Perimeter Intrusion Alarm Systems.” The public comment period was originally scheduled to close on March 23, 2023. The NRC has decided to extend the public comment period to allow more time for members of the public to develop and submit their comments.
The due date for comments requested in the document published on February 21, 2023 (88 FR 10481) is extended. Comments should be filed no later than May 22, 2023. Comments received after this date will be considered, if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods; however, the NRC encourages electronic comment submission through the Federal rulemaking website:
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•
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Al Tardiff, Office of Nuclear Security and Incident Response, telephone: 301-287-3613, email:
Please refer to Docket ID NRC-2022-0157 when contacting the NRC about the availability of information regarding this action. You may obtain publicly available information related to this action, by any of the following methods:
•
•
•
The NRC encourages electronic comment submission through the Federal rulemaking website (
The NRC cautions you not to include identifying or contact information that you do not want to be publicly
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
On February 21, 2023, the NRC published a document in the
As noted in the
For the Nuclear Regulatory Commission.
Department of Veterans Affairs.
Proposed rule.
The Department of Veterans Affairs (VA) proposes to amend its adjudication regulations concerning certain awards of Dependency and Indemnity Compensation (DIC). Under the proposed amendment, relevant claimants will be eligible to elect to have certain previously denied DIC claims reevaluated pursuant to changes that establish or modify a presumption of service connection. Any award as a result of the reevaluation may be made retroactive as if the establishment or modification of the presumption of service connection had been in effect on the date of the submission of the original claim. This amendment incorporates legislative changes enacted by the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 or the Honoring our PACT Act of 2022 and will bring federal regulations into conformance with those changes.
Comments must be received on or before May 22, 2023.
Comments must be submitted through
Eric Baltimore, Program Analyst, Pension and Fiduciary Service (21PF), Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 632-8863. (This is not a toll-free number.)
Section 204 of the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 or the Honoring our PACT Act of 2022, Public Law 117-168 (herein referred to as “the PACT Act”), enacted on August 10, 2022, amended, in relevant part, subchapter I of chapter 13 of title 38, United States Code, by adding a new section 1305 titled, “Reevaluation of dependency and indemnity compensation determinations pursuant to changes in presumptions of service connection.” VA proposes to issue a new regulation to be codified at 38 CFR 3.33 that incorporates this amendment.
DIC benefits are payable to eligible survivors of service members who died while on active duty, active duty for training, or inactive duty training; or eligible survivors of Veterans who (1) died as a result of a service-connected injury or disease or (2) were in receipt of, or entitled to receive, compensation at the time of death for a service-connected disability rated totally disabling (a) for at least 10 years immediately preceding death; or (b) for not less than five years since their release from active duty; or (c) for at least one year before death, if they were a former prisoner of war.
Service connection may be considered for certain conditions that VA presumes were caused by military service. If a Veteran's death is determined to be caused by a condition presumed to be incurred or aggravated by service, and the Veteran meets the unique circumstances and service requirements for that condition, DIC benefits may be awarded to an eligible survivor. Historically, VA has applied new presumptions of service connection based on statutory or regulatory changes prospectively, in accordance with 38 U.S.C. 5110(g). The amendments within the PACT Act will allow certain previously denied claims for DIC to be eligible for reevaluation based on any new (
The PACT Act also explains that any reevaluation of a previously denied DIC claim must be elected by the claimant. Proposed 38 CFR 3.33(c) states that the reevaluation of a previously denied DIC claim must be at the election of the relevant claimant and on a prescribed form pursuant to 38 CFR 3.152(a). Utilizing a prescribed form for the election of reevaluation by the claimant is consistent with 38 U.S.C. 5101(a)(1)(A) and 38 CFR 3.152(a), which provide that a specific claim on the form prescribed by the Secretary must be filed in order for VA to pay benefits. Additionally, use of a prescribed form facilitates the orderly and timely reevaluation of a previously denied claim for DIC by documenting the claimant's unambiguous intent to seek a specific benefit (namely, DIC) on the basis of the newly established or modified presumption. The PACT Act does not stipulate any time limitations for an election by the relevant claimant; thus, there is no temporal limitation on when a claimant can elect to have a previously denied DIC claim reevaluated based on any new law, regulation, or Federal court decision or settlement that establishes or modifies a presumption of service connection.
The changes within the PACT Act allow an award, otherwise known as a grant of benefits, based on a reevaluation to be made retroactively as if the establishment or modification of the presumption of service connection had been in effect on the date of the submission of the original claim. We propose to state in 38 CFR 3.33(d)(1) that if VA denied a claim for DIC prior to a law, regulation, or Federal court decision or settlement establishing or modifying a presumption of service connection effective on or after August 10, 2022 (the date of enactment of the PACT Act), and a relevant claimant is entitled to DIC benefits based on that establishment or modification, the effective date of the award will be based on the date of the submission of the original claim.
VA interprets section 204 of the PACT Act to allow this special retroactive effective date treatment in reevaluating DIC claims based on presumptions of service connection created directly by the PACT Act itself, such as amendments made by section 404, as well as presumptions of service connection added in the future pursuant to the process created by section 202. However, DIC claims outside the scope of section 204 are unaffected. We therefore propose to state in 38 CFR 3.33(d)(2) that if the requirements of paragraph (d)(1) are not met, the effective date of the award of DIC shall be determined in accordance with 38 CFR 3.114 (pertaining to changes of law or VA issue) and 3.400 (pertaining to effective dates).
In order to properly implement the changes within the PACT Act, VA must identify and contact relevant claimants who submitted claims for DIC benefits that were previously denied and might have been evaluated differently had the newly established or modified presumption of service connection been in effect, and applicable to the claim, on the date it was originally submitted. Proposed 38 CFR 3.33(b) would define a relevant claimant for the purposes of reevaluation of a previously denied DIC claim as an individual who submitted a claim for DIC to VA that was evaluated and denied by VA before the date on which a law, regulation, or Federal court decision or settlement establishing or modifying a presumption of service connection went into effect and might have been evaluated differently had the establishment or modification of presumption of service connection been applicable to the claim.
Furthermore, the PACT Act explains that the Secretary must conduct outreach to notify relevant claimants that they may elect reevaluation of a previously denied DIC claim. Proposed 38 CFR 3.33(e) would outline the efforts that VA would undertake to inform a relevant claimant that they may elect reevaluation in light of the establishment or modification of a presumption of service connection. Within the proposed outreach efforts VA plans to inform relevant claimants that they may submit a claim by mail, in person at a VA regional office, or electronically through
The proposed outreach efforts would apply only to the original claimants of previously denied DIC claims because, as explained in the Accrued and Substitution Claims section below, only original claimants may initiate the reevaluation process.
The PACT Act is silent on the accrued benefits or substitution process as it relates to the reevaluation of previously denied DIC claims. Thus, the existing processes regarding accrued benefits and substitution, contained in 38 U.S.C. 5121 and 5121A, would continue to apply. Under these rules, if VA grants substitution for a DIC reevaluation under 38 U.S.C. 1305(a) it will continue processing the reevaluation election as if it were made by the original claimant. To be clear, VA will only grant substitution for a DIC reevaluation in circumstances where the original claimant elected to have the previously denied claim reevaluated but subsequently died before the decision on the claim became final. An individual seeking accrued benefits or substitution cannot elect a reevaluation under the PACT Act of a previously denied DIC claim if the original claimant had not made such an election prior to their death. See 38 U.S.C. 5121A(a)(1); 38 CFR 3.1010(g)(1) (a claim must be “pending” in order for VA to grant substitution). However, an individual can pursue claims and appeals that were pending at the time of the original claimant's death, to include an original claimant's pending reevaluation election under the PACT Act, or claims where the period allowed by law for filing a notice of disagreement has not expired, as a substituted claimant if VA grants substitution.
The purpose of this section is to clarify the agencies' intent with respect to the severability of provisions of this proposed rule. Each provision that the agency has proposed is capable of operating independently. If any provision of this rule is determined by judicial review or operation of law to be invalid, that partial invalidation will not render the remainder of this rule invalid. Likewise, if the application of any portion of this rule to a particular circumstance is determined to be invalid, the agencies intend that the rule remain applicable to all other circumstances.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory
This proposed rule includes provisions constituting a revised collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) that require approval by the Office of Management and Budget (OMB). Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of this rulemaking action to OMB for review and approval.
OMB assigns control numbers to collection of information it approves. VA 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. If OMB does not approve the collection of information as requested, VA will immediately remove the provisions containing the collection of information or take such other action as is directed by OMB.
Comments on the new collection of information contained in this rulemaking should be submitted through
OMB is required to make a decision concerning the collection of information contained in this rulemaking between 30 and 60 days after publication of this rulemaking in the
VA considers comments by the public on revised collection of information in
• Evaluating whether the revised collections of information are necessary for the proper performance of the functions of VA, including whether the information will have practical utility;
• Evaluating the accuracy of VA's estimate of the burden of the revised collection of information, including the validity of the methodology and assumptions used;
• Enhancing the quality, usefulness, and clarity of the information to be collected; and
• Minimizing 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,
The revised collection of information associated with this rulemaking contained in 38 CFR 3.33 is described immediately following this paragraph, under its respective title.
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* To estimate the total information collection burden cost, VA used the
The Secretary hereby certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.
The Assistance Listing numbers and titles for the programs affected by this document are: 64.101, Burial Expenses Allowance for Veterans; 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death.
Administrative practice and procedure, Claims, Veterans.
Denis McDonough, Secretary of Veterans Affairs, approved this document on February 15, 2023, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans Affairs proposes to amend 38 CFR part 3 as set forth below:
38 U.S.C. 501(a), unless otherwise noted.
(a)
(b)
(1)
(2)
(c)
(1)
(2)
(d)
(1) If VA denied a claim for DIC prior to a law defined under (b)(1) of this section that establishes or modifies a presumption of service connection on or after August 10, 2022, (the date of enactment of Pub. L. 117-168), the effective date of the award will be determined as if the establishment or modification of the presumption of service connection had been in effect on the date of the submission of the original claim.
(2) If the requirements of paragraph (d)(1) are not met, the effective date of the award shall be determined in accordance with §§ 3.114 and 3.400.
(e)
(1) VA will conduct the following efforts to inform a relevant claimant that they may elect to have a claim reevaluated in light of the establishment or modification of a presumption of service connection:
(i) Publish on the internet website of the Department a notice that such claimants may elect to have a claim so reevaluated;
(ii) Notify, in writing or by electronic means, veterans service organizations of the ability of such claimants to elect to have a claim so reevaluated; and
(iii) Notify each such claimant in the same manner that the Department last provided notice of a decision.
Department of Veterans Affairs.
Proposed rule.
The Department of Veterans Affairs (VA) proposes to remove its regulation concerning the naming of cemeteries and features. VA is proposing this action because, after reviewing internal policy and processes, VA determined this regulation is obsolete and unnecessary. When VA promulgated this regulation, VA's cemetery naming activities were supported by statute and served a purely administrative function that did not change existing law or policy and did not affect individual rights or obligations. The activities therefore did not require a regulation to effectuate. However, now that the regulation is in effect, removing it would change existing policy, which requires a rulemaking. The Secretary of Veterans Affairs (the Secretary) has authority for naming Department property and has delegated in regulation the authority for naming features within national cemeteries to the Under Secretary for Memorial Affairs, who is the head of VA's National Cemetery Administration.
Comments must be received on or before May 22, 2023.
Comments must be submitted through
Michelle Myers, Management and Program Analyst, Legislative and Regulatory Service (42E), National Cemetery Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420. Telephone: (202) 717-2979 (this is not a toll-free number).
Generally, 5 U.S.C. chapter 5 establishes procedures by which Federal agencies can formulate regulations, and 5 U.S.C. 553 addresses which agency rulemakings require “notice and comment” and publication in the
The Secretary's authority for naming cemeteries is codified in 38 U.S.C. 531, and the Secretary's authority for naming features within national cemeteries is delegated to the Under Secretary for Memorial Affairs in 38 CFR 2.6(f)(4).
In January 1978, VA proposed regulations (43 FR 1628 (January 11, 1978)) related to the operation of the National Cemetery System. The proposed regulations were to provide rules for the Advisory Committee on Cemeteries and Memorials, the naming of national cemeteries and activities and features therein, acceptance of gifts and donations, and other topics. The proposed rule for naming cemetery activities unnecessarily restated both the statutory authority of the Secretary for naming national cemeteries and the authority delegated to the Under Secretary for Memorial Affairs in § 2.6(f)(4) to name features in national cemeteries. It also included a paragraph establishing the basis for names and stated that names of cemetery activities may be based on physical and area characteristics, the nearest important city (town), or a historical characteristic related to the area. The rule also stated that newly constructed interior thoroughfares for vehicular traffic will be known as “`drives' ” and will be named after cities, counties, or States or after historically notable persons, places, or events. The rule became final on June 14, 1978.
The VA's National Cemetery Administration (NCA) honors Veterans and their eligible family members with final resting places in national shrines and with lasting tributes that commemorate their service to and sacrifice for our nation. As part of that mission, NCA owns and operates 155 national cemeteries covering more than 22,000 acres of land from Hawaii to Maine, and from Alaska to Puerto Rico.
In 1998, with sec. 1001 of the Veterans Programs Enhancement Act of 1998, Pub. L. 105-368, 112 Stat. 3315, Congress amended Title 38 of the U.S. Code to add sec. 531, which established the statutory requirement relating to naming of VA property. Effective on November 12, 1998, Department facilities, structures, or real property or major portions thereof may only be named for the geographic area in which the facility, structure or property is located. In a recent review of policy for naming national cemeteries and features, VA determined the addition of sec. 531 makes the 1978 rule no longer necessary or appropriate. For these reasons, VA proposes to remove 38 CFR 38.602.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is not a significant regulatory action under Executive Order 12866. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at
This proposed rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).
The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The naming of national cemeteries and features is an internal operations function that only affects VA national cemeteries. As well this proposed rule revokes the existing regulation and will have no economic impact on small entities. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any 1 (one) year. This proposed rule would have no such effect on State, local, and Tribal governments, or on the private sector.
Administrative practice and procedure, Cemeteries, Veterans.
Denis McDonough, Secretary of Veterans Affairs, approved this document on March 16, 2023, and
For the reasons stated in the preamble, and under the authority of 38 U.S.C. 501, the Department of Veterans Affairs proposes to amend 38 CFR part 38 as follows:
38 U.S.C. 107, 501, 512, 2306, 2400, 2402, 2403, 2404, 2407, 2408, 2411, 7105.
Federal Communications Commission.
Proposed rule.
This document requests comments on a petition for rule making filed by Shamrock Communications, Inc., proposing to amend the FM Table of Allotments, by substituting Channel 256A for vacant Channel 288A at Tecopa, California to accommodate the hybrid modification application for Station KRZQ(FM) that proposes to upgrade from Channel 290C1 to Channel 291C at Amargosa Valley, Nevada. A staff engineering analysis indicates that Channel 256A can be allotted to Tecopa, California, consistent with the minimum distance separation requirements of the Commission's rules, with a site restriction of 2.3 km (1.4 miles) northwest of the community. The reference coordinates are 35-50-48 NL and 116-13-27 WL.
Comments must be filed on or before May 5, 2023, and reply comments on or before May 22, 2023.
Secretary, Federal Communications Commission, 45 L Street NE, Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve the petitioner and its counsel as follows: James M Lewandowski, Shamrock Communications, Inc., 149 Penn Avenue, Scranton, PA 18503 and David A O'Connor, ESQ., c/o Shamrock Communications, Inc., Wilkinson Barker Knauer, LLP, 1800 M Street NW, Suite 800N, Washington, DC 20036.
Rolanda F. Smith, Media Bureau, (202) 418-2054.
This is a synopsis of the Federal Communications Commission's (Commission) Notice of Proposed Rule Making, MB Docket No. 23-86, adopted March 14, 2023, and released March 14, 2023. The full text of this Commission decision is available online at
Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.
Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments,
Radio, Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:
47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334, 336, 339.
(b) * * *
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes to prohibit the retention and possession of oceanic whitetip sharks (
Written comments must be received by May 22, 2023. NMFS will hold a public hearing via webinar for this proposed rule on April 25, 2023, from 2 p.m. to 4 p.m. For webinar registration information, see the
You may submit comments on this document, identified by NOAA-NMFS-2023-0025, by electronic submission. Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to
NMFS will hold a public hearing via conference call/webinar on this proposed rule. For specific location, date and time, see the
Copies of this proposed rule and supporting documents are available from the HMS Management Division website at
Ann Williamson,
Atlantic shark fisheries are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801
The Atlantic shark fisheries are composed of 42 species of sharks including oceanic whitetip and scalloped hammerhead sharks. In 2014, NMFS published a final rule (79 FR 38213, July 3, 2014) that, among other things, issued a final determination listing the Central and Southwest Atlantic DPS of scalloped hammerhead sharks as threatened under the Endangered Species Act (ESA). This 2014 final rule defined the Central and Southwest Atlantic DPS as bounded to the north by 28° N lat., to the east by 30° W long., and to the south by 36° S lat. This DPS boundary included the U.S. exclusive economic zone off Puerto Rico and the U.S. Virgin Islands. In 2018, NMFS published a final rule (83 FR 4153, January 30, 2018) that determined oceanic whitetip sharks warranted listing as a threatened species under the ESA throughout its range.
In May 2020, NMFS issued two BiOps, the “Biological Opinion on the Operation of the HMS Fisheries excluding Pelagic Longline” and the “Biological Opinion on the Operation of the HMS Pelagic Longline Fishery,” prepared under section 7(a)(2) of the ESA. These BiOps concluded consultation on the HMS PLL and non-PLL fisheries, as managed under the 2006 Consolidated HMS FMP and its amendments.
Amendment 1 to the 1999 FMP for Atlantic Tunas, Swordfish, and Sharks (68 FR 74746, December 24, 2003) established regulatory criteria, codified at § 635.34(c), for adding or removing a shark from the prohibited shark species group (Table 1 of Appendix A to 50 CFR part 635). Relevant to this proposed action, § 635.34(c) provides that NMFS may add species to the prohibited shark species group if the species is determined to meet at least two of the following four criteria:
(1) Biological information indicates that the stock warrants protection;
(2) Information indicates that the species is rarely encountered or observed caught in HMS fisheries;
(3) Information indicates that the species is not commonly encountered or observed caught as bycatch in fishing operations for species other than HMS; and
(4) The species is difficult to distinguish from other prohibited species.
Additionally, in November 2010, ICCAT adopted Recommendations 10-07 and 10-08, which prohibits retaining onboard, transshipping, landing, storing, selling, or offering for sale any part or whole carcass of oceanic whitetip sharks and hammerhead sharks in the family Sphyrnidae (except bonnethead sharks (
For this proposed rule, NMFS has prepared a draft Environmental Assessment (EA), Regulatory Impact Review (RIR), and an Initial Regulatory Flexibility Analysis (IRFA), which present and analyze the anticipated environmental, social, and economic impacts of each alternative considered for this proposed rule. A brief summary of the alternatives considered is provided below. Additional information regarding this action and Atlantic shark management overall can be found in the draft EA/RIR/IRFA, the 2006 Consolidated HMS FMP and its amendments, the annual HMS Stock Assessment and Fishery Evaluation Reports, and online at
This proposed rule implements two of the conservation recommendations from the May 2020 BiOps. NMFS is proposing to add oceanic whitetip shark to the prohibited shark species group, remove oceanic whitetip shark from the list of pelagic indicator species, and prohibit the possession and retention of great, smooth, and scalloped hammerhead sharks in the U.S. Caribbean region. As described below, NMFS considered two alternatives concerning oceanic whitetip sharks and five alternatives for the scalloped hammerhead shark Central and Southwest DPS. These alternatives included both no action alternatives and preferred alternatives. The purpose of this proposed action is to reduce the mortality of oceanic whitetip sharks and the Central and Southwest Atlantic DPS of scalloped hammerhead sharks, which are both listed as threatened under the ESA. This effort would promote the conservation and recovery of these threatened species.
Under the preferred alternative for oceanic whitetip sharks (Alternative A2), NMFS would add oceanic whitetip sharks to the prohibited shark species group using the criteria in § 635.34(c). Once added to the prohibited shark species group, the retention, possession, landing, sale, and purchase of oceanic whitetip sharks or parts of oceanic whitetip sharks would be prohibited in all commercial and recreational HMS fisheries in U.S. waters of the Atlantic Ocean, including the Gulf of Mexico and Caribbean Sea. As part of this alternative, NMFS would also remove oceanic whitetip sharks from the list of pelagic indicator species (Table 2 to Appendix A to Part 635) because sharks in the prohibited shark species group cannot be possessed or landed and therefore their presence onboard should not be considered an indicator of a pelagic longline vessel. This alternative could reduce the mortality of oceanic whitetip sharks and promote conservation and recovery of this threatened species.
Per the criteria outlined in § 635.34(c), oceanic whitetip sharks currently meet the first, second, and third criteria. Regarding the first criterion, as a result of a status review conducted under the ESA, oceanic whitetip sharks are listed as threatened throughout their range, which indicates that the stock warrants protection. Regarding the second criterion, few oceanic whitetip sharks are caught in HMS fisheries. From 2017 to 2021, no oceanic whitetip sharks were landed in the commercial sector and interactions between HMS fisheries and oceanic whitetip sharks are low. According to PLL HMS logbook data from the same time period, all individuals were discarded (2,856 were discarded alive and 425 were discarded dead) and there have been no observed interactions between oceanic whitetip sharks and non-PLL fisheries. In the recreational sector, the most recent harvest of oceanic whitetip sharks occurred in 2021 and 2019, with one shark harvested in each year. Thus, the species is not commonly encountered or observed in HMS fisheries compared to target species. Regarding the third criterion, oceanic whitetip sharks are not often seen in non-HMS fisheries, and are therefore not commonly encountered or observed as bycatch. Oceanic whitetip sharks do not meet the fourth criterion as they can be identified relatively easily by their large, rounded, and white-tipped dorsal and pectoral fins.
Under the preferred alternative for hammerhead sharks (Alternative B4), NMFS would prohibit the possession and retention of hammerhead sharks in the large coastal shark (LCS) complex (
In addition to the proposed measures, in the EA for this action, NMFS analyzed two no action alternatives (Alternatives A1 and B1) that would maintain the status quo for oceanic whitetip sharks and hammerhead sharks. NMFS does not prefer the no action alternatives because they do not meet the objectives of the rule or the conservation recommendations in the 2020 BiOps. The EA for this action also describes the impacts of three other alternatives for hammerhead sharks: prohibiting retention of scalloped hammerhead sharks in U.S. waters of the Caribbean Sea (Alternative B2), prohibiting retention of scalloped hammerhead sharks in all regions (
NMFS is requesting comments on this proposed rule which may be submitted via
During the comment period, NMFS will hold a public hearing via webinar for this proposed action. Information on the webinar will be posted at:
At the beginning of each webinar, the moderator will explain how the webinar will be conducted and how and when participants can provide comments. The NMFS representative(s) will structure the webinars so that all members of the public will be able to comment, if they so choose, regardless of the controversial nature of the subject(s). Participants are expected to respect the ground rules, and those that do not may be asked to leave the webinars.
The NMFS Assistant Administrator has determined that the proposed rule is consistent with the 2006 Consolidated HMS FMP and its amendments, other provisions of the Magnuson-Stevens Act, ATCA, and other applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact that this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the
Section 603(b)(1) requires agencies to describe the reasons why the action is being considered. The purpose of this proposed rulemaking is to reduce the mortality of oceanic whitetip sharks and the scalloped hammerhead shark Central and Southwest Atlantic DPS, which are listed as threatened under the ESA, consistent with the objectives of the 2006 Consolidated HMS FMP and its amendments, the Magnuson-Stevens Act, the 2020 BiOps, and other applicable law. This effort would promote the conservation and recovery of these threatened species. Implementation of the proposed rule would further the management goals and objectives stated in the 2006 Consolidated HMS FMP and its amendments.
Section 603(b)(2) of the RFA requires agencies to state the objectives of, and legal basis for, the proposed action. The objective of this proposed rulemaking is to add oceanic whitetip sharks to the prohibited shark species group using the criteria in § 635.34(c) and to prohibit the commercial and recreational retention of LCS hammerhead sharks in the U.S. Caribbean region. The legal basis for the proposed rule is the Magnuson-Stevens Act.
Section 603(b)(3) of the RFA requires agencies to provide an estimate of the number of small entities to which the proposed rule would apply. For RFA compliance purposes, NMFS established a small business size standard of $11 million in annual gross receipts for all businesses in the commercial fishing industry (NAICS 11411). The Small Business Administration (SBA) has established size standards for all other major industry sectors in the United States, including the scenic and sightseeing transportation (water) sector (NAICS code 487210), which includes for-hire (charter/party boat) fishing entities. The SBA has defined a small entity under the scenic and sightseeing transportation (water) sector as one with average annual receipts (revenue) of less than $14 million. Therefore, NMFS considers all HMS permit holders, both commercial and for-hire, to be small entities because they had average annual receipts of less than their respective sector's standard of $11 million and $14 million. The 2021 total ex-vessel annual revenue for the shark fishery was approximately $2.4 million. Since a small business is defined as having annual receipts not in excess of $11 million, each individual shark fishing entity would fall within the small business definition. Thus, all of the entities affected by this rule are considered to be small entities for the purposes of the RFA. As of October 2022, there were 206 Shark Directed permits, 241 Shark Incidental permits, 76 HMS Commercial Caribbean Small Boat permits, 4,175 Charter/Headboat permits (with 2,994 shark endorsements and 1,873 commercial sale endorsements), 23,607 Angling permits (with 12,978 shark endorsements), and 603 Atlantic Tunas General and Swordfish General Commercial permits (with 388 shark endorsements). For more information regarding the distribution of these permits across states and territories please see the HMS Stock Assessment and Fishery Evaluation Report.
Section 603(b)(4) of the RFA requires agencies to describe any new reporting, record-keeping, and other compliance requirements. This proposed rule does not contain any new collection of information, reporting, or record-keeping requirements. This proposed rule would add oceanic whitetip sharks on the prohibited shark species group using the criteria in § 635.34(c) to prohibit the commercial and recreational retention of oceanic whitetip sharks for all HMS permit holders in U.S. waters of the Atlantic Ocean, including the Gulf of Mexico and Caribbean Sea. This proposed rule would also prohibit the commercial and recreational retention of LCS hammerhead sharks for all HMS permit holders in the U.S. Caribbean region.
Under section 603(b)(5) of the RFA, agencies must identify, to the extent practicable, relevant Federal rules which duplicate, overlap, or conflict with the proposed action. Fishermen, dealers, and managers in these fisheries must comply with a number of international agreements, domestic laws, and other fishery management measures. These include, but are not limited to, the Magnuson-Stevens Act, ATCA, the High Seas Fishing Compliance Act, the Marine Mammal Protection Act, ESA, the National Environmental Policy Act, the
Under section 603(c) of the RFA, agencies must describe any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities. Specifically, the RFA (5 U.S.C. 603(c)(1)-(4)) lists four general categories of significant alternatives to assist an agency in the development of significant alternatives. These categories of alternatives are: (1) establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) use of performance rather than design standards; and, (4) exemptions from coverage of the rule, or any part thereof, for small entities.
Regarding the first, second, and fourth categories, all of the businesses impacted by this proposed rule are considered small entities, and thus the requirements are already designed for small entities. Regarding the third category, NMFS does not know of any performance or design standards that would satisfy the aforementioned objectives of this rulemaking. As described below, NMFS analyzed several different alternatives in this proposed rulemaking and provides rationales for identifying the preferred alternatives to achieve the desired objectives.
The alternatives considered and analyzed are described below. The IRFA assumes that each vessel will have similar catch and gross revenues to show the relative impact of the proposed action on vessels.
Alternative A1, the No Action alternative, would continue to allow commercial permit holders issued a Shark Directed or Incidental limited access permit using other authorized gear (excluding PLL gear) and/or HMS Charter/Headboat permit with a commercial sale endorsement the opportunity to land and sell oceanic whitetip sharks when tuna or tuna-like species are not retained, possessed, on board, or offloaded from, the vessel on the same trip. Vessels fishing recreationally would continue to have the ability to retain oceanic whitetip sharks when tuna or tuna-like species are not possessed on the same recreational trip. This alternative would not be expected to result in any additional economic impacts for HMS permit holders.
Alternative A2, the preferred alternative, would add oceanic whitetip sharks to the prohibited shark species group using the criteria in § 635.34(c) to prohibit the commercial and recreational retention of oceanic whitetip sharks in U.S. waters of the Atlantic Ocean, including the Gulf of Mexico and Caribbean Sea. This alternative would be consistent with the conservation recommendations from both the 2020 BiOps. From 2017 to 2021, there have been few instances of oceanic whitetip sharks being retained in HMS commercial shark fisheries. This alternative could limit fishing opportunities and lead to fewer fishing trips for charter/headboat operators. However, oceanic whitetip sharks are rarely a target species and are worth less than other more valuable target species. Overall, this alternative would be expected to have very minor adverse socioeconomic impacts on the small entities participating in the fishery.
Under Alternative B1, the No Action alternative, retention of scalloped hammerhead sharks on vessels targeting tunas, swordfish, and/or billfish with PLL gear onboard would continue to be prohibited. Commercial permit holders issued a Shark Directed or Incidental limited access permit and/or HMS Charter/Headboat permit with a commercial sale endorsement using other authorized gear that do not target tuna and tuna-like species (
Under Alternative B2, NMFS would prohibit the commercial and recreational retention of scalloped hammerhead sharks for shark commercial and recreational permit holders fishing in U.S. Caribbean region. This alternative would be consistent with the conservation recommendations from both the 2020 BiOps. Between 2017 and 2021, there were no reported landings of scalloped hammerhead sharks in the U.S. Caribbean region and therefore it is unlikely revenue would be lost from prohibiting retention of this species. However, there could be some minor costs associated with discarding or avoiding scalloped hammerhead sharks within that region. This alternative could also limit fishing opportunities and lead to fewer fishing trips for charter/headboat operators. This alternative would be expected to have neutral to minor adverse economic impacts on the small entities participating in the fishery.
Under Alternative B3, NMFS would prohibit the commercial and recreational retention of scalloped hammerhead in U.S. waters of the Atlantic Ocean, including the Gulf of Mexico and Caribbean Sea. This alternative would be consistent with the conservation recommendations from both the 2020 BiOps. On average, from 2017 to 2021, scalloped hammerhead sharks contributed $10,753 of revenue in the Atlantic and Gulf of Mexico shark fisheries combined. This equates to less than 0.5 percent of the total revenue from all shark fisheries. However, there could be some minor costs associated with discarding or avoiding scalloped hammerhead sharks. This alternative could also limit fishing opportunities and lead to fewer fishing trips for charter/headboat operators. Therefore, this alternative would be expected to have minor adverse economic impacts on the small entities participating in the fishery.
Under Alternative B4, the preferred alternative, NMFS would prohibit the commercial and recreational retention of all LCS hammerhead sharks in the U.S. Caribbean region. This alternative would be consistent with the conservation recommendations from both the 2020 BiOps. Between 2017 and 2021, there were no reported landings of hammerhead sharks in the U.S. Caribbean region and therefore it is unlikely revenue would be lost from prohibiting this species. However, there could be some minor costs associated with discarding or avoiding hammerhead sharks within that region and this alternative could limit fishing opportunities and lead to fewer fishing trips for charter/headboat operators targeting hammerhead sharks. NMFS prefers Alternative B4 because it would implement the 2020 BiOps conservation recommendations and provide the most robust protections for scalloped hammerhead sharks while not limiting fishing opportunities for hammerhead sharks in the Atlantic and Gulf of Mexico. This alternative would be expected to have minor adverse economic impacts on the small entities participating in the fishery.
Under Alternative B5, NMFS would prohibit the commercial and recreational retention of all LCS hammerhead sharks in U.S. waters of the Atlantic Ocean, including the Gulf of Mexico and Caribbean Sea. This alternative would be consistent with the conservation recommendations from
This proposed rule contains no information collection requirements under the Paperwork Reduction Act of 1995.
Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Statistics, Treaties.
For the reasons set out in the preamble, 50 CFR part 635 is proposed to be amended as follows:
16 U.S.C. 971
(a) * * *
(2) Vessels issued an Atlantic Tunas General category permit under § 635.4(d) that are participating in an HMS registered tournament, vessels issued an HMS Angling category permit under § 635.4(c), or vessels issued an HMS Charter/Headboat permit under § 635.4(b) may not retain, possess or land scalloped, smooth, or great hammerhead sharks if swordfish, tuna, or billfish are retained or possessed on board, or offloaded from, the vessel. Such vessels also may not retain, possess or land swordfish, tuna, or billfish if scalloped, smooth, or great hammerhead sharks are retained or possessed on board, or offloaded from, the vessel.
(c) * * *
(2) Only one shark from the following list may be retained per vessel per trip, subject to the size limits described in § 635.20(e)(2) and (4): Atlantic blacktip, Gulf of Mexico blacktip, bull, great hammerhead, scalloped hammerhead, smooth hammerhead, lemon, nurse, spinner, tiger, blue, common thresher, porbeagle, Atlantic sharpnose, finetooth, Atlantic blacknose, Gulf of Mexico blacknose, and bonnethead.
(9) No person who has been issued or should have been issued a permit under § 635.4 of this part may retain, possess, or land scalloped, smooth, or great hammerhead sharks in or from the Caribbean, as defined at § 622.2 of this chapter.
(a) * * *
(4) * * *
(iv) A person who owns, operates, or is aboard a vessel that has been issued an HMS Commercial Caribbean Small Boat permit may retain, possess, land, or sell any blacktip, bull, lemon, nurse, spinner, tiger, Atlantic sharpnose, bonnethead, finetooth, and smoothhound shark, subject to the HMS Commercial Caribbean Small Boat permit shark retention limit. A person who owns, operates, or is aboard a vessel that has been issued an HMS Commercial Caribbean Small Boat permit may not retain, possess, land, or sell any hammerhead, blacknose, silky, sandbar, blue, thresher, shortfin mako, or prohibited shark, including parts or pieces of these sharks. The shark retention limit for a person who owns, operates, or is aboard a vessel issued an HMS Commercial Caribbean Small Boat permit will range from zero to three sharks per vessel per trip. At the start of each fishing year, the default shark trip limit will apply. During the fishing year, NMFS may adjust the default shark trip limit per the inseason trip limit adjustment criteria listed in paragraph (a)(8) of this section. The default shark retention limit for the HMS Commercial Caribbean Small Boat permit is three sharks per vessel per trip.
(9) Notwithstanding other provisions in this subsection, possession, retention, transshipment, landing, sale, or storage of silky sharks, and scalloped, smooth, and great hammerhead sharks is prohibited on vessels issued a permit under this part that have pelagic longline gear on board or on vessels issued both an HMS Charter/Headboat permit and a commercial shark permit when tuna, swordfish or billfish are on board the vessel, offloaded from the vessel, or being offloaded from the vessel.
(11) No person who has been issued or should have been issued a permit under § 635.4 of this part may retain, possess or land scalloped, smooth, or great hammerhead sharks in or from the Caribbean, as defined at § 622.2 of this chapter.
The addition reads as follows:
On November 17, 2022, REV Recreation Group, Inc. d/b/a Midwest Automotive Designs submitted a notification of proposed production activity to the FTZ Board for its facility within FTZ 125, in Elkhart, Indiana.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
On November 17, 2022, Moly-Cop USA, LLC submitted a notification of proposed production activity to the FTZ Board for its facility within FTZ 15 in Kansas City, Missouri.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) preliminarily determines that imports of certain aluminum foil (aluminum foil) that were exported from the Republic of Korea (Korea) and from the Kingdom of Thailand (Thailand), using inputs (
Applicable March 22, 2023.
Michael J. Heaney and Mark Flessner, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4475 and (202) 482-6312, respectively.
On April 19, 2018, Commerce published in the
On December 1, 2022, Commerce extended the deadline for issuing the preliminary determinations in these circumvention inquiries by 75 days, until February 28, 2023, and extended the deadline for issuing the final determinations by 65 days, until July 18, 2023.
The merchandise covered by the
These circumvention inquiries cover aluminum foil, assembled or completed in Korea and Thailand using Chinese-origin aluminum foil and/or sheet, that is subsequently exported from Korea and Thailand to the United States (inquiry merchandise).
Commerce made these preliminary circumvention determinations in accordance with section 781(b) of the Act and 19 CFR 351.226. For a full description of the methodology underlying the preliminary determinations,
We preliminarily determine that aluminum foil, assembled or completed in Korea and Thailand by the entities identified in Appendix II to this notice, using Chinese-origin aluminum foil and/or sheet, that is subsequently exported from Korea or Thailand to the United States, is circumventing the
As detailed in the Preliminary Decision Memoranda, we also preliminarily determine that U.S. imports of inquiry merchandise exported from Korea and Thailand are circumventing the
Pursuant to section 776(a) of the Act, if necessary information is not available on the record, or an interested party withholds requested information, fails to provide requested information by the deadline or in the form and manner requested, or significantly impeded a proceeding, Commerce shall use the facts otherwise available in reaching the applicable determination. Moreover, pursuant to section 776(b) of the Act, Commerce may use inferences adverse to the interests of an interested party in selecting from among the facts otherwise available if the party fails to cooperate by acting to the best of its ability to provide requested information.
Commerce requested information from certain companies in each of the examined countries related to the quantity and value (Q&V) of their exports during the inquiry period, for purposes of respondent selection. In these Q&V questionnaires, Commerce explained that, if the company to which Commerce issued the questionnaire fails to respond to the questionnaire, or fails to provide the requested information, Commerce may find that the company failed to cooperate by not acting to the best of its ability to comply with the request for information, and may use an inference that is adverse to the company's interests in selecting from the facts otherwise available. One company to which Commerce issued the Q&V questionnaire in the Thailand inquiry (
Therefore, we preliminarily find that necessary information is not available on the record and that Sankyu withheld requested information, failed to provide requested information by the deadline or in the form and manner requested, and significantly impeded these inquiries. Moreover, we find that this company failed to cooperate to the best of its ability to provide the requested Q&V information because it did not provide any response to Commerce's Q&V questionnaire. Consequently, we used adverse inferences with respect to Sankyu in selecting from among the facts otherwise available on the record, pursuant to sections 776(a) and (b) of the Act. For details regarding the adverse facts available used in our decisions,
Based on the adverse facts available used, we preliminarily determine that Sankyu exported inquiry merchandise and that U.S. entries of that merchandise are circumventing the
U.S. entries of inquiry merchandise made on or after July 18, 2022, that are ineligible for certification based on the failure of Sankyu to cooperate, or for other reasons, shall remain subject to suspension of liquidation until final assessment instructions on those entries are issued, whether by automatic liquidation instructions, or by instructions pursuant to the final results of an administrative review.
On September 1, 2022, UACJ (Thailand) Co., Ltd. (UACJ) timely filed a response to Commerce's Q&V questionnaire, in which it reported that it did not sell or export the merchandise covered by the circumvention inquiry to the United States during the period of inquiry.
Based on the preliminary affirmative country-wide determinations of circumvention for Korea and Thailand, and preliminary affirmative determinations of circumvention for the companies identified in Appendix II, in accordance with 19 CFR 351.225(l)(2), we will direct U.S. Customs and Border Protection (CBP) to suspend liquidation and require a cash deposit of estimated duties on unliquidated entries of aluminum foil, assembled or completed in Korea and Thailand using Chinese-origin aluminum foil and/or sheet, that were entered, or withdrawn from warehouse, for consumption on or after July 18, 2022, the date of publication of the initiation of these circumvention inquiries in the
For exporters of the aluminum foil that have a company-specific cash deposit rate under the
Entries for which the importer and exporter have met the certification requirements described below and in Appendix III to this notice will not be subject to suspension of liquidation, or the cash deposit requirements described above. Failure to comply with the applicable requisite certification requirements may result in the merchandise being subject to antidumping and countervailing duties.
In order to administer the preliminary country-wide and company-specific affirmative determinations of circumvention for Korea and Thailand, Commerce has established importer and exporter certifications. These certifications will permit importers and exporters to establish that specific entries of aluminum foil from Korea and Thailand are not subject to suspension of liquidation or the collection of cash deposits pursuant to these preliminary country-wide affirmative determinations of circumvention because the merchandise meets the component content requirements described in the certification (
Importers and exporters that claim that an entry of aluminum foil is not subject to suspension of liquidation or the collection of cash deposits based on the inputs used to manufacture such merchandise must complete the applicable certification and meet the certification and documentation requirements described below, as well as the requirements identified in the applicable certification.
Importers are required to complete and maintain the applicable importer certification, and maintain a copy of the applicable exporter certification, and retain all supporting documentation for both certifications. With the exception of the entries described below, the importer certification must be completed, signed, and dated by the time the entry summary is filed for the relevant entry. The importer, or the importer's agent, must submit both the importer's certification and the exporter's certification to CBP as part of the entry process by uploading them into the document imaging system (DIS) in ACE. Where the importer uses a broker to facilitate the entry process, it should obtain the entry summary number from the broker. Agents of the importer, such as brokers, however, are not permitted to certify on behalf of the importer.
Exporters are required to complete and maintain the applicable exporter certification and provide the importer with a copy of that certification and all supporting documentation (
Additionally, the claims made in the certifications and any supporting documentation are subject to verification by Commerce and/or CBP. Importers and exporters are required to maintain the certifications and supporting documentation until the later of: (1) the date that is five years after the latest entry date of the entries covered by the certification; or (2) the date that is three years after the conclusion of any litigation in United States courts regarding such entries.
For all aluminum foil from Korea and Thailand that was entered, or withdrawn from warehouse, for consumption during the period July 18, 2022 (the date of initiation of these circumvention inquiries), through the date of publication of the preliminary determinations in the
For unliquidated entries (and entries for which liquidation has not become final) of aluminum foil that were declared as non-AD/CVD type entries (
If it is determined that an importer and/or exporter has not met the certification and/or related documentation requirements for certain entries, Commerce intends to instruct CBP to suspend, pursuant to these preliminary country-wide affirmative determinations of circumvention and the
Interested parties may comment in their case briefs on these certification requirements, and on the certification language contained in the appendices to this notice.
As provided in 19 CFR 351.226(f)(3), Commerce intends to verify the information relied upon in making its final determinations.
Case briefs or other written comments for a particular country should be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last verification report for that country is issued. 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 for a particular country, 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 in the
Commerce, consistent with section 781(e) of the Act, will notify the U.S. International Trade Commission (ITC) of these preliminary determinations to include the merchandise subject to these circumvention inquiries within the
These determinations are issued and published in accordance with section 781(b) of the Act and 19 CFR 351.226(g)(1).
I hereby certify that:
A. My name is {IMPORTING COMPANY OFFICIAL'S NAME} and I am an official of {NAME OF IMPORTING COMPANY}, located at {ADDRESS OF IMPORTING COMPANY}.
B. I have direct personal knowledge of the facts regarding the importation into the Customs territory of the United States of the aluminum foil completed in {COUNTRY} that entered under the entry summary number(s), identified below, and are covered by this certification. “Direct personal knowledge” refers to the facts the certifying party is expected to have in its own records. For example, the importer should have direct personal knowledge of the exporter's and/or seller's identity and location.
C. If the importer is acting on behalf of the first U.S. customer, include the following sentence as paragraph C of this certification:
The aluminum foil covered by this certification was imported by {NAME OF IMPORTING COMPANY} on behalf of {NAME OF U.S. CUSTOMER}, located at {ADDRESS OF U.S. CUSTOMER}.
If the importer is not acting on behalf of the first U.S. customer, include the following sentence as paragraph C of this certification:
{NAME OF IMPORTING COMPANY} is not acting on behalf of the first U.S. customer.
D. The aluminum foil covered by this certification was shipped to {NAME OF PARTY IN THE UNITED STATES TO WHOM THE MERCHANDISE WAS FIRST SHIPPED}, located at {U.S. ADDRESS TO WHICH MERCHANDISE WAS SHIPPED}.
E. I have personal knowledge of the facts regarding the production of the imported products covered by this certification. “Personal knowledge” includes facts obtained from another party, (
F. The importer certifies that the aluminum foil produced in {COUNTRY} that is covered by this certification was not manufactured using aluminum foil and/or sheet produced in China, regardless of whether sourced directly from a Chinese producer or from a downstream supplier.
G. The aluminum foil covered by this certification is not covered by the antidumping duty or countervailing duty orders on certain aluminum foil from the People's Republic of China.
H. This certification applies to the following entries (repeat this block as many times as necessary):
Entry Summary #:
Entry Summary Line Item #:
Foreign Seller:
Foreign Seller's Address:
Foreign Seller's Invoice #:
Foreign Seller's Invoice Line Item #:
Producer:
Producer's Address:
I. I understand that {NAME OF IMPORTING COMPANY} is required to maintain a copy of this certification and sufficient documentation supporting this certification (
J. I understand that {NAME OF IMPORTING COMPANY} is required to maintain a copy of the exporter's certification (attesting to information regarding the production and/or exportation of the imported merchandise identified above), and any supporting documentation provided to the importer by the exporter, until the later of: (1) the date that is five years after the latest entry date of the entries covered by the certification; or (2) the date that is three years after the conclusion of any litigation in United States courts regarding such entries.
K. I understand that {NAME OF IMPORTING COMPANY} is required to provide U.S. Customs and Border Protection (CBP) and/or the U.S. Department of Commerce (Commerce) with the importer certification, and any supporting documentation, and a copy of the exporter's certification, and any supporting documentation provided to the importer by the exporter, upon the request of either agency.
L. I understand that the claims made herein, and the substantiating documentation, are subject to verification by CBP and/or Commerce.
M. I understand that failure to maintain the required certifications and supporting documentation, or failure to substantiate the claims made herein, or not allowing CBP and/or Commerce to verify the claims made herein, may result in a
(i) suspension of liquidation of all unliquidated entries (and entries for which liquidation has not become final) for which these requirements were not met;
(ii) the importer being required to post the antidumping duty and countervailing duty cash deposits determined by Commerce; and
(iii) the importer no longer being allowed to participate in the certification process.
N. I understand that agents of the importer, such as brokers, are not permitted to make this certification.
O. This certification was completed and signed on, or prior to, the date of the entry summary if the entry date is more than 14 days after the date of publication of the notice of Commerce's preliminary determination of circumvention in the
P. I am aware that U.S. law (including, but not limited to, 18 U.S.C. 1001) imposes criminal sanctions on individuals who knowingly and willfully make materially false statements to the U.S. government.
The party that made the sale to the United States should fill out the exporter certification.
I hereby certify that:
A. My name is {COMPANY OFFICIAL'S NAME} and I am an official of {NAME OF EXPORTING COMPANY}, located at {ADDRESS OF EXPORTING COMPANY}.
B. I have direct personal knowledge of the facts regarding the production and exportation of the aluminum foil for which sales are identified below. “Direct personal knowledge” refers to facts the certifying party is expected to have in its own records. For example, an exporter should have direct personal knowledge of the producer's identity and location.
C. The aluminum foil covered by this certification was shipped to {NAME OF PARTY IN THE UNITED STATES TO WHOM MERCHANDISE WAS FIRST SHIPPED}, located at {U.S. ADDRESS TO WHICH MERCHANDISE WAS SHIPPED}.
D. The seller certifies that the aluminum foil produced in {COUNTRY} that is covered by this certification was not manufactured using aluminum foil and/or sheet produced in China, regardless of whether sourced directly from a Chinese producer or from a downstream supplier.
E. The aluminum foil covered by this certification is not covered by the antidumping duty or countervailing duty orders on certain aluminum foil from the People's Republic of China.
F. This certification applies to the following sales to {NAME OF U.S. CUSTOMER}, located at {ADDRESS OF U.S. CUSTOMER} (repeat this block as many times as necessary):
Foreign Seller's Invoice # to U.S. Customer:
Foreign Seller's Invoice to U.S. Customer Line Item #:
Producer Name:
Producer's Address:
Producer's Invoice # to the Foreign Seller: (
G. I understand that {EXPORTING COMPANY} is required to maintain a copy of this certification and sufficient documentation supporting this certification (
H. I understand that {EXPORTING COMPANY} is required to provide the U.S. importer with a copy of this certification and is required to provide U.S. Customs and Border Protection (CBP) and/or the U.S. Department of Commerce (Commerce) with this certification, and any supporting documents, upon the request of either agency.
I. I understand that the claims made herein, and the substantiating documentation, are subject to verification by CBP and/or Commerce.
J. I understand that failure to maintain the required certification and supporting documentation, or failure to substantiate the claims made herein, or not allowing CBP and/or Commerce to verify the claims made herein, may result in a
(i) suspension of liquidation of all unliquidated entries (and entries for which liquidation has not become final) for which these requirements were not met;
(ii) the importer being required to post the antidumping and countervailing duty cash deposits determined by Commerce; and
(iii) the seller/exporter no longer being allowed to participate in the certification process.
K. I understand that agents of the seller/exporter, such as freight forwarding companies or brokers, are not permitted to make this certification.
L. This certification was completed and signed, and a copy of the certification was provided to the importer, on, or prior to, the date of shipment if the shipment date is after the date of publication of the notice of Commerce's preliminary determination of circumvention in the
M. I am aware that U.S. law (including, but not limited to, 18 U.S.C. 1001) imposes criminal sanctions on individuals who knowingly and willfully make materially false statements to the U.S. government.
International Trade Administration, U.S. Department of Commerce.
Notice of an open meeting.
The Renewable Energy and Energy Efficiency Advisory Committee (REEEAC or the Committee) will hold a hybrid meeting, accessible in-person and online, on Wednesday April 4, 2023, at the U.S. Department of Commerce in Washington, DC. The meeting is open to the public with registration instructions provided below. The meeting has a limited number of spaces for members of the public to attend in-person. Requests to attend in-person will be considered on a first-come first-served basis.
April 4, 2023, from approximately 9:30 a.m. to 3:30 p.m. Eastern Daylight Time EDT. Members of the public wishing to participate must register in advance with Cora Dickson at the contact information below by 5:00 p.m. EDT on Friday, March 31, 2023, including any requests to make comments during the meeting or for accommodations or auxiliary aids.
To register, please contact Cora Dickson, Designated Federal Officer, Office of Energy and Environmental Industries (OEEI), Industry and Analysis, International Trade Administration, U.S. Department of Commerce at (202) 482-6083; email:
Cora Dickson, Designated Federal Officer, Office of Energy and Environmental Industries (OEEI), Industry and Analysis, International Trade Administration, U.S. Department of Commerce at (202) 482-6083; email:
On April 4, 2023, the REEEAC will hold the second meeting of its current charter term. The Committee, with officials from the Department of Commerce and other agencies, will discuss major issues affecting the competitiveness of the U.S. renewable energy and energy efficiency industries, determine sub-committee structure, and provide consultation on REEEAC leadership. An agenda will be made available by April 4, 2023 upon request to Cora Dickson.
The meeting will be open to the public and will be accessible to people with disabilities. All guests are required to register in advance by the deadline identified under the
A limited amount of time before the close of the meeting will be available for oral comments from members of the public attending the meeting. To accommodate as many speakers as possible, the time for public comments will be limited to two to five minutes per person (depending on number of public participants). Individuals wishing to reserve speaking time during the meeting must contact Cora Dickson using the contact information above and submit a brief statement of the general nature of the comments, as well as the name and address of the proposed participant, by 5:00 p.m. EDT on Friday, March 31, 2023. If the number of registrants requesting to make statements is greater than can be reasonably accommodated during the meeting, the International Trade Administration may conduct a lottery to determine the speakers. Speakers are requested to submit a copy of their oral comments by email to Cora Dickson for distribution to the participants in advance of the meeting.
Any member of the public may submit written comments concerning the REEEAC's affairs at any time before
Copies of REEEAC meeting minutes will be available within 30 days following the meeting.
International Trade Administration, U.S. Department of Commerce.
Notice of an open meeting of a Federal advisory committee.
This notice sets forth the schedule and proposed topics for a meeting of the Environmental Technologies Trade Advisory Committee (ETTAC).
The meeting is scheduled for Tuesday, April 11, 2023 from 8:30 a.m. to 4:30 p.m. and Wednesday, April 12, 2023 from 8:45 a.m. to 3:00 p.m. Eastern Daylight Time (EDT). The deadline for members of the public to register to participate, including requests to make comments during the meeting and for auxiliary aids, or to submit written comments for dissemination prior to the meeting, is 5:00 p.m. EDT on Friday, March 31, 2023.
The meeting will be held in-person in the Research Library at the U.S. Department of Commerce Herbert Clark Hoover Building, 1401 Constitution Avenue NW, Washington, DC 20230. Requests to register to participate (including to speak or for auxiliary aids) and any written comments should be submitted via email to Ms. Megan Hyndman, Office of Energy & Environmental Industries, International Trade Administration, at
Ms. Megan Hyndman, Office of Energy & Environmental Industries, International Trade Administration (Phone: 202-823-1839; email:
The meeting will take place on Tuesday, April 11, 2023 from 8:30 a.m. to 4:30 p.m. and Wednesday, April 12, 2023; from 8:45 a.m. to 3:00 p.m. EDT. The general meeting is open to the public, and time will be permitted for public comment on Wednesday, April 12, 2023, from 2:15 p.m. to 2:30 p.m. EDT. Members of the public seeking to attend the meeting are required to register in advance. Those interested in attending must provide notification by Friday, March 31, 2023, at 5:00 p.m. EDT, via the contact information provided above. This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to OEEI at
Written comments concerning ETTAC affairs are welcome any time before or after the meeting. To be considered during the meeting, written comments must be received by Friday, March 31, 2023, at 5:00 p.m. EDT to ensure transmission to the members before the meeting. Minutes will be available within 30 days of this meeting.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Groundfish Advisory Panel via webinar to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This webinar will be held on Friday, April 7, 2023, at 9:30 a.m. Webinar registration URL information:
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Groundfish Advisory Panel will meet receive an update on progress to develop metrics and indicators for Amendment 23. They will receive an update on progress to revise the Council's ABC control rule for groundfish stocks and the plan for a facilitated process between the Scientific and Statistical Committee, Groundfish Committee, and Groundfish Plan Development Team. The Advisors will also receive an update on developing a transition plan for Atlantic cod management from the current two management units to up to five management units, including addressing allocation issues and considering potential new measures to protect Atlantic cod spawning. They will also
Although non-emergency issues not contained on the agenda may come before this Council for discussion, those issues may not be the subject of formal action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency. The public also should be aware that the meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Western Pacific Fishery Management Council (Council) will hold a meeting of its Archipelagic Plan Team (APT) to discuss fishery management issues and develop recommendations for future management of fisheries in the Western Pacific Region.
The APT will meet on Wednesday and Thursday, April 19-20, 2023, between 8:30 a.m. and 4 p.m., Hawaii Standard Time (HST). For specific times and agendas, see
The meeting will be held by web conference via WebEx. Audio and visual portions for Archipelagic Plan Team meeting can be accessed at:
Kitty M. Simonds, Executive Director, Western Pacific Fishery Management Council, (808) 522-8220 (voice) or (808) 522-8226 (fax).
The APT meeting will be held Wednesday and Thursday, April 19-20, 2023, between 8:30 a.m. and 4 p.m., Hawaii Standard Time (HST) (7:30 a.m. to 3 p.m. Samoa Standard Time (SST); 4:30 a.m. to 12 p.m. on April 20-21, 2023, Chamorro Standard Time (ChST)). Opportunities to present oral public comment will be provided on the agenda. The order of the agenda may change, and will be announced in advance at the meeting. The meeting may run past the scheduled times noted above to complete scheduled business.
These meetings are accessible to people with disabilities. Please direct requests for sign language interpretation or other auxiliary aids to Kitty M. Simonds (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that MeatEater, Inc., 1203 N. Rouse St., Suite 3E, Bozeman, MT 59715 (Responsible Party: Jason Roehrig), has applied in due form for a permit to conduct commercial and educational photography on marine mammals.
Written, telefaxed, or email comments must be received on or before April 21, 2023.
These documents are available upon written request via email to
Written comments on this application should be submitted via email to
Those individuals requesting a public hearing should submit a written request via email to
Carrie Hubard or Sara Young, (301) 427-8401.
The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
The applicant proposes to film marine mammals while documenting activities of Alaska Natives (with their permission) near Craig, Alaska. The goal is to film a harbor seal (
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
Office of Oceanic and Atmospheric Research (OAR), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice of public meetings.
This notice sets forth the schedule and proposed agenda of two meetings of the Science Advisory Board (SAB). The members will discuss issues outlined in the section on Matters to be considered.
There are two meetings: the first meeting is scheduled for April 26, 2023 from 8:30 a.m. to 5:45 p.m. Eastern Daylight Time (EDT) and April 27, 2023 from 8:30 a.m. to 12:00 p.m. (EDT). The second meeting is scheduled for July 26, 2023, from 8:00 a.m. to 5:00 p.m. Pacific Daylight Time (PDT) and July 27, 2023 from 8:00 a.m. to 12:00 p.m. (PDT) These times and the agenda topics described below are subject to change.
For the latest agenda please refer to the SAB website:
The April 26-27, 2023 meeting will be at the DoubleTree by Hilton Silver Spring Washington DC North, 8777 Georgia Ave., Silver Spring, MD. The link for the webinar registration for the April 26-27, 2023 meeting may be found here, when available:
The July 26-27, 2023 meeting will be at the Southern California Coastal Water Research Project, 3535 Harbor Blvd., Suite 110, Costa Mesa, CA 92626. The link for the webinar registration for the July 26-27, 2023 meeting may be found here, when available:
Dr. Cynthia Decker, Executive Director, SSMC3, Room 11230, 1315 East-West Hwy., Silver Spring, MD 20910; Phone Number: (202) 936-5847; Email:
The NOAA Science Advisory Board (SAB) was established by a Decision Memorandum dated September 25, 1997, and is the only Federal Advisory Committee with responsibility to advise the Under Secretary of Commerce for Oceans and Atmosphere on strategies for research, education, and application of science to operations and information services. SAB activities and advice provide necessary input to ensure that National Oceanic and Atmospheric Administration (NOAA) science programs are of the highest quality and provide optimal support to resource management.
The July 26-27, 2023 meeting will consider updates and reports and NOAA responses on topics contained in the SAB Work Plan. Meeting materials, including work products, will be made available on the SAB website:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Mid-Atlantic Fishery Management Council's Surfclam and Ocean Quahog Advisory Panel will hold a public webinar meeting. See
The meeting will be held on Thursday, April 13, 2023, from 1 p.m. until 4 p.m.
The meeting will be held via webinar. Connection information will be posted to the calendar prior to the meeting at
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The purpose of this meeting is for the Advisory Panel to develop a fishery performance report (FPR) for Atlantic surfclam and ocean quahog. The intent of the FPR is to facilitate a venue for structured input from the Advisory Panel for the specifications processes. The FPR will be used by the MAFMC's Scientific and Statistical Committee and Council when reviewing specifications for the 2024 fishing year.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to Shelley Spedden, (302) 526-5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Pacific Fishery Management Council (Pacific Council) will convene a Stock Assessment Review (STAR) Panel meeting to review the 2023 Pacific mackerel stock assessment. The meeting will be co-hosted by the NOAA Southwest Fisheries Science Center.
The meeting will be held Tuesday, April 11 through Thursday, April 13, 2023. The meeting will begin each day at 8:30 a.m. Pacific Standard Time and will continue until 5 p.m. or until business for the day has been completed.
This meeting will be held in person at the Pacific Room of the Southwest Fisheries Science Center at 8901 La Jolla Shores Dr., La Jolla, CA 92037.
The meeting will be broadcast with opportunity for remote public comment. Specific meeting information and materials will be provided in the meeting announcement on the Pacific Council's website (see
Jessi Doerpinghaus, Staff Officer, Pacific Council; telephone: (503) 820-2415.
The primary purpose of the meeting is to provide technical review of the Pacific mackerel stock assessment. The review panel will consist of at least three members of the Pacific Council's Scientific and Statistical Committee's Subcommittee on Coastal Pelagic Species (CPS) and at least one independent expert from the Center for Independent Experts. Representatives of the Pacific Council's CPS Management Team and the CPS Advisory Subpanel will also participate in the review as advisers.
Although non-emergency issues not contained in the meeting agenda may be discussed, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this document and any issues arising after publication of this document that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
Requests for sign language interpretation or other auxiliary aids should be directed to contact Dr. Annie Yau (
Tuesday, March 21 2023; 2 p.m.
The meeting will be held virtually and in person at Bethesda, MD.
Commission Meeting—Closed to the Public.
Alberta E. Mills, Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, 301-504-7479 (Office) or 240-863-8938 (Cell).
Office of the Under Secretary of Defense for Personnel and Readiness (OUSD(P&R)), Department of Defense (DoD).
60-Day information collection notice.
In compliance with the
Consideration will be given to all comments received by May 22, 2023.
You may submit comments, identified by docket number and title, by any of the following methods:
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Department of Defense Education Activity (Executive Services Division), ATTN: Samuel Gotti, 4800 Mark Center Drive, Alexandria, VA 22350 or call at (571) 372-1891.
The primary objective of the information collection is to screen applicants for educational qualification and employment eligibility, to obtain pertinent evaluation information about an applicant to assist management in making a hiring decision, and to obtain applicant consent to obtain personal information from former employer about applicants' employment. The forms associated with this data collection include: (1) Department of Defense Education Activity Supplemental Application for Overseas Employment (DoDEA Form 5010). The primary objective of this voluntary form is to ascertain applicants' eligibility for educator positions. (2) Department of Defense Education Activity Professional Evaluation (DoDEA Form 5011). This form is provided to officials who served in managerial and supervisory positions above the applicant as a means of verifying abilities and qualifications of applicants for educator positions. (3) Department of Defense Education Activity Verification of Professional Educator Employment for Salary Rating Purposes (DoDEA Form 5013). The purpose of this voluntary form is to verify employment history of educator applicants and to determine creditable previous experience for pay-setting purposes. The paper forms and electronic data systems containing the sponsor and dependent personally identifiable information are secured in accordance with the requirements of Federal law and DoD regulations.
Defense Security Cooperation Agency, Department of Defense (DoD).
Arms sales notice.
The DoD is publishing the unclassified text of an arms sales notification.
Neil Hedlund at
This 36(b)(1) arms sales notification is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996. The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 21-51 with attached Policy Justification and Sensitivity of Technology.
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* As defined in Section 47(6) of the Arms Export Control Act.
The Government of Japan has requested to buy up to forty-four (44) Rolling Airframe Missiles (RAM) Block 2 Tactical Missiles, RIM-116C. Also included are RAM Block 2 Guidance Control Groups; RAM Guided Missile Round Pack Tri-Pack shipping and storage containers; operator manuals and technical documentation; U.S. Government and contractor engineering, technical and logistics support services; and other related elements of logistics and program support. The total estimated program cost is $61.5 million.
This proposed sale will support the foreign policy goals and national security objectives of the United States by improving the security of a major ally that is a force for political stability and economic progress in the Asia-Pacific region. It is vital to U.S. national interest to assist Japan in developing and maintaining a strong and effective self-defense capability.
The proposed will provide significantly enhanced area defense capabilities over critical East Asian and Western Pacific air and sea-lines of communication. Japan will have no difficulty absorbing these services and support into its armed forces.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The principal contractor will be Raytheon Missiles and Defense, Tucson, AZ. There are no known offset agreements proposed in connection with this potential sale.
Implementation of this proposed sale will not require the assignment of any additional U.S. Government or contractor representatives to Japan.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
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1. The RIM-116C Rolling Airframe Missile (RAM) is an autonomous (
2. The highest level of classification of defense articles, components, and services included in this potential sale is CONFIDENTIAL.
3. If a technologically advanced adversary were to obtain knowledge of the specific hardware and software elements, the information could be used to develop countermeasures that might reduce weapon system effectiveness or be used in the development of a system with similar or advanced capabilities.
4. A determination has been made that Japan can provide substantially the same degree of protection for the sensitive technology being released as the U.S. Government. This sale is necessary in furtherance of the U.S. foreign policy and national security objectives outlined in the Policy Justification.
5. All defense articles and services listed in this transmittal have been authorized for release and export to Japan.
Defense Security Cooperation Agency, Department of Defense (DoD).
Arms sales notice.
The DoD is publishing the unclassified text of an arms sales notification.
Neil Hedlund at
This 36(b)(1) arms sales notification is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996. The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 21-50 with attached Policy Justification.
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* As defined in Section 47(6) of the Arms Export Control Act.
The Government of Japan has requested to buy Follow-On Technical Support (FOTS) of AEGIS Class Destroyers, to include sustainment support and services; AEGIS computer software updates, system integration and testing, in-country and on-site engineering support; familiarization, sustainment, and all necessary emergent support engineering and technical support services; operational support; system overhauls; system upgrades; on-the-job practical operations and maintenance; combat systems integration; development, testing, installation of program patches and adaptation data and annual service agreements; technical inquiries by the purchaser; operation; integration; maintenance; field service engineering; problem investigation; technical assistance; solutions to the technical problems arising from post production, testing capabilities and support, U.S. Government and contractor technical assistance, and other related elements of logistics and program support. The total estimated program cost is $134 million.
This proposed sale will support the foreign policy goals and national security objectives of the United States by improving the security of a major ally that is a force for political stability and economic progress in the Asia-Pacific region. It is vital to U.S. national interest to assist Japan in developing and maintaining a strong and effective self-defense capability.
The proposed sale is critical to ensure Japan Maritime Self Defense Force's (JMSDF) Aegis Destroyer fleet and the Japanese Computer Program Test Sites (JCPTS) remain ready to provide capabilities in the defense of Japan. Specifically, the requested CPM services will provide JMSDF with software patches and adaptation data support that are vital to the effective and safe operations of the Aegis Combat Systems (ACS) suite. The in-country engineering and emergent support will assist JMSDF to address any malfunctions or faults that may arise with the ACS suite. Japan will have no difficulty absorbing these services and support into its armed forces.
The proposed sale of this equipment will not alter the basic military balance in the region.
The principal contractor will be Lockheed Martin Corporation, Moorestown, NJ. There are no known offset agreements proposed in connection with this potential sale.
Implementation of this proposed sale will require the temporary assignment of five (5) U.S. Government and two (2) contractor representatives to Japan.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
Defense Security Cooperation Agency, Department of Defense (DoD).
Arms sales notice.
The DoD is publishing the unclassified text of an arms sales notification.
Neil Hedlund at
This 36(b)(5)(C) arms sales notification is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996. The following is a copy of a letter to the Speaker of the House of Representatives with attached Transmittal 21-0J.
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On July 26, 2018, Congress was notified by Congressional certification transmittal number 18-0B of the retrofit of MQ-9s to become weapons capable, and the inclusion of one hundred (100) GBU-49 Enhanced Paveway dual mode
On November 22, 2019, Congress was notified by Congressional certification transmittal number 19-0P of the retrofit of four (4) MQ-9A Block 1 to exportable MQ-9A Block 5; the addition of four (4) MQ-9A Block 5; and the addition of fourteen (14) Embedded GPS/INS (EGI) with GPS Security Devices. The retrofit and inclusion of MDE not enumerated in the original notification resulted in the total notified cost of MDE increasing to $1.055 billion. The total notified case value remained $1.71 billion.
This transmittal reports the addition of up to five (5) Mobile Ground Control Stations (MDE). Also included are additional ARC-210 Radios Systems (non-MDE). The inclusion of MDE not enumerated in the original notification will result in the total notified cost of MDE increasing to $1.0875 billion. The total notified case value will remain at $1.71 billion.
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The highest level of classification of defense articles, components, and services included in this potential sale is UNCLASSIFIED.
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Defense Finance and Accounting Service (DFAS), Department of Defense (DoD).
60-Day information collection notice.
In compliance with the
Consideration will be given to all comments received by May 22, 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 the Defense Finance and Accounting Service—Cleveland, 1240 East Ninth Street, ATTN: JFBB—Mr. Charles Moss, Room 1569, Cleveland, OH 44199 or phone at 216-204-4426.
The form will be used by the DFAS in order to establish and start the annuity for a potential child annuitant. When the form is completed, it will serve as a medical report to substantiate a child's incapacity. The law requires that an unmarried child who is incapacitated must provide a current certified medical report. When the incapacity is not permanent, a medical certification must be received by DFAS every two years in order for the child to continue receiving annuity payments.
Defense Security Cooperation Agency, Department of Defense (DoD).
Arms sales notice.
The DoD is publishing the unclassified text of an arms sales notification.
Neil Hedlund at
This 36(b)(1) arms sales notification is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996. The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 21-49 with attached Policy Justification.
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* As defined in Section 47(6) of the Arms Export Control Act.
The Government of Greece has requested to buy U.S. Government and contractor engineering, technical, and logistics support services for F-16 Aircraft Structural Integrity Program (ASIP), F-16 Aircrew Training Device (ATD), Low Altitude Targeting and Infrared for Night (LANTIRN), and Reconnaissance (RECCE) Pods support programs; aircraft classified and unclassified aircraft software and software support; Multifunctional Information Distribution System (MIDS) software support; Joint Mission Planning Software (JMPS) support; participation in Electronic Combat International Security Assistance Program (ECISAP), International Engine Management Program (IEMP), and technical coordination groups; other aircraft and engine hardware and software modifications and support; spare and repair/return parts and equipment; personnel training and training equipment; publications, manuals, and technical documentation; and other related elements of aircraft maintenance and program support. The total estimated value is $270 million.
This proposed sale will support the foreign policy and national security objectives of the United States by helping to improve the security of a NATO ally, which is an important partner for political stability and economic progress in Europe.
The proposed sale will improve Greece's capability to meet current and future threats by providing agile logistics support to its F-16 program, encompassing aspects of aircrew training and aircraft maintenance. The ability to provide this level of support to the F-16 program will increase its inter-operability with NATO forces and enhance its ability to provide for security of its borders. Greece has demonstrated a continued commitment to modernizing its military and will have no difficultly absorbing this additional sustainment support into its armed forces.
The proposed sale of these services will not alter the basic military balance in the region.
The principal contractors for this proposed sale are L3/Harris International, Melbourne, Florida; Lockheed-Martin Aero Corporation, Fort Worth, Texas; Collins Aerospace, Charlotte, North Carolina; Northrop Grumman Corporation, Falls Church, Virginia; Raytheon Company, Waltham, Massachusetts; and Atec, Incorporated, Houston, Texas. The purchaser typically requests offsets. Any offset agreement will be defined in negotiations between the purchaser and the contractor(s).
Implementation of this proposed sale will not require the assignment of any additional U.S. Government or contractor representatives outside the United States.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
Defense Security Cooperation Agency, Department of Defense (DoD).
Arms sales notice.
The DoD is publishing the unclassified text of an arms sales notification.
Neil Hedlund at
This 36(b)(1) arms sales notification is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996. The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 21-44 with attached Policy Justification and Sensitivity of Technology.
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* As defined in Section 47(6) of the Arms Export Control Act.
TECRO has requested to buy forty (40) 155mm M109A6 Medium Self-Propelled Howitzer Systems; twenty (20) M992A2 Field Artillery Ammunition Support Vehicles (FAASV); one (1) Advanced Field Artillery Tactical Data System (AFATDS); five (5) M88A2 Hercules vehicles; five (5) M2 Chrysler Mount .50 caliber machine guns; and one thousand six hundred ninety-eight (1,698) multi-option, Precision Guidance Kits (PGK). Also included are M109A6/M992A2 overhaul, conversion and refurbishment services; Special Tools and Test Equipment (STTE); Defense Advanced Global Positioning System (GPS) Receiver; AN/VVS(2) Night Driver's Viewer (NDV); Dynamic Reference Unit Hybrid Replacement Inertial Navigation System; Basic Issue Items (BII); Program Management Support; Verification Testing; System Technical Support; Transportation; Spare and repair parts; communication support equipment; communication equipment integration; tools and test equipment; personnel training and training equipment; repair and return program; camouflage nets; Components of End Items (COEI), Additional Authorized List (AAL), Technical Manuals; Quality Assurance Team (QAT); 155mm M232A1 Propelling Charges, M82 Percussion Primer Fuzes, support and test equipment, integration and test support, software delivery, publications and technical documentation. U.S. Government and contractor engineering; technical and logistics support services; storage; and other related elements of logistics and program support; OCONUS Deprocessing Service; Export Single Channel Ground and Airborne Radio System (SINCGARS); OCONUS Contractor provided Training, Field Service Representatives (FSR); M2A1 .50 Cal MG; MK93 MOD 2 Mount Machine Gun; M239 Smoke Grenade Launchers, U.S. Government and contractor representatives' technical assistance, engineering and logistics support services, and other related elements of logistics support. The total estimated program cost is $750 million.
This proposed sale is consistent with U.S. law and policy as expressed in Public Law 96-8.
This proposed sale serves U.S. national, economic, and security interests by supporting the recipient's continuing efforts to modernize its armed forces and to maintain a credible defensive capability. The proposed sale will help improve the security of the recipient and assist in maintaining political stability, military balance, economic and progress in the region.
This proposed sale of M109A6 SPH will contribute to the modernization of the recipient's self-propelled howitzer fleet, enhancing its ability to meet current and future threats. These systems will contribute to the recipient's goal of updating its military capability while further enhancing interoperability with the United States and other allies. The recipient will have no difficulty absorbing these systems into its armed forces.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The prime contractor for the Self-Propelled Howitzer Systems will be BAE Systems, Anniston, AL, and Elgin, OK; M992A2 FAASV, Anniston Army Depot (ANAD), Bynum, AL; and M88A2 recovery vehicles, BAE, York, PA. The purchaser has requested offsets. At this time, agreements are undetermined and will be defined in negotiations between the purchaser and contractor.
Implementation of this proposed sale will not require the permanent assignment of any additional U.S. Government or contractor representatives to recipient. Support teams will travel to recipient on a temporary basis.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
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1. The Paladin M109A6 howitzer is the fifth product improvement to the original M109 self-propelled howitzer. It features improvements in the areas of survivability; reliability, availability, and maintainability (RAM); responsiveness; and terminal effects. The M109A6 is an armored, full tracked howitzer carrying 37 complete conventional rounds and two Copperhead projectiles and is operated by a crew of four. It is designed with a new turret structure that facilitates integration of the various turret improvements and vulnerability reduction measures. It improves overall crew compartment layout and space. The howitzer can travel at a maximum speed of 38 miles per hour and has a maximum cruising range of 186 miles.
2. The Inertial Navigation Unit (INU) component provides the vehicle with its own position location utilizing sensors that continuously calculates its direction and velocity without the continuous dependency of a GPS; the INU receives GPS data from an external GPS receiver as an input when available to provide better precision. The INU allows the vehicle to more precisely calculate its position to other components in the vehicle to improve its functions and safety of use; these functions include movement and maneuver of the vehicle, movement of the turret, and pointing of the gun tube.
3. The Electronic Fire Control System (EFCS) commonly referred to as the Paladin Fire Control System (PFCS) is the major change for the Paladin M109A6 Howitzer from the manual fire control system used on the M109A5. This gives the howitzer the ability to operate over a widely dispersed area and to move and emplace using the on board fire control navigation and GPS system. The M109A6 can move and position within an assigned position area, process technical firing data, and fire a mission without relying on aiming circles and wire lines. The M109A6 can change position more frequently, an advantage against enemy fire. Such advancements give new meaning to the artillery's ability to move, shoot and communicate. In addition, the EFCS with embedded electronic diagnostics improves maintenance and repair functions by assisting in pinpointing faults.
4. The Defense Advanced GPS (Global Positioning System) Receiver (DAGR) is a lightweight (less than 2 pounds) hand-held or host platform-mounted, dual frequency (L1/L2), Selective Availability Anti-Spoofing Module (SAASM) based, Precise Positioning Service (PPS) device that receives and decodes the L1 and L2 signals-in-space which are transmitted by the NAVSTAR GPS satellite constellation. The DAGR provides real-time positioning, velocity (ground speed), navigation, and timing (PVNT) information, in stand-alone (dismounted) and mounted (ground facilities, sea, air, and land vehicles) configurations. The DAGR can support missions involving land-based war-fighting and non-war fighting operations. The DAGR can also be used as a secondary or supplemental aid to aviation-based missions which involve operations in low-dynamic aircraft, and as an aid to navigation in water-borne operations.
5. The M1156 Precision Guidance Kit (PGK) is a Global Positioning System (GPS) Guidance Kit with fuzing functions for the M795 and M549A1 155mm High Explosive (HE) Artillery Projectiles. The PGK corrects the ballistic trajectory of the projectile to reduce delivery errors and thus improves projectile accuracy. The PGK will effectively reduce target delivery error of conventional artillery munitions and reduce the number of projectiles required to execute a fire mission.
6. The 155mm M232A1 Propelling Charge (DODIC DA13), will be used in M109 series howitzers. The Modular Artillery Charge System (MACS) consists of two propelling charge module types, the M231 and the M232/M232A1, and their associated packaging. The system is compatible with all current and planned 155mm field artillery weapons.
7. The M82 Percussion Primer (DODIC N523) will be used in M109 series howitzers.
8. The International Field Artillery Tactical Data System is the international export version of the Army's Advanced Field Artillery Tactical Data System (AFATDS). It provides networked and fully automated support for the planning, coordination, control, and execution of fires and effects such as mortars, field artillery, rockets and missiles, and close air support. International versions are developed for each customer unique to the weapon and targeting systems in their inventory.
9. Field Artillery Ammunition Support Vehicle (FAASV) M992A2 this ammunition vehicle has no turret, but has a taller superstructure to store 95 rounds with a corresponding number of powders and primers. Until recently, much of the remaining internal crew space was taken up by a hydraulically powered conveyor system designed to allow the quick uploading of rounds or their transfer to the M109-series howitzer.
10. Heavy Equipment Recovery Combat Utility Lift and Evacuation System (HERCULES) Improved Recovery Vehicle—M88A2 recovers tanks mired to different depths removes and replaces tank turrets and power packs, and uprights overturned heavy combat vehicles. The main winch of the M88A2 is capable of a 70-ton, single-line recovery, allowing the HERCULES to provide recovery of the 70-Ton M1A2 Abrams Tank.
11. The A-frame boom and hoist winch of the M88A2 can lift 35 tons. The spade can be used to anchor the vehicle when using the main winch and can be used for light earth moving to prepare a recovery area. The M88A2 employs an auxiliary power unit to provide auxiliary electrical and hydraulic power when the main engine is not in operation. It can also be used to slave start other vehicles, as well as a means to refuel or defuel vehicles. The M88A2 can refuel Abrams tanks from its own fuel tank.
12. The Browning M2 is an air-cooled, belt-fed machine gun. The M2 fires from a closed bolt, operated on the short recoil principle. The M2 fires the .50 BMG cartridge, which offers long range, accuracy, and immense stopping power.
13. The highest level of classification of defense articles, components, and services included in this potential sale is SECRET.
14. If a technologically advanced adversary were to obtain knowledge of the hardware and software elements, the information could be used to develop countermeasures or equivalent systems, which might reduce system effectiveness or be used in the development of a system with similar or advanced capabilities.
15. A determination has been made that the recipient can provide substantially the same degree of protection for the sensitive technology being released as the U.S. Government. This sale is necessary in furtherance of the U.S. foreign policy and national security objectives outlined in the Policy Justification.
16. All defense articles and services listed in this transmittal have been authorized for release and export to the recipient.
Office of the Under Secretary of Defense for Personnel and Readiness (OUSD(P&R)), Department of Defense (DoD).
60-Day information collection notice.
In compliance with the
Consideration will be given to all comments received by May 22, 2023.
You may submit comments, identified by docket number and title, by any of the following methods:
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Military Community Advocacy, 4800 Mark Center Drive, Suite 3G15, Alexandria, VA 22350, Lisa Eaffaldano, (703) 474-8774.
Department of the Navy, Department of Defense (DoD).
60-Day information collection notice.
In compliance with the
Consideration will be given to all comments received by May 22, 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 OPNAV N1, Department of the Navy, 701 Courthouse Road, Arlington, VA 22204, ATTN: Richard Linton, Ph.D. or call 703-604-6058.
Department of Energy, Office of Science.
Notice of open meeting.
This notice announces an open virtual meeting of the Basic Energy Sciences Advisory Committee (BESAC). The Federal Advisory Committee Act requires that public notice of these meetings be announced in the
Tuesday, April 25, 2023; 11:00 a.m. to 5:00 p.m.
This meeting is open to the public. This meeting will be held virtually via Zoom. Information to participate can be found on the website closer to the meeting date at
Kerry Hochberger; Office of Basic Energy Sciences; U.S. Department of Energy; Germantown Building, 1000 Independence Avenue SW, Washington, DC 20585; Telephone: (301) 903-7661 or Email:
Breaks taken as appropriate.
Grid Deployment Office, Department of Energy.
Notice of availability of guidance and open application period.
The Department of Energy (DOE) Grid Deployment Office (GDO) gives notice of availability of guidance for the Hydroelectric Efficiency Improvement Incentives as authorized through the Energy Policy Act of 2005 (EPAct 2005), as amended by the Infrastructure Investment and Jobs Act (IIJA) of 2021, and the opening of the 2023 application period. The guidance describes the hydroelectric efficiency improvement incentives payment requirements, including application requirements, that qualified hydroelectric facilities must provide DOE when applying for hydroelectric efficiency improvement incentives.
DOE is currently accepting applications from March 22, 2023 through 5:00 p.m. ET, June 20, 2023. Applications must be submitted to the Clean Energy Infrastructure Funding Opportunity eXCHANGE located at
Interested parties are to submit applications electronically to the Clean Energy Infrastructure Funding Opportunity eXCHANGE, located at
Questions may be addressed to Ms. Luciana Ciocci, U.S. Department of Energy, Grid Deployment Office, 1000 Independence Ave. SW, Washington, DC 20585, (202) 480-5768 or by email at
The Grid Deployment Office provides notice of availability of guidance and the opening of the 2023 application period pertaining to section 243 of EPAct 2005, Hydroelectric Efficiency Improvement Incentives, as amended by section 40332 IIJA of 2021, Public Law 117-58.
The guidance document describes the application process and the information necessary for the Secretary of Energy to make incentive payments to the owners and authorized operators of qualified hydroelectric facilities at existing dams to be used to make capital improvements in the facilities that are directly related to improving the efficiency of such facilities by at least three percent pursuant to section 243 of EPAct 2005.
Under the statute, the incentive payments include the following limitations: an incentive payment shall not exceed 30 percent of the costs of the applicable capital improvement(s); no more than one incentive payment may be made to a single qualified hydroelectric facility in any fiscal year; and that shall not exceed $5,000,000.
The guidance is available at:
When submitting an application to DOE for section 243 of EPAct 2005, Hydroelectric Efficiency Improvement Incentives, it is recommended that applicants carefully read and review the completed contents of the guidance for this process. When reviewing applications, DOE may corroborate the information provided with information that DOE finds through FERC e-filings and other due diligence measures carried out by reviewing officials. DOE may require the applicant to conduct and submit an independent audit at its own expense, or DOE may conduct an audit to verify efficiency improvements claimed by the qualified hydroelectric facility.
A public webinar will be held in the coming weeks to provide clarity on the guidance document, as necessary. The webinar will be held in a question-and-answer format with registration details available at
This document of the Department of Energy was signed on March 16, 2023, by Maria Duaime Robinson, Director of the Grid Deployment Office, 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
Office of Environmental Management, Department of Energy.
Notice of open meeting.
This notice announces an in-person/virtual hybrid meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Hanford. The Federal Advisory Committee Act requires that public notice of this meeting be announced in the
Wednesday, April 19, 2023; 9 a.m.-4 p.m. PDT; Thursday, April 20, 2023; 9 a.m.-3 p.m. PDT.
This hybrid meeting will be in-person at the Red Lion Hotel, Yakima Center (address below) and virtually. To receive the virtual access information and call-in number, please contact the Federal Coordinator, Gary Younger, at the telephone number or email listed below at least five days prior to the meeting.
The meeting will be held, strictly following COVID-19 precautionary measures, at: Red Lion Hotel, Yakima Center, 607 East Yakima Avenue, Yakima, WA 98908.
Attendees should check with the Federal Coordinator (below) for any meeting format changes due to COVID-19 protocols.
Gary Younger, Federal Coordinator, U.S. Department of Energy, Hanford Office of Communications, Richland Operations Office, P.O. Box 550, Richland, WA 99354; Phone: (509) 372-0923; or Email:
Office of Environmental Management, Department of Energy.
Notice of open meeting.
This notice announces an in-person/virtual hybrid meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Nevada. The Federal Advisory Committee Act requires that public notice of this meeting be announced in the
Wednesday, April 19, 2023; 4 p.m.-8 p.m. PDT.
The opportunity for public comment is at 4:10 p.m. PDT.
This time is subject to change; please contact the Nevada Site Specific Advisory Board (NSSAB) Administrator (below) for confirmation of time prior to the meeting.
This meeting will be open to the public in-person at the Mesquite City Hall (address below) or virtually via Microsoft Teams. To attend virtually, please contact Barbara Ulmer, NSSAB Administrator, by email
Mesquite City Hall, 10 East Mesquite Boulevard, Mesquite, NV 89027.
Attendees should check the website listed below for any meeting format changes due to COVID-19 protocols.
Barbara Ulmer, NSSAB Administrator, by phone: (702) 523-0894 or email:
Hydroelectric Incentives Program, Grid Deployment Office, Department of Energy.
Notice of availability of guidance and open application period.
The U.S. Department of Energy (DOE) gives notice of updated guidance for the Energy Policy Act of 2005 Hydroelectric Production Incentives. The guidance describes the hydroelectric production incentive payment requirements and explains the type of information that owners or authorized operators of qualified hydroelectric facilities must provide DOE when applying for hydroelectric production incentive payments. The hydroelectric production incentive payments are a benefit available for electric energy generated and sold for a specified 10-year period as authorized under the Energy Policy Act of 2005. In the Infrastructure Investment and Jobs Act, DOE received $125 million to support this hydroelectric production incentive. At this time, DOE is only accepting applications from owners and authorized operators of qualified hydroelectric facilities for hydroelectricity generated and sold in calendar years 2021 and 2022.
DOE is currently accepting applications from March 22, 2023 through May 8, 2023. Applications must be submitted to the Clean Energy Infrastructure Funding Opportunity Exchange,
Interested parties are to submit applications electronically to the Clean Energy Infrastructure Funding Opportunity Exchange,
Questions may be addressed to Madden Sciubba, U.S. Department of Energy, 1000 Independence Ave. SW, Washington, DC 20585, (240) 798-1195 or by email at
In section 242 of the Energy Policy Act of 2005 (EPAct 2005; Pub. L. 109-58), as amended, Congress established a program to support the expansion of hydropower energy development at existing dams and impoundments through an incentive payment procedure for eligible facilities (section 242), codified at 42 U.S.C. 15881. Congress amended section 242 in the Energy Act of 2020 (Pub. L. 116-260) by expanding the eligibility window and amending the definition of a qualified hydroelectric facility. The Infrastructure Investment and Jobs Act of 2021 (Pub. L. 117-58) made further amendments to section 242. For this solicitation, DOE is accepting applications for payments resulting from hydroelectricity generated and sold in calendar years 2021 and 2022.
Section 242 directs the Secretary to provide incentive payments to the owners or authorized operators of hydroelectric generation facilities in accordance with specific statutory
The Secretary may only issue payments for the electric energy generated and sold by a qualified hydroelectric facility that began operations during the period of 22 fiscal years beginning after the first fiscal year occurring after the program's enactment, August 8, 2005.
In section 242, Congress defines a qualified hydroelectric facility to mean “a turbine or other generating device owned or solely operated by a non-Federal entity—(A) that generates hydroelectric energy for sale; and (B)(i) that is added to an existing dam or conduit; or (ii)(I) that has generating capacity of not more than 20 megawatts; (II) for which the non-Federal entity has received a construction authorization from the Federal Energy Regulatory Commission, if applicable; and (III) that is constructed in an area in which there is inadequate electric service, as determined by the Secretary, including by taking into consideration—(aa) access to the electric grid; (bb) the frequency of electric outages; or (cc) the affordability of electricity.”
Additionally, Congress defined an existing dam or conduit to mean any dam or conduit constructed and completed before August 8, 2005 and does not require any construction or enlargement of impoundment or diversion structures, other than repair or reconstruction, in connection with the installation of a turbine or other generating device.
Further, these defined terms apply without regard to the hydroelectric kilowatt capacity of the facility, without regard to whether the facility uses a dam owned by a governmental or nongovernmental entity, and without regard to whether the facility begins operation on or after the date August 8, 2005.
DOE notes that applicants that received incentive payments for prior calendar years must submit a new and complete application addressing all eligibility requirements for hydroelectricity generated and sold in calendar years 2021 and 2022. DOE will not consider previously submitted application materials. Applications that refer to previous application materials or statements in lieu of submitting current information will not be considered. As authorized under section 242 of EPAct 2005, and as explained in the guidance, DOE also notes that it will only accept applications from qualified hydroelectric facilities that began operations at an existing dam or conduit between October 1, 2005, and September 30, 2027.
When submitting information to DOE for the section 242 incentive, it is recommended that applicants carefully read and review the completed content of the guidance for this process. When reviewing applications, DOE may corroborate the information provided with information that DOE finds through FERC e-filings, contact with power off-taker, and other due diligence measure carried out by reviewing officials. DOE may require the applicant to conduct and submit an independent audit at its own expense, or DOE may conduct an audit to verify the number of kilowatt-hours claimed to have been generated and sold by the qualified hydroelectric facility and for which an incentive payment has been requested or made.
This document of the Department of Energy was signed on March 16, 2023, by Maria Duaime Robinson, Director, Grid Deployment Office, 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
Office of Environmental Management, Department of Energy.
Notice of open meeting.
This notice announces an in-person/virtual hybrid meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Northern New Mexico. The Federal Advisory Committee Act requires that
Wednesday, April 19, 2023; 1 p.m. to 5 p.m. MDT.
This hybrid meeting will be open to the public virtually via WebEx only. To attend virtually, please contact the Northern New Mexico Citizens Advisory Board (NNMCAB) Executive Director (below) no later than 5 p.m. MDT on Friday, April 14, 2023.
Board members, Department of Energy (DOE) representatives, agency liaisons, and Board support staff will participate in-person, following COVID-19 and influenza precautionary measures, at: Cities of Gold Hotel, Tribal Room, 10 Cities of Gold Road, Santa Fe, NM 87506.
Attendees should check with the NNMCAB Executive Director (below) for any meeting format changes due to COVID-19 protocols.
Menice B. Santistevan, NNMCAB Executive Director, by Phone: (505) 699-0631 or Email:
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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The Commission strongly encourages electronic filing. Please file comments, motions to intervene, and protests using the Commission's eFiling system at
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n. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Take notice that on March 10, 2023, Sabal Trail Transmission, LLC (Sabal Trail) requested that the Federal Energy Regulatory Commission (Commission) grant an extension of time, until May 1, 2025, to complete Phase III of their Sabal Trail Project, originally authorized in the February 2, 2016 Order Issuing Certificate Under Section 7 of the Natural Gas Act (February 2 Order).
On April 7, 2021, Sabal Trail filed a request for an extension of time, until May 1, 2023, to complete construction of the project and place Phase III of the remaining facilities—two compressor units—into service. The Commission granted that requested extension of time on June 15, 2021.
Sabal Trail now states that, due to adverse economic and logistical conditions induced, in part, by the COVID-19 pandemic, commercial progress was slowed. Sabal Trail now states that these unforeseen circumstances precluded the project from reaching full commercialization, and that additional time is now required to complete the installation of the remaining two compressor units and make them available for service.
This notice establishes a 15-calendar day intervention and comment period deadline. Any person wishing to comment on the applicant's request for an extension of time may do so. No reply comments or answers will be considered. If you wish to obtain legal status by becoming a party to the proceedings for this request, you should, on or before the comment date stated below, file a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the Natural Gas Act (18 CFR 157.10).
As a matter of practice, the Commission itself generally acts on requests for extensions of time to complete construction for Natural Gas Act facilities when such requests are contested before order issuance. For those extension requests that are contested,
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments in lieu of paper using the “eFile” link at
On July 31, 2020, the New York Power Authority (NYPA) filed an application for a new license for the Hinckley (Gregory B. Jarvis) Hydroelectric Project (project) in the above captioned docket. NYPA filed with the New York State Department of Environmental Conservation (New York DEC) a request for water quality certification for the project under section 401(a)(1) of the Clean Water Act on March 11, 2022. On March 7, 2023, New York DEC denied certification for the project. Pursuant to 40 CFR 121.8, we are providing notice that New York DEC's denial satisfies the requirements of 40 CFR 121.7(e).
Federal Energy Regulatory Commission, DOE.
Notice of information collection and request for comments.
In compliance with the requirements of the Paperwork Reduction Act of 1995, the Federal Energy Regulatory Commission (Commission or FERC) is soliciting public comment on a currently approved information collection, FERC-600 (Rules of Practice and Procedure: Complaint Procedures).
Comments on the collection of information are due May 22, 2023.
You may submit your comments (identified by Docket No. IC23-9-000) on FERC-600 by one of the following methods:
Electronic filing through
•
• For those unable to file electronically, comments may be filed by USPS mail or by hand (including courier) delivery:
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Ellen Brown may be reached by email 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.
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:
On February 26, 2021, Erie Boulevard Hydropower, L.P. (Erie) filed an application for a license for the West Canada Creek Hydroelectric Project (project) in the above captioned docket. Erie filed with the New York State Department of Environmental Conservation (New York DEC) a request for water quality certification for the project under section 401(a)(1) of the Clean Water Act on March 9, 2022. On March 7, 2023, New York DEC denied certification for the project. Pursuant to 40 CFR 121.8, we are providing notice that New York DEC's denial satisfies the requirements of 40 CFR 121.7(e).
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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b.
c.
d.
e.
f.
g.
h.
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The Commission strongly encourages electronic filing. Please file comments, motions to intervene, and protests using the Commission's eFiling system at
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
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Decisions on when and how to implement variance flows, as well as any changes under the variance, will be done in consultation and proceed with concurrence of licensee staff, California Department of Fish and Wildlife, National Marine Fisheries Service, and the U.S. Fish and Wildlife Service.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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On December 20, 2022, Saguaro Connector Pipeline, L.L.C. (Saguaro) filed an application in Docket No. CP23-29-000 requesting an Authorization pursuant to Section 3 of the Natural Gas Act to construct and operate certain natural gas pipeline facilities. The proposed project is known as the Border Facilities Project (Project), and would serve as an interconnection to export natural gas produced in Texas across the United States-Mexico International Boundary in Hudspeth County, Texas. The design capacity of the border crossing is 2.834 billion standard cubic feet per day.
On January 5, 2023, the Federal Energy Regulatory Commission (Commission or FERC) issued its Notice of Application for the Project. Among other things, that notice alerted agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on a request for a federal authorization within 90 days of the date of issuance of the Commission staff's environmental document for the Project.
This notice identifies Commission staff's intention to prepare an environmental assessment (EA) for the Project and the planned schedule for the completion of the environmental review.
If a schedule change becomes necessary, additional notice will be
Saguaro proposes to site, construct, connect, operate, and maintain a 48-inch-diameter natural gas pipeline from the United States (U.S.) to the Mexico International Border in Hudspeth County, Texas. The pipeline would extend from State of Texas land to the U.S.-Mexico international border in the middle of the Rio Grande River. The Project would consist of the installation of approximately 1,000 feet of 48-inch-diameter pipeline, establishment of a 50-foot-width permanent right-of-way, and use of approximately 14.2 acres as temporary workspaces and 6.9 miles of temporary access road.
On February 3, 2023, the Commission issued a
In order to receive notification of the issuance of the EA and to keep track of formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This service provides automatic notification of filings made to subscribed dockets, document summaries, and direct links to the documents. Go to
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 accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR
The EA contains the staff's analysis of the potential environmental impacts of the project and concludes that licensing the project, with appropriate environmental protective measures, would not constitute a major federal action that would significantly affect the quality of the human environment.
The Commission provides all interested persons with an opportunity to view and/or print the EA via the internet through the Commission's Home Page (
You may also register online at
Any comments should be filed within 30 days from the date of this notice.
The Commission strongly encourages electronic filing. Please file comments using the Commission's eFiling system at
For further information, contact John Matkowski at (202) 502-8576 or by email at
Take notice that on March 2, 2023, Columbia Gas Transmission, LLC (Columbia), 700 Louisiana Street, Suite 1300, Houston, Texas 77002-2700 filed in the above referenced docket an
In addition to publishing the full text of this document in the
Any questions concerning this application should be directed to David Alonzo, Manager, Project Authorizations, 700 Louisiana Street, Suite 1300, Houston, Texas 77002-2700 at 832-320-5477; or email at
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 5:00 p.m. Eastern Time on April 5, 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 April 5, 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 CP23-82-000 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 CP23-82-000.
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 to the applicant by mail to: David Alonzo, Manager, Project Authorizations, 700 Louisiana Street, Suite 1300, Houston, Texas 77002-2700 or by email (with a link to the document) at
Any subsequent submissions by an intervenor must be served on the applicant and all other parties to the proceeding. Contact information for parties can be downloaded from the service list at the eService link on FERC Online.
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
On March 17, 2023, the Commission issued an order in Docket No. EL23-46-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e, instituting an investigation into whether Midcontinent Independent System Operator, Inc.'s failure to update its system-wide Unforced Capacity/Intermediate Seasonal Accredited Capacity ratio is inconsistent with Schedule 53 of the Open Access Transmission, Energy and Operating Reserve Markets Tariff and may be unjust, unreasonable, unduly discriminatory or preferential, or otherwise unlawful and to establish a refund effective date.
The refund effective date in Docket No. EL23-46-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the
Any interested person desiring to be heard in Docket No. EL23-46-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214 (2022), within 5 days of the date of publication of this notice in the
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFile” link at
Take notice that on March 14, 2023, Northern Natural Gas Company (Northern), 1111 South 103rd Street, Omaha, NE 68124, filed an application pursuant to Section 7 of the Natural Gas Act (NGA) to amend the certificate issued on December 7, 2022, authorizing Northern to: (1) abandon in-place approximately 82.70 miles of 20-inch-diameter A-line and appurtenances in Boone, Webster, Wright, and Hancock counties, Iowa; and (2) install the approximately 6.04-mile extension of its 30-inch-diameter D-line extension and above-ground facilities, all with appurtenances, in Wright County, Iowa, all as more fully set forth in the request, which is on file with the Commission and open to public inspection.
Specifically, Northern has determined based on the hydraulic analysis, that existing capacity demands on the existing pipeline system can be adequately met by reducing the length of the proposed D-line Extension to 1.51 miles. In addition to reducing the length of pipeline, Northern is no longer proposing to install a pipeline inspection gauge (pig) receiver and
In addition to publishing the full text of this document in the
Any questions concerning this application should be directed to Michael T. Loeffler, Senior Director of Certificates and External Affairs for Northern, 1111 South 103rd Street, Omaha, NE 68124, by telephone at (402) 398-7103, or by email at
Pursuant to Section 157.9 of the Commission's Rules of Practice and Procedure,
There are two ways to become involved in the Commission's review of this project: you can file comments on the project, and you can file a motion to intervene in the proceeding. There is no fee or cost for filing comments or intervening. The deadline for filing a motion to intervene is 5:00 p.m. Eastern Time on March 31, 2023.
Any person wishing to comment on the project may do so. Comments may include statements of support or objections to the project as a whole or specific aspects of the project. The more specific your comments, the more useful they will be. To ensure that your comments are timely and properly recorded, please submit your comments on or before March 31, 2023.
There are three methods you can use to submit your comments to the Commission. In all instances, please reference the Project docket number CP22-42-001 in your submission.
(1) You may file your comments electronically by using the eComment feature, which is located on the Commission's website at
(2) You may file your comments electronically by using the eFiling feature, which is located on the Commission's website (
(3) You can file a paper copy of your comments by mailing them to the following address below. Your written comments must reference the Project docket number (CP22-42-001).
The Commission encourages electronic filing of comments (options 1 and 2 above) and has eFiling staff available to assist you at (202) 502-8258 or
The Commission considers all comments received about the project in determining the appropriate action to be taken. However, the filing of a comment alone will not serve to make the filer a party to the proceeding. To become a party, you must intervene in the proceeding. For instructions on how to intervene, see below.
Any person, which includes individuals, organizations, businesses, municipalities, and other entities,
To intervene, you must submit a motion to intervene to the Commission in accordance with Rule 214 of the Commission's Rules of Practice and Procedure
There are two ways to submit your motion to intervene. In both instances, please reference the Project docket number CP22-42-001 in your submission.
(1) You may file your motion to intervene by using the Commission's eFiling feature, which is located on the Commission's website (
(2) You can file a paper copy of your motion to intervene, along with three copies, by mailing the documents to the address below. Your motion to intervene must reference the Project docket number CP22-42-001.
The Commission encourages electronic filing of motions to intervene (option 1 above) and has eFiling staff available to assist you at (202) 502-8258 or
Protests and motions to intervene must be served on the applicant either by mail or email (with a link to the document) at: 1111 South 103rd Street, Omaha, NE 68124 or at
All timely, unopposed
Throughout the proceeding, additional information about the project will be available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. For more information and to register, go to
Take notice that on March 7, 2023, Texas Eastern Transmission, LP (Texas Eastern) requested that Federal Energy Regulatory Commission (Commission) grant an extension of time, until April 7, 2024, to complete its Gator Express Meter Station Project (Project). Texas Eastern received a prior notice authorization for the Project on February 7, 2022, which authorized: Texas Eastern to construct and operate interconnection facilities between Texas Eastern and Venture Global Gator Express, LLC (Gator Express) in Plaquemines Parish, Louisiana. Specifically, Texas Eastern proposed to construct a new metering and regulating facilities (M&R Facilities) which will be installed on a platform owned by Gator Express with approximately 0.2 mile of 30-inch-diameter interconnecting piping and a riser to connect Texas Eastern's Line to M&R Facilities on the Gator Express platform. The Commission's prior notice regulations require Texas Eastern to complete the construction of the Project and make it available for service within one year from issuance, or by April 8, 2023.
In Texas Eastern's request for an extension of time, Texas Eastern stated that during construction Gator Express was unable to provide Texas Eastern with access to the platform, as Gator Express experienced its own extenuating circumstances that caused its delay in constructing the platform, including severe weather. Due to the extenuating circumstances Texas Eastern requests an extension of time which to complete the Project from the one-year date of April 8, 2023, to the new projected completion date of April 8, 2024.
This notice establishes a 15-calendar day intervention and comment period deadline. Any person wishing to comment on SNG's request for an extension of time may do so. No reply comments or answers will be considered. If you wish to obtain legal status by becoming a party to the proceedings for this request, you should, on or before the comment date stated below, file a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the Natural Gas Act (18 CFR 157.10).
As a matter of practice, the Commission itself generally acts on requests for extensions of time to complete construction for Natural Gas Act facilities when such requests are contested before order issuance. For those extension requests that are contested,
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFile” link at
Comment Date: 5:00 p.m. Eastern Time on March 31, 2023.
On March 16, 2023, the Commission issued an order in Docket No. EL23-31-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e, instituting an investigation into whether Commonwealth Edison Company's formula rate protocols are unjust, unreasonable, unduly discriminatory or preferential, or otherwise unlawful.
The refund effective date in Docket No. EL23-31-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the
Any interested person desiring to be heard in Docket No. EL23-31-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214 (2022), within 21 days of the date of issuance of the order.
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFile” link at
This is a supplemental notice in the above-referenced proceeding of AmeriPro Energy Corp.'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 5, 2023.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in
In addition to publishing the full text of this document in the
Environmental Protection Agency (EPA).
Notice of proposed agreement; request for public comment.
Notice is hereby given by the U.S. Environmental Protection Agency (EPA), Region 8, of a prospective lessee agreement between the United States, the State of South Dakota, Agnico Eagle Mines Limited, and Agnico Eagle (USA) Limited (collectively “Agnico”), at the Gilt Edge Mine Superfund Site in Lawrence County, South Dakota (Agreement). The agreement provides that Agnico will perform a reuse assessment, including surface and subsurface sampling, and pay at least $2.5 million annually to cover the cost of water treatment and site operations at the Gilt Edge Mine Site during the pendency of the Agreement. In exchange, the United States and the State of South Dakota covenant not to sue Agnico for Existing Contamination, work (including subsurface and surface sampling) conducted by Agnico, and certain payments as defined in the agreement.
Comments must be submitted on or before April 21, 2023.
The proposed agreement and additional background information relating to the agreement will be available upon request and will be posted at
You may also send comments, identified by Docket ID No. EPA-R08-SFUND-2022-0281 to
Amelia Piggott, Assistant Regional Counsel, Office of Regional Counsel, Environmental Protection Agency, Region 8, Mail Code 8 ORC-LEC, 1595 Wynkoop, Denver, Colorado 80202, telephone number: (303) 312-6410, email address:
For thirty (30) days following the date of publication of this document, the Agency will receive written comments relating to the agreement. The Agency will consider all comments received and may modify or withdraw its consent to the agreement if comments received disclose facts or considerations that indicate that the agreement is inappropriate, improper, or inadequate.
Environmental Protection Agency, Office of Radiation and Indoor Air.
Notice of availability; opening of a 60-day public comment period.
The Environmental Protection Agency (EPA) seeks input on criteria to help align and ensure consistency across radon service provider credentialing programs operated by certification bodies and states. The criteria reflect stakeholder feedback received in response to a 2017
Comments may be submitted on or before May 22, 2023.
You may send comments, identified by Docket ID No. EPA-HQ-OAR-2017-0430 by any of the following methods:
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Katrin Kral, Indoor Environments Division, Office of Radiation and Indoor Air 6609T, Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; 202-343-9454;
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2017-0430, at
Once submitted, comments cannot be edited or removed from the docket. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (
• Identify the notice by docket number, subject heading,
• Provide a brief description of yourself and your role or organization before addressing the questions.
• Identify the question(s) you are responding to from the KEY QUESTIONS section by question number when submitting your comments. You do not need to address every question.
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow it to be reproduced.
• Illustrate your concerns with specific examples and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.
Radon is the second leading cause of lung cancer in the United States and responsible for an estimated 21,000 deaths each year. One in 15 U.S. homes is estimated to have elevated radon levels. Radon-induced lung cancer is highly preventable and may be addressed by testing and mitigating homes when necessary. Professionals who provide radon testing and mitigation services play a key role in public health protection efforts. Because of the substantial risk resulting from exposure to radon, a naturally occurring radioactive gas, it is critical for radon service providers to possess the necessary skills to provide quality services, ensure consumer protection, and protect public health.
Since 1988, the EPA has administered a non-regulatory program under the Indoor Radon Abatement Act of 1988 (IRAA)
An August 2017
The Proposed Radon Credentialing Criteria document
The Evaluation Framework is grounded in conformity assessment practices designed to promote consistency across credentialing programs operated by certification bodies and states. This is accomplished through specifications for the maintenance of credentialing programs and radon measurement and mitigation service provider job categories, including identification of radon service provider competencies and assessment methods. Service providers who achieve
The Implementation Approach will facilitate identification of qualified radon service providers meeting a standardized set of specifications outlined within the Evaluation Framework. The Implementation Approach outlines the EPA's planned activities to facilitate adoption of the Evaluation Framework specifications:
• Develop and maintain a process by which credentialing organizations (certification bodies and state-run programs) can annually attest that they meet the Evaluation Framework specifications.
• Maintain a public list of credentialing organizations and accreditation bodies that meet the framework (see TSCA § 305(a)).
• Establish conditions for the State and Tribal Indoor Radon Grants (SIRG) program. It is important to note that IRAA does not provide the EPA with authority to require actions on the part of state or tribal governments. Nonetheless, the EPA may set conditions for receiving funding as part of the SIRG Program, which is authorized under IRAA, that are consistent with the purpose of the Act.
Taken together, the Evaluation Framework and Implementation Approach will help standardize program-specific competencies for credentialing radon service providers and facilitate access to and identification of a skilled and qualified workforce demonstrating a consistent set of competencies to perform radon testing and mitigation.
Comments will inform development of a final version of the Radon Credentialing Criteria to help align and ensure consistency across credentialing programs operated by certification bodies and states. Widespread adherence to the Evaluation Framework as reinforced by the Implementation Approach will support standardization of quality among radon service provider credentials and credentialing organizations, help maximize the utility of the SIRG program by providing assistance to states in a manner that will facilitate access to—and identification of—radon service providers credentialed by organizations meeting a consistent set of specifications, and support streamlined approaches to addressing provider credentials within radon testing/mitigation polices. This in turn may lead to increased consumer confidence in, and demand for, radon service providers, as well as expanded markets for radon service providers.
As mentioned previously, the EPA is particularly interested in feedback on Sections III (Evaluation Framework) and IV (Implementation Approach) of the Proposed Radon Credentialing Criteria document, which is available in the docket. The KEY QUESTIONS section contains specific information requests on these two sections (III and IV).
The Agency is seeking comment from stakeholders working to reduce exposure to indoor radon. This includes stakeholders involved with promoting and/or conducting testing and installation of radon mitigation systems, such as:
These questions pertain to Sections III and IV of the Proposed Radon Credentialing Criteria document. In addition to responding to specific requests for comments below, commenters are welcome to share any overarching feedback.
1. Do you have any general feedback on the Evaluation Framework (Accreditation, Examination and Maintenance)?
2. What features of the Evaluation Framework may positively and/or negatively impact a state's ability to make any necessary modifications within their organizational structures to ensure adherence of the state-run program to the Evaluation Framework specifications?
3. Will creation of certifications and examinations for the measurement and mitigation service provider categories be sufficient for state-run programs seeking to meet the Evaluation Framework?
4. Should independent certification bodies that meet the Evaluation Framework be required to create certifications and examinations for two job categories (measurement and mitigation) and two job sub-types distinguishing roles for an entry-level technician position and a more senior/supervisory specialist position?
5. Is the proposed stakeholder representation on the expert panel adequate? Stakeholders identified to serve on a panel responsible for developing a job task analysis are considered essential to ensure appropriate representation of the entire population of stakeholders that contribute to, and/or participate in, the credentialing of radon service providers. Additional stakeholder groups (
6. Should radon service providers be required to complete a device performance test as a requirement to receiving a credential for radon measurement service provider job categories?
These performance tests are designed to evaluate a provider's proficiency using an analytical device. This type of performance test would be incorporated into the Evaluation Framework as part of the “Examination” component. Credentialing organizations would be required to verify and validate how the performance test accurately and reliably assesses the task(s) identified in the job task analysis, as well as how it aligns with the applicable American National Standard which specifies minimum performance criteria and testing procedures for instruments and/or systems designed to quantify the concentration of radon-222 gas in air (MS-PC, Performance Specifications for Instrumentation Systems Designed to Measure Radon Gas in Air).
7. How frequently should providers be required to verify use of approved testing devices (when applicable) and maintenance of a Quality Assurance Plan?
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• Conditions for the EPA's SIRG Program.
8. Do you have any general feedback on the Implementation Approach?
9. Will a 3-year phase-in period will be sufficient for certification bodies to prepare for and achieve third-party accreditation and meet the Evaluation Framework and for state-run programs to meet the Evaluation Framework?
10. Do you have feedback on the size and impact of the costs associated with third-party accreditation to ISO/IEC 17024:2012?
11. Do you have feedback regarding the proposed annual attestation process?
12. What reporting mechanisms should the EPA consider for state-run programs to provide annual progress updates and attestations once the Evaluation Framework has been met?
13. Do you have feedback regarding the proposal for the EPA to maintain a public list?
14. Should the EPA identify on its website the credentialing organizations that have declared their intent, but do not yet meet, the Evaluation Framework? In this case credentialing organizations that do not meet all the requirements at the end of the 3-year phase-in period would be removed from the website until such time as they can demonstrate their ability to meet all the requirements of the Evaluation Framework.
15. Do you have feedback regarding the proposal to establish conditions for the SIRG program?
Environmental Protection Agency (EPA).
Notice.
The EPA Science Advisory Board (SAB) Staff Office announces two public meetings of the Clean Air Scientific Advisory Committee (CASAC) Lead Panel. A public meeting will be held for the CASAC Lead Panel to receive a briefing from EPA on the
The briefing from EPA on the Lead ISA will be held on April 11, 2023, from 11:00 a.m. to 3:00 p.m. The public meeting for the panel to peer review the Lead ISA and provide a consultation on the Lead IRP Volume 3 will be held on Tuesday, June 13, 2023, from 8:00 a.m. to 5:00 p.m. and Wednesday, June 14, 2023, from 8:00 a.m. to 5:00 p.m. All times listed are in Eastern Time.
The briefing on April 11, 2023, will be conducted virtually. Please refer to the CASAC website at
Any member of the public wishing further information regarding this notice may contact Mr. Aaron Yeow, Designated Federal Officer (DFO), SAB Staff Office, by telephone at (202) 564-2050 or via email at
The CASAC is a Federal Advisory Committee chartered under the Federal Advisory Committee Act (FACA), 5 U.S.C., App. 2, and conducts business in accordance with FACA and related regulations. The CASAC and the CASAC Lead Panel will comply with the provisions of FACA and all appropriate SAB Staff Office procedural policies. Pursuant to FACA and EPA policy, notice is hereby given that the CASAC Lead Panel will hold a public meeting to receive a briefing from EPA on the Lead ISA and a public meeting for the panel to peer review the Lead
Office of Mission Support (OMS), Environmental Protection Agency (EPA).
Notice of a modified system of records.
The U.S. Environmental Protection Agency's (EPA) Office of Mission Support (OMS) is giving notice that it proposes to modify a system of records pursuant to the provisions of the Privacy Act of 1974. The Office of Administrative Services Information System (OASIS) is being modified to update safeguard infrastructure and security measures, and add Routine Uses.
Persons wishing to comment on this system of records notice must do so by April 21, 2023. New routine uses for this modified system of records will be effective April 21, 2023.
Submit your comments, identified by Docket ID No. EPA-HQ-OEI-2006-0633, by one of the following methods:
James Cunningham,
EPA uses OASIS as a secure platform to provide software services to EPA employees using EPA's intranet, including a secure database for the software modules the system supports. EPA is updating this SORN to reflect how OASIS has modernized its operating system platform, implemented a more secure method for user authentication, and completed a review and update to the software modules the system supports. EPA is removing the following OASIS software modules that are no longer in use: Physical Security; Warehouse Management; Fitness Center Management; Combo Locks, Incidents, Keys and Safe System; and Personnel Security System. EPA is updating the following OASIS software modules with no impact to personally identifiable information (PII): Building Service Desk, Credential Badging, Driver Tracking, Mail Center, National Security Information, and Parking System (previously Parking and Transit System). EPA is adding the following OASIS software modules with no addition of new PII data elements: Environmental Health and Safety, HQ Project Management, Incident Reporting, Print Request Form, Print Request Tracking, PSS1 Archive, Transit Management, Transit Subsidy Program Enrollment, USA Performance (USAP), and User Management. All OASIS modules were updated to incorporate Multi-Factor Authentication (MFA). Additionally, EPA is updating this SORN to add Routine Uses L and M per updated OMB requirements.
Office of Administrative Services Information System (OASIS), EPA-41.
Unclassified.
The system is managed by the Office of Mission Support, EPA, 1301 Constitution Ave. NW, Washington, DC 20460. Electronically stored information is hosted at the EPA National Computer Center (NCC), 109 TW Alexander Drive, Research Triangle Park, Durham, NC 27711.
James Cunningham, Information Technology Project Manager, 1301 Constitution Ave. NW, Washington, DC 20460,
E-Government Act of 2002 (Pub. L. 104-347); the Paperwork Reduction Act of 1995, as amended (44 U.S.C. 3501,
The purpose of OASIS is to administer and manage administrative resources for the EPA. There are nineteen OASIS software modules. Each module's business purpose is described in the following table:
Categories of individuals covered by this system include current and former Agency federal employee, contractors, grantees, interns, and volunteers.
Categories of records include: personal information such as name, home address, telephone number, workforce ID, work location, position, date of birth, city of birth, and Social Security Number (SSN); work-related information such as work address, work telephone number, organization/office assignment, application role(s), email address, and company name; personnel security records such as the results of a background investigation, and information derived from documents used to verify applicant's identity; security incident related information such as names, incident date, type, description, contact information, employment type; physical security information such as building vulnerabilities, mitigations, costs associated with mitigation, and risk designation levels at various EPA locations; driver tracking information such as EPA vehicle license plate numbers, service records, driver name, trip type, pickup date, and number of passengers utilizing Agency buses; parking and transit information such as carpool members' names, addresses, work addresses, license plate numbers, and type of cars as well as transit subsidy information such as subsidy amount, possession of a registered Smart Trip card, and serial number of Smart Trip card if registered; Mail Center Management information used to track registered mail, including mailing address of the recipient and sender, name of individual who signed for the piece of mail, date and time mail was signed for, and costs of postage for each office; printing information such as name and telephone number of the office requesting print jobs, the budget associated with the print job, and completion and delivery of the print job; physical asset information such as asset name, ID, type, location, address, legal interest, primary use and disposition; and print request information such as originator name, work phone number, mail code, title, statistics, data requested, date submitted, and estimated cost.
Personnel information is obtained from EPA's Office of Human Resources (OHR). Remaining information is obtained from users and managers for each OASIS module.
The routine uses below are both related to and compatible with the original purpose for which the information was collected. The following general routine uses apply to this system (86 FR 62527): A, B, C, D, E, F, G, H, I, J, K, L, and M.
Records are maintained electronically on computer storage devices, located at U.S. EPA National Computer Center, 109 T.W. Alexander Drive, Research Triangle Park, NC 27711. Paper records are not collected nor maintained for OASIS.
Only users authorized to use the National Security Information (NSI) module can retrieve information by SSN. Other modules require one or more of the following fields to retrieve records: Name, Work Force ID, LAN ID, Personnel ID, Email Address, Smart Trip Number, Incident Number, Business Service Desk (BSD) Ticket Number, Asset ID, or Project Number.
Records are retained and disposed of in accordance with EPA's records control schedule approved by the National Archives and Records Administration (NARA): EPA Record Schedules 0740 and 0063.
Security controls used to protect personal sensitive data in OASIS are commensurate with those required for an information system rated MODERATE for confidentiality, integrity, and availability, as prescribed in National Institute of Standards and Technology (NIST) Special Publication, 800-53, “Security and Privacy Controls for Information Systems and Organizations,” Revision 5.
All requests for access to personal records should cite the Privacy Act of 1974 and reference the type of request being made (
Requests for correction or amendment must include: (1) the name and signature of the individual making the request; (2) the name of the Privacy Act system of records to which the request relates; (3) a description of the information sought to be corrected or amended and the specific reasons for the correction or amendment; and (4) proof of identity. A full description of EPA's Privacy Act procedures for the correction or amendment of a record is included in EPA's Privacy Act regulations at 40 CFR part 16.
Individuals who wish to be informed whether a Privacy Act system of records maintained by EPA contains any record pertaining to them, should make a written request to the EPA, Attn: Agency Privacy Officer, MC 2831T, 1200 Pennsylvania Ave. NW, Washington, DC 20460, or by email at:
None.
71 FR 51814 (August 31, 2006).
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
The FDIC, as part of its obligations under the Paperwork Reduction Act of 1995, invites the general public and other Federal agencies to take this opportunity to comment on the request to renew the existing information collections described below (OMB Control No. 3064-0029, -0112, -0125, and -0177). The notices of the proposed renewal for these information collections were previously published in the
Comments must be submitted on or before April 21, 2023.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
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Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Manny Cabeza, Regulatory Counsel, 202-898-3767,
Proposal to renew the following currently approved collection of information:
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Burden Estimate:
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3.
4.
While there is no change in the substance of the information collection, the ICR is being revised to reflect the re-categorization of the PRA requirements in 12 CFR 360.6 into five distinct ICs. The additional IC was added to this ICR to recognize the periodic credit performance disclosure requirement.
Appraisal Subcommittee of the Federal Financial Institutions Examination Council (ASC).
Notice and request for comment.
The ASC is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, ASC is requesting comments from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Comments will be accepted until May 22, 2023.
Commenters are encouraged to submit comments by the Federal eRulemaking Portal or email, if possible. You may submit comments, identified
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In general, the ASC will enter all comments received on the Federal eRulemaking (
Lori Schuster, Management and Program Analyst,
This notice informs the public that the ASC is seeking approval from OMB for the information collection described in Section A below.
This
Qualitative interviews with up to 75 respondents will take approximately 60 minutes to complete.
To arrive at the dollar cost of the estimated response burden, we have used estimates from the BLS on average hourly earnings in May 2021 for Property Appraisers and Assessors.
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 would achieve the ASC's stated goals as discussed above or is there is another method that the ASC should consider;
(2) The accuracy of the ASC'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 with appropriate automated collection techniques or other forms of information technology (
ASC encourages interested parties to submit comments in response to these questions.
Sections 3506(c)(2)(a) and 3507 of the Paperwork Reduction Act of 1995 (44 U.S.C. 3506(c)(2)(a) and 3507); 12 U.S.C. 3332 and 12 U.S.C. 3335.
By the Appraisal Subcommittee.
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 6, 2023.
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1.
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Board of Governors of the Federal Reserve System.
The companies listed in this notice have applied to the Board for approval, pursuant to the Home Owners' Loan Act (12 U.S.C. 1461
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 21, 2023.
1.
Board of Governors of the Federal Reserve System.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
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 21, 2023.
1.
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), announces the award of approximately $12,000,000, for Year 1 funding to the Ethiopian Public Health Institute (EPHI). The award will address gaps identified in national HIV laboratory and surveillance systems and pave the way for HIV epidemic control in Ethiopia.
The period for this award will be September 30, 2023, through September 29, 2028. Funding amounts for years 2-5 will be set at continuation.
Yared Tedla, Center for Global Health, Centers for Disease Control and Prevention, U.S. Embassy, P.O. Box
The single-source award will support an integrated laboratory system for multiplexing testing of HIV, TB, and other pathogens in an optimized diagnostic network using point-of-care or conventional platforms. Routine viral load monitoring will be scaled up to reach all eligible clients on treatment, with consideration of alternate specimen collection modalities, and cold chain infrastructure.
The Ethiopian Public Health Institute (EPHI) is in a unique position to conduct this work, as it is the sole federal government agency accountable to the Ministry of Health (MOH) that is mandated to oversee and coordinate the following main areas of work: undertake research; generate, absorb and disseminate scientific knowledge to improve public health; conduct surveillance for detection and monitoring of public health risks; ensure adequate response to public health emergencies; and strengthen national laboratory capacity to support effective public health responses, carryout diagnostic and analytical tests, and build laboratory capacity nationwide to enable the provision of quality laboratory services.
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), announces the award of approximately $10,000,000, for Year 1 funding to the Government of Botswana (GOB). The award will strengthen GOB capacity to develop and implement programmatic activities that orient the Ministry of Health (MOH) towards ensuring ownership, accountability, and capacity to manage a sustained HIV national response, decrease TB/HIV morbidity and mortality, and improve capacity to effectively respond to emerging diseases of public health interest.
The period for this award will be September 30, 2023, through September 29, 2028. Funding amounts for years 2-5 will be set at continuation.
Lisa Esapa, Center for Global Health, Centers for Disease Control and Prevention, PO Box 90 Gaborone, Botswana, Telephone: +267 71337799, E-Mail:
The single-source award will prioritize helping the Government of Botswana (GOB) to sustain epidemic control and build enduring capabilities for the Ministry of Health (MOH).
GOB is in a unique position to conduct this work, as it has the authority to lead and coordinate provision of HIV services in the country.
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), announces the award of approximately $8,000,000, for Year 1 funding to the Gambella Regional Health Bureau (GRHB). The award will improve the capacity of HIV program management and quality of health services to attain epidemic control in the Gambella Regional State of Ethiopia.
The period for this award will be September 30, 2023, through September 29, 2028. Funding amounts for years 2-5 will be set at continuation.
Matthew Brown, Center for Global Health, Centers for Disease Control and Prevention, U.S. Embassy, P.O. Box 1014, Addis Ababa, Ethiopia, Telephone: 404-806-9619, E-Mail:
The single-source award will support the delivery of comprehensive HIV prevention, care and treatment activities in the Gambella region of Ethiopia.
The Gambella Regional Health Bureau (GRHB) is in a unique position to conduct this work, as it is the only government entity with a legal authority and mandate to plan, manage, administer, and coordinate all health-related activities in Gambella.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice.
The Centers for Disease Control and Prevention (CDC), located within the Department of Health and Human Services (HHS), announces the award of approximately $1,000,000, for Year 1 funding to the Public Health Institute of Malawi (PHIM). The award will allow PHIM to efficiently execute Malawi's essential public health functions at national and subnational levels and sustain gains achieved for HIV.
The period for this award will be September 30, 2023, through September 29, 2028. Funding amounts for years 2-5 will be set at continuation.
Nellie Wadonda-Kabondo, Center for Global Health, Centers for Disease Control and Prevention, C/O American Embassy, Box 30016, Lilongwe, Telephone: +265882991033, EMail:
The single-source award will enhance national HIV surveillance and response and strengthen the public health infrastructure and capacity to respond to public health threats and events, including infectious disease outbreaks, pandemics, and other public health emergencies.
The Public Health Institute of Malawi (PHIM) is in a unique position to conduct this work, as The Government of Malawi through the Ministry of Health (MOH) established PHIM in November 2012 with a view to creating a center of excellence on public health that contributes towards quality and productive life of all Malawians.
Administration for Children and Families, HHS
Notice.
The Administration for Children and Families (ACF) has added a new office, the Office of Family Violence Prevention and Services, to the Office of the Assistant Secretary for Children and Families and transfers the functions of the Division of Family Violence Prevention and Services to this office. Within the Administration on Children, Youth and Families (ACYF), it renames the Office of Management Services to the Executive Office. Within the Family and Youth Services Bureau (FYSB), it renames the Division for Optimal Adolescent Development to the Division of Positive Youth Development and renames the Division of Evaluation, Data, and Policy to the Division of Data, Performance, and Policy. It also creates an Office of Budget in the Office of the Assistant Secretary for Children and Families.
This reorganization was approved by the Secretary of Health and Human Services on March 1, 2023, and took effect on March 17, 2023.
Shawndell Dawson, Division of Family Violence Prevention and Services, 330 C Street SW, Washington, DC 20201, (202) 205-1476.
This notice amends Part K of the Statement of Organization, Functions, and Delegations of Authority of the Department of Health and Human Services (HHS), Administration for Children and Families (ACF) as follows: Chapter KA, Office of the Assistant Secretary for Children and Families, as last amended by 85 FR 52607, March 26, 2020, and Chapter KB, Administration on Children, Youth and Families (ACYF), as last amended in 85 FR 15785, March 19, 2020. The changes are as follows:
I. Under Chapter KA, Office of the Assistant Secretary for Children and Families, make the following changes:
A. Delete KA.00 Mission in its entirety and replace with the following:
KA.00 Mission. The Office of the Assistant Secretary for Children and Families (OAS) provides executive direction, leadership, and guidance for all ACF programs. OAS provides national leadership to develop and coordinate public and private initiatives for carrying out programs that promote permanency placement planning, family stability, and self-sufficiency. OAS advises the Secretary on issues affecting America's children and families, including Native Americans, refugees, survivors of domestic violence, youth experiencing homelessness, children and families in the child welfare system, and survivors of human trafficking. OAS provides leadership and coordination on human services and early childhood
B. Delete KA.10 Organization in its entirety and replace with the following:
KA.10 Organization. The Office of the Assistant Secretary for Children and Families is headed by the Assistant Secretary for Children and Families who reports directly to the Secretary and consists of:
C. Establish KA.20 Functions, Paragraph F, The Office of Budget:
F. The Office of Budget manages the formulation and execution of the budgets for OAS programs and OAS' portion of the federal administration budget, serves as the central control point for operational and long range planning, manages procurement planning and provides technical assistance regarding procurement, acquires OAS supplies, provides oversight and technical assistance on funds planning for travel expenditures and travel administration on obligation and payment issues, monitors the obligation and expenditure of OAS funds through the lifecycle of the appropriations, and provides leadership and advice on financial policy issues that cut across all the OAS program and funding mechanisms.
D. Establish KA.20 Functions, Paragraph G, The Office of Family Violence Prevention and Services:
G. The Office of Family Violence Prevention and Services (KAJ):
The Office of Family Violence Prevention and Services (OFVPS) is responsible for the overall leadership of family violence, domestic violence, and dating violence prevention, intervention, response, and awareness programs and services under the purview of ACF. The OFVPS serves as an advisor to the Assistant Secretary, ACF, recommending policy strategies and interagency collaborations to address the coordination of services involving domestic violence survivors and their children. Under the leadership of the Assistant Secretary, ACF, OFPVS assesses policies and legislation, and develops program initiatives for domestic violence and dating violence prevention and services. OFVPS recommends budgetary and legislative proposals and subject areas for research/evaluation and demonstration activities, and it coordinates efforts with and provides expert advice to departmental and other federal agencies on issues and programs for survivors of domestic violence and their children. The OFVPS promotes public awareness about family violence, domestic violence, and dating violence. The OFVPS also promotes awareness about the impact of family violence, and effective prevention and intervention strategies to address the problem. The OFVPS programs provide immediate shelter and related assistance to survivors of domestic violence, dating violence, and family violence and their dependents; provide for research into the most effective methods of domestic violence prevention, identification, and intervention; and provide training and technical assistance to domestic violence and dating violence programs including states, territories, tribes, coalitions, culturally specific organizations, rural communities, faith-based organizations, local public agencies (such as early childhood programs, social service agencies, child welfare programs, mental health and substance abuse treatment programs, and health care providers), and non-profit organizations. The OFVPS provides support for the National Domestic Violence Hotline, which operates 24 hours a day, 7 days a week and is available in 200 languages, including services in Spanish, video and/or text chat for Deaf and Hard of Hearing survivors, and culturally specific response to Native American victims by Native advocates. The OFVPS supports the development of services to address the needs of children exposed to domestic violence and their abused parents.
The OFVPS is responsible for developing, updating, and implementing program regulations and policies. The OFVPS oversees the receipt and review of applications for formula and discretionary grants and grantee activities. It also provides guidance, review, support, and assistance to states, territories, tribes, coalitions, resource centers, hotlines, and sub awardees on HHS policies, regulations, procedures, and systems necessary to ensure efficient program operation at the state, territorial, tribal, and community levels. In addition, the OFVPS coordinates shelter and supportive service programs for survivors and potential victims of domestic violence, dating violence, and family violence and their dependents. OFVPS also represents ACF and HHS on various councils, workgroups, and committees and provides leadership and coordination to other ACF and HHS programs and agencies to better meet the needs of domestic violence and dating violence survivors.
II. Under Chapter KB, Administration on Children, Youth and Families, delete KB in its entirety and replace with the following:
KB.00 Mission. The Administration on Children, Youth and Families (ACYF) advises the Secretary, through the Assistant Secretary for Children and Families, on matters relating to the sound development of children, youth, and families by planning, developing, and implementing a broad range of activities that prevent or remediate the effects of trauma, abuse, and/or neglect of children and youth and promote child, adolescent, and family wellbeing.
ACYF administers state grant programs under titles IV-B and IV-E of the Social Security Act, manages the Adoption Opportunities program and other discretionary programs for the development and provision of child welfare services, and implements the Child Abuse Prevention and Treatment Act (CAPTA). It administers programs under the Runaway and Homeless Youth Act and manages prevention programs that support positive adolescent development and wellbeing authorized through Title V of the Social Security Act under Section 510 for Sexual Risk Avoidance Education and Section 513 for Personal Responsibility Education Program.
In concert with other components of ACF, ACYF develops and implements research, demonstration, and evaluation strategies for the discretionary funding of activities designed to improve and enrich the lives of children and youth and to strengthen families. It administers Child Welfare Services training and research and demonstration programs authorized by title IV-B of the Social Security Act and oversees promising youth development programs.
KB.10 Organization. The Administration on Children, Youth and Families is headed by a commissioner, who reports directly to the Assistant Secretary for Children and Families, and consists of:
KB.20 Functions. A. The Office of the Commissioner serves as principal advisor to the Assistant Secretary for Children and Families, the Secretary, and other officials of the Department on the sound development of children, youth, and families. It provides executive direction and management strategy to ACYF components. The Deputy Commissioner assists the Commissioner in carrying out the responsibilities of the Office. The Office of the Commissioner is comprised of two offices:
The Executive Office functions as Executive Secretariat for the Office of the Commissioner, including managing correspondence, correspondence systems, and electronic mail requests; coordinates the provision of staff development and training; provides support for ACYF's personnel administration, including staffing, employee and labor relations, performance management, and employee recognition; manages ACYF-controlled space and facilities; performs manpower planning and administration; plans for, distributes, and controls ACYF supplies; provides mail and messenger services; maintains duplicating, fax, and computer and computer peripheral equipment; supports and manages automation within ACYF; provides for health and safety; and oversees travel administration, time and attendance, and other administrative functions for ACYF.
The Office of Budget manages the formulation and execution of the budgets for ACYF programs and for federal administration, serves as the central control point for operational and long range planning, manages procurement planning and provides technical assistance regarding procurement, acquires ACYF supplies, provides oversight and technical assistance on funds planning for travel expenditures and travel administration on obligation and payment issues, monitors the obligation and expenditure of ACYF funds through the lifecycle of the appropriations, and provides leadership and advice on financial policy issues that cut across all the ACYF program and funding mechanisms.
B. The Children's Bureau (CB) is headed by an Associate Commissioner who advises the Commissioner, ACYF, on matters related to the administration of state and tribal child welfare systems, including child abuse and neglect, child protective services, family preservation and support, adoption, foster care and independent living, and child abuse and neglect prevention. A Deputy Associate Commissioner supports the Associate Commissioner and manages the day-to-day operations of the CB. CB recommends legislative and budgetary proposals, operational planning system objectives and initiatives, and projects and issue areas for evaluation, research, and demonstration activities. CB represents ACYF in initiating and implementing interagency activities and projects affecting children and families, and provides leadership and coordination for the programs, activities, and subordinate components of the Bureau. The Bureau is comprised of eight units:
The Regional Program Unit is headed by the Director of Regional Programs who reports to the Deputy Associate Commissioner, CB, within ACYF. The Director of Regional Programs, through subordinate Regional Program Managers and their staff, in collaboration with program components, is responsible for (1) providing program and technical administration of CB formula, entitlement, block, and discretionary programs related to child welfare, including child abuse and neglect prevention, child protective services, family preservation and support, adoption, foster care, and independent living; (2) collaborating with the ACF Central Office, states, and grantees on all program matters for programs or issues that have significant implications for the programs; (3) providing technical assistance to entities responsible for administering CB programs to resolve identified problems; (4) ensuring that appropriate procedures and practices are adopted; (5) working with appropriate state and local officials to develop and implement outcome-based performance measures; and (6) monitoring the programs to ensure their efficiency and effectiveness, and ensuring that these entities conform to federal laws, regulations, policies, and procedures governing the programs.
The Office on Child Abuse and Neglect provides leadership and direction on the issues of child maltreatment and the prevention of abuse and neglect under CAPTA. It is the focal point for interagency collaborative efforts, national conferences, and special initiatives related to child abuse and neglect, and for coordinating activities related to the prevention of abuse and neglect and the protection of children at risk of maltreatment. It supports activities to build networks of community-based, prevention-focused family resource and support programs through the Community-Based Child Abuse Prevention Grants. It supports improvement in the state systems that handle child abuse and neglect cases, particularly child sexual abuse and exploitation- and maltreatment-related fatalities, and improvement in the investigation and prosecution of these cases through the Children's Justice Act.
The Division of Policy provides leadership and direction in policy development and interpretation of titles IV-B and IV-E of the Social Security Act and the Basic State Grant under CAPTA. It writes regulations and interprets policy for the Bureau's formula and entitlement grant programs and responds to requests for policy clarification from ACF Regional Offices and other sources.
The Division of Program Implementation provides leadership and direction in the operation and review of programs under titles IV-B and IV-E of the Social Security Act and the Basic State Grant under CAPTA. It develops program instructions, information memoranda, and annual reports related to these programs. It analyzes State Plans and develops state profiles and other reports. It is responsible for the Monitoring Team, which schedules and coordinates the monitoring of the state title IV-E reviews and ensures effective corrective action if necessary. It is the focal point for financial issues, including disallowances, appeals, and the decisions of the Departmental Appeals Board (DAB).
The Division of Program Innovation provides leadership and direction in program development, innovation, and research. It defines critical issues for investigation and makes recommendations regarding subject areas for research, demonstration, and evaluation. It administers the Bureau's discretionary grant programs and awards project grants to state and local agencies and organizations nationwide.
The Division of Child Welfare Capacity Building provides leadership
The Division of State Systems (DSS) reviews, assesses, and inspects the planning, design, and operation of state management information systems and approves advanced planning documents for automated data systems. The Division provides leadership for the provision of technical assistance to states on information systems projects and advances the use of computer technology in the administration of child welfare and social services programs by states. The Division reviews, analyzes, and approves/disapproves state requests for federal financial participation for automated systems development and related activities that support child welfare programs, including foster care and adoption. It provides assistance to states in developing or modifying automation plans to conform to federal requirements, monitors approved state system development activities, and conducts periodic reviews to ensure state compliance with regulatory requirements applicable to automated systems supported by federal financial participation. It provides guidance to states on functional requirements for these automated information systems.
The Division of Performance Measurement and Improvement provides oversight in the collection, analysis, and reporting of state-level data reported to CB through mandated data collections; oversees an outcomes-oriented review of state child welfare systems; and sets, tracks, and reports on performance indicators in response to the Government Performance and Results Act and other performance-oriented mandates. The Division is comprised of two teams. The Data Analytics and Reporting Team collects, analyzes, and disseminates program data from the Adoption and Foster Care Analysis and Reporting System (AFCARS), the National Youth in Transition Database (NYTD), and the National Child Abuse and Neglect Data Systems (NCANDS); ensures accuracy of data reporting; develops systematic methods of measuring the impact and effectiveness of various child welfare programs; and performs statistical sampling functions. The Child and Family Services Review Team, in partnership with CB's Regional Program Units, carries out reviews of child protection, foster care, adoption, family preservation, family support, and independent living services provided by the states. The Child and Family Services Review Team ensures the accuracy and consistency of the review protocol across all states of the review process and in subsequent program improvement efforts.
C. The Family and Youth Services Bureau (FYSB) is headed by an Associate Commissioner who recommends policy direction and programs to address issues involving vulnerable, at-risk youth and their families to the Commissioner, ACYF. FYSB supports the organizations and communities working to prevent and respond to youth homelessness, youth at risk of trafficking and sexual exploitation, and promote positive adolescent health and development through programs that provide shelter, community services, and prevention education for youth, adults, and families.
A Deputy Associate Commissioner supports the Associate Commissioner and manages the day-to-day operations of FYSB. The Bureau assesses and recommends policies, data and performance measures, and legislation and develops program initiatives to support youth who have or are at-risk of leaving home due to family conflict or other crisis, youth experiencing or at risk of experiencing homelessness or sexual exploitation, and adolescent development and wellbeing. FYSB recommends budgetary and legislative proposals, operational planning initiatives, and projects and subject areas for research, evaluation, and demonstration activities. FYSB coordinates efforts with and provides expert advice to departmental and other federal agencies on supporting vulnerable youth, including youth who have run away from home due to family conflict or other crises, youth experiencing or at risk of experiencing homelessness or housing instability; youth at risk of trafficking, sexual exploitation, or violent crime victimization; youth at risk of unplanned pregnancy or becoming teen parents; and any youth in at-risk situations. FYSB represents HHS on various councils, workgroups, and committees and provides leadership and coordination to other HHS programs and Federal agencies working to address youth homelessness, youth at risk of trafficking and sexual exploitation, and positive adolescent development and wellbeing. The Bureau is comprised of three Divisions:
The Division of Data, Performance, and Policy (DPP) provides leadership and direction for FYSB, informing program and policy development and innovation through evaluation strategies and data analysis for youth experiencing or at risk of homelessness, youth at risk of trafficking, adolescent pregnancy prevention, and promotion of adolescent health and wellbeing. The Division leads the management of the legislatively mandated data information systems and all evaluation efforts within FYSB. The Division directs evaluation efforts to include study design; instrument development; and rigorous, methodological approaches; and conducts analysis of data to inform the policy and program priorities of FYSB programs. The Division develops and implements FYSB's standard measures for evaluating program performance for the improvement of services to vulnerable populations. It oversees collection of FYSB's performance standards and performance measurement process, evaluation strategies, development of program outcomes, and the synthesis of data to inform and support innovation for each program. The Division provides leadership and direction in policy development and policy analysis of legislation and budget proposals, responds to requests for policy clarification, and assesses the impact of authorizing legislations on FYSB's programs. The Division provides recommendations to the Associate Commissioner and Deputy Associate Commissioner on strategic priorities, policy direction, and programmatic improvements to address issues impacting vulnerable youth and their families and adolescent health and wellbeing. The Division also works collaboratively across ACF and with strategic partnerships and identifies issue areas for evaluation, research, and demonstration initiatives.
The Division of Positive Youth Development administers an array of prevention services to address the wellbeing of adolescents by funding projects to states, tribes, and community-based organizations to provide education to youth (and their families) on how to prevent teen pregnancy and the spread of sexually transmitted infections, including HIV/
The Division of Runaway and Homeless Youth administers prevention, crisis response, shelter, and supportive services to youth and young adults who have run away from home due to family conflict or other crisis or are experiencing homelessness or housing instability. The Division administers the runaway and homeless youth program that incorporates the Basic Center, Street Outreach, Transitional Living, and Maternity Group Home programs. The Division also conducts development and implementation of policy, guidance, and regulations concerning the funding and management of service projects for youth in compliance with the Runaway and Homeless Youth Act. The Division designs, develops, funds, and monitors support activities related to RHY programs including, but not limited to, the provision of technical assistance, executing a monitoring system, maintaining a requisite data collection system, the Runaway and Homeless Youth Training and Technical Assistance Center, the National Clearinghouse on Homeless Youth and Families, and the National Runaway Safeline. The Division oversees the receipt and review of applications for discretionary grants in these program areas and monitors the management of these grants through monthly contacts and on-site visits through the ACF Regional Offices.
III. Continuation of Policy. Except as inconsistent with this reorganization, all statements of policy and interpretations with respect to organizational components affected by this notice within ACF, heretofore issued and in effect on this date of this reorganization are continued in full force and effect.
IV. Delegation of Authority. All delegations and redelegations of authority made to officials and employees of affected organizational components will continue in them or their successors pending further redelegations, provided they are consistent with this reorganization.
V. Funds, Personnel, and Equipment. Transfer of organizations and functions affected by this reorganization shall be accompanied in each instance by direct and support funds, positions, personnel, records, equipment, supplies, and other resources.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or the Agency) has determined the regulatory review period for MULPLETA and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of applications 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 drug 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 or biologic 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 drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug 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 drug 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 drug product, MULPLETA (lusutrombopag) indicated for treatment of thrombocytopenia in adult patients with chronic liver disease who are scheduled to undergo a procedure. Subsequent to this approval, the USPTO received patent term restoration applications for MULPLETA (U.S. Patent Nos. 7,601,746 and 8,889,722) from Shionogi & Co., Ltd. and the USPTO requested FDA's assistance in determining the patents' eligibility for patent term restoration. In a letter dated October 29, 2019, FDA advised the USPTO that this human drug product had undergone a regulatory review period and that the approval of MULPLETA 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 MULPLETA is 3,464 days. Of this time, 3,246 days occurred during the testing phase of the regulatory review period, while 218 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 applications for patent extension, this applicant seeks 784 days or 1,715 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.
The Food and Drug Administration (FDA or the Agency) has determined the regulatory review period for GALAFOLD and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of applications 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 drug 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 or biologic 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 drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug 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 drug 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 drug product, GALAFOLD (migalastat) indicated for the treatment of adults with a confirmed diagnosis of Fabry Disease and an amenable galactosidase alpha gene variant based on in vitro assay data. This indication is approved under accelerated approval based on reduction in kidney interstitial capillary cell globotriaosylceramide substrate. Continued approval for this indication may be contingent upon verification and description of clinical benefit in confirmatory trials. Subsequent to this approval, the USPTO received patent term restoration applications for GALAFOLD (U.S. Patent Nos. 8,592,362 and 9,000,011) from Amicus Therapeutics, Inc. and the USPTO requested FDA's assistance in determining the patents' eligibility for patent term restoration. In a letter dated October 29, 2019, FDA advised the USPTO that this human drug product had undergone a regulatory review period and that the approval of GALAFOLD 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 GALAFOLD is 5,132 days. Of this time, 4,891 days occurred during the testing phase of the regulatory review period, while 241 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 applications for patent extension, this applicant seeks 732 days or 980 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
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice.
HRSA is publishing this notice of petitions received under the National Vaccine Injury Compensation Program (the Program), as required by the Public Health Service (PHS) Act, as amended. While the Secretary of HHS is named as the respondent in all proceedings brought by the filing of petitions for compensation under the Program, the United States Court of Federal Claims is charged by statute with responsibility for considering and acting upon the petitions.
For information about requirements for filing petitions, and the Program in general, contact Lisa L. Reyes, Clerk of Court, United States Court of Federal Claims, 717 Madison Place NW, Washington, DC 20005, (202) 357-6400. For information on HRSA's role in the Program, contact the Director, National Vaccine Injury Compensation Program, 5600 Fishers Lane, Room 08N146B, Rockville, Maryland 20857; (301) 443-6593, or visit our website at:
The Program provides a system of no-fault compensation for certain individuals who have been injured by specified childhood vaccines. Subtitle 2 of Title XXI of the PHS Act, 42 U.S.C. 300aa-10
A petition may be filed with respect to injuries, disabilities, illnesses, conditions, and deaths resulting from vaccines described in the Vaccine Injury Table (the Table) set forth at 42 CFR 100.3. This Table lists for each covered childhood vaccine the conditions that
Section 2112(b)(2) of the PHS Act, 42 U.S.C. 300aa-12(b)(2), requires that “[w]ithin 30 days after the Secretary receives service of any petition filed under section 2111 the Secretary shall publish notice of such petition in the
Section 2112(b)(2) also provides that the special master “shall afford all interested persons an opportunity to submit relevant, written information” relating to the following:
1. The existence of evidence “that there is not a preponderance of the evidence that the illness, disability, injury, condition, or death described in the petition is due to factors unrelated to the administration of the vaccine described in the petition,” and
2. Any allegation in a petition that the petitioner either:
a. “[S]ustained, or had significantly aggravated, any illness, disability, injury, or condition not set forth in the Vaccine Injury Table but which was caused by” one of the vaccines referred to in the Table, or
b. “[S]ustained, or had significantly aggravated, any illness, disability, injury, or condition set forth in the Vaccine Injury Table the first symptom or manifestation of the onset or significant aggravation of which did not occur within the time period set forth in the Table but which was caused by a vaccine” referred to in the Table.
In accordance with Section 2112(b)(2), all interested persons may submit written information relevant to the issues described above in the case of the petitions listed below. Any person choosing to do so should file an original and three (3) copies of the information with the Clerk of the United States Court of Federal Claims at the address listed above (under the heading
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice.
HRSA is updating income levels used to identify a “low-income family” for the purpose of determining eligibility for programs that provide health professions and nursing training to individuals from disadvantaged backgrounds. These various programs are authorized in the Public Health Service Act. HHS periodically publishes in the
Many health professions and nursing grant and cooperative agreement awardees use the low-income levels to determine whether potential program participants are from economically disadvantaged backgrounds and would be eligible to participate in the program, as well as to determine the amount of funding individuals receive. Awards are generally made to accredited schools of medicine, osteopathic medicine, public health, dentistry, pharmacy, allied health, and nursing; public or private nonprofit schools which offer graduate programs in behavioral health and mental health practice; and other public or private nonprofit health or educational entities to assist individuals from disadvantaged backgrounds and disadvantaged students to enter and graduate from health professions and nursing schools. Some programs provide for the repayment of health professions or nursing education loans for students from disadvantaged backgrounds and disadvantaged students.
A “low-income family/household” for programs included in titles III, VII, and VIII of the Public Health Service Act is defined as having an annual income that does not exceed 200 percent of HHS's poverty guidelines. A family is a group of two or more individuals related by birth, marriage, or adoption who live together.
Most HRSA programs use the income of a student's parent(s) to compute low-income status. However, a “household” may potentially be only one person. Other HRSA programs, depending upon the legislative intent of the program, the programmatic purpose related to income level, as well as the age and circumstances of the participant, will apply these low-income standards to the individual student to determine eligibility, if the student is not listed as a dependent on the tax form of their parent(s). Each program includes the rationale and methodology for determining low-income levels in program funding opportunities or applications.
Low-income levels are adjusted annually based on HHS's poverty guidelines. HHS's poverty guidelines are based on poverty thresholds published by the U.S. Census Bureau, adjusted annually for changes in the Consumer Price Index. The income figures below have been updated to reflect HHS's 2023 poverty guidelines as published in the
Separate poverty guidelines figures for Alaska and Hawaii reflect Office of Economic Opportunity administrative practice beginning in the 1966-1970 period since the U.S. Census Bureau poverty thresholds do not have separate figures for Alaska and Hawaii. The poverty guidelines are not defined for Puerto Rico or other jurisdictions. Puerto Rico and other jurisdictions shall use income guidelines for the 48 Contiguous States and the District of Columbia.
Notice is hereby given of a change in the meeting of the Center for Scientific Review Special Emphasis Panel, Topics in Bacterial Pathogens, March 29, 2023, 10:00 a.m. to 7:00 p.m., National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD 20892, which was published in the
This meeting is being amended to change the contact person from Kaushiki Mazumdar, Ph.D., to Michael Bloom, Ph.D., Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD 20892, (301) 451-0132. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Advisory Council for Human Genome Research.
This is a hybrid meeting held in-person and virtually and is open to the public as indicated below. Individuals who plan to attend in-person or view the virtual meeting and need special assistance or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting. The meeting will be videocast and can be accessed from
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 intramural programs
Any interested person may file written comments with the committee within 15 days after the meeting by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has procedures at
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as
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.
Federal Emergency Management Agency, Department of Homeland Security.
60 Day notice of renewal and request for comments.
The Federal Emergency Management Agency (FEMA), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on an extension, without change, a currently approved information collection. In accordance with the Paperwork Reduction Act of 1995, this notice seeks comments concerning the collection of information under which communities submit information to FEMA for application and continued participation in the National Flood Insurance Program (NFIP).
Comments must be submitted on or before May 22, 2023.
To avoid duplicate submissions to the docket, please submit comments at
Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Adrienne L. Sheldon, Supervisory Emergency Management Specialist, Floodplain Management Division at
The National Flood Insurance Program (NFIP), codified at 42 U.S.C. 4001,
This collection has been updated to account for the burden hours associated with the applicant's time to collect information as part of the community development permit process. To qualify for the NFIP, a participating community must adopt certain minimum standards in accordance with FEMA's regulations at 44 CFR 60.3, 60.4, and 60.5. To verify whether communities maintain such standards, the NFIP requires participating communities to retain documentation on development taking place in the flood hazard areas within the community. See 44 CFR 59.22. Such information will be made available to FEMA upon request. This information assists FEMA in evaluating the effectiveness of a community's floodplain management program and participating property owners' eligibility for flood insurance. In the past the NFIP application did not account for burden hours associated with this collection of information.
The “Application for Participation in the NFIP” and the “NFIP and the Community Development Permit Process” are separate actions documented under the same collection
Comments may be submitted as indicated in the
Bureau of Indians Affairs, Interior.
Notice.
The regulations implementing the Indian Child Welfare Act provide that Federally recognized Indian Tribes may designate an agent other than the Tribal chairman for service of notice of proceedings under the Act. This notice includes the current list of designated Tribal agents for service of notice.
The notice is effective March 22, 2023 and supersedes the list published on April 15, 2022.
Bureau of Indian Affairs, Evangeline M. Campbell, Chief, Division of Human Services, Office of Indian Services, 1849 C Street NW, Mail Stop 3641-MIB, Washington, DC 20240;
The regulations implementing the Indian Child Welfare Act, 25 U.S.C. 1901
In any involuntary proceeding in a State court where the court knows or has reason to know that an Indian child is involved, and where the identity and location of the child's parent or Indian custodian or Tribe is known, the party seeking the foster-care placement of, or termination of parental rights to, an Indian child must directly notify the parents, the Indian custodians, and the child's Tribe by registered or certified mail with return receipt requested, of the pending child-custody proceedings and their right of intervention. Copies of these notices must be sent to the appropriate Bureau of Indian Affairs (BIA) Regional Director by registered or certified mail with return receipt requested or by personal delivery.
If the identity or location of the child's parents, the child's Indian custodian, or the Tribe(s) in which the Indian child is a member or eligible for membership cannot be ascertained, but there is reason to know the child is an Indian child, notice of the child-custody proceeding must be sent to the appropriate BIA Regional Director, available at
No notices, except for final adoption decrees, are required to be sent to the BIA Central Office, MS-4606, 1849 C Street NW, Washington, DC 20240.
This notice presents the names and addresses of current designated Tribal agents for service of notice and includes each designated Tribal agent received by the Secretary of the Interior prior to the date of this publication. The lists designated Tribal agents by BIA Region and alphabetically by Tribe within each BIA Region.
In addition to the BIA's annual
Alaska Regional Director, Bureau of Indian Affairs, Human Services, 3601 C Street, Ste. 1200 MC-403 Anchorage, Alaska 99503; Phone Number: (907) 271-4111; Fax Number: (907) 271-4090.
Eastern Regional Director, 545 Marriot Drive, Ste. 700, Nashville, TN 37214; Phone Number: (615) 546-6500; Fax Number: (615) 564-6701.
Eastern Oklahoma Regional Director, P.O. Box 8002, Muskogee, OK 74402; Phone Number: (918) 781-4600; Fax Number (918) 781-4604.
Great Plains Regional Director, 115 4th Avenue SE, Ste. 400, Aberdeen, SD 57401; Phone Number: (605) 226-7343; Fax Number: (605) 226-7446.
Midwest Regional Director, 5600 West American Blvd., Ste. 500, Pointe II Building, Bloomington, MN 55437; Phone Number: (612) 725-4500; Fax Number: (612) 713-4401.
Navajo Regional Director, Navajo Regional Office, P.O. Box 1060, Gallup, NM 87305; Phone Number: (505) 863-8314, Fax Number: (505) 863-8324.
Northwest Regional Director, 911 NE 11th Ave., Portland, OR 97232; Phone Number: (503) 231-6702; Fax Number (503) 231-2201.
Pacific Regional Director, BIA, Federal Building, 2800 Cottage Way, Room W-2820, Sacramento, CA 95825; Phone Number: (916) 978-6000; Fax Number: (916) 978-6055.
Rocky Mountain Regional Director, 2021 4th Ave. N, Billings, MT 59101; Phone Number: (406) 247-7943; Fax Number: (406) 247-7976.
Southern Plains Regional Director, P.O. Box 368, Anadarko, OK 73005; Phone Number: (405) 247-6673 Ext. 217; Fax Number (405) 247-5611.
Southwest Regional Director, 1001 Indian School Road NW, Albuquerque, NM 87104; Phone Number: (505) 563-3103; Fax Number: (505) 563-3101.
Western Regional Director, 2600 North Central Avenue, 4th Floor Mailroom, Phoenix, AZ 85004; Phone: (602) 379-6600; Fax Number: (602) 379-4413.
This information collection is authorized by OMB Control Number 1076-0186, Indian Child Welfare Act Proceedings in State Court, which expires March 31, 2023.
Bureau of Land Management, Interior.
Notice of intent.
In compliance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended, the Bureau of Land Management (BLM) Alaska State Director intends to prepare a resource management plan (RMP) amendment with an associated environmental assessment (EA) for the Campbell Tract Off Highway Vehicle (OHV) Designation Amendment. This notice announces the beginning of the scoping process to solicit public comments and seek input on issues and planning criteria.
The BLM requests that the public submit comments concerning the scope of the analysis, potential alternatives, and identification of relevant information and studies by April 21, 2023. To afford the BLM the opportunity to consider issues, please ensure your comments are received prior to the close of 30-day scoping period or 15 days after the last public meeting, whichever is later. The date(s) and time(s) of scoping meetings will be announced at least 15 days in advance through local news releases, newspapers, letters and/or postcards, local stakeholder email list, and through BLM Alaska social media.
You may submit comments on issues and planning criteria related to the RMP Amendment and EA addressing OHV route designation on Campbell Tract by any of the following methods:
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Documents pertinent to this proposal may be examined online at
Jake Vialpando, Field Manager, telephone (907) 267-1246; address 4700 BLM Road, Anchorage, Alaska 99507; email
This document provides notice that the BLM Alaska State Director intends to prepare an RMP amendment with an associated EA for the Campbell Tract OHV Designation Amendment within the Anchorage Field Office, announces the beginning of the scoping process, and seeks public input on issues and planning criteria. The RMP amendment is being considered to allow the BLM to conduct travel management planning to evaluate authorizing electric bicycles (e-bikes) on existing trails within the Campbell Tract Special Recreation Management Area (SRMA), which would require amending the existing 2008 Ring of Fire RMP.
The planning area is in the Municipality of Anchorage, Alaska, and encompasses approximately 730 acres of public land. The Campbell Tract SRMA is in an urban setting where the routes are connected to municipal park land in Far North Bicentennial Park and adjacent state park lands in Chugach State Park, both of which currently authorize specific types of electric vehicles where traditional bicycles are allowed.
The purpose of the project is to establish management guidance specific to OHV use, including e-bikes, on public lands within the Campbell Tract SRMA. The need for this planning effort is to provide for recreation opportunities for a wide variety of user groups in a multi-use setting appropriate for a variety of recreation uses. The 2008 Ring of Fire RMP currently identifies the Campbell Tract SRMA as closed for OHVs. There is a need to amend the Ring of Fire RMP to allow for consideration of management of e-bikes on existing trails.
The RMP amendment process will consider whether revising the Campbell Tract SRMA OHV designation from “Closed” to “Limited by vehicle type”, would be allowed, which could authorize vehicles such as Class I e-bikes to be used on the trail system. Preliminary alternatives include the No Action Alternative and the Proposed Action: changing the current OHV designation of “Closed” to “Limited by Vehicle Type” to potentially allow for advances in recreational electric vehicle technology and provide a seamless recreation trail experience with adjacent park lands. The BLM welcomes comments on all preliminary alternatives, as well as suggestions for additional alternatives.
The planning criteria guide the planning effort and lay the groundwork for effects analysis by identifying the preliminary issues and their analytical frameworks. Preliminary issues for the planning area have been identified by BLM personnel and from early engagement conducted for this planning effort with Federal, State, and local agencies, Tribes, and other stakeholders. The BLM has identified eleven preliminary issues for this planning effort's analysis. The planning criteria are available for public review and comment at the ePlanning website (see
This notice of intent initiates the scoping period and public review of the planning criteria, which guide the development and analysis of the RMP Amendment and EA.
The BLM public scoping meeting for this project will be in person and/or virtual. Public comments will be accepted at the scoping meeting. The specific date(s) and location(s) of the scoping meeting will be announced at least 15 days in advance through local media, newspapers, and the project ePlanning page. You may submit comments to the BLM using one of the methods listed in the
The BLM will use an interdisciplinary approach to develop the plan in order to consider the variety of resource issues and concerns identified. Specialists with expertise in the following disciplines will be involved in this planning effort: cultural/Tribal, fisheries, hazardous material, hydrology, lands, range/wildlife/threatened and endangered species, recreation/travel management/visual, riparian, subsistence, vegetation, and environmental education.
The BLM will identify, analyze, and consider mitigation to address the reasonably foreseeable impacts to resources from the proposed plan amendment and all analyzed reasonable alternatives and, in accordance with 40 CFR 1502.14(e), include appropriate mitigation measures not already included in the proposed plan amendment or alternatives. Mitigation may include avoidance, minimization, rectification, reduction or elimination over time, and compensation; and may be considered at multiple scales, including the landscape scale.
The BLM will utilize and coordinate the NEPA and land use planning processes for this planning effort to help support compliance with applicable procedural requirements under the Endangered Species Act (16 U.S.C. 1536) and Section 106 of the National Historic Preservation Act (54 U.S.C. 306108) as provided in 36 CFR 800.2(d)(3), including public involvement requirements of Section 106. The information about historic and cultural resources and threatened and endangered species within the area potentially affected by the proposed plan will assist the BLM in identifying and evaluating impacts to such resources.
The BLM will consult with Alaska Native Corporations and Alaska Native Tribes on a government-to-government basis in accordance with Executive Order 13175, BLM MS 1780, and other Departmental policies. Tribal concerns, including impacts on Indian trust assets and potential impacts to cultural resources, will be given due consideration. Federal, State, and local agencies, along with Alaska Native Tribes and stakeholders that may be interested in or affected by the proposed Campbell Tract OHV Designation Amendment that the BLM is evaluating, are invited to participate in the scoping process and, if eligible, may request or be requested by the BLM to participate in the development of the environmental analysis as a cooperating agency.
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.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
30-Day notice.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Department of Justice (DOJ) will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for an additional 30 days until April 21, 2023,
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Written comments and suggestions from the public and affected agencies concerning
Overview of this information collection:
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If additional information is required contact: John Carlson, Department Clearance Officer, Policy and Planning Staff, Office of the Chief Information Officer, United States Department of Justice, Justice Management Division, Two Constitution Square, 145 N Street NE, Mail Stop 3.E-206, Washington, DC 20530.
On July 29, 2022, the Drug Enforcement Administration (hereinafter, DEA or Government) issued an Order to Show Cause (hereinafter, OSC) to Shahid Masood, M.D. (hereinafter, Registrant). Request for Final Agency Action (hereinafter, RFAA), Exhibit (hereinafter, RFAAX) 2 (OSC), at 1, 3. The OSC proposed the revocation of Registrant's Certificate of Registration No. FM7946481 at the registered address of 667 86th Place, Downers Grove, IL 60516.
The Agency makes the following findings of fact based on the uncontroverted evidence submitted by the Government in its RFAA dated February 7, 2023.
On November 9, 2021, the State of Illinois Department of Financial and Professional Regulation issued an Order suspending both Registrant's Illinois medical license and Registrant's Illinois controlled substance license. RFAAX 3, Attachment B, at 1, 8. According to Illinois online records, of which the Agency takes official notice, both Registrant's Illinois medical license and Registrant's Illinois controlled substance license are still suspended.
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to suspend or revoke a registration issued under section 823 of the Controlled Substances Act (hereinafter, CSA) “upon a finding that the registrant . . . has had his State license or registration suspended . . . [or] revoked . . . by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances.” With respect to a practitioner, the DEA has also long held that the possession of authority to dispense controlled substances under the laws of the state in which a practitioner engages in professional practice is a fundamental condition for obtaining and maintaining a practitioner's registration.
Pursuant to the Illinois Controlled Substances Act, a “practitioner” means “a physician licensed to practice medicine in all its branches . . . or other person licensed, registered, or otherwise lawfully permitted by the United States or this State to distribute, dispense, conduct research with respect to, administer or use in teaching or chemical analysis, a controlled substance in the course of professional practice or research.” 720 Ill. Comp. Stat. Ann. 570/102(kk) (2022). Further, the Illinois Controlled Substances Act requires that “[e]very person who manufactures, distributes, or dispenses any controlled substances . . . must obtain a registration issued by the Department of Financial and Professional Regulation in accordance with its rules.”
Here, the undisputed evidence in the record is that Registrant currently lacks authority to handle controlled substances in Illinois as both his Illinois medical license and his Illinois controlled substance license are suspended. As already discussed, a practitioner must hold a valid controlled substance license to dispense a controlled substance in Illinois. Thus, because Registrant lacks state authority to handle controlled substances, Registrant is not eligible to maintain a DEA registration. Accordingly, the Agency will order that Registrant's DEA registration be revoked.
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. FM7946481 issued to Shahid Masood, M.D. Further, pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(g)(1), I hereby deny any pending applications of Shahid Masood, M.D., to renew or modify this registration, as well as any other pending application of Shahid Masood, M.D., for additional registration in Illinois. This Order is effective April 21, 2023.
This document of the Drug Enforcement Administration was signed on March 15, 2023, by Administrator Anne Milgram. That document with the original signature and date is maintained by DEA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DEA Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of DEA. This administrative process in no way alters the legal effect of this document upon publication in the
On August 9, 2022, the Drug Enforcement Administration (DEA or Government) issued an Order to Show Cause (OSC) to Heather M. Entrekin, DVM (Respondent). OSC, at 1, 3. The OSC proposed the revocation of Respondent's Certificate of Registration
Respondent timely requested a hearing; thereafter, the Government filed and the Chief Administrative Law Judge (CALJ) granted a Motion for Summary Disposition recommending the revocation of Respondent's registration. Order Granting the Government's Motion for Summary Disposition and Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision of the Administrative Law Judge (Recommended Decision or RD), at 5-7. Respondent did not file exceptions to the RD. Having reviewed the entire record, the Agency adopts and hereby incorporates by reference the entirety of the CALJ's rulings, findings of fact, conclusions of law, and recommended sanction and summarizes and expands upon portions thereof herein.
On May 19, 2022, the Alabama Board of Veterinary Examiners issued an Order that suspended Respondent's Alabama controlled substance license. RD, at 4;
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to suspend or revoke a registration issued under section 823 of the Controlled Substances Act (CSA) “upon a finding that the registrant . . . has had his State license or registration suspended . . .
According to Alabama statute, “[e]very person who manufactures, distributes, or dispenses any controlled substance within [the] state or who proposes to engage in the manufacture, distribution, or dispensing of any controlled substance within [the] state must obtain annually a registration issued by the certifying boards in accordance with [their] rules.” Ala. Code section 20-2-51(a) (2022);
Here, the undisputed evidence in the record is that Respondent currently lacks authority to dispense controlled substances in Alabama because her Alabama controlled substance license has been suspended. RD, at 5. As discussed above, an individual must hold an Alabama controlled substance license to dispense a controlled substance in Alabama. RD, at 5-6. Thus, because Respondent lacks authority to handle controlled substances in Alabama, Respondent is not eligible to maintain a DEA registration.
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. FE4914164 issued to Heather M. Entrekin, DVM. Further, pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(g)(1), I hereby deny any pending applications of Heather M. Entrekin, DVM, to renew or modify this registration, as well as any other pending application of Heather M. Entrekin, DVM, for additional registration in Alabama. This Order is effective April 21, 2023.
This document of the Drug Enforcement Administration was signed on March 15, 2023, by Administrator Anne Milgram. That document with the original signature and date is maintained by DEA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DEA Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of DEA. This administrative process in no way alters the legal effect of this document upon publication in the
On September 28, 2022, the Drug Enforcement Administration (DEA or Government) issued an Order to Show Cause (OSC) to Christina Collins, APRN (Respondent). OSC, at 1, 3. The OSC proposed the denial of Respondent's renewal application
Respondent requested a hearing;
On February 28, 2022, the Tennessee Board of Nursing issued a Final Order revoking Respondent's Tennessee license to practice as an Advanced Practice Registered Nurse (APRN license). RD, at 6-7; Government's Submission of Evidence Regarding Proof of Service and Motion for Summary Disposition, Exhibit (GX) D, at 1, 11,
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to suspend or revoke a registration issued under section 823 of the Controlled Substances Act (CSA) “upon a finding that the registrant . . . has had his State license or registration suspended . . . [or] revoked . . . by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances.” With respect to a practitioner, the DEA has also long held that the possession of authority to dispense controlled substances under the laws of the state in which a practitioner engages in professional practice is a fundamental condition for obtaining and maintaining a practitioner's registration.
According to Tennessee statute, “dispense” means “to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for that delivery.” Tenn. Code Ann. section 39-17-402(7) (2022). Further, a “practitioner” means “[a] physician . . . or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance in the course of professional practice or research in this state.”
Here, the evidence in the record is that Respondent lacks authority to practice as an Advanced Practice Registered Nurse in Tennessee. RD, at 7. As discussed above, an individual must be a licensed practitioner to dispense a controlled substance in Tennessee. Thus, because Respondent lacks authority to practice as an Advanced Practice Registered Nurse in Tennessee and, therefore, is not authorized to handle controlled substances in Tennessee, Respondent is not eligible to maintain a DEA registration. RD, at 7-8. Accordingly, the Agency will order that Respondent's application for renewal of her registration be denied.
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(g)(1), I hereby deny the pending application of Christina Collins, APRN, for renewal of her DEA Certificate of Registration No. MC1638696, as well as any other pending application of Christina Collins, APRN, for additional registration in Tennessee. This Order is effective April 21, 2023.
This document of the Drug Enforcement Administration was signed on March 15, 2023, by Administrator Anne Milgram. That document with the original signature and date is maintained by DEA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DEA Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of DEA. This administrative process in no way alters the legal effect of this document upon publication in the
On November 18, 2022, the Drug Enforcement Administration (DEA or Government) issued an Order to Show Cause (OSC) to Karl Kauffman, M.D. (Respondent). OSC, at 1, 3. The OSC proposed the revocation of
Respondent timely requested a hearing; thereafter, the Government filed and the Chief Administrative Law Judge (hereinafter, CALJ) granted a Motion for Summary Disposition recommending the revocation of Respondent's registration. Order Granting the Government's Motion for Summary Disposition and Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision of the Administrative Law Judge (hereinafter, RD), at 5-6. Respondent did not oppose the Government's Motion or file exceptions to the RD.
On March 30, 2022, the Texas Medical Board issued an Order of Temporary Suspension that suspended Respondent's Texas medical license. RD, at 4;
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to suspend or revoke a registration issued under section 823 of the CSA “upon a finding that the registrant . . . has had his State license or registration suspended . . . [or] revoked . . . by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances.” With respect to a practitioner, the DEA has also long held that the possession of authority to dispense controlled substances under the laws of the state in which a practitioner engages in professional practice is a fundamental condition for obtaining and maintaining a practitioner's registration.
According to Texas statute, “[d]ispense” means “the delivery of a controlled substance in the course of professional practice or research, by a practitioner or person acting under the lawful order of a practitioner, to an ultimate user or research subject. The term includes the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for delivery.” Tex. Health & Safety Code Ann. § 481.002(12) (2022). Further, a “practitioner” means “a physician . . . or other person licensed, registered, or otherwise permitted to distribute, dispense, analyze, conduct research with respect to, or administer a controlled substance in the course of professional practice or research in this state.”
Here, the undisputed evidence in the record is that Respondent currently lacks authority to practice medicine in Texas. RD, at 4-5. As discussed above, a person must be a licensed practitioner to dispense a controlled substance in Texas.
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. FK0627642 issued to Karl Kauffman, M.D. Further, pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(g)(1), I hereby deny any pending applications of Karl Kauffman, M.D., to renew or modify this registration, as well as any other pending application of Karl Kauffman, M.D., for additional registration in Texas. This Order is effective April 21, 2023.
This document of the Drug Enforcement Administration was signed on March 15, 2023, by Administrator Anne Milgram. That document with the original signature and date is maintained by DEA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DEA Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of DEA. This administrative process in no way alters the legal effect of this document upon publication in the
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Office of Federal Contract Compliance Programs (OFCCP)-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 21, 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) if the information will be processed and used in a timely manner; (3) 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; (4) ways to enhance the quality, utility and clarity of the information collection; and (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.
Nora Hernandez by telephone at 202-693-8633, or by email at
This ICR seeks to extend PRA authority for the Section 503 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 793. Section 503 of the Rehabilitation Act of 1973, as amended, prohibits employment discrimination against applicants and employees because of physical or mental disability and requires contractors and subcontractors to take affirmative action to employ and advance in employment qualified individuals with disabilities. Section 503 applies to Federal contractors and subcontractors with contracts in excess of $15,000. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
DOL seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Bureau of Labor Statistics (BLS)-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 21, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Nicole Bouchet by telephone at 202-693-0213, or by email at
The BLS enters into Cooperative Agreements with State Workforce Agencies (SWAs) in the 50 states, the District of Columbia, Puerto Rico, the Virgin Islands, and Guam, annually to provide financial assistance to the SWAs for the production and operation of one or more of four Labor Market Information (LMI) programs: Current Employment Statistics, Local Area Unemployment Statistics, Occupational Employment and Wage Statistics, and Quarterly Census of Employment and Wages. The Cooperative Agreement provides the basis for managing the administrative and financial aspects of these programs. The Cooperative Agreement package includes application instructions and materials, as well as financial reporting, closeout, and other administrative requirements as provided for by the
The Department of Labor (DOL) is implementing a new grants management
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.
Copyright Royalty Board, Library of Congress.
Notice requesting comments.
The Copyright Royalty Judges solicit comments on a motion of Allocation Phase claimants for partial distribution of 2020 satellite royalty funds.
Comments are due on or before April 21, 2023.
Interested claimants must submit timely comments using eCRB, the Copyright Royalty Board's online electronic filing application, at
Anita Brown, CRB Program Specialist, by telephone at (202) 707-7658 or email at
Each year satellite providers must submit royalty payments to the Register of Copyrights as required by the statutory license set forth in section 119 of the Copyright Act for the retransmission to satellite subscribers of over-the-air television broadcast signals.
Allocation of the royalties collected occurs in one of two ways. In the first instance, the Judges may authorize distribution in accordance with a negotiated agreement among all claiming parties. 17 U.S.C. 119(b)(5)(A), 801(b)(3)(A). If all claimants do not reach an agreement with respect to the royalties, the Judges must conduct a proceeding to determine the distribution of any royalties that remain in controversy. 17 U.S.C. 119(b)(5)(B), 801(b)(3)(B). Alternatively, the Judges may, on motion of claimants and on notice to all interested parties, authorize a partial distribution of royalties, reserving on deposit sufficient funds to resolve identified disputes. 17 U.S.C. 119(b)(5)(C), 801(b)(3)(C).
On March 9, 2023, representatives of all the Allocation Phase (formerly “Phase I”) claimant categories
Accordingly, this notice seeks comments from interested claimants on whether any reasonable objection exists that would preclude the distribution of 40% of the 2020 satellite royalty funds to the Allocation Phase Claimants. Parties objecting to the proposed partial distribution must advise the Judges of the existence and extent of all their objections by the end of the comment period. The Judges will not consider any objections with respect to the partial distribution motion that come to their attention after the close of the comment period.
Members of the public may read the motion by accessing the Copyright Royalty Board's electronic filing and case management system at
Copyright Royalty Board, Library of Congress.
Notice requesting comments.
The Copyright Royalty Judges solicit comments on a motion of Allocation Phase claimants for partial distribution of 2020 cable royalty funds.
Comments are due on or before April 21, 2023.
Interested claimants must submit timely comments using eCRB, the Copyright Royalty Board's online electronic filing application, at
Anita Brown, CRB Program Specialist, by telephone at (202) 707-7658 or email at
Each year cable systems must submit royalty payments to the Register of Copyrights as required by the statutory license detailed in section 111 of the Copyright Act for the retransmission to cable subscribers of over-the-air television and radio broadcast signals.
Allocation of the royalties collected occurs in one of two ways. In the first instance, the Judges may authorize distribution in accordance with a negotiated agreement among all claiming parties. 17 U.S.C. 111(d)(4)(A), 801(b)(3)(A). If all claimants do not reach agreement with respect to the royalties, the Judges must conduct a proceeding to determine the distribution of any royalties that remain in controversy. 17 U.S.C. 111(d)(4)(B), 801(b)(3)(B). Alternatively, the Judges may, on motion of claimants and on notice to all interested parties, authorize a partial distribution of royalties, reserving on deposit sufficient funds to resolve identified disputes. 17 U.S.C. 111(d)(4)(C), 801(b)(3)(C).
On December 30, 2022, representatives of all the Allocation Phase (formerly “Phase I”) claimant categories
Accordingly, this notice seeks comments from interested claimants on whether any reasonable objection exists that would preclude the distribution of 40% of the 2020 cable royalty funds to the requesting claimant representatives. Parties objecting to the proposed partial distribution must advise the Judges of the existence and extent of all objections by the end of the comment period. The Judges will not consider any objections with respect to the partial distribution that come to their attention after the close of the comment period.
Members of the public may read the motion by accessing the Copyright Royalty Board's electronic filing and case management system at
Office of Management and Budget, Executive Office of the President.
Notice.
Pursuant to The Executive Office of the President Appropriations Act, 2022, the Office of Management and Budget is publishing its delegation of apportionment authority to respond to a continuity event.
This delegation became effective on January 20, 2021.
Heather V. Walsh at 202-395-3642 or
I hereby delegate to the following individuals, in order of succession, the authorities delegated by the President to the Director of the Office of Management and Budget for apportioning funds pursuant to 31 U.S.C. 1513 when the Deputy Associate Director (DAD) (to whom such apportionment authority was previously delegated by the Director of the Office of Management and Budget) with current apportionment authority for an account is not available to apportion or reapportion the account because of a continuity event:
This delegation of authority will remain in place until revised or revoked, and it may not be re-delegated by the individual to whom it has been delegated. The delegation does not limit the authority of the Director to exercise the delegated authority.
National Aeronautics and Space Administration (NASA).
Notice of information collection.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections.
Comments are due by May 22, 2023.
Written comments and recommendations for this information collection should be sent within 60 days of publication of this notice to
Find this particular information collection by selecting “Currently under 60-day Review—Open for Public Comments” or by using the search function.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Bill Edwards-Bodmer, NASA Clearance Officer, NASA Headquarters, 300 E Street SW, JF0000, Washington, DC 20546, 757-864-3292, or
This is a request for authorization to collect information under the NASA Federal Acquisition Regulation Supplement (NFS) Clause, 1852.223-70, Safety and Health Measures and Mishap Reporting, formerly entitled “Safety and Health.” While the clause is proposed to be revised to eliminate some information collected requirements, two distinct information collection requirements will remain (1) notification of a Type A, B, C, or D Mishap, or a close call as defined in NASA Procedural Requirements (NPR) 8621.1 Mishap and Close Call Reporting, Investigating and Recordkeeping, and (2) quarterly reports specifying lost-time frequency rate, number of lost-time injuries, exposure, and accident/incident dollar losses.
Electronic.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.
National Aeronautics and Space Administration (NASA).
Notice of information collections.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections.
Comments are due by May 22, 2023.
Written comments and recommendations for these information collections should be sent within 60 days of publication of this notice to
Requests for additional information or copies of these information collection instruments and instructions should be directed to Bill Edwards-Bodmer, NASA Clearance Officer, NASA Headquarters, 300 E Street SW, JF0000, Washington, DC 20546, call 757-864-3292, or email
This is a notice to revise OMB control number 2700-0092 to include a voluntary demographic information collection that is currently represented by 2700-0161. This collection is required to ensure proper accounting of Federal funds and property provided under financial assistance awards (grants and cooperative agreements) per 2 CFR 200—Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. 2 CFR 200, subparts A through F, applies to all NASA award recipients except for for-profit organizations. Only Subparts A through D of 2 CFR 200 apply to for-profit organizations. Reporting and recordkeeping are prescribed at 2 CFR part 1800—Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards. The requirements in 2 CFR part 1800 are applicable to awards that NASA issues to non-Federal entities, government, for-profit organization, and foreign organizations as allowed by 2 CFR 200.101, Applicability.
Grant and cooperative agreement proposals are submitted electronically through the NASA Solicitation and Proposal Integrated Review and Evaluation System (NSPIRES) or
Approximately 7,000 NASA financial assistance awards are open at any one time. It is estimated that out of the 9,900 proposals received each year, NASA awards approximately 1,977 new awards. The period of performance for each financial assistance award is usually three to five years. Performance
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.
A Federal grant is an award of financial assistance from a Federal agency to a recipient to carry out a public purpose of support or stimulation authorized by a law of the United States. The NASA Procurement Office supports NASA research, science, and education communities through the award of research/education/and training grants in the science, technology, engineering, and math (STEM) fields. NASA has a continuing commitment to identify and address inequities associated with its grant review and awards processes. To support that commitment, NASA implemented a process to collect demographic data from grant applicants for the purpose of analyzing demographic differences associated with its award processes. Information collected includes the name, gender, race, ethnicity, disability status, citizenship status, education, and career data of the respondents. Submission of the information is voluntary and is not a precondition of award. However, if the information is not submitted, it will undermine the usefulness of information received from other respondents.
Electronic.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.
Nuclear Regulatory Commission.
Environmental assessment and finding of no significant impact; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is considering renewal of Facility License No. R-33, held by the GE-Hitachi Nuclear Energy Americas, LLC (GE-Hitachi or the licensee), for the continued operation of the Nuclear Test Reactor (NTR or the reactor), located on the Vallecitos Nuclear Center (VNC) site in Sunol, Alameda County, CA. The NRC is issuing an environmental assessment (EA) and finding of no significant impact (FONSI) associated with the proposed action.
The EA and FONSI referenced in this document are available on March 22, 2023.
Please refer to Docket ID NRC-2023-0051 when contacting the NRC about the availability of information regarding this document. You may obtain publicly available information related to this document using any of the following methods:
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Duane Hardesty, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-3724; email:
The NRC is considering issuance of a renewed Facility Operating License No. R-33, held by GE-Hitachi, which would authorize continued operation of its NTR, located on the VNC site in Sunol, Alameda County, CA. The renewed license would authorize continued operation of the NTR for an additional 20 years from the date of issuance of the renewed license.
As required by section 51.21 of title 10 of the Code of Federal Regulations (10 CFR), “Criteria for and identification of licensing and regulatory actions requiring environmental assessments,” the NRC staff prepared this EA documenting its environmental review. Based on the results of the environmental review as documented in the EA that follows, the NRC has determined not to prepare an environmental impact statement for the proposed renewed license and is issuing a FONSI in accordance with 10 CFR 51.32, “Finding of no significant impact.”
The NTR at the Vallecitos Nuclear Center is a heterogeneous, high-enriched-uranium, graphite-moderated and reflected light-water-cooled thermal reactor. It is licensed to operate at a power level of up to 100 kilowatts thermal (kWt) and has been in operation since 1957. The NTR is fueled by highly enriched uranium-aluminum alloy disks clad with aluminum.
The NTR lies within the VNC site on the north side of Vallecitos Valley in Sunol, Alameda County, CA. The site slopes upwards from 400 feet (122 meters (m)) above mean sea level (MSL) at its relatively flat southern end to 1,200 feet (366 m) above MSL along a northern ridge. The southern end of the property drains southwest through ditches to Vallecitos Creek, which then discharges to Arroyo de la Laguna near the north end of Sunol Valley. Vallecitos Valley is approximately 2 miles (3.2 kilometers (km)) long and 1 mile (1.6 km) wide and primarily consists of undeveloped grasslands. The towns of Pleasanton and Livermore lie approximately 4 miles (6.4 km) north and 5 miles (8 km) northeast of the VNC site, respectively. Fremont lies approximately 8 miles (12.9 km) southwest of the site.
The NTR is housed within Building 105 of the VNC site. Building 105 lies on a 135-acre (54.7-hectare (ha)) parcel in the southwest quadrant of the site. In addition to the NTR, the building contains offices, laboratories, and storage areas. This area of the site also includes several other buildings and high structures, including a 15-foot-tall (4.6-m) gas-fired boiler exhaust stack and several single and multistory buildings, including Buildings 102, 103, and 106. Additionally, the site contains three other reactor facilities: Vallecitos Boiling-Water Reactor (DPR-1), Empire State Atomic Development Agency Vallecitos Experimental Superheat Reactor (DR-10), and GE Test Reactor (TR-1). DPR-1 and DR-10 are permanently shut down and in active decommissioning. TR-1 is permanently shut down and currently in SAFSTOR (
Within Building 105, the NTR is housed within a thick-walled, reinforced concrete Reactor Cell that includes the reactor, reactor control mechanisms, coolant system, and a fuel loading tank. Penetrations into the Reactor Cell provide for passing water, electric power, and air into and out of the cell. The Reactor Cell confines airborne radioactivity and provides for controlled release through an exhaust stack. The stack is 45 feet (13.7 m) above grade level and 9 feet (2.7 m) above the highest point of Building 105. In addition to the Reactor Cell, the NTR includes the Control Room, North Room, South Cell, and Set-up Room. The Reactor Cell and these rooms collectively comprise the NTR and are included within the 10 CFR part 20, “Standards for Protection Against Radiation,” Restricted Area wherein radiological controls are implemented for personnel safety.
The Control Room contains the control console, an operator work area, and space for equipment and experiment preparation. Personnel in the Control Room may experience dose rates of 0.6 millirem per hour (mrem/h) during typical reactor operation and up to 2 mrem/h when the aperture (an opening that will allow neutrons to pass through it surrounded by neutron absorbing materials) between the Reactor Cell and the South Cell is open during neutrography operations. The North Room provides access to the north neutron radiography position inside the shielded, concrete monument, as well as the access station for the cable held retractable irradiation facility. The South Cell is a concrete shielded room that provides access to the thermal column, horizontal facility, and the south neutron radiography position. It also contains apertures to the North Room for neutron radiography. The Set-up Room contains storage and space for experiment set-up prior to irradiation or testing.
GE-Hitachi typically operates the NTR for one shift, 5 days per week for a total annual average of approximately 700 full-power hours per year. During operation, the primary coolant core outlet temperature is typically 124 degrees Fahrenheit (°F) (51.1 degrees Celsius (°C)). This results in a delta of 20 °F (−6.7 °C) (across the primary to secondary cooling water heat exchanger. Secondary cooling water temperature is usually below 95 °F (35 °C) and rarely exceeds 100 °F (37.7 °C). Upon leaving the heat exchanger, secondary cooling water flows to the facility drain, which discharges to 50,000-gallon (189,270-liter) site retention basins. GE-Hitachi samples water in these basins to ensure it contains no radioactive material prior to release. During this process, the wastewater cools to ambient temperature. From the retention basins, GE-Hitachi releases the cooled wastewater through an onsite sprinkler irrigation system. To ensure that these releases do not create buildup of trace
The NTR shares many facilities and equipment in Building 105 with other laboratory facilities housed within the building. These include potable water, fire protection, emergency supplies and support, heating, ventilation, and air conditioning, AC electrical distribution, and compressed air.
A detailed description of the NTR and its operations can be found in GE-Hitachi's SAR (included in the list of documents associated with the license renewal application and can be found in Section III “Availability of Documents” at the end of this notice) submitted as part of its renewal application.
The proposed action would renew Facility Operating License No. R-33 for a period of 20 years from the date of issuance of the renewed license. The proposed action would authorize GE-Hitachi to operate the NTR at a nominal steady-state power of 100 kWt. The proposed action is in accordance with the licensee's application dated November 19, 2020, and supplements dated September 22, 2021; April 22, 2022 and September 15, 2022; and January 27, 2023. The NRC issued the initial facility operating license on October 31, 1957. The NRC subsequently issued renewed facility operating licenses on December 28, 1984, and April 20, 2001. The current facility operating license was set to expire at midnight on April 20, 2021. In accordance with 10 CFR 2.109, “Effect of timely renewal application,” the existing license remains in effect until the NRC takes final action on the renewal application.
The proposed action is needed to allow the continued operation of the NTR to provide irradiation services for (1) neutron radiography (neutrography) of radioactive and nonradioactive objects, (2) small sample irradiation and activation, (3) sensitive reactivity characterizations of reactor fuel cladding material, (4) training, and (5) calibrations and other testing utilizing a neutron flux for the U.S. Department of Defense (DOD), U.S. national laboratories, and U.S. private industry. A significant use of the facility is the performance of neutron radiography on energetic devices used for DOD applications and the space industry. The NTR is currently one of two facilities in the United States that provides this service.
The environmental impacts of the proposed action are described in this EA. As discussed further, the proposed action will not have a significant environmental impact. In addition, the proposed action will not require any physical changes to the facility, and the impacts are similar to those occurring during past operations. Separate from this EA, the NRC staff is performing a safety evaluation, which will be available with the renewed license, if issued.
Gaseous radioactive effluents resulting from the routine operation of the NTR are released to the environment from the reactor building from an exhaust stack on the roof after passing through a prefilter and a bank of HEPA filters. The NTR stack discharge length is 45 ft (14 m). Argon (Ar)-41 is by far the most significant radionuclide released as a gaseous effluent during normal reactor operations. The maximum release of Ar-41 would occur from continuous operation at full power. GE-Hitachi provided airborne radiological effluent releases for calendar year 2018 as an example of the releases tracked at the NTR indicating that the total noble gases releases from the stack was 190 curies (Ci), the majority of which is Ar-41. NRC staff confirmed the releases of 190 Ci in GE-Hitachi's annual report and determined that it is reasonable to assume most of the releases are due to Ar-41 given that it would be conservative to assume this for dose calculations. The licensee's methodology for determining stack release rate action levels and limits ensures that doses to members of the public due to airborne releases are at or below the 10 CFR 20.1101(d) limit of 10 mrem per year. This meets the 100 mrem per year (mrem/yr) (1 millisieverts per year (mSv/yr) dose equivalent to the maximally exposed individual in 10 CFR 20.1301, “Dose limits for individual members of the public.”
The only liquid radiation source for the NTR is the primary coolant, but no radioactive liquid effluents are discharged from the facility. The primary coolant is regularly sampled to monitor fuel leakage into the primary coolant, which is vented into a holdup tank prior to reactor startup. The amount of water vented into the holdup tank is small enough that it evaporates, and the tank does not fill. Dose rate measurements of the reactor holdup tank show that no-long lived radionuclides accumulate in the tank. The total amount of liquid waste generated is from the primary coolant sampling, which is approximately one liter per sample. This sample waste is disposed of with the other laboratory waste.
Solid radioactive waste generated from reactor operations at the NTR are primarily contaminated paper and plastic, filters, and resins. Shipments of solid radioactive low-level waste consist of one to three cubic feet (less than one cubic meter) of contaminated material per year with activity in the order of millicuries. Once transferred, the low level waste broker ships and disposes of the waste in accordance with applicable regulations for radioactive materials.
No spent (irradiated) fuel will be permanently stored within the NTR during the license renewal term. If it is necessary to remove a fuel assembly, it is transferred to the fuel loading tank and special arrangements are made to use a shielded transfer cask and storage facilities elsewhere on the site. The U.S. Department of Energy (DOE) provides fuel for use at the NTR. GE-Hitachi has entered into a contract with DOE whereby the DOE retains title to the fuel and is obligated to take all NTR spent nuclear fuel from the site for final disposition. GEH does not anticipate any changes in spent fuel handling during the proposed license renewal term.
As described in chapter 11, “Radiation Protection Program/Waste Management,” of the NTR SAR and verified through NRC staff review of the licensee's annual reports for the 5 years of operation from 2016 through 2020, personnel exposures are well within the limits set by 10 CFR 20.1201, “Occupational dose limits for adults,” and are as low as reasonably achievable in accordance with 10 CFR 20.1101(b). The licensee tracks exposures of personnel monitored with dosimeters, and the annual reports for the 5 years show that the personnel exposures (total effective dose equivalent) were usually less than one percent of the occupational limit of 5,000 mrem (50 mSv) per year. The greatest individual exposure (annual) over the last 5 years was 876 mrem (8.76 mSv). No changes in reactor operation that would lead to an increase in occupational dose are expected or proposed as a result of the proposed action.
The radiation monitoring systems associated with reactor operations at the NTR are provided and maintained as a means of ensuring compliance with radiation limits established under 10
The licensee has an environmental radiation program that measures radiation exposure in and around the VNC facility. The environmental radiation monitoring program surveys groundwater, stream sediments, vegetation, storm water, direct gamma radiation, gaseous effluents (which includes 4 air monitoring stations and 20 gamma radiation monitoring locations).
The licensee also obtains water samples to ensure no releases into water pathways. The water samples are analyzed for gross alpha, beta, and tritium. Soil and vegetation samples are analyzed for gross beta and undergo gamma spectroscopy. These samples and dosimetry are analyzed and documented in the annual effluent and environmental reports. Review of the annual reports over the last 5 years of operation (2016 through 2021) shows no discernible radiological effect of NTR operations on the environment.
Based on the review of monitoring data for the period 2016 through 2021, the NRC staff concludes that operation of the NTR does not have any significant radiological impact on the surrounding environment. No changes in reactor operation that would affect offsite radiation levels are expected or proposed as a result of the proposed action. Therefore, the NRC staff finds that the proposed action would not have a significant radiological impact.
Accident scenarios are discussed in chapter 13, “Accident Analysis,” of the NTR SAR. The accidents analyzed in chapter 13 range from anticipated events to a postulated fission product release with radiological consequences that exceed those of any accident considered to be credible. The licensee considers a single-mode nonviolent failure of 50 mg of uranium-235 powder in a singly encapsulated container followed by release of fission products as the maximum hypothetical accident for the NTR. This accident would involve the release of material to the reactor cell area and into the environment with no credit taken for filtration of the release by the NTR stack filter system. The licensee uses this scenario to calculate the maximum concentration of fission products that might be present in the reactor cell. The licensee calculated doses to facility personnel during a 5 minute evacuation duration, and also calculated the dose to a member of the public outside the facility during the 2 hours it would take the released radioactive material to pass. The licensee estimated an occupational dose of 500 mrem (5 mSv), and a dose of 100 mrem (1 mSv) to the maximally-exposed member of the public.
Separate from this EA, the NRC staff is reviewing GE-Hitachi's accident analyses of the potential radiological consequences that may result from the proposed license renewal. The results of the NRC staff's safety review will be documented in a safety evaluation report that will be made publicly available. If the NRC staff concludes that the radiological consequences are within 10 CFR part 20 dose limits, then GE-Hitachi's accident analyses and the proposed action would not have a significant impact with respect to radiological consequences.
In the application for license renewal, the licensee has not proposed any physical changes to the reactor facility design, or adverse changes to facility operating conditions, that would significantly affect facility operation; therefore, there would be no changes in the types or quantities of routine effluents that may be released off site. The licensee has systems in place for controlling the release of radiological effluents and implements a radiation protection program to monitor personnel exposures and releases of radioactive effluents. Accordingly, there would be no increase in routine occupational or public radiation exposure as a result of the proposed action. Based on the information previously discussed, the NRC staff finds that the proposed action will not significantly increase the probability and consequences of accidents.
The license renewal would not significantly change reactor operations. As previously discussed, information in the application and data reported to the NRC by the licensee for the last 5 years of reactor operation were evaluated to determine the radiological impact. The NRC staff found that releases of radioactive material and personnel exposures were all well within applicable regulatory limits. Based on this evaluation, the NRC staff finds that the continued operation of the reactor would have no significant radiological impacts.
The proposed action does not involve any change in the operation of the reactor or change in the emissions or heat load dissipated to the environment. No new construction or other land disturbing activities are proposed. The proposed action would not result in any land use changes or increase in noise or air emissions, and would not have a significant impact on air quality, noise, visual resources, or ecological resources.
Monitoring results of surface and ground water among other media are reported according to NTR and other site licensing requirements. Treated sanitary and industrial wastewater was disposed of onsite by an irrigation system. No surface runoff of sanitary or industrial waste occurred. Groundwater was monitored for gross alpha, gross beta, Strontium (Sr)-90 and tritium. Review of the last 5 years of analytical results of collected groundwater samples (2016 through 2021), shows that the GE-Hitachi is in compliance with all license requirements issued by the NRC, and NTR operation has no discernible effect on groundwater quality.
GE-Hitachi uses three drainage systems at the VNC site: industrial, sanitary, and storm. The industrial (non-cooling contact water) and sanitary wastewater discharge nonradioactive effluent into any of the four 50,000-gallon (189,270-liter) retention basins located in the southwest corner of the site, which store the water for nonpotable purposes (
Groundwater level at the VNC site varies greatly, ranging from a few feet below ground surface (near Retention Basins 2 and 3) to 30 to 40 feet (9.1-12.2 m) below ground surface (northwest of the road leading to the water tank). Groundwater at the site generally flows toward the southwest at an estimated velocity of about 0.01 ft/day (.003 m/day) (in clays) to 8 ft/day (2.4 m/day) (in gravels) depending on the clay content.
GE-Hitachi conducts effluent monitoring and environmental
Recent records from the facility's effluent monitoring program show that in monthly testing of industrial effluent, gross alpha varied from nondetectable to 4.96 picoCuries per liter (pCi/L), and gross beta from 0.79 pCi/L to 6.14 pCi/L. In 2021, tritium was detected from 24 pCi/L to 633 pCi/L in the industrial effluent. Compared to industrial effluents, monthly testing of sanitary effluents generally showed lower levels of radioactivity. In 2021, the highest concentrations of gross alpha measured in sanitary effluent was 3.71 pCi/L, gross beta was 5.39 pCi/L, and tritium was 485 pCi/L. As part of the environmental surveillance program, the facility tests stream sediment at locations near or beyond the site perimeter. In 2021 testing of stream sediment, gross alpha was detected at 4.73 Ci/L, gross beta at 1.6 pCi/L, and both Co-60 and Cs‐137 were not detected.
GE-Hitachi monitors groundwater at the VNC site quarterly by collecting from eight wells located on or near the VNC site. The samples are analyzed for gross alpha, gross beta, tritium, and Sr-90. In 2021, the highest levels of gross alpha and gross beta detected were 6.51 pCi/L and 4 pCi/L, respectively. In 2021, the highest level of tritium detected in the groundwater was 857 pCi/L.
In summary, effluent discharges from the VNC site comply with the facility's industrial and sanitary wastewater discharge limits as described in licenses issued by the NRC and the California Department of Health. No direct surface runoff of processed sanitary or industrial wastewater occurred in 2021. The impacts of the continued operation of the NTR on surface water and groundwater are minimal. Hazardous chemicals may be used in experiments at the NTR, but no releases of potentially hazardous chemicals to the environment occur during normal facility operation. Therefore, the NRC staff concludes that the proposed action would have no significant non-radiological impacts.
In addition to the National Environmental Policy Act, which requires Federal agencies to consider the environmental impacts of proposed actions, the NRC has responsibilities that are derived from other environmental laws, which include the Endangered Species Act (ESA), Coastal Zone Management Act (CZMA), Fish and Wildlife Coordination Act (FWCA), National Historic Preservation Act (NHPA), and Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.” The following presents a brief discussion of impacts associated with resources protected by these laws and related requirements.
The ESA was enacted to prevent further decline of endangered and threatened species and to restore those species and their critical habitat. Section 7 of the ESA requires Federal agencies to consult with the U.S. Fish and Wildlife Service (FWS) or National Marine Fisheries Service regarding actions that may affect listed species or designated critical habitats. The NRC staff conducted a search of federally listed species and critical habitats that have the potential to occur in the vicinity of the NTR using the FWS's Environmental Conservation Online System Information for Planning and Conservation system.
The FWS-generated report from this system identifies nine federally listed species that occur or potentially occur within the vicinity of the VNC site: San Joaquin kit fox (Vulpes macrotis mutica), California least tern (Sterna antillarum browni), Alameda whipsnake (Masticophis lateralis euryxanthus), California red-legged frog (Rana draytonii), California tiger salamander (Ambrystoma californiense), delta smelt (Hypomesus transpacificus), bay checkerspot butterfly (Euphydryas editha bayensis), San Bruno elfin butterfly (Callophrys mossii bayensis), and vernal pool fairy shrimp (Branchinecta lynchi). No critical habitats occur in the area.
The VNC site lacks suitable aquatic features for the California red-legged frog, California tiger salamander, delta smelt, and vernal pool fairy shrimp. While the remaining species may be present in the broader area, the VNC site itself is small and developed and does not provide suitable habitat. Additionally, operation of the NTR has no direct nexus to the natural environment that could affect these species. Accordingly, the NRC staff concludes that the proposed license renewal of NTR would have no effect on federally listed species or critical habitats. Federal agencies are not required to consult with the FWS if they determine that an action will not affect listed species or critical habitats. Thus, the ESA does not require consultation for the proposed NTR license renewal, and the NRC staff considers its obligations under ESA section 7 to be fulfilled for the proposed action.
The CZMA, in part, encourages States to preserve, protect, develop, and, where possible, restore coastal resources. Individual States are responsible for developing a federally approved Coastal Management Plan and implementing a coastal management program in accordance with such a plan. Section 307(c)(3)(A) of the CZMA requires that applicants for Federal permits whose proposed activities could reasonably affect coastal zones certify to the licensing agency (here, the NRC) that the proposed activity would be consistent with the state's coastal management program. Alameda County is not within California's approved coastal zone, and, therefore, a consistency determination is not required for the proposed action.
The FWCA requires Federal agencies that license water resource development projects to consult with the FWS (or National Marine Fisheries Service, when applicable) and the State wildlife resource agencies regarding the potential impacts of the project on fish and wildlife resources.
The proposed action does not involve any water resource development projects, including any of the modifications relating to impounding a body of water, damming, diverting a stream or river, deepening a channel, irrigation, or altering a body of water for navigation or drainage. Therefore, no coordination with other agencies pursuant to the FWCA is required for the proposed action.
The NHPA requires Federal agencies to consider the effects of their undertakings on historic properties. As stated in the NHPA, historic properties are any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in the National Register of Historic Places. By electronic mail dated November 21, 2022, the State Historic Preservation Officer (SHPO) for the State of California, indicated that the proposed renewal of the NTR license does not require construction, ground disturbing activities, or changes to the reactor facility design. The SHPO also indicated that no historic properties existed in the area of potential effects (which includes the VNC site); and, there were no objections to the proposed license renewal. Based on this information, the NRC staff finds that the proposed license renewal and the continued operation of the NTR would have no adverse effect on historic properties.
Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” dated February 16, 1994 (59 FR 7629), directs Federal agencies to identify and address the disproportionately high and adverse human health or environmental effects of their actions on minority and low-income populations, to the greatest extent practicable and permitted by law.
The environmental justice impact analysis evaluates the potential for disproportionately high and adverse human health and environmental effects on minority and low-income populations that could result from the relicensing and the continued operation of the reactor. Such effects may include human health, biological, cultural, economic, or social impacts. Minority and low-income populations are subsets of the general public residing around the reactor, and all are exposed to the same health and environmental effects generated from activities at the reactor.
As an alternative to license renewal, the NRC considered denying the proposed action (
The proposed license renewal does not involve the use of any different resources or significant quantities of resources beyond those associated with current facility operations and previously considered in the issuance of Facility License No. R-33 for the reactor on December 28, 1984, and the renewal of Facility License No. R-33 on December 28, 1984, and April 20, 2001.
In satisfaction of its obligations under the NHPA, the NRC consulted with the California SHPO, as previously described. On February 21, 2023, the NRC notified the California State official, Mr. Anthony Chu, Chief, Division of Radiation Safety and Environmental Management, California Department of Public Health of the proposed action. By email dated March 8, 2023, Mr. Chu indicated that the State of California Department of Public had no comments.
The NRC is considering renewal of Facility License No. R-33, held by GE-Hitachi, which would authorize the continued operation of the NTR for an additional 20 years from the date of issuance of the renewed license.
On the basis of the EA included in Section II of this notice and incorporated by reference in this finding, the NRC staff finds that the proposed action will not have a significant impact on the quality of the human environment, and will not
The NRC staff considered information provided in the licensee's application, as supplemented, and the review of related environmental documents. Section III in this notice lists the environmental documents related to the proposed action and includes information on the availability of these documents.
This FONSI and other related environmental documents are accessible online in the ADAMS Public Documents collection at
The documents in the following table are available to interested in ADAMS, as indicated.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Renewal of existing information collection; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment on the renewal of Office of Management and Budget (OMB) approval for an existing collection of information. The information collection is entitled, “Suspicious Activity Reporting Using the Protective Web Server.”
Submit comments by May 22, 2023. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods; however, the NRC encourages electronic comment submission through the Federal rulemaking website:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
David C. Cullison, Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2023-0053 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:
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The NRC encourages electronic comment submission through the Federal rulemaking website (
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the NRC is requesting public comment on its intention to request the OMB's approval for the information collection summarized below.
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The NRC is seeking comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility? Please explain your answer.
2. Is the estimate of the burden of the information collection accurate? Please explain your answer.
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection on respondents be minimized, including the use of automated collection techniques or other forms of information technology?
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the Market Dominant or the Competitive product list, or the modification of an existing product currently appearing on the Market Dominant or the Competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern Market Dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3030, and 39 CFR part 3040, subpart B. For request(s) that the Postal Service states concern Competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3035, and 39 CFR part 3040, subpart B. Comment deadline(s) for each request appear in section II.
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This Notice will be published in the
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on March 6, 2023, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on March 16, 2023, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on March 16, 2023, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on March 16, 2023, it filed with the Postal Regulatory Commission a
Securities and Exchange Commission (“Commission” or “SEC”).
Notice.
Notice of an application for an order pursuant to section 6(c) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 18(a)(2), 18(c), and 18(i) of the Act, pursuant to sections 6(c) and 23(c) of the Act for certain exemptions from rule 23c-3 under the Act, and pursuant to section 17(d) of the Act and rule 17d-1 thereunder.
Hearing requests should be received by the Commission by 5:30 p.m. on April 10, 2023, and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Pursuant to rule 0-5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by emailing the Commission's Secretary at
The Commission:
Steven I. Amchan, Senior Counsel, or Terri G. Jordan, Branch Chief, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
For Applicants' representations, legal analysis, and condition, please refer to Applicants' second amended and restated application, dated January 30, 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, at
For the Commission, by the Division of Investment Management, under delegated authority.
1. By virtue of the authority vested in the Secretary of State by the laws of the United States, including by section 1 of the State Department Basic Authorities Act (22 U.S.C. 2651a(a)(4)), to the extent authorized by law and subject to the conditions in paragraph 2 below, I hereby delegate to the Under Secretary of State for Management the authority to issue waivers for chanceries and consulates under section 606(a)(3)(B) of the Secure Embassy Construction and Counterterrorism Act (SECCA) of 1999, Public Law 106-113, as amended by section 9301 of the SECCA of 2022 (Div. I, Title XCIII, Public Law 117-263). I further delegate to the Under Secretary
2. There will be a notification to Congress at least two days prior to any waiver's implementation. This delegation of authority shall not apply to posts designated as High Threat/High Risk posts consistent with section 104 of the Omnibus Diplomatic Security and Antiterrorism Act of 1986 (22 U.S.C. 4803).
3. The functions delegated herein may be exercised by the Secretary, the Deputy Secretary, and the Deputy Secretary for Management and Resources. This delegation does not modify any other delegation currently in force.
4. This delegation of authority will be published in the
Federal Highway Administration (FHWA), Department of Transportation (DOT).
Notice of limitation on claims for judicial review.
The FHWA, on behalf of Caltrans, is issuing this notice to announce actions taken by Caltrans, that are final. The actions relate to a proposed highway project, on State Route (SR 37) between postmiles 2.9-6.2 in Sonoma County, postmiles 0.0-R7.4 in Solano County, and postmiles 0.0-0.2 in Napa County, State of California. Those actions grant licenses, permits, and approvals for the project.
By this notice, the FHWA, on behalf of Caltrans, is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of the Federal agency actions on the highway project will be barred unless the claim is filed on or before August 21, 2023. If the Federal law that authorizes judicial review of a claim provides a time period of less than 150 days for filing such claim, then that shorter time period still applies.
For Caltrans: Maxwell Lammert, Office Chief, California Department of Transportation, 111 Grand Avenue, MS-8B, Oakland, CA 94612. Office hours: Monday through Friday 8 a.m.-5 p.m. Contact Information:
Effective July 1, 2007, the Federal Highway Administration assigned, and the California Department of Transportation assumed environmental responsibilities for this project pursuant to 23 U.S.C. 327. Notice is hereby given that Caltrans has taken final agency actions subject to 23 U.S.C. 139(l)(1) by issuing licenses, permits, and approvals for the following highway project in the State of California: Caltrans, in partnership with the Metropolitan Transportation Commission (MTC) and the north bay partner agencies of Sonoma County Transportation Authority (SCTA), Solano Transportation Authority (STA), and Napa Valley Transportation Authority (NVTA), proposes the Sears Point to Mare Island Improvement Project to address existing recurring congestion along State Route (SR) 37 where the highway narrows to one lane in each direction between SR 121 and the Mare Island Interchange (approximately 10 miles). The selected alternative will widen SR 37 to provide four full-time lanes (two in each direction), widen the Tolay Creek Bridge, widen the Sonoma Creek Bridge, and provide 8-foot shoulders (except at Sonoma Creek Bridge which would have 4-foot shoulders). In each direction of SR 37 in the project limits, the existing lane would be converted to full-time High Occupancy Vehicle (HOV) lanes and the newly added lanes would be toll lanes. The actions by the Federal agencies, and the laws under which such actions were taken, are described in the Final Environmental Assessment (FEA) and Finding of No Significant Impact (FONSI), approved on February 8, 2023 and in other documents in the Caltrans project records. The FEA, FONSI, and other project records are available by contacting Caltrans at the addresses provided above. The Caltrans FEA and FONSI can be viewed and downloaded from the project website at
This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice of final disposition.
FMCSA announces its decision to exempt 10 individuals from the hearing requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) to operate a commercial motor vehicle (CMV) in interstate commerce. The exemptions enable these hard of hearing and deaf individuals to operate CMVs in interstate commerce.
The exemptions are applicable on March 22, 2023. The exemptions expire on March 22, 2025.
Ms. Christine A. Hydock, Chief, Medical Programs Division, FMCSA, DOT, 1200 New Jersey Avenue SE, Room W64-224, Washington, DC 20590-0001, (202) 366-4001,
To view comments go to
In accordance with 49 U.S.C. 31315(b)(6), DOT solicits comments from the public on the exemption requests. DOT posts these comments, without edit, including any personal information the commenter provides, to
On February 13, 2023, FMCSA published a notice announcing receipt of applications from 10 individuals requesting an exemption from the hearing requirement in 49 CFR 391.41(b)(11) to operate a CMV in interstate commerce and requested comments from the public (88 FR 9314). The public comment period ended on March 15, 2023, and no comments were received.
FMCSA has evaluated the eligibility of these applicants and determined that granting exemptions to these individuals would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved by complying with § 391.41(b)(11).
The physical qualification standard for drivers regarding hearing found in § 391.41(b)(11) states that a person is physically qualified to drive a CMV if that person first perceives a forced whispered voice in the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz with or without a hearing aid when the audiometric device is calibrated to American National Standard (formerly ASA Standard) Z24.5—1951.
This standard was adopted in 1970 and was revised in 1971 to allow drivers to be qualified under this standard while wearing a hearing aid (35 FR 6458, 6463 (Apr. 22, 1970) and 36 FR 12857 (July 8, 1971), respectively).
FMCSA received no comments in this proceeding.
Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant an exemption from the FMCSRs for no longer than a 5-year period if it finds such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption. The statutes also allow the Agency to renew exemptions at the end of the 5-year period. However, FMCSA grants medical exemptions from the FMCSRs for a 2-year period to align with the maximum duration of a driver's medical certification.
The Agency's decision regarding these exemption applications is based on relevant scientific information and literature, and the 2008 Evidence Report, “Executive Summary on Hearing, Vestibular Function and Commercial Motor Driving Safety.” The evidence report reached two conclusions regarding the matter of hearing loss and CMV driver safety: (1) no studies that examined the relationship between hearing loss and crash risk exclusively among CMV drivers were identified; and (2) evidence from studies of the private driver's license holder population does not support the contention that individuals with hearing impairment are at an increased risk for a crash. In addition, the Agency reviewed each applicant's driving record found in the Commercial Driver's License Information System, for commercial driver's license (CDL) holders, and inspections recorded in the Motor Carrier Management Information System. For non-CDL holders, the Agency reviewed the driving records from the State Driver's Licensing Agency. Each applicant's record demonstrated a safe driving history. Based on an individual assessment of each applicant that focused on whether an equal or greater level of safety would likely be achieved by permitting each of these drivers to drive in interstate commerce, the Agency finds the drivers granted this exemption have demonstrated that they do not pose a risk to public safety.
Consequently, FMCSA finds further that in each case exempting these applicants from the hearing standard in § 391.41(b)(11) would likely achieve a level of safety equal to that existing without the exemption, consistent with the applicable standard in 49 U.S.C. 31315(b)(1).
The terms and conditions of the exemption are provided to the applicants in the exemption document
During the period the exemption is in effect, no State shall enforce any law or regulation that conflicts with this exemption with respect to a person operating under the exemption.
Based upon its evaluation of the 10 exemption applications, FMCSA exempts the following drivers from the hearing standard; in § 391.41(b)(11), subject to the requirements cited above:
In accordance with 49 U.S.C. 31315(b), each exemption will be valid for 2 years from the effective date unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) the person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained prior to being granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136, 49 U.S.C. chapter 313, or the FMCSRs.
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice of applications for exemption; request for comments.
FMCSA announces receipt of applications from 10 individuals for an exemption from the hearing requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) to operate a commercial motor vehicle (CMV) in interstate commerce. If granted, the exemptions would enable these hard of hearing and deaf individuals to operate CMVs in interstate commerce.
Comments must be received on or before April 21, 2023.
You may submit comments identified by the Federal Docket Management System Docket No. FMCSA-2023-0018 using any of the following methods:
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To avoid duplication, please use only one of these four methods. See the “Public Participation” portion of the
Ms. Christine A. Hydock, Chief, Medical Programs Division, FMCSA, DOT, 1200 New Jersey Avenue SE, Room W64-224, Washington, DC 20590-0001, (202) 366-4001,
If you submit a comment, please include the docket number for this notice (Docket No. FMCSA-2023-0018), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
FMCSA will consider all comments and material received during the comment period.
To view comments go to
In accordance with 49 U.S.C. 31315(b)(6), DOT solicits comments from the public on the exemption requests. DOT posts these comments, without edit, including any personal
Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant an exemption from the FMCSRs for no longer than a 5-year period if it finds such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption. The statutes also allow the Agency to renew exemptions at the end of the 5-year period. FMCSA grants medical exemptions from the FMCSRs for a 2-year period to align with the maximum duration of a driver's medical certification.
The 10 individuals listed in this notice have requested an exemption from the hearing requirement in 49 CFR 391.41(b)(11). Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting the exemption will achieve the required level of safety mandated by statute.
The physical qualification standard for drivers regarding hearing found in § 391.41(b)(11) states that a person is physically qualified to drive a CMV if that person first perceives a forced whispered voice in the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz with or without a hearing aid when the audiometric device is calibrated to American National Standard (formerly ASA Standard) Z24.5—1951.
This standard was adopted in 1970 and was revised in 1971 to allow drivers to be qualified under this standard while wearing a hearing aid, (35 FR 6458, 6463 (Apr. 22, 1970) and 36 FR 12857 (July 8, 1971), respectively).
On February 1, 2013, FMCSA announced in a Notice of Final Disposition titled, “Qualification of Drivers; Application for Exemptions; National Association of the Deaf,” (78 FR 7479), its decision to grant requests from 40 individuals for exemptions from the Agency's physical qualification standard concerning hearing for interstate CMV drivers. Since that time the Agency has published additional notices granting requests from hard of hearing and deaf individuals for exemptions from the Agency's physical qualification standard concerning hearing for interstate CMV drivers.
Amin Ali, 21, holds a class D driver's license in Ohio.
Guled Ali, 22, holds a class D driver's license in Ohio.
Joey Dickinson, 36, holds a class D driver's license in Tennessee.
Samantha Gatpo, 26, holds a class D driver's license in California.
Freddy Lopez Hernandez, 30, holds a class C driver's license in Texas.
Shane Rowland, 35, holds a class C driver's license in Texas.
Timothy Smith, 28, holds a class A commercial driver's license (CDL) in Virginia.
Daniel Vollertsen, 35, holds a class D driver's license in New York.
Martin Vorpahl, 49, holds a class ABCDM CDL in Wisconsin.
Irven Wade, 49, holds a class CM driver's license in Nevada.
In accordance with 49 U.S.C. 31136(e) and 31315(b), FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. We will consider all comments received before the close of business on the closing date indicated under the
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice of applications for exemption; request for comments.
FMCSA announces receipt of applications from 11 individuals for an exemption from the prohibition in the Federal Motor Carrier Safety Regulations (FMCSRs) against persons with a clinical diagnosis of epilepsy or any other condition that is likely to cause a loss of consciousness or any loss of ability to control a commercial motor vehicle (CMV) to drive in interstate commerce. If granted, the exemptions would enable these individuals who have had one or more seizures and are taking anti-seizure medication to operate CMVs in interstate commerce.
Comments must be received on or before April 21, 2023.
You may submit comments identified by the Federal Docket Management System Docket No. FMCSA-2023-0030 using any of the following methods:
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To avoid duplication, please use only one of these four methods. See the “Public Participation” portion of the
Ms. Christine A. Hydock, Chief, Medical Programs Division, FMCSA, DOT, 1200 New Jersey Avenue SE, Room W64-224,
If you submit a comment, please include the docket number for this notice (Docket No. FMCSA-2023-0030), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
To view comments go to
In accordance with 49 U.S.C. 31315(b)(6), DOT solicits comments from the public on the exemption request. DOT posts these comments, without edit, including any personal information the commenter provides, to
Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant an exemption from the FMCSRs for no longer than a 5-year period if it finds such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption. The statutes also allow the Agency to renew exemptions at the end of the 5-year period. FMCSA grants medical exemptions from the FMCSRs for a 2-year period to align with the maximum duration of a driver's medical certification.
The 11 individuals listed in this notice have requested an exemption from the epilepsy and seizure disorders prohibition in 49 CFR 391.41(b)(8). Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting the exemption will achieve the required level of safety mandated by statute.
The physical qualification standard for drivers regarding epilepsy found in § 391.41(b)(8) states that a person is physically qualified to drive a CMV if that person has no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause the loss of consciousness or any loss of ability to control a CMV.
In addition to the regulations, FMCSA has published advisory criteria
The criteria states that if an individual has had a sudden episode of a non-epileptic seizure or loss of consciousness of unknown cause that did not require anti-seizure medication, the decision whether that person's condition is likely to cause the loss of consciousness or loss of ability to control a CMV should be made on an individual basis by the ME in consultation with the treating physician. Before certification is considered, it is suggested that a 6-month waiting period elapse from the time of the episode. Following the waiting period, it is suggested that the individual have a complete neurological examination. If the results of the examination are negative and anti-seizure medication is not required, then the driver may be qualified.
In those individual cases where a driver has had a seizure or an episode of loss of consciousness that resulted from a known medical condition (
Drivers who have a history of epilepsy/seizures, off anti-seizure medication, and seizure-free for 10 years, may be qualified to operate a CMV in interstate commerce. Interstate drivers with a history of a single unprovoked seizure may be qualified to drive a CMV in interstate commerce if seizure-free and off anti-seizure medication for a 5-year period or more.
As a result of MEs misinterpreting advisory criteria as regulation, numerous drivers have been prohibited from operating a CMV in interstate commerce based on the fact that they have had one or more seizures and are taking anti-seizure medication, rather than an individual analysis of their circumstances by a qualified ME based on the physical qualification standards and medical best practices.
On January 15, 2013, FMCSA announced in a notice of final disposition titled, “Qualification of Drivers; Exemption Applications; Epilepsy and Seizure Disorders,” (78 FR 3069), its decision to grant requests from 22 individuals for exemptions from the regulatory requirement that interstate CMV drivers have “no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a CMV.” Since that time, the Agency has published additional notices granting requests from individuals for exemptions from the regulatory requirement regarding epilepsy found in § 391.41(b)(8).
To be considered for an exemption from the epilepsy and seizure disorders
Keith Dohrmann is a 38-year-old class D license holder in Minnesota. They have a history of epilepsy and have been seizure free since January 2012. They take anti-seizure medication with the dosage and frequency remaining the same since October 2018. Their physician states that they are supportive of Keith Dohrmann receiving an exemption.
Wallace Ferguson is a 61-year-old class R license holder in Colorado. They have a history of partial onset epilepsy and have been seizure free since 2011. They take anti-seizure medication with the dosage and frequency remaining the same since 2012. Their physician states that they are supportive of Wallace Ferguson receiving an exemption.
Derek Jazdzewski is a 33-year-old class D license holder in Wisconsin. They have a history of seizure disorder and have been seizure free since September 2013. They take anti-seizure medication with the dosage and frequency remaining the same since 2016. Their physician states that they are supportive of Derek Jazdzewski receiving an exemption.
Charles E. Johnson is a 47-year-old class A license holder in Kansas. They have a history of non-intractable absence epilepsy and have been seizure free since 2011. They take anti-seizure medication with the dosage and frequency remaining the same since 2015. Their physician states that they are supportive of Charles E. Johnson receiving an exemption.
Michael Littleton is a 47-year-old class R license holder in Colorado. They have a history of epilepsy and have been seizure free since January 2014. They take anti-seizure medication with the dosage and frequency remaining the same since January 2014. Their physician states that they are supportive of Michael Littleton receiving an exemption.
Robert Newhand is a 32-year-old class D license holder in New York. They have a history of partial symptomatic epilepsy and have been seizure free since 2015. They take anti-seizure medication with the dosage and frequency remaining the same since 2015. Their physician states that they are supportive of Robert Newhand receiving an exemption.
Kristopher Pettitt is a 42-year-old class C license holder in California. They have a history of epilepsy and have been seizure free since November 2011. They take anti-seizure medication with the dosage and frequency remaining the same since 2011. Their physician states that they are supportive of Kristopher Pettitt receiving an exemption.
Taylor Ramey is a 32-year-old class C license holder in Texas. They have a history of epilepsy and have been seizure free since 2013. They take anti-seizure medication with the dosage and frequency remaining the same since May 2013. Their physician states that they are supportive of Taylor Ramey receiving an exemption.
Herbert Spike is a 49-year-old class D license holder in Connecticut. They have a history of generalized epilepsy and have been seizure free since 2009. They take anti-seizure medication with the dosage and frequency remaining the same since 2014. Their physician states that they are supportive of Herbert Spike receiving an exemption.
Scott Stone is a 50-year-old class BM commercial driver's license holder in Wyoming. They have a history of epilepsy and have been seizure free since 2004. They take anti-seizure medication with the dosage and frequency remaining the same since 2004. Their physician states that they are supportive of Scott Stone receiving an exemption.
Andrew Toler is a 33-year-old class D license holder in Virginia. They have a history of a single unprovoked seizure and have been seizure free since 2012. They have not taken anti-seizure medication. Their physician states that they are supportive of Andrew Toler receiving an exemption.
In accordance with 49 U.S.C. 31136(e) and 31315(b), FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. We will consider all comments received before the close of business on the closing date indicated under the
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice.
The Federal Railroad Administration (FRA) is issuing this notice to encourage development of high-speed rail (HSR) system projects intended for operations over 160 miles per hour by establishing a streamlined process for reviewing domestic sourcing and workforce plans. Specifically, this notice summarizes FRA's intent to invite HSR project sponsors to voluntarily submit for review, in advance of receipt of DOT funding, their domestic sourcing and workforce plans. This notice provides further clarification to the December 7, 2022, Notice of Funding Opportunity for the Federal-State Partnership for Intercity Passenger Rail Program, which stated that FRA expects all applicants to comply with Buy America requirements without needing a waiver. However, to obtain a waiver, an applicant must be prepared to demonstrate how they will maximize the use of domestic goods, products, and materials in constructing their project.
If an applicant anticipates it may need a waiver, the applicant should indicate the need in its application and submit materials necessary for such requests together with its application. This notice provides further detail on the recommended content of these materials. This notice also serves as an RFI to assist with planning a U.S. domestic content High Speed Rail Industry Exchange Day (Industry Day).
Applicable on March 22, 2023.
Comments should refer to docket number FRA-2022-0084 and be submitted at
For questions about this notice, please contact Mr. David Valenstein, Office of Railroad Development, Federal Railroad Administration, 1200 New Jersey Avenue SE, Room W38-314, Washington, DC 20590; email:
FRA is inviting sponsors of high-speed, steel wheel on steel rail electrically powered passenger railroad projects intended for operations over 160 miles per hour to voluntarily submit for review their domestic sourcing and workforce plans associated with FRA's Buy America requirements
FRA's “Buy America: Answers to Frequently Asked Questions” (FAQs) describe FRA's procedures for applying Buy America, including issuing waivers, to programs such as FSP-National and RRIF (
• Comply with Build America, Buy America Act and FRA Buy America requirements, including final assembly in the United States and appropriate domestic content thresholds.
• Maximize the use of domestically produced goods, products, and materials. Where domestically produced goods, products, and materials are not currently available in sufficient quantities or of an acceptable quality to meet demand, applicants are expected to provide robust evidence of non-availability or unreasonable cost.
• Prepare and implement a domestic sourcing plan for their HSR projects. The plan should describe how recipients will maximize the use of available domestic content, or, if such content does not currently exist, how they will work with suppliers to build production capacity and the plan should provide justification regarding the use of the imported goods, products, and materials. If a waiver is needed, the applicant should describe the associated implementation plan and expected timeline to reach full FRA Buy America and BABA compliance. The plan may include—
○ Detail on the extent to which HSR system goods, products, and materials are not available in the United States; the extent to which the goods, products, and materials for the HSR project can be sourced domestically; and the justification for imported items supported by robust evidence and analysis of industry supply relative to project demand.
○ An explanation of how the recipient anticipates meeting full FRA Buy America and BABA compliance.
○ An explanation of how the recipient anticipates using domestic sources for maintenance and replacement of initially imported goods and materials used in the projectand/or how the recipient will scale domestic content over time by supporting new or expanded domestic production of initially imported goods and materials.
○ An explanation of how the applicant, and, if applicable, its domestic suppliers, plan to support the creation of high-quality American jobs consistent with Good Jobs Principles. The Department intends to use the HSR program to support the creation of good-paying jobs with the free and fair choice to join a union and the incorporation of strong labor standards and training and placement programs consistent with Executive Order 14025, Worker Organizing and Empowerment (86 FR 22829), and Executive Order 14052, Implementation of the Infrastructure Investment and Jobs Act (86 FR 64335). These provisions will be considered in conjunction with domestic sourcing plans so that, when taken together, the domestic sourcing and workforce plans present a commitment to create high-quality jobs for the communities in which the project will operate.
FRA acknowledges that domestic sourcing plans may contain material the submitter considers to be confidential commercial information or trade secrets (collectively, CCI), and not customarily released to the public. Project sponsors should indicate as such domestic sourcing plans they consider to be CCI and not customarily released to the public, and request that the information be protected from release. To the extent permitted by law, FRA will not release such information. FRA will handle subsequent Freedom of Information Act, 5 U.S.C. 552, requests for the information according to the regulatory process described at 49 CFR part 7.
High speed rail manufacturing, assembly, installation, and maintenance all have the potential to not only support policies on sustainability and climate, but also to create good-paying, union jobs in the United States. DOT is interested in hearing from the public, including stakeholders (such as State and local agencies, the rail manufacturing industry, component suppliers, labor unions, related associations, and transportation advocates), to gather information on manufacturing and assembly processes in the United States for high-speed rail.
Issued in Washington, DC.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Denial of petition.
Daimler Trucks North America, LLC (DTNA), has determined that certain model year (MY) 2020-2021 Freightliner Cascadia motor vehicles (heavy trucks) do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 108,
Leroy Angeles, Office of Vehicle Safety Compliance, NHTSA, (202) 366-5304.
DTNA has determined that certain MY 2020-2021 Freightliner Cascadia heavy trucks do not fully comply with the requirements of paragraphs S4, S6.1.5.1, S9.6.2, S14.9.3.9.3, and Figure 2 of FMVSS No. 108,
Notice of receipt of DTNA's petition was published with a 30-day public comment period, on April 13, 2022, in the
Approximately 24,282 MY 2020-2021 Freightliner Cascadia heavy trucks manufactured between January 16, 2019, and March 27, 2020, are potentially involved.
DTNA identified two noncompliances pertaining to the subject trucks' hazard warning signal lamps. First, the hazard warning signal lamps do not meet the flash rate required by paragraph S6.1.5.1 of FMVSS No. 108 under all operating conditions. Specifically, if a subject vehicle is operated at a speed of 20 miles per hour
Paragraphs S4, S6.1.5.1, S9.6.2, S14.9.3.9.3, and Figure 2 of FMVSS No. 108 include the requirements relevant to this petition. Paragraph S4 defines the “vehicular hazard warning signal operating unit” as a driver-controlled device that causes all required turn signal lamps to flash simultaneously to indicate to approaching drivers the presence of a vehicular hazard. Paragraph S6.1.5.1 requires that “[i]n all passenger cars, multipurpose passenger vehicles, trucks, and buses, the activation of the vehicular hazard warning signal operating unit must cause to flash simultaneously sufficient turn signal lamps to meet, as a minimum, the turn signal photometric requirements of this standard.” Paragraph S9.6.2, in part, requires that the vehicular hazard warning signal operating unit must provide a means for actuating all switches simultaneously by a single driver action. Paragraph S14.9.3.9.3, in part, requires that the flash rate cannot exceed 120 flashes per minute under the conditions shown in Figure 2.
The views and arguments presented in this section summarize the views and arguments provided by DTNA in its petition, including amendments. They do not reflect the views of the Agency. DTNA describes the subject noncompliances and states its belief that the noncompliances are inconsequential as they relate to motor vehicle safety.
DTNA identifies the three phases of an Active Brake Assist (ABA) event as follows: the Optic Acoustic Warning (OAW) phase, the Warn (Haptic) Braking (WB/HB) phase, and the EB phase. DTNA explains that the first phase—the OAW phase—warns the operator of a possible collision with a pop-up and audio alert only. The truck will then move into the second phase—the WB/HB phase—to assist the driver in mitigating a possible collision if the driver does not apply sufficient deceleration to the service brakes by applying 50 percent deceleration to the vehicle. DTNA further explains that “[i]f the system deems it necessary,” the ABA will start the third phase—the EB phase—which applies maximum braking force to assist the driver in bringing the truck to a complete halt. Additionally, DTNA states that the warning system only engages during this third phase, and, therefore, the third phase is the only time when the hazard warning signal lamps are automatically activated at a flash rate that exceeds the allowable limit.
DTNA provides background information, detailing the development of its ABA system,
With respect to the noncompliant flash rate, DTNA further contends that the flashing warning lights provide drivers of other vehicles with a safe indication of the aggressiveness of the braking. DTNA claims that NHTSA has previously found that under certain extreme braking events, flashing warning lights may be regarded as a safe indicator for rear signaling, citing a NHTSA study, which stated that “a rear-signaling system that extinguishes somewhat after a vehicle comes to a complete stop should provide benefit by reducing a substantial percentage of collisions with stopped lead vehicles, while reducing annoyance caused by extended signaling after a vehicle is stopped. Data suggest this type of signal would address approximately 45 percent (10 out of 22) of stopped-lead-vehicle crashes.”
Additionally, DTNA says that NHTSA has previously granted petitions for noncompliances, similar to the subject noncompliant flash rate,
DTNA states that it is not aware of any accidents, injuries, owner complaints or field reports in relation to the subject noncompliances.
On September 13, 2021,
In the amended petition, DTNA contends that this second noncompliance is also inconsequential because the “limited context in which the hazard lamps automatically activate ensures the message which the hazard warning lamps is communicating is clear and does not confuse other drivers about the meaning of the lamps.” DTNA again explains the phases of its ABA system and says that if the driver does not disengage the ABA system, the system will apply the maximum braking force and cause the truck to come to a complete stop. When the EB is activated during the third and final phase, while the subject truck is traveling at 20 mph or more, “the hazard warning lamps are automatically activated and flash at a rate of 140 Hz.” Therefore, DTNA says, the automatic activation of the hazard warning signal lamps would not occur in stop and go traffic. DTNA notes that after the subject truck comes to a complete stop, the hazard warning lamps revert to a standard flash rate and “the hazard warning signal operating unit can be manually engaged by the driver” throughout the ABA event.
DTNA then contends that the automatic activation of the hazard warning signal lamps is consistent with two prior NHTSA interpretations in which DTNA argues that “the agency has found automatic activation of the hazard warning signal operating unit to be appropriate in certain circumstances.” Specifically, DTNA claims that NHTSA's November 18, 2016, interpretation letter to General Motors (GM)
DTNA argues the automatic activation of hazard warning signal lamps is also consistent with the condition found in the interpretation letter to GM.
DTNA concludes its petition by expressing its belief that the subject noncompliances are inconsequential as they relate to motor vehicle safety, and that its petition to be exempted from providing notification of the noncompliances, as required by 49 U.S.C. 30118, and a remedy for the noncompliances, as required by 49 U.S.C. 30120, should be granted.
The burden of establishing the inconsequentiality of a failure to comply with a
In determining inconsequentiality of a noncompliance, NHTSA focuses on the safety risk to individuals who experience the type of event against which a recall would otherwise protect.
The Agency disagrees with DTNA that the increased flash rate during the AEB event is negligible. Rather, the Agency believes that the noncompliant flash rate is noticeable and concerning. Notably, the increase in flash rate would not occur if automatic activation of the hazard warning signal lamps were not present.
NHTSA disagrees with DTNA's assertion about the Agency's October 2007 study entitled “Analyses of Rear-End Crashes and Near-Crashes . . . ” (DOT HS 810 846), which DTNA cites to argue that NHTSA has previously found that flashing warning lights under certain extreme braking events may be regarded as a safer indicator for rear signaling. NHTSA finds that the conclusions in the Agency's 2007 study do not support a finding that DTNA's noncompliance is inconsequential to vehicle safety for several reasons. First, DTNA's hazard warning signal lamps are not equivalent to the enhanced rear-lighting system referenced in the study. The study expressly pointed out that these enhanced concepts are intended to supplement rather than replace conventional rear signaling. Second, as explained in the study, the research was performed by an external party and it explicitly states that, “the opinions, findings, and conclusions expressed in
NHTSA also disagrees with DTNA's interpretation of Groendyke Transportation's 30-month study, which found that a “pulsating amber brake light reduced rear-end collisions by roughly 34%.” First, the lamps that formed the basis of Groendyke's petition were part of an additional brake-activated amber flashing auxiliary lamp—which is a different type of system than DTNA's subject system—and importantly, the vehicles on which they were installed retained the compliant steady-burning brake lamps. Second, NHTSA finds that the data generated by Groendyke's study is not statistically significant and there could be any number of exogenous factors as to why the number of rear-end collisions differ, which might not have anything to do with the installation of the pulsating amber brake light. Third, the data presented by Groendyke did not include detailed data on the types of crashes experienced by its fleet, which NHTSA would need in order to properly evaluate the effectiveness of Groendyke's additional lamps. Therefore, the results of this study are questionable and not applicable to other systems that modify the behavior of the required lamps, as is the case in the subject petition.
DTNA states that NHTSA has previously granted petitions for noncompliances similar to the noncompliant flash rate—where those noncompliances only occur “under specific and rare conditions,” and “were granted for short duration of occurrence.” However, the Agency is unable to properly address this assertion because DTNA did not provide any data that would quantify the rarity of the subject noncompliance. Nevertheless, we address each petition below in the order it was cited.
DTNA claims in its petition that the Agency's June 18, 2001, grant of a GM petition, 66 FR 32871, is an Agency decision that supports DTNA's petition. The Agency disagrees with DTNA and finds that the Agency's 2001 grant is irrelevant to both of DTNA's subject noncompliances. In that decision, the Agency determined that the brief single flash of the center high mounted stop lamp during the activation of the hazard warning signal lamps as not rising to the level of impairment that would detract or confuse other road users on the meaning of the hazard warning signal lamp. In contrast, DTNA's system may confuse other road users because it intentionally uses the hazard warning signal lamps to indicate braking which is a non-standard signal.
Next, DTNA refers to the Agency's February 22, 2018, grant of a GM petition, 83 FR 7847, as an Agency decision that supports DTNA's petition. The Agency again disagrees with DTNA because the noncompliance at issue in the Agency's 2018 decision is not comparable with DTNA's subject noncompliance due to a difference in the likelihood of an occurrence. For example, GM's subject noncompliance occurred under very limited and unusual circumstances, it was difficult to recreate in laboratory settings, and it was highly unlikely to occur under normal driving conditions.
DTNA provides three additional Agency decisions on inconsequentiality petitions
Finally, DTNA offers the Agency's November 4, 1996, grant of a GM petition, which is also irrelevant to DTNA's petition. GM's petition concerned intermittent operation of the turn signal self-canceling feature, which caused the turn signal to continue to flash after the affected vehicles completed a turn. Consequently, NHTSA considered the impact on vehicle safety when an operator of an affected vehicle did not notice that the turn signal continued to flash. The Agency's decision on GM's petition is irrelevant because it concerned a vehicle that had an alternate system—a chime—which served to remind the operator to turn off the turn signal if the turn signal remained activated for more than half a mile. Overall, the facts in GM's petition are completely different from the subject petition and do not concern either the hazard warning signal lamps or the intentional activation of a non-standard signal.
NHTSA does not agree with DTNA's assertion that its hazard warning signal
While DTNA believes that this noncompliance is also inconsequential because the “limited context in which the hazard lamps automatically activate ensures the message which the hazard warning lamps is communicating is clear and does not confuse other drivers about the meaning of the lamps,” NHTSA disagrees. As NHTSA noted in the 2016 letter to GM, the purpose of the hazard warning is to indicate to approaching drivers that the vehicle is stopped or is proceeding at a slower rate than surrounding traffic. So, for example, we have opined that the hazard lights may be automatically activated following a crash
On the other hand, we have expressly found that automatic activation of the hazard lights is not permitted to indicate a braking event, such as “hard” braking. For example, in a letter to Steele Enterprises, we opined that the hazards could not be automatically activated upon application of a vehicle's anti-lock brake system.
DTNA's reliance on the letter to Senator Lugar is therefore misplaced. We disagree that the automatic activation in the subject trucks—when the truck is in motion to indicate an emergency braking event—is consistent with the type of message the hazard lamps are intended to convey. We also disagree that the hazard warning lamps remaining activated after the AEB event has concluded and the truck resumes in motion is permitted. Neither case represents the circumstances in which the hazard lights are customarily used. Moreover, because the truck's stop lamps (which are steady-burning) are activated in the second phase, activating the hazard lamps in the third phase, should the attached trailer be configured to have a combined stop lamp and turn signal lamp, would cause the stop lamps to flash. We believe both of these aspects of the warning activation, either separately or in combination, have the potential to confuse other motorists that follow an affected truck. Finally, while DTNA states that “throughout the ABA event, the hazard warning signal operating unit can be manually engaged by the driver,” NHTSA believes this is an irrelevant argument as DTNA's system automatically operates the hazard warning signal lamps even when it is not manually activated.
In consideration of the foregoing, NHTSA has decided that DTNA has not met its burden of persuasion that the subject FMVSS No. 108 noncompliances are inconsequential to motor vehicle safety. Accordingly, DTNA's petition is hereby denied and DTNA is obligated to provide notification of and free remedy for the noncompliances under 49 U.S.C. 30118 and 30120.
Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, PHMSA invites comments on three Office of Management and Budget (OMB) control numbers pertaining to hazardous materials transportation. PHMSA intends to request renewal for these three control numbers from OMB.
Interested persons are invited to submit comments on or before May 22, 2023.
You may submit comments identified by the Docket Number PHMSA-2023-0007 (Notice No. 2023-02) by any of the following methods:
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Requests for a copy of an information collection should be directed to Steven Andrews or Glenn Foster, Standards and Rulemaking Division, (202) 366-8553, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590-0001.
Steven Andrews or Glenn Foster, Standards and Rulemaking Division, (202) 366-8553, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590-0001.
Section 1320.8(d), title 5, Code of Federal Regulations (CFR) requires PHMSA to provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests. This notice identifies information collection requests that PHMSA will be submitting to OMB for renewal and extension. These information collections are contained in 49 CFR 171.6 of the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180). PHMSA has revised burden estimates, where appropriate, to reflect current reporting levels or adjustments based on changes in proposed or final rules published since the information collections were last approved. The following information is provided for each information collection: (1) title of the information collection, including former title if a change is being made; (2) OMB control number; (3) summary of the information collection activity; (4) description of affected public; (5) estimate of total annual reporting and recordkeeping burden; and (6) frequency of collection. PHMSA will request a 3-year term of approval for each information collection activity and will publish a notice in the
PHMSA requests comments on the following information collections:
The following information collections and their burdens are associated with this OMB Control Number:
(1) Each meter prover must undergo and pass an annual external visual inspection to ensure that the meter provers used in the flow of liquid hazardous materials into bulk packagings are accurate and in conformance with the performance standards in the HMR.
(2) Each meter prover must undergo and pass a hydrostatic pressure test at least every 5 years to ensure that the meter provers used in the flow of liquid hazardous materials into bulk packagings are accurate and in conformance with the performance standards in the HMR.
(3) Each meter prover must successfully complete the test and inspection and must be marked in accordance with 49 CFR 180.415(b) and 173.5a.
(4) Each owner must retain a record of the most recent visual inspection and pressure test until the meter prover is requalified.
The following information collections and their burdens are associated with this OMB Control Number:
Annual Reporting and Recordkeeping Burden:
Notice and request for public comment, correction.
The Department of the Treasury, Community Development Financial Institutions Fund (the CDFI Fund) published a document in the
Terri A. Dawson, Executive Assistant to the CDFI Fund Director, 202-653-0341.
In the
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC's List of Specially Designated Nationals and Blocked Persons (SDN 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
OFAC: Andrea Gacki, Director, tel.: 202-622-2490; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel.: 202-622-4855; or the Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On January 5, 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 authority listed below.
1. AL-KHATUNI, Abd Al Hamid Salim Ibrahim Ismail Brukan, (a.k.a. ALISMAEEL, Abdulhameed Salim Ibrahim; a.k.a. AL-KHATUNI, `Abd-al-Hamid Salim Ibrahim Isma'il; a.k.a. “AL-KHATUNI, Brukan”), Mersin, Turkey; DOB 01 Sep 1970; alt. DOB 12 Jan 1970; POB Ba'aj, Iraq; nationality Iraq; Gender Male; Secondary sanctions risk: section 1(b) of Executive Order 13224, as amended by Executive Order 13886 (individual) [SDGT] (Linked To: ISLAMIC STATE OF IRAQ AND THE LEVANT).
Designated pursuant to section 1(a)(iii)(C) of Executive Order 13224 of September 23, 2001, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism,” 66 FR 49079, as amended by Executive Order 13886 of September 9, 2019, “Modernizing Sanctions To Combat Terrorism,” 84 FR 48041 (E.O. 13224, as amended), for having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, the ISLAMIC STATE OF IRAQ AND THE LEVANT, a person whose property and interests in property are blocked pursuant to E.O. 13224.
2. AL-JUBURI, Lu'ay Jasim Hammadi (a.k.a. AL-JUBURI, Lu'ay Jasim Hammadi Mahdi; a.k.a. HAMMADI, Lu'ay Jasim; a.k.a. “Hajji Lu'ay”), Mersin, Turkey; DOB 06 Oct 1970; POB Baghdad, Iraq; nationality Iraq; Gender Male; Secondary sanctions risk: section 1(b) of Executive Order 13224, as amended by Executive Order 13886 (individual) [SDGT] (Linked To: ISLAMIC STATE OF IRAQ AND THE LEVANT).
Designated pursuant to section 1(a)(iii)(C) of E.O. 13224, as amended, for having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, the ISLAMIC STATE OF IRAQ AND THE LEVANT, a person whose property and interests in property are blocked pursuant to E.O. 13224.
3. AL-KHATUNI, Umar Abdul Hamid Salim Brukan (a.k.a. ALESMAIL, Omar Abdulhameed), Mersin, Turkey; DOB 15 May 1995; POB Mosul, Iraq; nationality Iraq; Gender Male; Secondary sanctions risk: section 1(b) of Executive Order 13224, as amended by Executive Order 13886 (individual) [SDGT] (Linked To: ISLAMIC STATE OF IRAQ AND THE LEVANT).
Designated pursuant to section 1(a)(iii)(C) of E.O. 13224, as amended, for having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, the ISLAMIC STATE OF IRAQ AND THE LEVANT, a person whose property and interests in property are blocked pursuant to E.O. 13224.
4. AL-KHATUNI, Muhammad Abdul Hamid Salim Brukan (a.k.a. AL-ISMAEEL, Mohammed Abdulhameed Salim), Mersin, Turkey; DOB 06 Jan 2002; nationality Iraq; Gender Male; Secondary sanctions risk: section 1(b) of Executive Order 13224, as amended by Executive Order 13886 (individual) [SDGT] (Linked To: ISLAMIC STATE OF IRAQ AND THE LEVANT).
Designated pursuant to section 1(a)(iii)(C) of E.O. 13224, as amended, for having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, the ISLAMIC STATE OF IRAQ AND THE LEVANT, a person whose property and interests in property are blocked pursuant to E.O. 13224.
1. SHAM EXPRESS (a.k.a. SHAM EXPRESS KARGO OTOMOTIV GIDA INSAAT ELEKTRONIK TEKSTIL ITHALAT IHRACAT SANAYI VE TICARET LIMITED SIRKETI), Cankaya Mah. Ismet Inonu Bulvari Yasat Ishani Sitesi No:118/134, Akdeniz, Mersin, Turkey; website
Designated pursuant to section 1(a)(iii)(C) of E.O. 13224, as amended, for having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, the ISLAMIC STATE OF IRAQ AND THE LEVANT, a person whose property and interests in property are blocked pursuant to E.O. 13224.
2. WADI ALRRAFIDAYN FOR FOODSTUFFS (f.k.a. AL-SARAF COMPANY FOR GENERAL TRADE; f.k.a. ALSARAF HAWALA OFFICE; f.k.a. AL-SARAF HAWALA OFFICE; a.k.a. WADI
Designated pursuant to section 1(a)(iii)(A) of Executive Order 13224, as amended, for being owned, controlled, or directed by, Abd Al Hamid Salim Ibrahim Ismail Brukan Al-Khatuni, a person whose property and interests in property are blocked pursuant to E.O. 13224, as amended.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Supplemental notice of proposed rulemaking (SNPRM).
FRA is proposing to amend its regulations related to occupational noise exposure in three ways. First, in response to a Congressional mandate, FRA is proposing to expand those regulations to require that railroads provide an appropriate atmosphere-supplying emergency escape breathing apparatus to every train crew member and certain other employees while they are occupying a locomotive cab of a freight train transporting a hazardous material that would pose an inhalation hazard in the event of release during an accident. Second, FRA is proposing to change the name of this part of its regulations from “Occupational Noise Exposure” to “Occupational Safety and Health in the Locomotive Cab” to reflect the additional subject matter of this SNPRM and to make other conforming amendments. Third, FRA is proposing to remove the provision stating the preemptive effect of this part of FRA's regulations because it is unnecessary.
Written comments on the proposed rule must be received by June 20, 2023. FRA will consider comments received after that date to the extent practicable.
Comments related to Docket No. FRA-2009-0044, Notice No. 2, may be submitted by going to
Michael Watson, Occupational Safety and Health Manager, Office of Railroad Safety, telephone 202-493-9544, email:
After fatalities resulting from the inhalation of chlorine gas following rail accidents in 2004 and 2005, the NTSB issued a recommendation that FRA require railroads to provide emergency escape breathing apparatuses (EEBAs) to their crewmembers.
FRA first issued an NPRM responsive to the mandate of Section 413 in October 2010.
This SNPRM proposes to amend subpart C of 49 CFR part 227 to require any freight railroad transporting a hazardous material that would pose an inhalation hazard if released during an accident to provide certain employees an appropriate atmosphere-supplying EEBA when occupying a locomotive cab. For reasons explained below, in FRA's response to public comments, FRA has decided that the primary concern in establishing the requirement for the provision of EEBAs should be focused on hazards that can result in poisoning through inhalation. This does not include simple asphyxiants but does include hazardous materials that PHMSA identifies as “materials poisonous by inhalation,” which are commonly referred to as “PIH materials” and are defined by PHMSA's Hazardous Materials Regulations as: (1) a gas meeting the defining criteria in 49 CFR 173.115(c) (
PIH materials that are regularly carried by railroads include chlorine gas, anhydrous ammonia, ethylene oxide, and anhydrous hydrofluoric acid. Together these four products make up over 90 percent of PIH material shipments by rail. Such commodities are readily identifiable by train crews, both because a “rail car transporting any quantity of a hazardous material (including either a load or the residue
This SNPRM also proposes railroads that transport a PIH material on the general railroad system of transportation establish and carry out programs for: selection, procurement, and provision of EEBAs; inspection, maintenance, and replacement of EEBAs; and instruction of employees in the use of EEBAs. Railroads would be required to identify individual employees or positions to be placed in their general EEBA programs so that a sufficient number of EEBAs are available and to ensure that the identified employees or incumbents of the identified positions know how to use the devices. This SNPRM would require railroads provide for storage of EEBAs in locomotive cabs to enable employees to access the apparatus quickly in the event of a release of a hazardous material that poses an inhalation hazard.
Because the proposals in this SNPRM would add a new subpart to 49 CFR part 227, FRA is also proposing conforming changes, minor corrections, and updates to the existing provisions of part 227. Further, FRA is removing the provision at 49 CFR 227.7 on the preemptive effect of part 227 as it is unnecessary because it is duplicative of statutory law at 49
FRA analyzed the economic impact of this SNPRM. FRA estimated the costs estimated to be incurred by railroads and the benefits of fewer injuries to crewmembers from PIH material releasing after an accident/incident.
FRA is proposing a rule that would enable covered employees in locomotive cabs, whose freight train is transporting PIH materials, to wear EEBAs in the event of a release of such materials. This proposed rule would require that an EEBA be provided for each covered employee in a locomotive cab on a freight train transporting any PIH material. These EEBAs would provide neck and face coverage with respiratory protection for these covered employees. As proposed, railroads must also ensure that the equipment is maintained and in proper working condition. Finally, railroads would be required to train covered employees on the use of the EEBAs. The main objective of this proposed rule is to protect to protect covered employees from the risk of exposure to PIH materials while the employees are in the locomotive cab or escaping from a hazardous materials release posing an inhalation hazard.
Details on the estimated costs of this SNPRM can be found in the RIA, which FRA has prepared and placed in the docket (FRA-2009-0044). The RIA presents estimates of the costs likely to occur over the first 10 years of the proposed rule. The analysis includes estimates of costs associated with the purchase of EEBAs and installation, employee training, and recordkeeping.
FRA has estimated costs for three options that are permissible under the rule. These include:
•
•
•
For all three options, FRA developed estimates using a closed-circuit EEBA.
FRA estimates the 10-year costs of the proposed rule to be between $27.1 million to $91.6 million, discounted at 7 percent. The following table shows the total costs of this proposed rule, over the 10-year analysis period.
The SNPRM is expected to improve railroad safety by ensuring that all covered employees in locomotives on freight trains transporting PIH material can safely vacate the exposed area if a PIH material release were to occur. The primary benefits include heightened safety for covered employees and, as a result, earlier awareness/notification to the public of any catastrophic release of a PIH material. Implementation of the SNPRM should mitigate the injuries to covered employees from PIH material releasing after an accident/incident. During a 10-year period, this analysis finds $43,110 (PV, 7 percent) in safety benefits could accrue through injury prevention.
Section 413 of the RSIA mandates that the Secretary of Transportation (Secretary) adopt regulations requiring railroads to provide EEBAs for the train crews in the locomotive cabs of any freight train transporting a hazardous material in commerce that would present an inhalation hazard in the event of a release. Specifically, the statute instructs the Secretary to prescribe regulations requiring railroads to: (1) ensure that EEBAs affording suitable “head and neck coverage with respiratory protection” are provided “for all crewmembers” in a locomotive cab on a freight train transporting “hazardous materials that would pose an inhalation hazard in the event of a release;” (2) provide a place for convenient storage of EEBAs in the locomotive that will allow “crewmembers to access such apparatus quickly;” (3) maintain EEBAs “in proper working condition;” and (4) provide crewmembers with appropriate instruction in the use of EEBAs. The Secretary has delegated the responsibility to carry out his responsibilities under this section of the RSIA to the Administrator of FRA. 49 CFR 1.89(b). Additionally, FRA is issuing this SNPRM under the authority of 49 U.S.C. 20103 and 49 U.S.C. 20701-
As noted in the 2010 NPRM, historical data suggests limited train crew injuries and fatalities related to the catastrophic release of a PIH material; in the last decade (2012 to 2021), there were no PIH-related fatalities of T&E personnel, and only two injuries, both of which resulted in symptoms due to one-time inhalation exposure to airborne contamination.
While rail accidents involving the release of PIH materials are S as demonstrated by the June 2004 rail accident in Macdona, Texas, and the January 2005 accident in Graniteville, South Carolina, such accidents can be deadly to both the crew members involved and others in the vicinity. Both the Macdona and Graniteville accidents involved the release of a PIH material (chlorine) and both accidents resulted in the deaths of crewmembers.
The collision near Macdona occurred on June 28, 2004. According to the NTSB's report,
The Graniteville accident occurred on January 6, 2005, when a freight train encountered a switch that had been improperly lined. The improperly lined switch diverted the train from the main line onto an industry track. Once on the industry track, the train struck an unoccupied, parked train. The collision resulted in the derailment of two locomotives and 16 freight cars on the diverted train, as well as the locomotive and one of the two cars of the parked train. There were three tank cars containing chlorine among the derailed cars on the diverted train. One of the cars containing chlorine was breached causing a release of chlorine gas, which resulted in the train engineer and eight other people dying from chlorine gas inhalation.
Following the Macdona and Graniteville accidents, the NTSB issued Safety Recommendation R-05-17 to FRA recommending that FRA determine the most effective methods of providing emergency escape breathing apparatus for all crewmembers on freight trains carrying hazardous materials that would pose an inhalation hazard in the event of unintentional release, and then require railroads to provide those breathing apparatus to their crewmembers along with appropriate training.
In response to NTSB Safety Recommendation R-05-17, FRA commissioned a study of EEBAs in cooperation with the railroad industry and railroad labor. As part of the study, FRA compiled factual information, performed technical, risk, and economic analyses, and made recommendations on “the use of [EEBAs] by train crews who may have exposure to hazardous materials [that] would pose an inhalation hazard in the event of unintentional release.” The study, published in 2009, provided information and recommendations on the use of EEBAs by train crews who may be exposed to hazardous materials that pose inhalation hazards. The study concluded that railroads should consider using EEBAs on trains transporting hazardous materials that pose in inhalation hazard.
In December 2016, FRA published, in the absence of a final rule, Guidance for Developing an EEBA Program.
As explained in the 2010 NPRM, EEBAs are “respirators” and generally there are two different types of respirators: air purifying and atmosphere-supplying. Air-purifying respirators remove specific air contaminants by passing ambient air through an air-purifying element, such as an air-purifying filter, cartridge, or canister. Atmosphere-supplying respirators supply breathing air from a source independent from the ambient atmosphere. Types of atmosphere-supplying respirators include airline supplied-air respirators and SCBA units. Based on the factors presented below, FRA is proposing to require an atmosphere-supplying respirator that provides adequate head and neck protection as well as giving sufficient time for its user to escape an IDLH atmosphere.
As explained in the 2010 NPRM, NIOSH, located within the Centers for Disease Control and Prevention of the U.S. Department of Health and Human Services, worked with government and industry partners to develop certification standards for respirators. The NIOSH regulations, codified at 42 CFR part 84, establish the requirements for NIOSH-certification of respirator equipment. NIOSH has also developed information on safe levels of exposure to toxic materials and harmful physical agents and issued recommendations for respirator use.
ISO has also established standards for respirator maintenance and use. The ISO is a network of national standards institutes in 162 countries, including the United States, through the American National Standards Institute. ISO develops international standards to assist in ensuring the safe performance of a wide range of EEBAs. While ISO is not a government organization, it works to establish performance standards that have scientific and technological bases while ensuring that products, falling within its purview, are safe and reliable for consumers. The organization has promulgated ISO 23269-1:2008(E), “Ships and marine technology—Breathing apparatus for ships—Part 1: Emergency escape breathing devices (EEBD) for shipboard use, First Edition (2008-02-01).” While ISO 23269-1:2008 is directed towards EEBAs on ships and marine technology, the standard can be reasonably transferred to the railroad environment. ISO 23269-1:2008 establishes performance specifications for EEBAs that are intended to provide air or oxygen to a user to facilitate escape from accommodation and machinery spaces, similar to a locomotive cab, with a hazardous atmosphere.
CEN serves a similar purpose as ISO in that it develops consensus standards for European countries. In creating these standards, CEN relies on the input of technical experts, business and consumer groups, and other societal interest organizations. Additionally, there is a measure of interconnectedness between the ISO and CEN, as CEN has entered into a cooperative agreement with ISO to avoid duplicative standards. In the area of escape respirators, CEN has developed two standards that railroads could use to identify an appropriate EEBA to provide to an employee. The first standard establishes requirements for approving closed-circuit escape respirators,
Additionally, OSHA, located within the U.S. Department of Labor, is responsible for developing and enforcing general workplace safety and health regulations related to respiratory protection. In furtherance of this responsibility, OSHA has promulgated extensive regulations governing the maintenance, care, and use of respirators of all types, including emergency escape devices.
In drafting this proposed rule, FRA considered the requirements of both Federal agencies (NIOSH and OSHA) as well as the ISO and EN standards to assist in determining the possible types of EEBAs that may be used by railroad employees covered under this rule. To determine which type or types of EEBAs are appropriate, FRA has looked to the comprehensive selection process for respirators developed by NIOSH.
FRA's investigation into the Graniteville accident found that the concentration of the toxic chlorine cloud over the accident site area was estimated to be approximately 2,000 parts per million (ppm).
The Graniteville accident demonstrated that railroad hazardous material incidents (meaning collisions, derailments, or other train accidents) involving the catastrophic loss of certain PIH materials have the potential to release IDLH concentrations and/or displace oxygen very quickly without the crew's knowledge. In such circumstances, the crew may need to respond to an incident by donning their EEBAs even before assessing the damage caused by an accident. Considering the variables associated with the transportation of hazardous materials via rail and the potential hazards that exist, FRA is, based on the NIOSH selection criteria, proposing to require that railroads provide an escape-type respirator to covered employees.
The single function of escape-type EEBAs is to allow sufficient time for an individual working in a normally safe environment to escape from suddenly occurring respiratory hazards. Given this function, the selection of the device does not rely on assigned protection factors designated by OSHA.
Pursuant to statutory requirements, and as proposed in the 2010 NPRM, this SNPRM would require providing a device with head and neck coverage. Escape-type SCBA devices are commonly used with full-face pieces or hoods. Such devices are usually rated from 3- to 60-minute units depending on the supply of air. The following two types of atmosphere-supplying SCBA would satisfy the protection requirements of this proposed regulation:
• Open-Circuit SCBA. These are typically classified as positive pressure, open-circuit systems whereby the user receives (inhales) clean air with 21 percent O
• Rebreathers. These can be positive-pressure or negative-pressure systems. Classified as closed-circuit O
First responders (such as firefighters) commonly use open-circuit positive pressure SCBA systems for entering the scene of an emergency event. However, such devices may not be best situated to the railroad environment. In addition to being heavy and cumbersome from incorporating a large, compressed air cylinder mounted to a harness, they also commonly incorporate use of a full-face piece. Depending on the program developed by each railroad, the incorporation of a full-face piece may be a logistically and economically difficult undertaking. To be effective, a full-face piece requires an airtight seal around the user's face, which means that each user must be personally fitted for the device. It also means the user must be cleanly shaven or otherwise free of excessive facial hair. The enforcement of such a requirement would be difficult at best.
FRA believes that hoods provide a useful alternative to full-face masks while protecting the face and neck. Hoods are universal fitting devices and can be used with open and closed-circuit SCBAs. Because they are universal fitting, hoods do not require personally fitting the user, and hoods operate efficiently regardless of most eyewear, facial features, or hair. Significantly, hoods also allow the wearer to communicate while using the SCBA.
Experience has shown that a plume of hazardous material can travel quickly. As a result, it is vitally important that the train crew has adequate breathing time available to allow each member to move a significant distance from the site while protected from the ambient atmosphere. Because such incidents will often result from a collision, as was the case in Macdona and Graniteville, consideration should be given to those situations where additional time may be used to assist or extricate fellow crewmembers that may be hurt or trapped. For example, if it takes 10 minutes to assist a fellow crewmember and each is wearing a 15-minute open-circuit respirator, each crewmember is left with five minutes to escape from any plume that may be present. Moreover, often individuals will have a tendency to over-breathe in stressful situations, which will shorten the breathing time available in a respirator. In selecting an EEBA with sufficient breathing time, each railroad should take into consideration these factors and others that contribute to the “Murphy's Law” effects of accidents such as an incident occurring at night or in tight terrain. As a result, FRA is proposing to require that EEBAs being provided to covered employees have a 15-minute minimum breathing capacity. Further, FRA encourages railroads to consider EEBAs with a longer breathing capacity, to provide an extra margin for escape under stressful circumstances.
In proposing this regulation, FRA has decided not to propose a specific method by which railroads must provide EEBAs to covered employees.
Under this proposed rule, EEBAs may be treated as part of an employee's permanently issued items, similar to eye protection, radios, and lanterns. This method of distribution would allow railroads to permanently issue an EEBA to each potentially covered employee (
Alternatively, EEBAs may also be permanently assigned to an individual as a dedicated personal item that would be issued at the start of each shift and recovered at the end of each shift as part of the clock-in/clock-out process. This method allows for customization and allows the EEBA to be with the user at all times the user is on duty, while supporting centralized inspection and maintenance. However, the railroad may experience greater costs due to the increased size of its EEBA inventory since all train employees that have the potential to work in the locomotive cab of a freight train transporting a PIH material would require stocked EEBAs. This alternative may also create difficulties in the provision of EEBAs if the train employees who must have access to the EEBAs have more than one on-duty location.
A third option is to treat EEBAs as “pool” items. The EEBAs would not be assigned to a specific individual. They would be issued at the start of each shift and recovered at the end of each shift as part of the clock-in/clock-out process. This option supports centralized inspection and maintenance while minimizing number of EEBAs required, which could reduce costs substantially. FRA estimates that trains transporting PIH materials amount to approximately 0.2 percent of all train traffic, as cars carrying PIH materials are concentrated in relatively few trains. If railroads chose this option, they could stock enough EEBAs to cover 10 percent of the entire locomotive fleet for approximately $33.5 million over a 10-year period. Equipping enough EEBAs to cover 10 percent of the entire locomotive fleet should allow for every locomotive that will be part of train transporting a PIH material to be equipped with the necessary devices for each covered employee provided that the railroads exercise adequate resource management with respect to EEBAs. This would ensure that the EEBA would be with the user throughout his or her entire shift. However, railroads likely would have to allocate or build space at one or more locations (depending on the size of the railroad) to warehouse EEBAs that are not being used by covered employees. Moreover, an employee must be assigned to monitor the handing out and returning of devices, and the fewer the devices, the tighter the management will have to be. These factors increase the management burden for tracking and recovery of EEBAs. Additionally, this system also may have hidden costs, such as losing the benefits of “ownership” if EEBAs are treated as common property.
A fourth option is to have EEBAs permanently mounted in each locomotive cab in the railroad's fleet. This method would ensure that trains transported by the railroad that include a PIH material are always adequately equipped, while supporting centralized inspection and maintenance. The negative aspects of permanently mounting the EEBA selected by the railroad in the cabs of the railroad's locomotive fleet include the increased size of the railroad's EEBA inventory if non-covered consists would transport the EEBAs and if EEBAs must be provided for worst-case crewing (including possible supernumerary personnel such as deadheading employees), increased management burden for tracking/recovery, increased management burden for item inspection and maintenance, and unavailability of customized EEBAs. Additionally, FRA has estimated that the total 10-year cost of outfitting all locomotives to be approximately $105.3 million. These estimates could be reduced if railroads opted to dedicate a portion of their locomotive fleet to service for trains transporting PIH materials, but dedicating locomotives in this manner would likely result in decreased economic efficiency.
As discussed in VII. Information and Recommendations Provided by the Railroad Industry and Railroad Labor Organizations after the Study, AAR has proposed that Class I railroads interchanging locomotives with each other will provide the same type of EEBA while also using the same method of equipping the locomotive, which would expedite interchange between two Class I railroads. However, the option of permanently mounting a specific type of EEBA within each locomotive owned by a Class I railroad could create delays at interchange if the locomotives from nonparticipating railroads also are offered in interchange to Class I railroads to haul covered trains. The delay could occur if the nonparticipating railroad delivers a locomotive in interchange that either lacks an EEBA of any kind or that has an EEBA that does not conform to the type specified under the Class I railroad's general EEBA program under proposed § 227.211.
EEBAs also may be temporarily mounted in the locomotive cab as the train containing a shipment of PIH material is made up. Using this option would help to minimize the number of EEBAs required, while ensuring that each consist containing a PIH material is appropriately equipped. It would also allow the railroad to cater efficiently to differing crew sizes. Drawbacks with this method include increased management burden for the initial issue of EEBAs to the consist, increased management burden for tracking/recovery, increased management burden for item inspection and maintenance, and unavailability of customized EEBAs.
FRA recognizes that these are but a few of the numerous options for the provision of EEBAs, each having its own costs and benefits. Any of these options (or combination of these options), including options that have not been discussed above, is acceptable under this proposed rule, as long as a suitable EEBA is provided by the railroad to each covered employee while they are in a locomotive cab of a covered train and the transportation of covered hazardous materials via rail is not unduly delayed.
As previously mentioned, representatives of both the railroad industry and railroad labor cooperated with the FRA-sponsored study on the feasibility of providing EEBAs to train crews, the report of which was published in May 2009. AAR, UTU,
In July 2009, prior to the publication of the NPRM, representatives of AAR briefed FRA with information on AAR's exploration of alternative ways by which the rulemaking mandate under section 413 of the RSIA might be carried out. AAR has also offered recommendations to FRA on issues related to this rulemaking, including the type of EEBA and the mode of providing it that AAR thought would satisfy the statutory mandate. Subsequently, in a letter to FRA dated January 13, 2010, AAR encouraged FRA to incorporate by reference a draft specification establishing guidelines for: (1) vendors of EEBAs that would be used by Class I railroads; (2) mounting EEBAs on locomotives; and (3) requiring training support.
FRA considered incorporating by reference a finalized version of AAR's specification; however, FRA has ultimately decided not to do so. Many comments raised questions about the details of the specification, and FRA believes this proposed rule provides a better standard for efficiently complying
Additionally, in the course of drafting the NPRM, FRA representatives met with UTU and BLET representatives on March 31, 2010, who briefed FRA on issues related to the provision of EEBAs. AAR was also in attendance at this meeting. UTU felt that EEBAs should be “placed on all occupied locomotives which operate over a corridor where freight trains carry hazardous materials that pose an inhalation hazard in the event of a release.” Under UTU's recommendation, each occupied locomotive would be required to have working EEBAs—even if the occupied locomotive is not part of a train carrying asphyxiants or PIH materials—as long the locomotive is operating over a rail line that carries such materials.
During the March 31, 2010, meeting, UTU indicated that it opposed issuing EEBAs as personal items. UTU felt that adding an additional item to each train employee's required personal equipment would unnecessarily burden crewmembers. UTU was concerned with not only the added weight, but also the extra responsibility for care and maintenance that would fall to train employees in the event that EEBAs are provided as personal equipment. It contended that railroads are in a better position than the employees to maintain the devices and stated that treating EEBAs as personal equipment would not satisfy the intent of Congress in passing the legislation.
Finally, UTU stressed that there must be sufficient training of train employees in the use of EEBAs. Such training would ensure that train employees would know how to use EEBAs if presented with a situation in the field where their use was required. UTU expressed a strong desire for regular, hands-on training with devices selected by the railroads to achieve these ends.
FRA received 11 sets of comments on the 2010 NPRM from 12 different entities (BLET and UTU jointly submitted comments), covering a broad spectrum of interests which resulted in a number of revisions to this proposed rule. These commenters included the railroad industry, labor organizations, professional associations, respirator manufacturers, Federal agencies, and concerned individuals. In updating the proposed rule, FRA has considered each issue raised by the commenters, and it addresses those issues in this section.
NIOSH comments regarding footnote 4 in the preamble to the NPRM, which states that “[t]he proposed NIOSH regulations would be applicable to mine workers, but NIOSH provides that once the final rule is published it would be used to certify respirators in other work environments where escape respirators are supplied.” NIOSH suggests that the above-noted wording implies that the existing regulations only apply to certification of escape respirators for the mining work environment. However, the respirators certified for use under the existing regulations have been and continue to be used to certify respirators for use in other work environments where escape respirators are supplied. As the NIOSH rulemaking in question has been finalized, FRA has removed the footnote to avoid confusion.
Additionally, NIOSH recommends clarifying the preamble discussion on the type and performance level of protection to be provided by the required head and neck coverage (
NIOSH also recommends that the NIOSH-certified closed-circuit escape respirators, which use a chemical source for oxygen (
An individual commenter states that FRA's own data suggest the rule appears to be unnecessary, costly, and likely inimical to the safety of train crews. He contends that, considering the low fatality rate documented for hazardous material releases, FRA should put its resources in continuing to minimize the number and consequence of rail accidents involving hazardous materials. In response to this comment, FRA notes that the RSIA mandates that the Secretary adopt regulations requiring railroads to provide EEBAs for train crews in occupying locomotive cabs of any freight train transporting a hazardous material in commerce that would present an inhalation hazard in the event of a release. Given this statutory mandate, FRA is proposing a rule that not only considers the costs, but also provides a mechanism to enhance safety for railroad employees transporting hazardous materials presenting an inhalation hazard if a release occurs. Moreover, it is important to recognize that FRA has recently undertaken a number of rulemaking initiatives in a variety of disciplines, including re-engineering of tank cars (in cooperation with PHMSA), PTC, and amendments to operating rules, all designed to improve the safety of railroad operations, and thus reduce the rate of incidents, including those involving hazardous materials. As with all complex systems, however, there are occasions when failures do occur. This proposed rule would provide an additional element of protection for covered employees should an accident with a PIH release occur in the future.
The individual commenter also states that, in his experience with protective breathing gear, it is a liability unless employees are highly trained in using the devices. The commenter raises the concern that crews may waste precious time in donning EEBAs when the best course of action is to exit the predicament. Additionally, the commenter is concerned that such gear may result in increased panic by reducing situational awareness when presented with the stress of an accident. FRA has considered these issues while drafting this proposed regulation and expects that the time taken to don this gear will be minimal. In FRA's view, the use of an EEBA can enhance a covered employee's opportunity to escape a
BLET and UTU (jointly referred to as Labor) comment that FRA's NPRM understates the benefits of the proposed regulation. Labor contends that the value of preventing injuries necessarily requires a subjective assignment of casualties to several categories of an “Abbreviated Injury Scale,” the most severe of which is a critical injury. A critical injury is valued at 76.25 percent of the cost of a statistical human life. Labor then posits that if only 2 percent (14) of the 660 predictable inhalation casualties identified by FRA are deemed critical, then the benefit of the proposed rule would roughly equal the $73,900,000 cost that FRA associated with the 2010 NPRM if railroads permanently equip locomotives with open-circuit type EEBAs.
While Labor's comment correctly asserts that there were 660 inhalation casualties over the 10-year period presented in the 2010 NPRM, FRA reanalyzed that data to determine the relevance of these casualties to the issue of transporting hazardous materials that would pose an inhalation hazard in the event of a catastrophic release. FRA's analysis matched HMIS
Additionally, Labor takes issue with the cost-benefit discussion in the 2010 NPRM preamble because it contends that FRA implies it was pushed into implementing this rule by a Congressional mandate and “appears to be apologizing for implementing this rule because it might, in their analysis, cost the railroads money.” As a result, Labor asks that the preamble be edited to remove the following text “[a]lthough the costs associated with implementation of the proposed rule would likely exceed the benefits, FRA is constrained by the requirements of RSIA.”
Draeger Safety (Draeger) comments that the closed-circuit SCSR is the appropriate respirator that should be used for railroads. Draeger notes that SCSRs have been used extensively in the United States and internationally by the mining industry and on oil drilling platforms. Additionally, Draeger states that SCSRs are used by the U.S. Navy and by railway operations in Switzerland and Austria. SCSRs are currently approved by NIOSH under 42 CFR part 84. While the device mentioned in Draeger's comments may be the one selected by a railroad it is not the only type that will meet the requirements in the RSIA mandate or in the criteria laid out by FRA.
Chemical Facility Security News suggests that FRA should include a requirement to place chemical detectors and alarms on all asphyxiant gas and PIH railcars that would notify train crews when there is a leak that might require them to don their EEBAs. The commenter asserts that such detectors or alarms also would benefit those first responders at the scene. Additionally, Chemical Facility Security News argues that any usage requirements for EEBAs should also require a personal detector for the chemicals involved. Chemical Facility Security News states that this is the only way that train crewmembers will know if they have moved to a safe location that is suitable for removing an EEBA.
Under this proposed rule, railroads would be required to provide instruction for covered employees on the proper evacuation procedures and use of the EEBAs. Employees must also be instructed to evacuate the locomotive cab immediately during a release of a hazardous material that would present an inhalation hazard.
FRA has not included a provision in this proposed rule mandating that railroads provide chemical detectors or alarms for several reasons. First, as more than 20 listed PIH chemicals are transported by rail, it would not be possible to provide a single chemical detection device that would have the capability of detecting the full range of PIH materials (or asphyxiants) that may be encountered. According to the Chemical Facility Security News blog, “many of the covered chemicals cannot be detected by the human senses.” In fact, even the most innovative chemical detection devices are limited to the detection of only a handful of toxic industrial chemicals. In addition, chemical detection devices would only be reliable when the wearer is positioned downwind of the toxic vapor cloud and external to the locomotive cab. Also, it should be noted that if the concentration of the PIH material is high enough to create an IDLH environment, then the detection device may not provide sufficient time to take protective measures.
The acquisition and use of the devices would also be very expensive, especially considering the purchasing, maintenance (including factory maintenance and calibration), and training costs, and FRA does not believe it would provide additional protection for locomotive cab employees. FRA believes that in an emergency situation, such as an accidental release, covered employees should be focused on donning the EEBA and safely evacuating the locomotive instead of looking for a detection device to decide whether donning the EEBA and evacuating the locomotive is necessary.
Chemical Facility Security News also comments that there should be a serious look into whether a similar requirement should be provided for other transportation workers because trucks may haul similar chemicals and are involved in more accidents per mile than their railroad counterparts. FRA's regulatory authority is limited to establishing safety regulations for the railroad industry and, thus, this comment is beyond FRA's regulatory authority to implement.
ASLRRA comments address concerns about the financial impact of the RSIA mandate on the small railroad industry, which it contends is already stressed by the cumulative effect of other regulations and a lack of pricing power. ASLRRA states that this proposed regulation will not enhance safety for small railroads, since there have not been any fatalities, to its knowledge, arising out of the shipment of PIH materials by Class III railroads. Indeed, ASLRRA is concerned that the new requirements will reduce safety by forcing small railroads to take money from their capital budgets that would have been used for track maintenance and other infrastructure improvements. Separately, it notes that the effect of the proposed rule could be to shift transportation of PIH materials from rail lines to the nation's roads and highways, where the potential for catastrophic interaction with the broader public is much greater. As a result, ALSRRA requests that FRA seek an exemption from Congress for Class III railroads that handle PIH traffic on their own lines where train speeds do not exceed 30 miles per hour.
FRA understands ALSRRA's concerns, but the agency is constrained by section 413 of the RSIA. Unlike with PTC, Congress did not carve out an exemption for Class II and Class III railroads from the statutory requirement.
Labor raises concerns about placards and manifest accuracy. Labor contends that it would defeat Congressional intent in requiring the provision of the EEBAs if train crews are not aware that the freight train on which they are working is transporting or will encounter trains that are transporting materials that could pose an inhalation hazard if released. It asserts that train manifests must be 100-percent accurate to ensure that the train crew understands the need to have EEBAs on the train. As a result, Labor argues that the absence of clerical employees to verify the accuracy of train manifests could endanger the safety of operating employees as well as surrounding communities where PIH materials are transported. Further, Labor suggests that operating crews and shop employees who prepare locomotive consists for service should receive regular job briefings on the requirements for EEBAs in locomotive cabs.
With respect to Labor's concerns, FRA notes that, while placard and manifest accuracy are not included in the RSIA mandate, PHMSA already has regulations governing the accuracy of shipping papers, including manifests, markings, labels, and placards,
FRA did not receive any comments on the proposed changes to the sections in part 227, subparts A and B; did not receive comments on proposed §§ 227.213 and 227.215 in subpart C; and did not receive any comments regarding the amendment to part 227, appendix G.
FRA received a number of comments on proposed § 227.201(a)(1). While FRA continues to propose most of this provision without change, as discussed in detail below, FRA has modified the paragraph in this SNPRM by removing simple “asphyxiants” from the text of the regulation that identifies the items being transported that would trigger the requirement for providing EEBAs to covered employees. As modified, § 227.201(a)(1) would require the provision of EEBAs to each train employee, direct supervisor of a train employee, deadheading employee, and any other employee designated by the railroad when any of the employees is required to work in or occupy the locomotive cab of a covered train that is transporting a PIH material, which would include PIH material asphyxiants.
NIOSH suggests that FRA could require railroads to place EEBAs strategically at various locations in rail yards (
The RSIA established a limited statutory mandate to promulgate regulations that require railroads to provide EEBAs “for all crewmembers in locomotive cabs on freight trains carrying hazardous materials that would pose an inhalation hazard in the event of release.” If Congress had wanted the Secretary to promulgate expansive regulations covering areas outside the locomotive cab, then it would have chosen different language that could be read to cover areas other than locomotive cabs, including rail yards. Since Congress did not do so, FRA does not propose to include requiring the provision of EEBAs at strategically placed locations in rail yards. However, the rule in no way prohibits railroads from voluntarily locating EEBAs in the rail yards to allow employees to protect themselves in the event of a release within a rail yard.
Draeger suggests that §§ 227.1 and 227.201(a)(1) should be changed to cover any employee located in an occupied space of an in-service freight train. Draeger also raises the alternative of requiring that covered employees be provided with belts with EEBAs attached to them so that an EEBA will be available at all times. As noted in the preceding paragraph regarding NIOSH's suggestion of placing EEBAs strategically throughout rail yards, FRA believes the current proposed language in this section appropriately complies with the mandate established by the
Labor suggests amending proposed § 227.201(a)(1) to require every train employee who is required to operate a freight train, including local freight and transfer service, that may pass, follow, or operate on tracks adjacent to other trains that are carrying hazardous materials or residue in their manifest, must be provided with quick access to an emergency escape breathing apparatus. FRA declines to adopt this proposal for two reasons. First, as noted above, the RSIA is clear where EEBAs are required (
Labor also recommends amending proposed § 227.201(a)(1) to make clear that an RCO crewmember, who is riding in the locomotive cab of a freight train moving asphyxiants (presumably, this comment would apply to PIH materials as well), must be provided an EEBA. FRA addressed this issue in the preamble to the 2010 NPRM and does not see a need to amend the proposal in this SNPRM. FRA considered exempting RCOs who are not in the cab of a locomotive during the movement of an in-service freight train transporting a PIH material. FRA ultimately decided that a separate exclusion was unnecessary for RCOs conducting movements from the ground because an RCO is primarily on the ground when performing switching operations, which are not considered freight train movements under this part. As a result, railroads would not be required to provide EEBAs in the locomotive cab in such a circumstance. However, at the point that switching operations have ceased, and the crew is ready to leave the yard with an in-service freight train that is transporting a PIH material, FRA would expect the RCO to occupy the cab and ride in the locomotive from point A to point B. In the event that the RCO enters the locomotive cab for this type of movement, the rationale for excluding RCOs no longer exists, and is the railroad must provide the RCO with an EEBA.
AAR asserts in its comments that the proposed regulations requiring the provision of EEBAs in locomotive cabs should not apply to those asphyxiants that are not PIH materials. According to AAR, FRA's 2010 NPRM interpreted the RSIA in an overly broad manner when it proposed to apply the EEBA requirement to asphyxiants, rather than just PIH materials. AAR notes that there are a number of substances that would cause asphyxiation if a person were inhaling that substance and no oxygen, but Congress did not indicate its intent to require EEBAs for all such substances. AAR argues that FRA must consider this regulation in light of the Macdona and Graniteville accidents, which spurred Congressional action. Macdona and Graniteville both involved chlorine, a PIH material. Moreover, AAR notes that “there is no record of any rail-related fatality attributable to the inhalation of non-PIH substances.” Given these factors, AAR asserts that Congress did not intend to cover asphyxiants.
Additionally, relying on FRA's finding that the costs of the rulemaking exceed the benefits, AAR argues that FRA unjustifiably increases the burden imposed on industry by including asphyxiants in the proposed regulation that are not classified as PIH materials. AAR asserts that there are approximately 100,000 shipments of PIH materials per year, while there are approximately 200,000 shipments of asphyxiants that are not classified as PIH materials. Thus, according to AAR non-PIH material asphyxiants should be excluded from the regulation because they substantially add to the costs of this regulation without providing a benefit that exceeds such costs. As a result, AAR contends that FRA does not have an economic justification for exercising its discretion in manner that would include asphyxiants in the regulation.
Congress, in establishing the regulatory mandate in the RSIA, stated that EEBAs must be provided “for all crewmembers in locomotive cabs on freight trains carrying
There is no dispute that “hazardous materials that would pose an inhalation hazard” includes those products that fit within the PHMSA's definition of “materials poisonous by inhalation,” otherwise known as PIH materials. AAR appears to recognize that such materials were intended to be covered when Congress passed the RSIA. There has been substantial discussion about whether the term used by Congress includes simple asphyxiants. Because Congress did not use a commonly used and easily understood term with a specific definition, such as PIH materials, there seemed to be support for including asphyxiants as a category of products for which an EEBA must be provided to a crewmember occupying a locomotive on an in-service freight train. Thus, in the 2010 NPRM, FRA included asphyxiants as a category of products encapsulated within the term “hazardous materials that would pose an inhalation hazard.” The inclusion of asphyxiants was based on the concern that simple asphyxiants, such as CO
After reviewing this issue again and analyzing the comments received, however, FRA finds that the term “hazardous materials that would pose an inhalation hazard” is best understood as not including simple asphyxiants and has removed the term “asphyxiants” from the requirements of this proposed rule.
As noted by AAR, neither the Graniteville nor Macdona accidents, which appeared to spur Congress to action, involved a simple asphyxiant. Further, while there are some simple asphyxiants, such as LPG and CO
Additionally, FRA is mindful of the potential added costs that may fall to railroads that transport asphyxiants. Including asphyxiants within the requirements of this regulation would approximately triple the number of shipments where crewmembers must be provided with EEBAs without a resulting safety benefit. Regardless of how railroads intend to comply with the regulation's requirements, the inclusion of asphyxiants would require railroads to manage EEBAs on over triple the number of shipments when compared to requiring the provision of EEBAs for shipments of PIH materials alone.
Given all of these factors, FRA concluded it was unlikely that Congress intended “hazardous materials that would pose an inhalation hazard” to include non-PIH material asphyxiants, as such asphyxiants have not been shown to present sufficient risk of inhalation injuries or death to require the provision of EEBAs in the railroad environment. Accordingly, this proposed rule has been modified to reflect this determination; however, FRA is seeking additional comments on whether, and for what reasons, asphyxiants should be included. FRA will review any comments, will continue to monitor incidents involving these materials, and reserves the right to revisit this decision and to include them in a final rule.
Based on comments from Labor on proposed § 227.201(a)(2), FRA has slightly modified this proposed provision to clarify that any employee covered by the proposed rule must be provided an EEBA in the locomotive cab that they are occupying. Additionally, as discussed above, FRA has removed any reference to asphyxiants. Further, the provision, as modified in this proposed rule, prohibits railroads from using locomotives in freight trains transporting a PIH material unless all the train employees, supervisors of train employees in the locomotive cab, deadheading employees, and any other employees, identified by the railroad in writing, have access to EEBAs.
While Labor agrees with FRA's decision to include deadheading employees in this provision, they note that deadheading employees are likely to be riding in the trailing units of a train's consist in order to minimize the risk that their presence will be a distraction to the operating crew. As a result, Labor urges FRA to amend proposed § 227.201(a)(2) to clarify that an employee in “any” locomotive cab of the train must have access to an EEBA. Additionally, Labor suggests deleting “in an in-service freight train” from § 227.201(a)(2) and replacing it with “on a freight train.”
In response to this comment, FRA has modified proposed § 227.201(a)(2) to remove “while in the cab of the locomotive of the train” and replace it with, “while occupying a locomotive cab of the train.” FRA finds that this language better reflects FRA's intent,
FRA received comments on proposed § 227.201(b) from Labor and AAR. As discussed above, FRA has removed any reference to asphyxiants.
Labor contends that there is no reasonable basis for the exception. In its view, section 413 of the RSIA indicates that Congress did not intend for such an exception. It argues that the law requires the Secretary to establish regulations requiring railroads to provide EEBAs to train crewmembers in the locomotive whenever sufficient quantities of the hazardous materials are being transported, and states that “regardless of what type of rail car is being used, if a release poses an inhalation hazard, then EEBAs are required by the clear language of the statute.”
The RSIA establishes a requirement “to provide emergency escape breathing apparatus suitable to provide head and neck coverage with respiratory protection for all crew members in locomotive cabs on freight trains carrying hazardous materials that would pose
One issue that was not raised in § 227.201(b) of the 2010 NPRM was whether there would be a limited exception for foreign operations. AAR notes that a provision of FRA's alcohol and drug regulation, 49 CFR 219.3(c), exempts limited foreign operations from some of the requirements of that regulation. The exemption in § 219.3(c) applies to foreign railroad operations extending up to 10 miles in the United States. AAR suggests that FRA should include the same type of exemption in proposed part 227, subpart C. FRA does not find such an exemption reasonable but welcomes additional comments on whether it should be included.
FRA received numerous comments on proposed § 227.203(b), which would have required a railroad to select a respirator type that is certified for escape-only purposes by NIOSH pursuant to 49 CFR part 84 or ISO pursuant to ISO 23269-1:2008. Most of the comments pertained to FRA's inclusion of devices that could be built using a standard other than the one established by NIOSH, specifically, whether it is appropriate to allow
NIOSH suggests that FRA should modify proposed § 227.203(b) to prohibit ISO-compliant respirators in lieu of NIOSH certification because it “may lead to confusion in the regulated community.” FRA understands that NIOSH is the only entity in the United States that certifies respirators. However, FRA finds that permitting respirators compliant with other standards, such as ISO and BS EN, will permit railroads to select from a broader range of devices using different technologies that afford an equivalent level of protection as the NIOSH-certified respirators. Accordingly, FRA proposes to allow for reliance on the ISO or BS EN standards.
Scott Health and Safety Comments (Scott) and the ISEA raise concerns about FRA's use of the term “certified” in proposed § 227.203(b) as it relates to ISO standards. As proposed in the 2010 NPRM, the paragraph stated that the railroad must ensure that the type of respirator selected has been certified by NIOSH pursuant to 42 CFR part 84 or by the ISO pursuant to ISO 23269-1:2008. Scott requests clarification on the following discrepancies between the proposed alternate certification paths (NIOSH vs. ISO) and the alternate standards (42 CFR part 84 vs. ISO 23269-1:2008). It notes that “while NIOSH provides a clear and effective certification program, it is not clear how respirators would be certified according to ISO standards and who would provide oversight to ensure these standards were maintained.” Similarly, the ISEA states that ISO develops standards, but does not issue certifications. As a result, any claim that a respirator complies with an ISO standard must rely on testing, and any attestation of conformity to the ISO standard must be issued by the manufacturer of the device or a third-party certification organization. Therefore, ISEA asserts that, if FRA plans on accepting the provision of respirators manufactured to the voluntary ISO standard, then it must clearly state whether independent certification is required or whether it will accept the manufacturer's declaration of conformity to the standard.
Scott and ISEA raise valid points on the use of the term “certification.” FRA understands that ISO does not certify devices as NIOSH does. Instead, it establishes standards that the manufacturer of the device must meet to declare its device compliant with the ISO standard. Therefore, clarification is needed to avoid confusion in the marketplace and to ensure that the devices provided by the railroads pursuant to this regulation comply with its terms. FRA has modified the proposed language in § 227.203(b) to state that the type of respirator selected by a railroad must be certified for an escape-only purpose by NIOSH, pursuant to 49 CFR part 84, or must be declared by the manufacturer, based on verifiable testing by the manufacturer or an independent third party, to meet the equivalent standard ISO 23269-1:2008 and have a minimum breathing capacity of at least 15 minutes, as specified in proposed § 227.203(d)(1).
Additionally, Scott and ISEA raise the question that if both NIOSH and ISO certification options are acceptable, then how will FRA's regulation and AAR's specification reconcile specific differences between the standards? As an example, Scott cites to 42 CFR part 84, which specifies a maximum CO
FRA does not find it necessary to clarify the differences between the NIOSH and ISO requirements. The NIOSH and ISO requirements are explicitly laid out in their respective standards.
Lastly, Scott requests clarification on whether railroads are exempt from the OSHA requirement found in 29 CFR 1910.134(d)(1)(ii), which requires employers to select a NIOSH-certified respirator. The Occupational Safety and Health Act authorizes the Secretary of Labor to promulgate standards to provide safe and healthful employment and places of employment. 29 U.S.C. 652(8), 653(b)(1), 655. However, once FRA exercises its statutory authority to prescribe standards or regulations covering a specific hazard or practice affecting the occupational health of railroad employees, as it proposes to do here, FRA's regulation of the specific area ousts any OSHA requirements covering the same area.
FRA received comments on proposed § 227.203(c) from AAR and Draeger and has deleted that paragraph for the reasons explained below.
In the 2010 NPRM, proposed § 227.203(c) established a requirement that a railroad must document the adequacy of the EEBA. However, AAR notes that proposed § 227.203(b) would
While the § 227.203(c) proposed in the 2010 NPRM is being removed, FRA did receive additional comment from Draeger on this paragraph which requires discussion. Draeger contends that, except for the requirements in § 227.203(d), the proposed regulation does not establish any specific requirements concerning the EEBA's performance. Therefore, Draeger states that the proposal fails to provide the necessary regulatory text that will ensure the EEBA type chosen by a railroad will meet the intended application. FRA considers the proposed provisions of § 227.203(b) along with the specific items identified in proposed § 227.203(d) to describe adequately the necessary performance characteristics of the EEBAs.
Draeger also raises a number of issues about AAR specification M-1005 in its comments on § 227.203(c). It is concerned that a number of the factors laid out in the specification are typically not evaluated by NIOSH or ISO for industrial respirators that are air-supplied escape breathing apparatus. These include the specification requiring protection against 10,000 ppm of anhydrous ammonia, chlorine, and other toxic inhalation hazards. Draeger suggests identifying other toxic inhalation hazards to better allow manufacturers to evaluate their respirators. Additionally, Draeger suggests that there should be specific information concerning the type of impact and vibration resistances that would be expected in a “typical locomotive cab in order to test whether a device has the necessary performance factors and structural integrity. Draeger also states in relation to AAR's draft specification that, while vibration testing is a performance requirement for NIOSH certification of closed-circuit escape breathing respirators under 42 CFR part 84, vibration tests are not typically performed on open-circuit breathing apparatus. Finally, Draeger notes that testing on some of the specifications identified cannot be performed by NIOSH or ISO. Therefore, a third-party laboratory would need to perform the testing. Draeger questions whether FRA will accept such information if it is presented by the stakeholder for inspection. Draeger suggests that more information is needed to provide appropriate respirators to the railroad market and requests additional information be included that details more of the performance requirements than in the current specification.
The draft AAR specification is not part of the performance requirements established by FRA. Equipment vendors would need to address questions about those issues to the carriers represented by AAR. However, FRA does note that the “other toxic inhalation hazards” that Draeger asks to have identified, can be found in § 227.5, where FRA defines “PIH material.” With respect to third-party testing, and additional information detailing performance requirements, FRA believes the standard, as now proposed, provides appropriate performance criteria as long as covered railroad employees are provided at least 15 minutes breathing capacity. Were FRA to propose additional performance criteria, it would be substituting its judgment for that of NIOSH, ISO, or EN subject matter expert entities that have developed the current standards, which FRA declines to do.
FRA received numerous comments on proposed § 227.203(d)(1). While FRA has continued to propose this provision without substantive changes, § 227.203(d)(1), as proposed in the 2010 NPRM, has been re-designated in this proposed rule as § 227.203(c)(1) because of the deletion of § 227.203(c), discussed above.
Section 227.203(d)(1) in the 2010 NPRM proposed a requirement that the EEBA be fully charged and contain a minimum of 15 minutes of breathing capacity at the time of the pre-trip inspection that is required by § 227.207(a)(1). NIOSH suggests changing the language to require that EEBAs “be maintained and the operational readiness verified at the frequency recommended by the manufacturer, using the operational verification procedures, to ensure they contain a minimum breathing capacity of 15 minutes at the time of the pre-trip inspection required under Sec. 227.207(a)(1).” Because NIOSH does not provide an explanation for the proposed change to the paragraph, FRA is not sure of NIOSH's rationale for objecting to the language in proposed § 227.203(d)(1). The proposed paragraph covers the capabilities of the device selected, not the pre-trip inspection procedures. Therefore, FRA does not view the change suggested by NIOSH as relating to the subject matter of the proposed § 227.203(d)(1) and does not see a reason to amend this paragraph in the manner suggested by NIOSH.
Draeger asks, with respect to proposed § 227.203(d)(1), “[w]hat is the minimum escape time for a hazardous substance where the atmosphere has not been assessed for substance concentration and dissipation over distance?” Given these circumstances, it states that an EEBA with a minimum capacity of 15 minutes may not leave time for a crewmember to assist others and to escape to a safe distance away because the circumstances surrounding a catastrophic release would require a higher rate of activity than is normal. Additionally, if an employee has suffered an injury or otherwise become disabled, they would not be able to move fast or, if needed, to move the freight train away from a densely populated location, if that were even possible. Therefore, “Draeger believes that a device which is capable of providing 30 minutes or more would be the better choice for this application.” Draeger acknowledges that providing greater breathing capacity in a device will present logistical issues for storage of devices but believes that closed-circuit devices would be a suitable option because they are considerably smaller than comparable open-circuit devices.
It is unclear what Draeger means when it asks about atmospheres that “have not been assessed for substance concentration and dissipation over distance.” Each emergency situation is different and will present its own set of difficulties. Therefore, FRA is not sure how Draeger can reach the conclusion that a 15-minute minimum breathing capacity device is inadequate without conducting an analysis of the circumstances surrounding the few incidents of catastrophic breaches to railroad tank cars that resulted in the release of a hazardous material posing an inhalation hazard. Circumstances, such as local geography and weather at the time of the release event, can lead to widely differing circumstances of concentration and distance following an accident. After analyzing the information available to it, which included the input of AAR and Labor, FRA proposed requiring a device that has a minimum breathing capacity of 15
Labor supports FRA's proposal to require EEBAs to have a minimum of 15 minutes of useful life in the worst-case scenario. However, Labor is concerned that “any reduction in the length of time the EEBA is effective increases the likelihood of casualty or fatality resulting from the release and inhalation of an asphyxiant or PIH material.” Labor notes that that train employees involved in a release of PIH materials may do two things that could negatively impact the usable length of time for EEBA. Specifically, Labor identifies “over-breathing” and the time it takes an employee to don the apparatus as problems that would be expected to reduce the length of effective breathing time of the apparatus, particularly when dealing with a stressful situation such as a catastrophic release of a PIH material. As a result, Labor urges FRA to amend the proposed rule to clarify that each EEBA provided “must have at least a 15-minute approval rating, meaning that the device must function for at least 15 minutes during 3-mph treadmill tests and 30 minutes for stationary tests.”
FRA notes that the language cited in Labor's comments was taken from AAR's draft specification, M-1005, upon which FRA specifically requested comments. Based on FRA's review of information that was collected from the investigation of the Macdona and Graniteville collisions, the agency found that a minimum breathing capacity of 15 minutes should be an adequate amount of time for a wearer of an atmosphere-supplying respirator to escape an IDLH atmosphere. Experience has shown that a plume of hazardous material can travel quickly and that the train crew must have adequate breathing time to allow each crew member to move a significant distance from the plume while being protected from breathing the potentially hazardous atmosphere. According to the AAR, investigations and studies by the railroads found that “the area of destruction following a release is such that 15 minutes is a more than adequate time period to escape the area. Requiring a device with a greater capacity would result in one that is larger and heavier than called for in this specification.” FRA has decided not to modify the language of proposed § 227.203(d)(2). The change suggested by Labor would put FRA in the position of needing to establish a testing and certification regime to ensure that the devices in use meet the specific language in the rule. FRA does not intend to do this, as the agency does not have the expertise to establish ratings for the devices.
FRA also received a number of comments on proposed § 227.203(d)(2), which would have required railroads to select an EEBA that provides a means of protecting an individual's face and neck to facilitate escape. In response to the comments, FRA has amended the proposed paragraph to state that the EEBA should protect the head and neck from the irritating effects of PIH materials. FRA also has removed any reference to asphyxiants for the reasons discussed earlier. Finally, originally proposed § 227.203(d)(2) has been re-designated as § 227.203(c)(2) for the reasons discussed above.
NIOSH suggests specifying that the EEBA selected must provide a means of protecting the individual's head and neck “from the irritating effects of asphyxiants or PIH materials to facilitate escape.” In this proposed rule, FRA has amended the originally proposed § 227.203(d)(2) to incorporate the language suggested by NIOSH (excepting that asphyxiants has been deleted). FRA finds this language better reflects the purpose of the head and neck protection.
Draeger and ISEA both raise questions about originally proposed § 227.203(d)(2). Specifically, ISEA questions why face and neck protection is a requirement in proposed § 227.203(d)(2). It suggests that if face and neck protection is an important characteristic for providing additional protection to the wearer beyond protection to the lungs and respiratory system, then the regulation should define as clearly as possible the extent of neck and face coverage that is required as well as how FRA intends to assess whether sufficient coverage has been provided. Similarly, Draeger asks for greater specification regarding what is meant by head and neck protection.
FRA has replaced “face” with “head” in this proposed rule to match the specific language of section 413 of the RSIA. While Congress did not provide any guidance on the extent of coverage necessary to comply with the statutory mandate, FRA interprets this language to require a device that protects the employee's nose and throat from inhalation and protects the employee's eyes from irritation during an escape from a hazardous atmosphere. This protection can be afforded by a respirator with a face piece or a device with a hood as long as the protection is effective.
Labor contends that originally proposed § 227.203(d)(2) should also require railroads to provide the type of device that is easiest to don. Labor urges FRA to require the use of hooded-type devices rather than full-face masks. Labor relies on FRA's acknowledgement in the preamble to the 2010 NPRM, that hoods are more versatile because they are universally fitting, compensate adequately for eyewear, and allow for facial hair and differing facial features. Additionally, Labor notes that hoods are easier to wear and faster for employees to don, which would allow those employees to assist others who are disoriented or injured.
While FRA recognizes that hoods allow for universality in use and understands that some railroads intend to make use of hooded devices, FRA does not find that requiring hoods in all circumstances is warranted. As a result, it has chosen not to propose mandating hooded devices.
FRA received comments on proposed § 227.205. FRA modified the provision in this SNPRM to delete the word “asphyxiant,” but has otherwise not changed the proposed section.
Proposed § 227.205 seeks to establish the minimum requirements for storing EEBAs. The essential requirements are that the storage facility must: (1) where applicable, prevent deformation of the face piece and exhalation valve; (2) protect the device from incidental damage, contamination, dust, sunlight, extreme temperatures, excessive moisture, and damaging chemicals; (3) provide ready access for each subject employee in the cab; and (4) provide a means to locate the EEBA under adverse conditions, including darkness or disorientation. The section, as proposed, does not establish requirements for distributing EEBA to covered employees.
Labor suggests that proposed § 227.205 should include a requirement
The current proposed language in § 227.205 follows the requirements of the RSIA mandate while allowing railroads subject to this proposed rule to provide EEBAs in a way best suited to their operations. Given the attendant costs and benefits, FRA proposes to allow railroads to find the best way to provide EEBAs in a manner that fully meets the RSIA mandate and Congressional intent. Furthermore, as FRA cannot anticipate the changes in technology that might affect the types or sizes of EEBAs or changes in the technology and design of locomotives cabs that could impact the mounting and storage of EEBAs the proposed regulation will allow railroads to utilize the latest equipment.
FRA received numerous responses to proposed § 227.207, which would have required railroads to establish a program for inspection, maintenance, and replacement of EEBAs and to establish certain inspection procedures. In response to comments from AAR, FRA has limited the document retention period for pre-trip inspections to 92 days. FRA has also removed reference to asphyxiants in this section of the proposed rule for the reasons provided above.
NIOSH comments that the 2010 NPRM fails to specify regular intervals in which EEBA inspections are to occur. It recommends incorporating the OSHA inspection requirement from 29 CFR 1910.134(h)(3)(i)(B), which states, “[a]ll respirators maintained for use in emergency situations shall be inspected at least monthly and in accordance with the manufacturer's recommendations and shall be checked for proper function before and after each use.”
FRA proposes a requirement for regular inspections in § 227.207(a)(1), which includes a pre-trip inspection prior to using a locomotive in a train that is transporting a PIH material, and in § 227.207(a)(2), which includes periodic inspections based on the recommendations and instructions of the manufacturer. FRA's inspection requirements do not vary significantly from the OSHA requirements. Notwithstanding this, due to the operational nature of the railroads, FRA feels that its criteria are better suited to this industry than specifying an established periodic inspection as used by OSHA. Since the railroad would not be permitted to operate a locomotive in a train where operable devices are absent, the necessity of having an arbitrary inspection schedule is not needed.
The company, 3M, comments that it supports the rulemaking, but that it has concerns about proposed § 227.207(b). 3M believes that this proposed paragraph implies the necessity of using of RFID tags to identify specific equipment. The commenter encourages FRA “to separate the RFID and inspection database requirements from the EEBA specification . . . because there is no RFID frequency specified for the tag, and there are multiple frequencies available that are not cross compatible.” The company states that handheld RFID readers currently on the market operate on a specific frequency, which could present problems when locomotives are interchanged if a foreign railroad is required to perform periodic EEBA inspections. Absent identical RFID tags among interchanging railroads, the railroads may not be able to meet the proposed inspection requirements.
It appears that 3M may have confused AAR's draft specification with FRA's proposed regulatory requirements. The draft specification prepared by AAR is not a part of this proposed regulation. Proposed § 227.207(b) does not require the use of RFID tags. The proposed provision merely establishes a requirement of pre-trip and periodic inspections. It leaves the logistics of performing such inspections to the railroads. FRA understands, however, that AAR is considering using RFID tags to track inspections and its member railroads may want to consider 3M's comments in determining the most efficient way to satisfy the regulatory requirements of § 227.207(b). Additionally, 3M's comments may factor into what procedures a railroad will use to ensure interchangeability, which is an essential element to a railroad's general EEBA program.
AIHA suggests that formal inspections of EEBAs under § 227.207 should be conducted at the same time as the locomotive quarterly inspection. It notes that the current plan is to use a RFID tag for identifying and tracking each EEBA, which would allow for each unit to be assigned a unique identifier that would also identify the owning railroad. The RFID tag would allow for easy scanning during the quarterly inspection to document what units are currently mounted in each locomotive and would verify that each EEBA is still in proper working order with the required oxygen or air level, the case intact, seals in place, and no tampering has occurred. AIHA states that railroads can ensure a seamless process for inspections by integrating EEBA inspections with locomotive inspections, which are well-established within the railroad industry.
It appears that AIHA, like 3M, has made the assumption that the discussion in the NPRM covering the AAR draft specification has been made part of the proposed rule in some manner. That is not FRA's intent. FRA published input from both the industry (AAR) and labor organizations, provided during the development of the NPRM, to invite feedback and gain a broader understanding of the issues raised by these stakeholders. AAR's input reflects the intentions of larger railroads but does not necessarily represent how smaller railroads would respond to this proposed rule, given their unique set of economic constraints.
The language in proposed § 227.207 merely requires that each railroad establish and comply with a written program for inspection, maintenance, and replacement of EEBAs, which includes pre-trip and periodic inspections of the EEBAs. FRA understands that it is AIHA's position
FRA is continuing to propose the requirement for pre-trip inspections, because the nature of railroading demands that the EEBA must be inspected pre-trip. It is a proposed requirement that an EEBA for each employee will be present in the locomotive cab prior to departure thus facilitating the pre-trip inspection. This is so regardless of the manner in which the EEBA is provided, whether it is issued to an individual, or mounted within the locomotive cab, or provided in some other way. The nature of this pre-trip inspection may be as simple as visually inspecting and verifying that the case has not been tampered with and that all gauges and other indicators are in an acceptable range.
FRA envisions that the pre-trip inspection will be a quick check to ensure that the appropriate accompaniment of EEBAs is provided and that those devices are charged to provide a minimum 15-minute breathing capacity, as well as any of other necessary checks that the manufacturer recommends. While this type of check could potentially involve using an RFID tag, FRA is not proposing that each railroad “hav[e] each unit in a computer database . . . to track each unit and identify when units are due for factory testing.” Such a requirement presumes a level of financial resources that are not necessarily available to some short line carriers who are covered by this rule.
Labor urges FRA to modify proposed § 227.207 to make it clear that EEBAs provided pursuant to this regulation must be fully charged with an approval rating of 15 minutes during a 3-mph treadmill test. Labor also proposes that FRA establish a “quick check” inspection process for railroad employees that would include observing an external gauge that can be easily viewed and understood by all employees. Specifically, Labor states that the EEBA should have a gauge with a needle to indicate the length of time the device will operate.
FRA does not believe that a pre-trip or periodic inspection should involve re-verifying a specification since it is unclear how this specification could be verified outside of an established testing and certification regime. FRA is aware that different types of devices have different means of verifying readiness for use. Escape devices that rely on pressurized tanks of air generally have a pressure gauge such as that mentioned in Labor's comment. Other devices, such as combination chemical scrubber/oxygen supply devices, may only have a “go/no go” window. While FRA stated above that it envisions a “quick check” pre-trip inspection process that verifies that appropriate number of EEBAs have been provided and that such EEBAs are charged to provide a minimum of 15 of minutes breathing capacity, FRA finds that, beyond these basic factors, the manufacturer is the best source of information on the manner in which a given device is verified as ready for service.
AAR agrees with FRA's decision in proposed § 227.207(a)(2) to require periodic inspections “in a manner and on a schedule in accordance with the manufacturer's instructions”; however, it comments that the proposed pre-trip inspection of EEBAs required by this proposed section could be overly burdensome. As an alternative, AAR suggests that the appropriate inspection procedure should depend on how a railroad chooses to deploy EEBAs. While AAR agrees that a pre-trip inspection would be appropriate if a railroad were to issue EEBAs directly to its employees, either permanently or for a single trip, it believes a calendar day inspection, as part of the required 49 CFR 229.21 inspection, is more appropriate if a railroad chooses to mount EEBAs permanently in locomotive cabs.
The RSIA requires that EEBAs be provided to all crewmembers in the locomotive cab of a freight train transporting a hazardous material that would pose an inhalation hazard in the event of release. FRA considers pre-trip inspections the most effective method of ensuring compliance with the statutory mandate. FRA must anticipate many different operating scenarios and means of providing the EEBAs to crews. FRA can envision scenarios where at least two crews could be relying on locomotive-mounted EEBAs and, absent a pre-trip inspection, the second crew would have no means to verify that the devices present are ready for service. As an example, if EEBAs were inspected as part of calendar day inspection under part 229, the inspection could occur well after the crew (or crews) used a locomotive to transport a PIH material. This is because the calendar day inspection could be performed legally after the crew or crews have completed their duties, as long as the inspection was performed by midnight on the calendar day that the locomotive was used. As a result, calendar day inspections would not assure that the required EEBAs were in working order for the crew or crews using the locomotive at the time that the train is transporting a PIH material. Therefore, FRA does not think it is appropriate to change the proposed pre-trip inspection requirement.
Additionally, AAR asks that FRA clarify whether a pre-trip inspection consists of a quick visual inspection to ensure that the EEBAs appear to be in working order. It notes that because EEBAs are sealed in air-tight containers, FRA cannot expect railroad employees to break the seal of the device to inspect it. FRA has discussed what it envisions as part of the pre-trip inspection in the preceding paragraphs; however, AAR's comment presumes that the type of device chosen by AAR will be used universally in the railroad industry. FRA has written the proposed regulation to require the device selected to have certain characteristics while allowing railroads to choose devices best suited to their operations. FRA expects that the type of device selected by each railroad will determine the nature of the inspection required, presumably based on the recommendations of the manufacturer of the device.
AAR opposes the recordkeeping requirements in § 227.207(b)(2). Its objection is not targeted at the requirement to keep records of inspections performed pursuant to manufacturer instructions, but to the requirement that records of pre-trip inspections be kept for one year. It asserts that keeping pre-trip inspection records for one year would not provide a safety benefit. AAR suggests that if FRA were to require daily inspections (as opposed to pre-trip inspections) in instances where EEBAs are permanently installed in the locomotive cab, then keeping records of those inspections as part of the daily inspection report required by 49 CFR 229.21 would not be overly burdensome given that daily inspection records are already maintained and kept for a period of 92 days. However, AAR contends that railroads should not be burdened with new recordkeeping requirements for pre-trip inspections, which would not, according to AAR, yield useful information.
AAR's comment draws an analogy to the daily inspections required under 49 CFR 229.21, but FRA believes a more appropriate analogy is the pre-trip inspection of a train's braking system as required under 49 CFR 229.46. While daily inspections may be more convenient, the nature of the device being inspected, along with the
Finally, AAR provided comments about proposed § 227.207(d), which requires railroads to maintain accurate records of return, maintenance, repair, or replacement of each required EEBA for a period of three years. AAR questions whether this provision would allow for railroads to arrange for EEBA suppliers to maintain these records. It is FRA's view that such an arrangement would be acceptable; however, as AAR notes, the railroad would remain responsible for any failure on the part of a third party to maintain such records for the required time period or to provide FRA reasonable access to the records.
FRA received numerous comments on proposed § 227.209 and has adopted the provision without change, except for deleting reference to asphyxiants. Section 227.209 establishes requirements for a railroad's program of instruction on EEBAs. The section sets out a number of subjects that must be covered in training including the importance of proper fit, usage, and maintenance in the effectiveness of the EEBA; the device's capabilities and limitations; and how to use an EEBA effectively in an emergency situation. Additionally, following initial training, it requires periodic training once every three years.
NIOSH recommends that proposed § 227.209 require annual expectation training (
NIOSH, ISEA, and Draeger also recommend that proposed § 227.209 be modified to follow Mine Safety and Health Administration requirements for quarterly training of underground coal miners,
FRA believes there are significant differences in the operational practices and risks faced by the employees in these two populations. Miners report to a fixed site each day and face a significant frequency of potential exposure to the materials against which these devices are intended to protect. Railroad operating employees often report to duty at different locations each day, and the frequency of potential exposure to inhalation hazards are orders of magnitude less. FRA does not view the three-year interval between training sessions as presenting an obstacle to effective use of EEBAs in the very rare event that the need for a device arises.
It is also important to keep in mind that the proposed instructional program established in § 227.209 is a minimum requirement. Railroads are encouraged to provide additional relevant information depending on the types of EEBAs selected. FRA is aware that, among the larger carriers, on-line refresher training is often available to employees on an ad-hoc basis. FRA also believes that the pre-trip inspections and contact with the devices will keep their use “front of mind” for the purposes of encouraging employees to take advantage of the available on-line resources.
Labor acknowledges that the RSIA mandates that appropriate training for the use of the EEBAs be included in the rule, but it is wary that testing will be used as a way to withhold certain employees from service. It contends that even though the RSIA does not require testing, it agrees that the employees should be proficient in the use of the EEBA. However, Labor is “concerned that some railroad will establish unachievable, unnecessary or excessive performance requirements that, if not satisfied, will be used to hold employees out of service.” As a result, Labor requests that FRA modify proposed § 227.209 to remove language requiring employees demonstrate knowledge of each of the elements in § 227.209(b) and that employees only be required to show proficiency in how to inspect, put on, remove, and use the EEBA and how to check the seals of the EEBA.
FRA finds the language proposed in § 227.209(b) as appropriate for the proper use of these devices. The language requiring a demonstration of knowledge was taken directly from OSHA's regulation covering the provision of respirators in the workplace.
AAR requests the deletion of proposed paragraph § 227.209(b)(3), which requires instruction on how to use the EEBA effectively in emergency situations, including situations in which the EEBA malfunctions. It does not understand what FRA envisions will be taught other than to leave the scene as quickly as possible. As with the other provisions in proposed § 227.209(b), proposed paragraph (b)(3) was borrowed directly from OSHA's regulation covering the provision of respirators in the workplace.
AAR comments that there is no reason to require in proposed § 227.211(b)(1) that a railroad identify by name the employee managing the railroad's general EEBA program. AAR notes that
FRA received comments from Labor on proposed § 227.217. This provision proposed to establish a staggered compliance schedule, with Class I railroads required to comply with the requirements of part 227, subpart C no later than 24 months from the effective date of the final rule, Class II railroads required to comply no later than 30 months from the effective date, and Class III railroads required to comply no later than 36 months from the effective date.
Labor strongly encourages FRA to shorten the implementation schedule to no more than 90 days following the date of publication of the final rule. Labor contends that EEBAs “will be a necessary safety overlay for the totally unpredictable work schedules that are commonplace in the industry today.” Moreover, Labor contends that there is not a logical reason to delay the implementation in the manner suggested by AAR, and proposed by FRA in the NPRM, when devices are readily available at this time.
While FRA understands the desire for more immediate implementation of EEBA programs, FRA cannot justify shortening the periods proposed in the 2010 NPRM for compliance to 90 days. In the short term, it is not necessarily true that the devices are readily available in the quantities needed. The shortened time frames proposed by Labor would also strain the capabilities of the railroads with respect to developing the management infrastructure for deploying and maintaining the devices, developing the required written programs and training, and scheduling and conducting the training for all of the operating and other employees likely to be covered. However, given the length of time since the publication of the RSIA mandate as well as FRA's issuance of guidance in 2016 the railroads have been on notice about the need to provide EEBAs. Therefore, FRA proposes shortening the compliance schedule from the original NPRM and now proposes that Class I railroads be required to comply with the requirements of part 227, subpart C no later than 12 months from the effective date of the final rule, Class II railroads be required to comply no later than 12 months from the effective date, and Class III railroads be required to comply no later than 18 months from the effective date.
FRA proposes to change the name of the part from “OCCUPATIONAL NOISE EXPOSURE” to “OCCUPATIONAL SAFETY AND HEALTH IN THE LOCOMOTIVE CAB” in order to reflect the broader subject matter of the part. Previously, part 227 contained regulations related only to dangers from occupational noise exposure. Part 227 is the most natural place to put the proposed regulations related to the provision of EEBAs because the occupational noise regulations and the EEBA regulations both concern dangers to the occupational safety and health of locomotive cab occupants. However, the inclusion of the proposed EEBA regulations requires broadening the name of the part to accurately capture the new subject matter that is now covered in that part.
FRA proposes to amend this section to reflect the expanded purpose and scope of this part. In comparison to the NPRM, FRA has modified paragraph (c) of this section in the final rule to remove reference to asphyxiants.
FRA proposes to amend this section so that paragraphs (a) and (b) apply to subpart B only and that the title mentioned, “Associate Administrator for Safety,” is updated to reflect the current title, “Associate Administrator for Railroad Safety/Chief Safety Officer.” New paragraphs (c) and (d) define the types of railroad operations to be covered by subpart C. In particular, subpart C applies to a railroad that transports an in-service freight train that carries a PIH material. FRA has removed the references to asphyxiants that were in the NPRM, including a residue of such PIH material, on track that is part of the general railroad system of transportation.
The proposed rulemaking would amend this section to add definitions for key terms used in subpart C. The terms defined are set forth alphabetically. FRA intends these definitions to clarify the meaning of the terms for purposes of this part. Many of these definitions have been taken from the regulations issued by OSHA and NIOSH and are widely used by safety and health professionals, such as the definition of “immediately dangerous to life or health (IDLH).” A definition of “PIH material” is included in this SNPRM to ensure that the universe of materials covered by this regulation is adequately described.
FRA proposes to amend this section to note the provisions of this part, including subpart C, that have been reviewed and approved by OMB for compliance with the Paperwork Reduction Act of 1995.
FRA proposes a set of minor corrections to this subpart. The term “Class 1” is removed wherever it
Proposed section 227.201(a)(1) requires that an EEBA be provided by a railroad to each of its train employees, direct supervisors of train employees, deadheading employees, and other employees designated by the railroad in writing and at the discretion of the railroad who are required to work in or occupy the cab of any locomotive of one of its covered trains (
Proposed section 227.201(a)(2) prohibits utilizing a locomotive to transport a PIH material in an in-service freight train unless each of the employees identified in paragraph (a)(1) in the cab of the locomotive has access to an EEBA that was selected in accordance with § 227.203 and that has been inspected and is in proper working order pursuant to § 227.207. Paragraph (a)(2) makes clear that it is not enough for a railroad to merely issue an EEBA to an employee,
Proposed section 227.201 also includes exceptions to its general requirements in paragraph (b). FRA excludes trains that contain PIH materials exclusively in intermodal containers from the requirements in this section. Further, employees who are involved in activities, such as moving a locomotive coupled to a car or group of cars containing a PIH material within a locomotive maintenance facility, or who make incidental movements for the purpose of inspection or maintenance, are also exempted from coverage.
Proposed paragraph (c) establishes that, notwithstanding the exceptions identified in § 227.201, any employee who is found to have willfully tampered with or vandalized an EEBA will be subject to subpart C for enforcement purposes. As a result, an employee to whom the railroad is not required to provide an EEBA may become subject to this subpart by vandalizing or willfully tampering with an EEBA. By proposing this paragraph, FRA intends to foreclose a loophole that otherwise would preclude FRA from pursuing enforcement actions against mechanical employees and other employees who may have access to EEBAs, but for whom the railroads are not required to provide a device by these regulations.
This proposed section provides the basis for selecting an EEBA.
Paragraph (a) of § 227.203 proposes to require a railroad to select an atmosphere-supplying EEBA that protects against all PIH materials (including residues of such commodities) that are being transported by an in-service freight train. To ensure that the EEBAs have met a standard set of testing criteria, paragraph (b) requires the selection of a NIOSH-certified (42 CFR part 84) or ISO-compliant (ISO 23269-1:2008) EEBA, with 15-minute minimum breathing capacity. In addition, FRA has proposed language to paragraph (b) to permit selection of devices that comply with BS EN 13794:2002 or BS EN 1146:2005.
To ensure that the EEBA provides adequate oxygen to allow train employees to extricate themselves from an IDLH atmosphere, in paragraph (c)(1), FRA has proposed that the EEBA must contain a minimum breathing capacity of 15 minutes under § 227.207(a)(1).
In paragraph (c)(2), FRA addresses head and neck protection. The EEBA type that is selected by a railroad must facilitate escape from a hazardous atmosphere by providing a means of protecting a user's nose and throat from inhalation hazards while also protecting the user's eyes from irritation.
This proposed section addresses the mandate in the RSIA that the rule require railroads to “provide convenient storage in each freight train locomotive to enable crewmembers to access such apparatus quickly.” FRA has adapted the storage requirements promulgated by OSHA at 29 CFR 1910.134(h)(2) to this proposed rule.
This proposed section requires each railroad to establish and carry out procedures intended to ensure that EEBAs required to be present in the locomotive cabs are fully functional. This section is adapted from OSHA's inspection documentation requirements.
In paragraph (b), FRA proposes that railroads create and maintain pre-trip and periodic inspection records and retain these records for a period of 92 days and one year, respectively. Paragraph (d) proposes to require railroads to create and maintain an accurate record of all turn-ins, maintenance, repair, and replacement of EEBAs required by paragraph (c) of this section, including EEBAs that are used; and retain these records for three years.
This proposed section identifies the elements of the instructional program that the railroad must establish and carry out for train employees and other employees who are part of the railroad's general EEBA program under § 227.211 and will be provided with EEBAs. The elements outlined in this section are partly adapted from OSHA's regulations.
Proposed paragraph (b) requires that any railroad transporting a PIH material must provide sufficient training to its subject employees. Such employees must be able to demonstrate knowledge concerning why an EEBA is necessary; how improper fit, usage, or maintenance can compromise the protective effect of an EEBA; the limitations and capabilities of the type of EEBA that has been provided by the railroad, including the limited time for use; how to deal with emergency situations involving the use of EEBAs or if an EEBA malfunctions; how to inspect, put on, remove, and use an EEBA, including the inspection of seals; procedures for maintenance and storage of EEBAs; the selection criteria for EEBAs under § 227.203, employee responsibilities under subpart C; employee rights concerning access to records; and identification of hazardous materials that are classified as PIH materials. FRA is particularly concerned that the employees know the limitations of the EEBAs provided so that the employees can avoid circumstances that would lead to reliance on the EEBAs for conditions or time frames beyond EEBA capabilities.
This proposed program may be integrated with the railroad's program of instruction on the railroad's operating rules required by 49 CFR 217.11 or its program of instruction for hazmat employees under 49 CFR 172.704. Under 49 CFR 172.704(a)(3)(ii), for example, hazmat employees (which includes crews of freight trains transporting hazardous material), must receive “safety training” on means “to protect the employee from the hazards associated with hazardous materials to which they may be exposed in the workplace, including special measures the hazmat employer has implemented to protect employees from exposure.”
Proposed paragraph (c) establishes the timing of the initial and refresher training. Initial instruction must occur no later than 30 days prior to the date of compliance with subpart C for the subject railroad. New employees must receive initial instruction either by 30 days before the applicable date of compliance with subpart C or prior to being assigned to jobs where EEBAs are required to be provided on a locomotive, whichever is later. The initial instruction must be supplemented with periodic instruction at least once every three years.
Proposed section 227.209(d) requires railroads to create and maintain an accurate record of employees instructed in compliance with § 227.209; and retain these records for at least three years.
In this proposed section, FRA requires railroads subject to subpart C to adopt and comply with a general EEBA program to ensure that the selection and distribution of the EEBAs is done in a technically appropriate, sustainable manner and supported by a comprehensive set of policies and procedures. These issues have already been discussed in detail at IV. FRA-Sponsored Study and V. Selection of the Appropriate EEBA by Railroads, above. Many of the procedures will likely be used as a basis for aspects of the required instructional program.
In paragraph (b)(1), FRA proposes that each railroad's general program identify the railroad's EEBA manager by title. The important concern is that the EEBA manager is qualified to oversee the program.
Proposed section 227.211(b)(4) requires the following individuals to be placed in the railroad's general EEBA program: (1) employees of railroads subject to this subpart who perform service subject to the provisions of the hours of service law governing “train employees,”
A railroad may also identify other employees and designate them in writing to be included in its general EEBA program. In making this assessment, the railroad should consider an employee's work over the period of a year. In doing so, the railroads must think about how they use their workforces,
Given the nature of the railroad industry, FRA is aware that some of these employees may not always work in the cab. Due to longstanding labor practices in the railroad industry concerning seniority privileges and concerning the ability of railroad employees to bid for different work assignments, these railroad employees are likely to change jobs frequently and to work for extended periods of time on assignments that involve duties outside the cab. For example, an employee might start the year in a job that involves mostly outside-the-cab work, spend three months working primarily inside the cab, and then return to outside-the-cab work for the rest of the year. In this type of situation, these regulations govern the exposure of this employee throughout the year despite the fact that the employee only spent three months inside the cab. This employee is covered by this proposed part, because he spent time, no matter how little, in a locomotive cab where the use of an EEBA may be required. As a result, the railroad must ensure that the employee is properly instructed in how to inspect and use an EEBA and provide an EEBA for those time periods in which the employee is serving as a train employee, as a direct supervisor of a train employee, or in a capacity that the railroad has determined, in its discretion and designated in writing, should be provided an EEBA while any of these individuals is working in the cab of the locomotive of an in-service freight train transporting a PIH material.
Note that placement of an employee in the railroad's general EEBA program means different things depending on the nature of the program that the railroad chooses to adopt. For example, if the railroad's program states that the railroad will equip its fleet of locomotives with sets of EEBAs sufficient to accommodate the train crew and possible deadheading train employees, the railroad would have to provide the EEBA to the employee in that way, in the locomotive cab. On the other hand, if the railroad's program states that the railroad will provide the EEBA to the employee as part of his or her personal equipment, the railroad would have to provide the EEBA in that manner. If the employee for whatever reason did not have the EEBA with him or her while in the locomotive cab, the railroad would be prohibited from using the locomotive by § 227.201(a)(2), which bars using a locomotive to transport a covered train if a covered employee occupying the cab of the locomotive does not access to a working EEBA. One constant is that all railroads subject to this proposed part are required to instruct employees placed in their general EEBA program in how to use EEBAs; the provision on instruction at § 227.209 requires that all employees
Finally, proposed § 227.211(c) requires railroads to maintain records concerning the persons and positions designated to be placed in its EEBA program and retain these records for the duration of the designation and for one year after the designation has ended.
Since employees, who must be provided the EEBAs, are not always directly supervised by managers who can ensure the identified tasks are done at the appropriate time and frequency, this proposed section establishes certain responsibilities on the part of employees. Some of these tasks may involve making records of such tasks as pre-trip inspections that must be done to ensure the EEBAs are ready for use. Additionally, FRA proposes prohibiting employees from willfully tampering with or vandalizing an EEBA in an attempt to disable or damage the device.
Proposed section 227.215 sets out the general recordkeeping provisions for subpart C. Proposed section 227.215(a) addresses the availability of required records. Section 227.215(a) provides that records required under this part, except for records of pre-trip inspections, be kept at system and division headquarters. It proposes requiring that a railroad make all records available for inspection and copying or photocopying by representatives of FRA upon request. The railroad must also make an employee's records available for inspection and copying or photocopying by that employee or such person's representative upon written authorization by such employee.
Proposed section 227.215(b) permits required records to be kept in electronic form. These requirements are almost identical to the electronic recordkeeping requirements found in FRA's existing Track Safety Standards, 49 CFR 213.241(e). Section 227.215(b) allows each railroad to design its own electronic system as long as the system meets the specified criteria in § 227.215(b)(1) through (5), which are intended to safeguard the integrity and authenticity of each record.
The specific dates by which certain groups of railroads are required to comply are set forth in this section. FRA recognizes that it will take time to procure EEBAs, instruct employees on their use, and outfit locomotives with the appropriate equipment to carry the devices. FRA staggers the compliance dates based on the size of the railroad, with larger railroads having to comply earlier. The AAR's January 13, 2010, letter referenced earlier requests “that FRA allow at least two years from the effective date of the final rule for the railroad to be compliant with the regulation.” Under the final rule, FRA requires Class I railroads to be compliant within 12 months of the effective date of the final rule, with required compliance following for Class II railroads at 12 months and Class III and other railroads at 18 months.
Because subpart C proposes to incorporate by reference ISO 23269-1:2008, BS EN 13794:2002, and BS EN 1146:2005, FRA is adding this section to comply with the requirements of 5 U.S.C. 552(a) and 1 CFR part 51. ISO 23269-1:2008 provides specifications for emergency escape breathing devices intended to supply air or oxygen needed to escape from accommodation and machinery spaces with a hazardous atmosphere. BS EN 13794:2002 provides specifications including requirements, testing, and marking for self-contained closed-circuit breathing apparatus intended for an escape from a hazardous atmosphere. BS EN 1146:2005 provides specifications including requirements, testing, and marking for self-contained open-circuit compressed air breathing apparatus incorporating a hood and intended for an escape from a hazardous atmosphere. They are reasonably available to all interested parties online at
This proposed rule is not a significant regulatory action within the meaning of Executive Order 12866. Details on the estimated costs of this SNPRM can be found in the RIA, which FRA has prepared and placed in the docket (FRA-2009-0044).
FRA is proposing a rule that would enable covered employees to wear protective breathing apparatus in the event of a catastrophic release of PIH materials. This rule would require that an EEBA be provided for each covered employee transporting PIH materials. These EEBAs would provide neck and face coverage with respiratory protection for these crewmembers. Railroads must also ensure that the equipment is maintained and in proper working condition. Finally, the proposed rule would require that railroads train crewmembers how to use the EEBAs.
The RIA presents estimates of the costs likely to occur over the first 10 years of the proposed rule. The analysis includes estimates of costs associated with the purchase of EEBAs and installation, employee training, and recordkeeping.
FRA has estimated costs for three options that are permissible under the rule. These include:
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•
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For all three options, estimates were developed using a closed-circuit EEBA. For the “Employee Assignment” option, FRA estimates that the costs associated with issuing each T&E employee ($60,000) with an EEBA as their own personal equipment. The “Locomotive Assignment” option would require installing EEBA devices in all locomotives in the covered railroad's fleet, regardless of whether a locomotive is part of a train that is transporting PIH material. There are approximately 24,000 locomotives owned by Class I railroads, and three apparatus would have to be installed in each locomotive, one apparatus each for the conductor, the engineer, and a supervisor. In the “Equipment Pooling” option, FRA considered only having EEBAs provided in trainsets that were transporting PIH. EEBAs would be brought on board after a determination is made on a case-by-case basis.
The analysis includes estimates of costs associated with the purchase of EEBAs and installation, employee training, and recordkeeping.
FRA estimates the 10-year costs of the proposed rule to be between $27.1 million and $91.6 million, discounted at 7 percent. The following table shows the total costs of this proposed rule, over the 10-year analysis period.
The proposed rule is expected to improve railroad safety by ensuring that all covered employees can safely vacate the exposed area if a PIH material release were to occur. The primary benefits include heightened safety for crewmembers and, as a result, earlier awareness/notification to the public of PIH releases. Implementation of the SNPRM should mitigate the injuries of covered employees from PIH material releasing after an accident/incident. During a 10-year period, this analysis finds $43,110 (PV, 7 percent) in safety benefits that could accrue through injury prevention.
Although the costs associated with implementation of the proposed rule would almost certainly exceed the benefits, under RSIA, FRA must require railroads to: (1) ensure that EEBAs affording suitable “head and neck coverage with respiratory protection” are provided “for all crewmembers” in a locomotive cab on a freight train “carrying hazardous materials that would pose an inhalation hazard in the event of release;” (2) provide a place for convenient storage of EEBAs in the locomotive that will allow “crewmembers to access such apparatus quickly;” (3) maintain EEBAs “in proper working condition;” and (4) provide crewmembers with appropriate instruction in the use of EEBAs. However, FRA would not require a particular method of deployment of EEBAs, but rather leave that to the railroads' discretion. In addition, railroads would be allowed to select the type of apparatus to use in their program (closed-circuit or open-circuit). This allows railroads to deploy EEBAs in the manner best suited to their operation.
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601
FRA invites all interested parties to submit data and information regarding the potential economic impact on small entities that would result from adoption of the proposals in this SNPRM. FRA particularly encourages small entities that could potentially be impacted by the proposed rule to participate in the public comment process. FRA will consider all information and comments received in the public comment process when making a determination of the economic impact on small entities.
Agency action is required under Section 413 of the RSIA.
This proposed rule would help reduce the risk of injury to crewmembers due to inhalation of PIH. Section 413 of the RSIA requires the Secretary of Transportation to promulgate regulations that require railroads to provide emergency escape breathing apparatus suitable to provide head and neck coverage with respiratory protection for all covered employees.
The Regulatory Flexibility Act of 1980 requires a review of proposed and final rules to assess their impact on small entities, unless the Secretary certifies that the rule would not have a significant economic impact on a substantial number of small entities. “Small entity” is defined in 5 U.S.C. 601 as a small business concern that is independently owned and operated and is not dominant in its field of operation. The U.S. Small Business Administration (SBA) has authority to regulate issues related to small businesses, and stipulates in its size standards that a “small entity” in the railroad industry is a for profit “line-haul railroad” that has fewer than 1,500 employees, a “short line railroad” with fewer than 1,500 employees, a “commuter rail system” with annual receipts of less than $16.5 million dollars, or a contractor that performs support activities for railroads with annual receipts of less than $16.5 million.
Federal agencies may adopt their own size standards for small entities in consultation with SBA and in conjunction with public comment. Under that authority, FRA published a statement of agency policy that formally establishes “small entities” or “small businesses” as railroads, contractors, and hazardous materials shippers that meet the revenue requirements of a Class III railroad as set forth in 49 CFR
When shaping the proposed rule, FRA considered the impact that the proposed rule would have on small entities. The proposed rule would be applicable to all railroads with locomotives that transport PIH materials. FRA estimates there are 733 Class III railroads that operate on the general system. These railroads are of varying size, with some belonging to larger holding companies. FRA is aware of 110 Class III railroads that transport PIH materials. The remaining Class III railroads do not transport PIH, and thus would not be impacted by this proposed rule.
Railroads must keep records pertaining to pre-trip and periodic inspections of EEBAs. The information about each pre-trip and periodic inspection must be accurately recorded on a tag or label that is attached to the storage facility for the EEBA or kept with the EEBA or in inspection reports stored as paper or electronic files. Railroads would also be required to keep training records. Training records must be kept at system and division headquarters. A railroad must also make all records available for inspection and copying by representatives of FRA upon request. The section permits that the required records can be kept in electronic form.
The type of professional skills needed by an employee responsible for submitting a special approval request includes the ability to plan and organize work. Such an employee would also need good verbal and written communication skills and attention to detail.
Class III Railroads would have all the same cost components as larger railroads, reduced for the estimated number of locomotives and employees on Class III railroads.
The following table shows the annualized cost for Class III railroads over the 10-year analysis period. The total estimated 10-year costs for Class III railroads would be $1.0 million (PV, 7 percent) and the annualized cost for all Class III railroads would be $149,326 (PV, 7 percent).
The industry trade organization representing small railroads, ASLRRA, reports the average freight revenue per Class III railroad is $4.75 million.
The average annual cost for a Class III railroad impacted by this rule would be $1,358. This represents a small percentage (0.03%) of the average annual revenue for a Class III railroad.
The estimates above show that the burden on Class III railroads would not be a significant economic burden. FRA requests comments on this estimate and will consider all comments when making a determination for the final rule.
FRA is not aware of any relevant Federal rule that duplicates, overlaps with, or conflicts with this SNPRM.
One alternative to this rule is the baseline approach. The baseline alternative (no action) would not fulfill requirements under RSIA. This proposed rule would allow railroads a significant amount of discretion when determining their plan for the implementation of EEBAs. For example, to reduce costs, FRA has allowed railroads to choose either open or closed-circuit units. Railroads may also choose any of the options described within this analysis or create any option that would still allow the railroad to be in compliance with the rule.
Executive Order 13132, “Federalism” (64 FR 43255, Aug. 10, 1999), requires FRA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation.
This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132. FRA has determined that the proposed rule will not have substantial direct effects on the States, on the relationship between the national government and the States, nor on the distribution of power and responsibilities among the various levels of government. In addition, FRA has determined that this proposed rule will not impose substantial direct compliance costs on State and local governments. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. However, this proposed rule could have preemptive effect by operation of law under certain provisions of the Federal railroad safety statutes, specifically a provision of the former FRSA, repealed and recodified at 49 U.S.C. 20106, and the former LBIA, repealed and recodified at 49 U.S.C. 20701-20703.
In sum, FRA has analyzed this proposed rule in accordance with the principles and criteria contained in Executive Order 13132. As explained above, FRA has determined that this proposed rule has no federalism implications, other than the possible preemption of State laws under a provision of the former FRSA and under the former LBIA. Accordingly, FRA has determined that preparation of a federalism summary impact statement for this proposed rule is not required.
The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and where appropriate, that they be the basis for U.S. standards. This proposed rulemaking is purely domestic in nature and is not expected to affect trade opportunities for U.S. firms doing business overseas or for foreign firms doing business in the United States.
The information collection requirements in this proposed rule are being submitted for approval to OMB
All estimates
OMB is required to make a decision concerning the collection of information requirements contained in this proposed rule between 30 and 60 days after publication of this document in the
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of
FRA has evaluated this proposed rule in accordance with the National Environmental Policy Act
This rulemaking would not directly or indirectly impact any environmental resources and would not result in significantly increased emissions of air or water pollutants or noise. In analyzing the applicability of a CE, FRA must also consider whether unusual circumstances are present that would warrant a more detailed environmental review.
Pursuant to Section 106 of the National Historic Preservation Act and its implementing regulations, FRA has determined this undertaking has no potential to affect historic properties.
Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” (66 FR 28355, May 22, 2001). FRA evaluated this proposed rule in accordance with Executive Order 13211 and determined that this proposed rule is not a “significant energy action” within the meaning of Executive Order 13211.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to
As required by 1 CFR 51.5, FRA has summarized the standards it is incorporating by reference in the section-by-section analysis in this preamble. These standards summarized herein, are reasonably available to all interested parties for inspection. Copies can be obtained from the International Organization for Standardization, Chemin de Blandonnet 8, CP 401, 1214 Vernier, Geneva, Switzerland, telephone +41-22-749-08-88 or
Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations”
FRA has evaluated this proposed rule in accordance with the principles and criteria contained in Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, dated November 6, 2000. The proposed rule would not have a substantial direct effect on one or more Indian tribes, would not impose substantial direct compliance costs on Indian tribal governments, and would not preempt tribal laws. Therefore, the funding and consultation requirements of Executive Order 13175 do not apply, and a tribal summary impact statement is not required.
Hazardous materials transportation, Incorporation by reference, Locomotive noise control, Occupational safety and health, Penalties, Railroad employees,
For the reasons discussed in the preamble, FRA proposes to amend part 227 of chapter II, subtitle B of title 49 of the Code of Federal Regulations as follows:
49 U.S.C. 20103, 20103 note, 20166, 20701-20703, 21301, 21302, 21304; 28 U.S.C. 2461 note; and 49 CFR 1.89.
(a)
(b)
(c)
(a) Except as provided in paragraph (b) of this section, Subpart B of this part applies to all railroads and contractors to railroads.
(b) Subpart B of this part does not apply to—
(5) Foreign railroad operations that meet the following conditions: Employees of the foreign railroad have a primary reporting point outside of the U.S. but are operating trains or conducting switching operations in the U.S.; and the government of that foreign railroad has implemented requirements for hearing conservation for railroad employees; the foreign railroad undertakes to comply with those requirements while operating within the U.S.; and FRA's Associate Administrator for Railroad Safety/Chief Safety Officer determines that the foreign requirements are consistent with the purpose and scope of subpart B of this part. A “foreign railroad” refers to a railroad that is incorporated in a place outside the U.S. and is operated out of a foreign country but operates for some distance in the U.S.
(c) Except as provided in paragraph (d) of this section, subpart C of this part applies to any railroad that operates a freight train that transports a PIH material, including a residue of such a PIH material, on standard gage track that is part of the general railroad system of transportation.
(d) Subpart C of this part does not apply to a railroad that operates only on track inside an installation that is not part of the general railroad system of transportation.
As used in this part—
(1) Box car;
(2) Refrigerator car;
(3) Ventilator car;
(4) Stock car;
(5) Gondola car;
(6) Hopper car;
(7) Flat car;
(8) Special car;
(9) Caboose;
(10) Tank car; and
(11) Yard car.
(1) Is in a repair shop or on a repair track;
(2) Is on a storage track and its cars are empty; or
(3) Has been delivered in interchange but has not been accepted by the receiving carrier.
(b) The information collection requirements are found in the following sections: §§ 227.13, 227.103, 227.107, 227.109, 227.111, 227.117, 227.119, 227.121, 227.201, 227.203, 227.205, 227.207, 227.209, 227.211, 227.213, and 227.215.
(a) * * *
(1) Class I, passenger, and commuter railroads no later than February 26, 2008.
(2) Railroads with 400,000 or more annual employee hours that are not Class I, passenger, or commuter railroads no later than August 26, 2008.
(e) * * *
(2) * * *
(i) For all employees without a baseline audiogram as of February 26, 2007, Class I, passenger, and commuter railroads, and railroads with 400,000 or more annual employee hours shall establish a valid baseline audiogram by February 26, 2009; and railroads with less than 400,000 annual employee hours shall establish a valid baseline audiogram by February 26, 2010.
(b) * * *
(2) For employees hired on or before February 26, 2007, by Class I, passenger, and commuter railroads, and railroads with 400,000 or more annual employee hours, by no later than February 26, 2009;
(a)
(1) Any train employee;
(2) Any direct supervisor of the train employee;
(3) Any employee who is deadheading; and
(4) Any other employee designated by the railroad in writing and at the discretion of the railroad.
(ii) Each EEBA provided to an employee identified in paragraph (a)(1)(i) of this section must meet the EEBA-selection criteria of § 227.203 and must have been inspected and be in working order pursuant to the requirements of § 227.207 at the time that the EEBA is provided to the employee.
(2) Except as specified in paragraph (b) of this section, a railroad shall not use a locomotive to transport a PIH material, including a residue of a PIH material, in an in-service freight train unless each of the employees identified in paragraph (a)(1)(i) of this section while occupying a locomotive cab of the train has access to an EEBA that satisfies the EEBA selection criteria in § 227.203 and that has been inspected and is in working order pursuant to the requirements in § 227.207.
(b)
(2) This subpart does not apply to any of the following:
(i) Employees who are moving a locomotive or group of locomotives coupled to a car or group of cars transporting a PIH material, including a
(ii) Employees who are moving a locomotive or group of locomotives coupled to a car or group of cars transporting a PIH material, including a residue of a PIH material for distances of less than 100 feet for inspection or maintenance purposes.
(c) Notwithstanding any exceptions identified in this subpart, any employee who willfully tampers with or vandalizes an EEBA shall be subject to this subpart for purposes of enforcement relating to § 227.213 (Employee's responsibilities).
In selecting the appropriate EEBA to provide to an employee, the railroad shall do the following:
(a) Select an atmosphere-supplying EEBA that protects against all PIH materials (including their residue) that are being transported by the freight train while in service.
(b) Ensure that the type of respirator selected meets the requirements of paragraph (c)(1) of this section regarding minimum breathing capacity and is—
(1) Certified for an escape only purpose by NIOSH pursuant to 42 CFR part 84, or
(2) Declared by the manufacturer, based on verifiable testing by the manufacturer or an independent third party, to meet the criteria established by one of the following:
(i) ISO 23269-1:2008(E) (incorporated by reference, see § 227.219);
(ii) BS EN 13794:2002 E (incorporated by reference, see § 227.219); or
(iii) BS EN 1146:2005: E (incorporated by reference, see § 227.219).
(c) Document, and provide such documentation for inspection by FRA upon request, the rationale for the final selection of an EEBA by addressing each of the following concerns:
(1)
(2)
(3)
(a) A railroad may not use a locomotive if it is part of an in-service freight train transporting a PIH material, including a residue of a PIH material, and the locomotive cab is occupied by an employee identified in § 227.201(a)(1)(i)(A)-(D) (subject employee), unless the locomotive cab has appropriate storage facilities to hold the number of EEBAs required to be provided.
(b) The storage facility for each required EEBA must—
(1) Prevent deformation of the face piece and exhalation valve, where applicable;
(2) Protect the EEBA from incidental damage, contamination, dust, sunlight, extreme temperatures, excessive moisture, and damaging chemicals;
(3) Provide each subject employee located in the locomotive cab with ready access to the EEBA during an emergency; and
(4) Provide a means for each subject employee to locate the EEBA under adverse conditions such as darkness or disorientation.
(c) A railroad must comply with the applicable manufacturer's instructions for storage of each required EEBA and must keep a copy of the instructions at its system headquarters for FRA inspection.
(a)
(1) Procedures for performing and recording a pre-trip inspection of each EEBA that is required to be provided on a locomotive being used to transport a PIH material and procedures for cleaning, replacing, or repairing each required EEBA, if necessary, prior to its being provided under § 227.201(a);
(2) Procedures for performing and recording periodic inspections and maintenance of each required EEBA in a manner and on a schedule in accordance with the manufacturer's recommendations; and
(3) Procedures for turning in and obtaining a replacement for a defective, failed, or used EEBA and for recording those transactions.
(b)
(i) The name of the railroad performing the inspection;
(ii) The date that the inspection was performed;
(iii) The name and signature of the individual who made the inspection;
(iv) The findings of the inspection;
(v) The required remedial action; and
(vi) A serial number or other means of identifying the inspected EEBA.
(2) A railroad shall maintain an accurate record of each pre-trip and periodic inspection required by this section. Pre-trip inspection records shall be retained for a period of 92 days. Periodic inspection records shall be retained for a period of one year.
(c)
(1) Repair, adjustment, and cleaning of EEBAs shall be done only by persons who are appropriately trained to perform such work and who shall use only the EEBA manufacturer's approved parts designed to maintain the EEBA in compliance with one of the following standards:
(i) NIOSH at 42 CFR part 84;
(ii) ISO 23269-1:2008(E) (incorporated by reference, see § 227.219);
(iii) BS EN 1146:2005: E (incorporated by reference, see § 227.219); or
(iv) BS EN 13794:2002 E (incorporated by reference, see § 227.219).
(2) Repairs shall be made according to the manufacturer's recommendations and specifications for the type and extent of repairs to be performed.
(3) Where applicable, reducing and admission valves, regulators, and alarms shall be adjusted or repaired only by the manufacturer or a technician trained by the manufacturer.
(d)
(1) Maintain an accurate record of return, maintenance, repair, or replacement for each EEBA required by this subpart; and
(2) Retain each of these records for three years.
(a)
(2) This program may be integrated with the railroad's program of instruction on operating rules under § 217.11 of this chapter or its program of instruction for hazmat employees under § 172.704 of this title. If the program is not integrated with either of these programs, it must be written in a separate document that is available for inspection by FRA.
(b)
(1) Why the EEBA is necessary and how improper fit, usage, or maintenance can compromise the protective effect of the EEBA.
(2) The capabilities and limitations of the EEBA, particularly the limited time for use.
(3) How to use the EEBA effectively in emergency situations, including situations in which the EEBA malfunctions.
(4) How to inspect, put on, remove, and use the EEBA, and how to check the seals of the EEBA.
(5) Procedures for maintenance and storage of the EEBA that must be followed.
(6) The EEBA-selection criteria in § 227.203.
(7) The requirements of this subpart related to the responsibilities of employees and the rights of employees to have access to records.
(8) The hazardous materials classified as PIH materials.
(c)
(2) Initial instruction shall be supplemented with periodic instruction at least once every three years.
(d)
(a)
(b)
(1) Identify the individual that implements and manages the railroad's general EEBA program by title. The individual must have suitable training and sufficient knowledge, experience, skill, and authority to enable him or her to manage properly a program for provision of EEBAs. If the individual is not directly employed by the railroad, the written program must identify the business relationship of the railroad to the individual fulfilling this role.
(2) Describe the administrative and technical process for selection of EEBAs appropriate to the hazards that may be reasonably expected.
(3) Describe the process used to procure and provide EEBAs in a manner to ensure the continuous and ready availability of an EEBA to each of the railroad's employees identified in § 227.201(a)(1)(i)(A)-(D) (while actually occupying the locomotive cab of a freight train in service transporting a PIH material). This description shall include—
(i) A description of the method used for provision of EEBAs, including whether the EEBAs are individually assigned to employees, installed on locomotives as required equipment, or provided by other means. If EEBAs are installed on locomotives as required equipment, the means of securement shall be designated.
(ii) The decision criteria used by the railroad to identify trains in which provision of EEBAs is not required.
(iii) A description of what procedures will govern the railroad at interchange to ensure that the locomotive cab in each in-service freight train transporting a PIH material has an EEBA accessible to each of the employees identified in § 227.201(a)(1)(i)(A)-(D) while in the cab of the locomotive, including what procedures are in place to ensure that the EEBAs provided satisfy the EEBA-selection criteria in § 227.203, satisfy the EEBA-storage criteria in § 227.205, and have been inspected and are in working order pursuant to the requirements in § 227.207.
(4) Ensure that each of the following employees, except those excluded by § 227.201(b), whose duties require regular work in the locomotive cabs of in-service freight trains transporting a PIH material, including a residue of a PIH material, has the required EEBA available when they occupy the cab of such a train and know how to use the EEBA:
(i) Employees who perform service subject to 49 U.S.C. 21103 (train employees) on such trains;
(ii) Direct supervisors of train employees on such trains;
(iii) Deadheading employees on such trains; and
(iv) Any other employees designated by the railroad in writing and at the discretion of the railroad.
(c)
(d)
(a) An employee to whom the railroad provides an EEBA shall—
(1) Participate in training under § 227.209;
(2) Follow railroad procedures to ensure that the railroad's EEBAs—
(i) Are maintained in a secure and accessible manner;
(ii) Are inspected as required by this subpart and the railroad's program of inspection; and
(iii) If found to be unserviceable upon inspection, are turned in to the appropriate railroad facility for repair, periodic maintenance, or replacement; and
(3) Notify the railroad of EEBA failures and of use incidents in a timely manner.
(b) No employee shall willfully tamper with or vandalize an EEBA that is provided pursuant to § 227.201(a) in an attempt to disable or damage the EEBA.
(a)
(2) Except for records of pre-trip inspections of EEBAs under § 227.207, records required to be retained under this subpart must be kept at the system headquarters and at each division headquarters where the tests and inspections are conducted.
(b)
(1) The electronic system is designed so that the integrity of each record is maintained through appropriate levels of security such as recognition of an electronic signature, or other means, which uniquely identify the initiating person as the author of that record. No two persons have the same electronic identity.
(2) The electronic system ensures that each record cannot be modified in any way, or replaced, once the record is transmitted and stored.
(3) Any amendment to a record is electronically stored apart from the record that it amends. Each amendment to a record is uniquely identified as to the individual making the amendment.
(4) The electronic system provides for the maintenance of records as originally submitted without corruption or loss of data.
(5) Paper copies of electronic records and amendments to those records that may be necessary to document compliance with this subpart are made available for inspection and copying or photocopying by representatives of FRA.
(a) Class I railroads subject to this subpart are required to comply with this subpart beginning no later than 12 months from the effective date of the final rule.
(b) Class II railroads subject to this subpart are required to comply with this subpart beginning no later than 12 months from the effective date of the final rule.
(c) Class III railroads subject to this subpart and any other railroads subject to this subpart are required to comply with this subpart beginning no later than 18 months from the effective date of the final rule.
(a) Certain material is incorporated by reference into this subpart with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. This incorporation by reference (IBR) material is available for inspection at the FRA and the National Archives and Records Administration (NARA). Contact FRA at: Federal Railroad Administration, 1200 New Jersey Avenue SE, Washington, DC 20590; phone: (202) 493-6052; email:
(b) International Organization for Standardization, Chemin de Blandonnet 8, CP 401, 1214 Vernier, Geneva, Switzerland, telephone +41-22-749-08-88 or
(1) ISO 23269-1:2008(E), Ships and marine technology—Breathing apparatus for ships—Part 1: Emergency escape breathing devices (EEBD) for shipboard use, First Edition, February 1, 2008;, into §§ 227.203(b) and 227.207(c).
(2) [Reserved]
(c) The British Standards Institution, 12110 Sunset Hills Road, Suite 200, Reston, VA 20190-5902, telephone: 800-862-4977 or
(1) BS EN 13794:2002 E, Respiratory Protective Devices—Self-Contained, Closed-Circuit Breathing Apparatus for Escape—Requirements, Testing, Marking, November 2002 §§ 227.203(b) and 227.207(c).
(2) BS EN 1146:2005: E, Respiratory Protective Devices—Self-Contained, Open-Circuit Compressed Air Breathing Apparatus Incorporating a Hood for Escape—Requirements, Testing, Marking; September 2005; into §§ 227.203(b) and 227.207(c).
Issued in Washington, DC.
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to update the policy and procedures for use of the Supplier Performance Risk System and to require contracting officers to consider SPRS risk assessments, if available, in the evaluation of a supplier's quotation or offer and to consider SPRS supplier risk assessments when determining contractor responsibility.
Effective March 22, 2023.
Heather Kitchens, telephone 571-296-7152.
DoD published a proposed rule in the
DoD reviewed the public comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments is provided, as follows.
As a result of public comments, there are changes from the proposed rule in the final rule to clarify applicability of the rule. Additionally, editorial and clarifying changes were made in the final rule as discussed in paragraph C of this preamble.
The solicitation provision is prescribed for use in solicitations for supplies and services, including solicitations using FAR part 12 procedures for the acquisition of commercial products and commercial services. To clarify that the provision also applies to solicitations using FAR part 13 simplified acquisition procedures, the rule revises the language in part 213 at 213.106-2, paragraph (b)(i), to provide a cross-reference to 204.7603 and to require contracting officers to consider SPRS risk assessments as a basis of award for solicitations using FAR part 13 simplified acquisition procedures, and obsolete language is removed. Further, to more clearly reflect that the intended purpose of the provision extends beyond FAR part 13 actions, the provision title is revised to read as follows: 252.204-7024, Notice on the Use of the Supplier Performance Risk System.
The proposed rule, at sections I. and II. of the preamble, stated that SPRS is required to be used to evaluate quotes and offers received under all solicitations for supplies and services. To further clarify applicability of the procedures at DFARS 204.7603 to Federal Supply Schedules, commercial acquisitions, acquisitions using FAR part 13 simplified acquisition procedures, evaluation of offers under part 215, and indefinite-delivery contracts, cross-references to DFARS 204.7603 are added to—
• Subpart 208.4, Federal Supply Schedules;
• Subpart 212.2, Special Requirements for the Acquisition of Commercial Products and Commercial Services;
• Subpart 213.1, Procedures;
• 215.3, Source Selection; and
• Subpart 216.5, Indefinite-Delivery Contracts.
The following are amplifying changes to the rule that are not based on public comments, but were made to add clarity:
• The term “overall risk assessments” at DFARS 204.7602 and 204.7603 was changed to “risk assessments” throughout the final rule to use language consistent with the SPRS website.
• Some instances of the terms “evaluated” and “evaluation” were replaced with the term “considered” and “shall consider” to clarify that risk assessments are not a mandatory, stand-alone, evaluation factor for source selections and that the contracting officer shall “consider” the risk assessments, if available, as part of broader evaluation factors during evaluation of quotations or offers and when determining contractor responsibility.
• DFARS 204.7603, Procedures, was updated to clarify the scope of SPRS risk assessments required to be considered when procuring supplies and services and the scope of SPRS risk assessments required to be considered when procuring an end product (see FAR 2.101) identified by an available material identifier (see Procedures, Guidance, and Information (PGI) 204.7603). The contracting officer shall consider price risk and supplier risk, if available, as part of the award decision. For the procurement of an end product identified by an available material identifier, the contracting officer shall also consider item risk.
• DFARS 204.7603, Procedures, was updated to clarify that contracting officers shall use their discretion in considering the information available in SPRS.
• DFARS 204.7603, Procedures, was updated under paragraph (a), Item Risk, to clarify that a SPRS item risk search is required for any end product that did not have an item risk search performed prior to solicitation to ensure that item risk searches in SPRS only occur if an end product did not have an item risk search performed prior to solicitation; and paragraph (b), Price Risk, applies when procuring a service or an end product identified by an available material identifier.
• An editorial change was made throughout to correct an administrative error by removing the words “or services” from the definition of “item risk”, as item risk does not apply to services.
This rule creates a new solicitation provision, DFARS 252.204-7024, Notice on the Use of the Supplier Performance Risk System. The provision at DFARS 252.204-7024 is prescribed at DFARS 204.7604 for use in in solicitations for supplies and services, including solicitations using FAR part 12 procedures for the acquisition of commercial products and commercial services. The provision is applicable to acquisitions at or below the simplified acquisition threshold (SAT) and to acquisitions of commercial products, including commercially available off-the-shelf (COTS) items, and commercial services. Not applying this provision to contracts at or below the SAT and for the acquisition of commercial products, including COTS items, and commercial services would exclude contracts intended to be covered by this rule and undermine the overarching purpose of the rule. Consequently, DoD is applying the rule to contracts below the SAT, for the acquisition of commercial services, and for the acquisition of commercial products, including COTS items.
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 is not 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.
As required by the Congressional Review Act (5 U.S.C. 801-808) before an interim or final rule takes effect, DoD will submit a copy of the interim or final rule with the form, Submission of Federal Rules under the Congressional Review Act, to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule under the Congressional Review Act cannot take effect until 60 days after it is published in the
A final regulatory flexibility analysis (FRFA) has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601,
This final rule is necessary to revise the Defense Federal Acquisition Regulation Supplement (DFARS) to incorporate the expanded capabilities of the Supplier Performance Risk System (SPRS), made possible by recent technical enhancements. SPRS is a DoD enterprise application that retrieves price, item, quality, delivery, and contractor performance data from Government reporting systems. SPRS collects quality and delivery data from Government systems to develop risk assessments. The system provides three risk assessments for contracting officer use in evaluations of quotations and offers: an item risk assessment, a price risk assessment, and a supplier risk assessment.
The objective of the final rule is to notify offerors, via the new solicitation provision at DFARS 252.204-7024, that SPRS collects performance data from a variety of Government sources on awarded contracts to develop item risk, price risk, and supplier risk assessments for contracting officers to consider during evaluation of quotations or offers. The final rule also requires contracting officers to consider the supplier risk assessment in the determination of contractor responsibility.
No comments were received in response to the initial regulatory flexibility analysis.
The Federal Procurement Data System indicates that in fiscal years 2020 through 2022, DoD awarded an average of 483,364 contracts per year for both products and services, of which an average of 338,039 (approximately 70 percent) were awarded to an average of 22,760 unique small businesses.
This rule does not require any specific reporting, recordkeeping, or compliance requirements.
No significant economic impact on small businesses is anticipated as a result of the final rule. DoD does not expect small entities will be materially affected by this rule. There are no
The 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).
Government procurement.
Therefore, 48 CFR parts 204, 208, 209, 212, 213, 215, 216, and 252 are amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
This subpart provides policies and procedures for use of the Supplier Performance Risk System (SPRS) risk assessments in the evaluation of a quotation or offer.
As used in this subpart—
Use of SPRS risk assessments is required for the evaluation of quotations or offers in response to solicitations for supplies and services, including solicitations using FAR part 12 procedures for the acquisition of commercial products and commercial services, excluding solicitations for the procurement of supplies or services exempted by the Department of Defense Instruction (DoDI) 5000.79, Defense-wide Sharing and Use of Supplier and Product Performance Information. SPRS retrieves item, price, quality, delivery, and contractor information from contracts in Government reporting systems in order to develop risk assessments of contractors. SPRS is available at
The contracting officer shall consider price risk and supplier risk, if available in SPRS, as a part of the award decision. For procurement of an end product identified by a material identifier that is available as described at PGI 204.7603, the contracting officer shall also consider assessments of item risk, if available, as a part of the award decision. Offerors or quoters without a risk assessment in SPRS shall not be considered favorably or unfavorably. Contracting officers shall use their discretion in considering the information available in SPRS on item risk, price risk, and supplier risk as follows:
(a)
(2) Before issuing a solicitation for the procurement of an end product identified by a material identifier that is available as described at PGI 204.7603, the contracting officer shall ensure a SPRS item risk search has been performed and shall consider any item risk warnings provided. When evaluating quotations or offers for an end product identified by a material identifier, a SPRS item risk search is required for any end product that did not have an item risk search performed prior to solicitation. If there are item risk warnings, the contracting officer shall consider strategies to mitigate risk, such as the following:
(i) Consulting with the program office.
(ii) Including mitigating requirements in the statement of work, as provided by the requiring activity.
(iii) Including FAR and DFARS clauses identified in the SPRS application, as appropriate.
(b)
(2) The contracting officer shall consider strategies to mitigate price risk, such as the following:
(i) Not awarding to offerors or quoters with high risk price ratings unless there is a way to justify the price through additional price or cost analysis.
(ii) Utilizing appropriate price negotiation techniques and procedures.
(iii) Using price reasonableness or price realism techniques at FAR 13.106 or 15.4. See also 215.403-3 when making award decisions.
(c)
Except for supplies or services exempted by DoDI 5000.79, use the provision at 252.204-7024, Notice on the Use of the Supplier Performance Risk System, in solicitations for supplies and services, including solicitations using FAR part 12 procedures for the acquisition of commercial products and commercial services.
(4) See 204.7603 for procedures on the required use of the Supplier Performance Risk System (SPRS) risk assessments.
(i) The contracting officer shall ensure SPRS assessments of price risk and supplier risk are considered as a part of the award decision.
(ii) When placing an order with a schedule contractor for an end product identified by a material identifier that is available as described at PGI 204.7603, and item risk was not previously considered during award of the schedule contract, the contracting officer shall also consider SPRS assessments of item risk in the award decision.
(iii) Use the provision at 252.204-7024, Notice on the Use of the Supplier Performance Risk System, as prescribed in 204.7604 to the extent permitted by the Federal Supply Schedule.
(2) A satisfactory performance record is a factor in determining contractor responsibility (see FAR 9.104-1(c)).
(i) One source of information relating to contractor performance is the Contractor Performance Assessment Reporting System (CPARS), available at
(ii) Information relating to contract terminations for cause and for default is also available through the Federal Awardee Performance and Integrity Information System (FAPIIS) module of CPARS, available at
(iii) Contracting officers shall consider the supplier risk assessment available in the Supplier Performance Risk System at
(3) See 204.7603 for procedures on the required use of Supplier Performance Risk System risk assessments as part of the award decision.
The addition reads as follows:
(f) * * *
(ii) * * *
(O) Use the provision at 252.204-7024, Notice on the Use of the Supplier Performance Risk System, as prescribed in 204.7604.
(b)(i) See 204.7603 for procedures on the requirement for contracting officers to consider Supplier Performance Risk System risk assessments as a basis of award.
Use the provision at 252.204-7024, Notice on the Use of the Supplier Performance Risk System, as prescribed in 204.7604.
(c) * * *
(viii)(A) When procuring supplies or services, the contracting officer shall ensure Supplier Performance Risk System (SPRS) assessments of price risk and supplier risk are considered as a part of the award decision. See 204.7603.
(B) When procuring an end product identified by a material identifier that is available as described at PGI 204.7603, the contracting officer shall also consider SPRS assessments of item risk in the award decision.
(b) * * *
(viii) When procuring a service or an end product identified by a material identifier that is available as described at PGI 204.7603, the contracting officer shall consider the Supplier Performance Risk System price risk assessments in determining if a proposed price is consistent with historical prices paid for an item or otherwise creates a risk to the Government. See also 215.403-3(a)(1).
(a) * * *
(S-71) See 204.7603 for procedures on the required use of the Supplier Performance Risk System (SPRS) risk assessments.
(i) The contracting officer shall ensure SPRS assessments of price risk and supplier risk are considered as a part of the award decision.
(ii) When placing an order for an end product identified by a material identifier that is available as described at PGI 204.7603, and item risk was not previously considered during award of the contract, the contracting officer shall also consider SPRS assessments of item risk in the award decision.
(iii) Use the provision at 252.204-7024, Notice on the Use of the Supplier Performance Risk System, as prescribed in 204.7604 to the extent permitted by the contract.
As prescribed in 204.7604, use the following provision:
(a)
(b) The Supplier Performance Risk System (SPRS), available at
(c) The Contracting Officer will consider SPRS risk assessments during the evaluation of quotations or offers received in response to this solicitation as follows:
(1) Item risk will be considered to determine whether the procurement represents a high performance risk to the Government.
(2) Price risk will be considered in determining if a proposed price is consistent with historical prices paid for a product or a service or otherwise creates a risk to the Government.
(3) Supplier risk, including but not limited to quality and delivery, will be considered to assess the risk of unsuccessful performance and supply chain risk.
(d) SPRS risk assessments are generated daily. Quoters or Offerors are able to access their risk assessments by following the access instructions in the SPRS user's guide available at
(e) The Contracting Officer may consider any other available and relevant information when evaluating a quotation or an offer.
(End of provision)
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2018.
Effective March 22, 2023.
Mr. David E. Johnson, telephone 202-913-5764.
DoD published a proposed rule in the
DoD reviewed the public comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments is provided as follows:
Based on comments received, DFARS 227.7203-2 and the clauses at DFARS 252.227-7014 and 252.227-7018 are revised as follows:
• DFARS 227.7203-2(c)(6)(ii)(A) and (B) and 227.7203-2(c)(6)(iii) are revised to state “license rights sufficient to meet the Government's needs”, rather than “all necessary license rights.”
• The list of factors in DFARS 227.7203-2(b)(1)(ii) is revised to include the Government's costs to develop computer software.
• Paragraph (iii) of the definition of “restricted rights” in DFARS 252.227-7014 and 252.227-7018 is revised to remove the purposes added in the proposed rule and to permit the Government to make a reasonable number of copies of computer software required for the other purposes authorized under the clause.
• Paragraphs (v) through (vii) of the definition of the of “restricted rights” in DFARS 252.227-7014 and 252.227-7018 are revised to expressly indicate that the Government has the right to use computer software and other rights to computer software already provided to covered Government support contractors.
DoD asserts that application of the statutory requirements for the Government to consider acquiring all of the additional software and related materials necessary to meet the Government's needs for deploying, operating, testing, and supporting acquired software over its life cycle is consistent with long-standing policy regarding the acquisition of commercial software. DoD's established policies and practices for acquiring commercial computer software and related documentation recognize that the Government may negotiate for additional deliverables and license rights that are necessary to meet the Government's needs when the standard commercial deliverables or rights do not meet agency needs (see DFARS 227.7202-1(a) and (c) and 227.7202-3(b)). For these reasons, DoD asserts that the final rule should apply to commercial software and documentation, while maintaining the policies set forth in DFARS 227.7202-1(c). The final rule has been revised to emphasize consistency with DFARS 227.7202-1(c), while permitting contracting officers the discretion to consider the factors identified in DFARS 227.7203-2(b) and (c), unless inappropriate under the specific circumstances of the acquisition. Because the final rule is consistent with the policies at DFARS 227.7202-1(c), this facilitates alignment with commercial licensing models, thereby incentivizing commercial vendors to do business with DoD.
In response to the respondents' concerns about the scope of the term “all necessary license rights” in DFARS 227.7203-2(b)(6)(ii)(A) and (B), this phrase has been changed to “license rights sufficient to meet the Government's needs.” The final rule is consistent with the policies and directives at DFARS 227.7203 and Department of Defense Instruction (DoDI) 5010.44, Intellectual Property (IP) Acquisition and Licensing, which encourage contracting officers to tailor the Government's license rights to the meet agency needs.
As acknowledged by respondents during the public meeting held on March 10, 2022, there are long-standing concerns that the phrase “the Government's minimum needs” and the term “minimum” in particular, are ambiguous and purportedly misunderstood by contracting officers. Accordingly, the final rule removes the source of the ambiguity by removing “minimum needs” and replacing it with “life-cycle needs.” In addition, the phrase “the Government's life-cycle needs” is aligned with the recitation of “life cycle” in 10 U.S.C. 4576, which does not reference “minimum needs.” The statute supersedes recommendations made by the Section 807 Committee nearly three decades ago.
In response to the respondents' concerns about the scope of the term “life-cycle needs,” DoD notes that the assessment of life-cycle needs is informed and shaped by the considerations and factors in DFARS 227.7103-2(b)(1) and 227.7203-2(b)(1). The final rule further bolsters the list of factors in DFARS 227.7203-2(b)(1)(i) by including the Government's costs to develop computer software.
Another respondent recommended that the proposed rule at DFARS 227.7203-2(b)(2)(ii) should be changed to require consideration of the alternatives to delivery of source code and related software design details listed in DFARS 227.7203-2(b)(2)(ii), rather than merely recommending consideration of alternatives. One respondent also recommended changing the title of this section to “Alternatives to delivery of source code and related software design details.”
However, DoD has not adopted the respondent's recommendation to change the prescriptive guidance at DFARS 227.7203-2(b)(2)(ii) to require consideration of these alternatives to source code and related software design details. In accordance with FAR 2.101, the term “should” denotes that the instruction will be followed unless inappropriate for a particular circumstance. As acknowledged by various respondents, DoD must consider the feasibility or practicality of applying these policies. To that end, the term “should” provides contracting officers with the flexibility to consider the specific circumstances or nuances of an acquisition in applying the considerations in DFARS 227.7203-2(b)(2)(ii).
The proposed rule changed the number of copies that the Government is permitted to make for otherwise-authorized activities. The proposed rule does not expand the Government's license rights to distribute or use computer software. Because there are no purpose-based limitations on the Government's use of computer programs in paragraph (i) of the “restricted rights” definition, a “restricted rights” license permits Government use of computer programs for any purpose. Accordingly, the proposed rule included revisions that sought to reference and provide examples of the Government's authorized purposes and activities provided within the existing rights under the definition of “restricted rights.”
For clarity, DoD revised paragraph (iii) of these definitions by: (1) removing the additional listing of specific, exemplary purposes included in the proposed rule; (2) removing the reference to “use” of computer software; and (3) permitting copies for “other activities authorized in [the `restricted rights' definition]” to leverage existing rights under the clauses. The final rule also resolves an ambiguity in the “restricted rights” definition. Although the current rule expressly recognizes the Government's rights to use computer programs for any purpose in paragraph (i) of the definition, the rule only implicitly recognizes the Government's rights to use unmodified computer software for the specific purposes and activities for which the license expressly authorizes the software to be released to non-Government persons. To resolve this ambiguity, DoD revised paragraphs (v) through (vii) to expressly indicate that the Government has the right to use computer software for those same purposes, as well as other rights to computer software already provided to covered Government support contractors.
This rule does not create any new solicitation provisions or contract clauses. It does not impact any existing provisions or clauses or their applicability to contracts valued at or below the simplified acquisition threshold, for commercial services, or for commercial products, including commercially available off-the-shelf items.
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 is not 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.
As required by the Congressional Review Act (5 U.S.C. 801-808) before an interim or final rule takes effect, DoD will submit a copy of the interim or final rule with the form, Submission of Federal Rules Under the Congressional Review Act, to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule under the Congressional Review Act cannot take effect until 60 days after it is published in the
A final regulatory flexibility analysis (FRFA) has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601,
This rule implements section 871 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 (Pub. L. 115-91). Section 871 established new direction at 10 U.S.C. 2322a, Requirement for consideration of certain matters during acquisition of noncommercial computer software. The statute requires that DoD, as part of any negotiation for such software, consider all noncommercial computer software and related materials necessary to meet the needs of the agency.
DoD received no public comments in response to the initial regulatory flexibility analysis.
The rule may impact small entities that are awarded DoD contracts for noncommercial computer software, to include contracts under the Small Business Innovation Research and Small Business Technology Transfer Programs. Based on data from the Federal Procurement Data System (FPDS) and the Electronic Data Access (EDA) for FY 2019 through FY 2020, DoD estimates that an average of 6,263 unique small entities are awarded an average of 30,146 contract actions for noncommercial software annually.
This rule does not impose any new reporting, recordkeeping, or other compliance requirements.
There are no known alternatives that would accomplish the stated objectives of the applicable statute.
The Paperwork Reduction Act (44 U.S.C. chapter 35) applies to this rule. However, these changes to the DFARS do not impose additional information collection requirements to the paperwork burden previously approved under Office of Management and Budget (OMB) Control Number 0704-0369, entitled DFARS Subparts 227.71, Rights in Technical Data; and Subpart 227.72, Rights in Computer Software and Computer Software Documentation, and related provisions and clauses.
Government procurement.
Therefore, 48 CFR parts 227, 237, 239, and 252 are amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
The revisions read as follows:
(a) * * *
(7) Public Law 103-355.
(8) Executive Order 12591 (subsection 1(b)(7)).
(b)(1) Data managers or other requirements personnel are responsible for identifying the Government's life-cycle needs for technical data. Technical data needs must be established giving consideration to the offeror's economic interests in technical data pertaining to items, components, or processes that have been developed at private expense (including the economic interests of small businesses and nontraditional contractors); the Government's costs to acquire, maintain, store, retrieve, and protect the technical data; reprocurement needs; repair, maintenance, and overhaul philosophies; spare and repair part considerations; and whether procurement of the items, components, or processes can be accomplished on a form, fit, or function basis. When it is anticipated that the Government will obtain unlimited or government purpose rights in technical data that will be required for competitive spare or repair parts procurements, such data should be identified as deliverable technical data items. Reprocurement needs may not be a sufficient reason to acquire detailed manufacturing or process data when items or components can be acquired using performance specifications, form, fit, and function data, or when there are a sufficient number of alternate sources that can reasonably be expected to provide such items on a performance specification or form, fit, or function basis.
(a) This subpart—
(1) Prescribes policies and procedures for the acquisition of computer software and computer software documentation, and the rights to use, modify, reproduce, release, perform, display, or disclose such software or documentation. It implements the following laws and Executive order:
(i) 10 U.S.C. 3013.
(ii) 10 U.S.C. 3208(d).
(iii) 10 U.S.C. 3771-3775.
(iv) 10 U.S.C. 3781-3786.
(v) 10 U.S.C. 4576.
(vi) Executive Order 12591 (subsection 1(b)(7)).
(2) Does not apply to—
(i) Computer software or computer software documentation acquired under General Services Administration (GSA) schedule contracts; or
(ii) Releases of computer software or computer software documentation to litigation support contractors (see subpart 204.74).
(b) See PGI 227.7200(b) for guidance and information in DoD issuances.
(d) When establishing contract requirements and negotiation objectives to meet agency needs, the Government should consider the factors identified in 227.7203-2(b) and (c) for commercial computer software and computer software documentation, consistent with paragraph (c) of this section.
The revisions and addition read as follows:
(b)(1) Data managers or other requirements personnel are responsible for identifying the Government's life-cycle needs for computer software and computer software documentation. See PGI 227.7203-2(b) for further guidance on assessing life-cycle needs. In addition to desired software performance, compatibility, or other technical considerations, identification of life-cycle needs should consider such factors as—
(i) The offeror's economic interests in software that has been developed at private expense (including the economic interests of small businesses and nontraditional contractors);
(ii) The Government's costs to develop, acquire, maintain, store, retrieve, and protect the computer software and computer software documentation;
(iii) Multiple site or shared use requirements;
(iv) Whether the Government's software maintenance philosophy will require the right to modify or have third parties modify the software; and
(v) Any special computer software documentation requirements.
(2)(i)
(A) Reproduce, build, or recompile the software from its source code and required software libraries (
(B) Conduct required computer software testing and evaluation;
(C) Integrate and deploy computer programs on relevant hardware including developmental, operational, diagnostic, training, or simulation environments; and
(D) Sustain and support the software over its life cycle.
(ii)
(A) Technical data and computer software sufficient to implement a modular open system approach or a similar approach (see PGI 227.7203-2(b)(2)(ii)(A) for guidance on alternatives to source code and related software design details);
(B) Access to technical data or computer software, including access agreements for cloud-based or subscription-based software products or services; see PGI 227.7203-2(b)(2)(ii)(B) and (C) for guidance on use of access agreements to contractor source code and related software design details;
(C) Software support and maintenance provided directly from the contractor; or
(D) Other contracting or licensing mechanisms including priced options, specially negotiated licenses, direct licensing between contractors for qualifying second sources, data escrow agreements, deferred delivery solutions, and subscription agreements. See PGI 227.7203-2(b)(2)(ii)(D) for guidance on use of escrow agreements.
(3) When reviewing offers received in response to a solicitation or other request for computer software or computer software documentation, data managers must balance the original assessment of the Government's needs with prices offered.
(c) * * *
(4) Include delivery schedules and acceptance criteria for each deliverable item;
(5) Specifically identify the place of delivery for each deliverable item; and
(6) Specify in the negotiated terms that any required other than commercial computer software, related recorded information, and associated license rights identified in the assessment of life-cycle needs in paragraph (b) of this section shall to the extent appropriate—
(i) Include computer software delivered in a digital format compatible with applicable computer programs on relevant system hardware;
(ii) Not rely on additional internal or external other than commercial or commercial technical data and software, unless such technical data or software is—
(A) Included in the items to be delivered with license rights sufficient to meet the Government's needs; or
(B) Commercially available with license rights sufficient to meet the Government's needs; and
(iii) Include sufficient information, with license rights sufficient to meet the Government's needs, to support maintenance and understanding of interfaces and software version history when the negotiated terms do not allow for the inclusion of the external or additional other than commercial or commercial technical data and software.
(a) See
(b) See 227.7203 for policy on the acquisition of other than commercial computer software and other than commercial computer software documentation for services contracts that require the development or modification of other than commercial computer software.
(4) See 227.7203 for policy on the acquisition of other than commercial computer software and other than commercial computer software documentation.
(a) * * *
(15)
The revisions read as follows:
(a) * * *
(15) * * *
(iii) Make a reasonable number of copies of the computer software required for the purposes of safekeeping (archive), backup, modification, or other activities authorized in paragraphs (a)(15)(i), (ii), and (iv) through (vii) of this clause;
(vii) Use, modify, reproduce, perform, display, or release or disclose computer software to a person authorized to receive restricted rights computer software for management and oversight of a program or effort, and permit covered Government support contractors in the performance of covered Government support contracts that contain the clause at 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends, to use, modify, reproduce, perform, display, or release or disclose the computer software to a person authorized to receive restricted rights computer software, provided that—
(a) * * *
(4)
The revisions read as follows:
(a) * * *
(18) * * *
(iii) Make a reasonable number of copies of the computer software required for the purposes of safekeeping (archive), backup, modification, or other activities authorized in paragraphs (a)(18)(i), (ii), and (iv) through (vii) of this clause;
(vii) Use, modify, reproduce, perform, display, or release or disclose computer software to a person authorized to receive restricted rights computer software for management and oversight of a program or effort, and permit covered Government support contractors in the performance of covered Government support contracts that contain the clause at 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends, to use, modify, reproduce, perform, display, or release or disclose the computer software to a person authorized to receive restricted rights computer software, provided that—
(20)
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to revise the requirements related to the assumption of risk associated with aircraft under DoD contracts. Revisions are required due to numerous changes in aircraft contract situations and the emergence of contracts for small, unmanned aircraft.
Effective March 22, 2023.
David E. Johnson, telephone 202-913-5764.
DoD published a proposed rule in the
DoD reviewed the public comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments is provided, as follows:
The final rule includes, in response to the comments, definitions for “aircraft,” “covered aircraft,” “crewmember,” “flight,” and “workmanship error” at DFARS 228.370-1 and modified definitions at DFARS clause 252.228-7001, Ground and Flight Risk, for “covered aircraft,” “flight,” and “workmanship error” A change is made to the clause prescription concerning the exception for commercial derivative aircraft to clarify that the exception does not apply to contracts requiring flights by contractor crewmembers. Paragraph (d)(7) is removed from clause 252.228-7001, which provided an exclusion for “exposure to unreasonable conditions”.
This rule incudes minor changes not associated with public comments. First, this rule adds a reference to PGI 228.370-2(e) at 228.370-2. Second, this rule adds the term “incorrectly
In the clause at 252.228-7001, the definitions in paragraph (a) are arranged in alphabetical order. References to “commercial items” are replaced with “commercial products and commercial services” or “commercial products or commercial services” as appropriate for the context.
This rule creates a new clause: DFARS 252.228-7007, Public Aircraft and State Aircraft Operations—Liability. The clause DFARS 252.228-7007 is prescribed for use in solicitations and contracts that do not include the clause at 252.228-7001 but involve public aircraft operations or state aircraft operations. This rule also revises the clause at DFARS 252.228-7001, Ground and Flight Risk. DoD intends to apply both clauses to contracts at or below the simplified acquisition threshold. Application to contracts at or below the SAT will prevent contractors who have contracts valued below $200,000 from being liable for the entirety of the loss or damages. This burden on these smaller purchases is not commensurate with those of the larger dollar value contracts and, therefore, discourages the contractors with lower value contracts from working with the Government.
DoD does not intend to apply either clause to prime contracts for commercial services or commercial products, including commercially available off-the-shelf items, per DFARS 228.371. However, DFARS clause 252.228-7001 will apply to subcontracts for commercial products and commercial services, with an exception for work subcontracted to a Federal Aviation Administration (FAA) part 145 repair station performing work pursuant to their FAA license. DFARS clause 252.228-7001 provides for self-insurance to avoid reliance on commercial insurance for military aircraft. Application of DFARS 252.228-7001 to subcontracts, including those for commercial products and commercial services, provides a mechanism to require subcontractor compliance with the combined regulation/instruction, which provide the terms and conditions for the Government's self-insurance.
This rule is not expected to have a significant impact on the Government or industry. The rule updates and expands procedures and guidelines on use of DFARS clause 252.228-7001. The change in the calculation of the contractor's share of loss is viewed as a positive incentive in reducing the magnitude of the risk of loss for contractors. Although the dollar amount for contractor liability is increased from $100,000 to $200,000 in this rule, the addition of reasonable alternatives that recognize the low cost of aircraft, such as drones, will mean that a contractor's share of loss may be much lower. The rule also provides a new clause 252.228-7007, Public Aircraft and State Aircraft Operations—Liability, to use when conditions for use of 252.228-7001 are not met, but the acquisition involves public aircraft operations or state aircraft operations. It is expected that contract clause 252.228-7007 will be used very infrequently, fewer than 10 times annually.
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 is not 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.
As required by the Congressional Review Act (5 U.S.C. 801-808) before an interim or final rule takes effect, DoD will submit a copy of the interim or final rule with the form, Submission of Federal Rules under the Congressional Review Act, to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule under the Congressional Review Act cannot take effect until 60 days after it is published in the
A final regulatory flexibility analysis (FRFA) has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601,
DoD is amending the Defense Federal Acquisition Regulation Supplement (DFARS) to update the ground and flight risk policy and associated clause at DFARS 252.228-7001. The language is outdated and needs revision to clarify applicability to numerous changes in aircraft contract situations and emergence of contracts for small, unmanned aircraft.
DoD received no comments in response to the initial regulatory flexibility analysis.
The rule will apply to all small entities that will be awarded contracts for the acquisition, development, production, modification, maintenance, repair, flight, or overhaul of aircraft. According to data from the Federal Procurement Data System for fiscal years 2017 through 2019, DoD made approximately 6,287 awards per year on average for these types of acquisitions for a total of 18,861 awards. Approximately 7,757 of these awards were made to 2,185 unique small businesses.
This rule does not include any new reporting, recordkeeping, or other compliance requirements for small entities.
There are no known, significant, alternative approaches that would accomplish the objectives of the rule.
This 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).
Government procurement.
Therefore, 48 CFR parts 228, 242, and 252 are amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
As used in this section—
(1) All, or substantially all, of the contractor's business;
(2) All, or substantially all, of the contractor's operation at any one plant or separate location; or
(3) A separate and complete major industrial operation.
(1) Aircraft furnished by the Government to the contractor under a contract while in the contractor's possession, care, custody, or control regardless of their location or state of disassembly or reassembly;
(2) Items removed from a Government-furnished aircraft that are—
(i) Intended for reinstallation on that particular aircraft, which retain their status as covered aircraft while awaiting installation; and
(ii) Not intended for reinstallation on that particular aircraft, which lose their status as covered aircraft once removal is complete;
(3) New production aircraft when wholly outside of buildings on the contractor's premises or other places described in the contract Schedule (
(4) Commercial aircraft, to include commercially available off-the-shelf aircraft, become covered aircraft when the commercial aircraft arrives at the contractor's place of performance for modification under the terms of the contract.
(1) An aircraft used only for the Government, except as provided in paragraphs (5) and (7) of this definition.
(2) An aircraft owned by the Government and operated by any person for purposes related to crew training, equipment development, or demonstration, except as provided in paragraph (7) of this definition.
(3) An aircraft owned and operated by the government of a State, the District of Columbia, or a territory or possession of the United States or a political subdivision of one of these governments, except as provided in paragraph (7) of this definition.
(4) An aircraft exclusively leased for at least 90 continuous days by the government of a State, the District of Columbia, or a territory or possession of the United States or a political subdivision of one of these governments, except as provided in paragraph (7) of this definition.
(5) An aircraft owned or operated by the armed forces or chartered to provide transportation or other commercial air service to the armed forces under the conditions specified by 49 U.S.C. 40125(c). In the preceding sentence, the term “other commercial air service” means an aircraft operation that—
(i) Is within the United States territorial airspace;
(ii) The Administrator of the Federal Aviation Administration determines is available for compensation or hire to the public; and
(iii) Must comply with all applicable civil aircraft rules under title 14, Code of Federal Regulations.
(6) An unmanned aircraft that is owned and operated by, or exclusively leased for at least 90 continuous days by, an Indian Tribal government, as defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122), except as provided in paragraph (7) of this definition.
(7) As described in 49 U.S.C. 40125(b), an aircraft described in paragraph (1), (2), (3), or (4) of this definition does not qualify as a public aircraft in situations where the aircraft is used for commercial purposes or to carry an individual other than a crewmember or a qualified non-crewmember.
(a)
(b)
(c)
(d)
(e)
(f)
(2) Contracting officers should consult with the requiring activity and the assigned contract administration office on replacement, repair, or beyond economic repair decisions.
(3) See PGI 228.370-2(f) for an example of accident or mishap damage versus workmanship-error damage.
(g)
(2) The Government's assumption of risk shall not extend to damage, loss, or destruction of covered aircraft that—
(i) Is the result of willful misconduct or lack of good faith on the part of the contractor's managerial personnel, including the contractor's oversight of subcontractors;
(ii) Is sustained during flight if either the flight or the crewmembers have not been approved in advance and in writing by the GFR, who has been authorized in accordance with the combined regulation/instruction entitled “Contractor's Flight and Ground Operations”;
(iii) Occurs in the course of transportation by rail, or by conveyance on public streets, highways, or waterways, unless the transportation is limited to the vicinity of the contractor's premises, and incidental to work performed under the contract as described in the Schedule;
(iv) Is covered by insurance;
(v) Occurs after the contracting officer has, in writing, revoked the Government's assumption of risk; or
(vi) Is sustained due to workmanship errors.
(h)
(1)
(A) Lack of adequate hangar fire suppression or firefighting vehicles;
(B) Failure to provide adequate procedures to the GFR; or
(C) Systemic failure to comply with approved procedures.
(ii) The preliminary notice of revocation will state the timeframe for the contractor to correct the noncompliance or conditions.
(2)
(i) Thereafter the contractor assumes the entire risk for damage, loss, or destruction of the previously covered aircraft.
(ii) Any costs incurred by the contractor, including the costs of the contractor's self-insurance, insurance premiums paid to insure the contractor's assumption of risk, deductibles associated with such purchased insurance, etc., to mitigate its risk are unallowable costs.
(iii) The notice of revocation does not relieve the contractor of its obligation to comply with all other provisions of the clause at 252.228-7001, including the combined regulation/instruction entitled “Contractor's Flight and Ground Operations.”
(iv) Within 3 days of receipt of the contractor's notice of correction, the contracting officer shall notify the contractor whether the Government will resume risk of loss. The contracting officer shall determine that the noncompliance or cited conditions have been corrected prior to resuming assumption of risk.
(v) Any disputes regarding the contracting officer's notice of revocation shall be subject to FAR clause 52.233-1, Disputes.
(i)
(i) The damaged, lost, or destroyed aircraft;
(ii) The time and origin of the damage, loss, or destruction;
(iii) All known interests in commingled property of which aircraft are a part; and
(iv) The insurance, if any, covering the interest in commingled property.
(2) If a new production aircraft is damaged, lost, or destroyed before it has become a covered aircraft, the Government bears no responsibility for risk of loss.
(3) If a new production aircraft is damaged, lost, or destroyed after it has become a covered aircraft, the contracting officer shall provide written direction to the contractor to take action in accordance with the contracting officer's written direction that the aircraft shall be—
(i) Replaced;
(ii) Repaired to the condition immediately prior to the damage; or
(iii) Considered beyond economic repair. The contracting officer shall decide whether further actions are required under the contract.
(4) If a covered aircraft that has been furnished by the Government to the contractor is damaged, lost, or destroyed while covered, the contracting officer shall provide written direction to the contractor that the aircraft shall be—
(i) Repaired; or
(ii) Considered beyond economic repair. The contracting officer shall decide further actions required under the contract.
(5) The contracting officer shall make an equitable adjustment for expenditures made in performing the obligations under paragraph (h) of the clause at 252.228-7001.
(j)
(i) $200,000;
(ii) 20 percent of the price or estimated acquisition cost of affected aircraft; or
(iii) 20 percent of the price or estimated cost of the contract, task order, or delivery order.
(2) If the Government requires covered aircraft to be replaced or repaired by the contractor, any resulting equitable adjustment shall not include reimbursement of the contractor's share of loss.
(3) In the event the Government does not decide to replace or repair the covered aircraft, the clause at 252.228-7001 requires the contractor to credit the contract price or pay the Government, as directed by the contracting officer, the least of—
(i) $200,000;
(ii) 20 percent of the price or estimated acquisition cost of affected aircraft; or
(iii) 20 percent of the price or estimated cost of the contract, task order, or delivery order.
(4) The costs incurred by the contractor for its share of the loss and for insuring against that loss are unallowable costs, including but not limited to—
(i) The contractor's share of loss under the Government's self-insurance;
(ii) The costs of the contractor's self-insurance;
(iii) The deductible for any contractor-purchased insurance;
(iv) Insurance premiums paid for contractor-purchased insurance; and
(v) Costs associated with determining, litigating, and defending against the contractor's liability.
(k)
(a) When a contract involves aircraft not owned by or to be delivered to the Government, the contracting officer may use the clause at 252.228-7001 only if the contracting officer determines that it is in the best interest of the Government.
(b) Potential factors for the contracting officer to consider when deciding which course of action is in the best interest of the Government include, but are not limited to, whether—
(1) The cost of hull insurance exceeds the replacement cost of the aircraft;
(2) Insurance is not available (
(3) Ground or flight activities that involve contractor-owned and contractor-operated aircraft may pose risk to Government aircraft (
(b) Use the clause at 252.228-7001, Ground and Flight Risk, in solicitations and contracts—
(1) For the acquisition, development, production, modification, maintenance, repair, flight, or overhaul of aircraft owned by or to be delivered to the Government, except those solicitations and contracts—
(i) That are strictly for activities incidental to the normal operations of the aircraft (
(ii) That are awarded for purchase under FAR part 12 procedures;
(iii) For which a non-DoD customer (including an FMS customer per 225.7305) has decided to allow the use of commercial insurance or other self-insurance;
(iv) For commercial derivative aircraft with an FAA certificate of airworthiness maintained to FAA standards. Performance under the exception in this paragraph (b)(1)(iv) must be at a licensed and certified FAA repair station rated for the type of aircraft and work to be maintained. This exception does not apply to contracts requiring flights with contractor crewmembers;
(v) Under which the aircraft are to be dismantled and removed from the inventory; or
(vi) Under which the aircraft are classified as Group 1 or 2 unmanned aircraft systems per DoD Instruction (DoDI) 6055.07, Mishap Notification, Investigation, Reporting, and Record
(2) Involving aircraft not owned by or to be delivered to the Government, only if the contracting officer decides that it is in the best interest of the Government. See 228.371-3.
(f) Use the clause at 252.228-7007, Public Aircraft and State Aircraft Operations—Liability, in solicitations and contracts that do not include the clause at 252.228-7001 but involve public aircraft operations or state aircraft operations.
(a) * * *
(56) Within DoD, maintaining surveillance of aircraft flight and ground operations is accomplished by incorporating into the contract, task order, or delivery order the requirements of the applicable version of the combined regulation/instruction entitled “Contractor's Flight and Ground Operations” (Air Force Instruction 10-220, Army Regulation 95-20, Naval Air Systems Command (NAVAIR) Instruction 3710.1 (Series), Coast Guard Instruction M13020.3 (Series), and Defense Contract Management Agency Instruction 8210-1 (Series)). See PGI 242.302(a)(56).
The revision reads as follows:
As prescribed in 228.371(b), use the following clause:
(a)
(1) All, or substantially all, of the Contractor's business;
(2) All, or substantially all, of the Contractor's operation at any one plant or separate location; or
(3) A separate and complete major industrial operation.
(1) Aircraft furnished by the Government to the Contractor under this contract while in the Contractor's possession, care, custody, or control regardless of their location or state of disassembly or reassembly;
(2) Items removed from a Government furnished aircraft that are—
(i) Intended for reinstallation on that particular aircraft, which retain their status as covered aircraft while awaiting installation; and
(ii) Not intended for reinstallation on that particular aircraft, which lose their status as covered aircraft once removal is complete;
(3) New production aircraft when wholly outside of buildings on the Contractor's premises or other places described in the Schedule (
(4) Commercial aircraft, to include commercially available off-the-shelf aircraft, become covered aircraft when the commercial aircraft arrives at the Contractor's place of performance for modification under the terms of the contract.
(b)
(c)
(1) The Contractor's liability to the Government for damage, loss, or destruction of covered aircraft is limited to the Contractor's share of loss as defined at paragraph (h) of this clause, except when one of the exclusions at paragraph (d) applies.
(2) The liability provisions of this clause take precedence over the liability provisions of Federal Acquisition Regulation (FAR) clause 52.245-1, Government Property, with respect to covered aircraft.
(3) The Contractor is not liable for loss, damage, or destruction of covered aircraft as the result of normal wear and tear, or intentional damage or destruction as required in the Schedule.
(4) Conditions for Government assumption of risk in flight are as follows:
(i) The Contractor's crewmembers are approved in writing by the Government flight representative (GFR).
(ii) The flight is approved in writing by the GFR.
(d)
(1) Is the result of willful misconduct or lack of good faith on the part of the Contractor's managerial personnel, including the Contractor's oversight of subcontractors;
(2) Is sustained during flight if either the flight or the crewmembers have not been approved in advance and in writing by the GFR, who has been authorized in accordance with the combined regulation/instruction entitled “Contractor's Flight and Ground Operations”;
(3) Occurs in the course of transportation by rail, or by conveyance on public streets,
(4) Is covered by insurance;
(5) Occurs after the Contracting Officer has, in writing, revoked the Government's assumption of risk in accordance with paragraph (e)(3) of this clause; or
(6) Is sustained due to workmanship errors.
(e)
(1) The Contracting Officer, when finding that the Contractor's managerial personnel have failed to comply with paragraph (b) of this clause, will issue a preliminary notice of revocation requiring the Contractor to comply with contract requirements within a timeframe specified by the Contracting Officer. In determining exposure to unreasonable conditions, the Contracting Officer will consider factors including, but not limited to, the following: lack of adequate hangar fire suppression or firefighting vehicles, failure to provide adequate procedures to the GFR, or systemic failure to comply with approved procedures.
(2) Upon receipt of the preliminary notice of revocation, the Contractor shall promptly correct the noncompliance or cited conditions, regardless of whether there is agreement that the conditions are unreasonable.
(3) If the Contracting Officer finds that the Contractor failed to correct the cited noncompliance or conditions within the specified timeframe, the Contracting Officer will issue a notice of revocation of the Government's assumption of risk for any covered aircraft.
(4) If the Contracting Officer issues a notice of revocation pursuant to the terms of this clause—
(i) The Contractor shall thereafter assume the entire risk for damage, loss, or destruction of the previously covered aircraft;
(ii) Any costs incurred by the Contractor (including the costs of the Contractor's self-insurance, insurance premiums paid to insure the Contractor's assumption of risk, deductibles associated with such purchased insurance, etc.) to mitigate its risk are unallowable costs; and
(iii) The liability provisions of the clause at FAR 52.245-1, Government Property, are not applicable to the aircraft impacted by the notice of revocation.
(5) The Contractor shall promptly notify the Contracting Officer when the noncompliance or cited conditions have been corrected. Within 3 days of receipt of the Contractor's notice of correction, the Contracting Officer will notify the Contractor whether the Government will resume risk of loss. The Contracting Officer will determine that the noncompliance or cited conditions have been corrected prior to resuming assumption of risk.
(6) The notice of revocation does not relieve the Contractor of its obligation to comply with all other provisions of this clause, including the combined regulation/instruction entitled “Contractor's Flight and Ground Operations.”
(7) Any disputes regarding the Contracting Officer's notice of revocation shall be subject to FAR clause 52.233-1, Disputes.
(f)
(g)
(1) In the event of damage, loss, or destruction of covered aircraft, the Contractor shall take all reasonable steps to protect the aircraft from further damage, to separate damaged and undamaged aircraft, and to put all aircraft in the best possible order. Except in cases covered by paragraph (h)(2) of this clause, the Contractor shall furnish to the Contracting Officer a statement of—
(i) The damaged, lost, or destroyed aircraft;
(ii) The time and origin of the damage, loss, or destruction;
(iii) All known interests in commingled property of which aircraft are a part; and
(iv) The insurance, if any, covering the interest in commingled property.
(2) If a new production aircraft is damaged, lost, or destroyed before it has become a covered aircraft, the Government bears no responsibility for risk of loss.
(3) If a new production aircraft is damaged, lost, or destroyed after it has become a covered aircraft, the Contractor shall take action in accordance with the Contracting Officer's written direction that the aircraft shall be—
(i) Replaced;
(ii) Repaired to the condition immediately prior to the damage; or
(iii) Considered beyond economic repair. The Contracting Officer will decide whether further actions are required under the contract.
(4) If a covered aircraft that has been furnished by the Government to the Contractor is damaged, lost, or destroyed while covered, the Contractor shall take action in accordance with the Contracting Officer's written direction that the aircraft shall be—
(i) Repaired; or
(ii) Considered beyond economic repair. The Contracting Officer will decide further actions required under the contract.
(5) The Contracting Officer will make an equitable adjustment for expenditures made in performing the obligations under this paragraph (g).
(h)
(1) The Contractor's share of loss or damage to covered aircraft, except for loss or damage caused by negligence of Government personnel, is the least of—
(i) $200,000;
(ii) 20 percent of the price or estimated acquisition cost of affected aircraft; or
(iii) 20 percent of the price or estimated cost of the contract, task order, or delivery order.
(2) If the Government requires covered aircraft be replaced or repaired by the Contractor, any resulting equitable adjustment shall not include reimbursement of the Contractor's share of loss.
(3) In the event the Government does not decide to replace or repair, the Contractor agrees to credit the contract price or pay the Government, as directed by the Contracting Officer, the least of—
(i) $200,000;
(ii) 20 percent of the price or estimated acquisition cost of affected aircraft; or
(iii) 20 percent of the price or estimated cost of the contract, task order, or delivery order.
(4) The costs incurred by the Contractor for its share of the loss and for insuring against that loss are unallowable costs, including but not limited to—
(i) The Contractor's share of loss under the Government's self-insurance;
(ii) The costs of the Contractor's self-insurance;
(iii) The deductible for any Contractor-purchased insurance;
(iv) Insurance premiums paid for Contractor-purchased insurance; and
(v) Costs associated with determining, litigating, and defending against the Contractor's liability.
(i)
(j)
(k)
(1) The Contractor shall not include paragraph (f) of this clause in subcontracts for commercial products or commercial services; and
(2) The Contractor shall not incorporate the requirements of this clause in subcontracts with Federal Aviation Administration (FAA) part 145 repair stations performing work pursuant to their FAA license.
(End of clause)
The revision reads as follows:
The revision reads as follows:
The revision reads as follows:
As prescribed in 228.371(f), use the following clause:
(a)
(1) An aircraft used only for the Government, except as provided in paragraphs (5) and (7) of this definition.
(2) An aircraft owned by the Government and operated by any person for purposes related to crew training, equipment development, or demonstration, except as provided in paragraph (7) of this definition.
(3) An aircraft owned and operated by the government of a State, the District of Columbia, or a territory or possession of the United States or a political subdivision of one of these governments, except as provided in paragraph (7) of this definition.
(4) An aircraft exclusively leased for at least 90 continuous days by the government of a State, the District of Columbia, or a territory or possession of the United States or a political subdivision of one of these governments, except as provided in paragraph (7) of this definition.
(5) An aircraft owned or operated by the armed forces or chartered to provide transportation or other commercial air service to the armed forces under the conditions specified by 49 U.S.C. 40125(c). In the preceding sentence, the term “other commercial air service” means an aircraft operation that—
(i) Is within the United States territorial airspace;
(ii) The Administrator of the Federal Aviation Administration determines is available for compensation or hire to the public; and
(iii) Must comply with all applicable civil aircraft rules under title 14, Code of Federal Regulations.
(6) An unmanned aircraft that is owned and operated, or exclusively leased for at least 90 continuous days, by an Indian Tribal government, as defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122), except as provided in paragraph (7) of this definition.
(7) As described in 49 U.S.C. 40125(b), an aircraft described in paragraph (1), (2), (3), or (4) of this definition does not qualify as a public aircraft when the aircraft is used for commercial purposes or to carry an individual other than a crewmember or a qualified non-crewmember.
(b)
(c)
(1) The Contractor assumes responsibility for all damage or injury to persons or property, including the Contractor's employees and property, and Government personnel and property, occasioned through the use, maintenance, and operation of the Contractor's aircraft or other equipment by, or the action of, the Contractor or the Contractor's employees and agents.
(2) The Contractor, at the Contractor's expense, shall maintain adequate public liability and property damage insurance, including hull insurance for the Contractor's aircraft, during the duration of this contract, insuring the Contractor against all claims for injury or damage.
(3) The Contractor shall maintain workers' compensation and other legally required insurance with respect to the Contractor's own employees and agents.
(4) The Government will in no event be liable or responsible for damage or injury to any person or property occasioned through the use, maintenance, or operation of any aircraft or other equipment by, or the action of, the Contractor or the Contractor's employees and agents in performing under this contract, and the Government shall be indemnified and saved harmless against claims for damage or injury in such cases.
(End of clause)
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to clarify when a contract administration office has authority to negotiate and settle direct costs questioned in incurred cost audits.
Effective March 22, 2023.
David E. Johnson, telephone 202-913-5764.
DoD is issuing a final rule to amend the DFARS by adding to section 242.302(b) an additional contract administrative function delegable from a procuring contracting office to a contract administration office. DFARS 242.302(b) specifies functions performed by the contract administration office “only when and to the extent specifically authorized” by the procuring contracting office, as stated in Federal Acquisition Regulation (FAR) 42.302. Any administrative functions unspecified under FAR 42.302 or DFARS 242.302, and not otherwise delegated, remain the responsibility of the procuring contracting office. This
The statute that applies to the publication of the FAR is 41 U.S.C. 1707, Publication of Proposed Regulations. Subsection (a)(1) of the statute requires that a procurement policy, regulation, procedure, or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because it merely involves assignment among DoD agencies of an existing contract administrative function. This rule does not have a significant cost or administrative impact on contractors or offerors, and it does not have a significant effect beyond DoD's internal operating procedures.
This rule does not create any new solicitation provisions or contract clauses. It does not impact any existing solicitation provisions or contract clauses or prescriptions for their use.
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 is not 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.
As required by the Congressional Review Act (5 U.S.C. 801-808) before an interim or final rule takes effect, DoD will submit a copy of the interim or final rule with the form, Submission of Federal Rules under the Congressional Review Act, to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule under the Congressional Review Act cannot take effect until 60 days after it is published in the
The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require publication for public comment.
This 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).
Government procurement.
Therefore, 48 CFR part 242 is amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
(b) * * *
(S-71)(A) Except for classified contracts, negotiate or settle questioned direct costs in an incurred cost audit. The procuring contracting officer may delegate this authority to the contract administration office (CAO) only upon prior coordination and agreement with the CAO. Upon such delegation, the procuring contracting officer shall provide the CAO access within 30 days to all supporting documentation in their possession related to the questioned direct costs in an incurred cost audit.
(B) After settlement of the questioned direct costs, the CAO shall provide the procuring contracting office the results of the settlement. The procuring contracting office shall make any adjustments resulting from the settlement on affected contracts and report such adjustments to the CAO.
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is making technical amendments to the Defense Federal Acquisition Regulation Supplement (DFARS) to provide needed editorial changes.
Effective March 22, 2023.
Jennifer D. Johnson, telephone 703-717-8226.
This final rule makes the following changes:
1. A final rule published at 88 FR 6578 on January 31, 2023, provided an incorrect reference at amendatory instruction 149 by citing “242.205-71” in lieu of “243.205-71”. This rule provides the correct amendatory instruction.
2. This rule amends section 252.215-7009, Proposal Adequacy Checklist, at item 18 in the column entitled “Submission item” in the introductory text and paragraph a by updating terminology referencing commercial products.
Government procurement.
Therefore, 48 CFR parts 243 and 252 are amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
The revisions read as follows:
Defense Acquisition Regulations System, Department of Defense (DoD).
Proposed rule.
DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a requirement for certain contractors to provide export authorizations.
Comments on the proposed rule should be submitted in writing to the address shown below on or before May 22, 2023, to be considered in the formation of a final rule.
Submit comments identified by DFARS Case 2018-D053, using either of the following methods:
•
•
Comments received generally will be posted without change to
Kimberly Bass, telephone 703-717-3446.
DoD is proposing to amend the DFARS to enable the Defense Contract Management Agency (DCMA) to obtain export authorizations from certain contractors. Specifically, when a contract requires government quality assurance surveillance oversight and has delivery to, or production or performance in, government quality assurance countries, DoD proposes to require the contractor to provide relevant export authorizations (
DCMA has found that a significant amount of time is required to determine whether or not a contractor's export license allows for foreign auditors to perform required quality assurance functions in lieu of DCMA. Currently, DCMA is not able to review the export authorization unless their personnel travel to the contractor's worksite. If DCMA is able to receive and review an export authorization from the contractor to determine whether or not they can delegate the work to foreign auditors, this problem would be resolved.
The proposed rule updates DFARS clause 252.225-7048, Export-Controlled Items, by adding to the clause at paragraph (e) a requirement for certain contractors to provide relevant export authorizations to the cognizant DCMA administrative contracting officer along with contact information for the empowered official or the export point of contact. A contractor will be required to submit this information if their contract requires—
(1) Performance in or delivery to a government quality assurance country; and
(2) Government quality assurance surveillance oversight.
The proposed rule revises the term export-controlled items and adds the following terms to the list of definitions at 252.225-7048: Empowered official, export license exception, export license exemption, government quality assurance countries, other approval, and relevant export authorization. The purpose of adding these definitions to the clause is to clarify for contractors the requirement that is proposed to be added at 252.225-7048(e).
The proposed rule applies to contracts at or below the simplified acquisition threshold, for commercial products including commercially available off-the-shelf items, and for commercial services. This proposed rule requires relevant export authorizations and the contact information of the export point of contact or the empowered official be provided to DCMA for DoD contracts that require government quality assurance surveillance oversight and have delivery to, or performance in, government quality assurance countries. Therefore, the proposed rule will apply to contracts at or below the simplified acquisition threshold, for commercial products including commercially available off-the-shelf items, and for commercial services.
Currently, DCMA is required to cite Federal Acquisition Regulation 4.703(a) in order to obtain access to a contractor's export authorization, which only requires the contractor to make the information available to DCMA, not to submit the information directly to DCMA. Therefore, DCMA personnel are not able to review the information unless they travel to the contractor's international worksite to inspect the export authorization in person.
This proposed rule would require the contractor to provide the information to DCMA and identify a point of contact to answer questions. Receiving the information directly will allow DCMA, without traveling internationally, to make an informed determination regarding whether quality assurance activities must be performed by a U.S. contract administrator or may be delegated to a qualified foreign inspector.
Contractors would already have the export authorization. Therefore, the only burden associated with this proposed rule is providing a copy to the DCMA administrative contracting officer. DoD has calculated this burden in section VIII of this preamble.
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
DoD does not expect this proposed rule to 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,
This proposed rule is required to enable DCMA to obtain export authorizations from certain contractors. Currently, DCMA is not able to review the information unless their personnel travel to the contractor's worksite. Until DCMA determines if export control items are present and the licenses are examined, DCMA is unable to exercise Host Nation Agreements. Requiring the export control license will allow DCMA to make the determination necessary to exercise Host Nation Agreements.
The objective of this proposed rule is to require certain contractors and subcontractors to provide, upon receipt, relevant export authorizations (
Based on the extrapolation from the DCMA Compass database, it is estimated that 723 small entities were awarded DoD contracts that require government quality assurance oversight surveillance and have delivery to, or performance in, government quality assurance countries from May 2018 through May 2019. It is estimated that most of these small entities have subcontracts with delivery to, or performance in, government quality assurance countries. The government quality assurance countries are as follows: Australia, Belgium, Canada, Czech Republic, Denmark, Finland, France, Germany, Greece, Israel, Italy, Republic of Korea, Netherlands, Norway, Poland, Romania, Slovakia, Spain, Sweden, Turkey, and the United Kingdom. Any additional burden from having to submit relevant export authorizations along with contact information for the empowered official or the export point of contact to DCMA will impact these small entities.
There are reporting, recordkeeping, or other compliance requirements associated with this proposed rule. The proposed rule may result in a reporting or recordkeeping burden requirement.
The proposed rule does not duplicate, overlap, or conflict with any other Federal rules.
There are no known significant alternative approaches to the proposed rule that would meet the proposed objectives.
DoD invites comments from small business concerns and other interested parties on the expected impact of this proposed rule on small entities.
DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this proposed rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C 610 (DFARS Case 2018-D053), in correspondence.
This proposed rule contains 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). Accordingly, DoD has submitted a request for approval of a new information collection requirement concerning 2018-D053, Export-Controlled Items, to the Office of Management and Budget.
Public reporting burden for this collection of information is estimated to average 4 hours per response for: (1) the contractor to locate the contact information for the cognizant DCMA Office using the DCMA locater website; (2) the contractor to provide relevant export authorizations and contact information for the empowered official or export point of contact to DCMA; and (3) if necessary, for the empowered official to provide clarifications to DCMA.
The annual reporting burden is estimated as follows for all contractors with awards that require government quality assurance surveillance oversight and have delivery to, or production or performance in, government quality assurance countries:
Written comments and recommendations on the proposed information collection, including suggestions for reducing this burden, should be submitted using the Federal eRulemaking Portal at
Public comments are particularly invited on: whether this collection of information is necessary for the proper performance of functions of the DFARS, and will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
To obtain a copy of the supporting statement and associated collection instruments, please email
Government procurement.
Therefore, 48 CFR parts 212, 225, and 252 are proposed to be amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
The addition reads as follows:
(f) * * *
(ix) * * *
(CC) Use the clause at 252.225-7048, Export-Controlled Items, as prescribed in 225.7901-4, to comply with section 890(a) of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181).
As used in this section—
(1) Any information or material that cannot be released to foreign nationals or representatives of a foreign entity, without first obtaining approval or license from the Department of State or the Department of Commerce;
(2) Items subject to the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120 through 130) or the Export Administration Regulations (EAR) (15 CFR parts 730 through 774); and
(3) Includes—
(i) “Defense article” (22 CFR 120.31), which means any item or technical data that is specifically designed, developed, configured, adapted, or modified for a military or other controlled use listed on the U.S. Munitions List;
(ii) “Defense service” (22 CFR 120.32), which means providing technical data, assistance, or training to a foreign person in the design, manufacture, installation, repair, or operation of a defense article;
(iii) “Technical data” (22 CFR 120.33), which means any information for the design, development, assembly, production, operation, repair, testing, maintenance, or modification of a defense article; and
(iv) “Item,” defined in the EAR (15 CFR 772.1) as “commodities, software, and technology”.
Use the clause at 252.225-7048, Export-Controlled Items, in all solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial products and commercial services.
The revisions and addition read as follows.
(a)
(1) A U.S. person who—
(i) Is directly employed by the applicant or a subsidiary in a position having authority for policy or management within the applicant organization;
(ii) Is legally empowered in writing by the applicant to sign license applications or other requests for approval on behalf of the applicant;
(iii) Understands the provisions and requirements of the various export control statutes and regulations, and the criminal liability, civil liability, and administrative penalties for violating the Arms Export Control Act and the ITAR; and
(iv) Has the independent authority to—
(A) Inquire into any aspect of a proposed export, temporary import, or brokering activity by the applicant;
(B) Verify the legality of the transaction and the accuracy of the information to be submitted; and
(C) Refuse to sign any license application or other request for approval without prejudice or other adverse recourse.
(2) For the purposes of a broker who is a foreign person, the empowered official may be a foreign person who otherwise meets the criteria for an empowered official in paragraph (1) of this definition.
(1) Any information or material that cannot be released to foreign nationals or representatives of a foreign entity, without first obtaining approval or license from the Department of State or the Department of Commerce;
(2) Items subject to the ITAR (22 CFR parts 120 through 130) or the Export Administration Regulations (EAR) (15 CFR parts 730 through 774); and
(3) Includes—
(i) “Defense article” (22 CFR 120.31), which means any item or technical data that is specifically designed, developed, configured, adapted, or modified for a military or other controlled use listed on the U.S. Munitions List;
(ii) “Defense service” (22 CFR 120.32), which means providing technical data, assistance, or training to a foreign person in the design, manufacture, installation, repair, or operation of a defense article;
(iii) “Technical data” (22 CFR 120.33), which means any information for the design, development, assembly, production, operation, repair, testing, maintenance, or modification of a defense article; and
(iv) “Item,” defined in the EAR (15 CFR 772.1) as “commodities, software, and technology”.
“Other approval” as defined in the ITAR at 22 CFR 120.57, means a document issued by the Deputy Assistant Secretary of State for Defense Trade Controls, or authorized designee, that approves an activity regulated by the ITAR (
(e)(1) If the contract requires government quality assurance surveillance oversight and has delivery to, or production or performance in, government quality assurance countries, the Contractor shall, upon receipt of relevant export authorizations, provide to the Defense Contract Management Agency (DCMA) Administrative Contracting Officer—
(i) A copy of the relevant export authorizations; and
(ii) Contact information for the empowered official or the export point of contact.
(2) The DCMA administrative contracting officer locater can be found at
(f)
Defense Acquisition Regulations System, Department of Defense (DoD).
Proposed rule.
DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2021 that restricts overhaul and repair of a naval vessel in a shipyard outside the United States or Guam.
Comments on the proposed rule should be submitted in writing to the address shown below on or before May 22, 2023, to be considered in the formation of a final rule.
Submit comments identified by DFARS Case 2021-D021, using any of the following methods:
○
○
Comments received generally will be posted without change to
Kimberly Bass, telephone 703-717-3446.
DoD is proposing to revise the DFARS to implement section 1025 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2021 (Pub. L. 116-283). Section 1025 amends 10 U.S.C. 8680(a) to restrict the overhaul or repair of a naval vessel in a shipyard outside the United States or Guam. The restriction does not apply to voyage repairs or to repairs required for damage sustained due to hostile actions or interventions. In addition, the restriction does not apply to a naval vessel classified as a littoral combat ship operating on deployment for corrective and preventive maintenance or repair and facilities maintenance.
The proposed rule also establishes the criteria under which foreign workers or foreign contractors may be used to perform corrective and preventive maintenance or repair or facilities maintenance on a naval vessel.
The proposed revisions to the DFARS implement the 10 U.S.C. 8680(a) restrictions and identify the exceptions for the repair of damage sustained as a result of hostile actions or interventions and for corrective and preventive maintenance and facilities maintenance on a littoral combat ship operating on deployment. DFARS 225.7013 is revised to add definitions at 225.7013-1 and expand restrictions at 225.7013-2.
DFARS 225.7013-1, Definitions, is added to define the terms “corrective and preventive maintenance or repair” and “facilities maintenance” as defined in 10 U.S.C. 8680.
DFARS 225.7013-2(a) restates the restriction previously located at DFARS 225.7013(a) to not award a contract to construct a vessel or major component of a vessel in a foreign shipyard. DFARS 225.7013-2(b) provides the restriction to not overhaul, repair, or maintain in a shipyard outside the United States or Guam, except the restriction does not apply to: (1) voyage repairs or repairs necessary to correct damage sustained due to hostile actions or interventions; and (2) corrective and preventive maintenance or repair or facilities maintenance on a naval vessel classified as a littoral combat ship operating on deployment.
DFARS 225.7013-2(b) also specifies the circumstances in which foreign workers and contractors may be used to maintain or repair littoral combat ships operating on deployment. Foreign workers may be used only if the Secretary of the Navy, without further delegation, determines that travel by U.S. Government or contractor personnel is not advisable for health or safety reasons. Foreign contractors may be used to perform facilities maintenance only as approved by the Secretary of Navy.
This proposed rule does not create any new solicitation provisions or contract clauses. It does not impact any existing solicitation provisions or contract clauses or prescriptions for their use.
Currently, DFARS 225.7013 includes the restrictions on the construction or repair of vessels in foreign shipyards. This proposed rule adds the exception for repairs necessary to correct damage
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 is not 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.
DoD does not expect this proposed rule to 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,
DoD proposes to amend the DFARS to implement section 1025 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2021 (Pub. L. 116-283) that amends 10 U.S.C. 8680(a). Section 1025 restricts the overhaul or repair of a naval vessel in a shipyard outside the United States or Guam, unless the repairs are: (1) voyage repairs or repairs necessary to correct damage sustained due to hostile actions or interventions; or (2) to a naval vessel classified as a littoral combat ship operating on deployment for corrective and preventive maintenance or repair and facilities maintenance. The proposed rule also establishes that: (1) foreign workers may not be used to perform corrective and preventive maintenance or repair on a naval vessel, unless the Secretary of the Navy (without further delegation) makes a determination; and (2) foreign contractors may not be used to perform facilities maintenance unless approved by the Secretary of the Navy.
The objective of the proposed rule is to implement the restrictions of section 1025. The legal basis for the proposed rule is section 1025 of the NDAA for FY 2021.
DoD reviewed data from the Federal Procurement Data System (FPDS) for fiscal years 2019, 2020, and 2021 for contracts for the repair or overhaul of naval vessels outside the United States or Guam that exceeded the simplified acquisition threshold. DoD awarded a total of 379 contracts to an average of 222 unique small entities.
It is expected that this proposed rule will continue to provide small businesses the opportunity to participate in acquisitions for the overhaul or repair of a naval vessel in a shipyard outside the United States or Guam, since naval vessel overhaul restrictions currently exist and this rule provides exceptions that allow for U.S. contractor personnel to perform certain repairs and maintenance in accordance with 10 U.S.C. 8680.
This proposed rule does not include any new reporting, recordkeeping, or other compliance requirements for small entities.
The proposed rule does not duplicate, overlap, or conflict with any other Federal rules.
There are no known significant alternative approaches to the proposed rule that would meet the requirements of the statute.
DoD invites comments from small business concerns and other interested parties on the expected impact of this proposed rule on small entities.
DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this proposed rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2021-D021), in correspondence.
This 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).
Government procurement.
Therefore, 48 CFR part 225 is proposed to be amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
This section implements 10 U.S.C. 8679 and 10 U.S.C. 8680.
As used in this section—
(1) Maintenance or repair actions performed as a result of a failure in order to return or restore equipment to acceptable performance levels; and
(2) Scheduled maintenance or repair actions to prevent or discover functional failures.
(1) Provide housekeeping services throughout the ship;
(2) Perform coating maintenance and repair to exterior and interior surfaces due to normal environmental conditions; and
(3) Clean mechanical spaces, mission zones, and topside spaces.
(a)
(1) A vessel for any of the armed forces; or
(2) A major component of the hull or superstructure of a vessel for any of the armed forces.
(b)
(2) This restriction on overhaul, repair, or maintenance does not apply to—
(i) Voyage repairs;
(ii) Repairs necessary to correct damage sustained due to hostile actions or interventions.
(3) For a naval vessel classified as a littoral combat ship and operating on deployment—
(i) Corrective and preventive maintenance or repair, whether intermediate or depot level, and facilities maintenance may be performed if the work is performed by U.S. Government personnel or U.S. contractor personnel—
(A) In a foreign shipyard;
(B) At a facility outside of a foreign shipyard; or
(C) At any other facility convenient to the vessel.
(ii) Foreign workers may be used to perform corrective and preventive maintenance or repair, only if the Secretary of the Navy, without power of delegation, determines that travel by U.S. Government or contractor personnel to perform the maintenance or repair is not advisable for health or safety reasons.
(iii) Foreign contractors may perform facilities maintenance only as approved by the Secretary of Navy.