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Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for the Textron Model 500/550/S550/560/560XL/560XLS airplanes. These airplanes, as modified by Blackhawk Aerospace Technologies (Blackhawk), will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. This design feature is electronic GI 275 Standby Instruments containing rechargeable lithium-ion batteries. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
This action is effective on Blackhawk on April 3, 2023. Send comments on or before May 18, 2023.
Send comments identified by Docket No. FAA-2022-1441 using any of the following methods:
•
•
•
•
Nazih Khaouly, Aircraft Systems Section, AIR-623, Technical Innovation Policy Branch, Policy and Innovation Division, Aircraft Certification Service, Federal Aviation Administration, 2200 South 216th Street, Des Moines, Washington 98198; telephone and fax 206-231-3160; email
The substance of these special conditions has been published in the
The FAA invites interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
The FAA will consider all comments received by the closing date for comments, and will consider comments filed late if it is possible to do so without incurring delay. The FAA may change these special conditions based on the comments received.
On February 24, 2020, Blackhawk applied for a supplemental type certificate to install rechargeable lithium batteries and battery systems, in the Textron Model 500 series airplanes, for electronic GI 275 Standby Instruments. The Textron Model 500 series airplane, approved under Type Certificate No. A22CE, is a twin-engine, transport-category airplane with maximum seating capacity for 7 to 12 passengers and a maximum takeoff weight of between 10,850 to 20,330 pounds, depending upon model.
Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Blackhawk must show that the Textron
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Textron Model 500 series airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in § 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.
The Textron Model 500 series airplanes will incorporate the following novel or unusual design feature:
Electronic GI 275 Standby Instruments containing rechargeable lithium-ion batteries.
Rechargeable lithium batteries and battery systems are considered to be a novel or unusual design feature in transport category airplanes, with respect to the requirements in § 25.1353. This type of battery has certain failure, operational, and maintenance characteristics that differ significantly from those of the nickel-cadmium and lead-acid rechargeable batteries currently approved for installation on transport category airplanes. These batteries and battery systems introduce higher energy levels into airplane systems through new chemical compositions in various battery-cell sizes and construction. Interconnection of these cells in battery packs introduces failure modes that require unique design considerations, such as provisions for thermal management.
Special Condition 1 requires that each individual cell within a battery and battery system be designed to maintain safe temperatures and pressures. Special Condition 2 addresses these same issues but for the entire battery system.
Special Condition 2 requires that the batteries and battery system be designed to prevent propagation of a thermal event, such as self-sustained, uncontrolled increases in temperature or pressure from one cell to adjacent cells.
Special Conditions 1 and 2 are intended to ensure that the cells and battery system are designed to eliminate the potential for uncontrollable failures. However, a certain number of failures will occur due to various factors beyond the control of the designer. Therefore, other special conditions are intended to protect the airplane and its occupants if failure occurs.
Special Conditions 3, 7, and 8 are self-explanatory.
Special Condition 4 clarifies that the flammable-fluid fire-protection requirements of § 25.863 apply to rechargeable lithium battery installations. Section 25.863 is applicable to areas of the airplane that could be exposed to flammable fluid leakage from airplane systems. Rechargeable lithium batteries contain electrolyte that is a flammable fluid.
Special Condition 5 requires each rechargeable lithium battery and battery system installation to not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.
Special Condition 6 requires each rechargeable lithium battery and battery system installation to have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat it can generate due to any failure of it or its individual cells. The means of meeting special conditions 5 and 6 may be the same, but they are independent requirements addressing different hazards. Special Condition 5 addresses corrosive fluids and gases, whereas special condition 6 addresses heat.
Special Condition 9 requires rechargeable lithium batteries and battery systems to have “automatic” means, for charge rate and disconnect, due to the fast acting nature of lithium battery chemical reactions. Manual intervention would not be timely or effective in mitigating the hazards associated with these batteries.
These special conditions apply to all rechargeable lithium batteries and battery system installations in lieu of § 25.1353(b)(1) through (4) at amendment 25-123, or § 25.1353(c)(1) through (4) at earlier amendments. Those regulations will remain in effect for other battery installations on these airplanes.
These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
As discussed above, these special conditions are applicable to the Textron Model 500 series airplanes. Should Blackhawk apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A22CE to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.
This action affects only a certain novel or unusual design feature on one model series of airplanes. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(f), 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Textron Model 500 series airplanes, as modified by Blackhawk.
In lieu of § 25.1353(b)(1) through (4) at amendment 25-123, or § 25.1353(c)(1) through (4) at earlier amendments, each rechargeable lithium battery and battery system installation must:
(1) Be designed to maintain safe cell temperatures and pressures under all foreseeable operating conditions to prevent fire and explosion.
(2) Be designed to prevent the occurrence of self-sustaining, uncontrollable increases in temperature or pressure, and automatically control the charge rate of each cell to protect
(3) Not emit explosive or toxic gases, either in normal operation or as a result of its failure that may accumulate in hazardous quantities within the airplane.
(4) Meet the requirements of § 25.863.
(5) Not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more-severe failure condition.
(6) Have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat it can generate due to any failure of it or its individual cells.
(7) Have a failure sensing and warning system to alert the flight crew if its failure affects safe operation of the airplane.
(8) If its function is required for safe operation of the airplane, have a monitoring and warning feature that alerts the flight crew when its charge state falls below acceptable levels.
(9) Have a means to automatically disconnect from its charging source in the event of an over-temperature condition, cell failure or battery failure.
The battery system consists of the batteries, battery charger, and any protective, monitoring, and alerting circuitry or hardware inside or outside of the battery. It also includes vents (where necessary) and packaging. For the purpose of these special conditions, a battery and battery system are referred to as a battery.
Federal Communications Commission.
Final rule.
This document amends the FM Table of Allotments, of the Commission's rules, by adding Channel 288A at South Padre Island, Texas. A staff engineering analysis indicates that Channel 288A can be allotted to South Padre Island, Texas, consistent with the minimum distance separation requirements of the Commission's rules (Rules), with a site restriction of 11 km (7 miles) south of the community. The reference coordinates are 26-01-30 NL and 97-09-15 WL.
Effective May 12, 2023.
Rolanda F. Smith, Media Bureau, (202) 418-2700.
This is a synopsis of the Federal Communications Commission's (Commission) Report and Order, adopted March 28, 2023 and released March 28, 2023. The full text of this Commission decision is available online at
The Report and Order in this proceeding substituted Channel 288A for vacant Channel 237A at South Padre Island, Texas to accommodate the hybrid modification application for Station KRIX(FM), Port Isabel, Texas resulting in the public interest because it would enhanced service for Station KRIX(FM), Port Isabel, Texas. Channel 237A at South Padre Island, Texas is not currently listed in the FM Table of Allotments but is considered a vacant allotment resulting from the license cancellation of FM station DKZSP, Fac. ID No. 56473, South Padre Island, Texas. The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act,
Radio, Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:
47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334, 336, 339.
(b) * * *
Fish and Wildlife Service, Interior.
Final determination; notification of additional analysis.
We, the U.S. Fish and Wildlife Service (Service), determine threatened status under the Endangered Species Act of 1973 (Act), as amended, for the northern distinct population segment (DPS), of the southern subspecies of scarlet macaw (
This determination is effective March 30, 2023.
Supporting materials for this action, including comments we received on our November 2, 2022,
Rachel London, Chief, Branch of Delisting and Foreign Species, Ecological Services Program, U.S. Fish and Wildlife Service, MS: ES, 5275 Leesburg Pike, Falls Church, VA 22041-3803 (telephone 703-358-2171). Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States.
Scarlet macaws (
The scarlet macaw is classified as two subspecies, the northern subspecies (
On February 26, 2019, we published in the
In the 2019 rule, we found the northern DPS of the southern subspecies of scarlet macaw was not currently in danger of extinction but likely to become in danger of extinction within the foreseeable future throughout all of its range. At that time, we followed our Final Policy on Interpretation of the Phrase ”Significant Portion of Its Range” in the Endangered Species Act's Definitions of ”Endangered Species” and “Threatened Species” (hereafter, Final Policy, 79 FR 37578; July 1, 2014), which provided that if the Services determined that if a species is threatened throughout all of its range, the Services would not analyze whether the species is endangered in a significant portion of its range. Therefore, we did not conduct a “significant portion of its range” analysis for the scarlet macaw in the northern DPS and determine whether it met the definition of an endangered species as a result.
However, in
In the November 2, 2022,
The scarlet macaw inhabits various habitat types throughout its range, including tropical humid evergreen forest, deciduous and humid forest, intact and partially cleared lowland rainforest, mixed pine and broad-leaved woodlands, open areas and edges with scattered stands of tall trees, gallery forest, mangroves, and savannas, often near rivers (Juniper and Parr 1998, p. 425; Wiedenfeld 1994, p. 101; Forshaw 1989, p. 407; Meyer de Schauensee and Phelps, Jr. 1978, p. 99). Scarlet macaws prefer lowland, humid habitats that are dependent on the availability of fresh water (Schmidt et al. 2019, p. 744; Schmidt 2013, p. 175). The species generally occurs from sea level to about 500 meters (m) (1,640 feet (ft)) elevation but has been reported ranging up to 1,500 m (4,921 ft) in Central America (Juniper and Parr 1998, p. 425; Vaughan 1983, in Vaughan et al. 2006, p. 919).
Generally, the species is geographically constrained between central highlands and either the Pacific or Atlantic Coasts. In the northern DPS, the range of the scarlet macaw occurs south of the central cordilleras of Costa Rica, along the Pacific slope, and south through Panama to northwest of the Andes Mountains in Colombia. Scarlet macaws are confined to the tropical forests in lower Central America by the central highlands and the Pacific Ocean. Similarly, in Colombia scarlet macaws inhabit moist tropical ecosystems along the mid- to lower-Magdalena River Valley, bounded by the Central and Oriental Cordilleras of the Northern Andes (Hilty and Brown 1986, p. 200). The geographical extent of these lowland habitats covers an area markedly smaller than either upper Central America or the Amazon Basin, with fewer major sources of fresh water (Schmidt et al. 2019, p. 745).
The total population of scarlet macaws in the northern DPS is approximately 1,000 to 2,000 birds (see table 1, below). Populations include: (1) Two populations on the Pacific slope in Costa Rica—the ACOPAC and the ACOSA populations, (2) very small populations in the Chiriquí province and at the southern end of the Azuero Peninsula of Veraguas, near Cerro Hoya National Park in Panama, and (3) population(s) in northwest Colombia west of the Andes Mountains, although we have minimal information on the population size or distribution in Colombia west of the Andes Mountains.
The Costa Rica populations account for almost all the total known population of the northern DPS of the southern subspecies of scarlet macaw
By all indications the scarlet macaw population in ACOPAC has been expanding from the traditional stronghold in and around Carara National Park (Brightsmith 2016, in litt., p. 11). Since 2013, scarlet macaws in groups of up to 30, along with pairs during the height of the breeding season, were regularly observed south of Carara, up and down the coast and up to 70 km (43 mi) south of the point where the census in Carara is usually conducted. In addition, scarlet macaws from the areas immediately to the northwest of Carara have been reported. Scarlet macaws occur in Palo Verde National Park, in the surrounding areas, and in patchwork forested habitats in between. The species may frequently pass through these areas and is not present at high densities. Group sizes are small, and it is unclear if the birds are escaped or released birds from a nearby lodge or natural dispersers (Brightsmith 2016, in litt., p. 14). Regardless, because there have been scattered sightings of scarlet macaws from Palo Verde National Park south to Carara National Park and throughout western Guanacaste, the birds near Palo Verde are no longer considered completely isolated (Brightsmith 2016, in litt., p. 14). However, evidence to support successful establishment of populations north of Carara is weak (Brightsmith 2016, in litt., p. 13).
The best available information suggests that the ACOSA population is simultaneously expanding up the coast. Birds were reported to occur in multiple areas between the ACOPAC and ACOSA populations, in Manuel Antonio National Park and Uvita, as well as Dominical that is the approximate midpoint between the ACOPAC and ACOSA populations. Thus, the scarlet macaw is basically continuous from the Osa Peninsula (ACOSA population) to Carara National Park (ACOPAC population) (Brightsmith 2016, in litt., p. 13). Additionally, 85 percent of residents interviewed in 2005 believed scarlet macaws were more abundant than 5 years prior in ACOSA, suggesting this population may be increasing (Dear et al. 2010, p. 10). Sightings of scarlet macaws between the ACOPAC and ACOSA populations may represent individuals from either of the populations, and it is difficult to distinguish between expansion of the ACOPAC population to the south and the expansion of the ACOSA population to the north (Brightsmith 2016, in litt., p. 11).
In Panama, the scarlet macaw was once described as almost extinct on the mainland but abundant and occurring in substantial numbers on Isla Coiba, a one-time penal colony where human settlement and most hunting was prohibited (Ridgely 1981, p. 253). The current population of scarlet macaws in Panama is estimated at less than 200 birds, with most of the population occurring on Isla Coiba and less than 25 birds estimated to occur on the mainland (Keller and Schmitt 2008, in Brightsmith 2012, in litt. and McReynolds 2011, in litt., unpaginated). Scarlet macaws on Isla Coiba are considered the northern subspecies,
Sporadic sightings of scarlet macaws have occurred over the last few decades in the western border region of Panama and Costa Rica, in the area of the upper Río Corotu (or Río Bartolo Arriba) near Puerto Armuelles, and near Querevalo, in the Chiriquí province (Burica Press 2007, unpaginated; McReynolds 2011, in litt., unpaginated; Brightsmith in litt. 2016, p. 17; Sullivan et al. 2009, unpaginated). Scarlet macaws have been successfully reintroduced in Tiskita, Costa Rica, which is in the western border region of Costa Rica and Panama (Tiskita Jungle Lodge 2018, unpaginated). Therefore, it is uncertain if the birds that occur in the western border region of Panama are wild or the reintroduced birds dispersing south from Tiskita, Costa Rica (Brightsmith 2016, in litt., p. 17). However, with the successful reintroduction of scarlet macaws at Tiskita, which has resulted in a viable population, scarlet macaws are established at this location (Tiskita Jungle Lodge 2018, unpaginated). Additionally, a small, but unknown number of scarlet macaws occur on the southern end of Panama in the Azuero Peninsula of Veraguas, near Cerro Hoya National Park, Tonosi Forest Reserve, and farther to the east (Brightsmith 2016, in litt., p. 17; Sullivan et al. 2009, unpaginated; Rodriguez and Hinojosa 2010, in McReynolds 2011, in litt., unpaginated).
In northwest Colombia, scarlet macaws are believed to occur in the Magdalena and Cauca River valleys in tropical ecosystems bounded by the northern Andes Mountains (Hilty and Brown 1986, p. 200; Forshaw 1989, p. 407). They have been reported as probably close to extinction in the Magdalena Valley, Cauca Valley, and north (Donegan 2013, in litt.; Ellery 2013, in litt.; McMullen 2010, p. 60). However, they may occur in very low numbers in the more remote and inaccessible parts of the region, but its status is not clear. Therefore, we are aware of little information on the population or distribution of scarlet macaws within northwest Colombia.
The two primary threats to scarlet macaws are the loss of forest habitat and collection of wild birds for the pet trade (Iñigo-Elias in litt. 1997, in Snyder et al. 2000, p. 150; Guedes 2004, p. 280). The primary cause of forest loss is conversion to agriculture for crops and pasture, although other human activities such as construction of infrastructure, selective logging, fires, oil and gas extraction, and mining also contribute to the loss of forest cover within the range of the species (Blaser et al. 2011, Latin America and the Caribbean, pp. 262-402; Boucher et al. 2011, entire; Clark and Aide 2011, entire; FAO 2011a, pp. 17-18; May et al. 2011, pp. 7-13; Pacheco 2011, entire; Government of Costa Rica 2010, pp. 38-39; Belize Ministry of Natural Resources and Environment 2010, pp. 40-45; Armenteras and Morales 2009, pp. 133-145, 176-191; Kaimowitz 2008, p. 487; Mosandl et al. 2008, pp. 38-40; Nepstad et al. 2008, entire; Foley et al. 2007, pp. 26-27; Fearnside 2005, pp. 681-683).
Historically, large areas of forest have been removed throughout the species' range, particularly in Mexico and Central America, and any large tracts of forest that remain are fragmented and are mostly isolated because they are cut off from each other (Bray 2010, p. 93). Deforestation continues throughout much of the scarlet macaw's range, including in the northern DPS, and is a threat to the species because it eliminates the species' habitat by removing trees that support the species' essential needs for nesting, roosting, and food. Scarlet macaws require a large range and a variety of food resources. Thus, large-scale land conversion presents a generalized threat to scarlet macaw nest sites, foraging areas, and migration corridors (Schmidt 2013, p. 173). Scarlet macaws are dependent on larger, older trees that have large nesting cavities. Additionally, they primarily forage in the forest canopy, and are relatively general in their feeding habits. Abundance may fluctuate because they may move to areas with greater resource availability, influencing local and seasonal abundance (Lee 2010, p. 7; Cowen 2009, pp. 5, 23, citing several sources; Tobias and Brightsmith 2007, p. 132; Brightsmith 2006, unpaginated; Renton 2002, p. 17). Thus, removal of older and larger trees decreases suitable nesting sites and food resources, increases competition, and causes the loss of current generations through an increase in infanticide and egg destruction (Lee 2010, pp. 2, 12). The species will use partially cleared and cultivated landscapes if they provide sufficient dietary requirements and maintain enough large trees. However, scarlet macaws have a better chance of surviving in large tracts of primary forest where suitable nesting cavities are more common than in open and small patches of non-primary forest (Inigo-Elias 1996, p. 91). Therefore, as the size of the suitable habitat is reduced, it is less likely to provide the essential resources for the species (Ibarra-Macias 2009, p. 6; Lees and Peres 2006, pp. 203-205).
Competition for suitable nest cavities negatively affects reproductive success of scarlet macaws, including in the northern DPS. Competition limits available nesting sites and thus the number of pairs that can breed, or competition may cause nest mortality stemming from agonistic interactions. Intraspecific competition between different pairs of scarlet macaws, and competition with pairs of other macaw species that are larger and more competitive, is intense in some areas (Renton and Brightsmith 2009, p. 5; Inigo-Elias 1996, p. 96; Nycander 1995, p. 428). Additionally, Africanized honeybees (
Collecting wild birds for the pet trade has been occurring for centuries (Cantu-Guzman et al. 2007, p. 9; Guedes 2004, p. 279; Snyder et al. 2000, pp. 98-99). Removing birds from the wild is driven by demand for the pet trade and related to rural poverty because capture for sale in local markets can provide a significant source of supplemental income in rural areas (Huson 2010, p. 58; González 2003, p. 438). Low salaries and high unemployment in the region drive people to search for extra sources of income that may include collecting wildlife for the pet trade (TRAFFIC NA 2009, pp. 23-24).
Collection of scarlet macaws decreases the population, inhibits future breeding by removing reproductive age adults, causes mortality of eggs or chicks, and causes damage to and loss of nesting sites (Cantu-Guzman et al. 2007, p. 14). Scarlet macaws are long-lived species with a low reproductive rate, low survival of chicks and fledglings, late age to first reproduction, and large proportions of the population as nonbreeding adults. Therefore, the species is particularly vulnerable to overexploitation, especially when individuals are removed from the wild year after year (Munn 1992, p. 57; Wright et al. 2001, p. 712). Collection and deforestation often work in tandem because activities that clear forests increase access to previously inaccessible areas, which in turn increases the vulnerability of species to overexploitation by humans (Peres 2001, entire; Putz et al. 2000, pp. 16, 23).
The scarlet macaw is a popular pet species within its range countries, and most birds collected for the pet trade are sold as pets and remain within range countries (Snyder et al. 2000, p. 150; Wiedenfeld 1994, p. 102). Because of high mortality rates associated with capture and transport of wildlife, the number of birds sold or exported for the pet trade represents only a portion of those removed from the wild. Cumulative mortality rates before parrots reach customers have been estimated to be as high as 77 percent; for nestlings, approximately 80 percent died before reaching a pet store (Inigo and Ramos 1991 and Enkerlin 2000, in Cantu-Guzman et al. 2007, p. 60). Pet collection is a threat for the scarlet macaw in the northern DPS.
On June 6, 1981, the scarlet macaw was included in Appendix II of the Convention on International Trade in
The scarlet macaw is protected by domestic laws within all countries and the countries have a system of protected areas or national parks that aim to conserve biodiversity. Enforcement of wildlife laws is generally lacking because the agencies responsible often do not have the financial resources, personnel, or both to adequately enforce their laws, particularly in remote areas (TRAFFIC NA 2009, p. 20; Valdez et al. 2006, p. 276; Mauri 2002, entire).
Historically, the scarlet macaw existed in much higher numbers. However, the species currently occurs in relatively small and fragmented populations throughout most of its range. Small, isolated populations place the species at greater risk of local extirpation or extinction due to a variety of factors, including loss of genetic variability, demographic and environmental stochasticity, and natural catastrophes (Lande 1995, entire; Lehmkuhl and Ruggiero 1991, p. 37; Gilpin and Soulé 1986, pp. 25-33; Soulé and Simberloff 1986, pp. 28-32; Shaffer 1981, p. 131; Franklin 1980, entire). The species maintains some genetic diversity throughout its range and between the two subspecies. With the ongoing loss of habitat throughout the range, the loss of genetic variability could diminish their capacity to adapt to changes in the environment (Blomqvist et al. 2010, entire; Reed and Frankham 2003, pp. 233-234; Nunney and Campbell 1993, pp. 236-237; Soulé and Simberloff 1986, pp. 28-29; Franklin 1980, pp. 140-144). Other natural events that put small populations at risk include variation in birth and death rates, fluctuations in gender ratio, and environmental disturbances such as wildfire and climatic shifts (Blomqvist et al. 2010, entire; Gilpin and Soulé 1986, p. 27; Shaffer 1981, p. 131). Negative impacts associated with small population sizes of scarlet macaws may be magnified because of interactions with habitat loss and collection. Cumulatively, the small population sizes occurring in narrow lowland forested areas in fragmented habitat, combined with ongoing collection and a long-lived species' low reproduction rate, increases the species' vulnerability. As discussed later below, some populations of the scarlet macaw in the northern DPS are relatively small and fragmented.
The scarlet macaw in the northern DPS occurs from northwestern Costa Rica, south through mainland Panama, and west of the Andes Mountains in Colombia. Deforestation, collection, lack of effective enforcement of existing laws, and small population size all cumulatively affect scarlet macaws in the northern DPS. In the 2019 rule, we found the northern DPS of the southern subspecies of scarlet macaw was not currently in danger of extinction but likely to become in danger of extinction within the foreseeable future throughout all of its range. We now consider our “significant portion of its range” analysis for the scarlet macaw in the northern DPS based on the plain language of the Act and the Court's order in
Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. Following the court's holding in
In examining the status question, we note that the statutory difference between an endangered species and a threatened species is the timeframe in which the species (subspecies or DPS) becomes in danger of extinction; an endangered species is in danger of extinction now while a threatened species is not in danger of extinction now but is likely to become so in the foreseeable future. Thus, we reviewed the best scientific and commercial data available regarding the time horizon for the threats that are driving the scarlet macaw in the northern DPS to warrant listing as a threatened species throughout all of its range. We then considered whether these threats or their effects are occurring in any portion of the northern DPS' range such that the northern DPS is in danger of extinction now in that portion of its range. We examined the following threats: habitat loss and fragmentation, collection for the pet trade, small population size, and climate change, including synergistic and cumulative effects.
We evaluated the northern DPS of the southern subspecies of scarlet macaw to determine if it is in danger of extinction now in any portion of its range. The range can theoretically be divided into portions in a number of ways. For the scarlet macaws in the northern DPS, we considered the northern DPS' population sizes, geographic distribution, and threats to the northern DPS, including the northern DPS' response to the threats and cumulative effects. We considered whether the effects of the threats on the northern DPS are greater in any biologically meaningful portion of the northern DPS' range than in other portions such that the northern DPS is in danger of extinction now in that portion. We focused our analysis on portions of the northern DPS' range that may meet the definition of an endangered species. We identified three portions of the northern DPS for these analyses: (1) the Pacific slope of Costa Rica, (2) mainland
The scarlet macaw in the northern DPS has been reduced from much of its historical range in Costa Rica due to the primary threats of habitat loss and collection. The northern DPS of scarlet macaw in Costa Rica occurs in lowlands along the Pacific slope flanked by the central highlands and the Pacific Ocean. The Costa Rica population in the northern DPS, including both the ACOPAC and ACOSA populations, is the largest population and accounts for most of the total population of scarlet macaws in the northern DPS.
Costa Rica is both losing and gaining forest cover throughout the country (Hansen et al. 2013, entire; Brightsmith 2016, in litt. p. 1). Even though Costa Rica was the only country in Central America to experience a positive change in forest cover over a recent 25-year period (1990-2015; FAO 2015, p. 10), some level of deforestation still occurs in parts of the country due to expansion of agriculture and livestock activities and to illegal logging in private forests and national parks and reserves (Government of Costa Rica 2011, p. 2; Government of Costa Rica 2010, pp. 10-11, 38, 52-54; Parks in Peril 2008, unpaginated). The major driver of deforestation is the conversion of forest to livestock and agricultural uses because land users often generate a higher annual income with agriculture or livestock-raising than with forests. Indigenous communities have difficulties keeping nonindigenous farmers from encroaching onto their lands (Government of Costa Rica 2011, p. 1). Additionally, a lack of human and financial resources allows squatters and illegal loggers to exploit resources in protected areas.
A comprehensive study of deforestation in Costa Rica's park system found that deforestation inside Level-1 protected areas, which denotes areas with absolute protections and where no land-cover change is allowed, was negligible from 1987 to 1997, and within the park's 1-km buffer zones the protected areas had a net forest gain for the same period. However, a 1 percent annual deforestation rate occurred in 10-km buffer zones of protected areas. Thus, as distance increases from Level-1 protected areas, total deforestation and deforestation rates also increase (Sanchez-Azofeifa et al. 2003, p. 128). Corcovado National Park, the largest protected area in ACOSA, is one of the Level-1 protected areas in Costa Rica most affected by deforestation within 1 km of its boundaries (Sanchez-Azofeifa et al. 2003, pp. 128-129). Within 10 km of the park, significant clearing occurred (Sanchez-Azofeifa et al. 2003, p. 132). Additionally, in the ACOPAC scarlet macaw population, deforestation occurs around the Carara National Park with a higher rate of deforestation northwest of Carara than to the south (Sanchez-Azofeifa et al. 2003, pp. 128-129; Brightsmith 2016, in litt., p. 12). Generally, National Parks on the Pacific slope are experiencing less deforestation on surrounding lands than those on the Atlantic slope, which is attributed to the intensification and expansion of agricultural cash crops such as banana and pineapple (Sanchez-Azofeifa et al., 1999, 2001, cited in Sanchez-Azofeifa et al. 2003, p. 129).
Overall, the northern DPS' habitat and population size have been reduced from historical levels, and the primary threat of deforestation affects the wild population of scarlet macaws in Costa Rica. Even though some deforestation is ongoing, Costa Rica has experienced a positive change in forest cover over a 25-year period, 1990 to 2015. Deforestation or forest degradation in the current range of the scarlet macaw is not occurring at a level that is causing a further decline of the northern DPS in Costa Rica.
Historically, northern DPS scarlet macaws in Costa Rica experienced heavy collection pressure, but there are ongoing efforts to reduce the magnitude of collection. Hunting is important in the communities for both subsistence and monetary gain; with low-income communities surrounding a park, the incentives to poach are great (Huson 2010, p. 66). Intense management efforts in the mid-1990s that included anti-poaching efforts increased recruitment into the population. However, the anti-poaching efforts and the associated increase in population size was not sustained over the long term (Vaughan et al. 2005, p. 127). A significant effort to control poaching in the Carara area is ongoing because poaching continues to be a serious problem (Vaughan 2005, pers. comm., in McReynolds 2016, in litt., unpaginated). Once successfully fledged from the nest, scarlet macaws appear to have a high survival rate (Myers and Vaughan 2004, cited in Vaughan et al. 2005, p. 128).
In 2005, the ACOPAC population of scarlet macaws was believed to be self-sustaining, even with heavy poaching pressure (Vaughan et al. 2005, p. 128). We have no information that suggests a change in this conclusion since 2005. In the ACOSA, approximately half (48 percent) of residents interviewed believed that scarlet macaws were still being poached, although 85 percent of the interviewees believed numbers of scarlet macaws were increasing and 43 percent of the interviewees mentioned less poaching occurs now than before (and none said poaching had increased (Dear et al. 2010, p. 13)). Overall, while collection is ongoing in the ACOSA and ACOPAC populations, the population of scarlet macaws is increasing despite the collection pressure.
Costa Rica's Wildlife Conservation Law and its amendments prohibit the hunting, collection, and extraction of all species, except in certain cases for subsistence by indigenous groups, scientific purposes, or species control (Costa Rican Embassy 2013, unpaginated; NOVA 2013, unpaginated; Tico Times 2017, unpaginated). Additionally, Costa Rica has protected its resources through an ambitious national parks and biological reserves system, but those parks and reserves are inadequately funded and insufficiently controlled (Government of Costa Rica 2010, p. 34). Poaching by local communities is a problem of great concern; hunting within national park boundaries is illegal, but it is difficult to monitor and enforce hunting prohibitions with limited funds and supervision (Huson 2010, p. 18; Government of Costa Rica 2010, p. 52). Officials in Carara National Park reported that they do not have enough staff to effectively control poaching (Huson 2010, p. 8).
Active reintroduction programs have added hundreds of scarlet macaws to the wild in the northern DPS in Costa Rica (Ara Project 2017, unpaginated; Brightsmith et al. 2005, p. 468; Dear et al. 2010, pp. 15-17; Forbes 2005, p. 97; Tiskita Jungle Lodge 2018, unpaginated). Most reintroduction projects also conduct environmental education at a local level and attract additional media attention to educate
Success of the reintroductions varies. On the Nicoya Peninsula in northwestern Costa Rica, scarlet macaws are currently released at Punta Islita, Playa Tamboor, and Curú National Wildlife Refuge, which are all within 50 km of each other. It is difficult to determine how these populations will fare over time because these populations are isolated, but these three release sites could help repopulate the Nicoya Peninsula (Brightsmith 2016, in litt., p. 15). Some released birds survived but have not produced chicks; we do not have information concerning the status of most of the released birds at these locations (Brightsmith et al. 2005, p. 468). Within the South Pacific coast region, over 75 scarlet macaws have been released into the wild with close to 90 percent survival rate (Tiskita Jungle Lodge 2018, unpaginated). This reintroduction program has ceased because a viable population has been established that is large enough to potentially connect with populations in the ACOSA that are farther north along the coast (Ara Project 2018, unpaginated; Tiskita Jungle Lodge 2018, unpaginated).
Releases of captive scarlet macaws could increase the wild populations because many of the reintroduced captive-raised and confiscated birds are released adjacent to existing populations or at least within the range that scarlet macaws are known to disperse. Some of the released birds have adapted to surviving in the wild by finding mates, food, and nesting resources. Conversely, releases of captive scarlet macaws could potentially pose a threat to wild populations by exposing wild birds to diseases for which wild populations have no resistance (Dear
The population of scarlet macaws in the northern DPS is estimated to range between 1,000 and 2,000 birds (see table 1, above). Information indicates that the ACOPAC and ACOSA populations in Costa Rica, which make up the bulk of the northern DPS of scarlet macaw, are at least stable and likely increasing. The population appears to be expanding into suitable habitat along the Pacific slope between the ACOPAC and ACOSA populations. With regular sightings of scarlet macaws between the two populations, the scarlet macaw is basically continuous from the Osa Peninsula (ACOSA population) to Carara National Park (ACOPAC population) (Brightsmith 2016, in litt., p. 13). While poaching, deforestation, small population size, and inadequate enforcement of existing protections continue to affect the species, because the population is increasing and expanding in its range between the two populations, it is reasonable to conclude that the Costa Rica portion of scarlet macaw is not currently in danger of extinction and does not meet the definition of an “endangered species” under the Act. However, we expect that the threats will continue and put the Costa Rica portion in danger of extinction in the foreseeable future. Because we reached a negative answer with respect to the status of the scarlet macaws in the northern DPS in Costa Rica meeting the definition of an endangered species, we do not need to evaluate whether the Costa Rica portion of the northern DPS is significant.
The best available information on distribution and abundance indicates that there are very few scarlet macaws on mainland Panama. The current population on mainland Panama is estimated to be fewer than 25 birds that occur in two areas, in northwest Panama in the upper Río Corotú near Puerto Armuelles and Querévalo in the Chiriquí province, and on the southern end of the Azuero Peninsula of Veraguas, near Cerro Hoya National Park, Tonosi Forest Reserve, and farther to the east. In the area of the upper Río Corotú near Puerto Armuelles and Querévalo in the Chiriquí province, there have been sporadic sightings of scarlet macaws. However, it is uncertain if the birds in northwest Panama are a wild population or birds dispersing south from a reintroduction program at Tiskita, Costa Rica, that have successfully established in the area because of the program.
Deforestation in Panama is relatively low for the Mesoamerica region; the annual decrease during 1990-2015 was 169 km
Little information is available on collection of scarlet macaws in Panama, although it was a factor leading to the extremely low population size of the species from the country (McReynolds 2016, in litt. unpaginated). Cerro Hoya National Park is located on the southern tip of the Azuero Peninsula within Panama's most impoverished province (Veraguas) and the Los Santos province. Collection of wildlife (including scarlet macaws) is a threat in this area because locals use unoccupied lands for logging and to collect wildlife for sustenance and income. Poaching of wildlife is common in rural areas (Government of Panama 2005, p. 36; Parker et al. 2004, p. II-6). Therefore, it is reasonable to conclude that some level of poaching of scarlet macaws likely occurs in the country, although at what level is unknown. Because the species is vulnerable to overexploitation based on their life-history traits, poaching individuals from such a small population would impact the population's viability. Moreover, despite a program to use captive scarlet macaw feathers to cut down on hunting of wild birds for their feathers, hunting still occurs, and collecting chicks for pets remains a concern at Cerro Hoya National Park (Rodriquez and Hinojosa 2010, in McReynolds 2016, in litt., unpaginated).
The National Environment Authority is the primary government institution for forest and biodiversity conservation and management. To protect and regulate the use of wildlife, flora and fauna, the Panamanian Government has created numerous laws, including Wildlife Law 24 that establishes wildlife as part of the natural heritage of Panama and provides for protection, restoration, research, management and development of the country's genetic resources, including rare species; the General Law
Overall, deforestation is a threat to forests in Panama, primarily occurring in areas outside of the scarlet macaw's range. Illegal and small-scale subsistence logging is ongoing with little oversight and causes forest degradation. However, we are unaware of deforestation affecting the northern DPS on mainland Panama. Poaching was not identified as a main threat to biodiversity in Cerro Hoya National Park (Parker et al. 2004, Annex G, unpaginated), but poaching is common in rural areas and collection of scarlet macaws within the park and in rural areas is likely ongoing. The threats of habitat loss and collection are not geographically concentrated in Panama and are not occurring at a different rate or on an increased trajectory compared to the other parts of the range within the northern DPS. The scarlet macaw exists on mainland Panama in two areas with an extremely small overall population size (less than 25 birds). The scarlet macaw's life history traits limit the species' ability to recover, particularly when individuals are removed from the wild year after year. The loss of individuals in the wild coupled with any loss of habitat that removes large trees that provide resources for nesting and food are threats to the species' viability in Panama. Therefore, because of the very small population size and ongoing threats, we conclude that the northern DPS is in danger of extinction in the Panama portion.
Because we concluded that the northern DPS is in danger of extinction in the Panama portion, we next proceed to evaluating whether this portion of the range is significant. To determine whether a portion is “significant,” we considered how the portion contributes to the viability of the species. There are multiple ways in which a portion of the species' range could contribute to the viability of a species, including (but not limited to) by serving a particular role in the life history of the species (such as the breeding grounds or food source for the species), by including high-quality or unique-value habitat relative to the rest of the habitat in the range, or by representing a large percentage of the range.
The scarlet macaw occurs in two areas in Panama, although it is uncertain if the birds that occur in the western border region of Costa Rica and Panama are wild or the reintroduced birds dispersing south from Tiskita, Costa Rica. The total range of where scarlet macaws occur in Panama is unknown, but the best available information indicates the size of the portion is very small and not a large percentage of the northern DPS's range.
The total population of scarlet macaws on mainland Panama represents only about 1 percent of the total population of the northern DPS. The populations in Panama are not biologically or genetically unique from other populations in the northern DPS. We are not currently aware of any life-history functions that the Panama portion is contributing meaningfully to the northern DPS' overall resiliency and representation, within the context of a “significant portion of its range” analysis. For example, there is no information that the very small population in Panama is serving as a source population for the northern DPS. The northern DPS contains similar ecosystems across its range—lowland tropical habitats bounded by highlands or the Pacific Ocean. Scarlet macaws are dependent on larger, older trees that have large nesting cavities, forage primarily in the forest canopy, and are relatively general in their feeding habits. The best available information does not indicate that forests where scarlet macaws occur in Panama are higher quality or provide high value relative to the remaining portions of the range in the northern DPS.
Genetically, the populations on the Pacific slope in Costa Rica, mainland Panama, and in Colombia west of the Andes Mountains were determined to be a spatially discrete group within the broader lineage of
Scarlet macaws historically occurred in northwest Colombia in the tropical zone of the Caribbean region, and the inter-Andean valleys, the largest of which are the Magdalena and Cauca River valleys (Salaman et al. 2009, p. 21; Hilty and Brown 1986, p. 200; Forshaw 1989, p. 407). The species' range was reported from eastern Cartagena to the low Magdalena Valley, southward to southeast Córdoba, and the middle Magdalena Valley (Hilty and Brown (1986, p. 200). However, the scarlet macaw has been reported as probably close to extinction in the Magdalena and Cauca River valleys, and north (Donegan 2013, in litt.; Ellery 2013, in litt.; McMullen 2010, p. 60); few sightings have been reported. Scarlet macaws may occur in very low numbers in the more remote and inaccessible parts of the region, but their status there is not clear. We are unaware of any other detailed information on the numbers, distribution, or status of the scarlet macaw in northwest Colombia.
The primary factors affecting the northern DPS in northwest Colombia are habitat loss, and to a lesser extent trade (Donegan 2013, in litt., unpaginated). Deforestation is ongoing in northwest Colombia with few large tracts of forest remaining within the historical range of the scarlet macaw (Ortega and Lagos 2011, p. 82; Salaman et al. 2009, p. 21; Colombia Gold Letter 2012, pp. 1-2). Forest loss is due primarily to conversion of land to pasture and agriculture, but also mining, illicit crops, and logging (Ortega and Lagos 2011, pp. 85-86). Colombia has lost forest at a steady rate over a 25-year period, 1990-2015 (FAO 2015, p. 10). The Magdalena and Caribbean regions had approximately only 7 percent and 23 percent (respectively) of their land area in original vegetation, with the remainder converted primarily to grazing land (79 percent and 68 percent, respectively) (Etter et al. 2006, p. 376). The Magdalena region lost 40 percent of its forest cover between 1970 and 1990, and an additional 15 percent between 1990 and 1996 (Restrepo & Syvitski 2006, pp. 69, 72). Within the Caribbean region, protected areas and sanctuaries have lost up to 70 percent of forest cover since they were created in the late 1970s and early 1980s (Miller et al. 2004, p. 454).
The threat of habitat loss is not geographically concentrated in Colombia or occurring at a different rate or on an increased trajectory compared to the other parts of the range within the
Because we conclude that the northern DPS is in danger of extinction in the Colombia portion, we next proceed to evaluating whether this portion of the range is significant. As explained above, to determine whether a portion was “significant,” we considered how the portion contributes to the viability of the northern DPS. The population is reported to be near extirpation from northwest Colombia, but a few individuals may possibly occur in more remote and inaccessible areas of the region. The total range of where scarlet macaws occur in Colombia is unknown, but the best available information indicates the size of the portion is very small and not a large percentage of the northern DPS's range. Additionally, all indications suggest the population is very small and likely represents a minimal proportion of the total population of the northern DPS.
The population in Colombia is not biologically or genetically unique from other populations in the northern DPS. We are not currently aware of any life-history functions that the Colombia portion is contributing meaningfully to the northern DPS' overall resiliency and representation, within the context of a “significant portion of its range” analysis. For example, there is no information that the very small but unknown population in Colombia is serving as a source population for the northern DPS. The northern DPS contains similar ecosystems across its range—lowland tropical habitats bounded by highlands and/or the Pacific Ocean. Scarlet macaws are dependent on larger, older trees that have large nesting cavities, forage primarily in the forest canopy, and are relatively general in their feeding habits. The best available information does not indicate that forests where scarlet macaws occur in northwest Colombia are higher quality or provide high value relative to the remaining portions of the range in the northern DPS.
Genetically, the populations on the Pacific slope in Costa Rica, mainland Panama, and in Colombia west of the Andes Mountains were determined to be a spatially discrete group within the broader lineage of
Having determined that neither the Panama nor the Colombia portions are significant portions of the northern DPS's range, we considered whether the Panama and Columbia portions combined might be a significant portion of the range of the scarlet macaw in the northern DPS that is endangered. The scarlet macaw in the northern DPS may be in danger of extinction in that combined portion because of ongoing threats of deforestation that removes the species' habitat for nesting and foraging, as well as collection for the pet trade. Viability of very small populations in Panama and Colombia is likely minimal, particularly because the species' life-history traits limit the rate of recovery from loss of wild populations. Therefore, we conclude that the scarlet macaw in the northern DPS is in danger of extinction in this portion of the northern DPS. However, even taken together, this combined portion is not significant because the populations are very small, they do not account for a large percentage of the range, and this portion is not biologically or genetically unique from the rest of the northern DPS. Panama and Colombia taken together will have only a minimal impact on the viability of the scarlet macaw in the northern DPS, and therefore, cannot be significant and cannot be the basis for listing the entire northern DPS as endangered. Thus, having found that the portion is in danger of extinction, but the portion is not significant, the portion of the scarlet macaw in the northern DPS's range combining Panama and Colombia together is not a significant portion because both factors must be true.
The analysis of the Panama portion, Colombia portion, and the portion that combines Panama and Colombia together, does not conflict with the courts' holdings in
In the document announcing that we were reexamining the “significant portion of the range” analysis for the northern DPS of the southern subspecies of scarlet macaw, we stated that we would reconsider our analysis based on the plain language of the Act and the implications of
In this analysis of the northern DPS of the southern subspecies of scarlet macaw, we assessed four portions within the DPS: the Pacific slope of Costa Rica, Mainland Panama, and Colombia west of the Andes, and Panama and Colombia combined. We concluded that none of the portions in the northern DPS are both in danger of extinction and significant. The Costa Rica population is not in danger of extinction; therefore, we did not need to address its significance. For the Panama population and Colombia population, it is reasonable to conclude that each of
The primary authors of this document are the staff members of the U.S. Fish and Wildlife Service's Branch of Delisting and Foreign Species.
This document is published under the authority of the Endangered Species Act, as amended (16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS approves and implements the measures included in Framework Adjustment 36 to the Atlantic Sea Scallop Fishery Management Plan as adopted and submitted by the New England Fishery Management Council. Framework 36 establishes scallop specifications and other measures for fishing years 2023 and 2024. Framework 36 implements measures to protect small scallops to support rotational access area trips to the fleet in future years. To promote uniformity in the fishery, this final rule also corrects and clarifies regulatory text that is unnecessary, outdated, or unclear. This action is necessary to prevent overfishing and improve both yield-per-recruit and the overall management of the Atlantic sea scallop resource.
Effective March 31, 2023.
The Council has prepared an Environmental Assessment (EA) for this action that describes the measures contained in Framework Adjustment 36 to the Atlantic Sea Scallop Fishery Management Plan (FMP) and other considered alternatives and analyzes the impacts of these measures and alternatives. The Council submitted Framework 36 to NMFS that includes the EA, a description of the Council's preferred alternatives, the Council's rationale for selecting each alternative, the Initial Regulatory Flexibility Analysis (IRFA), and a Regulatory Impact Review (RIR). Copies of supporting documents used by the New England Fishery Management Council, including the EA and RIR, are available from: Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950 and accessible via the internet in documents available at:
In addition to the EA, NMFS has prepared a Categorical Exclusion (CE) for the revision of the bushel definition being implemented under Section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Steven Act). Copies of the CE are available from: Michael Pentony, Regional Administrator, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930.
Shannah Jaburek, Fishery Policy Analyst, (978) 282-8456.
The New England Fishery Management Council adopted Framework Adjustment 36 to the Atlantic Sea Scallop FMP on December 7, 2022. The Council submitted Framework 36, including an EA, for NMFS approval on March 9, 2023. NMFS published a proposed rule for Framework 36 on March 3, 2023 (88 FR 13408). To help ensure that the final rule would be implemented before the start of the fishing year on April 1, 2023, the proposed rule included a 15-day public comment period that closed on March 20, 2023.
NMFS has approved all of the measures in Framework 36 recommended by the Council, as described below. This final rule implements Framework 36, which sets scallop specifications and other measures for fishing years 2023 and 2024, including changes to the catch, effort, and quota allocations and adjustments to the rotational area management program for fishing year 2023, and default specifications for fishing year 2024. The Magnuson-Stevens Fishery Conservation and Management Act allows NMFS to approve, partially approve, or disapprove measures proposed by the Council based on whether the measures are consistent with the FMP, the Magnuson-Stevens Act and its National Standards, and other applicable law. NMFS generally defers to the Council's policy choices unless there is a clear inconsistency with the law or the FMP. Details concerning the development of these measures were contained in the preamble of the proposed rule and are not repeated here. Consistent with section 305(d) of the Magnuson-Stevens Act, this final rule also addresses regulatory text that is unnecessary, outdated, or unclear.
The Council set the OFL based on a fishing mortality (F) of 0.61, equivalent to the F threshold updated through the Northeast Fisheries Science Center's most recent scallop benchmark stock assessment that was completed in September 2020. The ABC and the equivalent total ACL for each fishing year are based on an F of 0.45, which is the F associated with a 25-percent probability of exceeding the OFL. The Council's Scientific and Statistical Committee (SSC) recommended scallop fishery ABCs of 43.7 million lb. (19,828 mt) for 2023 and 44.5 million lb. (20,206 mt) for the 2024 fishing year, after accounting for discards and incidental mortality. The SSC will reevaluate and potentially adjust the ABC for 2024 when the Council develops the next framework adjustment.
Table 1 outlines the scallop fishery catch limits.
This action deducts 1.275 million lb (578 mt) of scallops annually in 2023 and 2024 from the respective ABCs for use as the Scallop RSA to fund scallop research. Participating vessels are compensated through the sale of scallops harvested under RSA projects. Of the 1.275-million lb (578-mt) allocation, NMFS has already allocated 47,057 lb (21,345 kg) to previously funded multi-year projects as part of the 2022 RSA awards process. NMFS reviewed proposals submitted for consideration of 2023 RSA awards and intends to announce project selections in late March. Details on the 2023 RSA awards will be posted on our website when announced.
This action also deducts 1 percent of the ABC for the industry-funded observer program to help defray the cost to scallop vessels that carry an observer. The observer set-aside is 198 mt for 2023 and 202 mt for 2024. The Council may adjust the 2024 observer set-aside when it develops specific, non-default measures for 2024. In fishing year 2023, the compensation rates for limited access vessels in open areas fishing under days-at-sea (DAS) is 0.11 DAS per DAS fished. For access area trips, the compensation rate is 250 lb. (113.4 kg), in addition to the vessel's possession limit for the trip for each day or part of a day an observer is onboard.
For LAGC IFQ trips less than 24 hours, a vessel will be able to harvest the trip limit and the daily compensation rate on the observed trip, or the vessel could harvest any unfished compensation on a subsequent trip while adhering to the commercial possession limit. LAGC IFQ vessels may possess an additional 250 lb. (113.4 kg) per trip on trips less than 24 hours when carrying an observer.
For trips exceeding 24 hours, the daily compensation rate of 250 lb. (113.4 kg) will be prorated at 12-hour increments. The amount of compensation a vessel can receive on one trip will be capped at 2 days (48 hours) and vessels fishing longer than 48 hours will not receive additional compensation allocation. For example, if the observer compensation rate is 250 lb./day (113.4 kg/day) and an LAGC IFQ vessel carrying an observer departs on July 1 at 2200 and lands on July 3 at 0100, the length of the trip would equal 27 hours, or 1 day and 3 hours. In this example, the LAGC IFQ vessel would be eligible for 1 day plus 12 hours of compensation allocation,
For NGOM trips, a vessel will be able to harvest the trip limit and the daily compensation rate on the observed trip. NGOM vessels may possess an additional 125 lb (56.7 kg) per trip when carrying an observer.
NMFS may adjust the compensation rate throughout the fishing year, depending on how quickly the fleets are using the set aside. The Council may adjust the 2024 observer set-aside when it develops specific, non-default measures for 2024.
This action implements vessel-specific DAS allocations for each of the three limited access scallop DAS permit categories (
For fishing year 2023 and the start of 2024, Framework 36 changes the boundaries of Area II (Table 3) to include all of both areas formerly known as Closed Area II and Closed Area II-East. This area was expanded to better support rotational access in fishing year 2023.
Framework 36 keeps the New York Bight and Nantucket Lightship-West Scallop Rotational Areas closed to scallop fishing to optimize growth of the several scallop year classes within the closure areas and to support scallop fishing in subsequent years.
This action also closes the Elephant Trunk (Table 4) and the Area I (Table 5) Scallop Rotational Areas. The Council proposed closing these areas to support the growth of small scallops in the absence of fishing pressure.
Framework 36 reverts the Nantucket Lightship-South-Deep and Nantucket Lightship-Triangle Scallop Rotational Areas to part of the open area. These areas were previously managed as part of the area rotation program; however, there is not enough biomass to support rotational access on an equitable basis to the entire Limited Access fleet nor was there enough recruitment seen in the annual survey to support keeping these areas as part of the program. Based on this information, they no longer meet the criteria for either closure or controlled access as defined in 50 CFR 648.55(a)(6). These areas become part of the open area and can be fished as part of the DAS program or on LAGC IFQ open area trips. Because fishing year 2022 carryover access area fishing will continue in the Nantucket Lightship-South-Deep for the first 60 days of the 2023 fishing year, these areas will not revert to open area until May 31, 2023.
Framework 36 allocates LAGC IFQ access area trips that can be taken in either the NLS-N (Table 6) or Area II (Table 3) for the 2023 fishing year. Once the Regional Administrator has determined that the total number of LAGC IFQ access area trips have been, or are projected to be taken, the NLS-N shall become part of the open area for LAGC IFQ vessels.
Limited access vessels will be prohibited from fishing in the area during the first 90 days of fishing year 2023 (
Table 7 provides the limited access full-time allocations for all of the access areas for the 2023 fishing year and the first 60 days of the 2024 fishing year. These allocations can be landed in as many trips as needed, so long as vessels do not exceed the possession limit (also in Table 7) on any one trip.
Table 8 provides the limited access part-time allocations for all of the access areas for the 2023 fishing year and the first 60 days of the 2024 fishing year. These allocations can be landed in as many trips as needed, so long as the vessels do not exceed the possession limit (also in Table 8) on any one trip.
Once the Regional Administrator has determined that the total number of LAGC IFQ access area trips have been, or are projected to be taken, the Nantucket Lightship North Scallop Rotational Area shall become part of the open area for LAGC IFQ vessels, and Area II would then be closed to LAGC IFQ fishing.
Framework 36 sets an NGOM Set-Aside of 380,855 lb (172,753 kg) for fishing year 2023 and a default NGOM Set-Aside of 285,641 lb (211,365 kg) for fishing year 2024. Because the NGOM Set-Aside for fishing years 2023 and 2024 is below the 800,000-lb (362,874-kg) trigger, Framework 36 does not allocate any landings to the NGOM APL. Table 10 describes the breakdown of the NGOM TAL for the 2023 and 2024 (default) fishing years.
This action implements a 50,000-lb (22,680-kg) scallop incidental landings target TAL for fishing years 2023 and 2024 to account for mortality from vessels that catch scallops while fishing for other species and ensure that F targets are not exceeded. The Council and NMFS may adjust this target TAC in a future action if vessels catch more scallops under the incidental target TAC than predicted.
This action allows vessels participating in RSA projects to harvest RSA compensation from the open area only. All vessels are prohibited from harvesting RSA compensation pounds in all access areas. Vessels are prohibited from fishing for RSA compensation in the NGOM unless the vessel is fishing an RSA compensation trip using NGOM RSA allocation that was awarded to an RSA project. Finally, Framework 36 prohibits the harvest of RSA from any access areas under default 2024 measures. At the start of 2024, RSA compensation may only be harvested from open areas. The Council will re-evaluate this default prohibition measure in the action that would set final 2024 specifications.
This rule includes revisions to address regulatory text that is unnecessary, outdated, or unclear. The revisions at § 648.14(i)(1)(i), (ii), (iv)(A) and (B), would clarify that these paragraphs are referring to Federal scallop permits. Other revisions at § 648.14(i)(1)(vi)(A)(
This rule also changes the in-shell possession limit of scallops from a bushel conversion (1 bushel of in-shell scallops = 8 lb (3.6 kg) of scallop meats) to a weight conversion (8.33 lb (3.78 kg) of in-shell scallops = 1 lb (0.45 kg) of scallop meats). NMFS is making this adjustment to provide more uniformity among the possession limit measurements by revising the in-shell possession limit to a widely accepted poundage conversion. The revision to the in-shell possession limit is resource neutral because NMFS already uses this conversion to charge an LAGC vessel's IFQ and/or the NGOM Set-Aside. Furthermore, this change will continue to support the boutique in-shell scallop fishery by retaining an in-shell possession limit for this fleet. The revisions at § 648.2 `bushel' definition, § 648.14(i)(2)(ii)(A) and (B), (i)(2)(iii)(B), (i)(2)(vi)(D), § 648.51(a), throughout § 648.52, and at § 648.59(b)(3)(i), change the in-shell possession limit of scallops from a bushel conversion to a lb conversion.
All revisions discussed in this section are consistent with section 305(d) of the Magnuson-Stevens Act, which provides authority to the Secretary of Commerce to promulgate regulations necessary to ensure that amendments to an FMP are carried out in accordance with the FMP and the Magnuson-Stevens Act.
We received no comments on the proposed rule.
There are no changes from the proposed rule.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the FMP, other provisions of the Magnuson-Stevens Act and other applicable law.
The Office of Management and Budget has determined that this rule is not significant pursuant to E.O. 12866.
This final rule does not contain policies with federalism or “takings” implications, as those terms are defined in E.O. 13132 and E.O. 12630, respectively.
This action does not contain any collection-of-information requirements subject to the Paperwork Reduction Act (PRA).
The Assistant Administrator for Fisheries has determined that the need to implement the measures of this rule in an expedited manner is necessary to achieve conservation objectives for the scallop fishery and certain fish stocks. This constitutes good cause, under authority contained in 5 U.S.C. 553(d)(3), to waive the 30-day delay in the date of effectiveness and to make the final Framework 36 measures effective upon filing for public inspection with the Office of the Federal Register. The 2023 fishing year begins on April 1, 2023. The New England Fishery Management Council adopted Framework 36 to the Atlantic Sea Scallop FMP on December 7, 2022, and submitted a preliminary draft of Framework 36 to NMFS on January 30, 2023. NMFS has taken all diligent steps to promulgate this rule as quickly as possible.
If Framework 36 is delayed beyond April 1, certain default measures, including access area designations, DAS, IFQ, RSA, and observer set-aside allocations, would automatically be put into place. Most of these default allocations are set at higher harvest levels than what would be implemented under Framework 36. Although these default allocations were intentionally set at levels low enough to avoid exceeding the final Framework 36 allocations, the 2022 scallop survey found lower than expected harvestable biomass in some areas. As a result, some of the default measures implemented for 2023 exceed those that are proposed in Framework 36, such that the fishery would be negatively impacted by a delayed implementation.
The survey in the NGOM in 2022 found lower than expected harvestable biomass in the area. As a result, the default allocation in the NGOM is above the Framework 36 allocation (Default: 465,980 lb (211,365 kg); Framework 36: 380,855 lb (172,753 kg)). This fishery is prosecuted quickly, landing over 11,000 lb/day (4,990 kg/day) in fishing year 2022. A delay in implementation could lead to fishing the NGOM at a higher fishing mortality than intended. This has happened in the past as a result of delayed implementation. For instance, this year we are implementing a 17,918-lb (8,127-kg) accountability measure for an overage in the NGOM that occurred when the fishing year 2021 specifications were implemented late.
Overall, the 2022 scallop survey found lower than expected harvestable biomass. This resulted in a Framework 36 IFQ allocation that is lower than the default allocation (Default: 1,177,268 lb (534,000 kg); Framework 36: 1,142,890 lb (518,406 kg)). If Framework 36 is not implemented by April 1, 2023, a mid-season reduction of IFQ allocations will be required when the framework becomes effective. This will cause confusion throughout the IFQ fleet and will be burdensome because many vessel owners lease all, or a portion of, their IFQ at the beginning of the season. A mid-season reduction in IFQ can lead to unintentional IFQ overages. In addition to the IFQ allocation adjustment, default measures allocate trips for the IFQ fleet into Area I, which will be closed under Framework 36 to protect small scallops.
Under default measures, each full-time vessel has 18 DAS and 1 access area trip for 15,000 lb (6,804 kg) in Area II. In addition to 5 U.S.C. 553(d)(3), we waive the 30-day delay in effectiveness under 5 U.S.C. 553(d)(1) because this action relieves restrictions by providing full-time vessels with an additional 6
Framework 36 could not have been put into place sooner to allow for a 30-day delayed effectiveness because the information and data necessary for the Council to develop the framework was not available in time for this action to be forwarded to NMFS and implemented by April 1, 2023, the beginning of the scallop fishing year. Delaying the implementation of this action for 30 days would delay positive economic benefits to the scallop fleet, could negatively impact the access area rotation program by delaying fishing in areas that should be available, and could adversely affect scallop stocks.
Pursuant to section 604 of the Regulatory Flexibility Act (RFA), NMFS has completed a final regulatory flexibility analysis (FRFA) in support of Framework 36, as included below. This FRFA incorporates the IRFA, a summary of the significant issues raised by public comments in response to the IRFA, NMFS' responses to those comments, a summary of the analyses completed in the Framework 36 EA, and the preamble to this final rule. A summary of the IRFA was published in the proposed rule for this action and is not repeated here. A description of why this action was considered, the objectives of, and the legal basis for this rule is contained in Framework 36 and in the preambles to the proposed rule and this final rule and are not repeated here. All of the documents that constitute the FRFA (including the preambles of the proposed and final rules) are available from NMFS and/or the Council, and a copy of the IRFA, the RIR, and the EA are available upon request (see
We received no comments on the IRFA or on the more general economic impacts of the rule.
These regulations would apply to all vessels with limited access and LAGC scallop permits, and there would be economic impacts to small entities. Those impacts are described in detail in the draft of Framework 36, specifically, in the IRFA (Section 7.13) and in the Economic and Social Impacts section (Section 6.6). Framework 36 (Section 5.6) provides extensive information on the number of vessels that are affected by this action, their home and principal state, dependency on the scallop fishery, and revenues and profits (see
For RFA purposes, NMFS defines a small business in a shellfish fishery as a firm that is independently owned and operated with receipts of less than $11 million annually (see 50 CFR 200.2). Individually permitted vessels may hold permits for several fisheries, harvesting species of fish that are regulated by several different fishery management plans, even beyond those impacted by this action. Furthermore, multiple permitted vessels and/or permits may be owned by entities affiliated by stock ownership, common management, identity of interest, contractual relationships, or economic dependency. For the purposes of this analysis, “ownership entities” are defined as those entities with common ownership as listed on the permit application. Only permits with identical ownership are categorized as an “ownership entity.” For example, if five permits have the same seven persons listed as co-owners on their permit applications, those seven persons would form one “ownership entity,” that holds those five permits. If two of those seven owners also co-own additional vessels, that ownership arrangement would be considered a separate “ownership entity” for the purpose of this analysis.
On June 1 of each year, ownership entities are identified based on a list of all permits for the most recent complete calendar year. The current ownership dataset is based on the calendar year 2021 permits and contains average gross sales associated with those permits for calendar years 2019 through 2021. Matching the potentially impacted 2021 fishing year permits described above (limited access and LAGC IFQ) to calendar year 2021 ownership data results in 147 distinct ownership entities for the limited access fleet and 87 distinct ownership entities for the LAGC IFQ fleet. Based on the Small Business Administration (SBA) guidelines, 139 of the limited access distinct ownership entities and 87 LAGC IFQ entities are categorized as small. Eight limited access and no LAGC IFQ entities are categorized as large business entities with annual fishing revenues over $11 million in 2021. There were 52 distinct small business entities with NGOM permits in 2021.
This action contains no new collection-of-information, reporting, or recordkeeping requirements. This final rule does not require specific action on behalf of regulated entities other than to ensure they stay within the specifications that are set.
During the development of Framework 36, NMFS and the Council considered ways to reduce the regulatory burden on, and provide flexibility for, the regulated entities in this action. Framework 36 increases the opportunity for LAGC IFQ vessels to operate in access areas by allowing LAGC IFQ vessels to fish in Area II for the first time. Area II is an access area that is offshore and has historically been difficult for the LAGC fleet to access. Framework 36 allows the LAGC IFQ fleet to fish 2023 access area trips in either Nantucket Lightship North or Area II. This could have potentially slight positive impacts on the resource overall by spreading effort out and providing more access in areas with higher catch rates. It also could potentially reduce total area swept since, the LAGC IFQ component would have the opportunity to fish on high
Overall, this rule minimizes adverse long-term impacts by ensuring that management measures and catch limits result in sustainable fishing mortality rates that promote stock rebuilding, and as a result, maximize optimal yield. The measures implemented by this final rule also provide additional flexibility for fishing operations in the short-term.
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency will publish one or more guides to assist small entities in complying with the rule and will designate such publications as “small entity compliance guides.” The agency will explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a bulletin to permit holders that also serves as a small entity compliance guide was prepared. This final rule and the guide (
Fisheries, Fishing, Recordkeeping and reporting requirements.
For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:
16 U.S.C. 1801
(i) * * *
(1) * * *
(i)
(ii)
(iv) * * *
(A) Land, offload, remove, or otherwise transfer; or attempt to land, offload, remove or otherwise transfer; scallops from one vessel to another, unless that vessel has not been issued a Federal scallop permit and fishes exclusively in state waters.
(B) Sell, barter, or trade, or otherwise transfer scallops from a vessel; or attempt to sell, barter or trade, or otherwise transfer scallops from a vessel; for a commercial purpose, unless the vessel has been issued a valid Federal scallop permit pursuant to § 648.4(a)(2), or the scallops were harvested by a vessel that has not been issued a Federal scallop permit and fishes for scallops exclusively in state waters.
(vi) * * *
(A) * * *
(
(2) * * *
(ii) * * *
(A) Possess more than 40 lb (18.1 kg) of shucked, or 333 lb (151 kg) of in-shell scallops, or participate in the scallop DAS or Area Access programs, while in the possession of trawl nets that have a maximum sweep exceeding 144 ft (43.9 m), as measured by the total length of the footrope that is directly attached to the webbing of the net, except as specified in § 648.51(a)(1), unless the vessel is fishing under the Northeast multispecies or monkfish DAS program.
(B) While under or subject to the DAS allocation program, in possession of more than 40 lb (18.1 kg) of shucked scallops or 333 lb (151 kg) of in-shell scallops, or fishing for scallops in the EEZ:
(iii) * * *
(B) Fish for, possess, or land more than 3,332 lb (1,511 kg) of in-shell scallops inside the VMS Demarcation Line on or by a vessel, except as provided in the state waters exemption, as specified in § 648.54.
(vi) * * *
(B) Transit the Area II Scallop Rotational Area or the New York Bight Scallop Rotational Area, as defined in § 648.60(b) and (j), unless there is a compelling safety reason for transiting the area and the vessel's fishing gear is stowed and not available for immediate use as defined in § 648.2.
(C) * * *
(D) Possess more than 3,332 lb (1,511 kg) of in-shell scallops outside the boundaries of a Scallop Access Area by a vessel that is declared into the Scallop Access Area Program as specified in § 648.59.
(3) * * *
(v) * * *
(E) Transit the Area II Scallop Rotational Area or New York Bight Scallop Rotational Area, as defined in § 648.60(b) and (j), unless there is a compelling safety reason for transiting
(a)
(f) * * *
(1)
(a)
(2)
(b)
(c)
(d)
(e)
(f)
(a) * * *
(9)
(b) * * *
(3)
(a) * * *
(2)
(3)
(b) * * *
(3) * * *
(i)
(B) The following access area allocations and possession limits for limited access vessels shall be effective for the 2023 and 2024 fishing years:
(
(
(
(
(
(
(6) * * *
(ii) Vessels fishing in the Area II Scallop Rotational Area defined in § 648.60(b) are prohibited from fishing with trawl gear as specified in § 648.51(f)(1).
(c)
(e) * * *
(1)
(2)
(g) * * *
(1) An LAGC scallop vessel may only fish in the scallop rotational areas specified in § 648.60 or in paragraph (g)(3)(iv) of this section, subject to any additional restrictions specified in § 648.60, subject to the possession limit and access area schedule specified in the specifications or framework adjustment processes defined in § 648.55, provided the vessel complies with the requirements specified in paragraphs (b)(1), (2), and (6) through (9) and (d) through (g) of this section. A vessel issued both a NE multispecies permit and an LAGC scallop permit may fish in an approved SAP under § 648.85 and under multispecies DAS in the Area II and Nantucket Lightship North Scallop Rotational Area specified in § 648.60, when open, provided the vessel complies with the requirements specified in § 648.59 and this paragraph (g), but may not fish for, possess, or land scallops on such trips.
(3) * * *
(v)
(4) * * *
(ii)
The revisions and addition read as follows:
(b)
(2)
(ii) [Reserved]
(c)
(g)
(2)
(ii) For the 2023 fishing year, upon a determination from the Regional Administrator that the total number of LAGC IFQ access area trips have been or are projected to be taken, the Nantucket Lightship North Scallop Rotational Area shall become part of the open area for LAGC IFQ vessels.
(i)
(j)
(k)
(b) * * *
(1) The following landings limits will be effective for the NGOM for the 2023 and 2024 fishing years.
Federal Highway Administration (FHWA), U.S. Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
This proposed rule would update the existing Tribal Transportation Program Bridge Program, formerly known as the Indian Reservation Road (IRR) Bridge Program, by renaming it the Tribal Transportation Facility Bridge Program (TTFBP) to comply with the changes made in the Moving Ahead for Progress in the 21st Century Act (MAP-21), carried on through the Fixing America's Surface Transportation (FAST) Act, and the recent changes made by the Bipartisan Infrastructure Law (BIL), enacted as the Infrastructure Investment and Jobs Act (IIJA). It would also remove references to terms such as structurally deficient, functionally obsolete, and sufficiency rating. These updates would align the TTFBP terminology for bridge conditions with the terminology used for State departments of transportation (State DOT) in the Federal-aid highway program. This change would establish a consistent terminology for classifying and referring to bridge conditions.
Comments must be received on or before June 2, 2023. Late-filed comments will be considered to the extent practicable.
Consistent with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, the FHWA will hold four public information, education, and consultation meetings during the public comment period to explain the rule, answer questions, and take oral testimony. While a court reporter will document these meetings, attendees are encouraged to submit written public comments. Three meetings will be held in or near Indian country at the locations listed below and a fourth meeting will be held virtually. Additional information on the meetings may be found at
1. April 4th, 2023, 2-3 p.m. EST, Virtual Listening Session by Webinar,
2. April 20th, 2023, 9-11 a.m. MDT, Department of the Interior University, National Indian Programs Training Center, Albuquerque, NM.
3. May 17th, 2023, 9-11 a.m. CST, Great Northern Jerome Hill Theater, St. Paul, MN.
4. May 18th, 2023, 2-4 p.m. PDT, Northwest Region Transportation Symposium, Northern Quest Resort and Casino, Airway Heights, WA.
To ensure that you do not duplicate your docket submissions, please submit them by only one of the following means:
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•
•
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Mr. Russell Garcia, P.E., Federal Lands Highway/Office of Tribal Transportation,
This document and all comments received may be viewed online through the Federal eRulemaking portal at
This regulatory action is necessary to update 23 CFR part 661 to reflect the changes made to the program since the last regulatory update in 2008. These changes are largely nomenclature changes to the existing regulation that FHWA has been implementing under 23 U.S.C. 202(d), and do not substantively change the TTFBP. Importantly, this proposed rule would align the TTFBP terminology for bridge conditions with the terminology used in the Federal-aid highway program for State DOTs. This change would establish a consistent terminology for classifying and referring to bridge conditions. In addition, this proposed rule would update the name of the program to TTFBP in every place where it formally appeared. Other proposed non-substantive changes to each section are outlined in the section-by-section discussion below.
Section-by-Section Discussion of the Proposed Amendments—(This discussion references the existing regulation, including prior nomenclature).
The regulation applies to all Tribal Transportation Facility (TTF) bridges. FHWA proposes to delete the structurally deficient and functionally obsolete language to align the TTFBP
FHWA proposes to delete the following definitions: functionally obsolete, Indian Reservation Road (IRR), IRR bridge, life cycle cost analysis, Public Authority, structurally deficient, structure inventory and appraisal sheet, and sufficiency rating because these terms are no longer used in this regulation. Also, FHWA proposes to add the definitions of National Bridge Inventory (NBI), National Tribal Transportation Facility Inventory (NTTFI), operating rating, rehabilitation, replacement, Tribal Transportation Facility (TTF), and TTF bridge because this regulation uses these terms as qualifiers for projects.
FHWA proposes to replace the specific funding amounts with a more generalized statement due to the complex nature of the funding for the TTFBP. The TTFBP website,
To provide a consistent means of classifying and referring to bridge conditions between the TTFBP and 23 CFR part 490, subpart D, FHWA proposes to delete the phrases “structurally deficient” and “functionally obsolete” and substitute “are in poor condition, have low load capacity, or need highway geometric improvements” to align the TTFBP terminology for bridge conditions with the terminology used for State DOTs in the Federal-aid highway program. The remaining terminology used in this section is consistent with 23 CFR part 490, subpart D. Thus, this change would establish a terminology for classifying and referring to bridge conditions. Also, FHWA proposes to incorporate the eligibility requirements of 23 U.S.C. 202(d), as amended by BIL.
This section would delete the requirement for bridges to “be located on an IRR that is included in the IRR Inventory” to be consistent with the new Tribal Transportation Program (TTP) terminology used with 25 CFR part 170. To provide a consistent means of classifying and referring to bridge conditions, FHWA also proposes to delete the “structurally deficient” and “functionally obsolete” criterion and substitute a condition criterion that the bridge “be classified as in poor condition.” This would align the TTFBP terminology for bridge conditions with the terminology used for State DOTs in the Federal-aid highway program. The remaining terminology in this section is consistent with 23 CFR part 490, subpart D. Thus, this change would establish a consistent terminology for classifying and referring to bridge conditions. FHWA also proposes to add the “low load capacity” and “need highway geometric improvements” criteria, which would apply to bridges that are “classified in poor condition, have a low load capacity, or need highway geometric improvements,” in lieu of the “structurally deficient or functionally obsolete” classification set forth in paragraph 23 CFR 661.17(a)(3) of the existing regulations. FHWA also proposes to clarify the new criteria for bridge eligibility for new bridge construction. While the BIL adds eligibility for new bridge construction at 23 U.S.C. 202(d)(2)(A), the amendments at 23 U.S.C. 202(d)(1) and (3) also require bridges to be classified in poor condition, have a low load capacity, or needing geometric improvements. Since new bridges do not have a condition classification, a load capacity, or a need for geometric improvements, FHWA proposes to clarify that projects for new bridge construction do not need to meet this criterion. Further, FHWA proposes to delete paragraph (b) in the existing section, as the 10-year rule for bridge replacement or rehabilitation is now obsolete in the Federal-aid highway program.
The funding eligibility criteria set forth in 23 U.S.C. 202(d)(3), requires that a bridge: (A) have an opening of not less than 20 feet; (B) be classified as a tribal transportation facility; and (C) be structurally deficient or functionally obsolete. For consistency with the terminology used in 23 CFR part 490, subpart D, FHWA proposes to interpret the eligibility requirements for replacement under 23 U.S.C. 202(d)(3)(C) to mean that a bridge must be in poor condition, have low load capacity, or need highway geometric improvements. The proposed regulatory text reflects this interpretation. The “poor condition” classification would be consistent with 23 CFR part 490, subpart D. The new “low load capacity” and “need highway geometric improvements” criteria would align with the “functionally obsolete” classification in the existing regulations.
The eligibility criteria in 23 U.S.C. 202(d)(3) provide, as set forth above, that bridges must be either structurally deficient or functionally obsolete to be eligible to receive funding. However, for consistency with the terminology used in 23 CFR part 490 subpart D, FHWA proposes to interpret the eligibility requirements for rehabilitation under 23 U.S.C. 202(d)(3)(C) to mean that a bridge must be in poor or fair condition, have low load capacity, or need highway geometric improvements. FHWA proposes regulatory text consistent with this interpretation. The poor or fair condition criterion is a classification consistent with 23 CFR part 490, subpart D. The new “low load capacity” and “need highway geometric improvements” criteria would align with the “functionally obsolete” classification in the existing regulations.
The eligibility criteria set forth in 23 U.S.C. 202(d)(3) provide, among other things, that bridges must be either structurally deficient or functionally obsolete to receive funding. However, consistent with the terminology used in 23 CFR part 490, subpart D, FHWA proposes to substitute the bridge sufficiency rating criterion and the bridge status criterion of “structurally deficient” and “functionally obsolete” with a condition rating of “good,” “fair,” or “poor.” FHWA proposes to use these condition ratings as the criteria for ranking and prioritizing the bridge projects in the queue for funding, together with the existing criteria set forth in 23 CFR 661.23(b)(3)-(6).
In the proposed paragraph (a), FHWA refers to “non-BIA/non-tribally owned” instead of “non-BIA owned.” In the proposed paragraph (b)(2), FHWA replaces the existing criteria language with “Low load capacity bridges based
FHWA proposes to reorganize this provision. Proposed paragraph (a) would list the elements of a complete application package for preliminary engineering (PE) in numbered subparagraphs (a)(1)-(6), including two proposed changes. In subparagraph (a)(5), FHWA proposes to replace the existing Structure Inventory and Appraisal (SI&A) requirement with a requirement for National Bridge Inventory (NBI) data, which shows the condition rating of the bridge. In subparagraph (a)(6), FHWA proposes to add a requirement for an acknowledgment by the Tribe of the project specific funding requirements and that any excess funds would be returned to FHWA for further distribution. This statement is consistent with the existing and proposed 23 CFR 661.41.
Proposed paragraph (b) would be unchanged except that it would refer to “non-BIA/non-tribally owned TTF bridges” instead of “non-BIA IRR bridges.” FHWA proposes to split the two statements in existing paragraph (c) to clarify in proposed paragraphs (c) and (d) that both items are necessary for a complete application. Lastly, FHWA proposes to redesignate existing paragraph (d) as paragraph (e) and to replace the reference to “an FHWA/Tribal agreement” with a reference to “a TTP Program Agreement between FHWA and a Tribal Government or Consortium.”
FHWA proposes to reorganize this provision. Proposed paragraph (a) would list the elements of a complete application package for construction in numbered subparagraphs, including the following proposed changes. In subparagraph (a)(3), FHWA proposes to replace the existing SI&A sheet requirement with a requirement for NBI data. FHWA proposes to relocate to subparagraph (a)(5) the provision that all environmental and archeological clearances and complete grants of public rights-of-way must be acquired prior to submittal of the construction application package. FHWA also proposes to add subparagraph (a)(6), which would require that a complete application package for construction include an acknowledgment by the Tribe of the project specific funding requirements and that any excess funds will be returned to FHWA for further distribution. This statement is consistent with the existing and proposed 23 CFR 661.41.
In addition, FHWA proposes to move the additional application package requirements from existing paragraph (a) to a new paragraph (b) and refer to “non-BIA/non-tribally owned TTF bridges” instead of “non-BIA IRR bridges.” FHWA proposes to split the two statements in existing paragraph (b) into proposed paragraphs (c) and (d) to clarify that both items are necessary for a complete application. In proposed paragraph (d), FHWA refers to “TTF bridge projects” instead of “IRRBP projects.” Finally, FHWA proposes to move existing paragraph (c) to a new paragraph (e) and replace the reference to “an FHWA/Tribal agreement” with a reference to “Tribes, under a TTP Program Agreement between FHWA and a Tribal Government or Consortium, or the Secretary of the Interior upon availability of program funding at FHWA.”
FHWA proposes to refer “non-BIA/non-tribally owned TTF bridges” instead of “non-BIA owned IRR bridges.” Also, FHWA proposes to modify the first sentence of the section to remove language regarding “trust responsibilities,” as this section pertains to priority of project selection.
FHWA proposes to refer to “FHWA TTP TIP” instead of “TTP TIP.” Also, FHWA proposes to add a statement that TTF bridge projects included in the TTP TIP that are not fiscally constrained may still be included as a list of projects dependent upon the availability of additional resources also known as an “illustrative list.”
FHWA proposes to refer “non-BIA/non-tribally owned TTF bridges” instead of “non-BIA owned IRR bridges.”
FHWA is considering an adjustment to the funding limits for PE in paragraph (a) and for PE and construction in paragraph (b). The existing funding limits established by the 2008 final rule have not kept pace with increased costs in the last 15 years and adjustment may be necessary to allow increased flexibility. FHWA specifically requests comments on whether these amounts should be adjusted, the extent of any needed adjustment, and the experience of stakeholders in navigating these funding limitations. Data justifying commenter recommendations is specifically requested.
FHWA proposes to add “from the Highway Trust Fund” as the funds described in this section subject to August Redistribution for any unobligated funds.
The existing regulation cites a number of maintenance activities as examples of ineligible uses of IRRBP funds. FHWA proposes to add the modifier “routine” to bridge maintenance repairs on this list of ineligible uses of TTFBP funds.
FHWA proposes to add County, City, and Township TTF bridges as eligible for funding under the TTFBP if those bridges are eligible Tribal transportation facilities.
In paragraph (a), FHWA proposes to add “New” for the design standards to be used for new bridges.
FHWA proposes to add “in-service” to refer the inspection to in-service TTF bridges. Also, FHWA proposes to change the section references to the BIA regulations codified at 25 CFR part 170
FHWA proposes to delete this section because it is not relevant to the purpose of this regulation as stated in § 661.1, to prescribe policies for project selection and fund allocation procedures for administering the TTFBP.
FHWA proposes to reference 25 CFR 170.114(a)(1) which generally sets forth health and safety restrictions. Also, because of the elimination of § 661.57 of the existing regulation, FHWA proposes to change this section number from § 661.59 to § 661.57.
All comments received before the close of business on the comment closing date indicated above will be considered and will be available for examination in the docket at the above address. Comments received after the comment closing date will be filed in the docket and will be considered to the extent practicable. In addition to late comments, FHWA will also continue to file relevant information in the docket as it becomes available after the comment period closing date, and interested persons should continue to examine the docket for new material. A final rule may be published at any time after the close of the comment period.
The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order (E.O.) 12866. Accordingly, OMB has not reviewed it. This action complies with E.O.s 12866 and 13563 to improve regulation. It is anticipated that the economic impact of this rulemaking would be minimal and that the benefits would outweigh the costs. The proposed changes are largely administrative and are expected to provide clarification of the existing regulations, including by removing outdated references. While it is not possible to quantify potential costs and benefits, FHWA expects that by making the terminology used in the TTFBP regulations consistent with that used in the Federal-aid highway program, the proposed changes will reduce confusion and facilitate implementation of the TTFBP. The proposed changes would not adversely affect, in a material way, any sector of the economy. In addition, these changes would not interfere with any action taken or planned by another agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required.
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612), FHWA has evaluated the effects of this proposed action on small entities and has determined that the proposed action would not have a significant economic impact on a substantial number of small entities. This proposed action would amend the existing regulations pursuant to Section 1119 of MAP-21, Section 1118 of the FAST Act, and Sections 11118, 14004, and Division J of the BIL, and would not fundamentally alter the funding available for the replacement or rehabilitation of TTF bridges in poor condition. For these reasons, FHWA certifies that this action would not have a significant economic impact on a substantial number of small entities.
This proposed rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). This proposed rule would not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $155 million or more in any one year (2 U.S.C. 1532). In addition, the definition of “Federal mandate” in the Unfunded Mandates Reform Act excludes financial assistance of the type in which State, local, or Tribal governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal Government. The Federal-aid highway program permits this type of flexibility. Further, in compliance with the Unfunded Mandates Reform Act of 1995, FHWA will evaluate any regulatory action that might be proposed in subsequent stages of the proceeding to assess the effects on State, local, Tribal governments, and the private sector.
FHWA has analyzed this NPRM in accordance with the principles and criteria contained in E.O. 13132. FHWA has determined that this action would not have sufficient federalism implications to warrant the preparation of a federalism assessment. FHWA has also determined that this action would not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.
The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program. Local entities should refer to the Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction, for further information.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501,
FHWA has analyzed this action for the purpose of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321
This NPRM is largely technical and non-substantive. However, FHWA and BIA met with approximately 80 federally recognized Tribes at the National Transportation in Indian Country Conference (NTICC) in Big Sky, Montana, on September 18, 2019, and at the BIA Providers Conference in Anchorage, Alaska, on December 4,
As an update to the NPRM to include the BIL revisions, several appropriate meetings and consultations with the Tribal Governments were held again in 2022 about the TTFBP and the NPRM. The following meetings with the Tribes were held:
1. Inter Tribal Council of Arizona Virtual Meeting, March 10, 2022.
2. BIA Alaska Provider's Conference Virtual Meeting, April 6, 2022.
3. Tribal Transportation Program Coordinating Committee (TTPCC) Meeting in Albuquerque, New Mexico, May 17, 2022.
4. Intertribal Transportation Association (ITA) Virtual Meeting, June 29, 2022.
5. United South and Eastern Tribes Virtual Meeting, July 19, 2022.
6. TTPCC Meeting in Lewiston, Idaho, August 9, 2022.
7. NTICC Meeting in Louisville, Kentucky, August 25, 2022.
8. BIA Alaska Provider's Conference in Anchorage, Alaska, November 30, 2022.
9. ITA Meeting in Las Vegas, Nevada, December 7, 2022.
FHWA and BIA will continue to discuss the proposed rule with the Tribal Governments and the TTPCC. The TTPCC is the committee established by Federal regulations at 25 CFR 170.135 to provide input and recommendations on the TTP to FHWA and BIA. It helps to develop the TTP policies and procedures, and also supplements Government-to-Government consultation by coordinating and obtaining input from Tribes, BIA, and FHWA. The TTPCC consists of 2 representatives from each of the 12 BIA regions, along with 2 non-voting Federal representatives (one each from BIA and FHWA).
Consistent with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, the FHWA will hold four public information, education, and consultation meetings during the public comment period to explain the rule, answer questions, and take oral testimony. While a court reporter will document these meetings, attendees are encouraged to submit written public comments. Three meetings will be held in or near Indian country at the locations listed below and a fourth meeting will be held virtually. Additional information on the meetings may be found at
1. April 4th, 2023, 2-3 p.m. EST, Virtual Listening Session by Webinar,
2. April 20th, 2023, 9-11 a.m. MDT, Department of the Interior University, National Indian Programs Training Center, Albuquerque, NM.
3. May 17th, 2023, 9 -11 a.m. CST, Great Northern Jerome Hill Theater, St. Paul, MN.
4. May 18th, 2023, 2- 4 p.m. PDT, Northwest Region Transportation Symposium, Northern Quest Resort and Casino, Airway Heights, WA.
FHWA will fully consider Tribal views in the development of the final rule in this matter.
E.O. 12898 requires that each Federal Agency make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low-income populations. FHWA has determined that this proposed rule does not raise any environmental justice issues.
An RIN is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in spring and fall of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.
Bridges, Highways and roads, Indians.
Issued under authority delegated in 49 CFR 1.81, 1.84, and 1.85 on:
In consideration of the foregoing, FHWA proposes to revise part 661 of title 23, Code of Federal Regulations to read as follows:
23 U.S.C. 120(j) and (k), 202, and 315; 49 CFR 1.81, 1.84, 1.85, 23 CFR 490 Subpart D.
The purpose of this regulation is to prescribe policies for project selection and fund allocation procedures for administering the TTFBP.
Tribes and Tribal Consortiums must comply with this regulation in applying for TTFBP funds for planning, design, engineering, pre-construction, construction, and inspection of new or replacement TTF bridges classified as in poor condition, having low load capacity, or needing geometric improvements.
The following definitions apply to this regulation:
The TTFBP, as established under 23 U.S.C. 202(d), is a nationwide priority program for improving TTF bridges classified as in poor condition, having low load capacity, or needing geometric improvements.
The funding source and amount is specified by law, which is subject to change. Due to the complex nature of the funding for the TTFBP, please refer to the applicable statute and applicable FHWA guidance, which can be found on the FHWA's TTFBP website.
TTFBP funds are authorized at the start of each fiscal year but are subject to Office of Management and Budget apportionment before they become available to FHWA for further distribution.
TTFBP funds for each fiscal year are available for obligation for the year authorized plus 3 years (a total of 4 years).
TTFBP funds can be used: (a) to carry out any planning, design, engineering, preconstruction, construction, and inspection of new or replacement TTF bridges;
(b) to replace, rehabilitate, seismically retrofit, paint, apply calcium magnesium acetate, sodium acetate/formate, or other environmentally acceptable, minimally corrosive anti-icing and deicing composition; or
(c) to implement any countermeasure for TTF bridges classified as in poor condition, having a low load capacity, or needing geometric improvements, including multiple-pipe culverts; or
(d) to demolish the old bridge if a bridge is replaced under the TTFBP.
(a) For bridge replacement or rehabilitation, TTF bridges are required to meet the following:
(1) have an opening of 20 feet or more;
(2) be classified as a Tribal transportation facility;
(3) be classified as in poor condition, have low load capacity, or need highway geometric improvements;
(4) be recorded in the NBI maintained by FHWA.
(b) For new bridge construction, TTF bridges are required to meet the following:
(1) be classified as a Tribal transportation facility;
(2) be a public bridge with opening of 20 feet or more, and recorded in the NBI after project completion.
To be eligible for replacement, a TTF bridge must be in poor condition, have low load capacity, or need highway geometric improvements.
To be eligible for rehabilitation, a TTF bridge must be in poor or fair condition, have low load capacity, or need highway geometric improvements.
(a) All projects will be programmed for funding after a completed application package is received and
(b) All projects will be ranked and prioritized based on the following criteria:
(1) bridge condition with bridges in poor condition, having precedence over bridges in fair condition, and bridges in fair condition having precedence over bridges in good condition.
(2) low load capacity bridges based on Operating Rating;
(3) bridges on school bus routes;
(4) bypass detour length;
(5) annual average daily traffic; and
(6) annual average daily truck traffic.
(c) Queues will carryover from fiscal year to fiscal year as made necessary by the amount of annual funding made available.
(d) TTF bridges will be classified as good, fair, or poor based on the following criteria:
(1)
(2)
(3)
(a) A complete application package for PE consists of the following:
(1) the certification checklist,
(2) Tribal Transportation Program (TTP) transportation improvement program (TIP),
(3) project scope of work,
(4) detailed cost for PE,
(5) NBI data, and
(6) an acknowledgment by the Tribe of the project specific funding requirements and that any excess funds will be returned to FHWA for further distribution.
(b) For non-BIA/non-tribally owned TTF bridges, the application package must also include a Tribal resolution supporting the project and identification of the required minimum 20 percent local funding match.
(c) Incomplete application packages will be disapproved and returned for revision and resubmission along with an explanation providing the reason for disapproval.
(d) The TTF bridge projects for PE will be placed in the queue and determined as eligible for funding after receipt by FHWA of a complete application package.
(e) Funding for the approved eligible projects on the queues will be made available to the Tribes, under a TTP Program agreement between FHWA and a Tribal Government or Consortium or the Secretary of the Interior upon availability of program funding at FHWA.
(a) A complete application package for construction consists of the following:
(1) a copy of the approved PS&E,
(2) the certification checklist,
(3) NBI data,
(4) the TTP TIP,
(5) all environmental and archeological clearances and complete grants of public rights-of-way that must be acquired prior to submittal of the construction application package, and
(6) an acknowledgment by the Tribe of the project specific funding requirements and that any excess funds will be returned to FHWA for further distribution.
(b) For non-BIA/non-tribally owned TTF bridges, the application package must also include a copy of a letter from the bridge's owner approving the project and its PS&E, a Tribal resolution supporting the project, and identification of the required minimum 20 percent local funding match.
(c) Incomplete application packages will be disapproved and returned for revision and resubmission along with an explanation providing the reason for disapproval.
(d) The TTF bridge projects for construction will be placed in the queue and determined as eligible for funding after receipt by FHWA of a complete application package.
(e) Funding for the approved eligible projects in the queues will be made available to the Tribes, under a TTP Program Agreement between FHWA and a Tribal Government or Consortium, or the Secretary of the Interior upon availability of program funding at FHWA.
Primary consideration will be given to eligible projects on BIA and tribally owned TTF bridges. A smaller percentage of available funds will be set aside for non-BIA/non-tribally owned TTF bridges, since States and counties have access to Federal-aid and other funding to design, replace, and rehabilitate their bridges.
The program policy will be to maximize the number of TTF bridges participating in the TTFBP in a given fiscal year regardless of ownership.
Yes. All TTF bridge projects must be listed on an approved FHWA TTP TIP. TTF bridge projects included in the TTP TIP that are not fiscally constrained may still be included as a list of projects dependent upon the availability of additional resources, also known as an “illustrative list.”
Up to 15 percent of the funding made available in any fiscal year will be eligible for PE. The remaining funding in any fiscal year will be available for construction.
(a) Up to 80 percent of the available funding made available for PE and construction in any fiscal year will be eligible for use on BIA and tribally owned TTF bridges. The remaining funding in any fiscal year will be made available for PE and construction for use on non-BIA/non-tribally owned TTF bridges.
(b) At various times during the fiscal year, FHWA will review the projects awaiting funding and may shift funds between BIA and tribally owned, and non-BIA/non-tribally owned bridge projects to maximize the number of projects funded and the overall effectiveness of the program.
The following funding provisions apply in administration of the TTFBP:
(a) An eligible BIA/tribally owned TTF bridge is eligible for 100 percent TTFBP funding, with a $150,000 maximum limit for PE.
(b) An eligible non-BIA/non-tribally owned TTF bridge is eligible for up to 80 percent TTFBP funding, with a $150,000 maximum limit for PE and
(c) Requests for additional funds above the referenced thresholds may be submitted along with proper justification to FHWA for consideration. The request will be considered on a case-by-case basis. There is no guarantee for the approval of the request for additional funds.
(a) A request for additional TTFBP funds for cost overruns on a specific bridge project must be submitted to Bureau of Indian Affairs Division of Transportation (BIADOT) and FHWA for approval. The written submission must include a justification, an explanation as to why the overrun occurred, and the amount of additional funding required with supporting cost data. If approved by FHWA and BIADOT, the request will be placed at the top of the appropriate queue (with a contract modification request having a higher priority than a request for additional funds for a project award) and funding may be provided if available.
(b) Project cost overruns may also be funded out of the Tribe's regular TTP construction funding.
Since the funding is project specific, once a bridge design or construction project has been completed under this program, any excess or surplus funding is returned to FHWA for use on additional approved TTF bridge projects.
Yes. A Tribe can use other sources of funds, including TTP construction funds, on a project that has been approved for funding and placed on the queue and then be reimbursed when TTFBP funds become available. If TTP construction funds are used for this purpose, the funds must be identified on an FHWA approved TTP TIP prior to their expenditure.
The TTFBP funds from the Highway Trust Fund (HTF) provided to a project that cannot be obligated by the end of the fiscal year are to be returned to FHWA during August redistribution. The returned funds will be re-allocated to the BIA the following fiscal year after FHWA receives and accepts a formal request for the funds from BIA, which includes a justification for the amounts requested and the reason for the failure of the prior year obligation.
No. Routine bridge maintenance repairs,
Yes. Interstate, State Highway, County, City, Township, and Toll Road TTF bridges are eligible for funding as described in § 661.37(b).
Yes, costs associated with approach roadway work, as defined in § 661.5 are eligible. Long approach fills, causeways, connecting roadways, interchanges, ramps, and other extensive earth structures, when constructed beyond an attainable touchdown point, are not eligible uses of TTFBP funds.
(a) New and Replacement—New and replacement structure must meet the current geometric, construction and structural standards required for the types and volumes of projected traffic on the facility over its design life consistent with 25 CFR part 170, subpart D, Appendix B and 23 CFR part 625.
(b) Rehabilitation—Bridges to be rehabilitated, at a minimum, should conform to the standards of 23 CFR part 625, Design Standards for Federal-aid Highways, for the class of highway on which the bridge is a part.
The BIA and tribally owned in-service TTF bridges are inspected in accordance with 25 CFR 170.513-170.514.
The restrictions set forth in 25 CFR 170.114(a)(1) shall apply.
Bureau of Ocean Energy Management, Interior.
Notice of proposed rulemaking; extension of public comment period.
We, the Bureau of Ocean Energy Management (BOEM), are extending the public comment period on our notice of proposed rulemaking (NPRM) titled “Renewable Energy Modernization Rule” by 30 days. Comments previously submitted need not be resubmitted and will be fully considered.
•
•
Kelley Spence, Office of Regulations, BOEM, at telephone number 984-298-7345 or email address
On January 30, 2023 (88 FR 5968), we published the Renewable Energy Modernization Rule NPRM which contained reforms identified by the Department of the Interior and recommended by industry, including proposals for incremental funding of decommissioning accounts; more flexible geophysical and geotechnical survey submission requirements; streamlined approval of meteorological (met) buoys; revised project verification procedures; reform of BOEM's renewable energy auction process; and greater clarity regarding safety requirements. With this notice, we are extending the public comment period on the NPRM from March 31, 2023, to May 1, 2023.
You may submit your comments and materials by one of the methods listed in the
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard is proposing to establish a temporary safety zone for the Allegheny River at Mile Marker 0.25-0.8. This action is necessary to provide for the safety of life on these navigable waters during a drone show display. This proposed rulemaking would prohibit persons and vessels from being in the safety zone unless authorized by the Captain of the Port Pittsburgh or a designated representative. We invite your comments on this proposed rulemaking.
This proposed regulation would be effective from 9:30 p.m. through 11 p.m. on May 19, 2023. Comments and related material must be received by the Coast Guard on or before April 24, 2023.
You may submit comments identified by docket number USCG-2023-0210 using the Federal Decision-Making Portal at
If you have questions about this proposed rulemaking, call or email LTJG Eyobe Mills, Marine Safety Unit Pittsburgh, U.S. Coast Guard; at telephone 412-221-0807 ext. 225, email
On March 2, 2023, the Pittsburgh Pirates notified the Coast Guard that it will be conducting a drone show display from 9:30 p.m. through 11 p.m. on May 19, 2023. The drone show will be conducted approximately 100 feet toward the Allegheny River. Hazards from the drone show displays include dangerous projectiles and falling debris. The Captain of the Port Pittsburgh (COTP) has determined that potential hazards associated with the drone show safety concern for those inside the safety zone.
The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within the safety zone before, during, and after the scheduled event. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034.
The COTP is proposing to establish a safety zone from 9:30 p.m. to 11 p.m. on May 19, 2023. The safety zone would cover all navigable waters on the Allegheny River from Miles 0.25 to Mile 0.8. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 10 p.m. through 11 p.m. drone show display. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, 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 NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on size, location, and duration of the temporary safety zone. This safety zone impacts 0.55 miles stretch of the Allegheny River for a short amount of time of 1.5 hours on one evening. Vessel traffic will be informed about the safety zone through local notice to mariners. Moreover, the Coast Guard will issue Local Notice to Marines, Broadcast Notice to Mariner via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission from the COTP to transit the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the temporary safety zone may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132 (Federalism), if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please call or email the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the potential effects of this proposed rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a temporary safety zone lasting 1.5 hours that would prohibit entry within Allegheny River from mile 0.25 to mile 0.8. Normally such actions are categorically excluded from further review under paragraph L60a of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A preliminary Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
We view public participation as essential to effective rulemaking and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We review all comments received, but we will only post comments that address the topic of the proposed rule. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive.
Harbors, Marine Safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.
(a)
(b)
(c)
(1) Under the general safety zone regulations in subpart C of this part, you may not enter the safety zone described in paragraph (a) of this section unless authorized by the COTP or the COTP's designated representative.
(2) To seek permission to enter, contact the COTP or the COTP's representative by phone at 412-670-4288. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
(d)
Department of Veterans Affairs.
Proposed rule.
The Department of Veterans Affairs (VA) proposes to remove its regulations governing the National Practitioner Data Bank (NPDB). Instead, VA will rely on Department of Health and Human Services (HHS) regulations that govern the NPDB, a Memorandum of Understanding (MOU) between VA and HHS, and VA policy. This change will allow VA to more easily and effectively comply with HHS rules governing the NPDB.
Comments must be received on or before June 2, 2023.
Comments may be submitted through
Marianne Chick, MHA, Director, VHA Medical Staff Affairs (10E1F), Office of Quality Management, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, Phone (919) 474-3937. (This is not a toll-free number.)
The National Practitioner Data Bank (NPDB) was established by the Health Care Quality Improvement Act of 1986 (HCQIA), as amended (42 United States Code (U.S.C.) 11101
The HCQIA authorizes the NPDB to collect reports of adverse licensure actions against physicians, dentists, and other licensed independent practitioners (including revocations, suspensions, reprimands, censures, probations, and surrenders); adverse clinical privileges actions; adverse professional society membership actions against physicians and dentists; Drug Enforcement Administration (DEA) certification actions; Medicare/Medicaid exclusions; and medical malpractice payments (including settlement of medical malpractice claims) made for the benefit of any health care practitioner. Information under the HCQIA is reported by medical malpractice payers, State medical and dental boards, professional societies with formal peer review, and hospitals and other health care entities (such as health maintenance organizations). The NPDB reports are confidential and therefore, not accessible by the public. Rather, health care entities that have formal peer review processes and provide health care services, State medical or dental boards, and other health care practitioner State boards have access to this data system.
On October 17, 1989, HHS finalized and published the NPDB regulations at 45 CFR part 60. See 54 FR 42722. Those regulations set forth the criteria and procedures for information to be collected in and released from the NPDB, in accordance with the requirements of HCQIA. The NPDB began collecting reports on September 1,1990. See 55 FR 31239 (August 1, 1990).
VA and HHS entered into a MOU as required by 42 U.S.C. 11152(b). This MOU was necessary because HCQIA Title IV did not include federal agencies in its reporting and querying requirements. Moreover, as a Federal agency, VA is unable to comply with certain provisions of the HHS regulations regarding reporting procedures and requirements for reporting medical malpractice payments and clinical privileges because certain provisions are governed by the MOU as well as by VA specific policies and procedures.
For instance, consistent with the Federal Tort Claims Act (28 U.S.C. 1346(b), 2671-2680), Federal District Courts have exclusive jurisdiction over civil actions on claims against the United States, for money damages, due to personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of their office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. This includes medical malpractice claims filed against a VA medical facility or a VA health care provider. The beneficiary cannot sue the facility or the provider directly but must file the claim against the United States Government. The Federal government assumes responsibility for costs related to a claim resulting from the performance of a medical, surgical, dental, or related function.
Therefore, the MOU addresses reporting payments made by VA for medical malpractice claims, including settlements, made on behalf of a VA health care provider. The MOU includes an agreement that VA will identify the licensed practitioner for whose benefit the payment was made. The MOU also addresses VA's obligation to report: (1) certain actions to State licensing boards; (2) adverse clinical privileging actions against all privileged providers; and (3) actions under Section 1128E of the Social Security Act, which is described in more detail below.
On October 28, 1991, VA published regulations at 38 CFR part 46 to formalize and interpret the provisions of the MOU. 56 FR 55462. On May 23, 2002, VA subsequently amended this regulation. 67 FR 19678. This amendment reflected changes in VA's internal processes.
Section 1921 of the Social Security Act (42 U.S.C. 1396r-2), as amended by section 5(b) of the Medicare and Medicaid Patient and Program Protection Act of 1987, and the Omnibus Budget Reconciliation Act of 1990, Public Law 101-508, expanded the State requirements under the NPDB. Each State is required to adopt a system of reporting to the Secretary of HHS for the following actions: (1) adverse licensure or certification actions taken against health care practitioners, health care entities, providers, and suppliers; and (2) certain final adverse actions taken by State law and fraud enforcement agencies against health care practitioners, providers, and suppliers. On January 28, 2010, HHS updated its NPDB regulations to comply with Section 1921 of the Social Security Act. See 75 FR 4656. The NPDB began collecting and disclosing section 1921 information on March 1, 2010. 75 FR 4656 (January 28, 2010).
In 1996, the Health Insurance Portability and Accountability Act of 1996, (42 U.S.C. 1320a-7e) added section 1128E to the Social Security Act, which directed HHS to establish and maintain a national health care fraud and abuse data collection program for the reporting and disclosing of certain final adverse actions taken by Federal agencies and health plans against health care practitioners, providers, or suppliers. This data was previously collected by the Healthcare Integrity and Protection Data Bank (HIPDB). The HIPDB began collecting reports in November 1999, but as of May 6, 2013, this collection is now included in the NPDB.
On April 5, 2015, HHS amended 45 CFR 60.3 to include VA as a Federal government agency in NPDB reporting requirements. See 78 FR 20473, 20485. We note that the recognition of VA as a Federal government agency does not preclude the need for an MOU between VA and HHS to address circumstances that are not required by the HHS regulations as mentioned above.
VA has determined, in consultation with HHS, that its NPDB regulations at 38 CFR part 46 should be removed, and that VA should instead rely on HHS regulations at 45 CFR part 60 for NPDB reporting, supplemented with a MOU with HHS and VA policy to address NPDB compliance on issues involving the delivery of health care by a federal agency. VA has determined that maintaining separate NPDB rulemaking is problematic. VA's regulations are not comprehensive and therefore, it is not always clear to VA health care professionals, which requirements are applicable.
Since 38 CFR part 46 was drafted to formalize the MOU with HHS, it did not encompass all of VA's required and permissive reporting requirements. For example, additional amendments have been made to the HHS NPDB regulations to include additional reporting requirements that are applicable to VA such as 45 CFR 60.15 and 60.16 78. FR 20473 (April 5, 2013). These amendments require the reporting of exclusions from participation in Federal or State health care programs and other adjudicated actions or decisions. Although required, VA's regulations at 38 CFR part 46 do not explicitly address this requirement. Also, part 46 definitions at 38 CFR 46.1 are not wholly consistent with those found in 45 CFR 60.3. Further, HHS NPDB reporting requirements allow for voluntarily reporting of adverse actions taken against clinical privileges by other health care practitioners. 45 CFR 60.12(a)(2). However, VA did not include this voluntary reporting requirement in its regulation which has precluded it from reporting actions by other health care practitioners. These inconsistencies create confusion and place self-imposed limitations on VA.
In addition, when HHS amends 45 CFR part 60, VA is not able to amend 38 CFR part 46 until after HHS publishes a final rule. VA's NPDB regulation could be inconsistent with HHS's for a significant interim period. This problem is avoided if VA relies on 45 CFR part 60 as guidance on NPDB
We note that VA is the only Federal agency providing health care to eligible beneficiaries that published regulations on NPDB compliance. The Department of Defense has not published regulations on NPDB, but instead cites to 45 CFR part 60 as authority and issued agency policy to implement the NPDB reporting requirements for the component armed services. Likewise, the U.S. Public Health Service and Indian Health Service also issued policies implementing the NPDB reporting requirements.
The proposed removal of 38 CFR part 46 will not obviate VA's reporting requirements nor will it alter how malpractice is handled for VA practitioners. Rather we believe relying on 45 CFR part 60, supplemented by an MOU with HHS and VA policy, will reduce confusion and allow VA to adhere to all mandatory and permissive reporting requirements by eliminating any inconsistency between HHS and VA regulations.
Based on the foregoing rationale, VA proposes removing part 46 and marking it as reserved for future use and relying on HHS regulations at 45 CFR part 60 for NPDB reporting requirements, supplemented by an MOU between HHS and VA policy.
Executive Orders 12866 and 13563 directs 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 Oder 12866. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at
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). This proposed rule would only affect individuals who are VA employees or independent contractors acting on behalf of VA and will not directly affect 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 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. 2 U.S.C. 1532. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.
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 Assistance listing numbers and titles for the programs affected by this document are: 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based Primary Care; 64.039 CHAMPVA; 64.040 VHA Inpatient Medicine; 64.041 VHA Outpatient Specialty Care; 64.042 VHA Inpatient Surgery; 64.043 VHA Mental Health Residential; 64.044 VHA Home Care; 64.045 VHA Outpatient Ancillary Services; 64.046 VHA Inpatient Psychiatry; 64.047 VHA Primary Care; 64.048 VHA Mental Health Clinics; 64.049 VHA Community Living Center; and 64.050 VHA Diagnostic Care.
Health professions, Reporting and recordkeeping requirements.
Denis McDonough, Secretary of Veterans Affairs, approved this document on March 27, 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 set forth in the preamble, we propose to amend 38 CFR part 46 as follows:
Bureau of Land Management, Interior.
Proposed rule.
The Bureau of Land Management (BLM) proposes new regulations that, pursuant to the Federal Land Policy and Management Act of 1976 (FLPMA), as amended, and other relevant authorities, would advance the BLM's mission to manage the public lands for multiple use and sustained yield by prioritizing the health and resilience of ecosystems across those lands. To ensure that health and resilience, the proposed rule provides that the BLM will protect intact landscapes, restore degraded habitat, and make wise management decisions based on science and data. To support these activities, the proposed rule would apply land health standards to all BLM-managed public lands and uses, clarify that conservation is a “use” within FLPMA's multiple-use framework, and revise existing regulations to better meet FLPMA's requirement that the BLM prioritize designating and protecting Areas of Critical Environmental Concern (ACECs). The proposed rule would add
Please submit comments on this proposed rule on or before June 20, 2023 or 15 days after the last public meeting. The BLM is not obligated to consider comments made after this date in making its decision on the final rule.
Mail, personal, or messenger delivery: U.S. Department of the Interior, Director (630), Bureau of Land Management, 1849 C St. NW, Room 5646, Washington, DC 20240, Attention: 1004-AE92.
Stephanie Miller, Deputy Division Chief for Wildlife Conservation, at 202-317-0086, for information relating to the BLM's national wildlife program or the substance of this proposed rule. For information on procedural matters or the rulemaking process, you may contact Chandra Little, Regulatory Analyst for the Office of Regulatory Affairs, at 202-912-7403. Individuals in the United States who are deaf, deafblind, or hard of hearing, or who have a speech disability, may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States.
Under FLPMA, the principles of multiple use and sustained yield govern the BLM's stewardship of public lands, unless otherwise provided by law. The BLM's ability to manage for multiple use and sustained yield of public lands depends on the resilience of ecosystems across those lands—that is, the health of the ecosystems and the ability of the lands to deliver associated services, such as clean air and water, food and fiber, renewable energy, and wildlife habitat. Ensuring resilient ecosystems has become imperative, as public lands are increasingly degraded and fragmented due to adverse impacts from climate change and a significant increase in authorized use. To ensure the resilience of renewable resources on public lands for future generations, the proposed rule promotes “conservation” and defines that term to include both protection and restoration activities. It also advances tools and processes to enable wise management decisions based on science and data.
The proposed rule provides a framework to protect intact landscapes, restore degraded habitat, and ensure wise decisionmaking in planning, permitting, and programs, by identifying best practices to manage lands and waters to achieve desired conditions. To do so, the proposed rule applies the fundamentals of land health and related standards and guidelines to all BLM-managed public lands and uses; current BLM policy limits their application to grazing authorizations. In implementing the fundamentals of land health, the proposed rule codifies the need across BLM programs to use high-quality information to prepare land health assessments and evaluations and make determinations about land health condition. The proposed rule requires meaningful consultation during decisionmaking processes with Tribes and Alaska Native Corporations on issues that affect their interests, including the use of Indigenous Knowledge.
To support efforts to protect and restore public lands, the proposed rule clarifies that conservation is a use on par with other uses of the public lands under FLPMA's multiple-use and sustained-yield framework. Consistent with how the BLM promotes and administers other uses, the proposed rule establishes a durable mechanism, conservation leases, to promote both protection and restoration on the public lands, while providing opportunities for engaging the public in the management of public lands for this purpose. The proposed rule does not prioritize conservation above other uses; it puts conservation on an equal footing with other uses, consistent with the plain language of FLPMA. Finally, the proposed rule would amend the existing ACEC regulations to better ensure that the BLM is meeting FLPMA's command to give priority to the designation and protection of ACECs. The proposed regulatory changes would emphasize ACECs as the principal designation for protecting important natural, cultural, and scenic resources, and establish a more comprehensive framework for the BLM to identify, evaluate, and consider special management attention for ACECs in land use planning. The proposed rule emphasizes the role of ACECs in contributing to ecosystem resilience by providing for ACEC designation to protect landscape intactness and habitat connectivity.
If you wish to comment on this proposed rule, you may submit your comments to the BLM by mail, personal or messenger delivery during regular hours (7:45 a.m. to 4:15 p.m.), Monday through Friday, except holidays, or through the
Please make your comments on the proposed rule as specific as possible, limit them to issues pertinent to the proposed rule, explain the reason for any changes you recommend, and include any supporting documentation. Where possible, your comments should reference the specific section or paragraph of the proposal that you are addressing. The BLM is not obligated to consider or include in the Administrative Record for the final rule comments that we receive after the close of the comment period (see
Comments, including names and street addresses of respondents, will be available for public review at the address listed under the
As explained below, this proposed rule includes revisions to information-collection requirements that must be approved by the Office of Management
The BLM manages more than 245 million acres of public lands, roughly one-tenth of the country. The BLM's stewardship of these lands and resources is guided by FLPMA, unless otherwise provided by law. FLPMA provides the BLM with ample authority and direction to conserve ecosystems and other resources and values across the public lands. Section 102(a)(8) of FLPMA states the policy of the United States that “the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use” (43 U.S.C. 1701(a)(8)). Each of these services and values that FLPMA authorizes the BLM to safeguard emanates from functioning and productive native ecosystems that supply food, water, habitat, and other ecological necessities.
Furthermore, FLPMA requires that unless “public land has been dedicated to specific uses according to any other provisions of law,” the Secretary, through the BLM, must “manage the public lands under principles of multiple use and sustained yield” (43 U.S.C. 1732(a)). The term “sustained yield” means “the achievement and maintenance in perpetuity of a high-level annual or regular periodic output of the various renewable resources of the public lands consistent with multiple use” (43 U.S.C. 1702(h)). The BLM recognizes this need for ecosystems to continue to provide services and values when declaring, in its mission statement, its goal “to sustain the health, diversity, and productivity of public lands for the use and enjoyment of present and future generations.” (blm.gov (emphasis added); see also 43 U.S.C. 1702(c).) Without ensuring that native ecosystems are functioning and resilient, the agency risks failing on this commitment to the future.
The term “multiple use” means, among other things, “the management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people”; “the use of some land for less than all of the resources”; “a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values”; “harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment with consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output.” (43 U.S.C. 1702(c)). FLPMA's declaration of policy and definitions of “multiple use” and “sustained yield” reveal that conservation is a use on par with other uses under FLPMA. The procedural, action-forcing mechanisms in this proposed rule grow out of that understanding of multiple use and sustained yield.
Public lands are increasingly degraded and fragmented. Increased disturbances such as invasive species, drought, and wildfire, and increased habitat fragmentation are all impacting the health and resilience of public lands and making it more challenging to support multiple use and the sustained yield of renewable resources. Climate change is creating new risks and exacerbating existing vulnerabilities.
To address these threats, it is imperative for the BLM to steward public lands to maintain functioning and productive ecosystems and work to ensure their resilience, that is, to ensure that ecosystems and their components can absorb, or recover from, the effects of disturbances and environmental change. This proposed rule would pursue that goal through protection, restoration, or improvement of essential ecological structures and functions. The resilience of public lands will determine the BLM's ability to effectively manage for multiple use and sustained yield over the long term. The proposed rule, in acknowledging this reality, identifies and requires practices to ensure that the BLM manages the public lands to allow multiple uses while retaining and building resilience to achieve sustained yield of renewable resources. This proposed rule is designed to ensure that the nation's public lands continue to provide minerals, energy, forage, timber, and recreational opportunities, as well as habitat, protected water supplies, and landscapes that resist and recover from drought, wildfire, and other disturbances. As intact landscapes play a central role in maintaining the resilience of an ecosystem, the proposed rule emphasizes protecting those public lands with remaining intact, native landscapes and restoring others.
The proposed rule recognizes that the BLM has three primary ways to manage for resilient public lands: (1) protection of intact, native habitats; (2) restoration of degraded habitats; and (3) informed decisionmaking, primarily in plans, programs, and permits. The BLM protects intact landscapes using various tools, including designation of ACECs. The proposed rule uses the term “conservation” in a broader sense, however, to encompass both protection and restoration actions. Thus, it is not limited to lands allocated to preservation, but applies to all BLM-managed public lands and programs. While BLM policy and guidance outlined in Manual Sections 6500, 6840, 5000, and 1740 encourage programs to implement conservation and ecosystem management, the BLM does not currently have regulations that promote conservation efforts for all resources. This proposed rule is intended to address this gap in the Bureau's regulations. The proposed rule would require the BLM to plan for and consider conservation as a use on par with other uses under FLPMA's multiple use framework and identify the practices that ensure conservation actions are effective in building resilient public lands. Conservation, in this proposed rule, includes management of renewable resources consistent with the fundamentals of land health (described below), designed to reach desired future conditions through protection, restoration, and other types of planning, permitting, and program decisionmaking.
The proposed rule addresses protection of intact, native landscapes. One of the principal tools the BLM has
The proposed rule also addresses restoration of degraded landscapes. It offers a new tool, conservation leases, that would allow the public to directly support durable protection and restoration efforts to build and maintain the resilience of public lands. These leases would be available to entities seeking to restore public lands or provide mitigation for a particular action. They would not override valid existing rights or preclude other, subsequent authorizations so long as those subsequent authorizations are compatible with the conservation use. The proposed rule would establish the process for applying for and granting conservation leases, terminating or suspending them, determining noncompliance, and setting bonding obligations. Conservation leases and ACECs could also provide opportunities for co-stewardship with federally recognized Tribes and additional protections for cultural resources.
Conservation leases would be issued for a term consistent with the time required to achieve their objective. Most conservation leases would be issued for a maximum of 10 years, which term would be extended if necessary to serve the purposes for which the lease was first issued. Any conservation lease issued for the purposes of providing compensatory mitigation would require a term commensurate with the impact it is offsetting.
Further, to ensure the BLM does not limit its ability to build resilient public lands when authorizing use, the proposed rule includes provisions related to mitigation (
To support conservation actions and decision making, the proposed rule applies the fundamentals of land health (taken verbatim from the existing fundamentals of rangeland health at 43 CFR 4180.1 (2005)) and related standards and guidelines to all renewable-resource management, instead of just to public-lands grazing. Broadening the applicability of the fundamentals of land health would ensure BLM programs will more formally and consistently consider the condition of public lands during decisionmaking processes. Renewable resources on public lands should meet the fundamentals of land health overall at the watershed scale. The proposed rule recognizes, however, that in determining which actions are required to achieve the land health standards and guidelines, the BLM must take into account current land uses, such as mining, energy production and transmission, and transportation, as well as other applicable law. The BLM welcomes comments on how applying the fundamentals of land health beyond lands allocated to grazing will interact with BLM's management of non-renewable resources.
To implement the fundamentals of land health, the proposed rule directs BLM programs to use high-quality information to prepare land health assessments and evaluations and make determinations about the causes of failing to achieve land health. Such information is derived largely from assessing, inventorying, and monitoring renewable resources, as well as Indigenous Knowledge. The resulting data provides the means for detecting trends in land health and can be used to make management decisions, implement adaptive strategies, and support conservation efforts to build ecosystem resilience.
To implement FLPMA's direction to “give priority to the designation and protection of areas of critical environmental concern,” the BLM follows regulatory requirements found at 43 CFR 1610.7-2 and policy instruction found in Manual Section 1613. The BLM currently inventories, evaluates, and designates ACECs requiring special management direction as part of the land use planning process. The BLM's land use planning process guides BLM resource management decisions in a manner that allows the BLM to respond to issues and to consider trade-offs among environmental, social, and economic values. Further, the planning process requires coordination, cooperation, and consultation, and provides other opportunities for public involvement that can foster relationships, build trust, and result in durable decisionmaking.
In the initial stages of the planning process, the BLM, through inventories and external nominations, identifies any potential new ACECs to evaluate for relevance, importance, and the need for special management attention. The BLM determines whether such special management attention is needed by evaluating alternatives in the land use plan and considering additional issues related to the management of the proposed ACEC, including public comments received during the planning process. Special management measures may also provide an opportunity for Tribal co-stewardship. In Approved Resource Management Plans, the BLM identifies all designated ACECs and provides the management direction necessary to protect the relevant and important values for which the ACECs were designated.
In more than 40 years of applying the procedures found at 43 CFR 1610.7-2 and in Manual Section 1613, the BLM has identified several needed revisions. Additionally, the BLM's procedures for considering and designating potential ACECs are currently partially described in regulation and partially described in agency policy. The proposed rule would codify these procedures in regulation, providing more cohesive direction and consistency to the agency's ACEC designation process. The proposed rule maintains the general process for inventorying, evaluating, designating, and managing ACECs, described here, but makes specific changes to clarify and improve that process.
As part of this rulemaking, the BLM proposes establishing procedures that require consideration of ecosystem resilience, landscape-level needs, and rapidly changing landscape conditions in designating and managing ACECs. The BLM may also revise the ACEC manual and develop an ACEC handbook to integrate the existing rule as well as the changes proposed in this rulemaking, if finalized, into policy. The BLM would thus provide additional guidance for how to incorporate ACECs into resource management decisions in a way that considers trade-offs among environmental, social, and economic values during land use planning.
The Federal Land Policy and Management Act of 1976, as amended, is the BLM's organic act; it establishes the agency's mission to manage public lands. FLPMA further establishes the policy of the United States that public lands be managed in a manner that recognizes the nation's need for natural resources from those lands, provides for outdoor recreation and other human uses, maintains habitat for fish and wildlife, preserves certain public lands in their natural condition, and protects the quality of the scientific, scenic, historical, ecological, environmental, water-resource, and archaeological values of the nation's lands (43 U.S.C. 1701).
FLPMA governs the BLM's management of the public lands and directs the BLM to manage such lands “under principles of multiple use and sustained yield” (except for lands where another law directs otherwise) (43 U.S.C. 1732(a)). Multiple use is defined as the management of the public lands and their various resource values so that they are utilized to the combination that will best meet the present and future needs of the American people; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; the use of some land for less than all of the resources; a combination of balanced and diverse resource uses that takes into account the long- term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values; and harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment with consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output. (43 U.S.C. 1702(c)). FLPMA also authorizes the Secretary to promulgate implementing regulations necessary “to carry out the purposes” of the Act (43 U.S.C. 1740). The rule proposed here under that authority would (1) define and regulate conservation use on the public lands in service of FLPMA's multiple-use and sustained-yield mandates; (2) provide for third party authorizations to use the public lands for conservation under FLPMA section 302(b) (43 U.S.C. 1732(b)); and (3) revise the existing regulations implementing FLPMA's direction in sections 201(a) and 202(c)(3) (43 U.S.C. 1711(a), 1712(c)(3)) that the BLM shall give priority to ACECs. (See also 43 U.S.C. 1701(a)(11) (“it is the policy of the United States that—regulations and plans for the protection of public land areas of critical environmental concern be promptly developed.”)
Section 2002 of the Omnibus Public Land Management Act of 2009 (16 U.S.C. 7202) legislatively established the National Landscape Conservation System (NLCS), to include public lands carrying certain executive or congressional designations and set parameters for the management of lands within the system. NLCS lands are subject to regulatory requirements like other BLM-managed public lands. The regulations proposed here define the term “conservation” in a way that is distinct from the use of the term in section 2002. Here, “conservation” is a shorthand for the direction in FLPMA's multiple-use and sustained-yield mandates to manage public lands for resilience and future productivity. “Conservation,” as the term is defined in these regulations, is part of the BLM's mission not only on lands within the NLCS, but on all lands subject to FLPMA's multiple-use and sustained-yield mandates. At the same time, these regulations also would support the BLM's execution of the statutory direction in section 2002 to “manage the [NLCS] in a manner that protects the values for which the components of the system were designated” (16 U.S.C. 7202(c)(2)).
The proposed rule responds to, and advances directives set forth in several Executive and Secretary's Orders and related policies and strategies. These directives call on the Department of the Interior (DOI), and the Federal Government more generally, to use landscape-scale, science-based, collaborative approaches to natural resource management. Recent Presidential and Secretarial directives also emphasize the importance of responding to, and mitigating the effects of, climate change. Executive Order 13990: Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis highlights the need to use science to reduce greenhouse gas emissions, bolster resilience to the impacts of climate change, and prioritize environmental justice. Executive Order 14008: Tackling the Climate Crisis at Home and Abroad calls for quick action to build resilience against the impacts of climate change, bolster adaptation, and increase resilience across all operations, programs, assets, and mission responsibilities with a focus on the most pressing climate vulnerabilities. Section 211 of Executive Order 14008, calls on Federal agencies to develop a Climate Action Plan. In 2021, the DOI completed that plan, which creates policy to confront and adapt to the challenges that climate change poses to the Department's mission, programs, operations, and personnel.
The Department will use the best available science to take concrete steps to adapt to and mitigate climate-change impacts on its resources. Secretary's Order 3399: Department-Wide Approach to the Climate Crisis and Restoring Transparency and Integrity to the Decision-Making Process establishes a Departmental Climate Task Force to prioritize the use of the best available science to evaluate the climate change impacts of Federal land uses. Multiple directives related to climate change also emphasize the importance of collaboration, science, and adaptive management as well as the need for landscape-scale approaches to resource management. The Departmental Manual chapter on climate-change policy (523 DM 1), issued on December 20, 2012, directs DOI bureaus and agencies to “promote landscape-scale, ecosystem-based management approaches to enhance the resilience and sustainability of linked human and natural systems.” The Department of the Interior Climate Action Plan and Climate Adaptation and Resilience Policy, issued on October 7, 2021, provides further guidance.
Executive Order 14072, Strengthening the Nation's Forests, Communities, and Local Economies, recognizes that healthy forests are “critical to the health, prosperity, and resilience of our communities.” It states a policy to pursue science-based, sustainable forest and land management; conserve America's mature and old-growth forests on Federal lands; invest in forest health and restoration; support indigenous traditional ecological knowledge and cultural and subsistence practices; honor Tribal treaty rights; and deploy climate-smart forestry practices and other nature-based solutions to improve the resilience of our lands, waters, wildlife, and communities in the face of increasing disturbances and chronic stress arising from climate impacts.
The Executive order (E.O.) calls for defining, identifying, and inventorying our nation's old and mature forests, then stewarding them for future generations to provide clean air and water, sustain plant and animal life, and respect their special importance to Tribal Nations. This proposed rule would advance all of these objectives.
This section describes the overall purpose for this proposed rule. It is designed to ensure healthy wildlife habitat, clean water, and ecosystem resilience so that our public lands can resist and recover from disturbances like drought and wildfire. It also aims to enhance mitigation options, establishing a regulatory framework for those seeking to use the public lands, while also ensuring that the public enjoys the benefits of mitigation measures. The proposed rule discusses the use of protection and restoration actions, as well as tools such as land health evaluations, inventory, assessment, and monitoring. Pursuant to Executive Order 14072, Strengthening the Nation's Forests, Communities, and Local Economies, and consistent with managing for multiple use and sustained yield, the BLM is working on various aspects of ensuring that forests on Federal lands, including old and mature forests, are managed to: promote their continued health and resilience; retain and enhance carbon storage; conserve biodiversity; mitigate the risk of wildfires; enhance climate resilience; enable subsistence and cultural uses; provide outdoor recreational opportunities; and promote sustainable local economic development. While there are ongoing inter-departmental efforts related to implementing the Executive Order, the BLM is also interested in public comments on whether there are opportunities for this rule to incorporate specific direction to conserve and improve the health and resilience of forests on BLM-managed lands. What additional or expanded provisions could address this issue in this rule? How might the BLM use this rule to foster ecosystem resilience of old and mature forests on BLM lands?
This section lists the six specific objectives of the proposed rulemaking. These objectives were discussed at length earlier in the preamble for this proposed rule.
This section identifies the authorities under which this proposed rule will be promulgated, which include the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701
This section provides new definitions for concepts such as conservation, resilient ecosystems, sustained yield, mitigation, and unnecessary or undue degradation, along with others used throughout the proposed rule text. These definitions apply only in 43 CFR part 6100.
The proposed rule would define the term “best management practices” as state-of-the-art, efficient, appropriate, and practicable measures for avoiding, minimizing, rectifying, reducing, compensating for, or eliminating impacts over time. This definition would provide clarity and consistency as the BLM authorizes restoration and compensatory mitigation actions under the proposed rule.
The proposed rule would define the term “casual use” so that, in reference to conservation leases, it would clarify that the existence of a conservation lease would not in and of itself preclude the public from accessing public lands for noncommercial activities such as recreation. Some public lands could be temporarily closed to public access for purposes authorized by conservation leases, such as restoration activities or habitat improvements. However, in general, public lands leased for conservation purposes under the proposed rule would continue to be open to public use.
The proposed rule would define “conservation” in the context of these regulations to mean maintaining resilient, functioning ecosystems by protecting or restoring natural habitats and ecological functions. The overarching purpose of the proposed rule is to promote the use of conservation to ensure ecosystem resilience, and in doing so the proposed rule would clarify conservation as a use within the BLM's multiple use framework, including in decisionmaking, authorization, and planning processes. The proposed rule would include a stated objective to promote conservation on public lands, and proposed subpart 6102 would outline principles, directives, management actions and tools—including establishing a new tool in conservation leases—to meet this objective and fulfill the purpose of the proposed rule. Because conservation is the foundational concept for the proposed regulations, the proposed definition would provide important guidance and clarity for the BLM to meet the spirit and intent of the proposed rule. Within the framework of the proposed rule, “protection” and “restoration” together constitute conservation.
The proposed rule would define the term “disturbance” to provide the BLM with guidance in identifying and assessing impacts to ecosystems, restoring affected public lands, and minimizing and mitigating future impacts. Identifying and mitigating disturbances and restoring ecosystems are important components of ensuring ecosystem resilience on public lands.
The proposed rule would define the term “effects” as the direct, indirect,
The proposed rule would define the term “high-quality information” so that its use would ensure that the best available scientific information underpins decisions and actions that would be implemented under the proposed rule to achieve ecosystem resilience. The proposed definition would also clarify that Indigenous Knowledge can be high-quality information that should be considered alongside other information that meets the standards for objectivity, utility, integrity, and quality set forth in Federal law and policy.
The proposed rule would define the terms “important,” “scarce,” and “sensitive” resources to provide clarity and consistency in BLM's implementation of mitigation requirements, including under the proposed rule.
The proposed rule would define the term “Indigenous Knowledge” to reflect the Department of the Interior's policies, responsibilities, and procedures to respect, and equitably promote the inclusion of, Indigenous Knowledge in the Department's decision making, resource management, program implementation, policy development, scientific research, and other actions.
The proposed rule would define the term “intact landscape” to guide the BLM with implementing direction. The proposed rule (§ 6102.1) would require the BLM to identify intact landscapes on public lands, manage certain landscapes to protect their intactness, and pursue strategies to protect and connect intact landscapes.
The proposed rule would define “land enhancement” to provide clarity for interpreting provisions of the proposed rule that would authorize the BLM to issue conservation leases for the purpose of facilitating land enhancement activities.
The proposed rule would define “landscape” to characterize a meaningful area of land and waters on which restoration, protection and other management actions will take place. Assessing how BLM's management can affect the functionality and resilience of ecosystems may require considering resources at the landscape scale.
The proposed rule would define “mitigation” consistent with the definition provided by the Council on Environmental Quality regulations (40 CFR 1508.20), which identify various ways to address adverse impacts to resources, including steps to avoid, minimize, and compensate for residual impacts. As a tool to achieve ecosystem resilience of public lands, the BLM will generally apply a mitigation hierarchy to address impacts to public land resources, seeking to avoid, then to minimize, and then to compensate for any residual impacts. This definition and the related provisions in this proposed rule supplement existing DOI policy, which among other things provides boundaries to ensure that compensatory mitigation is durable and effective.
The proposed rule would define the term “mitigation strategies” to identify documents that identify, evaluate, and communicate potential mitigation needs and mitigation measures in advance of anticipated public land uses.
The proposed rule would define the term “monitoring” to describe a critical suite of activities involving observation and data collection to evaluate (1) existing conditions, (2) the effects of management actions, or (3) the effectiveness of actions taken to meet management objectives. Management for ecosystem resilience requires the BLM to understand how proposed use activities impact resource condition at many scales. Monitoring is a critical component of BLM's Assessment, Inventory and Management (AIM) framework that provides a standardized strategy for assessing natural resource condition and trends on BLM public lands.
The proposed rule would define the term “permittee” to identify those persons with a valid permit, right-of-way grant, lease, or other land use authorization from the BLM. The proposed rule largely discusses “permittees” when identifying the responsibility of parties in the context of mitigation and in discussing the opportunities to rely on third parties in complying with mitigation requirements.
The proposed rule would define “protection” in the context of the overarching purpose of the rule, which is to promote the use of conservation measures to ensure ecosystem resilience of public lands. “Protection” is a critical component of conservation, alongside restoration, and describes acts or processes to preserve resources and keep them safe from degradation, damage, or destruction. The proposed rule (§ 6101.2) would include a stated objective to promote the protection of intact landscapes on public lands, as a critical means to achieve ecosystem resilience.
The proposed rule would define “public lands” in order to clarify the scope of the proposed rule and its intended application to all BLM-managed lands and uses. The proposed definition is the same as the definition of “public lands” that appears at § 6301.5.
The proposed rule would define “reclamation” to identify restoration practices intended to achieve an outcome that reflects project goals and objectives, such as site stabilization and revegetation. While “reclamation” is a part of a continuum of restoration practices, it contrasts with other actions that are specifically designed to recover ecosystems that have been degraded, damaged, or destroyed. Reclamation often involves initial practices that can prepare projects or sites for further restoration activities. The proposed rule (§ 6102.4-2) discusses reclamation in the context of bonding conservation leases to ensure lessees hold sufficient bond amounts to provide for the reclamation of the conservation lease area(s) and the restoration of any lands or surface waters adversely affected by conservation lease operations.
The proposed rule would define “resilient ecosystems” in the context of the rule's foundational precept that BLM's management of public lands on the basis of multiple use and sustained yield relies on resilient ecosystems. The purpose of the proposed rule is to promote the use of conservation to ensure that ecosystems on public lands can resist disturbance maintain and regain their function following environmental stressors such as drought and wildfire. The proposed rule identifies and requires the use of protection and restoration actions, as well as tools such as land health evaluations, inventory, assessment, and monitoring to ensure BLM is managing for resilient ecosystems.
The proposed rule would define “restoration” in the context of the overarching purpose of this proposed rule which is to promote the use of conservation to ensure the ecosystem resilience of public lands. “Restoration” is a critical component of conservation, alongside protection, and describes acts or processes of conservation that assist the recovery of an ecosystem that has been degraded, damaged, or destroyed. The BLM employs a variety of restoration approaches, including mitigation, remediation, revegetation, rehabilitation, and reclamation. The proposed rule (§ 6102.3) would direct the BLM to emphasize restoration across the public lands and requires the inclusion of a restoration plan in any new or revised Resource Management Plan.
The proposed rule would use the FLPMA definition of “sustained yield.”
The proposed rule would define “unnecessary or undue degradation” in the context of these regulations to mean “harm to land resources or values that is not needed to accomplish a use's goals or is excessive or disproportionate.” This proposed definition is consistent with BLM's affirmative obligation under FLPMA to take action to prevent unnecessary or undue degradation. The proposed rule would establish overarching principles for ecosystem resilience and would direct the BLM to implement those principles in part by preventing unnecessary or undue degradation in its decisionmaking.
The proposed rule relies upon express direction provided in FLPMA to manage public lands on the basis of multiple use and sustained yield, and it would establish the principle that the BLM must conserve renewable natural resources at a level that maintains or improves ecosystem resilience in order to achieve this mission.
Section 6101.5(d) in the proposed rule would direct authorized officers to implement principles of ecosystem resilience by recognizing conservation as a land use within the multiple use framework, including in decisionmaking, authorization, and planning processes; protecting and maintaining the fundamentals of land health; restoring and protecting intact public lands; applying the full mitigation hierarchy to address impacts to species, habitats, and ecosystems from land use authorizations; and preventing unnecessary or undue degradation.
The proposed rule would clarify that conservation is a use on par with other uses of public lands under FLPMA's multiple use framework. FLPMA directs the BLM to manage the public lands in a manner that protects the quality of ecological, wildlife, recreation, scenic, environmental, scientific, air, and water resources, among other resources and values, and that protects certain public lands in their natural condition. The BLM implements this mandate through land use plan designations, allocations, and other planning decisions that conserve public land resources and seek to balance conservation use with other uses such as energy development and recreation. The BLM also implements this mandate in other decisionmaking and management actions by promoting conservation use, limiting subsequent authorizations when incompatible with conservation use, and mitigating impacts to natural resources on public lands. The proposed rule would provide specific direction for implementing certain programs in a way that emphasizes conservation use and provide new tools and direction for managing conservation use to ensure ecosystem resilience on public lands.
Section 6102.1(a) of the proposed rule would identify the principles for protecting intact landscapes in the context of increased pressure and increased landscape vulnerability due to climate change and other disturbance. Section 6102.1(b) would call on authorized officers to prioritize protection of such landscapes.
Authorized officers would be required by § 6102.2(a) and (b) to identify and seek to maintain intact landscapes, including by utilizing available watershed condition classifications and other available data. During the resource management planning process, some tracts of public lands should be put into a conservation use, such as by appropriately designating or allocating the land, to maintain or improve ecosystem resilience. When determining, through planning, whether conservation use is appropriate in a given area, authorized officers would determine “which, if any” landscapes to manage to protect intactness, necessarily taking into account other potential uses in accordance with the BLM's multiple use management approach. (§ 6102.2(b)) In identifying the areas that are most suitable for management as intact landscapes, the BLM could work with communities to identify areas that the communities have targeted for strategic growth and development; managing those areas for intactness is less likely to be appropriate. Section 6102.2(c) would require authorized officers to prioritize acquisition of lands or interests in lands that would further protect and connect intact landscapes and functioning ecosystems, and § 6102.2(d) would direct the BLM to develop a national system for collecting and tracking disturbance data and to use those data to minimize disturbance and improve ecosystem resilience.
Restoration is the process of assisting the recovery of an ecosystem that has been degraded, damaged, or destroyed. The BLM employs a variety of restoration approaches, including mitigation, remediation, revegetation, rehabilitation, and reclamation. The proposed rule would direct the BLM to emphasize restoration across the public lands to enable achievement of its sustained yield mandate and would encourage active management to promote restoration when appropriate to achieve ecosystem resilience.
Section 6102.3-1 would direct authorized officers to identify priority landscapes for restoration at least every five years. Landscape prioritization is to be based on land health and watershed condition assessments, the likelihood that restoration efforts would succeed, partnership opportunities that would enable coordination across a broader landscape, benefits to local communities, and opportunities also to prevent unnecessary or undue degradation of the public lands.
The proposed rule would require authorized officers to include a restoration plan in any new or revised Resource Management Plan, which would have to address criteria set forth in § 6102.3-2(a). Included in the restoration plan would be actions that, under § 6102.3-2(b), would be implemented to achieve set goals and objectives; the actions would have to be performed at the appropriate spatial and temporal scale, and they would have to address the cause of degradation. Authorized offers would plan in 5-year increments, but of course the schedule could describe longer term goals and efforts. Actions would be coordinated with partners, and the BLM would use conservation leases issued under § 6102.4 for the purpose of restoring, managing, and monitoring priority landscapes. Locally appropriate best management practices would be implemented in accordance with § 6102.3-2(b)(5). Authorized officers would also be required to track progress toward achieving restoration goals and ensure restoration projects are consistent with the land health standards, restoration goals and objectives, best management practices, and Resource Management Plan restoration plans.
Section 302(b) of FLPMA, 43 U.S.C. 1732(b), grants the Secretary authority to regulate through appropriate instruments the use, occupancy, and development of the public lands. As the U.S. Court of Appeals for the Tenth Circuit has recognized, the authority granted in section 302(b) is considerably broader than the authority granted in subject-specific provisions of FLPMA.
Section 6102.4(a)(2) would establish that conservation leases would be issued for the necessary amount of time to meet the lease objective and specify that a lease issued for restoration or protection purposes would be issued for a renewable term of up to 10 years, whereas a lease issued for mitigation purposes would be issued for a term commensurate with the impact it is mitigating. All conservation leases would be reviewed for consistency with lease provisions at regular intervals and could be extended beyond their primary terms.
Section 6102.4(a)(3) would specify that conservation leases may be issued either for “restoration or land enhancement” or “mitigation.” The proposed rule would only authorize issuance of conservation leases for ecosystem protection where that protection is related to a restoration or land enhancement project or to support mitigation for a particular action. For example, as part of authorizing a renewable energy project on public lands, the BLM and the project proponent may agree to compensate for loss of wildlife habitat by restoring or enhancing other habitat areas. A conservation lease could be used to protect those areas. Similarly, the BLM may require compensatory mitigation for residual impacts that cannot be avoided. A conservation lease could be used to put compensatory mitigation dollars to work restoring compromised landscapes.
This provision is not intended to provide a mechanism for precluding other uses, such as grazing, mining, and recreation. Conservation leases should not disturb existing authorizations, valid existing rights, or state or Tribal land use management. Rather, this proposed rule is intended to raise conservation up to be on par with other uses under the principles of multiple use and sustained yield.
The BLM requests public comment on the following aspects of the conservation lease proposal.
• Is the term “conservation lease” the best term for this tool?
• What is the appropriate default duration for conservation leases?
• Should the rule constrain which lands are available for conservation leasing? For example, should conservation leases be issued only in areas identified as eligible for conservation leasing in an RMP or areas the BLM has identified (either in an RMP or otherwise) as priority areas for ecosystem restoration or wildlife habitat?
• Should the rule clarify what actions conservation leases may allow?
• Should the rule expressly authorize the use of conservation leases to generate carbon offset credits?
• Should conservation leases be limited to protecting or restoring specific resources, such as wildlife habitat, public water supply watersheds, or cultural resources?
Proposed § 6102.4(b) and (c) would set forth the application process for acquiring a conservation lease. Applicants would be required to submit detailed information regarding the proposed conservation use, anticipated impacts and costs, conformance with BLM plans, programs and policies, and the schedule for any restoration activities. The authorized officer would be able to require additional information such as environmental data and proof that the applicant has the technical and financial capability to perform the conservation activities. Once a conservation lease is issued, § 6102.4(a)(4) would preclude the BLM, subject to valid existing rights and applicable law, from authorizing other uses of the leased lands that are inconsistent with the authorized conservation use. Section 6102.4(a)(5) clarifies that the rule itself should not be interpreted to exclude public access to leased lands for casual use of such lands, although the purposes of a lease may require that limitations to public access be put in place in a given instance (for example, temporarily limiting public access to newly restored areas).
Section 6102.4(d) would provide for assignment or transfer of a conservation lease if no additional rights would be conveyed and the proposed assignee or transferee is qualified to hold the lease.
Conservation leases would be available on BLM-managed lands that are not allocated to inconsistent uses, including lands within units of the National Landscape Conservation System. The BLM requests public comments on managing conservation leases within the National Landscape Conservation System, including whether separate regulations should apply to these areas.
Cost recovery, rents, and fees for conservation leases would be governed by existing regulations at 43 CFR 2920.6 and 2920.8. Under those regulations, the BLM must charge a rent of at least fair market value. The BLM seeks comment on how fair market value would be determined in the context of restoration or preservation. Would existing methods for land valuation provide valid results? Would lands with valuable alternative land uses be prohibitively expensive for conservation use? Should the BLM incorporate a public benefit component into the rent calculation to account for the benefits of ecosystem services?
Proposed § 6102.4-1 would outline processes for suspending and terminating conservation leases. Where the lease holder fails to comply with applicable requirements, fails to use the lease for its intended purpose, or cannot fulfill the lease's purpose, the BLM would be authorized to suspend or terminate a conservation lease. An authorized officer would be authorized to issue an immediate temporary suspension of the lease upon determination that a noncompliance issue adversely affects or poses a threat to public lands or public health. Following termination, the lease holder would have sixty days to fulfill its obligation to reclaim the site,
The proposed rule includes bonding obligations for any conservation use that
Proposed § 6102.5 would set forth a framework for the BLM to make wise management decisions based on science and data, including at the planning, permitting, and program levels, that would help to ensure ecosystem resilience. As part of this framework, authorized officers would be required to identify priority watersheds, landscapes, and ecosystems that require protection and restoration efforts; develop and implement mitigation, monitoring and adaptive management strategies to protect resilient ecosystems; and meaningfully consult with Tribes and Alaska Native Corporations. Authorized officers would be required to include Indigenous Knowledge in decisionmaking and encourage Tribes to suggest ways in which Indigenous Knowledge can be used to inform the development of alternatives, analysis of effects, and identification of mitigation measures.
Consistent with applicable law and the management of the area, authorized officers would also be required to avoid authorizing any use of the public lands that permanently impairs ecosystem resilience. Permanent impairment of ecosystem resilience would be difficult or impossible to avoid, for example, on lands on which the BLM has authorized intensive uses, including infrastructure and energy projects or mining, or where BLM has limited discretion to condition or deny the use. The proposed rule also would require the authorized officer to consider a precautionary approach for resource use when the impact on ecosystem resilience is unknown or cannot be quantified and provide justification for decisions that may impair ecosystem resilience. In other words, the proposed rule does not prohibit land uses that impair ecosystem resilience; it simply requires avoidance and an explanation if such impairment cannot be avoided.
To ensure the best available science is underpinning all management actions, the proposed rule would require the BLM to use national and site-based assessment, inventory, and monitoring data, along with other high-quality information, as multiple lines of evidence to evaluate resource conditions and inform decisionmaking. In particular, proposed § 6102.5(c) would require the authorized officer to gather high-quality data and select relevant indictors, then translate the values from those indicators into a watershed condition classification framework and document the results. The goal is to use monitoring objectives and possibly conceptual models to identify if watersheds are in properly functioning condition and how the landscape is functioning as a whole.
The proposed rule would affirm that the BLM will generally apply the mitigation hierarchy of avoid, minimize, and compensate for impacts to all public land resources. Further, § 6102.5-1(a) would require mitigation to address adverse impacts in the case of important, scarce, or sensitive resources, to the maximum extent possible.
The proposed rule would authorize the BLM to use third-party mitigation fund holders to facilitate compensatory mitigation. Proposed § 6102.5-1(d) would require authorized officers to establish mitigation accounts as appropriate when multiple permittees have similar compensatory mitigation requirements, or a single permittee has project impacts that require substantial, long-term compensatory mitigation. Proposed § 6102.5-1(f) would establish criteria that third parties must meet to be approved as mitigation fund holders. Among other things, the proposed rule would require potential mitigation fund holders to have “a history of successfully holding and managing mitigation, escrow, or similar corporate accounts.” This language is intended to ensure that mitigation fund holders have sufficient experience to ensure that they are capable of managing funds. The BLM seeks comment on this language. Does it create a barrier to entry for new mitigation banks? Is there alternative language that would be preferable? The requirement that a third party lack any “family connection” to the mitigating party refers to the leadership of the potential mitigation fund holder.
Proposed § 6103.1 would establish four fundamentals of land health—watershed function, ecological processes, water quality, and wildlife habitat—that would form the basis for land health standards and guidelines that the BLM would develop in land use plans under § 6103.1-1 of this proposed rule. Fundamentals of land health are currently addressed in the BLM's grazing regulations for rangeland health (43 CFR 4180.1 (2005)). The proposed rule would extend the fundamentals of land health to all BLM lands and program areas. The BLM is not proposing any changes to the four fundamentals of land health as articulated in the applicable grazing regulations.
Proposed § 6103.1-1 would instruct authorized officers to implement land health standards and guidelines that conform to the fundamentals of land health across all lands and program areas. This includes reviewing land health standards and guidelines during the land use planning process and developing new or revising existing land health standards and guidelines as necessary, and periodically reviewing land health standards and guidelines in conjunction with regular land use plan evaluations. Until the authorized officer has an opportunity to review and update land health standards and guidelines through land use planning processes, § 6103.1-1(a)(1) of the proposed rule would direct authorized officers to apply existing land health standards and guidelines, including those previously established under subpart 4180 of the agency's grazing regulations (fundamentals of rangeland health), across all lands and program areas.
Proposed § 6103.1-1(b) through (d) would require the authorized officer to establish goals, objectives, and success indicators to ensure that each land health standard can be measured against resource conditions and to periodically review authorized uses for consistency with the fundamentals of land health. Once land health standards and guidelines are established, any action in response to not meeting them would be subject to § 6103.1-2(e)(2) and taken in a manner that takes into account existing uses and authorizations. Under the proposed rule, the BLM may establish national indicators in support of the implementation of the fundamentals of land health.
The proposed rule would require authorized officers to consider land
In cases where land health standards are not being achieved, proposed § 6103.1-2(d) would require a determination of causal factors. If existing management practices are determined to be a causal factor, the proposed rule would require the authorized officer to take appropriate action to make significant progress toward fulfillment of the standards and compliance with the guidelines. That requirement would be limited, however, by the caveat that appropriate action must be “consistent with applicable law and the terms and conditions of existing authorizations.” Thus, when determining what actions are “appropriate” to meet the land health standards, the authorized officer would have to take into account existing uses and authorizations.
The proposed rule would require the BLM to complete watershed condition classifications as part of all land use planning. It is anticipated that watershed condition classifications would frequently be completed not by BLM state offices, but by national-level resources, such as by the National Operations Center, utilizing standardized procedures and existing data and analyses.
Proposed § 6103.2(b) would clarify that the BLM's inventory of public lands includes both landscape components and core indicators that address land health fundamentals, and would require the use of inventory, assessment, and monitoring information, including standardized quantitative monitoring data, remote sensing maps, and geospatial analyses, to inform decisionmaking across program areas. Proposed § 6103.2(c) would establish principles to ensure that inventory, assessment, and monitoring activities are evidence-based, standardized, efficient, and defensible.
The proposed rule includes changes to the land use planning regulations to emphasize the role of ACECs as the principal designation for public lands where special management attention is required to protect important natural, cultural, and scenic resources, and to protect against natural hazards. It would also emphasize the requirement that the BLM give priority to the identification, evaluation, and designation of ACECs during the planning process as required by FLPMA and would provide additional clarity and direction for complying with this statutory requirement. The proposed rule would codify in regulation procedures for considering and designating potential ACECs that are currently only partially described in regulation and partially described in agency policy.
Proposed § 1610.7-2(c) would require authorized officers to identify areas that may be eligible for ACEC status early in the planning process and would highlight the need to target areas for evaluation based on resource inventories, internal and external nominations, and existing ACEC designations.
Proposed § 1610.7-2(d) would provide more specificity for determining whether an area meets the criteria for ACEC designation of relevance, importance, and requiring special management attention. Requiring a finding that special management attention is necessary is consistent with BLM practice but is not a feature of the existing regulations.
Under the proposed rule § 1610.7-2(d)(2), resources, values, systems, or processes may meet the importance criterion if they contribute to ecosystem resilience, including by protecting landscape intactness and habitat connectivity. The proposed rule would also clarify the scope of the importance criterion by striking “more than local significance” in current § 1610.7-2(a)(2). The BLM has found the use of “local significance” in the existing definition creates confusion because it may be conflated with the separate question under NEPA as to whether environmental impacts are “significant.” Moreover, requiring something more than “local significance” is unnecessarily restrictive. In the context of ACECs, a wide variety of areas can support the BLM's management of public lands by contributing to ecosystem resilience.
Proposed § 1610.7-2(e) would newly emphasize that resources, values, systems, processes, or hazards that are found to have relevance and importance are likely to warrant special management attention and would further identify four considerations when evaluating the need for special management attention, to inform potential ACEC designations in a land use plan.
Proposed § 1610.7-2(g) would clarify that land use plans must include at least one plan alternative that analyzes in detail all proposed ACECs, in order to analyze the consequences of both providing and not providing special management attention to identified resources.
Proposed § 1610.7-2(i) would require authorized officers to ensure that inventories used to obtain information and data on the relevance and importance of values, resources, systems or processes, and natural hazards are kept current, consistent with section 201(a) of FLPMA “so as to reflect changes in conditions and to identify new and emerging resource and other values” (43 U.S.C. 1711(a)). Authorized officers (likely, here, BLM State Directors) would be required to produce annual reports detailing activity plan status and completed and planned implementation actions for designated ACECs.
Section 1610.7-2(j) would direct that ACEC designations may be removed only when special management attention is no longer needed because the identified resources are being provided an equal or greater level of protection through alternate means or the identified resources are no longer present.
The proposed rule eliminates the existing requirement in current § 1610.7-2(b) that the BLM publish a
Finally, throughout the proposed rule under § 1610.7-2, the term “value” would be replaced with the phrase “resources, values, systems, processes, or hazards.” “Value” has been used as a shorthand reference to all the items in the longer phrase but doing so has created confusion. The proposed rule provides for this change as well as other minor changes designed to improve readability throughout the rule text.
The proposed rule provides that “ACECs shall be managed to protect the relevant and important resources for
The provisions of the proposed rule should be considered separately. If any portion of the rule were stayed or invalidated by a reviewing court, the remaining elements would continue to provide BLM with important and independently effective tools to advance conservation on the public lands. Hence, if a court prevents any provision of one part of this proposed rule from taking effect, that should not affect the other parts of the proposed rule. The remaining provisions would remain in force.
Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. The OIRA has determined that this proposed rule is not significant.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, reduce uncertainty, and use the best, most innovative, and least burdensome tools for achieving regulatory ends. The E.O. directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rule making process must allow for public participation and an open exchange of ideas. The BLM has developed this proposed rule in a manner consistent with these requirements.
As outlined in the attached Economic and Threshold Analysis, the proposed rule would not have a significant effect on the economy.
For more detailed information, see the Economic and Threshold analysis prepared for this proposed rule. This analysis has been posted in the docket for the rule on the Federal eRulemaking Portal:
This proposed rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
For the purpose of conducting its review pursuant to the RFA, the BLM believes that the proposed rule would not have a “significant economic impact on a substantial number of small entities,” as that phrase is used in 5 U.S.C. 605.
This proposed rule is not a major rule under 5 U.S.C. 804(2), the Congressional Review Act. This proposed rule:
a. Does not have an annual effect on the economy of $100 million or more. The BLM did not estimate the annual benefits that this proposed rule would provide to the economy. Please see the Economic and Threshold Analysis for this proposed rule for a more detailed discussion.
b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. The proposed rule would benefit small businesses by streamlining the BLM's processes.
c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. The proposed rule would not have adverse effects on any of these criteria.
This proposed rule does not impose an unfunded mandate on State, local, or tribal governments, or the private sector of more than $100 million per year. The proposed rule does not have a significant or unique effect on State, local, or tribal governments, or the private sector. Under the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1531
This proposed rule is not subject to the requirements under the UMRA. The proposed rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or to the private sector in any one year. The proposed rule would not significantly or uniquely affect small governments. A statement containing the information required by the UMRA is not required.
This proposed rule does not effect a taking of private property or otherwise have taking implications under E.O. 12630. Section 2(a) of E.O. 12630 identifies policies that do not have takings implications, such as those that abolish regulations, discontinue governmental programs, or modify regulations in a manner that lessens interference with the use of private property. The proposed rule would not interfere with private property. A takings implication assessment is not required.
Under the criteria in section 1 of E.O. 13132, this proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. It does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. A federalism summary impact statement is not required.
This proposed rule complies with the requirements of E.O. 12988. Specifically, this proposed rule:
a. Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
b. Meets the criteria of section 3(b)(2) requiring that all regulations be written
The Department of the Interior (DOI) strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this proposed rule under the DOI's consultation policy and under the criteria in E.O. 13175 and have determined that it has no substantial direct effects on federally recognized 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, and that consultation under the DOI's tribal consultation policy is not required. However, consistent with the DOI's consultation policy (52 Departmental Manual 4) and the criteria in E.O. 13175, the BLM will consult with federally recognized Indian Tribes on any proposal that may have a substantial direct effect on the Tribes.
The Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3521) generally provides that an agency may not conduct or sponsor, and not withstanding any other provision of law a person is not required to respond to, a collection of information, unless it displays a currently valid OMB control number. This proposed rule contains information collection requirements that are subject to review by the Office of Management and Budget (OMB) under the PRA. Collections of information include any request or requirement that persons obtain, maintain, retain, or report information to an agency, or disclose information to a third party or to the public (44 U.S.C. 3502(3) and 5 CFR 1320.3(c)).
OMB has generally approved the existing information collection requirements contained in the BLM's regulations contained in 43 CFR subpart 1610 under OMB Control Number 1004-0212. The proposed rule would not result in any new or revised information collection requirements that are currently approved under that OMB Control Number.
For the reasons set out in the preamble, the BLM proposes to amend 43 CFR by creating part 6100 which would result in new information collection requirements that require approval by OMB. The information collection requirement contained in part 6100 will allow the BLM to issue a conservation lease to qualified individuals or businesses or State, local, or Tribal governments for the purpose of ensuring ecosystem sustainability. The proposed new information collection requirements contained in this proposed rule are discussed below.
• Details of the proposed uses and activities;
• A description of all facilities for which authorization is sought, including access needs and special types of easements that may be needed;
• A map of sufficient scale to allow the required information to be legible as well as a legal description of primary and alternative project locations;
• Schedule for restoration or land improvement activities; and
• Name and legal mailing address of the applicant.
The information collection requirements contained in this proposed rule are needed to ensure that accountability through restoration monitoring and tracking is carried out effectively and that project goals are being met. The estimated annual
If you want to comment on the information-collection requirements of this proposed rule, please send your comments and suggestions on this information-collection by the date indicated in the
The BLM intends to apply the Department Categorical Exclusion (CX) at 43 CFR 46.210(i) to comply with the National Environmental Policy Act. This CX covers policies, directives, regulations, and guidelines that are of an administrative, financial, legal, technical, or procedural nature or whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively or case-by-case. The BLM plans to document the applicability of the CX concurrently with development of the final rule.
Federal agencies must prepare and submit to OMB a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; (2) Is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) Is designated by the Administrator of OIRA as a significant energy action. This proposed rule is not a significant action within the meaning of Executive Order 12866 or any successor order. This proposed rule does not affect energy supply or distribution.
We are required by Executive Orders 12866 (section 1(b)(12)), 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1988, to write all rules in plain language. This means that each rule must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use common, everyday words and clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
The principal authors of this proposed rule are: Stephanie Miller, BLM Deputy Division Chief, Wildlife Conservation; Darrin King, BLM Division of Regulatory Affairs; Chandra Little, BLM Division of Regulatory Affairs, assisted by the DOI Office of the Solicitor.
Administrative practice and procedure, Coal, Environmental impact statements, Environmental protection, Intergovernmental relations, Public lands, Preservation and conservation.
Ecosystem resilience, Conservation use, Land health, and Restoration.
Accordingly, for the reasons set out in the preamble, the Bureau of Land Management proposes to amend 43 CFR part 1600 and add a new 43 CFR part 6100 as set forth below:
43 U.S.C. 1711-1712
(a) An Area of Critical Environmental Concern (ACEC) designation is the principal BLM designation for public lands where special management is required to protect important natural, cultural, and scenic resources, systems, or processes, or to protect life and safety from natural hazards. The BLM designates ACECs when issuing a decision to approve a Resource Management Plan, plan revision, or plan amendment. ACECs shall be managed to protect the relevant and important resources for which they are designated.
(b) In the land use planning process, authorized officers must identify, evaluate, and give priority to areas that have potential for designation and management as ACECs. Identification, evaluation, and priority management of ACECs shall be considered during the development and revision of Resource Management Plans and during amendments to Resource Management Plans when such action falls within the scope of the amendment (
(c) The Field Manager must identify areas to evaluate for eligibility as ACECs early in the planning process, including by considering the following sources:
(1) The Field Manager must analyze inventory data to determine whether there are areas containing resources, values, systems, processes, or hazards eligible for designation as ACECs.
(2) The Field Manager must evaluate existing ACECs when plans are revised or when designations of ACECs are within the scope of an amendment, including considering potential changes to boundaries and management.
(3) The Field Manager must seek nominations for ACECs, during public scoping, from the public, State and local governments, Indian tribes, and other Federal agencies (see § 1610.2(c)) when developing new plans or revising existing plans, or when designations of ACECs are within the scope of a plan amendment. If nominations are received outside the planning process, interim management may be evaluated, considered, and implemented to protect relevant and important values until the BLM completes a planning process to determine whether to designate the area
(d) To be designated as an ACEC, an area must meet the following criteria:
(1)
(2)
(3)
(i) Conserve, protect, and restore relevant and important resources, values, systems, processes, or that protect life and safety from natural hazards; and
(ii) Would not be prescribed if the relevant resources, values, systems, processes, or hazards were not present.
(e) Resources, values, systems, processes, or hazards that are found to have relevance and importance are likely to require special management attention. In evaluating the need for special management attention, the Field Manager must consider:
(1) Whether highlighting the resources with the designation will protect or increase the vulnerability of the resources, and if so, how to tailor a designation to maximize protection and minimize unintended impacts;
(2) The values of other resource uses in the plan;
(3) The feasibility of managing the designation; and
(4) The relationship to other types of designations available.
(f) The Field Manager must identify the boundaries of proposed ACECs to encompass the relevant and important resources, values, systems, processes, or hazards, and any areas required for the special management attention needed to provide protection for the relevant and important resources, values, systems, processes, or hazards.
(g) Planning documents must include at least one alternative that analyzes in detail all proposed ACECs to provide for informed decisionmaking on the trade-offs associated with ACEC designation.
(h) The approved plan shall list all designated ACECs, identify their relevant and important resources, values, systems, processes, or hazards, and include the special management attention, including mitigating measures, identified for each designated ACEC.
(i) The State Director shall:
(1) Ensure that inventories used to obtain information and data on relevance and importance are kept current. Monitoring shall be performed and inventories shall be updated at intervals appropriate to the sensitivity of the relevant and important resources, values, systems, processes, or hazards, to ensure that data are available to identify trends and emerging issues during plan evaluations (see § 1610.4-9).
(2) Prioritize acquisition of inholdings within ACECs and adjacent or connecting lands identified as holding related relevant and important resources, values, systems, processes, or hazards as the designated ACEC.
(3) Provide annual reports within the first quarter of each fiscal year identifying for each designated ACEC within the State:
(i) Whether or not an activity plan is deemed necessary and, if so, whether it has been prepared;
(ii) Implementation actions accomplished during the previous fiscal year, highlighting those actions contributing to the conservation, enhancement, or protection of the resources, values, systems, or processes, or protection from natural hazards; and
(iii) Scheduled implementation measures for the ensuing fiscal year.
(j) The State Director, through the land use planning process, may remove the designation of an ACEC, in whole or in part, only when:
(1) The State Director finds that special management attention is not needed because another legally enforceable mechanism provides an equal or greater level of protection; or
(2) The State Director finds that the resources, values, systems, processes, or natural hazards of relevance and importance are no longer present, cannot be recovered, or have recovered to the point where special management is no longer necessary. The findings must be supported by data or documented changes on the ground.
16 U.S.C. 7202; 43 U.S.C. 1701
The BLM's management of public lands on the basis of multiple use and sustained yield relies on healthy landscapes and resilient ecosystems. The purpose of this part is to promote the use of conservation to ensure ecosystem resilience. This part discusses the use of protection and restoration actions, as well as tools such as land health evaluations, inventory, assessment, and monitoring.
The objectives of these regulations are to:
(a) Achieve and maintain ecosystem resilience when administering Bureau programs; developing, amending, and revising land use plans; and approving uses on the public lands;
(b) Promote conservation by protecting and restoring ecosystem resilience and intact landscapes;
(c) Integrate the fundamentals of land health and related standards and guidelines into resource management;
(d) Incorporate inventory, assessment, and monitoring principles into decisionmaking and use this
(e) Accelerate restoration and improvement of degraded public lands and waters to properly functioning and desired conditions; and
(f) Ensure that ecosystems and their components can absorb, or recover from, the effects of disturbances or environmental change through conservation, protection, restoration, or improvement of essential structures, functions, and redundancy of ecological patterns across the landscape.
These regulations are issued under the authority of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701
As used in this part, the term:
(1)
(2)
(3)
(1) Avoiding the impacts of a proposed action by not taking a certain action or parts of an action;
(2) Minimizing impacts by limiting the degree or magnitude of the action and its implementation;
(3) Rectifying the impact of the action by repairing, rehabilitating, or restoring the affected environment;
(4) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action; and
(5) Compensating for the impact of the action by replacing or providing substitute resources or environments. In practice, the mitigation sequence is often summarized as avoid, minimize, and compensate. The BLM generally applies mitigation hierarchically: first avoid, then minimize, and then compensate for any residual impacts from proposed actions.
(1) Existing conditions;
(2) The effects of management actions; or
(3) The effectiveness of actions taken to meet management objectives.
(1) Isolating, controlling, or removing of toxic or deleterious substances;
(2) Regrading and reshaping to conform with adjacent landforms, facilitate revegetation, control drainage, and minimize erosion;
(3) Rehabilitating fisheries or wildlife habitat;
(4) Placing growth medium and establishing self-sustaining revegetation;
(5) Removing or stabilizing buildings, structures, or other support facilities;
(6) Plugging drill holes and closing underground workings; and
(7) Providing for post-activity monitoring, maintenance, or treatment.
Except where otherwise provided by law, public lands must be managed under the principles of multiple use and sustained yield.
(a) To ensure multiple use and sustained yield, the BLM's management must conserve the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archaeological values; preserve and protect certain public lands in their natural condition (including ecological and environmental values); maintain the productivity of renewable natural resources in perpetuity; and consider the long-term needs of future generations, without permanent impairment of the productivity of the land.
(b) The BLM must conserve renewable natural resources at a level that maintains or improves future resource availability and ecosystem resilience.
(c) Authorized officers must implement the foregoing principles through:
(1) Conservation as a land use within the multiple use framework, including in decisionmaking, authorization, and planning processes;
(2) Protection and maintenance of the fundamentals of land health and ecosystem resilience;
(3) Restoration and protection of public lands to support ecosystem resilience;
(4) Use of the full mitigation hierarchy to address impacts to species, habitats, and ecosystems from land use authorizations; and
(5) Prevention of unnecessary or undue degradation.
(a) The BLM must manage certain landscapes to protect their intactness. This requires:
(1) Maintaining intact ecosystems through conservation actions.
(2) Managing lands strategically for compatible uses while conserving intact landscapes, especially where development or fragmentation is likely to occur that will permanently impair ecosystem resilience on public lands.
(3) Maintaining or restoring resilient ecosystems through habitat and ecosystem restoration projects that are implemented over broader spatial and longer temporal scales. (4) Coordinating and implementing actions across BLM programs, offices, and partners to protect intact landscapes.
(5) Pursuing management actions that maintain or mimic characteristic disturbance.
(b) Authorized officers will seek to prioritize actions that conserve and protect intact landscapes in accordance with § 6101.2.
(a) When revising a Resource Management Plan under part 1600 of this chapter, authorized officers must use available data, including watershed condition classifications, to identify intact landscapes on public lands that will be protected from activities that would permanently or significantly disrupt, impair, or degrade the structure or functionality of intact landscapes.
(b) During the planning process, authorized officers must determine which, if any, tracts of public land will be put to conservation use. In making such determinations, authorized officers must consider whether:
(1) The BLM can establish partnerships to work across Federal and non-Federal lands to protect intact landscapes;
(2) Multiple lines of evidence indicate that active management will improve the resilience of the landscape through reducing the likelihood of uncharacteristic disturbance;
(3) The BLM can work with communities to identify geographic areas important for their strategic growth and development in order to allow for better identification of the most suitable areas to protect intact landscapes;
(4) The BLM can identify opportunities for co-stewardship with Tribes;
(5) Conservation leases (see § 6102.4) can be issued to manage and monitor areas within intact landscapes with high conservation value and complex, long-term management needs; and
(6) Standardized quantitative monitoring and best available information is used to track the success of ecological protection activities (see § 6103.3).
(c) When determining whether to acquire lands or interests in lands through purchase, donation, or exchange, authorized officers must prioritize the acquisition of lands or interests in lands that would further protect and connect intact landscapes and functioning ecosystems.
(d) Authorized officers must collect and track disturbance data that indicate the cumulative disturbance and direct loss of ecosystems at a watershed scale resulting from BLM-authorized activities. This information must be included in a national tracking system. The BLM must use the national tracking system to strategically minimize surface disturbance, including identifying areas appropriate for conservation and other uses in the context of threats identified in watershed condition assessments, to analyze landscape intactness and fragmentation of ecosystems, and to inform conservation actions.
(a) The BLM must emphasize restoration across the public lands to enable achievement of its multiple use and sustained yield mandate.
(b) In determining the restoration actions required to achieve recovery of ecosystems and promote resilience, the BLM must consider the degree of ecosystem degradation and develop restoration goals and objectives designed to achieve ecosystem resilience and land health standards (see § 6103.1-1).
(c) The BLM should employ active management to promote restoration. Over the long-term, restoration actions must be durable, self-sustaining, and expected to persist based on the resource objective.
(a) Not less than every five years, authorized officers must identify priority landscapes for restoration. In doing so, authorized officers must consider:
(1) Results from land health assessments, watershed condition classifications and other best available information (see subpart 6103 of this part);
(2) The likelihood of success of restoration activities to achieve resource or conservation objectives;
(3) The possibility of implementing a series of coordinated restoration actions benefiting multiple resources at scales commensurate to the cause of the degradation in areas where the BLM manages sufficient lands or partnerships exist to work across jurisdictions;
(4) Where restoration actions will have the greatest social, economic, and environmental justice impacts for local communities; and
(5) Where restoration can concurrently or proactively prevent unnecessary or undue degradation, such as ecosystem conversion, fragmentation, habitat loss, or other negative outcomes that permanently impair ecosystem resilience.
(a) Authorized officers must include a restoration plan in any Resource Management Plan adopted or revised in accordance with part 1600 of this chapter. Each restoration plan must include goals, objectives, and management actions that require:
(1) Measurable progress toward attainment of land health standards;
(2) Clear outcomes and monitoring to describe progress and enable adaptive management (see subpart 6103).
(3) Coordination and implementation of actions across BLM programs and with partners to develop landscape restoration objectives.
(4) Attainment of statewide and regional needs as identified in the assessment of priority landscapes for restoration and consistent with Resource Management Plan goals.
(5) Restoration of landscapes that land health assessments, watershed condition classifications and other best available information suggest should be prioritized for restoration.
(b) Authorized officers must design and implement restoration actions to achieve the goals and objectives adopted under paragraph (a) of this section. In doing so, authorized officers must:
(1) Ensure that actions are designed, implemented, and monitored at appropriate spatial and temporal scales using suitable treatments and tools to achieve desired outcomes.
(2) Ensure that restoration management actions address causes of degradation, focus on ecological process-based solutions, and where possible maintain attributes and resource values associated with the potential or capability of the ecosystem.
(3) Coordinate and implement actions across BLM programs and with partners to develop holistic restoration actions.
(4) Issue conservation leases under § 6102.4 for the purpose of restoring, managing, and monitoring areas within priority landscapes.
(5) Ensure incorporation of locally appropriate best management practices that address the following:
(i) A five-year schedule that describes activities prior to planning (such as pretreatments and native-plant materials procurement), implementation actions (including operation, maintenance, and repair), monitoring (see § 6103.2), and reporting;
(ii) Potential remedial and contingency measures that account for drought and changed circumstances that could delay implementation; and
(iii) Opportunities for compensatory mitigation for important, scarce, or sensitive resources or resources protected by law.
(c) Authorized officers must annually track restoration-project progress toward achieving goals, projects that have achieved project goals, and projects completed without meeting project goals. When assessment and monitoring efforts reveal that restoration outcomes have not been met, authorized officers must assess and track why restoration outcomes are not being achieved and what, if any, additional resources or changes to management are needed to achieve restoration goals.
(d) Authorized officers may authorize a restoration project or approve compensatory mitigation as part of a broader land use authorization only if the proposed restoration project or compensatory mitigation will be consistent with the land health standards, restoration goals and objectives, best management practices and Resource Management Plan restoration plans described in paragraph (a) of this section.
(a) The BLM may authorize conservation use on the public lands by issuing conservation leases on such terms and conditions as the authorized officer determines are appropriate for the purpose of ensuring ecosystem resilience through protecting, managing, or restoring natural environments, cultural or historic resources, and ecological communities, including species and their habitats.
(1) Conservation leases on the public lands may be authorized for the following activities:
(i) Conservation use that involves restoration or land enhancement; and
(ii) Conservation use that involves mitigation.
(2) Authorized officers may issue conservation leases to any qualified individual, business, non-governmental organization, or Tribal government.
(3) Conservation leases shall be issued for a term consistent with the time required to achieve their objective.
(i) A conservation lease issued for purposes of restoration or protection may be issued for a maximum term of 10 years and shall be reviewed mid-term for consistency with the lease provisions.
(ii) A conservation lease issued for purposes of mitigation shall be issued for a term commensurate with the impact it is mitigating and reviewed every 5 years for consistency with the lease provisions.
(iii) Authorized officers shall extend or further extend a conservation lease if necessary to serve the purpose for which the lease was first issued. Such extension or further extension can be for a period no longer than the original term of the lease.
(4) Subject to valid existing rights and applicable law, once the BLM has issued a conservation lease, the BLM shall not authorize any other uses of the leased lands that are inconsistent with the authorized conservation use.
(5) No land use authorization is required under the regulations in this part for casual use of the public lands covered by a conservation lease.
(b) The process for issuing a conservation lease is as follows:
(1) An application for a conservation lease must be filed with the Bureau of Land Management office having jurisdiction over the public lands covered by the application. The filing of an application gives the applicant no right to use the public lands.
(2) If the lease application is approved, the authorized officer will issue an approved conservation lease on a form approved by the Office of the Director, Bureau of Land Management.
(c) An application for a conservation lease must include:
(1) A description of the proposed conservation use in sufficient detail to enable authorized officers to evaluate the feasibility of the proposed conservation use; the impacts, if any, on the environment; the public or other benefits from the conservation use; the approximate cost of the proposed conservation use; any threat to public health and safety posed by the proposed use; and how, in the opinion of the applicant, the proposed use conforms to the Bureau of Land Management's plans, programs, and policies for the public lands covered by the proposed use. The description shall include but not be limited to:
(i) Details of the proposed uses and activities;
(ii) A description of all facilities for which authorization is sought, including access needs and special types of leases that may be needed;
(iii) A map of sufficient scale to allow the required information to be legible as well as a legal description of primary and alternative project locations;
(iv) A schedule for restoration or land enhancement activities if applicable; and
(v) The following additional information, upon request of authorized officers:
(A) Additional studies or environmental data, if such studies or data are necessary for the BLM to decide whether to issue, issue with modification, or deny the proposed conservation lease.
(B) Documentation of or proof of application for additional private, State, local or other Federal agency licenses, permits, easements, certificates, or other approvals.
(C) Evidence that the applicant has, or prior to commencement of conservation activities will have, the technical and financial capability to operate, maintain, and terminate the authorized conservation use.
(2) The application shall include the name and legal mailing address of the applicant, as well as a statement of the applicant's interest in the resource or purpose of the lease.
(3) If the applicant is other than an individual, the application shall include the name and address of an agent authorized to receive notice of actions pertaining to the application.
(4) If any of the information required in this section has already been submitted as part of a separate conservation use proposal, the application need only refer to that proposal by filing date, office, and case number. The applicant shall certify that there have been no changes in any of the information.
(d) Approval of the application is not guaranteed and is solely at the discretion of the authorized officer.
(e) A conservation lease may only be assigned or transferred with the written approval of the authorized officer, and no assignment or transfer shall be effective until the BLM has approved it in writing. Authorized officers may authorize assignment or transfer of a conservation lease in their discretion if no additional rights will be conveyed beyond those granted by the original authorization, the proposed assignee or transferee is qualified to hold the lease, and the assignment or transfer is in the public interest.
(f) Administrative cost recovery, rents and fees for conservation leases will be governed by the provisions of §§ 2920.6 and 2920.8.
(a) If a conservation lease provides by its terms that it shall terminate on the occurrence of a fixed or agreed-upon event, the conservation lease shall automatically terminate by operation of law upon the occurrence of such event.
(b) A conservation lease may be terminated by mutual written agreement between the authorized officer and the lessee to terminate the lease.
(c) Authorized officers have discretion to suspend or terminate conservation leases under the following circumstances:
(1) Improper issuance of the lease;
(2) Noncompliance by the holder with applicable law, regulations, or terms and conditions of the conservation lease;
(3) Failure of the holder to use the conservation lease for the purpose for which it was authorized; or
(4) Impossibility of fulfilling the purposes of the lease.
(d) Upon determination that the holder has failed to comply with any terms or conditions of a conservation lease and that such noncompliance adversely affects or poses a threat to land or public health or safety or impacts to ecosystem resilience, authorized officers shall issue an immediate temporary suspension.
(1) Authorized officers may issue an immediate temporary suspension order orally or in writing at the site of the activity to the holder or a contractor or subcontractor of the holder, or to any representative, agent, employee or contractor of any of them, and the suspended activity shall cease at that time. As soon as practicable, authorized officers shall confirm the order by a written notice to the holder addressed to the holder or the holder's designated agent. Authorized officers may also take such action considered necessary to address the adverse effects or threat to land or public health or safety or impacts to ecosystem resilience.
(2) Authorized officers may order immediate temporary suspension of an activity regardless of any action that has been or is being taken by another Federal or State agency.
(3) Any time after an order of temporary suspension has been issued, the holder may file with authorized officers a request for permission to resume. The request shall be in writing and shall contain a statement of the facts supporting the request. Authorized officers may grant the request upon determination that the adverse effects or threat to land or public health or safety or impacts to ecosystem resilience are resolved.
(4) Authorized officers may render an order either to grant or to deny the request to resume within 5 working days of the date the request is filed. If authorized officers do not render an order on the request within 5 working days, the request shall be considered denied, and the holder shall have the same right to appeal as if an order denying the request had been issued.
(e) Process for termination or suspension other than temporary immediate suspension.
(1) Prior to commencing any proceeding to suspend or terminate a conservation lease, authorized officers shall give written notice to the holder of the legal grounds for such action and shall give the holder a reasonable time to address the legal basis the authorized officer identifies for suspension or termination.
(2) After due notice of termination or suspension to the holder of a conservation lease, if grounds for suspension or termination still exist after a reasonable time, authorized officers shall give written notice to the holder and refer the matter to the Office of Hearings and Appeals for a hearing before an Administrative Law Judge pursuant to part 4 of this chapter. The authorized officers shall suspend or revoke the conservation lease if the Administrative Law Judge determines that grounds for suspension or revocation exist and that such action is justified.
(3) Authorized officers shall terminate a suspension order when authorized officers determine that the grounds for such suspension no longer exist.
(4) Upon termination of a conservation lease, the holder shall, for 60 days after the notice of termination, retain authorization to use the associated public lands solely for the
(a)
(2) Surety bonds shall be issued by qualified surety companies certified by the Department of the Treasury.
(3) Personal bonds shall be accompanied by:
(i) Cashier's check;
(ii) Certified check; or
(iii) Negotiable Treasury securities of the United States of a value equal to the amount specified in the bond. Negotiable Treasury securities shall be accompanied by a proper conveyance to the Secretary of full authority to sell such securities in case of default in the performance of the terms and conditions of a conservation use authorization.
(b)
(c)
(d)
(2) After default, where the obligation in default equals or is less than the face amount of the bond(s), the principal shall either post a new bond or restore the existing bond(s) to the amount previously held or a larger amount as determined by authorized officers. In lieu thereof, the principal may file separate or substitute bonds for each conservation use covered by the deficient bond(s). Where the obligation incurred exceeds the face amount of the bond(s), the principal shall make full payment to the United States for all obligations incurred that are in excess of the face amount of the bond(s) and shall post a new bond in the amount previously held or such larger amount as determined by authorized officers. The restoration of a bond or posting of a new bond shall be made within 6 months or less after receipt of notice from authorized officers.
(3) Failure to comply with these requirements may:
(i) Subject all leases covered by such bond(s) to termination under the provisions of this title;
(ii) Prevent the bond obligor or principal from acquiring any additional conservation lease or interest therein under this subpart; and
(iii) Result in the bond obligor or principal being referred to the Suspension and Debarment Program under 2 CFR part 1400 to determine if the entity will be suspended or debarred from doing business with the Federal Government.
(a) Authorized officers must:
(1) Identify priority watersheds, landscapes, and ecosystems that require protection and restoration efforts;
(2) Develop and implement strategies, including mitigation strategies, and approaches that effectively manage public lands to protect resilient ecosystems;
(3) Develop and implement monitoring and adaptive management strategies for maintaining sustained yield of renewable resources, accounting for changing landscapes, fragmentation, invasive species, and other environmental disturbances (
(4) Report annually on the results of land health assessments, including in the land health section of the
(5) Ensure consistency in watershed condition classifications both among neighboring BLM state offices and with the fundamentals of land health; and
(6) Store watershed condition classification data in a national database to determine changes in watershed condition and record measures of success based on conservation and restoration goals.
(b) In taking management actions, and as consistent with applicable law, authorized officers must:
(1) Consistent with the management of the area, avoid authorizing uses of the public lands that permanently impair ecosystem resilience;
(2) Promote opportunities to support conservation and other actions that work towards achieving sustained yield;
(3) Issue decisions that promote the ability of ecosystems to recover or the BLM's ability to restore function;
(4) Meaningfully consult with Indian Tribes and Alaska Native Corporations during the decisionmaking process on actions that may have a substantial direct effect on the Tribe or Corporation;
(5) Allow State, Tribal, and local agencies to serve as joint lead agencies consistent with 40 CFR 1501.7(b) or as cooperating agencies consistent with 40 CFR 1501.8(a) in the development of environmental impact statements or environmental assessments;
(6) Respect include Indigenous Knowledge, including by:
(i) Encouraging Tribes to suggest ways in which Indigenous Knowledge can be used to inform the development of alternatives, analysis of effects, and when necessary, identification of mitigation measures; and
(ii) Communicating to Tribes in a timely manner and in an appropriate format how their Indigenous Knowledge was included in decisionmaking, including addressing management of sensitive information;
(7) Develop and implement mitigation strategies that identify compensatory mitigation opportunities and encourage siting of large, market-based mitigation projects (
(8) Consider a precautionary approach for resource use when the impact on ecosystem resilience is unknown or cannot be quantified; and
(9) Provide a justification for decisions that may impair ecosystem resilience.
(c) Authorized officers must use national, regional, and site-based assessment, inventory, and monitoring data as available and appropriate, along with other high-quality information, as multiple lines of evidence to evaluate resource conditions and inform decisionmaking, specifically by:
(1) Gathering high-quality available data relevant to the management decision, including standardized quantitative monitoring data and data about land health;
(2) Selecting relevant indicators for each applicable management question (
(3) Establishing a framework for translating indicator values to condition categories (such as quantitative-monitoring objectives or science-based conceptual models); and
(4) Summarizing results and ensuring that a clear and understandable rationale is documented, explaining how the data was used to make the decision.
(a) The BLM will generally apply the mitigation hierarchy to avoid, minimize and compensate for, as appropriate, adverse impacts to resources when authorizing uses of public lands. As appropriate in a planning process, the authorized officer may identify specific mitigation approaches for identified uses or impacts to resources.
(b) Authorized officers shall, to the maximum extent possible, require mitigation to address adverse impacts to important, scarce, or sensitive resources.
(c) For compensatory mitigation, the BLM may use a third-party mitigation fund holder. Authorized officers may approve third-party mitigation fund holders to establish mitigation accounts for use by entities granted land use authorizations by the BLM, when such accounts are an appropriate and efficient method for implementing mitigation measures required through a BLM decision document. Approved mitigation fund holders are allowed to collect and manage mitigation funds collected from permittees and to expend the funds in accordance with agency decision documents and permits.
(d) Authorized officers may establish mitigation accounts as appropriate when multiple permittees have similar compensatory mitigation requirements or a single permittee has project impacts that require substantial compensatory mitigation that will be accomplished over an extended period and involve multiple mitigation sites.
(e) Authorized officers may approve the use of a mitigation account by a permittee only if a mitigation fund holder has a written agreement with the BLM as described in paragraph (h) of this section.
(f) Authorized officers may approve a third party as a mitigation fund holder if the party:
(1) Qualifies for tax-exempt status in accordance with Internal Revenue Code (IRC) section 501(c)(3);
(2) Has a history of successfully holding and managing mitigation, escrow, or similar corporate accounts;
(3) Is a public charity bureau for the state in which the mitigation area is located, or otherwise complies with applicable state laws;
(4) Is a third party organizationally separate from and having no corporate or family connection to the entity accomplishing the mitigation program or project, the project proponent, and the permittee;
(5) Adheres to generally accepted accounting practices that are promulgated by the Financial Account Standards Board, or any successor entity; and
(6) Has the capability to hold, invest, and manage the mitigation funds to the extent allowed by law and consistent with modern “prudent investor” and endowment law, such as the Uniform Prudent Management of Institutional Funds Act of 2006 (UPMIFA) or successor legislation when funds are needed for long-term management and monitoring. UPMIFA incorporates a general standard of prudent spending measured against the purpose of the fund and invites consideration of a wide array of other factors. For states that have not adopted UPMIFA, analogous state legislation can be relied upon to achieve this purpose.
(g) The BLM may not approve a state or local government agency to hold mitigation funds under paragraph (f) of this section unless the government agency is able to demonstrate, to the satisfaction of the BLM, that it is acting as a fiduciary for the benefit of the mitigation project or site and can show that it has the authority and ability to:
(1) Collect the funds;
(2) Protect the account from being used for purposes other than the management of the mitigation project or site;
(3) Disburse the funds to the entities conducting the mitigation project or management of the mitigation site;
(4) Demonstrate that it is organizationally separate from and has no corporate or family connection to the entity accomplishing the mitigation program or project, the project proponent, and the permittee; and
(5) Adhere to generally accepted accounting practices that are promulgated by the Governmental Accounting Standards Board or any successor entity.
(h) The BLM must execute an agreement with any approved mitigation fund holder. All mitigation fund holder agreements must be recorded with the BLM within 30 days of the agreement being fully executed. The BLM office originating the mitigation fund holder agreement must ensure that annual fiscal reports are accurate and complete.
(a) Standards and guidelines developed or revised by the BLM in a land use plan must be consistent with the following fundamentals of land health:
(1) Watersheds are in, or are making significant progress toward, properly functioning physical condition, including their upland, riparian-wetland, and aquatic components; soil and plant conditions support infiltration, soil moisture storage, and the release of water that are in balance with climate and landform and maintain or improve water quality, water quantity, and timing and duration of flow.
(2) Ecological processes, including the hydrologic cycle, nutrient cycle, and energy flow, are maintained, or there is significant progress toward their attainment to support healthy biotic populations and communities.
(3) Water quality complies with state water quality standards and achieves, or is making significant progress toward achieving, established BLM management objectives established in the land use plan such as meeting wildlife needs.
(4) Habitats are, or are making significant progress toward being, restored or maintained for Federal threatened and endangered species, Federal Proposed and Candidate species, and other special status species.
(b) Authorized officers must manage all lands and program areas to achieve land health in accordance with the fundamentals of land health and standards and guidelines, as provided in this subpart.
(a) To ensure ecosystem resilience, authorized officers must implement
(1) Authorized officers must apply existing land health standards and guidelines, including those previously established under subpart 4180 of this chapter, across all lands and program areas.
(2) Authorized officers must review land health standards and guidelines during the land use planning process and develop new or revise existing land health standards and guidelines as necessary for all lands and program areas to ensure the standards and guidelines serve as appropriate measures for the fundamentals of lands health.
(3) Authorized officers will periodically, but not less than every 5 years in conjunction with regular land use plan evaluations, review land health standards and guidelines for all lands and program areas to ensure they serve as appropriate measures for the fundamentals of land health. If existing standards and guidelines are found to be insufficient, authorized officers must evaluate whether to revise or amend the applicable land use plans.
(b) Authorized officers must determine the priority and scale for evaluating standards and guidelines based on resource concerns.
(c) Authorized officers must establish an appropriate set of goals, objectives, and success indicators to ensure that each land health standard can be measured against resource conditions. New and amended standards:
(1) May include previously identified indicators if they are applicable to the new or amended standard;
(2) Must incorporate appropriate quantitative indicators available from standardized datasets;
(3) Must address changing environmental conditions and physical, biological, and ecological functions not already covered by existing standards; and
(4) May require consultation with relevant experts within and outside the agency.
(d) The BLM may establish national indicators for all lands and program areas taken from existing indicators and the development of new indicators, as needed, in support of the implementation of the fundamentals of land health.
(1) Authorized officers must periodically review authorized uses for consistency with the fundamentals of land health for all lands and program areas.
(2) Reserved.
(a) Authorized officers must consider existing land health assessments, evaluations, and determinations in the course of decisionmaking processes regardless of program area. Authorized officers may prepare new land health assessments, evaluations, and determinations in connection with decisionmaking, and must do so if required by other law or regulation.
(b) In the course of conducting land health assessments, authorized officers must measure applicable indicators.
(c) In the course of conducting land health evaluations, authorized officers must:
(1) Document whether land health standards are achieved through land health assessments, documented observations, standardized quantitative data, or other data acceptable to authorized officers as described in § 6103.2.
(2) Use multiple lines of evidence. Indicator values can be compared to benchmark values to help evaluate land health standards. Attainment or nonattainment of a benchmark for one indicator can be considered as one line of evidence used in the assessment and evaluation.
(d) If resource conditions are determined to not be meeting, or making progress toward meeting, land health standards, authorized officers must determine the causal factors responsible for nonachievement.
(e) Authorized officers must make progress toward determining the causal factors for nonachievement as soon as practicable but not later than within a year of the land health assessment identifying the nonachievement.
(1) Upon determining that existing management practices or levels of use on public lands are significant factors in the nonachievement of the standards and guidelines, authorized officers must take appropriate action as soon as practicable.
(2) Taking appropriate action means implementing actions, consistent with applicable law and the terms and conditions of existing authorizations, that will result in significant progress toward fulfillment of the standards and significant progress toward compliance with the guidelines.
(3) Relevant practices and activities may include but are not limited to the establishment of terms and conditions for permits, leases, and other use authorizations and land enhancement activities.
(4) If authorized officers determine that existing management practices or levels of use on public lands are not significant causal factors in the nonachievement of the standards, other remediating actions should be identified and implemented as soon as practicable to address the identified causal factors.
(5) Authorized officers may authorize changes in management or development of a restoration plan to meet other objectives.
(a) Watershed condition classifications must be completed as part of all land use planning processes.
(b) The BLM will maintain an inventory of public lands. This inventory must include both critical landscape components (
(1) Authorization of permitted uses;
(2) Land use planning;
(3) Land health evaluation;
(4) Available watershed assessments;
(5) Restoration planning, including prioritization;
(6) Assessments of restoration effectiveness;
(7) Evaluation and protection of intactness;
(8) Mitigation planning; and
(9) Other decisionmaking processes.
(c) Authorized officers must inventory, assess, and monitor activities employing the following principles:
(1) Structured implementation of monitoring activities through interdisciplinary monitoring plans, which guide monitoring program development, implementation, and data use for decision-makers;
(2) Standardized field measurements to allow data comparisons through space and time in support of multiple management decisions;
(3) Appropriate sample designs to minimize bias and maximize applicability of collected data;
(4) Data management and stewardship to ensure data quality, accessibility, and use; and
(5) Integration with remote sensing products to optimize sampling and calibrate continuous map products.
Agricultural Marketing Service, USDA.
Notice; request for comments.
The Agricultural Marketing Service (AMS) is seeking persons or governmental agencies interested in providing official services in the area noted below to submit an application for designation. Designation provides for private entities or state governmental agencies to be an integral part of the official grain inspection system
Applications for the Texas Central area and comments about the need for USGSA inspection and weighing services in this area must be received by May 3, 2023.
Submit applications and comments concerning this notice using any of the following methods:
•
•
Jacob Thein, Compliance Officer; Federal Grain Inspection Service, AMS, USDA; Telephone (816) 308-1351; Email:
Sec. 7(f) of the United States Grain Standards Act (USGSA) authorizes the Secretary to designate a qualified applicant to provide official services in a specified area after determining the applicant is better able than any other applicant to provide such official services (7 U.S.C. 79(f)). A designated agency may provide official inspection service and/or Class X or Class Y weighing services at locations other than export port locations. Under sec. 7(g) of the USGSA, designations of official agencies may be awarded for no longer than five years, unless terminated by the Secretary, and may be renewed according to the criteria and procedures prescribed in sec. 7(f) of the USGSA. See also 7 CFR 800.196 for further information and guidance.
The following geographic area is open for application.
In Texas, the counties of: Anderson, Angelina, Atascosa, Austin, Bandera, Bastrop, Bell, Bexar, Blanco, Bosque, Brazos, Brewster, Brown, Burleson, Burnet, Caldwell, Camp, Cherokee, Coke, Coleman, Collin, Comal, Comanche, Concho, Cooke, Coryell, Crane, Crockett, Culberson, Dallas, Delta, Denton, DeWitt, Eastland, Ector, Edwards, Ellis, El Paso, Erath, Falls, Fannin, Fayette, Franklin, Freestone, Frio, Gillespie, Glasscock, Gonzales, Grayson, Gregg, Grimes, Guadalupe, Hamilton, Hardin, Harrison, Hays, Henderson, Hill, Hood, Hopkins, Houston, Hudspeth, Hunt, Irion, Jack, Jasper, Jeff Davis, Johnson, Karnes, Kaufman, Kendall, Kerr, Kimble, Kinney, Lamar, Lampasas, Lavaca, Lee, Leon, Liberty, Limestone, Llano, Loving, McCulloch, McLennan, Madison, Marion, Mason, Maverick, Medina, Menard, Midland, Milam, Mills, Montague, Montgomery, Morris, Nacogdoches, Navarro, Newton, Orange, Palo Pinto, Panola, Parker, Pecos, Polk, Presidio, Rans, Reagan, Real, Red River, Reeves, Robertson, Rockwall, Runnels, Risk, Sabine, San Augustine, San Jacinto, San Saba, Schleicher, Shelby, Smith, Somervell, Stephens, Sterling, Sutton, Tarrant, Terrell, Titus, Tom Green, Travis, Trinity, Tyler, Upshur, Upton, Uvalde, Val Verde, Van Zandt, Walker, Ward, Washington, Williamson, Wilson, Winkler, Wise, Wood, Young, and Zavala.
Excludes any established or future export port locations which are serviced by FGIS.
Interested persons or governmental agencies may apply for designation to provide official services in the geographic area noted above under the provisions of sec. 7(f) of the USGSA and 7 CFR 800.196. Applicants may apply for all or part of the Texas Central geographic area. The designation time frame for the Texas Central area will be determined as part of this application process provided that there is at least one qualified applicant. For more information on how to apply for
Please note that sampling, weighing, and inspection services may be offered by designated agencies under the Agricultural Marketing Act of 1946 for other commodities under the authority of FGIS through separate cooperative service agreements with AMS. The coverage area for cooperative service agreements generally aligns with the USGSA designation area. For further information, see 7 U.S.C. 1621
AMS is also publishing this notice to provide interested persons the opportunity to comment on the need for USGSA services in the Texas Central area as noted and any adjacent area service needs. All comments should be submitted through the Federal e-rulemaking portal at
AMS considers applications, comments, and other available information when determining which applicants may be designated.
Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a meeting of the Puerto Rico Advisory Committee to the Commission will convene by virtual web conference on Monday, April 17, 2023, at 3:30 p.m. Atlantic Time/Eastern Time. The purpose is to discuss their project on the civil rights impacts of the Insular Cases in Puerto Rico, especially in preparation of their in-person briefing in San Juan, Puerto Rico in May 2023.
April 17, 2023, Monday, from 3:30 p.m. to approximately 5:30 p.m. (AT/ET)
Meeting will be held via Zoom.
Email Victoria Moreno, Designated Federal Officer at
This meeting will be held in Spanish and is available to the public through the registration link above. English interpretation is available to anyone joining via the Zoom link above, but is not available if joining by phone only. If joining only by phone only, callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Closed captions will be provided for individuals who are deaf or hard of hearing. To request additional accommodations, please email
Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the respective meeting. Written comments may be emailed to Victoria Moreno at
Persons who desire additional information may contact the Regional Programs Unit at (202) 809-9618. Records and documents discussed during the meeting will be available for public viewing as they become available at the
Census Bureau, Department of Commerce.
Notice and request for comment.
The U.S. Census Bureau (Census Bureau) has been working to implement modernized methods to continue to ensure the privacy protections of its information products and seeks public engagement and comment on these efforts. The Census Bureau is targeting the release the 2022 County Business Patterns (CBP) data using differential privacy methodology for disclosure avoidance. The Census Bureau has created demonstration tables and invites the public to participate in a live question-and-answer webinar on April 20, 2023, to learn more about how the differential privacy methodology is being applied to the CBP data. This Notice requests written comments on the demonstration tables and other issues related to this topic.
A live question-and-answer webinar will be held on Thursday, April 20, 2023, at 3 p.m. Eastern Daylight Time, for discussion of how the differential privacy methodology is applied to the CBP data. The webinar will be recorded.
Written comments must be submitted on or before June 2, 2023.
The webinar will be made available at
Please direct all written comments to Margaret Beckom, Dissemination Standards Branch, Economic Management Division, U.S. Census Bureau.
Margaret Beckom, Dissemination Standards Branch, Economic
The CBP is an annual series that provides subnational economic data by industry. This series includes estimates of the number of establishments, employment during the week of March 12, first quarter payroll, and annual payroll for subnational geographic areas. This data is useful for studying the economic activity of small areas; analyzing economic changes over time; and as a benchmark for other statistical series, surveys, and databases between economic censuses. Businesses use the data for analyzing market potential, measuring the effectiveness of sales and advertising programs, setting sales quotas, and developing budgets. Government agencies use the data for administration and planning.
A noise infusion technique referred to as multiplicative noise has been the Census Bureau's disclosure avoidance methodology for CBP data since reference year 2007. This method of disclosure avoidance perturbs each establishment's data prior to table creation by applying a random noise multiplier to the magnitude data (
The proposed statistical disclosure limitation approach makes use of controlled, randomized noise added to published statistics to limit the extent to which public data users can make inferences about establishments in the internal, private CBP database. The approach includes two components: (1) Per-Record Differential Privacy, which gives a formal, mathematically provable privacy guarantee against exact inferences about establishments in the private database; and (2) non-differentially private, second-stage noise. Second-stage noise does not confer a formal privacy guarantee, but it ensures that large establishments present in published CBP statistics have a level of relative protection that increases as the number of establishments contributing to a published statistic decreases.
The Census Bureau has created demonstration tables to illustrate how the new differential privacy methodology for disclosure avoidance can be applied to produce CBP estimates and will discuss this application during the April 20th webinar. These tables can be viewed at
Robert L. Santos, Director, Census Bureau, approved the publication of this Notice in the
Economic Development Administration, Department of Commerce.
Notice of information collection, request for comment.
The Department of Commerce, in accordance with the Paperwork Reduction Act of 1995 (PRA), invites the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. The purpose of this notice is to allow for 60 days of public comment preceding submission of the collection to OMB.
To ensure consideration, comments regarding this proposed information collection must be received on or before June 2, 2023.
Interested persons are invited to submit written comments via email to Jacklyn Claxton, Management and Program Analyst, Economic Development Administration, Department of Commerce, at
Requests for additional information or specific questions related to collection activities should be directed to Jacklyn Claxton, Management and Program Analyst, Economic Development Administration, Department of Commerce, at
The Economic Development Administration (EDA) leads the Federal
To effectively administer and monitor its economic development assistance programs, EDA collects certain information from applications for, and recipients of, EDA investment assistance. The purpose of this notice is to seek comments from the public and other Federal agencies on a request for a new information collection for recipients of awards under the EDA American Rescue Plan Act (ARPA) Travel, Tourism and Outdoor Recreation. This is aligned with ensuring that Federal travel, tourism and outdoor recreation investments are evidence-based and data-driven, and accountable to participants and the public.
The EDA research grantee will study the effectiveness of the ARPA Travel, Tourism and Outdoor Recreation Program, which aims to (1) expand the travel, tourism, and outdoor recreation economy; (2) create equitable opportunities for underserved populations; (3) build diversified local recreation economies that are resilient to future economic shocks and climate change; and (4) foster higher-skilled, higher wage job opportunities. To that end, EDA will conduct an electronic data collection survey of ARPA Travel, Tourism and Outdoor Recreation recipients. A subset of the recipients (30) will be engaged in phone interviews to narrow a selection of projects for the development of case studies.
EDA is particularly interested in public comment on how the proposed data collection will support the assessment of program effectiveness, or if alternative information should be considered.
Data will be collected electronically and via phone interviews.
We are soliciting public comments to permit the Department/Bureau to: (a) Evaluate whether the proposed information collection is necessary for the proper functions of the Department, including whether the information will have practical utility; (b) Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used; (c) Evaluate ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The Department of Commerce will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. We invite the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Public comments were previously requested via the
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
The Department of Commerce will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. We invite the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Public comments were previously requested via the
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
Pursuant to section 766.24 of the Export Administration Regulations, 15 CFR parts 730-774 (“EAR” or “the Regulations”),
On April 7, 2022, I signed an order denying PJSC Aeroflot's (“Aeroflot”) export privileges for a period of 180 days on the ground that issuance of the order was necessary in the public interest to prevent an imminent violation of the Regulations. The order was issued
On March 7, 2023, BIS, through OEE, submitted a written request for renewal of the TDO that issued on October 3,
Pursuant to Section 766.24, BIS may issue an order temporarily denying a respondent's export privileges upon a showing that the order is necessary in the public interest to prevent an “imminent violation” of the Regulations, or any order, license or authorization issued thereunder. 15 CFR 766.24(b)(1) and 766.24(d). “A violation may be `imminent' either in time or degree of likelihood.” 15 CFR 766.24(b)(3). BIS may show “either that a violation is about to occur, or that the general circumstances of the matter under investigation or case under criminal or administrative charges demonstrate a likelihood of future violations.”
The U.S. Commerce Department, through BIS, responded to the Russian Federation's (“Russia's”) further invasion of Ukraine by implementing a sweeping series of stringent export controls that severely restrict Russia's access to technologies and other items that it needs to sustain its aggressive military capabilities. These controls primarily target Russia's defense, aerospace, and maritime sectors and are intended to cut off Russia's access to vital technological inputs, atrophy key sectors of its industrial base, and undercut Russia's strategic ambitions to exert influence on the world stage. Effective February 24, 2022, BIS imposed expansive controls on aviation-related (
This OEE request for renewal is based upon the facts underlying the issuance of the initial TDO and the renewal order subsequently issued in this matter on October 3, 2022, as well as other evidence developed during this investigation. These facts and evidence demonstrate that Aeroflot continues to act in blatant disregard for U.S. export controls and the applicable TDO. Specifically, the initial TDO, issued on April 7, 2022, was based on evidence that Aeroflot engaged in conduct prohibited by the Regulations by operating multiple aircraft subject to the EAR and classified under ECCN 9A991.b on flights into Russia after March 2, 2022 from destinations including, but not limited to, Beijing, China, Delhi, India, and Dubai, United Arab Emirates, without the required BIS authorization.
As discussed in the October 3, 2022 renewal order, evidence presented by BIS indicated that, after the initial order issued, Aeroflot continued to operate aircraft subject to the EAR and classified under ECCN 9A991.b on flights both into and within Russia, in violation of the Regulations and the TDO itself.
Since that time, Aeroflot has continued to engage in conduct prohibited by the applicable TDO and Regulations. In its March 7, 2023 request for renewal of the TDO, BIS submitted evidence that Aeroflot is operating aircraft subject to the EAR and classified under ECCN 9A991.b, both on flights into and within Russia, in violation of the October 3, 2022 TDO and/or the Regulations. Specifically, BIS's evidence and related investigation demonstrates that Aeroflot has continued to operate aircraft subject to the EAR, including, but not limited to, on flights into and out of Russia from/to Yerevan, Armenia, Shanghai, China, Bangkok, Thailand, and Urgench, Uzebekistan, as well as domestically within Russia. Information about those flights includes, but is not limited to, the following:
Under the applicable standard set forth in Section 766.24 of the Regulations and my review of the entire record, I find that the evidence presented by BIS convincingly demonstrates that Aeroflot has acted in violation of the Regulations and the TDO; that such violations have been significant and deliberate; and that given the foregoing and the nature of the matters under investigation, there is a likelihood of imminent violations. Therefore, renewal of the TDO is necessary in the public interest to prevent imminent violation of the Regulations and to give notice to companies and individuals in the United States and abroad that they should avoid dealing with Aeroflot, in connection with export and reexport transactions involving items subject to the Regulations and in connection with any other activity subject to the Regulations.
A. Applying for, obtaining, or using any license (except directly related to safety of flight), license exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the EAR except directly related to safety of flight and authorized by BIS pursuant to Section 764.3(a)(2) of the Regulations, or engaging in any other activity subject to the EAR except directly related to safety of flight and authorized by BIS pursuant to Section 764.3(a)(2) of the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or from any other activity subject to the EAR except directly related to safety of flight and authorized by BIS pursuant to Section 764.3(a)(2) of the Regulations.
A. Export, reexport, or transfer (in-country) to or on behalf of Aeroflot any item subject to the EAR except directly related to safety of flight and authorized by BIS pursuant to Section 764.3(a)(2) of the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by Aeroflot of the ownership, possession, or control of any item subject to the EAR that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby Aeroflot acquires or attempts to acquire such ownership, possession or control except directly related to safety of flight and authorized by BIS pursuant to Section 764.3(a)(2) of the Regulations;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from Aeroflot of any item subject to the EAR that has been exported from the United States except directly related to safety of flight and authorized by BIS pursuant to Section 764.3(a)(2) of the Regulations;
D. Obtain from Aeroflot in the United States any item subject to the EAR with knowledge or reason to know that the item will be, or is intended to be, exported from the United States except directly related to safety of flight and authorized by BIS pursuant to Section 764.3(a)(2) of the Regulations; or
E. Engage in any transaction to service any item subject to the EAR that has been or will be exported from the United States and which is owned, possessed or controlled by Aeroflot, or service any item, of whatever origin, that is owned, possessed or controlled by Aeroflot if such service involves the use of any item subject to the EAR that has been or will be exported from the United States except directly related to safety of flight and authorized by BIS pursuant to Section 764.3(a)(2) of the Regulations. For purposes of this paragraph, servicing means installation, maintenance, repair, modification, or testing.
In accordance with the provisions of Sections 766.24(e) of the EAR, Aeroflot may, at any time, appeal this Order by filing a full written statement in support of the appeal with the Office of the Administrative Law Judge, U.S. Coast Guard ALJ Docketing Center, 40 South Gay Street, Baltimore, Maryland 21202-4022.
In accordance with the provisions of Section 766.24(d) of the EAR, BIS may seek renewal of this Order by filing a written request not later than 20 days before the expiration date. A renewal request may be opposed by Aeroflot as provided in Section 766.24(d), by filing a written submission with the Assistant Secretary of Commerce for Export Enforcement, which must be received not later than seven days before the expiration date of the Order.
A copy of this Order shall be provided to Aeroflot, and shall be published in the
This Order is effective immediately and shall remain in effect for 180 days.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of this sunset review, the U.S. Department of Commerce (Commerce) finds that revocation of the countervailing duty (CVD) order on certain cold-drawn mechanical tubing of carbon and alloy steel (cold-drawn mechanical tubing) from the People's Republic of China (China) would be likely to lead to continuation or recurrence of countervailable subsidies at the levels as indicated in the “Final Results of Sunset Review” section of this notice.
Applicable April 3, 2023.
Matthew Palmer, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1678.
On January 3, 2023, Commerce published the notice of initiation of the first sunset review of the
The scope of the
A complete discussion of all issues raised in this sunset review is provided in the accompanying Issues and Decision Memorandum, which is hereby adopted by this notice. The issues discussed in the Issues and Decision Memorandum include the likelihood of continuation or recurrence of countervailable subsidies, the magnitude of the countervailable subsidies likely to prevail if the
Pursuant to sections 751(c)(1) and 752(b) of the Act, Commerce determines that revocation of the
This notice also serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
Commerce is issuing and publishing these final results and this notice in accordance with sections 751(c), 752(b), and 777(i)(1) of the Act, and 19 CFR 351.218.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) finds that revocation of the countervailing duty (CVD) order on certain softwood lumber products (softwood lumber) from Canada would be likely to lead to continuation or recurrence of countervailable subsidies at the levels indicated in the “Final Results of Sunset Review” section of this notice.
Applicable April 3, 2023.
Kristen Johnson or Laura Griffith, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4793 and (202) 482-6430, respectively.
On January 3, 2018, Commerce published the
On December 30, 2022, and January 3, 2023, Commerce received adequate substantive responses from the COALITION and Sierra Pacific, respectively, within the 30-day deadline specified in 19 CFR 351.218(d)(3)(i).
The merchandise covered by this
A complete discussion of all issues raised in this sunset review, including the likelihood of continuation or recurrence of subsidization in the event of revocation of the
Pursuant to sections 751(c) and 752(b) of the Act, we determine that revocation
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
Commerce is issuing and publishing these final results and this notice in accordance with sections 751(c), 752(b), and 777(i)(1) of the Act and 19 CFR 351.218.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) received scope ruling applications, requesting that scope inquiries be conducted to determine whether identified products are covered by the scope of antidumping duty (AD) and/or countervailing duty (CVD) orders and that Commerce issue scope rulings pursuant to those inquiries. In accordance with Commerce's regulations, we are notifying the public of the filing of the scope ruling applications listed below in the month of February 2023.
Applicable April 3, 2023.
Terri Monroe, AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, telephone: (202) 482-1384.
In accordance with 19 CFR 351.225(d)(3), we are notifying the public of the following scope ruling applications related to AD and CVD orders and findings filed in or around the month of February 2023. This notification includes, for each scope application: (1) identification of the AD and/or CVD orders at issue (19 CFR 351.225(c)(1)); (2) concise public descriptions of the products at issue, including the physical characteristics (including chemical, dimensional and technical characteristics) of the products (19 CFR 351.225(c)(2)(ii)); (3) the countries where the products are produced and the countries from where the products are exported (19 CFR 351.225(c)(2)(i)(B)); (4) the full names of the applicants; and (5) the dates that the scope applications were filed with Commerce and the name of the ACCESS scope segment where the scope applications can be found.
Wooden Bedroom Furniture from the People's Republic of China (China) (A-570-890); various models of wooden
Aluminum Wire and Cable from China (A-570-095/C-570-096); aluminum conductor cable manufactured with Chinese-origin aluminum wire;
Chassis and Subassemblies from China (A-570-135/C-570-136); finished chassis from Vietnam with Chinese components;
Wooden Bedroom Furniture from China (A-570-890); steel-framed platform beds containing decorative wood panels in either the headboard, footboard, or both; produced in and exported from China;
Wooden Cabinets and Vanities and Components Thereof from China (A-570-106/C-570-107); Cabinets and Vanities made from Phragmites;
Alloy and Certain Carbon Steel Threaded Rod from China (A-570-932); carbon steel wedge anchors;
Alloy and Certain Carbon Steel Threaded Rod from China (A-570-104); carbon steel hex nut sleeve anchors;
Alloy and Certain Carbon Steel Threaded Rod from China (C-570-105); carbon steel hex nut sleeve anchors;
Alloy and Certain Steel Threaded Rod from China (A-570-932); carbon steel hex nut sleeve anchors;
This list of scope ruling applications is not an identification of scope inquiries that have been initiated. In accordance with 19 CFR 351.225(d)(1), if Commerce has not rejected a scope ruling application nor initiated the scope inquiry within 30 days after the filing of the application, the application will be deemed accepted and a scope inquiry will be deemed initiated the following day—day 31.
In accordance with 19 CFR 351.225(m)(2), if there are companion AD and CVD orders covering the same merchandise from the same country of origin, the scope inquiry will be conducted on the record of the AD proceeding. Further, please note that pursuant to 19 CFR 351.225(m)(1), Commerce may either apply a scope ruling to all products from the same country with the same relevant physical characteristics, (including chemical, dimensional, and technical characteristics) as the product at issue, on a country-wide basis, regardless of the producer, exporter, or importer of those products, or on a company-specific basis.
For further information on procedures for filing information with Commerce through ACCESS and participating in scope inquiries, please refer to the Filing Instructions section of the Scope Ruling Application Guide, at
Please note that this notice of scope ruling applications filed in AD and CVD proceedings may be published before any potential initiation, or after the initiation, of a given scope inquiry based on a scope ruling application identified in this notice. Therefore, please refer to the case segment on ACCESS to determine whether a scope ruling application has been accepted or rejected and whether a scope inquiry has been initiated.
Interested parties who wish to be served scope ruling applications for a particular AD or CVD order may file a request to be included on the annual inquiry service list during the anniversary month of the publication of the AD or CVD order in accordance with 19 CFR 351.225(n) and Commerce's procedures.
Interested parties are invited to comment on the completeness of this monthly list of scope ruling applications received by Commerce. Any comments should be submitted to James Maeder, Deputy Assistant Secretary for AD/CVD Operations, Enforcement and Compliance, International Trade Administration, via email to
This notice of scope ruling applications filed in AD and CVD proceedings is published in accordance with 19 CFR 351.225(d)(3).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
In accordance with the Tariff Act of 1930, as amended (the Act), the Department of Commerce (Commerce) is automatically initiating the five-year reviews (Sunset Reviews) of the antidumping and countervailing duty (AD/CVD) order(s) and suspended investigation(s) listed below. The International Trade Commission (the ITC) is publishing concurrently with this notice its notice of
Applicable April 3, 2023.
Commerce official identified in the
Commerce's procedures for the conduct of Sunset Reviews are set forth in its
In accordance with section 751(c) of the Act and 19 CFR 351.218(c), we are initiating the Sunset Reviews of the following antidumping and countervailing duty order(s) and suspended investigation(s):
As a courtesy, we are making information related to sunset proceedings, including copies of the pertinent statute and Commerce's regulations, Commerce's schedule for Sunset Reviews, a listing of past revocations and continuations, and current service lists, available to the public on Commerce's website at the following address:
In accordance with section 782(b) of the Act, any party submitting factual information in an AD/CVD proceeding must certify to the accuracy and completeness of that information. Parties must use the certification formats provided in 19 CFR 351.303(g). Commerce intends to reject factual submissions if the submitting party does not comply with applicable revised certification requirements.
Pursuant to 19 CFR 351.103(d), Commerce will maintain and make available a public service list for these proceedings. Parties wishing to participate in any of these five-year reviews must file letters of appearance as discussed at 19 CFR 351.103(d). To facilitate the timely preparation of the public service list, it is requested that those seeking recognition as interested parties to a proceeding submit an entry
Domestic interested parties, as defined in section 771(9)(C), (D), (E), (F), and (G) of the Act and 19 CFR 351.102(b), wishing to participate in a Sunset Review must respond not later than 15 days after the date of publication in the
If we receive an order-specific notice of intent to participate from a domestic interested party, Commerce's regulations provide that
This notice of initiation is being published in accordance with section 751(c) of the Act and 19 CFR 351.218(c).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Howard Rosenbaum, Ph.D., Wildlife Conservation Society, 2300 Southern Blvd., Bronx, New York 10460, has applied in due form for a permit to conduct research on 14 species of cetaceans within the New York Bight.
Written, telefaxed, or email comments must be received on or before May 3, 2023.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the “Features” box on the Applications and Permits for Protected Species (APPS) home page,
Written comments on this application should be submitted via email to
Those individuals requesting a public hearing should submit a written request via email to
Courtney Smith, Ph.D., or Jennifer Skidmore, (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 requests a 5-year permit to conduct scientific research on marine mammals to: (1) monitor occurrence, distribution, and behavior using photo-ID data, genetic data, behavioral data, and non-invasive suction cup tagging; and (2) determine sex, population structure, and analyze stable isotopes using remote biopsy samples. Research activities will take place in the New York Bight (NYB), spanning from Montauk, New York to Cape May, New Jersey and from the shore to the continental shelf. Fieldwork will involve vessel surveys, biopsy sampling, photo-ID, seawater collection for eDNA analysis, targeted non-invasive suction cup tagging, and the collection of photos and videos. Biopsy samples may be exported for genetic analysis.
Up to 500 annual takes of the following species are requested: blue (
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
National Telecommunications and Information Administration, Commerce.
Notice of Information Collection, request for comment.
The Department of Commerce, following the Paperwork Reduction Act of 1995 (PRA), invites the public and other Federal agencies to comment on proposed and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. This Notice of Information Collection is for the Web-Based Frequency Coordination System (70-80-90 GHz) which the National Telecommunications and Information Administration (NTIA) provides for frequency coordination. The purpose of this notice is to allow for 60 days of public comment preceding the submission of the collection to OMB.
To ensure consideration, comments regarding this proposed information collection must be received on or before June 2, 2023.
Interested persons are invited to submit written comments by mail to Edward Drocella, Chief, Spectrum Engineering and Analysis Division, Office of Spectrum Management, National Telecommunication and Information Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, or by email to
Requests for additional information or specific questions related to collection activities should be directed to Edward Drocella, Chief, Spectrum Engineering and Analysis Division, via email at
NTIA serves as the President's principal advisor on telecommunications policies and manages the use of the radio-frequency spectrum by federal agencies.
NTIA collects the data by means of an internet web-based system. The applications on the website provide real-time responses to obtain either: (1) a validation of the coordination of a single frequency, or (2) a notification of the unavailability of a frequency at the one site and that further coordination will be required. Applicants submit information electronically to the website
We are soliciting public comments to permit the Department/Bureau to: (a) Evaluate whether the proposed information collection is necessary and proper for the Department to carry its functions, including whether the information will have practical utility; (b) Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used; (c) Evaluate ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB for approval. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Wednesday, April 5, 2023-10:00 a.m.
The meeting will be held remotely, and in person at 4330 East West Highway, Bethesda, Maryland 20814.
Commission Meeting—Open 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).
Defense Security Cooperation Agency, Department of Defense (DoD).
Arms sales notice.
The DoD is publishing the unclassified text of a section 36(b)(1) 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 20-11 with attached Policy Justification and Sensitivity of Technology.
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Funding Source: National Funds
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* As defined in Section 47(6) of the Arms Export Control Act.
The Kingdom of Saudi Arabia has requested to buy two hundred eighty (280) AIM-120C-7/C-8 Advanced Medium Range Air-to-Air Missiles (AMRAAM) and five hundred ninety-six (596) LAU-128 Missile Rail Launchers (MRL). Also included are containers; weapon support and support equipment; spare and repair parts; U.S. Government and contractor engineering, technical and logistical support services; and other related elements of logistical and program support. The total estimated cost is $650 million.
This proposed sale will support U.S. foreign policy and national security of the United States by helping to improve the security of a friendly country that continues to be an important force for political and economic progress in the Middle East.
The proposed sale will improve Saudi Arabia's capability to meet current and future threats by increasing its stocks of medium-range missiles for its fighter aircraft fleet for its national defense. This potential sale will support Saudi Arabia's Eurofighter Typhoon, F-15C/D, F-15S, and F-I5SA programs and will further strengthen the interoperability between the United States and Saudi Arabia. Saudi Arabia will have no difficulty absorbing these missiles 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, Waltham, MA. There are no known offset agreements in connection with this potential sale; however the purchaser typically requests offsets. Any offset agreement will be defined in negotiations between the purchaser and the contractor.
Implementation of this proposed sale will not require the assignment of any additional U.S. Government or contractor representatives to Saudi Arabia.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
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1. The AIM-120C-7/C-8 AMRAAM is a supersonic, air launched, aerial intercept, guided missile featuring digital technology and micro-miniature solid-state electronics. AMRAAM capabilities include look-down/shoot-down, multiple launches against multiple targets, resistance to electronic countermeasures, and interception of high and low-flying and maneuvering targets. The AIM-120C-8 is a form, fit, function refresh of the AIM-120C-7 and is the next generation to be produced.
2. The highest level of classification of information included in this potential sale is SECRET.
3. 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.
4. A determination has been made that the Kingdom of Saudi Arabia 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 are authorized for release and export to the Kingdom of Saudi Arabia.
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 21-0L.
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On March 12, 2019, 19-0B notified the addition of: forty-eight (48) Advanced Field Artillery Tactical Data Systems (AFATDS) (MDE); forty-five (45) M1152A1 HMMWVs—Armor Ready 2-Man (MDE); fifty-four (54) M1084A1P2 HIMARS Resupply Vehicles (MDE); and support and communications equipment, spare and repair parts, test sets, batteries, laptop computers, publications and technical data, facility design, personnel training and equipment, systems integration support, Quality Assurance Teams and a Technical Assistance Fielding Team, United States Government and contractor engineering and logistics personnel services (non-MDE). The additional MDE items were valued at $24.42 million, resulting in a new MDE value of $924.42 million, and additional non-MDE items were valued at $225.574 million, resulting in a total program increase of $250 million. The total case value increased to $1.5 billion.
On June 3, 2020, 20-0F notified the addition of: six (6) AN/TPQ-53 Radar Systems (MDE); three hundred eighty-four (384) 120MM High Explosive (HE) Cartridges (MDE); and support and communications equipment, vehicles, ammunition, transportation, spare and repair parts, test sets, batteries, laptop computers, publications and technical data, facility design, personnel training and equipment, systems integration support, Quality Assurance Teams and a Technical Assistance Fielding Team, United States Government and contractor engineering and logistics personnel services. (non-MDE). The additional MDE items were valued at $175 million, resulting in a new MDE value of $1.1 billion, and additional non-MDE items were valued at $75 million, resulting in a total program increase of $250 million. The total
(iv) This transmittal notifies the addition of:
1. Three (3) High Mobility Multipurpose Wheeled Vehicles (HMMWV), Armor Ready 2-Man, M1152A1 (MDE); and
2. Eighteen (18) Army Tactical Missile Systems (ATACMS) M57 Unitary (MDE)
The additional MDE items are valued at $45 million, resulting in a new MDE value of $1.145 billion. The total program value will increase to $1.795 billion.
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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 21-55 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 Australia has requested to buy defense services related to the future purchase of Standard Missile 6 Block I (SM-6) and Standard Missile 2 Block IIIC (SM-2 IIIC) missiles. These services include development; engineering, integration, and testing (EI&T); obsolescence engineering activities required to ensure readiness; U.S. Government and contractor engineering/technical assistance, and related studies and analysis support; technical and logistics support services; and other related elements of program and logistical support. The total estimated value is $350 million.
This proposed sale will support the foreign policy and national security objectives of the United States. Australia is one of our most important allies in the Western Pacific. Australia is strategically positioned to contribute significantly to ensuring peace and economic stability in the region. It is vital to the U.S. national interest to assist our ally in developing and maintaining a strong and ready self-defense capability.
The proposed sale will support the readiness and future sale of vital anti-air warfare capability that can be deployed from Australia's newest Hunter-Class Destroyers equipped with the latest AEGIS Combat Systems. The purchase of Standard Missile 6 Block I (SM-6) and Standard Missile 2 Block IIIC (SM-2 IIIC) missiles is currently included in Australia's procurement roadmap and will improve their ability to operate alongside U.S. and Allied naval forces against the full spectrum of naval threats. Australia will have no difficulty absorbing these defense services into its armed forces.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The principal U.S. contractor will be Raytheon Missiles and Defense (RMD), Tucson, AZ. There are no known offset agreements proposed in connection with this potential sale.
Implementation of the proposed sale will require U.S. Government and contractor personnel to visit Australia on a temporary basis in conjunction with program technical oversight and support requirements, including program and technical reviews.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
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1. The proposed sale will result in the transfer of sensitive and classified technical data related to obsolescence engineering, integration, and test activities required to ensure readiness for the future procurement of Standard Missile 6 Block I (SM-6) and Standard Missile 2 Block IIIC (SM-2 IIIC) missiles. No SM-6 Blk I or SM-2 IIIC hardware or software will be transferred under this proposed sale. Australia currently employs SM-2 Block IIIA and IIIB on Royal Australian Navy (RAN) AEGIS surface combatants, and has been afforded access to similar technical information for these delivered systems.
2. The highest level of classification of defense articles, components, and services included in this potential sale is SECRET.
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 the Government of Australia 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 are authorized for release and export to the Government of Australia.
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 21-54 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 Republic of Korea has requested to buy three thousand nine hundred fifty-three (3,953) Joint Direct Attack Munition (JDAM) Guidance Kits, KMU-556 for GBU-31; one thousand nine hundred eighty-one (1,981) JDAM Guidance Kits, KMU-557 for GBU-31, GBU-56; one thousand one hundred seventy-nine (1,179) JDAM Guidance Kits, KMU-572 for GBU-38; and one thousand seven hundred fifty-five (1,755) FMU-139 Fuze Systems. Also included are DSU-42/B Detectors, Laser Illuminated Target for GBU-56; weapon spare parts, components and accessories; weapons training aids, devices, and spare parts; U.S. Government and contractor engineering, technical assistance, and logistical support services; and other related elements of logistical and program support. The estimated total cost is $258 million.
This proposed sale will support the foreign policy goals and national security objectives of the United States by helping to improve the security of a Major Non-NATO ally that continues to be an important force for political stability, peace, and economic progress in the Indo-Pacific region.
The proposed sale will improve the Republic of Korea's capability to meet current and future threats by increasing available stores of munitions on the Korean Peninsula in support of Alliance Operations Plans (OPLANs), as well as to fulfill conditions outlined by the Condition-Based Operational Control (OPCON) Transition Plan. The Republic of Korea will have no difficulty absorbing these articles 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 Boeing Corporation, St Louis, Missouri. 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 the Republic of Korea.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
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1. The Joint Direct Attack Munition (JDAM) is a guidance kit that converts existing unguided free-fall bombs into an accurate, adverse weather “smart” munition. The Guidance Set consists of a Tail Kit, which contains the Inertial Navigation System (INS) and a Global Positioning System (GPS), a set of Aerosurfaces and an umbilical cover, which allows the JDAM to improve the accuracy of unguided, General Purpose bombs. The JDAM weapon can be delivered from modest standoff ranges at high or low altitudes against a variety of land and surface targets during the day or night. The JDAM is capable of receiving target coordinates via preplanned mission data from the delivery aircraft, by onboard aircraft sensors (
(a) The KMU-572 is the tail kit for a GBU-38 500LB JDAM.
(b) The KMU-556 is the tail kit for a GBU-31 2,000LB Mk-84 (General Purpose bomb body) JDAM.
(c) The KMU-557 is the tail kit for a GBU-31/-56 2,000LB BLU-109 (General Purpose bomb body) JDAM.
2. The Laser JDAM (GBU-56) is a 2,000LB JDAM that incorporates all the capabilities of the JDAM guidance tail kit and adds a DSU-42/B precision laser guidance set. The DSU-42/B sensor gives the weapon system an optional semi-active laser seeker. The addition of the DSU-42/B laser sensor combined with additional cabling and mounting hardware turns a GBU-31 JDAM into a GBU-56 LJDAM. The DSU-42/B consists of a laser spot tracker, a cable connecting the DSU-42/B to the basic JDAM guidance set, a cable cover, cable cover tie-down straps, modified tail kit door and wiring harness, and associated modified JDAM software that incorporates navigation and guidance flight software to support both LJDAM and standard JDAM missions. The DSU-42/B adds the flexibility to strike targets of opportunity, including mobile and moving targets, to an already accurate adverse weather GPS/INS guided JDAM.
3. The Joint Programmable Fuze (JPF) FMU-139D/B is a multi-delay, multi-arm and proximity sensor compatible with general purpose blast, frag and hardened-target penetrator weapons. The JPF settings are cockpit selectable in flight when used numerous precision-guided weapons. It can interface with the following weapons: GBU-31, GBU-38, and GBU-56.
4. The highest level of classification of defense articles, components, and services included in this potential sale is SECRET.
5. 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.
6. A determination has been made that the Republic of Korea 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.
7. All defense articles and services listed in this transmittal have been authorized for release and export to the Republic of Korea.
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
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Funding Source: Foreign Military Financing (FMF)
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*As defined in Section 47(6) of the Arms Export Control Act.
The Government of Israel has requested to buy up to eighteen (18) CH-53K Heavy Lift Helicopters; up to sixty (60) T408-GE-400 Engines (54 installed, 6 spares); and up to thirty-six (36) Embedded Global Positioning System/Inertial Navigation Systems (EGI) with Selective Availability/Anti-Spoofing Module (SAASM). Also included is communication equipment; GAU-21 .50 caliber Machine Guns; Mission Planning System; facilities study, design and construction; spare and repair parts; support and test equipment; publications and technical documentation; aircrew and maintenance training; U.S. Government and contractor engineering, technical, and logistics support services; and other related elements of logistics and program support. The total estimated cost is $3.4 billion.
The United States is committed to the security of Israel, and it is vital to U.S. national interests to assist Israel to develop and maintain a strong and ready self-defense capability. This proposed sale is consistent with those objectives.
The proposed sale will improve the Israeli Air Force's capability to transport armored vehicles, personnel, and equipment to support distributed operations deep inland from a sea-based center of operations. Israel will use the enhanced capability as a deterrent to regional threats and to strengthen its homeland defense. Israel will have no difficulty absorbing this equipment into its armed forces.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The prime contractors will be Lockheed Martin Global, Inc., Shelton, Connecticut; and General Electric Company, Lynn, Massachusetts. There are no known offset agreements proposed in connection with this potential sale. Any offset agreements will be defined in negotiations between the purchaser and the contractor(s).
Implementation of this proposed sale will require multiple trips by U.S. Government and contractor representatives to participate in program and technical reviews. It will also require approximately four (4) contractor support representatives to reside in country for a period of three (3) years to support this program.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
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1. The CH-53K Heavy Lift Helicopter focuses primarily on the transport of armored vehicles, personnel, and equipment to support distributed operations deep inland from a sea-based center of operations. The CH-53K carries several sensors and data links to enhance its ability to operate in hostile environments and in coordination with group forces. The aircraft is night vision compatible. The sensitive technologies include:
a. Communications security devices contain sensitive encryption algorithms and keying material. The purchasing country has previously been released and utilizes COMSEC devices in accordance with set procedures and without issue.
b. Identification Friend or Foe (IFF) (KIV-78) contains embedded security devices containing sensitive encryption algorithms and keying material. The purchasing country will utilize COMSEC devices in accordance with set procedures.
c. GPS PPS/SAASM/MGUE/ADAP—Global Positioning System (GPS) Precise Positioning Service (PPS) provides space-based Global Navigation Satellite System (GNSS) signals that have reliable location and time information in all weather, at all times, and anywhere on or near the earth when and where there is an unobstructed line of sight to four or more GPS satellites. The Selective Availability/Anti-Spoofing Module (SAASM) and Modernized GPS User Equipment (MGUE) are used as military embedded GPS receivers (EGRs) to provide for decryption and use of the GPS PPS by the Embedded GPS/Inertial Navigation System (EGI). In addition, the Advanced Digital Antenna Production (ADAP) GPS anti-jam protection system provides electronic protection from enemy countermeasures to disrupt and jam GPS signals. The combination of the EGI and the ADAP provide for robust positioning, navigation, and timing (PNT) capability.
2. All the mission data, including sensitive parameters, is loaded from an off board station before each flight and does not stay with the aircraft after electrical power has been removed. Sensitive technologies are protected as defined in the program protection and anti-tamper plans.
3. The highest level of classification of defense articles, components, and services included in this potential sale is SECRET.
4. If a technologically advanced adversary were to obtain knowledge of the specific hardware or 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.
5. A determination has been made that Israel can provide substantially the same degree of protection for the
6. All defense articles and services listed in this transmittal are authorized for release and export to the Government of Israel.
Department of the Navy, U.S. Department of Defense (DoD).
Notice of Federal Advisory Committee meeting.
The DoD is publishing this notice to announce that the following Federal Advisory Committee meeting of the Education for Seapower Advisory Board (E4SAB) will take place.
The meeting is open to the public and will be held on Wednesday, April 12, 2023 from 1 p.m. to 5 p.m. Eastern Time Zone (ET).
The open meeting will be held at the Admiral Gooding Center, Navy Yard, Washington, DC. The meeting will be handicap accessible. Escort is required.
Dr. Kendy Vierling, Designated Federal Officer (DFO), Office of the Assistant Secretary of the Navy (Manpower and Reserve Affairs), Pentagon, Washington, DC 20350-1000, 703-695-4589,
This meeting is being held under the provisions of chapter 10 of Title 5, United States Code (U.S.C.)(commonly known as the Federal Advisory Committee Act (FACA) (formerly 5 U.S.C. App.), as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and Title 41 Code of Federal Regulations (CFR) 102-3.140 and 102-3.150.
Due to circumstances beyond the control of the Designated Federal Officer, the Education for Seapower Advisory Board was unable to provide public notification required by 41 CFR 102-3.150(a) concerning its April 12, 2023 meeting. Accordingly, the Advisory Committee Management Officer for the Department of Defense, pursuant to 41 CFR 102-3.150(b), waives the 15-calendar day notification requirement.
Institute of Education Sciences (IES), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act (PRA) of 1995, the Department is proposing a new information collection request (ICR).
Interested persons are invited to submit comments on or before May 3, 2023.
Written comments and recommendations for proposed information collection requests should be submitted within 30 days of publication of this notice. Click on this link
For specific questions related to collection activities, please contact Yumiko Sekino, (202) 374-0936.
The Department is especially interested in public comment addressing the
Office of Security, Facilities and Logistics, Office of Finance and Operations, U.S. Department of Education.
Notice of a new system of records.
In accordance with the Privacy Act of 1974, as amended (Privacy Act), the U.S. Department of Education (Department) publishes this notice of a new system of records entitled “Emergency Notification System (ENS)” (18-03-06). The Emergency Notification System (ENS) provides a notification system for the Department's internal Continuity of Operations (COOP) and Pandemic plans, as well as day-to-day emergency management efforts. ENS provides real-time notifications to Department employees during an emergency event. ENS also gives Department employees the ability to access and modify their own personal information and preferences via a self-service portal, and system administrators the ability to generate reports to verify the status of the aforementioned emergency alerts.
Submit your comments on this new system of records notice on or before May 3, 2023.
This new system of records notice will become applicable upon publication in the
Comments must be submitted via the Federal eRulemaking Portal at
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Lisa Senecal, Information System Owner, Office of Security, Facilities and Logistics, Office of Finance and Operations, U.S. Department of Education, 400 Maryland Avenue SW, Room 224-50, Washington, DC 20202-6110. Telephone: (202) 205-8123. Email:
In support of the Department's COOP, Devolution, Pandemic, and Reconstitution Plans, as well as day-to-day emergency management efforts, the ENS provides the Department an emergency alert tool to communicate, via real-time notifications, pertinent information to Department employees during emergencies (
ENS consists of two components: a desktop application accessed by all users and a browser-based web application accessed by system administrators. Once ENS is deployed, the desktop application will be installed on all Government Furnished Equipment (GFE) computers but will only be accessible to current Department employees.
You may also access documents of the Department published in the
For the reasons discussed in the preamble, the Acting Assistant Secretary for the Office of Finance and Operations of the U.S. Department of Education (Department) publishes a notice of a new system of records to read as follows:
Emergency Notification System (ENS) (18-03-06).
Unclassified.
U.S. Department of Education, Office of Security, Facilities and Logistics, Office of Finance and Operations, 400 Maryland Avenue SW, Washington, DC 20202-6110.
BlackBerry, 2988 Campus Drive, Suite 200, San Mateo, CA 94403. Blackberry hosts the infrastructure that supports the ENS applications, as a Software-as-a-Service, including backend application processing and data hosting.
Lisa Senecal, Information System Owner, Office of Security, Facilities and Logistics, Office of Finance and Operations, U.S. Department of Education, 400 Maryland Avenue SW, Room 224-50, Washington, DC 20202-6110.
Presidential Policy Directive 40, National Continuity Policy (July 15, 2016), Federal Continuity Directive 1, Federal Executive Branch National Continuity Program and Requirements (January 17, 2017), and Executive Order 13618 (July 6, 2012), as amended by Executive Order 13961 (December 7, 2020).
The purposes of the ENS are to store and maintain emergency contact information for current Department employees:
(1) To maintain and implement emergency plans, including Continuity of Operations and facility evacuation plans; and
(2) To notify, locate, and mobilize individuals as necessary during emergency or other threatening situations.
Current Department employees.
The categories of records in the system are comprised of the primary contact information for current Department employees, such as their first name, last name, business phone number, business email address, and business location, and, where provided by current Department employees on a voluntarily basis, their alternate contact information, such as their personal email address and personal phone number.
Current Department employees, and the Department Active Directory System.
The Department may disclose information contained in a record in this system of records under the routine uses listed in this system of records without the consent of the individual if the disclosure is compatible with the purposes for which the record was collected. The Department may make these disclosures on a case-by-case basis or, if the Department has complied with the computer matching requirements of the Privacy Act of 1974, as amended (Privacy Act) (5 U.S.C. 552a), under a computer matching agreement.
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(i) The Department or any of its components;
(ii) Any Department employee in their official capacity;
(iii) Any Department employee in their individual capacity where the U.S. Department of Justice (DOJ) has been requested to or has agreed to provide or arrange for representation of the employee;
(iv) Any Department employee in their individual capacity when the
(v) The United States, where the Department determines that the litigation is likely to affect the Department or any of its components.
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Records are stored on an encrypted system within a secured and controlled environment.
Records are retrieved by an employee's name only for administrative purposes to include associating a Department employee to a specific region or building to receive tailored alerts for their geographic area.
The records in this system of records will be retained and disposed of in accordance with NARA General Records Schedule 5.3, Item 020.
A vendor that is Federal Risk and Authorization Management Program (FedRAMP) certified hosts the ENS system outside the Department's network. The Department access and uses this system as a Software as a Service (SaaS) and requires the vendor to complete routine testing of its environment to ensure the confidentially, integrity, and availability of the information in the system and services provided. The Cloud Service Provider enforces security controls over the physical facility where the system is hosted in adherence with FedRAMP standards and provides continuous monitoring reports to the Department.
The ENS system utilizes role-based authentication to ensure only authorized users can access information, and they can only access the information needed to perform their duties. Authentication to the system is permitted only over secure, encrypted connections.
If you wish to request access to records regarding you in this system of records, contact the system manager at the address listed under SYSTEM MANAGER. You must provide necessary particulars such as your full name, address, and telephone number, and any other identifying information requested by the Department while processing the request to distinguish between individuals with the same name. Your request must meet the requirements of the Department's Privacy Act regulations in 34 CFR 5b.5, including proof of identity.
If you wish to contest the content of a record regarding you in this system of records, contact the system manager at the address listed under SYSTEM MANAGER. You must provide your full name, address, and telephone number, and any other identifying information requested by the Department to distinguish between individuals with the same name. Your request must also identify the particular record within the system that you wish to have changed, state whether you seek an addition to or a deletion or substitution of the record, and explain the reasons why you wish to have the record changed. Your request must meet the requirements of the Department's Privacy Act regulations in 34 CFR 5b.7.
If you wish to determine whether a record exists regarding you in this system of records, contact the system manager at the address listed under SYSTEM MANAGER. You must provide your full name, address, and telephone number, and any other identifying information requested by the Department while processing the request to distinguish between individuals with the same name. Your request must meet the requirements of the Department's Privacy Act regulations in 34 CFR 5b.5, including proof of identity.
None.
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This constitutes notice, in accordance with 18 CFR 385.2201(b), of the receipt of prohibited and exempt off-the-record communications.
Order No. 607 (64 FR 51222, September 22, 1999) requires Commission decisional employees, who make or receive a prohibited or exempt off-the-record communication relevant to the merits of a contested proceeding, to deliver to the Secretary of the Commission, a copy of the communication, if written, or a summary of the substance of any oral communication.
Prohibited communications are included in a public, non-decisional file associated with, but not a part of, the decisional record of the proceeding. Unless the Commission determines that the prohibited communication and any responses thereto should become a part of the decisional record, the prohibited off-the-record communication will not be considered by the Commission in reaching its decision. Parties to a proceeding may seek the opportunity to respond to any facts or contentions made in a prohibited off-the-record communication and may request that the Commission place the prohibited communication and responses thereto in the decisional record. The Commission will grant such a request only when it determines that fairness so requires. Any person identified below as having made a prohibited off-the-record communication shall serve the document on all parties listed on the official service list for the applicable proceeding in accordance with Rule 2010, 18 CFR 385.2010.
Exempt off-the-record communications are included in the decisional record of the proceeding, unless the communication was with a cooperating agency as described by 40 CFR 1501.6, made under 18 CFR 385.2201(e)(1)(v).
The following is a list of off-the-record communications recently received by the Secretary of the Commission. This filing may be viewed on the Commission's website at
Take notice that on March 27, 2023, pursuant to sections 210 and 211 of the Federal Power Act,
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
This is a supplemental notice in the above-referenced proceeding of Cottontail Solar 2, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is April 17, 2023.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
On August 24, 2022, Transcontinental Gas Pipe Line Company, LLC submitted to the Federal Energy Regulatory Commission (Commission) a copy of its application for a Clean Water Act section 401(a)(1) water quality certification filed with Virginia Department of Environmental Quality (VADEQ), in conjunction with the above captioned project. Pursuant to 40 CFR 121.6 and section 157.22(b) of the Commission's regulations,
If VADEQ fails or refuses to act on the water quality certification request on or before the above date, then the agency
This is a supplemental notice in the above-referenced proceeding of MPower Energy NJ LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is April 17, 2023.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
This is a supplemental notice in the above-referenced proceeding of Cottontail Solar 8, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is April 17, 2023.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
Take notice that the Commission 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:
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), NSPS for Incinerators (EPA ICR Number 1058.14, OMB Control Number 2060-0040) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through July 31, 2023. Public comments were previously requested via the
Comments may be submitted on or before May 3, 2023.
Submit your comments, referencing Docket ID Number EPA-HQ-OAR-2022-0052, to EPA online using
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Muntasir Ali, Sector Policies and Program Division (D243-05), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-0833; email address:
This is a proposed extension of the ICR, which is currently approved through July 31, 2023, during a 60-day comment period (87 FR 43843). An agency may not conduct or sponsor, and a person is not required to response to, a collection of information, unless it displays a currently valid OMB control number.
Public comments were previously requested, via the
In general, all NSPS standards require initial notifications, performance tests, and periodic reports by the owners/operators of the affected facilities. They are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. These notification, reports, and records are essential in determining compliance, and are required of all affected facilities subject to the NSPS.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), NSPS for Stationary Gas Turbines (EPA ICR Number 1071.14, OMB Control Number 2060-0028) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through July 31, 2023. Public comments were previously requested via the
Comments may be submitted on or before May 3, 2023.
Submit your comments, referencing Docket ID Number EPA-HQ-OAR-2022-0060, to EPA online using
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Muntasir Ali, Sector Policies and Program Division (D243-05), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-0833; email address:
This is a proposed extension of the ICR, which is currently approved through March 31, 2023. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
Public comments were previously requested via the
In general, all NSPS standards require initial notifications, performance tests, and periodic reports by the owners/operators of the affected facilities. They are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. These notifications, reports, and records are essential in determining compliance, and are required of all affected facilities subject to NSPS.
Notice of Open Meeting of the Sub-Saharan Africa Advisory Committee of the Export-Import Bank of the United States (EXIM).
Tuesday, April 18th from 1:00 p.m.-2:30 p.m. ET.
The meeting will be held virtually.
Public Participation: The meeting will be open to public participation and time will be allotted for questions or comments submitted online. Members of the public may also file written statements before or after the meeting to
Discussion of EXIM policies and programs designed to support the expansion of financing support for U.S. manufactured goods and services in Sub-Saharan Africa.
For further information, contact India Walker, External Engagement Specialist at 202-480-0062.
9:00 a.m., Thursday, April 13, 2023.
You may observe this meeting in person at 1501 Farm Credit Drive, McLean, Virginia 22102-5090, or virtually. If you would like to observe, at least 24 hours in advance, visit
This meeting will be open to the public.
The following matters will be considered:
If you need more information or assistance for accessibility reasons, or have questions, contact Ashley Waldron, Secretary to the Board. Telephone: 703-883-4009. TTY: 703-883-4056.
Federal Communications Commission.
Notice; request for comments.
In this document, the Wireless Telecommunications Bureau (Bureau) of the Federal Communications Commission (Commission) seeks comment on a petition for waiver (Petition) filed by ATIS requesting waiver for all entities subject to the hearing aid compatibility rules. The Petition seeks to allow wireless handsets to satisfy a reduced volume control testing methodology to be certified as hearing-aid compatible.
Interested parties may file comments on or before May 3, 2023, and reply comments on or before May 18, 2023.
You may submit comments, identified by WT Docket No. 20-3, by any of the following methods:
•
•
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.
• U.S. Postal Service first-class, Express, and Priority mail must be
• Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19.
For further information on this proceeding, contact Eli Johnson,
This is a summary of the Commission's document, WT Docket No. 20-3, DA 23-250, released on March 23, 2023. The full text of this document is available for public inspection on the FCC's website at
1. The Wireless Telecommunications Bureau seeks comment on a petition for waiver (Petition) filed by ATIS requesting waiver of § 20.19(b)(1) and (b)(3) of the Commission's rules for all entities subject to the hearing aid compatibility rules. The Petition seeks to allow wireless handsets to satisfy a reduced volume control testing methodology to be certified as hearing-aid compatible. In particular, we seek comment on this waiver request in the context of the Commission's commitment to attaining 100% hearing aid compatibility of covered wireless handsets, as soon as achievable, as well as the Commission's previous finding that a volume control requirement is necessary “to ensure the provision of effective telecommunications for people with hearing loss.”
2. The Commission's commitment to a volume control requirement dates back to the original hearing aid compatibility order in 2003. Since then, the Commission has repeatedly explored the issue and in 2017 concluded that “the public interest and the objectives mandated by section 710 of the Act will be served by modifying the Commission's acoustic coupling HAC rules for wireless handsets to include a volume control requirement designed to accommodate people with hearing loss.” The Commission affirmed its belief “that a volume control requirement that specifies certain levels of amplification as an element of hearing aid compatibility is just as necessary for wireless handsets as it is for wireline phones, to ensure the provision of effective telecommunications for people with hearing loss.” In deciding to adopt a wireless volume control requirement, the Commission stated that “a volume control requirement will not only improve communications for those using hearing aids and cochlear implants, it also will help millions of Americas with hearing loss who do not use these devices.”
3. While the Commission adopted a volume control requirement in 2017, the Commission delayed compliance with the requirement until March 1, 2021. At the time the Commission adopted this rule, there was no standard for volume control, but the Commission anticipated that ANSI would adopt a standard that the Commission could incorporate into its rules. The Commission expected to adopt the ANSI volume control standard by 2019 in order to give manufacturers two years following adoption to build the standard into new handsets. It was not until 2019, however, that ANSI submitted to the Commission as part of the 2019 ANSI Standard the ANSI/TIA-5050-2018 Volume Control Standard (ANSI/TIA Volume Control Standard), which is incorporated into the 2019 ANSI Standard. Commenters broadly supported the adoption of the 2019 ANSI Standard and the related ANSI/TIA Volume Control Standard. Both standards are incorporated into the Commission's rules by reference (
4. According to ATIS's Petition, during the course of the hearing aid compatibility Task Force's work this past spring, the Task Force discovered “significant and material problems with the methodology used for testing volume control.” Specifically, Working Group 3 of the Task Force received data on eighteen mobile handsets that were tested under the new standards. ATIS states that the ANSI/TIA Volume Control Standard's methodology for testing volume control resulted in every current HAC-certified handset they tested failing to pass the standard.
5. Accordingly, ATIS specifically requests a waiver of § 20.19(b)(1) and (b)(3), asking us to allow wireless handsets to satisfy a reduced volume control testing methodology instead of the full ANSI/TIA Volume Control Standard in order to be certified as hearing-aid compatible. ATIS asserts that there is a “problem with the underlying testing methodology” in the ANSI/TIA Volume Control Standard that renders compliance with the ANSI 2019 Standard functionally impossible for handsets. ATIS proposes that, for the duration of the waiver, the Commission allow a handset to be certified as hearing-aid compatible if it:
i. Meets the following clauses of the 2019 ANSI Standard:
ii. Passes the conversational gain test in the ANSI/TIA Volume Control Standard for all available codecs and air interface combinations at the 2N level; and
iii. Obtains passing results for at least one of the device's available codecs for the distortion and frequency response requirements in the ANSI/TIA Volume Control Standard. Under the proposed waiver, ATIS also requests that test codecs be limited to those that are in scope for the ANSI/TIA Volume Control Standard, which include narrowband and wideband codecs.
6. ATIS asserts that TIA is in the process of “reinitializing” its standards committee to revise the ANSI/TIA Volume Control Standard. ATIS then notes that stakeholders would need a period of time for testing and implementation of the standard before the Commission considers adopting the revised standard into its rules. ATIS requests that the waiver remain in effect until the Commission has had the opportunity to review the revised standard.
7. In the context of the Commission's commitment to attaining 100% hearing aid compatibility for handsets, to the extent achievable, as well as the significance of the volume control standard for improving accessibility to handsets for consumers with hearing loss, we seek comment on how to address any request for waiver of the volume control standard, as well as the scope of this particular request.
8. We note that when the Commission adopted a volume control requirement for mobile handsets in October 2017, work on a wireless volume control
9. We seek comment on the potential impact of this waiver request on consumers, as well as the application of the Commission's established waiver standard. In particular, we seek comment on the impact of the requested waiver of the volume control requirement on the more than 30 million Americans who have hearing loss. Would a grant be consistent with the Commission's commitment to implementing a volume control standard to improve accessibility and with our statutory duties under section 710 of the Communications Act of 1934, as modified? How would a denial of the requested waiver impact consumers? In addition, we seek comment on whether and how the requested waiver would further our goal of making 100% of wireless handsets hearing-aid compatible. Do individuals and consumer groups representing individuals who are deaf and hard of hearing support the scope of the waiver request?
10. We also seek comment on the scope of the waiver request. The waiver request seeks a departure from the volume control standard previously supported by parties and adopted into the Commission's rules. Is the alternative volume control testing methodology proposed by ATIS sufficient to ensure that handsets have adequate volume control? Did the covered entities perform any testing to ensure that this alternative volume control testing methodology would ensure that handsets have sufficient volume control? If so, we encourage industry to share data related to this testing in their comments.
11. We seek comment on the portion of the waiver related to conversational gain and the scope of that request. The waiver proposes to test only the 2N force, which replicates the experience of hearing aid users. The ANSI/TIA Volume Control Standard, however, also requires testing of conversational gain at the 8N force, which is intended to replicate the experience of those consumers with hearing loss who do not use hearing aids. The waiver request does not specify why covered entities need a waiver of the 8N force portion of the conversational gain test, other than the “high failure rate” at the 8N force. What specific problem with the 8N testing requirement makes compliance with the test problematic? Are there steps manufacturers could take that would address such problems and enable their devices to pass the test? How would the testing methodology proposed by ATIS, which would include a waiver of the requirement to test conversational gain at the 8N force, ensure that a handset's conversational gain is suitable for those consumers with hearing loss that do not use hearing aids? Should we maintain the testing requirement at the 8N force, as specified in the ANSI/TIA Volume Control Standard?
12. We seek comment on the portion of the waiver request related to distortion and frequency response and its scope. Guidance from the Office of Engineering and Technology Knowledge Database (KDB) requires the worst-case test result to be submitted for certification—which ATIS suggests “implicitly require[es] an all-codec approach.” With this in mind, would it be sufficient to test and document only one of a device's available codecs for the distortion and frequency response requirements of the ANSI/TIA Volume Control Standard, as ATIS requests? What was the basis for the Task Force working group's finding that “meeting the distortion and frequency response requirements when tested with a single codec” is “sufficient to indicate that the amplifier/speaker combination is capable of producing the desired output signal quality and level”? Did the working group or covered entities perform any testing to ensure that this would be the case? How can we be sure that the consumer experience would not be negatively affected if testing only one of the device's available codecs for distortion and frequency response? If testing only one of a device's available codecs is sufficient, why was the ANSI/TIA Volume Control Standard developed to test both narrowband and wideband codecs? Which specific types of codecs are incompatible with the pulse-noise test? If we were to grant a waiver, is there a way to tailor the request more narrowly for relief to address ATIS's concerns with the pulse-noise signal test? For example, could we limit the tests to only those codecs within the scope of the ANSI/TIA Volume Control Standard?
13. We also seek comment on whether we should impose other conditions on the waiver, if granted. For example, should we require labeling specifying that a handset tested under this methodology did not meet the full volume control standard? What other conditions are necessary to ensure that consumers with hearing loss have access to hearing-aid compatible handsets that meet established technical standards?
14. Finally, we seek comment on the timeframe contemplated for the waiver. We note that the request does not seek a specific length of time for the waiver. If granted, should we set additional time limits or reporting requirements on the waiver? For example, should we consider requiring ATIS to submit quarterly reports on the progress of revising the volume control standard? In order to ensure hearing aid compatibility compliance pursuant to the ATIS waiver and because timely hearing aid compatibility compliance is in the public interest, should we consider requiring the waiver's covered entities to participate in the TIA standards-setting process? Should we establish a period of time for testing and implementation of the standard?
15. ATIS cites as evidence the Task Force's concurrently filed Final Report and Recommendation (Report), which recommends revisions to our hearing aid compatibility rules—including revisions to the standards for volume control testing. However, we do not seek feedback here on the Report or its recommendations, except to the extent that ATIS relies on studies in the Report as support for its waiver request. We only solicit comment on ATIS's specific waiver request, and on any alternate relief that may be appropriate.
16. We note that the Commission adopted an Initial Regulatory Flexibility Analysis (IRFA) and a Final Regulatory Flexibility Analysis (FRFA) in the proceeding that adopted the volume-control standard. The FRFA, among other things, analyzes the objectives and the economic effects on small entities of the requirement that ATIS asks us to waive. We seek comment on how the proposed waiver and the alternatives discussed herein could affect the IRFA and the FRFA previously adopted by the Commission. How could action in response to ATIS's petition ensure that we are minimizing burdens on small entities?
17.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written PRA comments should be submitted on or before June 2, 2023. If you anticipate that you will be submitting comments but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email to
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
The 3.7 GHz Report and Order calls for the relocation of existing FSS operations in the band into the upper 200 megahertz of the band (4.0-4.2 GHz) and relocation of existing FS operations into other bands, making the lower 280 megahertz (3.7-3.98 GHz) available for flexible use throughout the contiguous United States through a Commission-administered public auction of overlay licenses that is scheduled to occur later this year. The Commission adopted a robust transition schedule to achieve a prompt relocation of FSS and FS operations so that a significant amount of spectrum could be made available quickly for next-generation wireless deployments. At the same time, the Commission sought to ensure the effective accommodation of relocated incumbent users. To facilitate an efficient transition, the Commission adopted a process for fully reimbursing existing operators for the costs of this relocation and for offering accelerated relocation payments to encourage a timely transition. Flexible-use licensees will be required to pay any accelerated relocation payments, if elected by eligible space station operators, and reimburse incumbent operators for their actual relocation costs associated with clearing the lower 300 megahertz of the band while ensuring continued operations for their customers. The 3.7 GHZ Report and Order establishes a Relocation Payment Clearinghouse to oversee the cost-related aspects of the transition and establishes a Relocation Coordinator to establish a timeline and take actions necessary to migrate and filter incumbent earth stations to ensure continued, uninterrupted service during and following the transition.
FCC staff will use this data to ensure that 3.7-4.2 GHz band stakeholders adopt practices and standards in their operations to ensure an effective, efficient, and streamlined transition. Status reports and other information required in this collection will be used to ensure that the process of clearing the lower portion of the band is efficient and timely, so that the spectrum can be auctioned for flexible-use service licenses and deployed for next-generation wireless services, including 5G, as quickly as possible. The collection is also necessary for the Commission to satisfy its oversight
The Commission concluded in the 3.7 GHz Report and Order that a Relocation Payment Clearinghouse and Relocation Coordinator are critical to ensuring that the reconfiguration is administered in a fair, transparent manner and that the transition occurs as expeditiously as possible. To accomplish these goals most effectively, the Commission is seeking approval for a new information collection to collect information from the Relocation Payment Clearinghouse, the Relocation Coordinator, and incumbent space station operators and allow the Relocation Payment Clearinghouse and Relocation Coordinator to collection information to ensure that the band is transitioned effectively.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written PRA comments should be submitted on or before April 3, 2023. If you anticipate that you will be submitting comments but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email to
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
• 47 CFR 1.6100(c)(3)(i) (previously 1.40001(c)(3)(i))—To toll the 60-day review timeframe on grounds that an application is incomplete, the reviewing State or local government must provide written notice to the applicant within 30 days of receipt of the application, clearly and specifically delineating all missing documents or information. Such delineated information is limited to documents or information meeting the standard under paragraph (c)(1) of this section.
• 47 CFR 1.6100(c)(3)(iii) (previously 1.140001(c)(3)(iii))—Following a supplemental submission from the applicant, the State or local government will have 10 days to notify the applicant in writing if the supplemental submission did not provide the information identified in the State or local government's original notice delineating missing information. The timeframe for review is tolled in the case of second or subsequent notices of incompleteness pursuant to the procedures identified in paragraph (c)(3). Second or subsequent notices of
• 47 CFR 1.6100(c)(4) (previously 1.140001(c)(4))—If a request is deemed granted because of a failure to timely approve or deny the request, the deemed grant does not become effective until the applicant notifies the applicable reviewing authority in writing after the review period has expired (accounting for any tolling) that the application has been deemed granted. These collections are necessary to effectuate the rule changes that implement and enforce the requirements of Section 6409(a).
Gulf Coast Ecosystem Restoration Council.
Notice.
The Gulf Coast Ecosystem Restoration Council (Council) publishes notice of a proposed subaward from the U.S. Environmental Protection Agency (EPA) to the Woodlands Conservancy in the State of Louisiana, a nonprofit organization, for the purpose of habitat restoration in accordance with the Gulf of Mexico Conservation Enhancement Grant Program (GMCEGP) interagency agreement as approved in the Council's Initial Funded Priorities List (Initial FPL).
Please send questions by email to Joshua Easton at
Section 1321(t)(2)(E)(ii)(III) of the
As specified in the Initial FPL, which is available on the Council's website at
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of charter renewal.
The Centers for Disease Control and Prevention (CDC), within the Department of Health and Human Services (HHS) announces the renewal of the charter of the Advisory Council for the Elimination of Tuberculosis (ACET).
Deron Burton, MD, JD, MPH (CAPT, United States Public Health Service), Designed Federal Officer, Advisory Council for the Elimination of Tuberculosis, Centers for Disease Control and Prevention, 1600 Clifton Road NE, Mailstop US8-6, Atlanta, Georgia 30329-4027. Telephone: (404) 639-1506; Email:
CDC is providing notice under 5 U.S.C. 1001-1014. This charter has been renewed for a two-year period through March 15, 2025.
The Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of charter renewal.
The Centers for Disease Control and Prevention (CDC), within the Department of Health and Human Services (HHS) announces the renewal of the charter of the Interagency Committee on Smoking and Health (ICSH).
Bob Vollinger, DrPh, MSPH, Designated Federal Officer, Interagency Committee on Smoking and Health, Centers for Disease Control and Prevention, Patriots Plaza 1, 395 E Street SW, Suite 9000, Washington, District of Columbia 20024. Telephone: (301) 605-5841; Email:
CDC is providing notice under 5 U.S.C. 1001-1014. This charter has been renewed for a two-year period through March 20, 2025.
The Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice with request for comment.
This proposed notice acknowledges the receipt of an application from the Accreditation Commission for Health Care for continued recognition as a national accrediting organization for Ambulatory Surgical Centers that wish to participate in the Medicare or Medicaid programs.
To be assured consideration, comments must be received at one of the addresses provided below, by May 3, 2023.
In commenting, refer to file code CMS-3437-PN.
Comments, including mass comment submissions, must be submitted in one of the following three ways (please choose only one of the ways listed):
1.
2.
Please allow sufficient time for mailed comments to be received before the close of the comment period.
3.
For information on viewing public comments, see the beginning of the
Joy Webb, (410) 786-1667.
Erin Imhoff, (410) 786-2337.
Ambulatory Surgical Centers (ASCs) are distinct entities that operate exclusively for the purpose of furnishing outpatient surgical services to patients. Under the Medicare program, eligible beneficiaries may receive covered services from an ASC, provided that certain requirements are met. Section 1832(a)(2)(F)(i) of the Social Security Act (the Act) establishes distinct criteria for facilities seeking designation as an ASC. Regulations concerning provider agreements are at 42 CFR part 489 and those pertaining to activities relating to the survey and certification of facilities are at 42 CFR part 488. The regulations at 42 CFR part 416 specify the conditions that an ASC must meet in order to participate in the Medicare program, the scope of covered services, and the conditions for Medicare payment for ASCs.
Generally, to enter into an agreement, an ASC must first be certified by a state survey agency (SA) as complying with the conditions or requirements set forth in part 416 of our Medicare regulations. Thereafter, the ASC is subject to regular surveys by a SA to determine whether it continues to meet these requirements.
Section 1865(a)(1) of the Act provides that, if a provider entity demonstrates through accreditation by a Centers for Medicare & Medicaid Services (CMS) approved national accrediting organization (AO) that all applicable Medicare conditions are met or exceeded, we may deem that provider entities as having met the requirements. Accreditation by an AO is voluntary and is not required for Medicare participation.
If an AO is recognized by the Secretary of the Department of Health and Human Services as having standards for accreditation that meet or exceed Medicare requirements, any provider entity accredited by the national accrediting body's approved program may be deemed to meet the Medicare conditions. The AO applying for approval of its accreditation program under part 488, subpart A, must provide CMS with reasonable assurance that the AO requires the accredited provider entities to meet requirements that are at least as stringent as the Medicare conditions. Our regulations concerning the approval of AOs are set forth at § 488.5. The regulations at § 488.5(e)(2)(i) require AOs to reapply for continued approval of its accreditation program every 6 years or sooner as determined by CMS.
Accreditation Commission for Health Care's (ACHC's) current term of approval for its ASC accreditation program expires September 22, 2023.
Section 1865(a)(2) of the Act and our regulations at § 488.5 require that our findings concerning review and approval of a national AO's requirements consider, among other factors, the applying AO's requirements for accreditation; survey procedures; resources for conducting required surveys; capacity to furnish information for use in enforcement activities; monitoring procedures for provider entities found not in compliance with the conditions or requirements; and ability to provide CMS with the necessary data for validation.
Section 1865(a)(3)(A) of the Act further requires that we publish, within 60 days of receipt of an organization's complete application, a notice identifying the national accrediting body making the request, describing the nature of the request, and providing at least a 30-day public comment period. We have 210 days from the receipt of a
The purpose of this proposed notice is to inform the public of ACHC's request for continued approval of its ASC accreditation program. This notice also solicits public comment on whether ACHC's requirements meet or exceed the Medicare conditions for coverage (CfCs) for ASCs.
ACHC submitted all the necessary materials to enable us to make a determination concerning its request for continued approval of its ASC accreditation program. This application was determined to be complete on February 24, 2023. Under section 1865(a)(2) of the Act and our regulations at § 488.5 (Application and re-application procedures for national accrediting organizations), our review and evaluation of ACHC will be conducted in accordance with, but not necessarily limited to, the following factors:
• The equivalency of ACHC's standards for ASCs as compared with Medicare's ASC CfCs.
• ACHC's survey process to determine the following:
++ The composition of the survey team, surveyor qualifications, and the ability of the organization to provide continuing surveyor training.
++ The comparability of ACHC's processes to those of state agencies, including survey frequency, and the ability to investigate and respond appropriately to complaints against accredited facilities.
++ ACHC's processes and procedures for monitoring an ASC found out of compliance with ACHC program requirements. These monitoring procedures are used only when ACHC identifies noncompliance. If noncompliance is identified through validation reviews or complaint surveys, the SA monitors corrections as specified at § 488.9.
++ ACHC's capacity to report deficiencies to the surveyed facilities and respond to the facility's plan of correction in a timely manner.
++ ACHC's capacity to provide CMS with electronic data and reports necessary for effective validation and assessment of the organization's survey process.
++ The adequacy of ACHC's staff and other resources, and its financial viability.
++ ACHC's capacity to adequately fund required surveys.
++ ACHC's policies with respect to whether surveys are announced or unannounced, to assure that surveys are unannounced.
++ ACHC's policies and procedures to avoid conflicts of interest, including the appearance of conflicts of interest, involving individuals who conduct surveys or participate in accreditation decisions.
++ ACHC's agreement to provide CMS with a copy of the most current accreditation survey together with any other information related to the survey as we may require (including corrective action plans).
This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Because of the large number of public comments we normally receive on
The Administrator of the Centers for Medicare & Medicaid Services (CMS), Chiquita Brooks-LaSure, having reviewed and approved this document, authorizes Evell J. Barco Holland, who is the Federal Register Liaison, to electronically sign this document for purposes of publication in the
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice with request for comment.
This notice acknowledges the receipt of an application from a hospital that has requested a waiver of statutory requirements that would otherwise require the hospital to enter into an agreement with its designated organ procurement organization (OPO). This notice requests comments from OPOs and the general public for our consideration in determining whether we should grant the requested waiver.
In commenting, refer to file code CMS-1798-NC.
Comments, including mass comment submissions, must be submitted in one of the following three ways (please choose only one of the ways listed):
1.
2.
Please allow sufficient time for mailed comments to be received before the close of the comment period.
3.
For information on viewing public comments, see the beginning of the
Caitlin Bailey, (410) 786-9768.
Organ Procurement Organizations (OPOs) are not-for-profit organizations that are responsible for the procurement, preservation, and transport of organs to transplant centers throughout the country. Qualified OPOs are designated by the Centers for Medicare & Medicaid Services (CMS) to recover or procure organs in CMS-defined exclusive geographic service areas, pursuant to section 371(b)(1) of the Public Health Service Act (42 U.S.C. 273(b)(1)) and our regulations at 42 CFR 486.306. Once an OPO has been designated for an area, hospitals in that area that participate in Medicare and Medicaid are required to work with that OPO in providing organs for transplant, pursuant to section 1138(a)(1)(C) of the Social Security Act (the Act) and our regulations at 42 CFR 482.45.
Section 1138(a)(1)(A)(iii) of the Act provides that a hospital must notify the designated OPO (for the service area in which it is located) of potential organ donors. Under section 1138(a)(1)(C) of the Act, every hospital must have an agreement only with its designated OPO to identify potential donors.
However, section 1138(a)(2)(A) of the Act provides that a hospital may obtain a waiver of the above requirements from the Secretary of the Department of Health and Human Services (the Secretary) under certain specified conditions. A waiver allows the hospital to have an agreement with an OPO other than the one designated by CMS, if the hospital meets certain conditions specified in section 1138(a)(2)(A) of the Act. In addition, the Secretary may review additional criteria described in section 1138(a)(2)(B) of the Act to evaluate the hospital's request for a waiver.
Section 1138(a)(2)(A) of the Act states that in granting a waiver, the Secretary must determine that the waiver—(1) is expected to increase organ donations; and (2) will ensure equitable treatment of patients referred for transplants within the service area served by the designated OPO and within the service area served by the OPO with which the hospital seeks to enter into an agreement under the waiver. In making a waiver determination, section 1138(a)(2)(B) of the Act provides that the Secretary may consider, among other factors: (1) cost-effectiveness; (2) improvements in quality; (3) whether there has been any change in a hospital's designated OPO due to the changes made in definitions for metropolitan statistical areas; and (4) the length and continuity of a hospital's relationship with an OPO other than the hospital's designated OPO. Under section 1138(a)(2)(D) of the Act, the Secretary is required to publish a notice of any waiver application received from a hospital within 30 days of receiving the application, and to offer interested parties an opportunity to submit comments during the 60-day comment period beginning on the publication date in the
The criteria that the Secretary uses to evaluate the waiver in these cases are the same as those described above under section 1138(a)(2)(A) and (B) of the Act and have been incorporated into the regulations at § 486.308(e) and (f).
In October 1995, we issued a Program Memorandum (Transmittal No. A-95-11) detailing the waiver process and discussing the information hospitals must provide in requesting a waiver. We indicated that upon receipt of a waiver request, we would publish a
According to these requirements, we will review the comments received. During the review process, we may consult on an as-needed basis with the Health Resources and Services Administration's Division of Transplantation, the United Network for Organ Sharing, and our regional offices. If necessary, we may request additional clarifying information from the applying hospital or others. We will then make a final determination on the waiver request and notify the hospital and the designated and requested OPOs.
As permitted by § 486.308(e), the following hospital has requested a waiver to enter into an agreement with a designated OPO other than the OPO designated for the service area in which the hospital is located:
Atrium Medical Center, Middletown, Ohio, is requesting a waiver to work with: Life Connection of Ohio, 3661 Briarfield Boulevard, Suite 105, Maumee, OH 43537.
The Hospital's Designated OPO is: LifeCenter Organ Donor Network, 615 Elsinore Place, Suite 400, Cincinnati, OH 45202.
This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
We will consider all comments we receive by the date specified in the
The Administrator of the Centers for Medicare & Medicaid Services (CMS), Chiquita Brooks-LaSure, having reviewed and approved this document, authorizes Evell J. Barco Holland, who is the Federal Register Liaison, to electronically sign this document for purposes of publication in the
Administration for Community Living, HHS.
Notice.
The Administration for Community Living is announcing that
Submit written comments on the collection of information by May 3, 2023.
Submit written comments and recommendations for the proposed information collection within 30 days of publication of this notice to
Peter Nye, Administration for Community Living, Washington, DC, 20201, (202) 795-7606, or
In compliance with 44 U.S.C. 3507, ACL has submitted the following proposed collection of information to OMB for review and clearance.
The Administration for Community Living (ACL) is requesting approval to collect data for the Administration on Disabilities Evaluation of Technical Assistance for Independent Living Grantees.
ACL is currently engaged in an effort to better understand the implementation and effectiveness of the technical assistance (TA) provided to Independent Living (IL) grantees (Centers for Independent Living (CILs), statewide independent living councils (SILCs), and designated state entities (DSEs)).
The Rehabilitation Act of 1973, as amended authorizes the IL grantees to provide, expand, and improve independent living services for people with disabilities. Title VII, Part C authorizes funding to CILs.
Section 711A(a) requires ACL to reserve funds for training and TA to SILCs, and section 721(b)(1) requires ACL to reserve funds for training and TA to CILs.
TA efforts can support IL grantees in creating and maintaining effective organizations and services. TA, such as one-on-one TA, peer-to-peer mentoring, and webinars, is made available by the Independent Living Research Utilization (ILRU) program, the Association of Programs for Rural Independent Living (APRIL), the National Association of Statewide Independent Living Councils (NASILC), the National Council on IL (NCIL), and the TA centers that ACL funds, including the Disability Employment TA Center (DETAC) and the Federal Housing and Services Resource Center (HSRC) (referred to as AoD TA providers).
Although ACL monitors these AoD TA providers activities, the effectiveness of the TA approach has yet to be assessed. The goal of this data-collection effort is to provide ACL with IL-grantee feedback on the TA approach, including what elements are effective, that can be incorporated into a future TA strategy that is most beneficial to IL grantees. In this IC, ACL will be surveying a total of approximately 464 Part C CILs, DSEs, and SILCs. The web-based survey will be sent electronically to representatives from all Part C CILs, SILCs, and DSEs. ACL will provide the survey in alternative modes, such as by mail or telephone, on grantee request an alternative mode can be provided. Results from this survey will provide ACL with a better understanding of the implementation and effectiveness of the current TA approach from the perspective of IL grantees.
There were no public comments received during the 60-day FRN.
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of the draft guidance entitled “Marketing Submission Recommendations for a Predetermined Change Control Plan for Artificial Intelligence/Machine Learning (AI/ML)-Enabled Device Software Functions.” This draft guidance demonstrates FDA's commitment to developing innovative approaches to the regulation of machine learning-enabled medical devices and describes an approach that would often be the least burdensome and would support iterative improvement through modifications to machine learning-enabled device software functions
Submit either electronic or written comments on the draft guidance by July 3, 2023 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
An electronic copy of the guidance document is available for download from the internet. See the
Brendan O'Leary, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5530, Silver Spring, MD 20993-0002, 301-796-6898; Diane Maloney, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993, 240-402-8113; Tala Fakhouri, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6330, Silver Spring, MD 20993-0002, 301-837-7407; or John Weiner, Office of Combination Products, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 5130, HFG-3, Silver Spring, MD 20993-0002, 301-796-8941.
FDA has a longstanding commitment to developing and applying innovative approaches to the regulation of medical device software and other digital health technologies to ensure their safety and effectiveness. As technology continues to advance all facets of healthcare, software incorporating AI, and specifically the subset of AI known as ML, has become an important part of many medical devices. In April 2019, FDA published the “Proposed Regulatory Framework for Modifications to Artificial Intelligence/Machine Learning (AI/ML)-Based Software as a Medical Device (SaMD)—Discussion Paper and Request for Feedback.”
The discussion paper received a generous amount of stakeholder feedback that assisted in development of a tailored regulatory framework for AI/ML-enabled medical devices. This draft guidance, which was developed in response to stakeholder feedback, represents the Agency's next step in working to develop a tailored regulatory framework for ML-DSF. The discussion paper focused on a framework for SaMD only and introduced the term “SaMD Pre-Specifications.” In this draft guidance, the Agency is broadening the scope of the framework to include Software in a Medical Device (SiMD).
Additionally, section 3308 of the Consolidated Appropriations Act, 2023, enacted on December 29, 2022, added section 515C “Predetermined Change Control Plans for Devices” to the FD&C Act. Section 515C provides FDA with express authority to approve or clear PCCPs for devices requiring premarket approval or premarket notification. For example, section 515C provides that supplemental applications (section 515C(a)) and new premarket notifications (section 515C(b)) are not required for a change to a device that would otherwise require a premarket approval supplement or new premarket notification if the change is consistent with a PCCP previously approved or cleared by FDA. Section 515C also provides that FDA may require that a PCCP include labeling for safe and effective use of a device as such device changes pursuant to such plan, notification requirements if the device does not function as intended pursuant to such plan, and performance requirements for changes made under the plan. In this draft guidance, we provide recommendations on the marketing submission content for PCCPs, which are based on the statute and feedback obtained through our various interactions with stakeholders.
The purpose of this draft guidance is to promote the development of safe and effective medical devices that use ML models trained by ML algorithms. This draft guidance provides recommendations on the information to be included in a PCCP in a marketing submission for an ML-DSF. The PCCP describes the anticipated ML-DSF modifications and the associated methodology to implement those modifications, which would be reviewed in the marketing submission to assure the continued safety and effectiveness of the device without necessitating additional marketing submissions for each modification described in the PCCP.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Marketing Submission Recommendations for a Predetermined Change Control Plan for Artificial Intelligence/Machine Learning (AI/ML)-Enabled Device Software Functions.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
Persons interested in obtaining a copy of the draft guidance may do so by downloading an electronic copy from the internet. A search capability for all Center for Devices and Radiological Health guidance documents is available at
While this guidance contains no new collection of information, it does refer to previously approved FDA collections of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521) is not required for this guidance. The previously approved collections of information are subject to review by OMB under the PRA. The collections of information in the following FDA regulations and guidance have been approved by OMB as listed in the following table:
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice.
In accordance with the Federal Advisory Committee Act, this notice announces that the Secretary's National Advisory Committee on Rural Health and Human Services (NACRHHS) has scheduled a public meeting. Information about NACRHHS and the agenda for this meeting can be found on the NACRHHS website at
• Wednesday, April 26, 2023, 9:00 a.m.-4:00 p.m. Pacific Time (PST);
• Thursday, April 27, 2023, 9:00 a.m.-4:45 p.m. PST; and
• Friday, April 28, 2023, 9:00 a.m.-11:30 a.m. PST.
This meeting will be held in the Jefferson and Cascade rooms at the Waypoint Hotel, 1415 NE 3rd St., Bend, Oregon 97701. The meeting will also be accessible to the public via Zoom. The meeting details are below.
Please use the following information to join the meeting:
•
Sahira Rafiullah, Executive Secretary of NACRHHS, 5600 Fishers Lane, Rockville, Maryland 20857; 240-316-5874; or
NACRHHS provides advice and recommendations to the Secretary of Health and Human Services on policy, program development, and other matters of significance concerning both rural health and rural human services. At this meeting, NACRHHS will discuss the Maternal, Infant, and Early Childhood Home Visiting Program. Members of the public will have the opportunity to provide comments. Public participants wishing to provide oral comments must submit a written version of their statement at least 3 business days in advance of the scheduled meeting. Oral comments will be honored in the order they are requested and may be limited as time permits. Public participants wishing to offer a written statement should send it to Sahira Rafiullah, using the contact information above, at least 3 business days prior to the meeting. Individuals who plan to attend and need special assistance or another reasonable accommodation should notify Sahira Rafiullah at the address and phone number listed above at least 10 business days prior to the meeting.
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice.
In compliance with the requirement for opportunity for public comment on proposed data collection projects of the Paperwork Reduction Act of 1995, HRSA announces plans to submit an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB). Prior to submitting the ICR to OMB, HRSA seeks comments from the public regarding the burden estimate, below, or any other aspect of the ICR.
Comments on this ICR should be received no later than June 2, 2023.
Submit your comments to
To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, email
When submitting comments or requesting information, please include the information request collection title for reference.
• RCORP-Implementation grants to fund established networks and consortia to deliver SUD/OUD prevention, treatment, and recovery activities in high-risk rural communities;
• RCORP-Neonatal Abstinence Syndrome grants to reduce the incidence and impact of Neonatal Abstinence Syndrome in rural communities by improving systems of care, family supports, and social determinants of health;
• RCORP-Psychostimulant Support grants to strengthen and expand prevention, treatment, and recovery services for individuals in rural areas who misuse psychostimulants; to enhance their ability to access treatment and move toward recovery;
• RCORP-Medication Assisted Treatment (MAT) Access grants aim to establish new access points in rural facilities where none currently exist; and
• RCORP-Behavioral Health Care support grants aim to expand access to and quality of behavioral health care services at the individual-, provider-, and community-levels.
• Note that additional grant initiatives may be added pending fiscal year 2024 and future fiscal year appropriations.
HRSA currently collects information about RCORP grants using approved performance measures. HRSA developed separate performance measures for RCORP's new MAT Access and Behavioral Health Care Support grants and seeks OMB approval for the new collection.
For this program, performance measures were developed to provide data on each RCORP initiative and enable HRSA to provide aggregate program data required by Congress under the Government Performance and Results Act of 1993. These measures cover the principal topic areas of interest to the Federal Office of Rural Health Policy, including: (a) provision of, and referral to, rural behavioral health care services, including SUD prevention, treatment and recovery support services; (b) behavioral health care, including SUD prevention, treatment, and recovery, process and outcomes; (c) education of health care providers and community members; (d) emerging trends in rural behavioral health care needs and areas of concern; and (e) consortium strength and sustainability. All measures will speak to the Federal Office of Rural Health Policy's progress toward meeting the goals set.
The only revisions to the approved information collection are the addition of measures for the RCORP-MAT Access and RCORP-Behavioral Health Care Support grants. Since the performance measures for these grants are substantially different than other RCORP grants, HRSA calculated burden hours separately.
HRSA specifically requests comments on: (1) the necessity and utility of the proposed information collection for the proper performance of the agency's functions, (2) the accuracy of the estimated burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
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
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The cooperative agreement applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the cooperative agreement applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Notice is hereby given of a change in the meeting of the National Human Genome Research Institute Special Emphasis Panel, March 15, 2023, 10:00 a.m. to March 15, 2023, 2:00 p.m., NHGRI, 6700B, Rockledge Dr., Bethesda, MD, 20817 which was published in the
Amendment to change the meeting date from March 15, 2023 to April 11, 2023. The meeting is closed to the public.
Substance Abuse and Mental Health Services Administration, HHS.
Notice.
The Department of Health and Human Services (HHS) notifies federal agencies of the laboratories and Instrumented Initial Testing Facilities (IITFs) currently certified to meet the standards of the Mandatory Guidelines for Federal Workplace Drug Testing Programs using Urine or Oral Fluid (Mandatory Guidelines).
Anastasia Donovan, Division of Workplace Programs, SAMHSA/CSAP, 5600 Fishers Lane, Room 16N06B, Rockville, Maryland 20857; 240-276-2600 (voice);
In accordance with Section 9.19 of the Mandatory Guidelines, a notice listing all currently HHS-certified laboratories and IITFs is published in the
If any laboratory or IITF has withdrawn from the HHS National Laboratory Certification Program (NLCP) during the past month, it will be listed at the end and will be omitted from the monthly listing thereafter.
This notice is also available on the internet at
The Department of Health and Human Services (HHS) notifies federal agencies of the laboratories and Instrumented Initial Testing Facilities (IITFs) currently certified to meet the standards of the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines) using Urine and of the laboratories currently certified to meet the standards of the Mandatory Guidelines using Oral Fluid.
The Mandatory Guidelines using Urine were first published in the
The Mandatory Guidelines using Oral Fluid were first published in the
The Mandatory Guidelines were initially developed in accordance with Executive Order 12564 and section 503 of Public Law 100-71 and allowed urine drug testing only. The Mandatory Guidelines using Urine have since been revised, and new Mandatory Guidelines allowing for oral fluid drug testing have been published. The Mandatory Guidelines require strict standards that laboratories and IITFs must meet in order to conduct drug and specimen validity tests on specimens for federal agencies. HHS does not allow IITFs to conduct oral fluid testing.
To become certified, an applicant laboratory or IITF must undergo three rounds of performance testing plus an on-site inspection. To maintain that certification, a laboratory or IITF must participate in a quarterly performance testing program plus undergo periodic, on-site inspections.
Laboratories and IITFs in the applicant stage of certification are not to be considered as meeting the minimum requirements described in the HHS
In accordance with the Mandatory Guidelines using Oral Fluid dated October 25, 2019 (84 FR 57554), the following HHS-certified laboratories meet the minimum standards to conduct drug and specimen validity tests on oral fluid specimens:
At this time, there are no laboratories certified to conduct drug and specimen validity tests on oral fluid specimens.
In accordance with the Mandatory Guidelines using Urine dated January 23, 2017 (82 FR 7920), the following HHS-certified IITFs meet the minimum standards to conduct drug and specimen validity tests on urine specimens:
In accordance with the Mandatory Guidelines using Urine dated January 23, 2017 (82 FR 7920), the following HHS-certified laboratories meet the minimum standards to conduct drug and specimen validity tests on urine specimens:
* The Standards Council of Canada (SCC) voted to end its Laboratory Accreditation Program for Substance Abuse (LAPSA) effective May 12, 1998. Laboratories certified through that program were accredited to conduct forensic urine drug testing as required by U.S. Department of Transportation (DOT) regulations. As of that date, the certification of those accredited Canadian laboratories will continue under DOT authority. The responsibility for conducting quarterly performance testing plus periodic on-site inspections of those LAPSA-accredited laboratories was transferred to the U.S. HHS, with the HHS' NLCP contractor continuing to have an active role in the performance testing and laboratory inspection processes. Other Canadian laboratories wishing to be considered for the NLCP may apply directly to the NLCP contractor just as U.S. laboratories do.
Upon finding a Canadian laboratory to be qualified, HHS will recommend that DOT certify the laboratory (
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
Comments are requested on proposed flood hazard determinations, which may include additions or modifications of any Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area (SFHA) boundary or zone designation, or regulatory floodway on the Flood
Comments are to be submitted on or before July 3, 2023.
The Preliminary FIRM, and where applicable, the FIS report for each community are available for inspection at both the online location
You may submit comments, identified by Docket No. FEMA-B-2325, to Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP.
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations also will be considered before the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP only may be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
New or modified Base (1-percent annual chance) Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, and/or regulatory floodways (hereinafter referred to as flood hazard determinations) as shown on the indicated Letter of Map Revision (LOMR) for each of the communities listed in the table below are finalized. Each LOMR revises the Flood Insurance Rate Maps (FIRMs), and in some cases the Flood Insurance Study (FIS) reports, currently in effect for the listed communities.
Each LOMR was finalized as in the table below.
Each LOMR is available for inspection at both the respective Community Map Repository address listed in the table below and online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final flood hazard determinations as shown in the LOMRs for each community listed in the table below. Notice of these modified flood hazard determinations has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
The modified flood hazard determinations are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The new or modified flood hazard information is the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to remain qualified for participation in the National Flood Insurance Program (NFIP).
This new or modified flood hazard information, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.
This new or modified flood hazard determinations are used to meet the floodplain management requirements of the NFIP. The changes in flood hazard determinations are in accordance with 44 CFR 65.4.
Interested lessees and owners of real property are encouraged to review the final flood hazard information available at the address cited below for each community or online through the FEMA Map Service Center at
Office of the Assistant Secretary for Fair Housing and Equal Opportunity (FHEO), HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Written comments and recommendations for the proposed information collection can be sent within 60 days of publication of this notice to
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Colette Pollard at
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice of proposed information collection.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal.
Written comments and recommendations for the proposed information collection can be sent within 60 days of publication of this notice to
Norm Suchar, Director, Office of Special Needs Assistance Programs, Office of Community Planning and Development, Department of Housing and Urban Development, 451 7th Street SW, Room 7262, Washington, DC 20410; telephone (202) 708-5015 (This is not a toll-free number). HUD welcomes and is prepared to receive calls from individuals who are deaf or hard of hearing, as well as individuals with speech and communication disabilities. To learn more about how to make an accessible telephone call, please visit:
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of Policy Development and Research, Department of Housing and Urban Development (HUD).
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Written comments and recommendations for the proposed information collection can be sent within 60 days of publication of this notice to
Anna Guido, Reports Management Officer, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Anna Guido at
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
In early 2020, Congress passed and the President signed the CARES Act. The landmark statute was a response to the COVID-19 pandemic and contained many provisions related to mitigating its worst effects. Included were provisions that gave the U.S. Department of Housing and Urban Development (HUD) statutory and regulatory waiver authority to help programs adapt and operate in the changing circumstances and to encourage the continuity of critical PHA operations in order to support PHA residents and tenants.
The
2M will conduct semi-structured interviews with PHA stakeholders from a purposive sample of 50 PHAs. This includes interviews with three interview respondent groups (PHA leadership, PHA operations staff, and members of Resident Advisory Boards) from 45 PHAs that adopted waivers offered by the CARES Act (a total of 135 interviews with 135 respondents), and one group interview with PHA leadership and operations staff from five PHAs that did not adopt any waivers offered by the CARES Act (a total of 5 interviews with 10 respondents). Collectively, 2M plans to conduct a total of 140 interviews across 145 respondents. This data collection effort is expected to last five months.
This
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected, and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507.
Fish and Wildlife Service, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the U.S. Fish and Wildlife Service (Service), are proposing to renew, without change, an information collection.
Interested persons are invited to submit comments on or before June 2, 2023.
Send your comments on the information collection request (ICR) by one of the following methods (reference “1018-0177” in the subject line of your comment):
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To request additional information about this ICR, contact Madonna L. Baucum, Service Information Collection Clearance Officer, by email at
In accordance with the Paperwork Reduction Act of 1995 and 5 CFR 1320.8(d)(1), we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
As part of our continuing effort to reduce paperwork and respondent burdens, we are again soliciting comments from the public and other Federal agencies on the proposed ICR that is described below. We are especially interested in public comment addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How might the agency minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments that you submit in response to this notice are a matter of public record. 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 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.
This policy provides incentives to landowners, government agencies, and others to carry out voluntary conservation actions for unlisted species. It allows the use of any benefits to the species from voluntary conservation actions undertaken prior to listing under the Act—by the person who undertook such actions or by third parties—to mitigate or offset the detrimental effects of other actions undertaken after listing. The policy requires participating States to track the voluntary conservation actions and provide this information to us on an annual basis. We require this information in order to provide the entities that have taken the conservation actions with proper credit that can later be used to mitigate for any detrimental actions they take after the species is listed.
We plan to collect the following information:
• Description of the prelisting conservation action being taken.
• Location of the action (does not include a specific address).
• Name of the entity taking the action and their contact information (email address only).
• Frequency of the action (ongoing for X years, or one-time implementation)
• Any transfer to a third party of the mitigation or compensatory measure rights.
Each State that chooses to participate will collect this information from landowners, businesses and organizations, and Tribal, Federal, and local governments that wish to receive credit for voluntary prelisting conservation actions. States may collect this information via an Access database, Excel spreadsheet, or other database of their choosing and submit the information to the Fish and Wildlife Service (via email) annually. States will use this information to calculate the number of credits that the entity taking the conservation action will receive and will keep track of the credits and notify the entity of how much credit they have earned. The States will report the number of credits to the Service, and we will determine how many credits are needed by the entity to mitigate or offset the detrimental effects of other actions they take after the species is listed (assuming it is listed).
Additionally, on February 9, 2023, the Service published a proposed rule (RIN 1018-BF99; 88 FR 8380) to clarify the appropriate use of enhancement of survival permits and incidental take permits; clarify our authority to issue these permits for non-listed species without also including a listed species; simplify the requirements for enhancement of survival permits by combining safe harbor agreements and candidate conservation agreements with assurances into one agreement type, and include portions of our five-point policies for safe harbor agreements, candidate conservation agreements with assurances, and habitat conservation plans in the regulations to reduce uncertainty. We also propose to make technical and administrative revisions to the regulations.
The goal of the rule is to reduce the time it takes for applicants to prepare and develop the required supporting documents, thus accelerating conservation implementation. The proposed regulatory changes are intended to reduce costs and time associated with negotiating and developing the required documents to support the applications. We anticipate that these improvements will encourage more individuals and companies to engage in these voluntary programs, thereby generating greater conservation results overall.
When the Service finalizes this rule, anticipated in late 2023, candidate conservation agreements with assurances (CCAAs) and safe harbor agreements will no longer be in place, and will be combined into one agreement type--conservation benefit agreements (CBAs). We will update the Policy Regarding Voluntary Prelisting Conservation Actions to replace all references to CCAAs with references to CBAs (for non-listed species). We do not anticipate this update to the policy to impact currently approved information collections.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Bureau of Indian Affairs, Interior.
Notice.
The Bureau of Indian Affairs (BIA) approved the Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado Leasing Ordinance under the Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012 (HEARTH Act). With this approval, the Tribe is authorized to enter into agriculture, business, residential, and wind and solar leases without further BIA approval.
BIA issued the approval on March 28, 2023.
Ms. Carla Clark, Bureau of Indian Affairs, Division of Real Estate Services, 1001 Indian School Road NW, Albuquerque, NM 87104,
The HEARTH Act makes a voluntary, alternative land leasing process available to Tribes, by amending the Indian Long-Term Leasing Act of 1955, 25 U.S.C. 415. The HEARTH Act authorizes Tribes to negotiate and enter into business leases of Tribal trust lands with a primary term of 25 years, and up to two renewal terms of 25 years each, without the approval of the Secretary of the Interior (Secretary). The HEARTH Act also authorizes Tribes to enter into leases for residential, recreational, religious or educational purposes for a primary term of up to 75 years without the approval of the Secretary. Participating Tribes develop Tribal Leasing regulations, including an environmental review process, and then must obtain the Secretary's approval of those regulations prior to entering into leases. The HEARTH Act requires the Secretary to approve Tribal regulations if the Tribal regulations are consistent with the Department of the Interior's (Department) leasing regulations at 25 CFR part 162 and provide for an environmental review process that meets requirements set forth in the HEARTH Act. This notice announces that the Secretary, through the Assistant Secretary—Indian Affairs, has approved the Tribal regulations for the Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado.
The Department's regulations governing the surface leasing of trust and restricted Indian lands specify that, subject to applicable Federal law, permanent improvements on leased land, leasehold or possessory interests, and activities under the lease are not subject to State and local taxation and may be subject to taxation by the Indian Tribe with jurisdiction. See 25 CFR 162.017. As explained further in the preamble to the final regulations, the Federal government has a strong interest in promoting economic development, self-determination, and Tribal sovereignty. 77 FR 72440, 72447-48 (December 5, 2012). The principles supporting the Federal preemption of State law in the field of Indian leasing and the taxation of lease-related interests and activities applies with equal force to leases entered into under Tribal leasing regulations approved by the Federal government pursuant to the HEARTH Act.
Section 5 of the Indian Reorganization Act, 25 U.S.C. 5108, preempts State and local taxation of permanent improvements on trust land.
The strong Federal and Tribal interests against State and local taxation of improvements, leaseholds, and activities on land leased under the Department's leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to Tribal leasing regulations approved under the HEARTH Act. Congress's overarching intent was to “allow Tribes to exercise greater control over their own land, support self-determination, and eliminate bureaucratic delays that stand in the way of homeownership and economic development in Tribal communities.” 158 Cong. Rec. H. 2682 (May 15, 2012). The HEARTH Act was intended to afford Tribes “flexibility to adapt lease terms to suit [their] business and cultural needs” and to “enable [Tribes] to approve leases quickly and efficiently.” H. Rep. 112-427 at 6 (2012).
Assessment of State and local taxes would obstruct these express Federal policies supporting Tribal economic development and self-determination, and also threaten substantial Tribal interests in effective Tribal government, economic self-sufficiency, and territorial autonomy.
Similar to BIA's surface leasing regulations, Tribal regulations under the HEARTH Act pervasively cover all aspects of leasing.
Accordingly, the Federal and Tribal interests weigh heavily in favor of preemption of State and local taxes on lease-related activities and interests, regardless of whether the lease is governed by Tribal leasing regulations or Part 162. Improvements, activities, and leasehold or possessory interests may be subject to taxation by the Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado.
Bureau of Indian Affairs, Interior.
Notice of public meeting.
In accordance with the Federal Advisory Committee Act, the Self-Governance PROGRESS Act Negotiated Rulemaking Committee (Committee), will hold the eighth public meeting to negotiate and advise the Secretary of the Interior (Secretary) on a proposed rule to implement the Practical Reforms and Other Goals To Reinforce the Effectiveness of Self-Governance and Self-Determination for Indian Tribes Act of 2019 (PROGRESS Act).
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Send your written comments to the Designated Federal Officer, Vickie Hanvey, by any of the following methods:
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• Mail, hand-carry or use an overnight courier service to the Designated Federal Officer, Ms. Vickie Hanvey, Office of Self-Governance, Office of the Assistant Secretary—Indian Affairs, 1849 C Street NW, Mail Stop 3624, Washington, DC 20240.
Vickie Hanvey, Designated Federal Officer,
This meeting is being held under the authority of the PROGRESS Act (Pub. L. 116-180), the Negotiated Rulemaking Act (5 U.S.C. 561
The PROGRESS Act amends subchapter I of the Indian Self-Determination and Education Assistance Act (ISDEAA), 25 U.S.C. 5301
Individuals in the United States who are deaf, blind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States.
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 Indian Affairs, Interior.
Notice.
The Bureau of Indian Affairs (BIA) approved the Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin Leasing Ordinance under the Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012 (HEARTH Act). With this approval, the Tribe is authorized to enter into agricultural, business, residential, wind and solar, public, religious, educational, recreational, cultural, and other purposes leases without further BIA approval.
BIA issued the approval on March 28, 2023
Ms. Carla Clark, Bureau of Indian Affairs, Division of Real Estate Services, 1001 Indian School Road NW, Albuquerque, NM 87104,
The HEARTH Act makes a voluntary, alternative land leasing process available to Tribes, by amending the Indian Long-Term Leasing Act of 1955, 25 U.S.C. 415. The HEARTH Act authorizes Tribes to negotiate and enter into business leases of Tribal trust lands with a primary term of 25 years, and up to two renewal terms of 25 years each, without the approval of the Secretary of the Interior (Secretary). The HEARTH Act also authorizes Tribes to enter into leases for residential, recreational, religious or educational purposes for a primary term of up to 75 years without the approval of the Secretary. Participating Tribes develop Tribal Leasing regulations, including an environmental review process, and then must obtain the Secretary's approval of those regulations prior to entering into leases. The HEARTH Act requires the Secretary to approve Tribal regulations if the Tribal regulations are consistent with the Department of the Interior's (Department) leasing regulations at 25 CFR part 162 and provide for an environmental review process that meets requirements set forth in the HEARTH Act. This notice announces that the Secretary, through the Assistant Secretary—Indian Affairs, has approved the Tribal regulations for the Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin.
The Department's regulations governing the surface leasing of trust and restricted Indian lands specify that, subject to applicable Federal law, permanent improvements on leased land, leasehold or possessory interests, and activities under the lease are not subject to State and local taxation and may be subject to taxation by the Indian Tribe with jurisdiction. See 25 CFR 162.017. As explained further in the preamble to the final regulations, the Federal government has a strong interest in promoting economic development, self-determination, and Tribal sovereignty. 77 FR 72440, 72447-48 (December 5, 2012). The principles supporting the Federal preemption of State law in the field of Indian leasing and the taxation of lease-related interests and activities applies with equal force to leases entered into under Tribal leasing regulations approved by the Federal government pursuant to the HEARTH Act.
Section 5 of the Indian Reorganization Act, 25 U.S.C. 5108, preempts State and local taxation of permanent improvements on trust land.
The strong Federal and Tribal interests against State and local taxation of improvements, leaseholds, and activities on land leased under the Department's leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to Tribal leasing regulations approved under the HEARTH Act. Congress's overarching intent was to “allow Tribes to exercise greater control over their own land, support self-determination, and eliminate bureaucratic delays that stand in the way of homeownership and economic development in Tribal communities.” 158 Cong. Rec. H. 2682 (May 15, 2012). The HEARTH Act was intended to afford Tribes “flexibility to adapt lease terms to suit [their] business and cultural needs” and to “enable [Tribes] to approve leases quickly and efficiently.” H. Rep. 112-427 at 6 (2012).
Assessment of State and local taxes would obstruct these express Federal policies supporting Tribal economic development and self-determination, and also threaten substantial Tribal interests in effective Tribal government, economic self-sufficiency, and territorial autonomy.
Similar to BIA's surface leasing regulations, Tribal regulations under the HEARTH Act pervasively cover all aspects of leasing.
Accordingly, the Federal and Tribal interests weigh heavily in favor of preemption of State and local taxes on lease-related activities and interests, regardless of whether the lease is governed by Tribal leasing regulations or Part 162. Improvements, activities, and leasehold or possessory interests may be subject to taxation by the Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of expedited reviews pursuant to the Tariff Act of 1930 (“the Act”) to determine whether revocation of the antidumping duty and countervailing duty orders on biodiesel from Argentina and Indonesia would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.
March 6, 2023.
Tyler Berard (202-205-3354), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
For further information concerning the conduct of these reviews and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
In accordance with §§ 201.16(c) and 207.3 of the rules, each document filed by a party to the reviews must be served on all other parties to the reviews (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted reviews pursuant to the Tariff Act of 1930 (“the Act”), as amended, to determine whether revocation of the antidumping duty orders on steel wire garment hangers from Taiwan and Vietnam and the countervailing duty order on steel wire garment hangers from Vietnam would be likely to lead to continuation or recurrence of material injury. Pursuant to the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission.
Instituted April 3, 2023. To be assured of consideration, the deadline for responses is May 3, 2023. Comments on the adequacy of responses may be filed with the Commission by June 14, 2023.
Tyler Berard (202-205-3354), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
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Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation or an earlier review of the same underlying investigation. The Commission's designated agency ethics official has advised that a five-year review is not the same particular matter as the underlying original investigation, and a five-year review is not the same particular matter as an earlier review of the same underlying investigation for purposes of 18 U.S.C. 207, the post-employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 79 FR 3246 (Jan. 17, 2014), 73 FR 24609 (May 5, 2008). Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation or an earlier review of the same underlying investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Charles Smith, Office of the General Counsel, at 202-205-3408.
Please note the Secretary's Office will accept only electronic filings at this time. Filings must be made through the Commission's Electronic Document Information System (EDIS,
No response to this request for information is required if a currently valid Office of Management and Budget (“OMB”) number is not displayed; the OMB number is 3117 0016/USITC No. 23-5-565, expiration date June 30, 2023. Public reporting burden for the request is estimated to average 15 hours per response. Please send comments regarding the accuracy of this burden estimate to the Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436.
Those responding to this notice of institution are encouraged, but not required, to visit the USITC's website at
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and email address of the certifying official.
(2) A statement indicating whether your firm/entity is an interested party under 19 U.S.C. 1677(9) and if so, how, including whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this proceeding by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the orders on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping or countervailing duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (Optional) A statement of whether you agree with the above definitions of the
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted a review pursuant to the Tariff Act of 1930 (“the Act”), as amended, to determine whether revocation of the antidumping duty order on carton-closing staples from China would be likely to lead to continuation or recurrence of material injury. Pursuant to the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission.
Instituted April 3, 2023. To be assured of consideration, the deadline for responses is May 3, 2023. Comments on the adequacy of responses may be filed with the Commission by June 14, 2023.
Andres Andrade (202-205-2078), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
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Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation or an earlier review of the same underlying investigation. The Commission's designated agency ethics official has advised that a five-year review is not the same particular matter as the underlying original investigation, and a five-year review is not the same particular matter as an earlier review of the same underlying investigation for purposes of 18 U.S.C. 207, the post-employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 79 FR 3246 (Jan. 17, 2014), 73 FR 24609 (May 5, 2008). Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation or an earlier review of the same underlying investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Charles Smith, Office of the General Counsel, at 202-205-3408.
Please note the Secretary's Office will accept only electronic filings at this time. Filings must be made through the Commission's Electronic Document Information System (EDIS,
No response to this request for information is required if a currently valid Office of Management and Budget (“OMB”) number is not displayed; the OMB number is 3117 0016/USITC No. 23-5-563, expiration date June 30, 2023. Public reporting burden for the request is estimated to average 15 hours per response. Please send comments regarding the accuracy of this burden estimate to the Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436.
Those responding to this notice of institution are encouraged, but not required, to visit the USITC's website at
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is an interested party under 19 U.S.C. 1677(9) and if so, how, including whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this proceeding by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping duty order on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (Optional) A statement of whether you agree with the above definitions of the
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted a review pursuant to the Tariff Act of 1930 (“the Act”), as amended, to determine whether revocation of the antidumping duty order on foundry coke from China would be likely to lead to continuation or recurrence of material injury. Pursuant to the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission.
Instituted April 3, 2023. To be assured of consideration, the deadline for responses is May 3, 2023. Comments on the adequacy of responses may be filed with the Commission by June 14, 2023.
Nitin Joshi (202-708-1669), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the
(1)
(2) The
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Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation or an earlier review of the same underlying investigation. The Commission's designated agency ethics official has advised that a five-year review is not the same particular matter as the underlying original investigation, and a five-year review is not the same particular matter as an earlier review of the same underlying investigation for purposes of 18 U.S.C. 207, the post-employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 79 FR 3246 (Jan. 17, 2014), 73 FR 24609 (May 5, 2008). Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation or an earlier review of the same underlying investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Charles Smith, Office of the General Counsel, at 202-205-3408.
Please note the Secretary's Office will accept only electronic filings at this time. Filings must be made through the Commission's Electronic Document Information System (EDIS,
No response to this request for information is required if a currently valid Office of Management and Budget (“OMB”) number is not displayed; the OMB number is 3117 0016/USITC No. 23-5-564, expiration date June 30, 2023. Public reporting burden for the request is estimated to average 15 hours per response. Please send comments regarding the accuracy of this burden estimate to the Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436.
Those responding to this notice of institution are encouraged, but not required, to visit the USITC's website at
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is an interested party under 19 U.S.C. 1677(9) and if so, how, including whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this proceeding by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping duty order on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13)
By order of the Commission.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Occupational Safety & Health Administration (OSHA)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that the agency receives on or before May 3, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Comments are invited on: (1) whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; (2) the accuracy of the agency's estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Nicole Bouchet by telephone at 202-693-0213, or by email at
The standard requires employers to monitor worker exposure, to provide medical surveillance, and maintain accurate records of worker exposure to benzene. These records will be used by employers, workers, physicians and the Government to ensure that workers are not harmed by exposure to benzene in the workplace. 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.
Bureau of Labor Statistics, Department of Labor.
Notice of information collection; request for comment.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. The Bureau of Labor Statistics (BLS) is soliciting comments concerning the proposed extension of the “Consumer Price Index Commodities and Services Survey.” A copy of the proposed information collection request can be obtained by contacting the individual listed below in the Addresses section of this notice.
Written comments must be submitted to the office listed in the Addresses section of this notice on or before June 2, 2023.
Send comments to Nora Kincaid, BLS Clearance Officer, Division of Management Systems, Bureau of Labor Statistics, Room G225, 2 Massachusetts Avenue NE, Washington, DC 20212. Written comments also may be transmitted by email to
Nora Kincaid, BLS Clearance Officer, at 202-691-7628 (this is not a toll-free number). (See
Under the direction of the Secretary of Labor, the Bureau of Labor Statistics (BLS) is directed by law to collect, collate, and report full and complete statistics on the conditions of labor and the products and distribution of the products of the same; the Consumer Price Index (CPI) is one of these statistics. The collection of data from a wide spectrum of retail establishments and government agencies is essential for the timely and accurate calculation of the Commodities and Services (C&S) component of the CPI.
The CPI is the only index compiled by the U.S. Government that is designed to measure changes in the purchasing power of the urban consumer's dollar. The CPI is a measure of the average change in prices over time paid by urban consumers for a market basket of goods and services. The CPI is used most widely as a measure of inflation and serves as an indicator of the effectiveness of government economic policy. It is also used as a deflator of other economic series, that is, to adjust other series for price changes and to translate these series into inflation-free dollars. Examples include retail sales, hourly and weekly earnings, and components of the Gross Domestic Product.
A third major use of the CPI is to adjust dollar values. Over 2 million workers are covered by collective bargaining contracts, which provide for increases in wage rates based on increases in the CPI. At least fifteen states have laws that link the adjustment in state minimum wage to the changes in the CPI. In addition, as a result of statutory action, the CPI affects the income of more than 90 million of Americans through cost-of-living adjustments tied to the CPI: over 65 million Social Security beneficiaries and over 38 million Supplemental Nutrition Assistance Program (SNAP) recipients, among other programs. Changes in the CPI also affect the cost of lunches for over 30 million children who eat lunch at school as part of the National School Lunch Program (NSLP). Under the National School Lunch Act and Child Nutrition Act, national average payments for those lunches and breakfasts are adjusted annually by the Secretary of Agriculture based on the change in the CPI series, “Food away from Home.” Many private firms and individuals use the CPI to keep rents, royalties, alimony payments, and child support payments in line with changing prices. Since 1985, the CPI has been used to adjust the Federal income tax structure to prevent inflation-induced tax rate increases.
Office of Management and Budget clearance is being sought for the Consumer Price Index (CPI) Commodities and Services Survey.
The continuation of the collection of prices for the CPI is essential since the CPI is the nation's chief source of information on retail price changes. If the information on C&S prices were not collected, Federal fiscal and monetary policies would be hampered due to the lack of information on price changes in a major sector of the U.S. economy and estimates of the real value of the Gross National Product could not be made. The consequences to both the Federal and private sectors would be far reaching and would have serious repercussions on Federal government policy and institutions.
The Bureau of Labor Statistics is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility.
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they also will become a matter of public record.
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning the proposal to extend the Office of Management and Budget's (OMB) approval of the information collection requirements specified in the 1,3 Butadiene Standard.
Comments must be submitted (postmarked, sent, or received) by June 2, 2023.
For further information on submitting comments, see the “Public Participation” heading in the section of this notice titled
Seleda Perryman or Theda Kenney, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor; telephone (202) 693-2222.
The Department of Labor, as part of the continuing effort to reduce paperwork and respondent (
The following sections describe who uses the information collected under each requirement, as well as how they use it. The 1,3-Butadiene requires employers to monitor employee exposure to 1,3-Butadiene, develop and maintain compliance and exposure goal programs if employee exposures to BD are above the standard's permissible exposure limits or action level, label respirator filter elements to indicate the date and time it is first installed on the respirator, establish medical surveillance programs to monitor employee health and to provide employees with information about their exposures, and the health effects of exposure to BD.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the agency's functions to protect workers, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection, and transmission techniques.
OSHA is requesting that OMB extend the approval of the information collection requirements contained in 1,3 Butadiene Standard. The agency requests to maintain previously approved burden hours calculations for this proposed information collections request (ICR), which is 887 burden hours.
OSHA will summarize the comments submitted in response to this notice and will include this summary in the request to OMB to extend the approval of the information collection requirements.
You may submit comments in response to this document as follows: (1) electronically at
Comments and submissions are posted without change at
All submissions, including copyrighted material, are available for inspection and copying at the OSHA Docket Office. Information on using the
James S. Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
Signed at Washington, DC.
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning the proposal to extend the Office of Management and Budget's (OMB) approval of the information collection requirements specified in its Standard on Aerial Lifts.
Comments must be submitted (postmarked, sent, or received) by June 2, 2023.
For further information on submitting comments, see the “Public Participation” heading in the section of this notice titled
Seleda Perryman or Theda Kenney, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor; telephone (202) 693-2222.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent (
The following sections describe who uses the information collected under each requirement, as well as how they use it. The purpose of these requirements are to ensure that employers who modify an aerial lift for a use not intended by the lift manufacturer (field modified aerial lift) will obtain from that manufacturer, or an equivalent entity (such as a nationally-recognized laboratory), a written certificate stating that: the modification conforms to the applicable provisions of ANSI A92.2-1969 and OSHA's Aerial Lifts Standard; and the modified aerial lift is at least as safe as it was before modification. Doing so reduces the likelihood of worker's serious bodily injury or death during the operation of field modified aerial lifts.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the agency's functions to protect workers, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection, and transmission techniques.
OSHA is requesting to retain its previous approved burden hour estimate of one (1) hour contained in the standard on Aerial Lifts (29 CFR 1926.453). There are no program changes or adjustments associated with the information collection requirement in the standard. The agency has correspondingly adjusted the per response time burden to maintain a burden as close as is possible to the actual time of no hours (1 hour).
OSHA will summarize the comments submitted in response to this notice and will include this summary in the request to OMB to extend the approval of the information collection requirements.
You may submit comments in response to this document as follows: (1) electronically at
Comments and submissions are posted without change at
James S. Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning the proposal to extend the Office of Management and Budget's (OMB) approval of the information collection requirements contained in the Walking and Working Surfaces Standard for General Industry.
Comments must be submitted (postmarked, sent, or received) by June 2, 2023.
Seleda Perryman or Theda Kenney, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor; telephone (202) 693-2222.
The Department of Labor, as part of a continuing effort to reduce paperwork and respondent (
The following sections describe who uses the information collected under each requirement, as well as how they use it. The purpose of these requirements are to help employers protect workers from slip, trip, and fall hazards.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the agency's functions to protect workers, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection and transmission techniques.
OSHA is requesting that OMB extend approval of the information collection requirements contained in the Walking and Working Surfaces Standard for General Industry (29 CFR part 1910, subpart D). OSHA is requesting to maintain the estimated hour and cost burdens approved under the previous package.
OSHA will summarize the comments submitted in response to this notice and will include this summary in the request to OMB to extend the approval of the information collection requirements.
You may submit comments in response to this document as follows: (1) electronically at
Comments and submissions are posted without change at
James S. Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning the proposal to extend the Office of Management and Budget's (OMB) approval of the information collection requirements specified in the Standard on Asbestos in General Industries.
Comments must be submitted (postmarked, sent, or received) by June 2, 2023.
For further information on submitting comments, see the “Public Participation” heading in the section of this notice titled
Seleda Perryman or Theda Kenney, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor; telephone (202) 693-2222.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent (
The following sections describe who uses the information collected under each requirement, as well as how they use it. The purpose of these requirements are to help employers monitor worker exposure to asbestos, to take action to reduce worker exposure to the PEL, to monitor worker health, and to provide workers with information about their exposures and the health effects that may result from their occupational involvement with asbestos, and provide access to these records by OSHA, the National Institute for Occupational Safety and Health, the affected workers, and designated representatives.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the agency's functions to protect workers, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection, and transmission techniques.
OSHA is requesting that OMB extend the approval of the information collection requirements contained in the Standard on Asbestos in General Industries (29 CFR 1910.1001). The agency is requesting an adjustment decrease in 10,125 hours to 10,124 hours, a difference of 1 hour. This decrease is due to the agency's use of a new method for rounding burden hours.
OSHA is additionally requesting an adjustment increase capital costs increased by $84,900 (from $957,660 to $1,042,560). This adjustment is related to the transition of contractor housekeeping employee notifications from supervising employees to contracted employees and annual changes in estimated occupation and wage rates.
OSHA will summarize the comments submitted in response to this notice and will include this summary in the request to OMB to extend the approval of the information collection requirements.
You may submit comments in response to this document as follows: (1) electronically at
Comments and submissions are posted without change at
James S. Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
Office of Government Information Services (OGIS), National
Notice of meeting.
We are announcing a meeting of the Chief Freedom of Information Act (FOIA) Officers Council, co-chaired by the Director of OGIS and the Director of OIP.
The meeting will be on Tuesday, April 25, 2023, from 10 a.m. to 11:30 p.m. EDT. Please register for the meeting no later than 11:59 p.m. EDT on Sunday, April 23, 2023 (registration information is detailed below).
The April 25, 2023, meeting will be a virtual meeting. We will send access instructions to those who register according to the instructions below.
Martha Murphy, by email at
This meeting is open to the public in accordance with the Freedom of Information Act (5 U.S.C. 552(k)). Additional details about the meeting, including the agenda, will be available on Chief FOIA Officers Council website at
Weeks of April 3, 10, 17, 24, May 1, 8, 2023. The schedule for Commission meetings is subject to change on short notice. The NRC Commission Meeting Schedule can be found on the internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings or need this meeting notice or the transcript or other information from the public meetings in another format (
Public.
Members of the public may request to receive the information in these notices electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555, at 301-415-1969, or by email at
There are no meetings scheduled for the week of April 3, 2023.
There are no meetings scheduled for the week of April 10, 2023.
There are no meetings scheduled for the week of April 24, 2023.
There are no meetings scheduled for the week of May 1, 2023.
There are no meetings scheduled for the week of May 8, 2023.
For more information or to verify the status of meetings, contact Wesley Held at 301-287-3591 or via email at
The NRC is holding the meetings under the authority of the Government in the Sunshine Act, 5 U.S.C. 552b.
For the Nuclear Regulatory Commission.
Office of Personnel Management.
30-Day notice and request for comments.
The Healthcare & Insurance/Federal Employee Insurance Operations (FEIO) offers the general public and other federal agencies the opportunity to comment on the renewal of an expiring information collection request (ICR), without change, OPM 2809, Health Benefits Election Form.
Comments are encouraged and will be accepted until May 3, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
A copy of this information collection, with applicable supporting documentation, may be obtained by contacting the Retirement Services Publications Team, Office of Personnel Management, 1900 E Street NW, Room 3316-L, Washington,
As required by the Paperwork Reduction Act of 1995 OPM is soliciting comments for this collection. The information collection (OMB No. 3206-0141) was previously published in the
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
OPM 2809, Health Benefits Election form, is used by annuitants and former spouses to elect, cancel, suspend, or change health benefits enrollment during periods other than open season.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Rule 7.25E, which governs the allocation of securities to Designated Market Makers. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend Rule 7.25E, which governs the allocation of securities to Designated Market Makers (“DMMs”). Specifically, the Exchange proposes to require issuers to select all DMM units to interview. The Exchange also proposes to correct a typographical error.
Rule 7.25E currently provides two options for the allocation of securities to DMMs: (1) the issuer selects the DMM unit; or (2) the issuer delegates selection of the DMM unit to the Exchange.
If the issuer proceeds under the first option, Rule 7.25E(b)(1)(A) provides that the listing company will select a minimum of four DMMs to interview from the pool of DMMs eligible to participate in the allocation process.
The proposed change would conform Rule 7.25E(b)(1)(A) with Rule 103B(III)(A)(1) of the Exchange's affiliate New York Stock Exchange LLC (“NYSE”), which does not specify a minimum number of DMMs to be interviewed. The Exchange believes that not specifying a number of DMMs to be interviewed would ensure that all eligible DMM units would have an opportunity to participate in the allocation process at all times irrespective of the number of DMMs operating on the Exchange.
In addition, the Exchange proposes a non-substantive change to Rule 7.25E(b)(1)(A) to replace “shall” with “must” before “select.” Finally, the Exchange also proposes to correct the heading in Rule 7.25E(b)(1), which should read “Issuer Selection.” These proposed changes would further align the Exchange's Rule with NYSE Rule 103B.
The proposed rule change is consistent with Section 6(b) of the Act,
Specifically, the Exchange believes that the proposed amendments to Rule 7.25E(b)(1)(A) to provide that issuers interview all DMMs would promote just and equitable principles of trade because no eligible DMM unit would be excluded from the issuer interview. For the same reason, the Exchange believes the proposal is designed to remove impediments to, and perfect the mechanism of a free and open market and a national market system. The Exchange believes that requiring all DMM units to participate in issuer interviews would also continue to foster competition and optimal performance among DMMs. In addition, the Exchange believes that harmonizing the Exchange's rule with that of its NYSE affiliate would provide greater harmonization among affiliated exchanges that have adopted substantially similar requirements for DMM interviews, thereby resulting in similarly efficient administration of listing interviews across exchanges.
Finally, the Exchange's proposed technical, non-substantive changes—correcting a typographical error and replacing “will” with “must”—adds clarity and transparency to the Exchange's Rules and reduces potential investor confusion, which would remove impediments to and perfect the mechanism of a free and open market and a national market system.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes that the proposed changes would continue to foster competition and optimal performance among DMMs, thereby enhancing the quality of the services DMMs provide to issuers. Further, the Exchange believes that the proposed changes would not be burdensome to issuers since issuers are currently interviewing all DMMs. Even assuming an increase in the burden on issuers during the allocation process if the number of DMMs on the Exchange should increase, the Exchange believes that any such increased burden would be small relative to the benefits that additional competition among DMM units may provide. Issuers could, moreover, permit the Exchange to select the DMM unit pursuant to the process found in Rule 7.25E(b)(2).
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposed a rule change relating to the SGI Dynamic Tactical ETF (the “Fund”) of The RBB Fund, Inc. (the “Company”), to list and trade shares of the Fund under Nasdaq Rule 5750 (“Proxy Portfolio Shares”). The shares of the Fund are collectively referred to herein as the “Shares.”
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange has adopted Nasdaq Rule 5750, which governs the listing and trading of Proxy Portfolio Shares on the Exchange.
The Fund is an actively-managed exchange-traded fund (“ETF”). The Shares will be offered by the Company, which was established as a Maryland corporation on February 29, 1988.
Nasdaq Rule 5750(b)(5) provides that if the investment adviser to the Investment Company (as defined herein) issuing Proxy Portfolio Shares
In addition, in accordance with Nasdaq Rule 5750(b)(6), any person or entity, including a custodian, Reporting Authority,
The issuer represents that with respect to each Proxy Basket and Custom Basket: (i) the Proxy Basket will be publicly disseminated at least once daily and will be made available to all market participants at the same time, and (ii) with respect to each Custom Basket utilized by a series of Proxy Portfolio Shares, each business day, before the opening of trading in the regular market session, the investment company shall make publicly available on its website the composition of any Custom Basket transacted on the previous business day, except a Custom Basket that differs from the applicable Proxy Basket only with respect to cash.
In the event (a) the Adviser or Sub-Adviser registers as a broker-dealer, or becomes newly affiliated with a broker-dealer, or (b) any new adviser or sub-adviser is a registered broker-dealer or becomes affiliated with a broker-dealer, it will implement and will maintain a fire wall with respect to its relevant personnel and/or such broker-dealer affiliate, as applicable, regarding access to information concerning the composition of and/or changes to the Fund Portfolio, the Proxy Basket and/or Custom Basket, as applicable and will be subject to procedures designed to prevent the use and dissemination of material non-public information regarding the Fund Portfolio, the Proxy Basket, and/or Custom Basket, as applicable, or changes thereto.
The Fund intends to qualify each year as a regulated investment company under Subchapter M of the Internal Revenue Code of 1986, as amended.
The investment objective of the Fund will be to seek to provide long-term capital appreciation. Under normal market conditions,
Under the terms of the Exemptive Order,
The Fund's holdings will conform to the permissible investments as set forth in the Registration Statement and Exemptive Order and the holdings will be consistent with all requirements in the Registration Statement and Exemptive Order. Any foreign common stocks held by the Fund will be traded on an exchange that is a member of the Intermarket Surveillance Group (“ISG”) or with which the Exchange has in place a comprehensive surveillance sharing agreement. The Fund's investments, including derivatives, will be consistent with its investment objective and will not be used to enhance leverage (although certain derivatives and other investments may result in leverage). That is, the Fund's investments will not be used to seek performance that is the multiple or inverse multiple (
The Exchange represents that trading in the Proxy Portfolio Shares will be subject to the existing trading surveillances, administered by the Exchange, as well as cross-market surveillances administered by Financial Industry Regulatory Authority (“FINRA”), on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws. The Exchange represents that these surveillance procedures are adequate to properly monitor the trading of Proxy Portfolio Shares on the Exchange during all trading sessions and to deter and detect violations of Exchange rules and the applicable federal securities laws. Trading of Proxy Portfolio Shares on the Exchange will be subject to the Exchange's surveillance procedures for derivative products. The Fund's investments, including derivatives, will be consistent with its investment objective and will not be used to enhance leverage (although certain derivatives and other investments may result in leverage).
The Exchange prior to the commencement of trading will require the issuer of each series of Proxy Portfolio Shares listed on the Exchange to represent to the Exchange that it will advise the Exchange of any failure by
The Adviser will upon request make available to the Exchange and/or FINRA, on behalf of the Exchange, the daily Fund Portfolio of each series of Proxy Portfolio Shares. The Exchange believes that this is appropriate because it will provide the Exchange and/or FINRA, on behalf of the Exchange, with access to the daily Fund Portfolio of any series of Proxy Portfolio Shares upon request on an as needed basis. The Exchange believes that the ability to access the information on an as needed basis will provide it and/or FINRA with sufficient information to perform the necessary regulatory functions associated with listing and trading series of Proxy Portfolio Shares on the Exchange, including the ability to monitor compliance with the initial and continued listing requirements as well as the ability to surveil for manipulation of the Shares.
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of the Fund.
Trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Proxy Portfolio Shares inadvisable. These may include: (1) the extent to which trading is not occurring in the securities and/or the financial instruments composing the Proxy Basket or Fund Portfolio; or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present. Trading in the Proxy Portfolio Shares also will be subject to Rule 5750(d)(2)(D), which sets forth circumstances under which a series of Proxy Portfolio Shares may be halted.
Nasdaq deems the Shares to be equity securities, thus rendering trading in the Shares subject to Nasdaq's existing rules governing the trading of equity securities. Nasdaq will allow trading in the Shares from 4:00 a.m. until 8:00 p.m., Eastern Time in accordance with Equity 2, Section 8. The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. As provided in Nasdaq Rule 5750(b)(3), the minimum price variation for quoting and entry of orders in Proxy Portfolio Shares traded on the Exchange is $0.01. A “Creation Unit” will consist of at least 5,000 Shares.
With respect to Proxy Portfolio Shares, all of the Exchange member obligations relating to product description and prospectus delivery requirements will continue to apply in accordance with Exchange rules and federal securities laws, and the Exchange and FINRA will continue to monitor Exchange members for compliance with such requirements.
The Fund's website (
The website will include additional quantitative information updated on a daily basis, including, on a per Share basis for the Fund, the prior business day's NAV and the closing price or bid/ask price at the time of calculation of such NAV, and a calculation of the premium or discount of the closing price or bid/ask price against such NAV. The website will also disclose any other information regarding premiums and discounts and the bid/ask spread for the Fund as may be required for other ETFs under Rule 6c-11 under the 1940 Act, as amended. On each business day, before the commencement of trading of Shares, the Fund will publish on its website the Proxy Basket and the “Guardrail Amount” (see description below) for that day.
Form N-PORT requires reporting of a fund's complete portfolio holdings on a position-by-position basis on a quarterly basis within 60 days after fiscal quarter end. Investors can obtain a fund's Statement of Additional Information, its Shareholder Reports, its Form N-CSR, filed twice a year, and its Form N-CEN, filed annually. A fund's SAI and Shareholder Reports are available for free upon request from the Investment Company, and those documents and the Form N-PORT, Form N-CSR, and Form N-CEN may be viewed on-screen or downloaded from the Commission's website at
Pursuant to the Exemptive Order, the Fund is permitted to use Custom Baskets. For the Fund, the Proxy Basket will consist of all of the Fund portfolio holdings but will be weighted differently, subject to a minimum
Nasdaq Rule 5750(c)(6) defines “Custom Basket” for the purposes of Nasdaq Rule 5750 as a portfolio of securities that is different from the Proxy Basket and is otherwise consistent with the exemptive relief issued pursuant to the 1940 Act applicable to a series of Proxy Portfolio Shares.
The Proxy Basket will be constructed utilizing a proprietary algorithmic process that will be applied to the Fund Portfolio on a daily basis. The Proxy Basket holdings (including the identity and quantity of investments in the Proxy Basket) will be publicly available on the Fund's website before the commencement of trading in Fund Shares on each business day, although the weightings of such holdings in the Proxy Basket will differ from the Fund Portfolio. The Proxy Basket will have a minimum overlap of 90% with the Fund Portfolio at the beginning of each business day, with the precise percentage of aggregate overlap in weightings from 90% to 100% to be randomly generated each day (the overlap and tracking error will be available on the Fund's website before the commencement of trading in Proxy Portfolio Shares on each business day and discussed further below).
In addition to the disclosure of the Proxy Basket, the Fund will also publish the Guardrail Amount on its website on each business day before the commencement of trading in the Proxy Portfolio Shares on the Exchange. The Guardrail Amount is the maximum deviation between the weightings of the specific instruments and cash positions in the Proxy Basket from the weightings of those specific instruments and cash positions in the Fund Portfolio. The Guardrail Amount is intended to ensure that no individual security in the Proxy Basket will be overweighted or underweighted by more than the publicly disclosed percentage when compared to the actual weighting of each security within the Fund Portfolio as of the beginning of each business day. The Adviser expects the performance of the Proxy Basket and the Fund Portfolio to be closely aligned in light of the construction of the Proxy Basket, and does not expect the “Tracking Error” to exceed 1% (available on the Fund's website before the commencement of trading in Proxy Portfolio Shares on each business day). “Tracking Error” is defined to mean the standard deviation over the past three months of the daily difference, in percentage terms, between the Proxy Basket per Share NAV and that of the Fund at the end of the business day.
The Fund will also disclose the entirety of its Fund Portfolio, including the name, identifier, market value and weight of each security and instrument in the portfolio, no less than 60 days following the end of every fiscal quarter.
The Exchange represents that the Shares will conform to the initial and continued listing criteria under Nasdaq Rule 5750, including the dissemination of key information such as the Proxy Basket, the Custom Basket, the Fund Portfolio, and NAV, suspension of trading or removal, trading halts, surveillance, minimum price variation for quoting and order entry, an information circular informing members of the special characteristics and risks associated with trading in the series of Proxy Portfolio Shares, and firewalls as set forth in the proposed Exchange rules applicable to Proxy Portfolio Shares.
Price information for the exchange-listed instruments held by the Fund, including both U.S. and non-U.S. listed equity securities and U.S. exchange-listed futures will be available through major market data vendors or securities exchanges listing and trading such securities. Moreover, U.S.-listed equity securities held by the Fund will trade on markets that are a member of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
All statements and representations made in this filing regarding the description of the portfolio or reference assets, limitations on portfolio holdings or reference assets, dissemination and availability of reference assets (as applicable) such as the Fund Portfolio and the Proxy Basket, the Custom Basket, and the applicability of Exchange listing rules specified in this filing shall constitute continued listing requirements for the Shares. A minimum of 100,000 Shares of the Fund will be outstanding at the commencement of trading on the Exchange. In addition, pursuant to Nasdaq Rule 5750(d)(1)(B), the Exchange prior to the commencement of trading in the Proxy Portfolio Shares, will obtain a representation from the issuer of the Shares of the Fund that (i) the NAV per share for the Fund will be calculated daily, (ii) each of the following will be made available to all market participants at the same time
The issuer has represented to the Exchange that it will advise the Exchange of any failure by the Fund or Shares to comply with the continued listing requirements, and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will surveil for compliance with the continued listing requirements. FINRA conducts certain cross-market surveillances on behalf of the Exchange pursuant to a regulatory services agreement. The Exchange is responsible for FINRA's performance under this regulatory services agreement. If a Fund is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under the Nasdaq 5800 Series.
Nasdaq believes that the proposal is consistent with Section 6(b) of the Act in general and Section 6(b)(5) of the Act, in particular, in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, and to remove impediments to and perfect the mechanism of a free and open market and, in general, to protect investors and the public interest.
The Fund's holdings will conform to the permissible investments as set forth in the Registration Statement and Exemptive Order and the holdings will be consistent with all requirements in the Registration Statement and Exemptive Order. The Fund's investments, including derivatives, will be consistent with its investment objective and will not be used to enhance leverage (although certain derivatives and other investments may result in leverage). That is, the Fund's investments will not be used to seek performance that is the multiple or inverse multiple (
The Exchange believes that the particular instruments that may be included in the Fund Portfolio and the Proxy Basket or Custom Basket do not raise any concerns related to the Proxy Basket or Custom Basket being able to closely track the NAV of the Fund because such instruments include only instruments that trade on an exchange contemporaneously with the Shares. In addition, the Fund's Proxy Basket or Custom Basket is designed to reliably and consistently correlate to the performance of the Fund.
The Adviser anticipates that the returns between the Fund and its respective Proxy Basket or Custom Basket will have a consistent relationship and that the deviation in the returns between the Fund and its Proxy Basket or Custom Basket will be sufficiently small such that the Proxy Basket or Custom Basket will provide authorized participants, arbitrageurs and other market participants (collectively, “Market Makers”) with a reliable hedging vehicle that they can use to effectuate low-risk arbitrage trades in Fund Shares. The Exchange believes that the disclosures provided by the Fund will allow Market Makers to understand the relationship between the performance of the Fund and its Proxy Basket or Custom Basket. Market Makers will be able to estimate the value of and hedge positions in the Fund's Shares, which the Exchange believes will facilitate the arbitrage process and help ensure that the Fund's Shares normally will trade at market prices close to their NAV. The Exchange also believes that competitive market making, where traders are looking to take advantage of differences in bid-ask spread, will aid in keeping spreads tight.
The Exchange notes that a significant amount of information about the Fund and its Fund Portfolio is publicly available at all times. The Fund will disclose the Proxy Basket, which is designed to closely track the daily performance of the Fund Portfolio, on a daily basis and will be available on the Fund's website before the commencement of trading in Proxy Portfolio Shares on each business day. With respect to each Custom Basket, each business day, before the opening of trading in the regular market session, the Investment Company shall make publicly available on its website the composition of any Custom Basket transacted on the previous business day, except a Custom Basket that differs from the applicable Proxy Basket only with respect to cash. Intraday pricing information for all constituents of the Proxy Basket that are exchange-traded, which includes all eligible instruments except cash and cash equivalents, will be available on the exchanges on which they are traded and through subscription services. Intraday pricing information for cash equivalents will be available through subscription services and/or pricing services. The issuer of the Proxy Portfolio Shares will at a minimum publicly disclose the entirety of its portfolio holdings,
The Fund's website will include additional quantitative information updated on a daily basis,
The Exchange represents that the Shares of the Fund will continue to comply with all other proposed requirements applicable to Proxy Portfolio Shares, including the dissemination of key information such as the Proxy Basket, the Custom Basket, disclosure of the Fund Portfolio quarterly, and NAV, suspension of trading or removal, trading halts, surveillance, minimum price variation for quoting and order entry, an information circular informing members of the special characteristics and risks associated with trading in the series of Proxy Portfolio Shares, and firewalls as set forth in the proposed Exchange rules applicable to Proxy Portfolio Shares and the orders approving such rules. Moreover, U.S.-listed equity securities, exchange-traded futures that are traded on a U.S. futures exchange, and non-U.S. listed equity securities held by the
The daily dissemination of the identity and quantity of Proxy Portfolio component investments, together with the right of Authorized Participants to create and redeem each day at the NAV, will be sufficient for market participants to value and trade Shares in a manner that will not lead to significant deviations between the Shares' Closing Price or Bid/Ask Price and NAV.
All statements and representations made in this filing regarding the description of the portfolio or reference assets, limitations on portfolio holdings or reference assets, dissemination and availability of reference asset (as applicable), and the applicability of Exchange listing rules specified in this filing shall constitute continued listing requirements for the Shares. The issuer has represented to the Exchange that it will advise the Exchange of any failure by the Fund or Shares to comply with the continued listing requirements, and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will surveil for compliance with the continued listing requirements. A minimum of 100,000 Shares of the Fund will be outstanding at the commencement of trading on the Exchange. The Exchange will obtain a representation from the issuer of the Shares of the Fund that (i) the NAV per share for the Fund will be calculated daily, (ii) each of the following will be made available to all market participants at the same time when disclosed: the NAV, the Proxy Basket, and the Fund Portfolio, and (iii) the issuer and any person acting on behalf of the series of Proxy Portfolio Shares will comply with Regulation Fair Disclosure under the Act,
FINRA conducts certain cross-market surveillances on behalf of the Exchange pursuant to a regulatory services agreement. The Exchange is responsible for FINRA's performance under this regulatory services agreement. If a Fund is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under the Nasdaq 5800 Series.
For the above reasons, the Exchange believes that the proposed rule change is consistent with the requirements of Section 6(b)(5) of the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Rather, the Exchange notes that the proposed rule change will facilitate the listing of a new type of actively-managed exchange-traded product, thus enhancing competition among both market participants and listing venues, to the benefit of investors and the marketplace.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act normally does not become operative for 30 days after the date of its filing. However, Rule 19b-4(f)(6)(iii)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to: Secretary, Securities and Exchange
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On May 13, 2022, the Operating Committee for Consolidated Audit Trail, LLC (“CAT LLC”), on behalf of the Participants
On August 30, 2022, the Commission instituted proceedings pursuant to Rule 608(b)(2)(i) of Regulation NMS,
On January 20, 2023, the Commission extended the period within which to conclude proceedings regarding the Proposed Amendment to 300 days from the date of publication of the Notice.
By the Commission.
2:00 p.m. on Thursday, April 6, 2023.
The meeting will be held via remote means and/or at the Commission's headquarters, 100 F Street NE, Washington, DC 20549.
This meeting will be closed to the public.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the closed meeting. Certain staff members who have an interest in the matters also may be present. In the event that the time, date, or location of this meeting changes, an announcement of the change, along with the new time, date, and/or place of the meeting will be posted on the Commission's website at
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) and (10) and 17 CFR 200.402(a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and (a)(10), permit consideration of the scheduled matters at the closed meeting.
The subject matter of the closed meeting will consist of the following topics:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings;
Resolution of litigation claims; and
Other matters relating to examinations and enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting agenda items that may consist of adjudicatory, examination, litigation, or regulatory matters.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange is filing with the Commission a proposed rule change to amend and restate the Sixth Amended and Restated Limited Liability Company Agreement (the “Sixth Amended LLC Agreement”) of MEMX Holdings LLC (“Holdco”) as the Seventh Amended and Restated Limited Liability Company Agreement of Holdco (the “Seventh Amended LLC Agreement”) to reflect certain amendments, as further described below. Holdco is the parent company of the Exchange and directly or indirectly owns all of the limited liability company membership interests in the Exchange. The text of the proposed rule change is provided in Exhibit 5.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend and restate the Holdco LLC Agreement
The primary purpose of the Exchange's proposal to amend and restate the Holdco LLC Agreement is to create a new class of membership interest in Holdco, the Class D Units, which are the exact same type of membership interest (
The proceeds resulting from the sale of Class D Units pursuant to the Transaction will be paid to Holdco by the new and existing Members participating in the Transaction as purchasers of Class D Units (the “Participating Members”), and such proceeds will be used by Holdco for general corporate expenses, including to support the operations and regulation of the Exchange, which is a subsidiary of Holdco. Although each Member's proportionate ownership of Holdco will change as a result of the Transaction, no Member will exceed any ownership or voting limitations applicable to the Members set forth in the Holdco LLC Agreement after giving effect to the Transaction and the amendments to the Holdco LLC Agreement proposed herein.
Additionally, in connection with the Transaction, one new Member, Optiver PSI B1 LLC (“Optiver”), will receive the right to nominate a Director, thereby increasing the size of the Holdco Board from fourteen (14) to fifteen (15) Directors. Other than this change to the composition of the Holdco Board, a proposed change to the definition of “Supermajority Board Vote” to maintain the current affirmative vote threshold and the addition of an “Options Market Structure Committee,” each as further described below, the governance of Holdco would continue under its existing structure. None of the amendments to the Holdco LLC Agreement proposed herein would impact the governance of the Exchange.
The Transaction and all amendments to the Holdco LLC Agreement proposed herein were previously approved by the Holdco Board on March 8, 2023, in accordance with the Holdco LLC Agreement. The Exchange expects the Transaction to be completed pursuant to one or more closings that would occur within ninety (90) days of the initial closing. The Exchange expects the initial closing to occur on or shortly after the date on which the amendments to the Holdco LLC Agreement proposed herein become effective.
In connection with the Transaction, the proposal would amend the Holdco LLC Agreement to create a new class of Units, the Class D Units, in order to effectuate the sale by Holdco of Class D Units to the Participating Members. As proposed, the Class D Units are the exact same type of membership interest (
Section 3.2 currently contains provisions related to the authorization and issuance of the Class A Units, the Class C Units, and the Common Units and that specify the voting rights associated with such Units. The proposal would amend Section 3.2 to similarly reflect the creation of the Class D Units, including to add new paragraph (f), which contains provisions related to the authorization and issuance of the Class D Units (comprised of the Class D-1 Units and the Class D-2 Units, as described below) and that specifies the voting rights associated with such Units by reference to the applicable paragraphs of Section 4.7, which prescribes the actions on which holders of Units are entitled to vote.
The Exchange notes that previous amendments to the Holdco LLC Agreement changed the governance structure of Holdco from a construct in which the Members had no voting or management rights (except in very limited circumstances) and the authority to manage and control the business and affairs of Holdco was otherwise vested in the Holdco Board to a construct in which the Class A Units, the Class C Units, and the Common Units were divided into “voting” and “non-voting” series and the Members holding Class A Units, Class C Units and/or Common Units were granted certain voting rights associated with the ownership of such Units, with different voting rights associated with the “voting” series and the “non-voting” series of such classes of Units.
Under the current proposal, the Class D Units would similarly be divided into a “voting” series (
Under the proposal, Section 4.7 would be amended to reflect the creation of the Class D Units and provide for the voting rights associated with the ownership of the Class D-1 Units and the Class D-2 Units. Specifically, the Class D-1 Units and/or the Class D-2 Units, as applicable, would vote together with the Class C-1 Units and/or the Class C-2 Units, as applicable, on all matters on which the Class C-1 and/or the Class C-2 Units are currently entitled to vote, subject to two exceptions set forth in amended Section 4.7(d) and proposed new Section 4.7(f), which are described below, and the voting construct applicable to the Class D Units would exactly mirror the voting construct applicable to the Class C Units since, as noted above, they are intended to be the exact same type of membership interest with all of the same privileges, preference, duties, liabilities,
The only actions on which the Class D Units would vote on their own, and not together with the Class C Units, are set forth in: (i) amended Section 4.7(d), which provides that any waiver or amendment of any provision of the Holdco LLC Agreement which would significantly and adversely affect the rights, preferences, powers or privileges of the Class D-1 Units shall not be effected without the approval of a majority of the then-outstanding Class D-1 Units; and (ii) proposed new Section 4.7(f), which provides that any exchange, reclassification or cancellation (whether by merger, consolidation or otherwise) or modification of the terms of all or part of the Class D Units which exchange, reclassification, cancellation or modification, as applicable, significantly and adversely affects the rights or preferences of the Class D Units shall not be effected without the approval of the majority of the then-outstanding Class D-1 Units and Class D-2 Units, voting together as a single class. These exceptions to the general principle that the Class D Units vote together with the Class C Units are rooted in common corporate law principles and are intended to safeguard the Class D Units against actions that significantly and adversely affect the Class D Units specifically, and such provisions mirror existing provisions that confer the same voting rights associated with the Class C Units with respect to actions that significantly and adversely affect the Class C Units specifically. In connection with these proposed amendments to Section 4.7, the proposal would further amend Section 4.7 to renumber the existing paragraphs after proposed new paragraph (g) and update relevant section references throughout the Holdco LLC Agreement accordingly.
The proposal would also amend Section 4.6, which also relates to the voting rights of the Members, in a manner that conforms and is consistent with the proposed amendments to Section 4.7 providing for certain voting rights associated with the ownership of Class D Units, as described above, and to otherwise reflect the creation of the Class D Units.
Additionally, the proposal would amend Section 3.10, which contains provisions that permit a Class A Member and/or Class C Member to elect to specify the maximum voting percentage that such Member may have with respect to its Voting Class A Units and/or Class C-1 Units (any such election, a “Restricted Voting Election”) and that provide for the conversion of Voting Class A Units and/or Class C-1 Units into Nonvoting Class A Units and/or Class C-2 Units, respectively, and vice versa, in certain circumstances to maintain such Member's specified maximum voting percentage with respect to such Units. Section 3.10 is primarily in place in its current form to provide a mechanism for Class A Members and/or Class C Members to manage any potential deemed voting interests attributable to the Voting Class A Units and/or Class C-1 Units for BHCA and/or other regulatory purposes, although any Member holding Voting Class A Units and/or Class C-1 Units is able to make a Restricted Voting Election with respect to such Units for any purpose.
Currently, Section 3.10 provides that a Class A Member may notify Holdco of a Restricted Voting Election with respect to its Voting Class A Units (“Maximum Voting Class A Voting Percentage”), and a Class C Member may notify Holdco of a Restricted Voting Election with respect to its Class C-1 Units (“Maximum Class C-1 Voting Percentage”). The proposal would amend Section 3.10 to reflect the creation of the Class D Units and group the Class D-1 Units together with the Class C-1 Units for purposes of Section 3.10 in a manner consistent with the harmonized voting structure with respect to such Units described above, such that a Member holding Class C-1 Units and/or Class D-1 Units would now be permitted to notify Holdco of a Restricted Voting Election with respect to its Class C-1 Units and/or Class D-1 Units (“Maximum Class C-1/D-1 Voting Percentage”). In connection with this change, the proposal would also amend the following defined terms to reflect that the Class D-1 Units are now grouped together with the Class C-1 Units for purposes of Section 3.10: “Class C-1 Voting Percentage” would become “Class C-1/D-1 Voting Percentage”;
As the Class D Units are the exact same type of membership interest as the Class C Units, which are convertible into Common Units as set forth in Section 3.11 (which references additional conversion terms set forth in Exhibit G—Conversion Rights of Class C Units), as proposed, the Class D Units are also convertible into Common Units under the same terms applicable to the Class C Units. Accordingly, the proposal would amend Section 3.11 and Exhibit G to reflect the creation of the Class D Units, include references to the Class D Units where appropriate, and include conversion provisions applicable to the Class D Units that mirror those applicable to the Class C Units. Proposed new Section 3.11(d) provides that in the event of any conversion to Common Units of any Class D Units, Class D-1 Units shall be converted into Voting Common Units, and Class D-2 Units shall be converted into Nonvoting Common Units. This conversion structure mirrors that applicable to the
In connection with the creation of the Class D Units, the proposal would add definitions of the following terms in Section 1.1 (
Like the Class C Units, the primary distinction between the Class D Units and the Common Units, as well as the primary purpose of providing for the convertibility of Class D Units into Common Units, is the respective priority of Distributions
There are currently several provisions in the Holdco LLC Agreement related to the rights and obligations associated with the Class C Units and the Class C Members, and thus, make specific reference to “Class C Units” and/or “Class C Members.” As noted above, under the proposal, the Class D Units are the exact same type of membership interest and therefore have the same rights and obligations as the Class C Units, and thus, a Member's ownership of Class D Units would confer the same rights and obligations with respect to such Units as a Member's ownership of Class C Units. Accordingly, the proposal would make several amendments throughout the Holdco LLC Agreement to reflect that the Class D Units have such rights and obligations and to otherwise reflect the creation of the Class D Units, including to add references to Class D Units and/or Class D Member alongside references to Class C Units and/or Class C Member, as applicable, where appropriate for this purpose. Such changes include amendments to reflect that the Class D Units are subject to the same terms as the Class C Units regarding the Member meeting rights set forth in Sections 4.7(j) and (o) (renumbered from (h) and (m) due to the other amendments to Section 4.7 described above), the pre-emptive rights set forth in Section 9.1, the Director nomination rights set forth in Section 8.10, the Board Observer appointment rights set forth in Section 8.13, the Exchange Board Observer appointment rights set forth in Section 8.18(g), the right of first offer set forth in Section 10.3, the drag-along rights set forth in Section 10.4, the tag-along rights set forth in Section 10.5, the regulatory hardship transfer and surrender rights set forth in Section 10.6, the information rights set forth in Section 12.1, and the waiver consent rights set forth in Section 15.10.
Section 3.5 sets forth certain limitations with respect to the ownership and voting of Units, which are intended to prevent the concentration of voting power and control of Holdco, and, in turn, the Exchange, above certain specified thresholds. Specifically, Section 3.5(a) provides that for so long as Holdco controls the Exchange, subject to certain limited exceptions: (i) no Person, either alone or together with its Related Persons, may own, directly or indirectly, of record or beneficially, Units constituting more than forty percent (40%) of any class of Units; (ii) no Exchange Member, either alone or together with its Related Persons, may own, directly or indirectly, of record or beneficially, Units constituting more than twenty percent (20%) of any class of Units; and (iii) no Person, either alone or together with its Related Persons, at any time may, directly, indirectly or pursuant to any voting trust, agreement, plan or other arrangement, vote or cause the voting of Units or give any consent or proxy with respect to Units representing more than twenty percent (20%) of the voting power of the then issued and outstanding Units, nor may any Person, either alone or together with its Related Persons, enter into any agreement, plan or other arrangement with any other Person, either alone or together with its Related Persons, under circumstances that would result in the Units that are subject to such agreement, plan or other arrangement not being voted on any matter or matters or any proxy relating thereto being withheld, where the effect
The Exchange notes that while the Class D Units and the Class C Units may be considered separate classes of Units due to the naming convention of such Units (
Accordingly, the proposal would amend Section 3.5, which sets forth certain limitations with respect to the ownership and voting of Units, to include a new paragraph (e), which provides that notwithstanding anything in the Holdco LLC Agreement to the contrary, the provisions of the Holdco LLC Agreement shall be construed in a manner such that the Class C Units, the Class D Units, and the Common Units together shall be treated as a single class of securities for purposes of Sections 3.5 and 3.8.
The Exchange reiterates that Members have limited control through ownership of Units, which is comprised of voting power associated with Units with respect to the limited actions prescribed in Section 4.7 and a Nominating Member's ability to nominate a Director to the Holdco Board, and, accordingly, the authority to manage and control the business and affairs of Holdco remains generally vested in the Holdco Board.
The Exchange also notes that combining Class C Units, Class D Units, and Common Units does not increase the relative voting power or control of any Members, including the holders of Class A Units, as holders of Class A Units still vote as a separate class pursuant to Section 4.7(a) in the same manner as today. Rather, the only impact to voting power or control is dilution to Members holding Class C Units because the Exchange is bringing in new investors that will have voting power due to their holding Class D Units that will vote together with such Class C Units, as well as dilution to Members holding Class A Units in the sole event that the Class A Units vote together with the Class C Units and Class D Units with respect to the liquidation, dissolution or winding up of Holdco pursuant to Section 4.7(j). The only impact to ownership values is similarly dilutive, for both Members holding Class A Units and those holding Class C Units. However, the Holdco LLC Agreement contains provisions that permit such Members holding Class A Units and/or Class C Units to purchase Class D Units in the Transaction to retain their current proportionate ownership (and, in turn, control and voting power) to the extent they are concerned about any such dilution, and none of the proposed changes will impair the ability of the Exchange to carry out its functions and responsibilities as an “exchange” under the Exchange Act, and the rules and regulations promulgated thereunder, nor does it impair the ability of the SEC to enforce the Exchange Act and the rules and regulations promulgated thereunder with respect to the Exchange.
The Exchange notes that the proposed new Section 3.5(e) does not seek to treat Class A Units as a single class along with Class C Units, Class D Units, and Common Units for this purpose because Class A Units are economically distinct, as they are best characterized as participating preferred securities and are not convertible into Common Units, and because the Class A Units vote as a separate class (
The Exchange notes that Section 3.8, which would remain unchanged, contains provisions allowing an Exchange Member that (together with its Related Persons) owns, directly or indirectly, of record or beneficially, Units constituting more than twenty percent (20%) of any class of Units to transfer the number of Units which account for the excess over such twenty percent (20%) ownership limitation, so the proposed new Section 3.5(e) makes clear that the same rule applying to the treatment of ownership of Class C Units, Class D Units, and Common Units for purposes of Section 3.5 described above would also apply to Section 3.8, as such section also contains a provision related to an ownership threshold, for purposes of which the Exchange and the Holdco Board believes Class C Units, Class D Units, and Common Units are functionally equivalent and appropriately treated as a single class.
In connection with the Transaction, Optiver will become a Member with the right to nominate a Director to the Holdco Board (
In addition, the proposal would amend the definition of “Supermajority Board Vote” in Section 1.1, as further described below. Currently, the term Supermajority Board Vote means the affirmative vote of at least seventy-seven percent (77%) of the votes of all Directors then entitled to vote on the matter under consideration and who have not recused themselves, whether or not present at the applicable meeting of the Board; provided that if such affirmative vote threshold results in the necessity of the affirmative vote of eight (8) such Directors or fewer, an affirmative vote of all but two (2) of such Directors shall be required instead with respect to such matter. As the size of the Holdco Board will increase as a result of the Transaction, as described above, the proposal seeks to amend the definition of “Supermajority Board Vote” in Section 1.1 to change the affirmative vote threshold from seventy-seven percent (77%) of the votes of all Directors then entitled to vote to seventy-three percent (73%) of the votes of all Directors then entitled to vote, which would maintain the current voting structure in that the affirmative vote of the same number of Directors would be required assuming that all Directors are entitled to vote on a matter and none have recused themselves. Specifically, under the current structure with fourteen (14) Directors, assuming all such Directors are entitled to vote on a matter and none have recused themselves, a matter would be approved as an affirmative Supermajority Board Vote if eleven (11) Directors vote in favor of a matter, and under the proposed structure with fifteen (15) Directors a matter would similarly be approved as an affirmative Supermajority Board Vote if eleven (11) Directors vote in favor of a matter. Accordingly, the Holdco Board and the Exchange believe it is appropriate to maintain this voting structure which results in an affirmative Supermajority Board Vote if eleven (11) Directors vote in favor of a particular matter. The proposal would not change any other aspect of the definition.
The proposal also would amend Section 8.9 to establish an Options Market Structure Committee and to restructure such Section in connection with this addition. Currently, Section 8.9 addresses committees of the Holdco Board, including the right of the Holdco Board to establish one or more committees of the Holdco Board that have the authority to make recommendations to the Holdco Board, but not to act for or on behalf of, or to bind Holdco. Section 8.9 also states that the Holdco Board shall establish a market structure committee and that so long as BlackRock remains a Nominating Member, (a) BlackRock shall have the right, but not the obligation, to designate one of its representatives to serve on such market structure committee at all times, and (b) if BlackRock so requests, a representative of BlackRock shall be the chairperson of such market structure committee. The Exchange proposes to establish paragraph (a) to Section 8.9, which would maintain the existing general language regarding committees and to entitle such paragraph “Board Advisory Committees”, and to establish paragraph (b) to Section 8.9, which would describe Market Structure Committees generally and restate much of the language from paragraph (a), including that such Market Structure Committees shall have the power to make recommendations to, but not act for or on behalf of, or to bind the Holdco Board.
Proposed paragraph (b)(i) would describe the existing Market Structure Committee (which would be renamed as the Equities Market Structure Committee) and would provide that such committee shall be composed of Directors, Alternate Directors, Board Observers and/or other representatives of Nominating Members. Further, paragraph (b)(i) would include the existing language providing that so long as BlackRock remains a Nominating Member, (A) BlackRock shall have the right, but not the obligation, to designate one of its representatives to serve on the Equities Market Structure Committee at all times, and (B) if BlackRock so requests, a representative of BlackRock shall be the chairperson of the Equities Market Structure Committee.
Proposed paragraph (b)(ii) would mirror paragraph (b)(i), as described above, and would describe the new Options Market Structure Committee. Paragraph (b)(ii) would provide that the Options Market Structure Committee shall be composed of Directors, Alternate Directors, Board Observers and/or other representatives of Members. Further, paragraph (b)(ii) would provide similar rights to Optiver as those currently provided to BlackRock, and state that so long as Optiver remains a Nominating Member, (A) Optiver shall have the right, but not the obligation, to designate one of its representatives to serve on the Options Market Structure Committee at all times, and (B) if Optiver so requests, a representative of Optiver shall be the chairperson of the Options Market Structure Committee.
The Exchange notes that the Board currently has the right to establish committees by Supermajority Board Vote, and the codification of the existence, composition and details regarding the Market Structure Committees does not impact the governance of Holdco. Rather, the purpose of codifying the Market Structure Committees is in recognition of their importance to Holdco in providing advice to Holdco regarding developments in market structure applicable to these asset classes, namely equities and options. As noted above, neither Market Structure Committee will have the power to act for or on behalf of, or to bind, the Holdco Board. The Exchange also notes that it believes it is appropriate to make clear that it will allow other representatives of Nominating Members of Holdco (in the case of the Equities Market Structure Committee) and Members of Holdco (in the case of the Options Market Structure Committee), and not just Directors, Alternate Directors and Observers, to sit on such Market Structure Committees because many of Holdco's Members have representatives with particular expertise on market structure that can
The proposal seeks to amend the definition of “Company Related Party” in the Holdco LLC Agreement.
The proposal seeks to amend the Holdco LLC Agreement's provision relating to the preparation and delivery of Holdco's annual budget. Currently, Section 12.4(a) provides that at least forty-five (45) calendar days prior to the start of any fiscal year (beginning with the fiscal year starting on January 1, 2020), Holdco shall prepare and deliver to the Holdco Board an annual budget setting forth all reasonably anticipated expenses of Holdco and its subsidiaries on a consolidated basis during the course of the upcoming Fiscal Year (the “Annual Budget”). The proposal would amend Section 12.4(a) to delete the requirement that the Annual Budget must be prepared and delivered to the Holdco Board at least forty-five (45) calendar days prior to the start of the fiscal year. Instead, as proposed, Holdco would be required to prepare and deliver the Annual Budget to the Holdco Board on any date prior to the start of the fiscal year. The Exchange and the Holdco Board believe this change is appropriate because it would permit Holdco to deliver the Annual Budget, and seek the Holdco Board's approval of such Annual Budget, at the Holdco Board's fourth quarter meeting, which is typically scheduled on a date in December that is within forty-five (45) calendar days of the start of the fiscal year. The Annual Budget would therefore still be required to be prepared and delivered before the start of the fiscal year, but with greater flexibility on the timing.
Finally, the proposal would make various clarifying, updating, conforming, and other non-substantive amendments to the Holdco LLC Agreement, each of which is discussed below.
The proposal would make the following amendments to the Holdco LLC Agreement to delete provisions and language that are now obsolete due to the passage of time:
•
•
•
Currently, Section 4.6(b) provides that if applicable law requires that the Members vote on a particular matter, Members shall vote together as a single class (other than the Class B Members, the Class A Members (including the holders of Class A-1 Units and the holders of Class A-2 Units), the holders of Class C-2 Units, and the holders of Nonvoting Common Units (if any) which shall nevertheless not vote unless applicable law, as applicable, requires that they also vote). This provision is intended to reflect the “voting” and “non-voting” Units distinction under Holdco's governance structure, as described above, and as such, the “non-voting” Units are intended to not vote even if the Members are required to vote together as a single class under applicable law unless applicable law requires that such non-voting Units vote. However, the reference in this section to “the Class A Members (including the holders of Class A-1 Units and the holders of Class A-2 Units)” was made inadvertently, and instead, this section should only reference the “non-voting” series of the Class A Units (
The proposal would make various technical and conforming amendments to the cover page, table of contents,
Lastly, the proposal would make various non-substantive “clean-up” amendments throughout the Holdco LLC Agreement to correct minor drafting errors, update section references (
The Exchange believes that the proposed amendments to the Holdco LLC Agreement are consistent with Section 6(b) of the Act,
The Exchange believes that the creation of the Class D Units is consistent with the Act, as it would facilitate additional investment and funding into Holdco resulting from the sale of Class D Units pursuant to the Transaction, and such proceeds could be used by Holdco for general corporate expenses, including to support the operations and regulation of the Exchange, which would enable the Exchange to be organized as to have the capacity to carry out the purposes of the Act and to comply with the provisions of the Act, the rules and regulations thereunder, and the rules of the Exchange, and, in turn, would protect investors and the public interest. Further, the Exchange believes that the proposal for the Class D Units to be the exact same type of membership interest as the existing Class C Units (only with a different purchase price for such Units, as described above) is consistent with the Act because, as described above, the Class D Units would have the same privileges, preference, duties, liabilities, obligations and rights, and be subject to the same voting construct, as the Class C Units under the current Holdco LLC Agreement, which facilitates certain Members' compliance with the BHCA and provides for a governance structure of Holdco that is consistent with the structure currently in place, which was previously approved by the Commission.
As noted above, although each Member's proportionate ownership of Holdco will change as a result of the Transaction, no Member will exceed any ownership or voting limitations applicable to the Members set forth in the Holdco LLC Agreement after giving effect to the Transaction and the proposed amendments to the Holdco LLC Agreement (including the amendment to Section 3.5 to treat the Class C Units, the Class D Units, and the Common Units as a single class of securities for purposes of such section). As described above, while the Class D Units and the Class C Units may be considered separate classes of Units due to the naming convention of such Units (
Additionally, as discussed above, the proposal to treat the Class C Units, the Class D Units, and the Common Units as a single class for purposes of Sections
As described above, in connection with the Transaction, Optiver will receive the right to nominate a Director and the size of the Holdco Board will increase from fourteen (14) to fifteen (15) Directors, as of the Effective Date. The Exchange believes the proposed amendments to reflect these changes are appropriate and consistent with the Act, as such amendments would update and clarify the relevant provisions of the Holdco LLC Agreement to reflect changes with respect to the Holdco Board that will result from the Transaction, as described above.
Similarly, the Exchange believes the proposed amendment to the definition of Supermajority Board Vote to change the affirmative vote threshold from seventy-seven percent (77%) of the votes of all Directors then entitled to vote to seventy-three percent (73%) of the votes of all Directors then entitled to vote is appropriate and consistent with the Act, as the resulting voting structure is consistent with the current voting structure which results in an affirmative Supermajority Board Vote if eleven (11) Directors vote in favor of a particular matter assuming that all Directors are entitled to vote on a matter and none have recused themselves, as described above. The Exchange believes that updating the Holdco LLC Agreement to reflect these changes with respect to the Holdco Board would ensure clarity with respect to the corporate documents of the Exchange's parent company, thereby enabling the Exchange to be so organized as to have the capacity to carry out the purposes of the Act and to comply with the provisions of the Act, the rules and regulations thereunder, and the rules of the Exchange, promoting just and equitable principles of trade, removing impediments to and perfect the mechanism of a free and open market, and protecting investors and the public interest.
Lastly, the Exchange believes the proposed amendment to the Section 8.9 to separate Board Advisory Committees generally from Market Structure Committees and establish the Options Market Structure Committee is appropriate and consistent with the Act, as the codification of these committees does not impact the governance of Holdco, as described above, but rather reflects the existence of such committees and their importance to Holdco in providing advice to Holdco regarding developments in market structure applicable to each asset class. As noted above, neither Market Structure Committee has the power to act for or on behalf of, or to bind, Holdco. The Exchange believes that updating the Holdco LLC Agreement to reflect these changes with respect to the Holdco Board would ensure clarity with respect to the corporate documents of the Exchange's parent company, thereby enabling the Exchange to be so organized as to have the capacity to carry out the purposes of the Act and to comply with the provisions of the Act, the rules and regulations thereunder, and the rules of the Exchange, promoting just and equitable principles of trade, removing impediments to and perfect the mechanism of a free and open market, and protecting investors and the public interest.
The Exchange believes the proposed amendment to the definition of “Company Related Party” is consistent with the Act, as it would broaden the definition of such term and designate additional Persons that have an affiliation with Holdco (
As described above, the proposal would amend Section 12.4(a) to delete the requirement that the Annual Budget must be prepared and delivered to the Holdco Board at least forty-five (45) calendar days prior to the start of the fiscal year. Instead, as proposed, Holdco would be required to prepare and deliver the Annual Budget to the Holdco Board on any date prior to the start of the fiscal year. The Exchange believes the proposed amendment to the Annual Budget provision is appropriate and consistent with the Act, as such amendment would permit Holdco to deliver the Annual Budget, and seek the Holdco Board's approval of such Annual Budget, at the Holdco Board's fourth quarter meeting, which is typically scheduled on a date in December that is within forty-five (45) calendar days of the start of the fiscal year. The Annual Budget would therefore still be required to be prepared
The Exchange believes the proposed amendments to make clarifications, correct inadvertent drafting errors, delete obsolete language, make conforming changes consistent with the other proposed amendments to the Holdco LLC Agreement described above, and make other technical and conforming changes to reflect that the Holdco LLC Agreement is being amended and restated from the Sixth Amended LLC Agreement to the Seventh Amended LLC Agreement are consistent with the Act, as such amendments would update and clarify the Holdco LLC Agreement, thereby increasing transparency and helping to avoid any potential confusion resulting from retaining outdated, obsolete, or unclear provisions.
The Exchange believes the proposed amendments to the Holdco LLC Agreement described in this proposal are consistent with, and will not interfere with, the self-regulatory obligations of the Exchange. The Exchange importantly notes that it is not proposing to amend any of the provisions within the Holdco LLC Agreement or the Exchange's LLC Agreement dealing with the availability or protection of information, books and records, undue influence, conflicts of interest (other than to broaden the definition of Company Related Party and subject additional transactions to the Holdco LLC Agreement's procedures designed to mitigate conflicts of interest), unfair control by an affiliate, or regulatory independence of the Exchange.
For these reasons, the Exchange believes such amendments would enable the Exchange to be so organized as to have the capacity to carry out the purposes of the Act and to comply with the provisions of the Act, the rules and regulations thereunder, and the rules of the Exchange, promote just and equitable principles of trade, remove impediments to and perfect the mechanism of a free and open market, and protect investors and the public interest.
The Exchange does not believe that the proposal will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposal is not intended to address competitive issues but rather is concerned with the creation of an additional class of Units in connection with the Transaction as well as updates and other changes to the corporate documents of Holdco related to the administration and governance of Holdco, as described above.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative prior to 30 days after the date of filing. Rule 19b-4(f)(6)(iii), however, permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has requested that the Commission waive the 30-day operative delay contained in Rule 19b-4(f)(6)(iii) so that the Exchange may amend the Holdco LLC Agreement to create an additional class of Units in order to facilitate the closing of the Transaction as soon as possible. The Commission finds that waiver of the operative delay is consistent with the protection of investors and the public interest because the proposed changes to the Holdco LLC Agreement do not materially alter Holdco's existing governance framework or raise novel issues as the new Class D Units are functionally equivalent to the Class C Units other than the original purchase price of such Units being different. Accordingly, the Commission hereby waives the operative delay and designates the proposal operative upon filing. At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Small Business Administration.
Notice of technical amendments; request for comments.
The Small Business Administration is amending the Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) programs Policy Directive to incorporate a template for agencies participating in the SBIR or STTR programs (Participating Agencies) to request the disclosure of statutorily required information from SBIR or STTR applicants.
These revisions to the SBIR/STTR Policy Directive take effect on May 3, 2023, without further action, unless significant adverse comment is received by May 3, 2023. If significant adverse comment is received, SBA will publish a timely withdrawal of the notice in the
You may submit comments, identified by number SBA-XXX-XXXX, through the Federal eRulemaking Portal:
SBA will post all comments on
Erick Page-Littleford at (202) 718-7738 or
The mission of the Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) programs is to engage small business concerns (SBCs) to support scientific excellence and technological innovation through the investment of Federal research and research and development (R/R&D) funding in critical American priorities to build a strong national economy. Both programs follow a three-phase process throughout the Federal Government to solicit proposals and award funding agreements for R/R&D: Phase I, Phase II, and Phase III.
Section 9 of the Small Business Act (the Act), 15 United States Code (U.S.C.) 638(j) and (p), requires that the Small Business Administration (SBA) issue a policy directive setting forth guidance to the Participating Agencies. The SBIR and STTR (SBIR/STTR) Policy Directive outlines how agencies must generally conduct their programs. Each Participating Agency, however, may tailor its program to meet the needs of the individual Agency, as long as the general principles of the program set forth in the Act and directive are followed. Therefore, when incorporating SBIR/STTR policy into agency-specific regulations and procedures, Participating Agencies may develop and apply processes needed to implement the policy effectively; however, no Participating Agency may develop and apply policies, directives, or clauses that contradict, weaken, or conflict with the policy as stated in the Policy Directive.
SBA reviews its SBIR/STTR Policy Directive regularly to determine areas that need updating and further clarification. The SBIR and STTR Extension Act of 2022 (Extension Act), Public Law 117-183 (Sep. 30, 2022), amended section 9 of the Act; 15 U.S.C. 638(g)(13)-(17), (o)(17)-(21), and (vv), to require small businesses applying for SBIR or STTR awards to disclose information about the applicant's investment and foreign ties. SBA is amending Section 9(a) of the Policy Directive and adding an appendix to address responsibilities of Participating Agencies to collect disclosures of information about the applicant's investment and foreign ties, as required by the Extension Act. This amendment provides a common template, based on the statutory language in the Act, to uniformly capture the required disclosures. This action is designated a direct final rulemaking because SBA is adopting the statutory language for the disclosure template questions with minor clarifying edits.
SBA has determined that this direct final rule does not impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C., chapter 35. Sections 4(b)(2)(B) and 5(c) of the Extension Act exclude the application of the Paperwork Reduction Act to the collection of information related to the implementation of a due diligence program authorized by 15 U.S.C. 638(vv). The collection of information pursuant to the disclosure template is referenced in section 15 U.S.C. 638(vv)(2)(A) and (B), is related to the implementation of a due diligence program, and therefore is exempt from the requirements of the Paperwork Reduction Act.
The Extension Act, Public Law 117-183 (Sep. 30, 2022), amended section 9 of the Act; 15 U.S.C. 638 (g)(13)-(17), (o)(17)-(21), and (vv) to require small businesses applying for SBIR or STTR awards to disclose information about the applicant's investment and foreign ties. This information must be provided by applicants for an SBIR or STTR award and must be considered as part of each Participating Agency's implementation of a due diligence program to assess security risks, as required by section 4 of the Extension Act, and incorporated into the Act at section 638(vv)(2). Sections 4(b)(2)(B) and 5(c) of the Extension Act exclude the application of the Paperwork Reduction Act, 44 U.S.C. chapter 35, to the collection of information related to the implementation of a due diligence program authorized by 15 U.S.C. 638(vv).
SBA is amending Section 9(a) of the Policy Directive and adding an appendix to address the responsibilities of Participating Agencies to collect
Some Participating Agencies are concerned about collecting the disclosed information prior to publication of the disclosure template in the
1.
2.
3.
4.
5.
This amendment to the SBIR/STTR Policy Directive will be effective on the date shown in the
6.
Authorized By:
SBIR/STTR Policy Directive
1. Amend section 9(a)(5) by adding a new paragraph (13) after paragraph (12).
The addition reads as follows:
(a)
(1) * * *
(13) Require disclosures from applicants utilizing the questions provided in the template at Appendix III as a part of the agency due diligence program to assess security risks under section 15 U.S.C. 638(vv). Agencies may require small business concerns to certify that the information disclosed is accurate and complete.
2. Amend by adding Appendix III to the end of the SBIR/STTR Policy Directive, as follows:
(A) contributes in a substantive, meaningful way to the scientific development or execution of a research and development project proposed to be carried out with a research and development award from a federal research agency; and
(B) is designated as a covered individual by the federal research agency concerned.
Responses to disclosure questions may contain trade secrets or commercial or financial information that is privileged or confidential and is exempt from public disclosure. Such information shall be used or disclosed only for evaluation purposes or in accordance with an award between the submitter and the Government.
An up-to-date list of countries determined to be countries of concern by the Secretary of State will be maintained and accessible on
1. Is any owner or covered individual of the applicant or awardee party to any malign foreign talent recruitment program?
☐ Yes ☐ No
If yes, disclose the first and last name of each owner or covered individual, identify their role (
2. Is there a parent company, joint venture, or subsidiary, of the applicant or awardee that is based in or receives funding from, any foreign country of concern?
☐ Yes ☐ No
If yes, disclose the name, full address, applicant or awardee relationships (
3. Does the applicant or awardee have any current or pending contractual or financial obligation or other agreement specific to a business arrangement, or joint venture-like arrangement with an enterprise owned by a foreign state or any foreign entity?
☐ Yes ☐ No
If yes, disclose the name of each enterprise or foreign entity, type of obligation, agreement, or arrangement (
4. Is the applicant or awardee wholly owned in a foreign country?
☐ Yes ☐ No
If yes, disclose the foreign country.
5. Does the applicant or awardee have any venture capital or institutional investment?
☐ Yes ☐ No
If yes, proceed to question 5a. If no, proceed to question 6.
☐ Yes ☐ No ☐ Unable to determine
If yes or unable to determine, disclose the venture capital or institutional investing entity's name, the percentage of ownership obtained by the investing entity, and the type of investment (
6. During the previous 5-year period, did the applicant or awardee have any technology licensing or intellectual property sales or transfers, to a foreign country of concern?
☐ Yes ☐ No
If yes, disclose the name, address, and country, of the institution or entity that licensed, purchased, or received the technology or intellectual property.
7. Is there any foreign business entity, offshore entity, or entity outside the United States related to the applicant or awardee?
☐ Yes ☐ No
If yes, disclose the entity name, relationship type (
8. Does the applicant or awardee have an owner, officer, or covered individual that has a foreign affiliation with a research institution located in a foreign country of concern?
☐ Yes ☐ No
If yes, disclose the first and last name of each owner, officer, or covered individual that has a foreign affiliation with a foreign country of concern, identify their role (
The Small Business Administration publishes an interest rate called the optional “peg” rate (13 CFR 120.214) on a quarterly basis. This rate is a weighted average cost of money to the government for maturities similar to the average SBA direct loan. This rate may be used as a base rate for guaranteed fluctuating interest rate SBA loans. This rate will be 3.88 percent for the April-June quarter of FY 2023.
Pursuant to 13 CFR 120.921(b), the maximum legal interest rate for any third party lender's commercial loan which funds any portion of the cost of a 504 project (see 13 CFR 120.801) shall be 6% over the New York Prime rate or, if that exceeds the maximum interest rate permitted by the constitution or laws of a given State, the maximum interest rate will be the rate permitted by the constitution or laws of the given State.
The Embassy of Venezuela and its consular posts at Washington, DC and New York, NY formally ceased conducting diplomatic and consular activities in the United States on January 5, 2023. In accordance with Section 205(c) of the Foreign Missions Act (22 U.S.C. 4305(c)) and until further notice, the Department of State's Office of Foreign Missions has assumed sole responsibility for ensuring the protection and preservation of the property of the referenced missions, including but not limited to all real and tangible property, furnishings, archives, and financial assets of the Venezuelan Embassy and its consular posts in the United States, effective at 12:00 p.m. on February 6, 2023.
The Permanent Mission of Venezuela to the Organization of the American States also ceased conducting its activities effective January 5, 2023. In accordance with Section 205(c) of the Foreign Missions Act (22 U.S.C. 4305(c)) and until further notice, the Department of State's Office of Foreign Missions has assumed sole responsibility for ensuring the protection and preservation of the official residence of the Permanent Representative of Venezuela to the Organization of American States, including but not limited to all real and tangible property, furnishings, and archives within such residence, and any associated financial assets in the United States, effective at 12:00 p.m. on February 6, 2023.
In exercise of these custodial responsibilities, and pursuant to the authority vested in the Secretary of State by the laws of the United States including the Foreign Missions Act (22 U.S.C. 4301
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the information collection described below to the Office of Management and Budget (OMB) for approval. In accordance with the Paperwork Reduction Act of 1995 we are requesting comments on this collection from all interested individuals and organizations. The purpose of this Notice is to allow 30 days for public comment.
Submit comments up to May 3, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to Andrea Battista, Directorate of Defense Trade Controls, Department of State, who may be reached at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
The Directorate of Defense Trade Controls (DDTC), located in the Political-Military Affairs Bureau of the Department of State, encourages voluntary disclosures of violations of the Arms Export Control Act (AECA) (22 U.S.C. 2751
ITAR § 127.12 describes the information which should accompany a voluntary disclosure. Historically, respondents to this information collection submitted their disclosures to DDTC in writing via hard copy documentation. However, as part of an IT modernization project designed to streamline the collection and use of information by DDTC, a discrete form has been developed for the submission of voluntary disclosures. This will allow both DDTC and respondents submitting a disclosure to more easily track submissions.
This information will be collected by electronic submission.
On March 14, 2023, the City of Tacoma, Wash., Department of Public Works d/b/a Tacoma Rail Mountain Division (TRMW) filed a petition with the Surface Transportation Board (the Board) under 49 U.S.C. 10502 for exemption from the prior approval requirements of 49 U.S.C. 10903 to discontinue common carrier service over approximately 3.5 miles of rail line extending from milepost 2.11 at East C Street (USDOT Grade Crossing Inventory Number 396640U) to milepost 5.61 at McKinley Avenue (USDOT Grade Crossing Inventory Number 396659L), in the City of Tacoma, Pierce County, Washington (the Line). The Line traverses U.S. Postal Service Zip Codes 98421, 98404, and 98418.
According to TRMW, the Line has moved only four local carloads in the past seven years—one carload in April 2021 and three carloads in 2016. TRMW states that it would not expect carload volumes to or from the sole customer on the Line, Tacoma Steel, to increase significantly if the Line were to remain active. According to TRMW, TMBL has advised Tacoma Steel of its plan to cease operations on the Line and TRMW expects that Tacoma Steel will not object to this petition for discontinuance authority. TRMW also states that no overhead traffic currently exists on the Line, and that, if such traffic did exist, it could be handled over other through routes.
TRMW states that, to the best of its information and belief, the Line does
The interest of railroad employees will be protected by the conditions set forth in
By issuance of this notice, the Board is instituting an exemption proceeding pursuant to 49 U.S.C. 10502(b). A final decision will be issued by June 30, 2023.
Because this is a discontinuance proceeding and not an abandonment, interim trail use/rail banking and public use conditions are not appropriate. Because there will be environmental review during any subsequent abandonment, this discontinuance does not require an environmental review.
Any offer of financial assistance (OFA) to subsidize continued rail service under 49 CFR 1152.27(b)(2) will be due no later than July 12, 2023, or 10 days after service of a decision granting the petition for exemption, whichever occurs sooner.
All filings in response to this notice must refer to Docket No. AB 1328X and must be filed with the Surface Transportation Board either via e-filing on the Board's website or in writing addressed to 395 E Street SW, Washington, DC 20423-0001. In addition, a copy of each pleading must be served on TRMW's representative, Robert A. Wimbish, Fletcher & Sippel LLC, 29 North Wacker Drive, Suite 800, Chicago, IL 60606-3208. Replies to the petition are due by April 24, 2023.
Persons seeking further information concerning discontinuance procedures may contact the Board's Office of Public Assistance, Governmental Affairs, and Compliance at (202) 245-0238 or refer to the full abandonment and discontinuance regulations at 49 CFR part 1152. Questions concerning environmental issues may be directed to the Board's Office of Environmental Analysis at (202) 245-0294. If you require an accommodation under the Americans with Disabilities Act, please call (202) 245-0245.
Board decisions and notices are available at
By the Board, Mai T. Dinh, Director, Office of Proceedings.
Federal Aviation Administration (FAA), DOT.
Notice of availability; request for comments.
The Federal Aviation Administration (FAA) announces that the Draft Programmatic Environmental Assessment (PEA) for FAA-Recognized Identification Areas (FRIAs) is available for public review and comment.
Send comments on or before May 3, 2023.
For questions concerning this action, contact Mike Millard, Aviation Safety Inspector/Environmental Specialist, Flight Standards, General Aviation Operations Branch, AFS-830; telephone 1-844-359-6981; email
Send comments with the subject line, “Public Comment on Draft FRIA PEA” on all submitted correspondence using the following method. Email comments to
The Draft PEA analyzes and discloses the potential environmental impacts associated with the establishment of FRIAs, pursuant to the National Environmental Policy Act. FRIAs may be established in accordance with 14 CFR part 89. A FRIA is a defined geographic area where unmanned aircraft can be flown without remote identification equipment. Both the unmanned aircraft and the pilot must be located within the FRIA's boundaries throughout the operation. In addition, the pilot of the unmanned aircraft must be able to see it at all times throughout the duration of the flight. Only FAA-recognized Community Based Organizations and educational institutions such as primary and secondary schools, trade schools, colleges, and universities are eligible to request the establishment of a FRIA. If the FAA approves the establishment of a FRIA, the approval will be valid for 48 calendar months.
The environmental impacts of approving these limited, location-specific areas for the operations of unmanned aircraft have been considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA), as amended (42 U.S.C. 4321-4347), the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and FAA Order 1050.1F, Environmental Impacts: Policies and Procedures.
A Draft PEA has been prepared and, based on this analysis, the FAA has preliminarily determined there will not be a significant impact to the human environment. As a result, an Environmental Impact Statement (EIS) has not been initiated (40 CFR 1501.6). The FAA intends for this PEA to create efficiencies by establishing a framework that can be used for “tiering,” where appropriate, to project-specific actions that require additional analysis. As decisions on specific applications are made, to the extent additional NEPA analysis is required, environmental review will be conducted to supplement the analysis set forth in this PEA.
The Draft PEA is available for review online at the following link:
The FAA invites interested stakeholders to submit comments on the Draft PEA, as specified in the
The FAA will accept comments in Word, PDF, or email body. No business proprietary information, copyrighted information, or personally identifiable
The most helpful comments reference a specific recommendation, explain the reason for any recommended change, and include supporting information. The FAA will consider all comments received on or before the closing date. The FAA will also consider late filed comments if it is possible to do so without incurring expense or delay.
Issued in Washington, DC.
Texas Department of Transportation (TxDOT), Federal Highway Administration (FHWA), U.S. Department of Transportation.
Notice of limitation on claims for judicial review of actions by TxDOT and Federal agencies.
This notice announces actions taken by TxDOT and Federal agencies that are final. The environmental review, consultation, and other actions required by applicable Federal environmental laws for these projects are being, or have been, carried out by TxDOT pursuant to an assignment agreement executed by FHWA and TxDOT. The actions relate to various proposed highway projects in the State of Texas. These actions grant licenses, permits, and approvals for the projects.
By this notice, TxDOT is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of TxDOT and Federal agency actions on the highway projects will be barred unless the claim is filed on or before the deadline. For the projects listed below, the deadline is August 31, 2023. If the Federal law that authorizes judicial review of a claim provides a time period of less than 150 days for filing such a claim, then that shorter time period still applies.
Patrick Lee, Environmental Affairs Division, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701; telephone: (512) 416-2358; email:
The environmental review, consultation, and other actions required by applicable Federal environmental laws for these projects are being, or have been, carried out by TxDOT pursuant to 23 U.S.C. 327 and a Memorandum of Understanding dated December 9, 2019, and executed by FHWA and TxDOT.
Notice is hereby given that TxDOT and Federal agencies have taken final agency actions by issuing licenses, permits, and approvals for the highway projects in the State of Texas that are listed below.
The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion (CE), Environmental Assessment (EA), or Environmental Impact Statement (EIS) issued in connection with the projects and in other key project documents. The CE, EA, or EIS and other key documents for the listed projects are available by contacting the local TxDOT office at the address or telephone number provided for each project below.
This notice applies to all TxDOT and 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:
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The projects subject to this notice are:
1. SH 16 at Kansas City Southern (KCS) Railroad Grade Crossing in Jim Hogg County, Texas. The purpose of the project is to improve the existing SH 16 to provide a safer crossing of the KCS and enhance pedestrian and bicyclist safety within the project limits. On SH 16, the project limits are from Galbraith Street (SH 359) to approximately 600 feet south, and the improvements would include incorporating a curb-and-gutter section and creating a 10-foot-wide shared use pathway in each direction. SH 16 would become elevated up to match the elevation of the KCS railroad with retaining walls. On Hackberry Street, the project limits are from the intersection of SH 16 and Hackberry Street to approximately 210 feet west of the SH 16/Hackberry Street intersection, and the improvements would include sidewalk improvements, realigning the roadway, and transitioning from existing grade to match the grade at SH 16. A curb-and-gutter system would also be created. On Maria Street, the project limits are from the intersection of Hackberry Street and Maria Street to approximately 150 feet southwest of the Hackberry Street/Maria Street
2. County Road (CR) 118 at Cottonwood Creek from CR 119 to CR 110 in Williamson County, Texas. The project will realign CR 118 at a new location, demolishing the existing bridge and approaches over Cottonwood Creek and building a new roadway on a new location to the south of the existing CR 118 with a new bridge and approaches over Cottonwood Creek. The project is approximately 0.52 miles in length. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination issued on January 23, 2023, and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting the TxDOT Austin District Office at 7901 North I-35, Austin, TX 78753; telephone: (512) 832-7000.
3. US 281 (Military Highway) from FM 732 to FM 1421 in Cameron County, Texas. The project consists of reconstructing and widening the existing two-lane rural US 281 (Military Highway) to a four-lane rural highway with a left-turn lane and shoulders. The proposed roadway facility would include four 12-foot travel lanes with two travel lanes in each direction and 8-foot shoulders on each side of the roadway. The proposed roadway facility would also include a 14-foot turn lane. The project length is approximately 5.85 miles. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination issued on January 31, 2023, and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting the TxDOT Pharr District Office 600 W. Interstate 2, Pharr, TX 78577; telephone: (956) 702-6100.
4. SH 107 from SH 495 to FM 2220 in Hidalgo County, Texas. The project would widen SH 107 and provide a raised median. The proposed SH 107 roadway from SH 495 to FM 2220 would generally consist of three 12-foot-wide travel lanes in each direction with 2-foot-wide inside and outside shoulders. Directions of travel would be separated by an 18-foot-wide raised median. From SH 495 to FM 681, a 5-foot-wide sidewalk would be constructed on the west side of the roadway and a 12-foot-wide shared use path would be constructed on the east side of the roadway. From FM 681 to FM 2220, a dedicated 10-foot-wide bicycle lane would be added to both sides of the roadway. A 5-foot sidewalk would be constructed on both sides of the roadway, and sidewalk ramps would be placed at all intersection corners. The project length is approximately 9.9 miles. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination issued on February 8, 2023, and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting the TxDOT Pharr District Office 600 W. Interstate 2, Pharr, TX 78577; telephone: (956) 702-6100.
5. US 259 from SH 204 to Rusk County Line in Nacogdoches County, Texas. The project would widen US 259 to include two 12-foot northbound travel lanes and two 12-foot southbound travel lanes, 10-foot outside shoulders, and a 16-foot continuous two-way left-turn lane separating northbound and southbound travel lanes. The project length is approximately 6.87 miles. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination issued on February 15, 2023, and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting the TxDOT Lufkin District Office at 1805 N. Timberland Drive, Lufkin, TX 75901; telephone: (936) 633-4321.
6. FM 1417 from OB Groner Road to US 75 in Grayson County, Texas. The proposed project includes widening a non-freeway to a six-lane divided highway consisting of raised medians, curb and gutters, grading, structures, pavement, signals, signing and pavement markings. The proposed facility would include six dedicated 12-foot-wide travel lanes and include dedicated 12-foot-wide right turn lanes approaching major intersections. Proposed access is at-grade throughout the project corridor. The proposed facility includes 16-foot wide raised, grassy medians. Proposed drainage would include curb and gutters for the entire length of the project. The proposed facility also would include a 10.5-foot-wide pedestrian realm berm with a 6-foot-wide sidewalk located on the apex of the berm, which extend for the entire length of the project area. The proposed facility would include a new BNSF Railroad Spur overpass structure at a higher elevation to meet vertical clearance requirements with a 6-foot-wide pedestrian realm consisting of raised sidewalk. There will be work on cross streets as well. The total project length is approximately 2.424 miles. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination issued on February 22, 2023, and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting the TxDOT Paris District Office at 1365 North Main Street, Paris, TX 75460; telephone: (903) 737-9206.
7. The FM 3391 project would widen, reconstruct, and upgrade the facility from IH 35W to east of CR 602 in Johnson County, Texas. The 2.9-mile project would extend from existing northbound frontage road of IH 35W to approximately 1,490 feet east of CR 602. The existing FM 3391 between IH 35W and South Hurst Road would be improved from a five-lane undivided section to six-lane divided section and from a two-lane undivided section to four-lane divided section between South Hurst Road to east of CR 602. The proposed project would incorporate bicycle and pedestrian facilities. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination issued on February 24, 2023, and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in
8. FM 70/SH 286 passing lanes, FM 70 from SH 286 to US 77, and SH 286 from south of FM 244 to FM 70 in Nueces County, Texas. The proposed project would widen the existing FM 70 and SH 286 roadways to add 12-foot-wide intermittent passing lanes and 10-foot-wide shoulders for approximately 25 miles. The intersection of FM 70 and SH 286 would be improved by adding a right turn lane from southbound SH 286 to westbound FM 70. In the eastbound direction, the proposed project would add passing lanes in five areas along FM 70. In the westbound direction, the proposed project would add passing lanes in four areas along FM 70. Along SH 286, the proposed project would add one passing lane in both the northbound and southbound directions. There are 11 total proposed passing lanes. Passing lanes would be 12-foot wide. Additionally, drainage improvements to address flooding issues on the existing roadway are proposed throughout the project length. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA), the Finding of No Significant Impact (FONSI) issued on January 2, 2023, and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting the TxDOT Corpus Christi District Office at 1701 South Padre Island Drive, Corpus Christi, TX 78416; telephone: (361) 808-2500.
9. FM 973 from SH 130 to US 290 in Travis County, Texas. The project will expand FM 973 from two to six travel lanes, three in each direction, and include a grassy median and turn lanes at various locations. The project also includes drainage improvements, overpasses, sidewalks, and shared-use paths. The project is 5.7 miles in length. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA), the Finding of No Significant Impact (FONSI) issued on January 18, 2023, and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting the TxDOT Austin District Office at 7901 North I-35, Austin, TX 78753; telephone: (512) 832-7000.
10. Borderland Expressway Project (formerly known as the Northeast Parkway Project) on State Loop 375 east of Railroad Drive Overpass to Farm-to-Market Road 3255 (Martin Luther King Jr. Boulevard) at the Texas-New Mexico border, in El Paso County, Texas. The proposed project would be a 10.8-mile long, four-lane, limited access, new location roadway in northeast El Paso County. The proposed project would be built in three phases as follows: Phase 1 would construct frontage roads between Railroad Drive and Business US 54 (Dyer Street). The second phase would construct the mainlanes between Railroad Drive and FM 3255 (MLK Jr. Boulevard). In the third phase, the mainlanes would be built from US 54 (Dyer Street) to Loop 375. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA), the Finding of No Significant Impact (FONSI) issued on January 31, 2023, and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting the TxDOT El Paso District Office at 13301 Gateway Boulevard West El Paso, TX 79928; telephone: (915) 790-4200.
11. FM 2964 (Rhones Quarter Road) from SH 110 to FM 346 in Smith County, Texas. The project would widen and reconstruct FM 2964 to a four-lane curb-an-gutter facility divided by a 14-foot, two-way left-turn lane. All travel lanes would be 12-feet wide. The project would include an 8-foot wide Shared-Use Path (SUP) on both sides of the road throughout the project limits, behind concrete curb-and-gutter which will accommodate drainage. The project proposes to realign the FM 2964 intersection with Shiloh Road, at Thistle Drive—approximately 1,200-feet west of its current location. The project would cul-de-sac FM 2964 at its existing intersection with Shiloh Road. South of Shiloh Road, the realigned section of FM 2964 would connect to the existing FM 2964 roadway south of Libbie Street. The project proposes to realign the existing FM 2964 intersection with Barbee Road (CR 2170), at Oscar Burkett Road (CR 2191)—approximately 450 feet north of its current location. The project would cul-de-sac existing Barbee Road at FM 2964. The project proposes to widen the existing bridge over Toll 49 to the east, to include four 12-foot travel lanes, a 12- to 16-foot left-turn lane, and 8-foot SUP. The project length is approximately 5.38 miles. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA), the Finding of No Significant Impact (FONSI) issued on February 24, 2023, and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting the TxDOT Tyler District Office at 2709 W. Front St., Tyler, Texas 75702; telephone: (903) 510-9100.
Alcohol and Tobacco Tax and Trade Bureau (TTB); Treasury.
Notice and request for comments.
As part of our continuing effort to reduce paperwork and respondent burden, and as required by the Paperwork Reduction Act of 1995, we invite comments on the continuing or proposed information collections listed below in this document.
We must receive your written comments on or before June 2, 2023.
You may send comments on the information collections described in this document using one of these two methods:
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Please submit separate comments for each specific information collection described in this document. You must reference the information collection's title, form or recordkeeping requirement number (if any), and OMB control number in your comment.
You may view copies of this document, the relevant TTB forms, and any comments received at
Michael Hoover, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Box 12, Washington, DC 20005; 202-453-1039, ext. 135; or complete the Regulations and Rulings Division contact form at
The Department of the Treasury and its Alcohol and Tobacco Tax and Trade Bureau (TTB), as part of a continuing effort to reduce paperwork and respondent burden, invite the general public and other Federal agencies to comment on the proposed or continuing information collections described below, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments submitted in response to this document will be included or summarized in our request for Office of Management and Budget (OMB) approval of the relevant information collection. All comments are part of the public record and subject to disclosure. Please do not include any confidential or inappropriate material in your comments.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information has a valid OMB control number.
Currently, we are seeking comments on the following forms, letterhead applications or notices, recordkeeping requirements, questionnaires, or surveys:
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Currently, under those IRC authorities, the TTB regulations in 27 CFR chapter I require alcohol excise taxpayers to report their excise tax liability using form TTB F 5000.24, Excise Tax Return, approved under OMB No. 1513-0083. In addition, alcohol excise taxpayers must file operations reports accounting for their production, removals, losses, and certain other matters that effect their excise tax liability. Distilled spirits plant proprietors file up to four separate operations reports on a monthly basis on TTB F 5110.11, TTB F 5110.28, TTB F 5110.40, and TTB F 5110.43, approved under OMB Nos. 1513-0039, 1513-0041, 1513-0047, and 1513-0049, concerning, respectively, storage, processing, production, and denaturing operations. Wine premises proprietors file monthly operations reports on TTB F 5120.17, approved under OMB No. 1513-0053. Brewers, depending on their annual tax liability, file operations reports either on a monthly basis using TTB F 5130.9 or on a quarterly basis using TTB F 5130.9 or TTB F 5130.26, both of which are approved under OMB No. 1513-0007.
As part of TTB's efforts to lower respondent burden, the Bureau is developing a combined tax return and simplified operations report and intends to pilot the use of it with alcohol excise taxpayers. Under this pilot, alcohol excise taxpayers will submit a letterhead application to join the pilot program as an alternative method to their filing the current tax return and operations reports under existing regulatory requirements. Once approved, taxpayers participating in the pilot program will file their combined alcohol excise return and simplified operations report under the due dates currently applicable to their excise tax returns.
The collected information will allow TTB to identify the excise taxpayer, the amount of taxes due, and the amount of payments made. Additionally, the collected information will allow TTB to identify the amount of distilled spirits, wine, or beer the taxpayer produced, removed, transferred, and disposed of during the reporting period, which effects the amount of alcohol excise tax due, while reducing the overall burden of filing separate tax returns and operations reports.
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The BEA Program complements the community development activities of banks and thrifts (collectively referred to as banks for purposes of this NOFA), by providing financial incentives to expand investments in CDFIs and to increase lending, investment, and Service Activities within Distressed Communities. Providing monetary awards to banks for increasing their community development activities leverages the CDFI Fund's dollars and puts more capital to work in Distressed Communities throughout the nation.
CDFI Related Activities (12 CFR 1806.103) means CDFI Equity and CDFI Support Activities. CDFI Equity consists of Equity Investments, Equity-Like Loans, and Grants. CDFI Support Activities includes Loans, Deposits and Technical Assistance.
Distressed Community Financing Activities (12 CFR 1806.103) means Consumer Loans and Commercial Loans and Investments. Consumer Loans include Affordable Housing Loans; Education Loans; Home Improvement Loans; and Small Dollar Consumer Loans. Commercial Loans and Investments includes Affordable Housing Development Loans and related Project Investments; Commercial Real Estate Loans and related Project Investments; and Small Business Loans and related Project Investments. Service Activities (12 CFR 1806.103) include Deposit Liabilities, Financial Services, Community Services, Targeted Financial Services, and Targeted Retail Savings/Investment Products.
When calculating BEA Program Award amounts, the CDFI Fund will only consider the amount of a Qualified Activity that has been fully disbursed, subject to the requirements outlined in Section VI. of this NOFA, in the case of Commercial Real Estate Loans and related Project Investments, the total principal amount of the transaction must be $10 million or less to be considered a Qualified Activity. Notwithstanding the foregoing, the CDFI Fund, in its sole discretion, may consider transactions with a total principal value of over $10 million, subject to review.
An activity funded with prior BEA Program Award dollars, or funded to satisfy requirements of an Award Agreement from a prior BEA Program award or an agreement under any CDFI Fund program, shall not constitute a Qualified Activity for the purposes of calculating or receiving an award.
Please note that a Distressed Community as defined by the BEA Program is not the same as an Investment Area as defined by the CDFI Program, a Low-Income Community as defined by the NMTC Program, or an Area of Economic Distress as defined by the Capital Magnet Fund Program.
A BEA Applicant shall determine an area is a Distressed Community by:
a. selecting a census tract where the Qualified Activity occurred that meets the minimum area and eligibility requirements; or
b. selecting the census tract where the Qualified Activity occurred, plus one or more census tracts directly contiguous to where the Qualified Activity occurred that when considered in the aggregate, meet the minimum area and eligibility requirements set forth in this section.
(a) Recipients and subrecipients are prohibited from obligating or expending loan or grant funds to:
(1) Procure or obtain;
(2) Extend or renew a contract to procure or obtain; or
(3) Enter into a contract (or extend or renew a contract) to procure or obtain, equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. As described in Public Law 115-232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliated of such entities).
Applicants are required to submit a Grant Application Package in
The CDFI Fund electronically retrieves validated Grant Application Packages from
Once the CDFI Fund has retrieved the validated Grant Application Package from
Applicants are advised that the CDFI Fund will not notify them when the validated Grant Application Package has been retrieved from
Applicants are advised that the lookup function in the FY 2023 BEA Application in AMIS, uses the UEI reported on the validated Grant Application Package to match it with the correct AMIS Organization account. Therefore, Applicants must make sure the UEI included in the Grant Application Package submitted in
Applicants are also highly encouraged to provide EIN, Authorized Representative and/or Contact Person information on the Grant Application Package that matches the information included in AMIS Organization account.
An original, signed notarized letter identifying the authorized entity administrator for the entity associated with the UEI is required by SAM and must be mailed to the Federal Service Desk.
This requirement is applicable to new entities registering in SAM or on existing registrations where there is no existing entity administrator. Existing entities with registered entity administrators do not need to submit an annual notarized letter. Applicants that have previously completed the SAM registration process must verify that their SAM accounts are current and active. Applicants are required to maintain a current and active SAM account at all times during which it has an active federal award or an application under consideration for an award by a federal awarding agency.
The CDFI Fund will not consider any Applicant that fails to properly register or activate its SAM account and, as a result, is unable to submit its Grant Application Package in
Applicants will not receive an email confirming that their FY 2023 BEA Program Application was successfully submitted in AMIS. Instead, Applicants should check their AMIS account to ensure that the status of the FY 2023 BEA Program Application shows “Under Review.” Step-by-step instructions for submitting an FY 2023 BEA Program Application in AMIS are provided in the Application Instructions, Supplemental Guidance, and AMIS Training Manual for the BEA Program Electronic Application.
Applicants can only submit one FY 2023 BEA Program Application in AMIS. Upon submission, the Application will be locked and cannot be resubmitted, edited, or modified in any way. The CDFI Fund will not unlock a submitted Application or allow multiple Application submissions.
1. The Award Recipient shall use BEA Program Award funds only for the eligible activities described in Section II. D. of this NOFA and the Authorized BEA Program Activities described in its Award Agreement.
2. The Award Recipient may not distribute BEA Program Award funds to an Affiliate, Subsidiary, or any other entity, without the CDFI Fund's prior written approval.
3. BEA Program Award funds shall only be disbursed to the Award Recipient.
4. The CDFI Fund, in its sole discretion, may disburse BEA Program Award funds in amounts, or under terms and conditions, which are different from those requested by an Applicant.
The CDFI Fund will not collect or accept any Personally Identifiable Information (PII) in AMIS or in any of the Application submission materials. PII is information, which if lost, compromised, or disclosed without authorization, could result in substantial harm, embarrassment, inconvenience, or unfairness to an individual. Although Applicants are required to enter addresses of individual borrowers/residents of Distressed Communities in AMIS, Applicants must not include the following PII for the individuals who received the financial products or services in AMIS or in the supporting documentation: name of the individual, Social Security Number, driver's license or state identification number, passport number, and Alien Registration Number. This information should be redacted from all supporting documentation. If the CDFI Fund discovers PII during the review of an Application, the transaction will be deleted from the application record and deemed ineligible.
a. For purposes of this NOFA, “materially below market interest rate” is defined as an annual percentage rate that does not exceed the yields on Treasury securities at constant maturity as interpolated by Treasury from the daily yield curve and available on the Treasury website at
b. For purposes of this NOFA, a deposit placed by an Applicant directly with a CDFI Partner that participates in a deposit network or service may be treated as eligible under this NOFA if it otherwise meets the criteria for deposits specified in this NOFA and the CDFI Partner retains the full amount of the initial deposit or an amount equivalent to the full amount of the initial deposit through a deposit network exchange transaction.
a. At the end of the initial term, the loan must have a definite rolling maturity date that is automatically extended on an annual basis if the CDFI borrower continues to be financially sound and carry out a community development mission;
b. Periodic payments of interest and/or principal may only be made out of the CDFI borrower's available cash flow after satisfying all other obligations;
c. Failure to pay principal or interest (except at maturity) will not automatically result in a default of the loan agreement; and
d. The loan must be subordinated to all other debt except for other Equity-Like Loans. Notwithstanding the foregoing, the CDFI Fund reserves the right to determine, in its sole discretion and on a case-by-case basis, whether an instrument meets the above-stated characteristics of an Equity-Like Loan.
a. $100.00 per account for Targeted Financial Services including safe transaction accounts, youth transaction accounts, Electronic Transfer Accounts and Individual Development Accounts;
b. $50.00 per account for checking and savings accounts that do not meet the definition of Targeted Financial Services;
c. $5.00 per check cashing transaction;
d. $50,000 per new ATM installed at a location in a Distressed Community;
e. $500,000 per new retail bank branch office opened in a Distressed Community, including school-based bank branches approved by the Applicant's Federal bank regulator;
f. In the case of Applicants engaging in Financial Services activities not described above, the CDFI Fund will determine the unit value of such services;
g. When reporting the opening of a new retail bank branch office, the Applicant must certify that such new branch is intended to remain in operation for at least the next five years;
h. Financial Service Activities must be provided by the Applicant to Eligible Residents or enterprises that are located in a Distressed Community. An Applicant may determine the number of Eligible Residents who are Award Recipients of Financial Services by either: (i) collecting the addresses of its Financial Services customers, or (ii) certifying that the Applicant reasonably believes that such customers are Eligible Residents or enterprises located in a Distressed Community and providing a brief analytical narrative with information describing how the Applicant made this determination. Citations must be provided for external sources. In addition, if external sources are referenced in the narrative, the Applicant must explain how it reached the conclusion that the cited references are directly related to the Eligible Residents or enterprises to whom it is claiming to have provided the Financial Services; and
i. When reporting changes in the dollar amount of deposit accounts, only calculate the net change in the total dollar amount of eligible Deposit Liabilities between the Baseline Period and the Assessment Period. Do not report each individual deposit. If the net change between the Baseline Period and Assessment Period is a negative dollar amount, then a negative dollar amount may be recorded for Deposit Liabilities only. Instructions for determining the net change is available in the FY 2023 BEA Program Application in AMIS.
15.
In the CDFI Related Activities subcategory of CDFI Support Activities, for a Certified CDFI Applicant, the estimated award amount will be equal to 18 percent of the increase in Qualified Activities in this subcategory. If an Applicant is not a Certified CDFI, the estimated award amount will be equal to 6 percent of the increase in Qualified Activities in this subcategory.
In the Distressed Community Financing Activities subcategory of Consumer Lending, the estimated award amount for Certified CDFI Applicants will be 18 percent of the weighted value of the increase in Qualified Activities in this subcategory. If an Applicant is not a Certified CDFI Applicant, the estimated award amount will be equal to 6 percent of the weighted value of the increase in Qualified Activities in this subcategory.
In the Distressed Community Financing Activities subcategory of Commercial Lending and Investments, for a Certified CDFI Applicant, the estimated award amount will be equal to 9 percent of the weighted value of the increase in Qualified Activities in this subcategory. If an Applicant is not a Certified CDFI, the estimated award amount will be equal to 3 percent of the weighted value of the increase in Qualified Activity in this subcategory.
In the Service Activities category, for a Certified CDFI Applicant, the estimated award amount will be equal to 9 percent of the weighted value of the increase in Qualified Activity for the category. If an Applicant is not a Certified CDFI, the estimated award amount will be equal to 3 percent of the weighted value of the increase in Qualified Activity for the category.
In calculating the increase in Qualified Activities, the CDFI Fund will determine the eligibility of each transaction for which an Applicant has applied for a BEA Program Award. In some cases, the actual award amount calculated by the CDFI Fund may not be the same as the estimated award amount requested by the Applicant.
For purposes of calculating award payment amounts, the CDFI Fund will treat Qualified Activities with a total principal amount less than or equal to $250,000 as fully disbursed.
Within each category, CDFI Applicants will be ranked first according to the ratio of the actual award amount calculated by the CDFI Fund for the category to the total assets of the Applicant, followed by Applicants that are not CDFI Applicants according to the ratio of the actual award amount calculated by the CDFI Fund for the category to the total assets of the Applicant.
Selections within each priority category will be based on the Applicants' relative rankings within each such category, subject to the availability of funds and any established maximum dollar amount of total awards that may be awarded for the Distressed Community Financing Activities category of Qualified Activities, as determined by the CDFI Fund.
The CDFI Fund, in its sole discretion: (i) may adjust the estimated award amount that an Applicant may receive; (ii) may establish a maximum amount that may be awarded to an Applicant; and (iii) reserves the right to limit the amount of an award to any Applicant if the CDFI Fund deems it appropriate.
The CDFI Fund reserves the right to contact the Applicant to confirm or clarify information. If contacted, the Applicant must respond within the CDFI Fund's time parameters or the Application may be rejected.
The CDFI Fund reserves the right to change its eligibility and evaluation criteria and procedures. If those changes materially affect the CDFI Fund's award decisions, the CDFI Fund will provide information regarding the changes through the CDFI Fund's website.
Furthermore, the CDFI Fund will not approve a BEA Program Award for an Applicant that has:
(i) a CRA assessment rating of below “Satisfactory” on its most recent examination; (ii) a financial audit with: a going concern paragraph, an adverse opinion, a disclaimer of opinion, or a withdrawal of an opinion on its most recent audit; or (iii) a Prompt Corrective Action directive from its regulator imposing restrictions on its level of lending activities, that was active at the time the Applicant submitted its Application to the CDFI Fund or becomes active during the CDFI Fund's evaluation of the Application for: activities which funding has been requested, activities which meet the BEA Program criteria of Qualified Activities, or other circumstances which may impact an Applicant's ability to successfully manage, re-invest, and/or report on a FY 2023 BEA Program Award.
Applicants and/or their appropriate Federal bank regulator agency may be contacted by the CDFI Fund to provide additional information related to Federal bank regulatory or CRA information. The CDFI Fund will consider this information and may choose to not approve a FY 2023 BEA Program Award for an Applicant if the information indicates that the Applicant may be unable to responsibly manage, re-invest, and/or report on a FY 2023 BEA Program Award during the period of performance.
There is no right to appeal the CDFI Fund's award decisions. The CDFI Fund's award decisions are final. The CDFI Fund will not discuss the specifics of an Applicant's FY 2023 BEA Program Application or provide reasons why an Applicant was not selected to receive a FY 2023 BEA Program Award. The CDFI Fund will only respond to general questions regarding the FY 2023 BEA Program Application and award decision process until 30 days after the award announcement date.
If the Award Recipient's certification status as a CDFI changes, the CDFI Fund reserves the right, in its sole discretion, to re-calculate the award, and modify the Award Agreement based on the Award Recipient's non-CDFI status.
By executing an Award Agreement, the Award Recipient agrees that, if the CDFI Fund becomes aware of any information (including an administrative error) prior to the effective date of the Award Agreement that either adversely affects the Award Recipient's eligibility for an award, or
The CDFI Fund reserves the right, in its sole discretion, to rescind an award if the Award Recipient fails to return the Award Agreement, signed by the authorized representative of the Award Recipient, and/or provide the CDFI Fund with any other requested documentation, within the CDFI Fund's deadlines.
In addition, the CDFI Fund reserves the right, in its sole discretion, to terminate and rescind the Award Agreement and the award made under this NOFA for any criteria described in the following table:
The CDFI Fund may collect information from each Award Recipient including, but not limited to, an Annual Report with the following components:
Each Award Recipient is responsible for the timely and complete submission of the reporting requirements. The CDFI Fund reserves the right to contact the Award Recipient to request additional information and documentation. The CDFI Fund may consider financial information filed with Federal regulators during its compliance review. The CDFI Fund will use such information to monitor each Award Recipient's compliance with the requirements in the Award Agreement and to assess the impact of the BEA Program. The CDFI Fund reserves the right, in its sole discretion, to modify these reporting requirements if it determines it to be appropriate and necessary; however, such reporting requirements will be modified only after notice has been provided to Award Recipients.
Each of the Qualified Activities categories will be ineligible for indirect costs and an associated indirect cost rate. The cost principles used by Award Recipients must be consistent with Federal cost principles and support the accumulation of costs as required by the principles, and must provide for adequate documentation to support costs charged to the BEA Program Award. In addition, the CDFI Fund will require Award Recipients to: maintain effective internal controls; comply with applicable statutes, regulations, and the Award Agreement; evaluate and monitor compliance; take action when not in compliance; and safeguard personally identifiable information, as described in Section V.A. of this NOFA.
The following table lists contact information for the CDFI Fund,
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the IRS is soliciting comments concerning Form 8908, Energy Efficient Home Credit.
Written comments should be received on or before June 2, 2023 to be assured of consideration.
Direct all written comments to Andrés Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or by email to
Requests for additional information or copies of the form and instructions should be directed to LaNita Van Dyke, at (202) 317-6009, at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
Veterans Benefits Administration, Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before June 2, 2023.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Maribel Aponte, Office of Enterprise and Integration, Data Governance Analytics (008), 1717 H Street NW, Washington, DC 20006, (202) 266-4688 or email
Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
FRA is proposing to amend its Passenger Equipment Safety Standards to modernize Tier I and Tier III safety appliance requirements; update the pre-revenue compliance documentation and testing requirements; establish crashworthiness requirements for individual Tier I-compliant vehicles equipped with crash energy management (CEM); establish standards for Tier III inspection, testing, and maintenance (ITM) and movement of defective equipment (MODE); incorporate general safety requirements from FRA's Railroad Locomotive Safety Standards for Tier III trainsets; and provide for periodic inspection of emergency lighting to ensure proper functioning.
Written comments must be received by June 2, 2023. Comments received after that date will be considered to the extent practicable without incurring additional expense or delay.
FRA anticipates it can resolve this rulemaking without a public, oral hearing. However, if FRA receives a specific request for a public, oral hearing prior to May 3, 2023, FRA will schedule one and will publish a supplemental notice in the
Michael Hunter, Executive Staff Director, Office of Railroad Systems and Technology, telephone: 202-579-5508 or email:
The following abbreviations are used in this document's preamble:
This NPRM is based on recommendations from the Railroad Safety Advisory Committee (RSAC)
The benefits of this proposed rule are estimated to be approximately $0.3 million, undiscounted. The majority of the benefits are derived from emergency communication and savings to the Federal Government. The present value is approximately $0.2 million, discounted at 7 percent, and $0.3 million, discounted at 3 percent.
In 2018, FRA issued a final rule adopting new and modified requirements governing the construction of conventional-speed and high-speed passenger rail equipment. FRA notes that it is important to consider the costs and benefits of this proposed rulemaking in conjunction with the costs and benefits of the 2018 rulemaking, as the current rulemaking is necessary to complete the regulatory framework set out in the 2018 final rule. Over the 30-year period of analysis for the 2018 final rule, FRA estimated net regulatory cost savings of $284.8 million (low range) to $541.9 million (high range), discounted at 7 percent. Annualized net regulatory cost savings totaled between $22.9 million and $43.7 million when discounted at a 7-percent rate.
The net costs of this proposed rule are estimated to be approximately $55.2 million, undiscounted. The annualized net costs are approximately $1.7 million, discounted at 7 percent.
In September 1994, the Secretary of Transportation (Secretary) convened a meeting of representatives from all sectors of the rail industry with the goal of enhancing rail safety. As one initiative of this Rail Safety Summit, the Secretary announced that DOT would begin developing safety standards for rail passenger equipment over a five-year period. In November 1994, Congress adopted the Secretary's schedule for implementing rail passenger equipment safety regulations and included it in the Federal Railroad Safety Authorization Act of 1994 (the Act), Public Law 103-440, 108 Stat. 4619, 4623-4624 (November 2, 1994). In the Act, Congress also authorized the Secretary to consult with various organizations involved in passenger train operations for purposes of prescribing and amending these regulations and to issue orders under it. See section 215 of the Act (codified at 49 U.S.C. 20133).
Since FRA promulgated the inaugural set of passenger equipment safety standards in May 1999, satisfying the Congressional mandate, FRA has engaged in a number of rulemakings to amend and enhance its passenger equipment safety requirements. Most pertinent to this proposed rulemaking, FRA published a final rule on November 21, 2018, adopting new and modified requirements governing the construction of conventional-speed and high-speed passenger rail equipment. See 83 FR 59182. FRA added a new tier of passenger equipment safety standards (Tier III) to facilitate the safe implementation of nation-wide, interoperable passenger rail service at speeds up to 220 miles per hour (mph). FRA also established crashworthiness and occupant protection requirements in the alternative to those previously specified for Tier I passenger trainsets. Additionally, FRA increased from 150 mph to 160 mph the maximum speed for passenger equipment that complies with FRA's Tier II requirements.
Due to the complexity of the Tier III safety requirements, FRA separated their establishment into two distinct rulemaking efforts. The 2018 final rule primarily established the occupant volume protection and other major structural requirements, such as brake and emergency systems requirements. This NPRM is proposing requirements that would complement those requirements and complete the Tier III rulemaking process.
This proposed rule is the product of consensus reached by FRA's RSAC, which accepted the task of reviewing passenger equipment safety needs and programs and recommending specific actions that could be useful to advance the safety of passenger service, including the development of standards for the next generation of high-speed trainsets. The RSAC established the Passenger Safety Working Group (PSWG)
In August 2019, the PSWG convened to discuss the topics considered previously by the ETF that were not included in the initial, Tier III final rule published November 21, 2018.
With the proliferation of microprocessor control technologies, the integration of electronic hardware and software on passenger rail equipment has grown exponentially. Software-based electronic systems are currently used to manage virtually all critical subsystems on board a passenger train ranging from primarily passenger comfort features such as air temperature and wireless networking systems, to safety-critical controls and monitoring systems, particularly for braking, traction and diagnostics systems. These systems are generally separate from safety-critical train control technology, such as positive train control (PTC) and automatic train control (ATC), which are governed by part 236.
In the 1999 Passenger Equipment Safety Standards final rule,
Also, in 2012, the Locomotive Safety Standards final rule
These proposed updates to the passenger electronic hardware and software safety requirements in this NPRM would establish uniform safety standards applicable to all safety-critical electronic control systems, subsystems, and components on passenger equipment. At the same time, in recognition of some of the differences between passenger and freight operations, this NPRM would create separate electronic hardware and software safety requirements specifically for passenger operations. However, the proposed requirements are not intended to impact technology or software subject to other FRA regulations, such as 49 CFR part 236.
FRA is updating the pre-revenue compliance documentation and testing requirements to address and clarify issues that have been identified by FRA and the industry during pre-revenue service testing acceptance for rolling stock, such as the types of testing and compliance validation required, the timing for such activities, and the documentation required. Additionally, with the establishment of Tier III, the additional flexibility afforded by the regulations that allow certain safety elements to be defined by the railroad (
By separating design criteria from dynamic testing requirements, more clarity can be provided as to the expectations for passenger equipment compliance demonstration throughout the life cycle of a procurement. Proposed § 238.110 would also provide a means for railroads to document critical vehicle platform design criteria and operational performance requirements, systems integration requirements, and assumptions that are used to validate certain safety parameters (
Much of proposed § 238.110 formalizes and memorializes what is industry best practice. However, this proposal contains a significant addition above what is currently industry practice in the requirement for railroads to develop a “vehicle qualification plan.” This proposed plan would require the railroad to take into consideration the entire compliance demonstration process, from the early stages of a project through the creation of tools such as a compliance matrix. This would help ensure the railroad, rolling stock supplier, and FRA effectively work from the same “sheet of music,” by determining what regulatory metrics must be met to achieve compliance, and then what constitutes an effective method to demonstrate that compliance, either by validation testing, physical inspection, design review, analysis, calculation, computer modeling, or some combination thereof.
By proposing to separate the requirements that were intrinsically considered part of the current language in § 238.111 into two sections (§§ 238.110 and 238.111), FRA would be able to provide more clarity as to the procedural and documentation requirements for the entire compliance validation process, particularly for Tier III where the documentation of configurable elements may be essential to establishing the expected safety performance which is to be demonstrated. In this spirit, the proposal would refine and expand upon much of the current § 238.111 language to reinforce expectations and process considerations for key documentation, including test plans, procedures, and results. Further, more explicit expectations and examples have been provided for the types of validations required to occur during the final commissioning stages before equipment may enter into revenue service, in addition to how re-built or relocated equipment must be treated.
As with other components of passenger rail equipment, innovations in the design and construction of door safety systems have generated new issues for potential regulation. The proposed language in this rule for exterior side door safety systems incorporated in new passenger cars and locomotives, developed from recommendations by RSAC, would revise § 238.131 to address newer door designs, with a specific focus on plug doors (
Although the proposed revisions to § 238.131 could require stakeholders to apply or construct additional signage or handles, the expected efficiency enhancement in the equipment procurement and development process resulting from acceptance of the existing functionality of the plug door design could justify any such burden.
The final rule published on November 21, 2018, included crashworthiness requirements for certain Tier I trainsets, but not for individual passenger rail vehicles or locomotives. And although there is no requirement for the development of CEM components at the individual Tier I passenger rail vehicle or locomotive level, some railroads and other stakeholders have nonetheless demonstrated an increased interest in the construction and installation of CEM components at the individual passenger rail vehicle or locomotive level. To augment existing regulations on CEM and provide guidance for the development and use of CEM at the individual vehicle level, FRA proposes adding new requirements providing alternatives for evaluating crashworthiness and occupant protection of individual vehicles equipped with CEM based on the RSAC recommendations.
The proposed alternative requirements would provide guidance and a means for evaluating individual locomotives or passenger rail vehicles that are fully compliant with existing Tier I structural requirements and have additional CEM features incorporated into their structure to operate within conventional, Tier I-compliant trains. These evaluation requirements would not apply to Tier I trainsets designed to alternative crashworthiness requirements under § 238.201 and appendix G to part 238 or single pieces of equipment with traditionally compliant structures outfitted with pushback couplers as the only CEM feature.
By establishing alternative requirements for evaluating crashworthiness and occupant protection of Tier I equipment utilizing CEM on individual vehicles, FRA would create clarity and reduce uncertainty for stakeholders who pursue the development of CEM at the individual vehicle level. Such clarification could also reduce the burden and time required for FRA to evaluate compliance issues related to passenger equipment utilizing CEM on an individual vehicle.
Coinciding with the development of safety appliance requirements for Tier III equipment, the PSWG also looked at updating the safety appliance requirements for modern Tier I passenger equipment. While safety appliance regulations have long existed for passenger cars under 49 CFR part 231, these standards are derived, in most cases verbatim, from the requirements set forth by the Interstate Commerce Commission (ICC) in 1910 and guidance of the Master Car Builders Association around the turn of the twentieth century.
As modern Tier I passenger equipment is functionally similar to Tier III high-speed trainsets in many ways, FRA decided that a single baseline set of requirements could be adopted for certain passenger carrying vehicles. It should also be noted, however, that while this proposed rule would establish and clarify requirements that could be used for both new and existing passenger equipment, it is not intended to replace the established regulations. Because passenger railcars tend to have long service lives in North America, there will remain a perpetual need to maintain the existing regulations for cars built to those standards, in addition to private cars and special car types (
This proposed rule would also create a new regulatory section for Tier I non-passenger carrying locomotives. The proposal incorporates applicable requirements from part 231 pertaining
Current FRA regulations for safety appliances are based on longstanding statutory requirements for individual railroad cars used in general service. These requirements are primarily intended to keep railroad employees safe while performing their essential job functions. Historically, these duties have revolved around the practice of building trains by switching individual cars or groups of cars and are not specifically applicable to how modern, high-speed passenger equipment is designed and operated. The application of such appliances would require a significant redesign of high-speed rail equipment and would create aerodynamic problems particularly with respect to associated noise emissions. Therefore, FRA proposes to exempt Tier III (and certain Tier I) equipment from the following requirements of 49 U.S.C. ch. 203: (1) couplers that couple automatically by impact, and are capable of being uncoupled, without individuals having to go between the ends of equipment; and (2) secure sill steps and grab irons or handholds on the vehicle's ends and sides.
Rather than apply legacy requirements that are inappropriate for the proposed equipment design and service environment, this proposed rule focuses on how to provide a safe environment for employees as it pertains to modern high-speed equipment and operations. In this respect, the proposed rule would define specific safety appliance performance requirements applicable to these modern trainsets subject to the rule. By focusing on employee job functions, rather than mandating specific legacy designs for dissimilar equipment, the proposed approach would likely not only improve safety for railroad employees, but also provide flexibility for superior designs based on modern ergonomics and eliminate appliances that might otherwise encourage their use even though their functionality is moot (
Under 49 U.S.C. 20306, FRA may exempt a railroad or railroads from the above-identified statutory requirements for safety appliances based on evidence received and findings developed at a hearing demonstrating that the statutory requirements “preclude the development or implementation of more efficient railroad transportation equipment or other transportation innovations under existing law.” FRA notes that 49 U.S.C. 20306 does not require a separate public hearing as related to Tier III (and certain Tier I) equipment for each new vehicle design. FRA conducted hearings in 2009, 2019, and 2020 addressing both Tier III and Tier I trainsets.
Accordingly, FRA believes it is appropriate to consider relief under the discretionary process established under 49 U.S.C. 20306 and proposes to adopt the requirements proposed in this NPRM under its statutory authority as part of this rulemaking without holding an additional public hearing, as an additional public hearing would not develop any new facts.
In developing new standards for modern high-speed trainsets, the PSWG deliberately separated later-stage design elements and operational-related requirements from those early-stage design issues that influence the vehicle platform (
To facilitate the development of appropriate ITM requirements, along with clarifying the applicability of general safety requirements (see Section III.G, General Tier III Safety Requirements, below) for modern high-speed trainsets, the PSWG considered the inspection and maintenance needs of modern trainsets based on current global practice, in comparison to longstanding North American practice established for locomotives, passenger equipment, and passenger brake systems codified in parts 229 and 238, respectively.
A guiding light for this effort has been the experience implementing, and relative success of, the ITM requirements established for Tier II equipment under subpart F of part 238. Unlike many of the explicit requirements and intervals used for conventional Tier I passenger equipment in subpart D of part 238, the Tier II requirements provide a broader approach to ITM, setting out various parameters the railroad must follow in determining the appropriate procedures and periodicity for inspections, tests, and maintenance specific to the equipment it operates, as approved by FRA. This approach utilizes the development of a comprehensive ITM program, appropriate for the equipment design and technology, that can then be enforced and managed through an FRA approval process that includes an annual review of the railroad's program to monitor its effectiveness. When this approach was established in the 1999 final rule, it marked a significant departure from conventional practice, but this departure was viewed as appropriate given the nature of high-speed trainset technology, and the fact that the equipment's operational limits would be more closely defined and overseen than for conventional equipment. Since this parallels the need and operational considerations for Tier III trainsets, the approach was viewed as a logical starting point for the PSWG. This rule, as proposed, reflects the desire of the PSWG to continue the success of the Tier II ITM approach,
In particular, the proposed rule maintains the approach of subpart F of part 238 and the concept that an ITM program for Tier III trainsets should have the flexibility to be modified and updated based on verifiable data and the evolution of technology integrated into these high-performance trainsets. The requirements, as proposed, effectively perform two regulatory functions. First, they would require the railroad to establish the safety-critical maintenance needs for the trainset and its components, the appropriate periods for inspections, and the means by which inspections or maintenance must be performed (
Additionally, this proposed rule would establish requirements for the movement of defective Tier III equipment, should a non-compliant condition arise where efficient repairs cannot be performed (
This proposed rule includes a number of provisions that would adopt certain relevant general safety requirements of part 229 and apply them to Tier III trainsets. As with most of the proposals in this NPRM, these provisions were developed from consensus recommendations by the RSAC.
Overall, the proposals cross-reference relevant sections of part 229 for Tier III trainsets aiming to distinguish legacy locomotive requirements of part 229 from those requirements more appropriate for modern high-speed passenger equipment. Additionally, the proposal would provide consistency between the general safety standards for Tier III trainsets and those standards applicable to trainsets qualified at other tiers, and to ensure that Tier III trainsets remain free of any condition that endangers the safety of the crew, passengers, or equipment.
FRA notes that the proposed rule text to implement this initiative would make various sections and specific requirements of part 229 directly applicable to Tier III trainsets by cross-reference, rather than simply repeat numerous similar or identical requirements in part 238. This approach hopefully fulfills the intent by resolving ambiguity about applicability of these part 229 requirements to Tier III trainsets and avoiding drafting errors in the future if a requirement under part 229 changes without otherwise similarly changing a companion provision under part 238. FRA recognizes that this part uses some traditional terms, such as locomotive, when describing certain requirements. However, the use of the term locomotive, or other similar terms, should not be an impediment to compliance with the requirements of this proposed rule. Where appropriate, additional clarifying language has been included in the section-by-section analysis or rule text, or both, to help make the requirement and its application clear. FRA invites comments on these sections, below.
In addition, FRA invites comment on whether it is more appropriate for part 229 not to apply to Tier III equipment,
On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act (IIJA), Public Law 117-58, 135 Stat. 429. As part of the IIJA, Congress directed FRA, as the Secretary's delegate, to promulgate regulations concerning periodic inspection plans for emergency lighting and pre-revenue service safety validation plans. Secs. 22406 and 22416. Congress also directed FRA, as the Secretary's delegate, to promulgate regulations “as may be necessary for high-speed rail services[.]” Sec. 22419 (codified at 49 U.S.C. 26103). Through this rulemaking, FRA is addressing both these substantive mandates while promulgating regulations that are necessary for the implementation of high-speed rail services in the United States.
Under Sec. 22406 of the IIJA, FRA must initiate a rulemaking to require that all rail carriers providing intercity passenger rail transportation or commuter rail passenger transportation develop and implement periodic inspection plans to ensure that passenger equipment offered for revenue service complies with the requirements of this part. This includes ensuring that, in the event of a loss of power, there is adequate emergency lighting available to allow passengers, crewmembers, and first responders to orient themselves to identify obstacles and to safely move through and evacuate from a rail car. This proposed rule would satisfy this requirement.
Under Sec. 22416 of the IIJA, any railroad providing new, regularly scheduled, intercity or commuter rail passenger transportation, an extension of existing service, or renewal of service discontinued for more than 180 days to develop and submit for review a comprehensive pre-revenue safety validation plan to FRA no less than 60 days prior to the start of revenue service. Once submitted, the railroad must adopt and comply with the plan. This section of the IIJA also requires FRA to develop conforming regulations to implement this section, which are proposed under § 238.108.
FRA proposes to revise § 216.14(c) to add a cross-reference to § 238.1003, which would contain the requirements for movement of defective equipment for Tier III trainsets. This change would harmonize part 216 with the proposed changes to part 238 contained in this rulemaking applicable to Tier III equipment.
FRA is proposing to add paragraph (b)(6) to this section to harmonize part 231 with the changes proposed to part
FRA is proposing to revise existing definitions and add new definitions to this part to clarify the meaning of important terms and minimize potential for misinterpretation of the rule. FRA requests public comment regarding the proposed terms to be defined in this section and whether definition of other terms is necessary.
FRA proposes to revise paragraph (2)(i), the definition of “in service,” to include a reference to the movement of defective equipment provisions of § 238.1003 for Tier III equipment.
FRA proposes to add a definition of “clear length,” as applied to handholds and handrails, to mean the distance about which a minimum 2-inch hand clearance exists in all directions around the handhold or handrail, with intermediate supports on handrails considered part of the clear length. FRA proposes to add this definition to clarify the appropriate measurement for determining compliance with part 238's requirements.
FRA proposes to add a definition of “crew access side steps” to mean a step or stirrup, or a series of steps or stirrups, located on the carbody side to assist an employee boarding the equipment or exiting from the equipment to ground level through an exterior side door dedicated for train crew use. FRA proposes to add this definition to clarify the safety measures necessary for crewmembers operating passenger equipment with no provisions for platform-level boarding.
FRA proposes to add a definition of “representative segment of the route” to mean either a continuous track section or a compilation of track no less than fifty miles in length that consists of a curvature distribution that is within two percent of the curvature distribution of the complete line segment (as evaluated using the root mean squared (RMS) of the differences between the two distributions), a segment or segments of tangent track over which the intended maximum operating speed can be sustained, and any bridges and special trackwork that are within the track section(s). Depending on the size of the railroad, a “representative segment of the route” could include the entire system in order for the “representative segment of the route” to consist of a segment of tangent track over which the intended maximum operating speed can be sustained, any bridges and special trackwork, and have a curvature distribution that is within two percent of the curvature distribution of the complete line segment (as evaluated using the RMS of the differences between the two distributions). FRA proposes to add this definition to clarify the appropriate methods of qualification testing for passenger equipment to determine compliance with requirements addressing vehicle/track interaction.
FRA proposes to define “Tier IV system” to mean any railroad that provides or is available to provide passenger service using non-interoperable technology that operates on an exclusive right-of-way without grade crossings, not comingled with Tier I, II, or III passenger equipment or freight equipment, and not physically connected to the general railroad system. FRA proposes to add this definition to establish a classification and foundation applicable to passenger equipment that is subject to FRA regulation but falls outside the scope of the existing tier classifications. Unlike what was recommended by the RSAC to FRA, FRA is not proposing to include language in the definition that references a particular type of regulatory framework. FRA notes that the type of regulatory mechanism FRA employs to ensure effective safety oversight would not be consequential to whether a particular technology is considered a “Tier IV system.” FRA welcomes comment on the use of the term “Tier IV,” or an alternative categorization, to identify the type of system described in this paragraph.
FRA is proposing to amend this section to harmonize the existing requirements with proposed new requirements applicable to Tier III passenger equipment. As part of the RSAC consensus recommendations, RSAC recommended that FRA issue regulations specific to Tier III equipment with respect to reporting and tracking of repairs made to defective Tier III equipment, so that these requirements would be included as part of the Tier III ITM requirements under proposed § 238.903. The recommended approach was based on the existing requirements codified under this section (§ 238.19). Yet, after further consideration, FRA is proposing to simply amend this section rather than add these requirements to subpart I, for clarity.
Specifically, FRA is proposing to amend paragraphs (a), (b), and (d). In proposed paragraphs (a)(4) and (5), FRA would add the term qualified individual to account for the nomenclature's use under subpart H and proposed subpart I for Tier III equipment.
In the proposed revision to paragraph (b), FRA would redesignate paragraph (b) as paragraph (b)(1) and add new paragraph (b)(2). In proposed paragraph (b)(2), FRA would add record retention requirements for reporting and tracking system records for Tier III equipment regarding the information in paragraph (a). FRA is also proposing that for Tier III equipment, the records be retained for at least one year.
In FRA's proposed revision to paragraph (d), FRA would revise the paragraph heading, redesignate paragraph (d) as paragraph (d)(1), and add new paragraph (d)(2). Under proposed paragraph (d)(2), FRA would add the requirement that operators of Tier III equipment designate locations where repairs to safety-critical systems on Tier III equipment can be made, including repairs to Tier III brake systems. This requirement would follow the requirements in existing paragraph (d)(4) that such designations be made in writing, that the written designations be provided to FRA and made available for inspection and copying, and that the list of repair points could not be changed without at least 30 days' advance notice provided to FRA.
FRA notes that it has introduced two new terms under proposed paragraph (d)(2), exclusive to Tier III equipment: required operational braking capability and maximum designed braking capability. As further discussed below under proposed §§ 238.903(a)(8) and 238.1003(d), the required operational braking capability with respect to Tier III equipment would be the capability of
FRA is proposing to revise this section to clarify the requirements of this section and to reconcile overlapping requirements with subpart E of part 229 of this chapter. It has been FRA's experience over the last decade that much ambiguity exists with the correct application of part 238 requirements and similar requirements under part 229. In FRA's view, the requirements that are being proposed have been applicable to the passenger industry, consistent with the applicability dates listed in the introductory text of this section. FRA is also making clear that it is not expanding the applicability dates.
Under paragraph (a), FRA is proposing to make editorial changes and is also proposing to permit railroads to maintain the hardware and software safety program in either a written or an electronic format.
Additionally, FRA is proposing to swap current paragraphs (b) and (c) with each other, redesignating current paragraph (b) as paragraph (c) and current paragraph (c) as paragraph (b) for clarity and organizational purposes. Further, FRA is proposing to add a new requirement under proposed paragraph (b)(8). Proposed paragraph (b)(8) would make explicit that the safety analysis outlined in proposed paragraph (c) is a required part of the hardware and software safety program required under paragraph (a) of this section.
Under proposed paragraph (c), FRA is providing additional detail on how to perform the safety analysis that is being proposed under paragraph (b)(8). FRA is proposing to use the term “safety analysis” rather than the legacy term “safety program,” to make clear that this is an analysis to be conducted as part of the broader safety program rather than a standalone program. Additionally, FRA is proposing that the safety analysis establish and document the minimum requirements governing the development and implementation of all products subject to this section. Further, the safety analysis, as proposed, would be based on good engineering practice and should be consistent with the guidance contained in appendix F to part 229 of this chapter in order to establish that a product's safety-critical functions operate with a high degree of confidence in a fail-safe manner. As proposed, the safety analysis would be based on a formal safety methodology, to include a Failure Modes, Effects, Criticality Analysis (FMECA), verification and validation testing for all hardware and software components and their interfaces, and comprehensive hardware and software integration testing to ensure that the hardware and software system functions as intended.
FRA is proposing to revise paragraphs (d) and (e) simply by adding paragraph headings.
FRA is also proposing to add paragraph (f) to this section to make explicit which specific requirements from subpart E of part 229 are being made applicable to passenger equipment. Consistent with the discussion above regarding the applicability of this section, FRA is proposing to reference the applicability dates set forth in § 229.303(a)(1) and (2), to make clear that FRA is not intending to expand the applicability of these requirements. In proposed paragraphs (f)(1) through (6), FRA has listed each provision of subpart E of part 229 being made applicable to passenger equipment. Accordingly, if a provision in subpart E of part 229 is not listed in this paragraph (f), then that requirement would not be applicable to passenger equipment under this part.
Additionally, FRA is proposing to add paragraph (g) to this section. Proposed paragraph (g) would add a requirement that railroads prepare a Vehicle Communication and Control System Vulnerability Assessment identifying potential system vulnerabilities, associated risk (including exploit likelihood and consequences), countermeasures applied, and resulting risk mitigation.
Further, FRA is proposing to add paragraph (h) to this section, which would add a requirement that suppliers of safety-critical railroad products notify FRA of any safety-critical product failures. By requiring this notice to FRA, FRA may in turn help ensure that notice of the faulty product is provided to other possible users of the equipment.
Pursuant to Section 22416 of the IIJA, FRA is proposing to add requirements for new passenger service pre-revenue safety performance demonstration. This proposal incorporates the requirements of the IIJA and provides additional direction for railroads to assist them with the development and execution of pre-revenue safety and operational readiness demonstration. These proposed requirements would apply to any new passenger rail service subject to FRA safety jurisdiction, including line extensions and the resumption of service if passenger rail service has not been present on a line for more than 180 days. This proposed section would not apply to the temporary re-routing of existing passenger service due to weather events, emergency scenarios, or planned PTC maintenance under § 236.1005(g).
Through this proposed section, FRA would require railroads and project stakeholders to use safety and operational readiness as the deciding factors as to when revenue passenger service should begin over a line, rather than an earlier date influenced by other factors. As an example, FRA is aware of an instance where the use of emergency phones located in a railroad's stations knocked out the signal system of the railroad as the two systems were using the same support infrastructure (a router). However, this problem was only discovered through happenstance, and not part of an overall system safety and operational readiness evaluation before the rail service began. This example is provided to illustrate the scope of the intended safety performance demonstration and the critical evaluation necessary to accomplish the goals of this proposed section.
Proposed paragraph (a)(1) establishes who must submit a pre-revenue safety validation plan. The requirements would apply to any railroad subject to the requirements of part 238 regardless of tier of service, or any other responsible entity providing new, regularly scheduled, intercity or commuter passenger service, an extension of existing service, or the re-start of service that has been suspended or otherwise discontinued for more than 180 days. These requirements would apply regardless of whether the railroad is already operating similar service. For example, an existing commuter railroad that is already providing commuter service would still need to comply with the proposed requirements of this section for any new commuter rail line
Proposed paragraph (a)(2) outlines the content requirements for the proposed pre-revenue safety validation plan and would require that it be submitted to FRA for review no less than 60 days prior to the start of the service's safety demonstration period, the requirements of which are outlined further in this section. Proposed paragraph (a)(2)(i) would require that the railroad provide the status of all appliable safety plans or regulatory programs, and any associated certifications, qualifications, and employee training required for the start of revenue service, that are enumerated in proposed paragraphs (a)(2)(i)(A) through (K). The railroad must be able to demonstrate that these programs, plans, certifications, qualifications, and employee training would be not only substantially complete and/or in place to support the service, but that it would also adequately execute the programs or plans as intended. FRA may look to validate this with field inspections during the service demonstration period. For example, if an employee (or contractor) is required to comply with the railroad's on-track safety program for the duties being performed, FRA would expect that field inspections would validate that the employee has received training and is knowledgeable on the requirements of the railroad's on-track safety program. In providing its pre-revenue safety validation plan, the railroad should pay particular attention to the completion of required activities, testing and certification (especially engineer and conductor certification), the adequacy of its training programs, and appropriate close-out or mitigation of any identified hazards as part of its system safety planning efforts. Additionally, the railroad would be required to provide data indicating which safety-related employees are required to receive training, qualifications or other certifications, and the status of those programs (the number who have completed each step) as identified in proposed paragraphs (a)(2)(i)(H) and (I). Completion of FRA's “new starts” process may satisfy this requirement.
Proposed paragraph (a)(2)(ii) would require the railroad to provide a description of how it would measure “substantial completion” of the system. This must include items such as any tests or validations to be performed by contractors for facilities, structures, systems, or other major construction activities that must be performed before they can be accepted by the railroad, or before testing or revenue service can begin. Because system level testing and integration testing often require the availability of substantially complete infrastructure and supporting systems to conduct testing, the railroad must be able to demonstrate that it would have adequate access to these facilities to properly perform required testing under FRA's regulations. The availability of core infrastructure and systems is also necessary for the service demonstration period and FRA would require that the safety and acceptance of these core elements be addressed on their own merit, and that such activities would not conflict with required tests or other activities identified in this section due to schedule compression.
Further, should there be a host-tenant relationship, and the railroad submitting the pre-revenue safety validation plan is not the host railroad, then the host railroad and the railroad submitting the pre-revenue safety validation plan must coordinate. Specifically, FRA is concerned about host railroads scheduling construction activities unbeknownst to the railroad submitting the pre-revenue safety validation plan that could potentially interfere with the safety performance demonstration period (simulated service). To help resolve this concern, FRA is proposing to require that host railroads share pertinent information with the railroad submitting the pre-revenue safety validation plan (when not the host railroad).
Proposed paragraphs (a)(2)(iii) and (iv) would require the railroad to provide details on its proposed operations over the line, and its expectations and plans for its safety performance demonstration and simulated service required under this section. In each of these paragraphs, FRA has listed specific information requirements. These lists are not intended to be exhaustive. Specifically, under proposed paragraph (a)(2)(iv), the railroad would be required to provide its plans for simulated service (
Proposed paragraph (b) outlines the requirements for the railroad's safety performance demonstration period (simulated service) to be performed to demonstrate operational readiness. The safety performance demonstration period would provide the railroad an opportunity to demonstrate operational readiness in a dynamic real-world environment, with all major elements and systems in place. The period may also be used by FRA to conduct inspections to validate that the railroad has effectively trained employees and executed its critical plans and programs.
Proposed paragraph (b)(1) specifies that a minimum period of simulated service must be successfully performed prior to the start of revenue service (to be expressed in days or number of runs as required under proposed paragraph (a)(2)(iv)). Proposed paragraph (b)(1)(i) provides requirements for new operations or physical extensions to existing services. These services require the most activities to ensure operational readiness and should be conducted using the full proposed schedule to ensure that the service schedule can be practically implemented to support safe operations. For example, the railroad must be able to demonstrate that the scheduled running times and turns can be performed reliably, even when factoring in common scenarios that might affect service, such as speed restrictions or mandatory directives. This would ensure that crews are not subjected to undue stress and potential safety concerns when revenue service begins, due to delays that could otherwise be avoided if the schedule and operational readiness had been validated. In FRA's experience, most new operations that voluntarily conducted a period of simulated service prior to commencing revenue service have required a minimum of two to six weeks of simulated service to address issues and ensure operational readiness. FRA notes, however, that the process is not necessarily intended to be linear, and certain activities may also be completed in parallel with the simulated service, when appropriate.
Proposed paragraph (b)(1)(ii) provides considerations for the re-start or re-routing of existing operations. For these situations, the amount of simulated service can vary greatly depending on the scope of the re-started or re-routed service. For example, the re-start of a discontinued service may necessitate running full, scheduled operations for a certain number of days, whereas re-routing of a service may only require a certain number of “successful” test runs. The railroad may reach out to and work with FRA in determining the appropriate period based on the individual circumstances.
Proposed paragraph (b)(2) would require the railroad to provide a daily
Proposed paragraph (b)(3) would require the railroad to correct any safety deficiencies identified during the safety performance demonstration period prior to commencing revenue service. Additionally, this proposed paragraph would require that, if a safety deficiency cannot be corrected, then it must be addressed through mitigations or operational restrictions that would ensure the safety of the operation. Finally, this proposed paragraph would require a final report to be submitted to FRA addressing the complete safety performance demonstration period, specifically detailing the deficiencies uncovered and the associated corrections, mitigations, or operational restrictions imposed. FRA notes that it would reserve the right to require additional corrections, mitigations, or operational restrictions should it determine that those imposed by the railroad would not be sufficient to ensure the safety of the operation.
Proposed paragraph (c) would require a railroad to comply with its plan before revenue service may begin. It would also prohibit a railroad from amending its plan without first notifying FRA, to prevent a railroad from effectively “moving the goal posts” to commence revenue service by a pre-determined date if the requirements of the plan have not otherwise been met. In addition, this proposed paragraph would impose a general prohibition against commencing revenue service until the plan has been successfully completed by the railroad, to include the imposition of corrections, mitigation, or operational limitations as required by proposed paragraph (b)(3).
To help clarify the compliance demonstration and approval process for passenger equipment, FRA is proposing new § 238.110. This proposed section is intended to complement § 238.111, as proposed to be revised in this NPRM. This section would require the railroad to establish the design criteria and provide the system description for the intended service against which the railroad is demonstrating safety compliance. This proposed section would also provide the ability for the railroad to define certain elements required for Tier III operations, as well as require the railroad to develop a vehicle qualification plan to establish how compliance would be demonstrated. Further, this proposal includes specific language for the demonstration of early-stage, vehicle design matters, such as carbody construction with respect to crashworthiness and safety appliances. In developing this language, FRA worked closely with industry subject matter experts through the RSAC to provide more detail about passenger vehicle compliance demonstration to help clarify the process. FRA welcomes any comments or considerations that might further improve the clarity of this section.
Proposed paragraph (a) outlines the scope of this section and its relationship with § 238.111. Proposed paragraph (a)(1) would make the requirements of this section applicable to new passenger equipment designs (
While FRA has attempted to provide clear language with respect to when a vehicle design has been altered to a point where an updated demonstration of compliance with the safety standards would be required, FRA recognizes that this can be a matter of nuance, and additional feedback from FRA may be necessary as to when a modification to an existing vehicle platform may have crossed such a threshold. For instance, changes to the traction control or braking systems, modifications to trucks or suspensions systems, changes to the carbody structure or its material, or alterations that change the mass or center-of-gravity of the vehicle (and thus its dynamic performance), are all common examples of when a new safety assessment and compliance demonstration would likely be appropriate.
Under proposed paragraph (a)(2), previously accepted passenger vehicle designs would not be subject to the requirements of this section, except for the development and maintenance of a system description under proposed paragraph (d). Even though development of a vehicle qualification plan would not be required, FRA still would require railroads to develop a system description to capture the critical information of the operating environment of the equipment in case changes are made that would necessitate a new safety assessment and compliance demonstration.
Proposed paragraph (b)(1) would make the railroad responsible for maintaining any documents or evidence related to the design and performance of the vehicle that may be necessary to establish or demonstrate compliance with the safety regulations. Even if material is provided to FRA for review or approval, this would not relieve the railroad from the proper maintenance of its records in this regard. FRA would require that the railroad be able to produce relevant documentation, including any changes or modifications to one or more of the vehicles in its fleet should the need arise, as proposed under paragraph (b)(2). Proposed paragraph (b)(2) would also require that the documentation be maintained for the life of the equipment. If the equipment is leased or sold, this paragraph would require a copy of the documentation to be provided to the lessee or purchasing entity, respectively.
Under paragraph (c), FRA is proposing to require railroads develop a vehicle qualification plan. This plan would assist railroads in demonstrating compliance with the requirements of this proposed section. As proposed, the vehicle qualification plan would be comprised of a system description (which includes certain vehicle design assumptions) and a compliance matrix.
Proposed paragraph (c)(1)(i) contains the requirement for a railroad to develop a system description (a description of the intended operational environment for the equipment), which would cover topics listed under proposed paragraph (d)(1), as well as a listing of assumptions used when designing the equipment. This initial portion of the proposed system description would be for all passenger equipment. Additionally, railroads seeking to qualify Tier III equipment under this section would need to address the required elements for Tier III operations, as listed in proposed paragraph (d)(2).
Proposed paragraph (c)(1)(ii) introduces the concept of a comprehensive compliance matrix (matrix) that must be developed by the railroad to outline the means by which compliance with various safety requirements under FRA's regulations would be demonstrated. This matrix, as proposed, is an extrapolation of what FRA has historically expected under the current language of § 238.111, in that the railroad should be able to identify all tests required to demonstrate compliance under FRA's regulations—whether a carbody structural test to validate compliance with the occupied volume protection requirements, or a braking test performed during the final commissioning stages of a project. Both of these exemplar tests provide critical safety validation of the design and must
In practice, as proposed under paragraph (c)(1)(ii), FRA is envisioning the compliance matrix as being a table to help identify the requirements for which compliance must be demonstrated (keeping in mind that certain projects, such as equipment modifications, may only require a limited number of items to be assessed), and the means by which compliance would be demonstrated (
Proposed paragraph (c)(2) further outlines the process and timing by which a railroad's vehicle qualification plan would be approved. FRA is seeking comment on whether there is utility in explicit FRA approval of this item, the process described, and the timeframe proposed. Proposed paragraph (c)(2)(iii) would simply enforce the execution of the plan by the railroad.
In paragraph (d), FRA proposes that a railroad provide a description of the environment and service in which the passenger equipment is intended to operate (system description), key design criteria and physical characteristics of the equipment, and any assumptions used for key calculations or analysis. This information would help provide a baseline for the configuration and intended operating environment of the equipment against which the safety of the vehicle is being assessed. Such information would be useful when changes or modifications to a vehicle or its operating environment occur, or if the same equipment type is acquired by the railroad, or leased to another railroad, as it would provide a means for the railroad and FRA to determine if any new or different conditions, configurations, or operating parameters might require additional compliance testing or analysis.
For example, proposed § 238.791(j) would require an efficient handbrake or parking brake that is capable of holding a locomotive on the maximum grade condition identified by the operating railroad, or a minimum 3% grade, whichever is greater. If a railroad initially were to procure a passenger locomotive that operates over a network with a maximum grade of 1.3%, that railroad would be required to validate the sufficiency of the design and performance of the handbrake or parking brake when subjected to the minimum forces resulting from a 3% grade. If the same locomotive is leased to another railroad that operates over territory where the maximum grade is 3.5%, the original documentation must indicate to the acquiring railroad that additional validation may be necessary to ensure that the parking brake design is adequate for the characteristics of its new operating environment.
As another example, if a railroad is electing to follow the interior fixture attachment strength requirements under § 238.733(a)(2), which permit an attachment strength sufficient to resist applied loads of 5g longitudinal, 3g lateral, and 3g vertical when applied to the mass of the fixture, then appropriate discussion and documentation must be provided demonstrating the trainset does not experience a crash pulse in excess of 5g.
Proposed paragraph (d)(1) would require the railroad to provide a description of the operational environment to which the railroad's passenger equipment is subject. This would include the defining physical characteristics of the environment that all passenger equipment would operate within, regardless of whether the equipment is intended for conventional or high-speed operations. Paragraphs (d)(1)(i) through (iii), as proposed, would help the railroad categorize and describe the operating environment and conditions, and provides examples for each.
Of these, physical infrastructure as proposed under paragraph (d)(1)(i), would require the most extensive description, encapsulating a number of physical characteristics of the environment that may directly affect the safe operation of the equipment. In this portion of the system description, the railroad should be able to articulate the limiting track geometry (including turnout geometry), maximum grade, the minimum required stopping distance, and any other safety-critical limits or thresholds within which the equipment would be expected to operate safely. It is critical to note that the characteristics or limits listed are intended to help establish the operating limits of the equipment itself and are not intended simply to catalog the characteristics of the railroad.
For example, when identifying limiting track geometry conditions, if the equipment is not designed to navigate anything less than a turnout having a certain curvature, then that is a limiting track geometry condition for the equipment that must be identified. The railroad may own or have access to track with even more limiting geometry conditions, such as turnouts having even tighter curvatures within a yard. Yet, by identifying the known limitations of the equipment to navigate such trackwork, and making known the safe operating limits of the equipment, the railroad can craft operating rules or instructions to ensure that the equipment is either not operated on portions of the railroad where such geometry exists, or operated under appropriate limitations so that the equipment can safely navigate such geometry.
Similarly, proposed paragraph (d)(1)(ii) would require the railroad to identify the universe of systems that the equipment is expected to operate over or interface with. This would primarily include track circuits, control systems, electric traction systems, and wayside detectors and devices. Of particular importance would be those elements essential to signaling, train control, and active grade crossing warning systems. Here, the railroad must also be able to identify the core technologies (
Systems integration has become a critical element in the safe introduction of new passenger equipment in recent years, particularly as it relates to effective track circuit shunting to ensure the safe operation of signal and grade crossing systems. Taking the time to identify and validate performance characteristics of the equipment over these systems within the context of §§ 238.110 and 238.111 would help the railroad ensure that both the passenger vehicle and wayside technologies are operating as designed, and assist in establishing special operating rules, maintenance procedures, or design changes, as necessary, to ensure safe interactions between the two.
Proposed paragraph (d)(1)(iii) would require the railroad to identify any special operating parameters or rules that might apply to the design and operation of the passenger equipment. At a minimum, this must include information on the design time and setup of the alerter, as this design time may need to account for other operating parameters, such as the required minimum stopping distance identified in proposed paragraph (d)(1)(i) of this section.
Proposed paragraph (d)(2) is intended to catalog design and operational variables specific to Tier III equipment. As many of the requirements pertaining to Tier III equipment are more performance-based and technology neutral, it is essential that the railroad identify specific design and operational parameters where such flexibility is provided, so that necessary safety thresholds can be identified and maintained with proper oversight. Braking systems received particular attention in this regard, during the RSAC process, as there are many different, proven approaches to braking technology and operational rules used on high-speed trainsets throughout the world. To this effect, proposed paragraphs (d)(2)(i) through (xiv) catalog the railroad's approach as it relates to Tier III braking technology.
Proposed paragraph (d)(2)(ii), as discussed above under § 238.19, would require the railroad to define the maximum designed braking capacity of the Tier III trainset.
Proposed paragraphs (d)(2)(iii) through (v) are of particular note, as these sections would define the use of emergency braking and its accessibility to crewmembers and the general public. Unlike most conventional operations, the application of an irretrievable emergency brake application may pose a safety risk to the occupants at very high speeds, or within certain locations (
Proposed paragraphs (d)(2)(iii) and (iv) would require the railroad to identify both irretrievable emergency brake locations accessible only to crewmembers and passenger brake “alarm” locations (if used), respectively, within the Tier III trainset. A picture or diagram may be used to demonstrate compliance.
If passenger brake alarm technology is employed by the railroad, proposed paragraphs (d)(2)(v) through (vii) would require the railroad to specify certain operational aspects of the technology. For example, proposed paragraph (d)(2)(v) would require defining the time period in which the trainset remains under full control of the engineer after an alarm is pulled. Like an alerter, this is intended to ensure that the engineer acknowledges the alarm and takes appropriate action promptly. As proposed, if no action is taken by the engineer in response to the passenger brake alarm, then the trainset's brake system would be required to automatically initiate an irretrievable emergency brake to ensure the safety of the occupants, crew, and trainset.
Proposed paragraph (d)(2)(vi) would require the railroad to detail how the passenger brake alarm would function within station locations, as delayed application of the brakes would be unacceptable if the alarm is activated when a train is departing a station due to a passenger emergency, such as a passenger trapped in a door. Only once a train has safely cleared the station platform would the retrievable aspect of the passenger emergency brake alarm be allowed to engage. To this end, the railroad would have to identify how to achieve this, to ensure that both passengers and crew can immediately stop a train if a dangerous situation is encountered while leaving a station. Nonetheless, as discussed above, there is concern about situations when an engineer may decide against immediately stopping the train following activation of a passenger brake alarm at a station location, such as when in a tunnel if smoke is present. FRA believes that the above discussion provides the necessary clarity on this issue but invites comment.
Proposed paragraph (d)(2)(vii) would allow the railroad to further define the operation of a passenger brake alarm by detailing what steps must be taken by an engineer to retrieve control from a full-service brake application in the event an alarm is activated, within the timeframe proposed by paragraph (d)(2)(v).
Additional core braking parameters are defined in proposed paragraphs (d)(2)(viii) through (xiii). Proposed paragraph (d)(2)(viii) would require the railroad to identify and maintain a copy of the FRA-approved industry standard utilized to comply with § 238.731(f), which requires that main reservoirs be designed and tested according to a recognized industry standard. The railroad would be required to document the actual standard used to qualify main reservoirs for Tier III trainsets in its vehicle qualification plan. Any inspections or tests required by the standard must be incorporated into the railroad's ITM plan as well.
Proposed paragraph (d)(2)(ix) would require the railroad to identify the preset parameters by which it would determine if a Tier III trainset's wheel-slide protection has failed, as required by § 238.731(m)(3). The railroad would be required to document the corresponding operational restrictions within its ITM plan. Similarly, proposed paragraph (d)(2)(x) would require the railroad to provide information on brake system functionality, monitoring, and diagnostics, and any corresponding safety analysis. For example, if a railroad were to utilize an electronic brake system, it must ensure compliance with § 238.105 if deemed-safety critical.
Proposed paragraph (xi) would require the railroad to identify the worst-case grade condition for which the Tier III trainset must be secured.
In relation to § 238.751, proposed paragraphs (xii) and (xiii) would require the railroad to outline the functionality of the cab alerter system, and its integration with the braking system. Specifically, paragraph (xii) proposes to require the railroad to establish the parameters and scenarios in which the engineer must acknowledge the alerter, including which actions reset the timing, and which actions would be
The remaining items proposed under paragraphs (d)(2)(xiv) through (xvi) are for optional features that a railroad may elect to include on Tier III rolling stock based on service-proven experience. If the railroad elects to use a technology other than a standard alerter pursuant to § 238.751(e), plans to utilize a feature to dim headlights for extended periods of time on Tier III dedicated rights-of-way pursuant to proposed § 238.767(c), or utilizes a flashing rate other than what is described in proposed § 238.769(b)(2)(i), then it would be required to comply with the requirements specific to each alternate technology as described in proposed paragraphs (d)(2)(xiv), (xv), and (xvi), respectively.
Proposed paragraph (e) outlines the means by which a railroad would be required to demonstrate compliance with the structural carbody design and crashworthiness requirements contained within parts 229 and 238, as applicable. This proposed paragraph would effectively codify FRA's longstanding guidance on the matter, and what the RSAC considered to be industry “best practice.” Specifically, proposed paragraph (e)(1) would make clear that compliance may be demonstrated by any appropriate combination of full-scale testing, validated computer modeling (
Designs incorporating dynamically activated CEM components may require additional scrutiny. In practice, some combination of all three is typically provided to establish compliance with structural and crashworthiness requirements. For example, a full-scale test could be used to demonstrate the strength of a collision post, but because this test involves the ultimate load of the material it may not be desirable or safe to conduct a full-scale test where plastic deformation, or even structural failure, would be possible. Consequently, computer modeling and engineering calculations may be used to predict the physical performance of collision posts under certain load conditions, but such modeling must be validated. To this end, testing may also be performed within the elastic-plastic range and, if the model shows good correlation to real-world testing under the same load conditions, FRA would consider the validated model to serve as an adequate demonstration of compliance for loading scenarios that are impractical or unsafe to test at full-scale. Because testing plays such a vital role to compliance demonstration, FRA seeks to ensure close coordination with railroads and their suppliers when such testing is required, especially where complex computer models require validation.
Proposed paragraph (e)(2) outlines the documentation expectations and FRA notification requirements when carbody or structural component testing would be necessary for new, re-built, or substantially modified passenger equipment. Because designs that utilize CEM components rely on the dynamic-plastic deformation of structural components in a predictable and controlled manner, Tier I alternative, Tier II, and Tier III passenger equipment that incorporate such technology would require additional scrutiny. As these designs require models that are used to analyze loading conditions that are more complex than simple, quasi-static loads, to ensure that adequate validation of such models is performed, FRA would require that carbody and crashworthiness test procedures associated with such equipment be submitted to FRA prior to any test being conducted for compliance purposes, as proposed under paragraph (e)(2). Under this proposal, FRA would notify the railroad if FRA intends to witness the test. This would not prohibit a railroad or supplier from conducting preliminary or “proof of design” testing without submitting the test procedures to FRA, provided such testing is not intended for validation or compliance demonstration purposes.
To address common interpretation issues related to passenger equipment safety appliances, FRA is proposing to mandate its otherwise voluntary, sample-equipment inspection process as part of proposed paragraph (f). To ensure consistency, the railroad would be required to submit designs for FRA review of all new passenger equipment or modified equipment that include carbody or structural modifications affecting the design of existing safety appliances, proposed to be validated as part of the sample-equipment inspection conducted in accordance with proposed paragraph (g)(2).
Proposed paragraph (g)(1) outlines the process and procedures for submittal and approval of design review, testing, and inspection documentation. FRA proposes to notify the railroad whether the submission is approved or disapproved within 60 days of the submission to FRA. Of particular note are the timeframes for document submission, and associated approval or disapproval, for each type of request. FRA invites comments on the practicality of these timeframes and whether approval of this documentation is necessary in all cases or at all.
Proposed paragraph (g)(2) contains the procedures for the sample-equipment inspection. Though this is commonly known as a sample-car inspection, FRA is proposing to call it a sample-equipment inspection to include different types of equipment that might not be considered a “car,” per se (
Proposed paragraph (g)(2)(ii) details the procedures to be followed should FRA take exception during the inspection. Proposed paragraph (g)(2)(iii) explains that should FRA take no exceptions during the inspection, FRA would provide the railroad with an inspection report stating as such.
With the proposed addition of § 238.110, FRA is proposing to revise § 238.111 to focus primarily on the activities associated with dynamic “on-track” testing and commissioning procedures that occur during the later stages of a project. These dynamic tests typically occur when prototype or production trainsets are ready to operate over the general railroad system.
Through the separation of static design and dynamic commissioning phases of rolling stock compliance with §§ 238.110 and 238.111, respectively, more clarity can be given to the process of assuring that passenger rolling stock is ready for revenue service. FRA envisions that initially the railroad would look to proposed § 238.110 to ensure compliance with static design
Regardless, FRA intends that the railroad make use of the combined, pre-revenue planning process under §§ 238.110 and 238.111 to ensure that adequate testing occurs before production sets of equipment types leave the manufacturing facility, so that compliance and quality issues can be addressed by the manufacturer before moving too far ahead into dynamic testing, and thus limiting such issues to initial prototype units. This approach would allow certain elements to be separated so that railroads and manufacturers can take a more focused approach to compliance assurance and commissioning, thereby also allowing railroads to produce a more focused plan for the final stages of testing and commissioning of passenger rolling stock as part of their pre-revenue service acceptance test plans.
While the individual requirements within this section are intended to capture important elements to help validate and document compliance, of equal importance is the planning aspect of the section. FRA would require that railroads use the development and execution of their pre-revenue service acceptance test plans to take a holistic view of their testing and commissioning programs so as to provide both FRA, as well as themselves, insight as to how the various tests and validations would be organized and executed in an effective manner. So, while part of the effort intended by this proposed language is to identify all of the tests that need to be performed before a vehicle can enter revenue passenger service, FRA also would require that the railroad identify how all of these tests relate to each other and other activities that must occur (required preceding events), and the logical order in which they should occur.
Using qualification under § 213.345 as an example, a railroad must consider what core tests should be performed before high-speed testing begins (
Under this proposed revision, this section would remain divided primarily between requirements for “new” equipment that has never been used in revenue service before within the United States, and requirements for “existing” equipment that is, or has been previously, used within the United States. However, FRA is proposing significant revisions to this section to capture current practice for vehicle dynamic testing and qualification.
The first such significant revision is based on an RSAC recommendation, preferring that the requirements for “new” vehicles be outlined first, because they are more comprehensive. Thus, FRA is proposing to reorganize the language so that the requirements for “new” equipment are covered first, under paragraph (a) rather than as currently addressed under paragraph (b), and the less comprehensive requirements for “existing” equipment are moved to paragraph (b), rather than as currently addressed under paragraph (a). FRA notes, however, that this reorganization could lead to confusion for plans developed prior to the proposed publication of a final rule. While FRA does not foresee this as a problem for the execution of the intent of these requirements, it welcomes comment on whether this reorganization may pose any potential concerns and, if so, invites any potential solutions.
The fundamental requirements of this section would be contained in proposed paragraph (a)(1), which is based on current paragraph (b)(1). This proposed language outlines the minimum content that a railroad would be required to provide as part of a pre-revenue service acceptance testing plan (test plan or testing plan).
Proposed paragraphs (a)(1)(i) and (ii) would require the railroad to identify the physical characteristics and salient features that define both the equipment and its intended operating environment, respectively. The railroad should consider the equipment and its operating environment as parts of a whole within a systems approach to safety. In effect, these two proposed paragraphs ask the railroad to capture the “control” variables of the system whose configurations may have measurable effects on the performance of the passenger equipment and its overall safety. Items such as the wheel profile, axle and truck spacing, suspension characteristics, braking rates, mass, and center-of-gravity are just some examples (but in no way an exhaustive list) of the types of vehicle characteristics that must be identified under proposed paragraph (a)(1)(i) that can profoundly affect the safe performance of rolling stock. Similarly, the rail profile and cant, special trackwork geometry, maximum grade, effective track moduli, and signaling and grade crossing technology interfaces are just some examples of the characteristics of the operating environment for which the equipment's performance is being validated against, which would also be appropriate to identify under the requirements of the railroad's system description developed pursuant to § 238.110.
This “systems” perspective is key to the intent of §§ 238.110 and 238.111, as it would not only help the railroad establish and document the safety of the equipment, but also the equipment's known and proven configurations and operating conditions, such that a railroad may be able to identify any additional tests that may need to be performed if a vehicle characteristic is changed, or a vehicle is to be operated in a different environment with unproven characteristics (
As the test plan is intended to be an umbrella plan to capture all of the necessary tests needed to demonstrate regulatory safety compliance for passenger equipment, this should include any waivers that are anticipated to be required, even if that test is part of a separate testing approval,
Proposed paragraph (a)(1)(iv) would require the railroad to identify the maximum speed and cant deficiency at which the equipment is intended to operate, as well as any intermediate qualifications it anticipates requesting prior to achieving the intended
Proposed paragraphs (a)(1)(v) through (vii) represent the core of the test plan. These proposed paragraphs are intended to capture the railroad's overall testing and commissioning plan and tie these tests to the procedures and records associated with them. FRA would caution the railroad or manufacturer not to overthink this critical part of the proposed regulation, as a simple table may be used to fulfill the requirements of these three proposed paragraphs. What matters most would be the information ascertained by the railroad pursuant to these paragraphs, and there would be no need for narrative or explanations if a succinct format such as a table or matrix is used.
More specifically, proposed paragraph (a)(1)(v) would require the railroad to provide a list of the tests to be conducted as part of its dynamic testing and commissioning phase. This list can be inclusive of all the tests expected to be performed or focused solely on those tests related to demonstrating compliance with regulatory requirements, as outlined in proposed paragraphs (a)(1)(vii)(A) through (D). The railroad should present these tests in some logical order, either chronologically, or by sub-system. Any interdependencies or predecessor requirements (such as waivers or certifications) should also be identified for each test.
The identification of predecessors is critical, as it would help all parties understand the critical path to completion of the testing and commissioning process and should logically tie to the estimated schedule proposed paragraph (a)(1)(vi) would require. FRA notes that the schedule identified in proposed paragraph (a)(1)(vi) is intended only to be an approximation, such as the month in which a test is to occur and anticipated duration, so that FRA can plan for resource needs to observe the testing, as appropriate, as the test program is executed. These dates can be modified as the test program matures, particularly if issues or delays occur. If this information is managed through a table or matrix, as suggested, it can be easily updated and provided to FRA, without modifications to the entire test plan.
Whereas proposed paragraphs (a)(1)(v) and (vi) would be used for planning purposes, the content of proposed paragraph (a)(1)(vii) is intended more for execution and recordkeeping. Proposed paragraph (a)(1)(vii) would require the railroad provide a list of all applicable test procedures and reports (including test results and post-test analysis, if required) associated with each test. Because this information may not be readily available at the time the initial plan is developed and provided to FRA, it would be acceptable if the information relevant to proposed paragraph (a)(1)(vii) is left blank until it becomes available. That is, FRA would expect the initial submission to include all information relevant to proposed paragraphs (a)(1)(v) and (vi), but except for any test procedures already developed, the information relevant to proposed paragraph (a)(1)(vii) may need to be supplied as the test program is executed. Further, because this document is intended to serve both for planning purposes and record documentation, it is understood that this would be a “working” document during the testing and commissioning phase.
Proposed paragraphs (a)(1)(vii)(A) through (D) of this section would provide a list of the safety-critical subjects that must be addressed in the railroad's test plan, and any relevant regulatory references. As stated previously, the railroad's test plan can include all the tests intended to be performed, or it can be focused on just those tests relevant to the regulatory requirements. Regardless of which approach is taken, those tests and documents that are intended to demonstrate compliance with one or more regulatory requirements should be clearly identified.
Proposed paragraph (a)(2) would provide the process by which a test plan required under proposed paragraph (a)(1) would be submitted. Because separate approval is necessary for high-speed operations (including testing approval), and final approval is required before Tier II and III trainsets may enter into service, FRA is proposing that pre-revenue test plans need only be submitted to FRA for review and awareness—not for approval. This would be consistent with how the process applies to Tier I passenger equipment today. FRA welcomes comments as to the necessity of this process and whether there is value in FRA explicitly approving such plans.
Proposed paragraph (a)(3) would require that test procedures included in the railroad's test plan contain at least the minimum information as further detailed in proposed appendix K to part 238.
FRA is not proposing to approve individual test procedures as recommended by the RSAC, as FRA does not see the utility in doing so. Instead, FRA is proposing that test procedures be made available to FRA upon request under proposed paragraph (a)(4). FRA believes this would have no impact on its ability to conduct audits of test procedures in advance of testing (particularly those tests that it intends to witness) and would, instead, likely remove a significant burden for both industry and FRA. Because current practice for most procurements is to have project documentation, such as test procedures, uploaded to a central, secure website where FRA and other stakeholders have access, allowing FRA to review test procedures when they become available and provide feedback as necessary would obviate the need for FRA approval.
Proposed paragraph (a)(5) would make clear that a railroad must adopt and comply with its own test procedures. Because many of the minimum requirements for procedures outlined in proposed appendix K to part 238 are intended to ensure tests are performed safely, and that records provide adequate documentation for showing compliance, tests that are not performed appropriately may necessitate re-testing.
Proposed paragraphs (a)(6) through (8) outline the process by which FRA would determine if the passenger equipment is ready to be entered into revenue service. It is based on current § 238.111(b)(4), (5), and (7). This process is intended to culminate the efforts resulting from §§ 238.110 and 238.111 and consider the railroad's and supplier's efforts in demonstrating compliance with the passenger equipment safety standards. Proposed paragraph (a)(6)(i) would require test results for Tier I equipment be made available upon request by FRA, with proposed paragraph (a)(6)(ii) requiring test results for Tier II and Tier III equipment to be submitted to FRA at least 60 days prior to the equipment being placed in revenue service. FRA notes that this timeframe may be longer or different, as appropriate, should the railroad also need to complete new passenger service pre-revenue safety demonstration under proposed § 238.108. Additionally, FRA notes that
Proposed paragraph (a)(7) mirrors current § 238.111(b)(5) without substantive change, and FRA would accordingly rely on the substantive discussion contained in the May 1999 and November 2018 final rules.
Under proposed paragraph (a)(8), explicit approval to operate in revenue service would be required for only Tier II and Tier III equipment, as currently required under § 238.111(b)(7), and FRA would also rely on the substantive discussions in the May 1999 and November 2018 final rules in this regard.
Proposed paragraph (b) contains the pre-revenue testing and commissioning requirements for equipment that has been previously used within the United States. As discussed, these requirements are currently contained under § 238.111(a). The RSAC recommended that the requirements for new and previously used equipment be swapped in order to better reflect the order in which these requirements would be applied in practice, and the fact that new vehicles, by nature, have more requirements that must be met. FRA invites comment on this proposed change.
FRA is proposing to expand the requirements for vehicles that have been previously used in revenue service in the United States. Under paragraph (b)(1), the railroad would be required to verify the applicability of previous tests performed under paragraphs (a)(1)(vii)(A) through (D) of this section and perform such tests if previous test data does not exist, cannot be obtained, or does not support demonstration of safe operation within the intended operating environment. Additionally, proposed paragraph (b)(2) contains a record retention requirement, with proposed paragraph (b)(3) detailing what equipment would be considered previously used in revenue service.
Proposed paragraph (c) outlines the regulatory requirements for any modifications, major upgrades, or introduction of new technology on passenger equipment that is currently in revenue service. The proposed language establishes the scope of any pre-revenue testing, which would be expanded to include Tier I equipment, limited to only those safety-critical systems, sub-systems, or functionality that may be affected by the introduction of the changes or new technology. As always, FRA would encourage railroads and suppliers to reach out to FRA if there are any questions as to what the scope of this testing should include.
FRA is proposing to revise this section by adding new paragraph (c). Under proposed paragraph (c), FRA would include additional requirements for periodic inspection of emergency lighting systems pursuant to sec. 22406 of the IIJA. For consistency, the periodic inspection requirements for this paragraph are modeled after similar requirements for emergency windows in § 238.113. Like the requirements for emergency windows, FRA would expect the railroad to develop an inspection plan designed to capture a representative sample of the emergency lighting system designs used throughout its fleet. In this regard, cars of similar construction may still require unique sample sets, if the design and components are materially different.
These proposed requirements, which would be in addition to the existing periodic inspection requirements specified under § 238.307(c)(5)(i), are intended to ensure that emergency lighting systems function as intended in accident scenarios, taking into consideration the operational conditions that might impact the performance of emergency lighting and associated electrical systems, particularly backup power supplies. An emergency lighting system may be compliant, by design, but fail if activated during revenue operations due to insufficient charging of the backup power supply. For example, to conserve fuel, many railroads turn off head-end power (HEP) on consists after their last revenue run. If the same consist is not provided sufficient time to charge its back-up power system before it is placed back in revenue service, the emergency lighting system may fail to meet the performance requirements of § 238.115. The railroad would be required to take into consideration these operational factors when determining an appropriate sampling method. FRA is also seeking comment on whether public address or emergency intercom systems should also have a similar testing requirement, as they are often powered by the same back-up power supply.
FRA is proposing to revise paragraph (a)(1) of this section, which describes certain requirements applicable to safety systems for powered exterior side doors. The proposed revisions address new door designs in high-speed trainsets, and specifically address trainsets equipped with plug-type exterior side doors that do not provide a minimum 1.5-inch gap at the leading edge of the door when the emergency release is activated. These proposed revisions would also permit a speed interlock preventing operation of the emergency release mechanism while the vehicle is moving.
For equipment with plug-type exterior side doors, the proposed revision to
Proposed paragraph (a)(1)(i) describes the proposed requirements for the visual instructions, operation, and functionality of the emergency release mechanism for the plug-type exterior side door. It also proposes a requirement that some form of feedback must be provided to the passenger to alert the passenger that the emergency release mechanism has actuated. For example, a light activating over the door, or a sound played over a speaker in close proximity to the door, or a combination thereof, may satisfy the feedback requirement.
Proposed paragraph (a)(1)(ii) would establish requirements for the activation of the emergency release mechanism, specifying that activation must not require electric or pneumatic power and that access to the device not require the use of tools or other implements. This proposed paragraph also contains requirements specifying the appropriate amount of force necessary to activate interior and exterior emergency release mechanisms, along with requiring a manual resetting of the device.
Proposed paragraph (a)(1)(iii) would permit a speed interlock preventing operation of the emergency release mechanism when the vehicle is moving.
In proposing to revise paragraph (a)(1), FRA is considering further revisions regarding movements of locomotive consists within a yard, when those locomotives are not connected to passenger cars. There may be situations where traction power to the locomotives is inhibited by the door system as the door system may not be able to distinguish between the absence of passenger cars and an exterior side door being open. FRA invites comment on this issue.
As proposed, this section would adopt the general structure of § 213.345 of this chapter, which generally provides vehicle/track qualification requirements for equipment operating on FRA track Class 6 and above (or at speeds producing high cant deficiencies), for passenger equipment operating on lower-speed track classes. Similar to § 213.345, this new section would require demonstration that the equipment can operate safely and within the vehicle/track interaction safety limits specified in § 213.333 either through dynamic testing only, or through a combination of testing and simulations. A major tenet of this proposal is to provide transferability of vehicle qualification through the use of testing and simulations so that when moving equipment from one part of a system to another, or to another railroad's system, certain testing under § 238.111 does not need to be repeated. In this regard, this proposed section would serve as an extension and clarification of pre-revenue service acceptance testing under § 238.111, helping to provide greater specificity as to the pre-revenue service acceptance testing requirements with respect to vehicle/track qualification.
FRA makes clear that the proposed requirements of this section in no way modify or supplant the testing requirements in § 213.345; § 213.345 applies on its own and must be complied with when necessary. This proposal is to be complementary to § 213.345, filling the gaps in stability testing for passenger equipment not addressed under § 213.345. Specifically, and further discussed below, this section would address gaps in testing for new equipment through Class 5 track speeds and 6 inches of cant deficiency, and for previously qualified equipment through Class 6 track speeds and 6 inches of cant deficiency by adding, as an alternative, requirements for demonstrating compliance through dynamic testing over a representative segment of the route and minimally compliant analytical track (MCAT) simulations.
As discussed elsewhere, this section presents two paths for demonstrating compliance with the safety limits of § 213.333, as part of the pre-revenue service acceptance testing process. A railroad could elect to measure carbody and truck accelerations over the entirety of the system the vehicle is intended to operate (which is what is currently required), or it could measure those same accelerations over a representative segment of the system coupled with MCAT simulations. If a railroad elects the former, the resultant qualification would be applicable only for the territory over which compliance was demonstrated. If a railroad elects the latter path, then that resultant qualification under this section would be transferable to a new territory so long it was for the same FRA track class and cant deficiency. With that said, however, should a vehicle be subject to high-speed qualification testing under § 213.345, those requirements in § 213.345 apply regardless of the path chosen under this section.
FRA invites comment whether this section should cross-reference the suspension system safety requirements in § 238.227, whether § 238.227 requires any conforming changes, or whether any other changes are necessary in establishing the requirements proposed in this new section, including changes to part 213 of this chapter. FRA also invites comment on the nature of any such changes and, as appropriate, may provide for them in the final rule.
Under paragraph (a), FRA proposes that, for qualification purposes, the safety of the equipment must be demonstrated in an overspeed condition not to exceed 5 mph above the maximum proposed operating speed as specified in paragraph (a)(1). Proposed paragraph (a)(2) would require that the testing be conducted on track meeting the track safety requirements specified under part 213 for the class of track over which the equipment would operate, with an allowance for qualification testing to be conducted at a speed greater than that specified for the class of track should the combination of the proposed maximum operating speed and overspeed testing requirement exceed the maximum authorized speed for that track class.
Paragraph (b) would address the qualification of existing vehicle types and provide that such vehicle types previously qualified or permitted to operate be considered qualified under the requirements of this section for operation at the previously operated speeds and cant deficiencies over the previously operated track segment(s). FRA makes clear that this qualification applies only for operation over the previously operated track segment(s) and does not confer transferability of such qualification. To operate such vehicle types over new routes (even at the same track speeds and cant deficiencies), the qualification requirements contained in other paragraphs of this section must be met, in addition to any other applicable testing and qualification requirements.
Proposed paragraph (c) would contain the requirements for qualifying new vehicle types (or vehicle types previously qualified according to paragraph (b) for operation over new track segments). For clarity, FRA intends that vehicles being qualified under this proposed paragraph be tested under the requirements of this section through track Class 5 speeds and 6 inches of cant deficiency in addition to any testing required under part 213 of this chapter. This means that the
Paragraph (c)(1)(i) would describe the proposed testing procedure for new vehicle types at track Class 1 speeds. The procedure described is aligned with FRA Safety Advisory 2013-02: Low-Speed, Wheel-Climb Derailments of Passenger Equipment With “Stiff” Suspension Systems (Safety Advisory).
Paragraph (c)(1)(i) would also require demonstration of compliance with APTA PR-M-S-014-06, Rev. 1, “Standard for Wheel Load Equalization of Passenger Railroad Rolling Stock,” Authorized June 1, 2017, which is accomplished by static testing to demonstrate that wheel unloading does not exceed the limits prescribed in the standard. FRA is proposing to incorporate by reference this APTA standard into this paragraph. APTA PR-M-S-014-06 establishes static wheel load equalization requirements to provide passenger equipment with the wheel unloading characteristics necessary to reduce the risk of low-speed wheel climb derailments. It also provides the test conditions, equipment, and procedures necessary to demonstrate compliance with the enumerated static wheel load equalization requirements. APTA PR-M-S-014-06 is reasonably available to all interested parties online at
FRA notes that APTA recently came out with a standard for evaluating low-speed vehicle curving performance of railroad passenger equipment, APTA PR-M-S-031-22, which follows the intent of FRA's Safety Advisory and provides additional detail on conducting simulations to evaluate curving performance. FRA therefore invites comment whether the final rule should reference APTA standard PR-M-S-031-22 in this section and on the effect it should be given.
Proposed paragraph (c)(1)(ii) specifies the testing necessary to demonstrate compliance with the safety limits in § 213.333 at speeds from track Classes 2 through 5 and up to 6 inches of cant deficiency. In order to be qualified under this section, a railroad must perform simulations, as specified in proposed paragraph (c)(2), in addition to the carbody and truck acceleration measurements under proposed paragraphs (c)(3) and (4) respectively. The results of simulations and dynamic testing must demonstrate that the safety limits in § 213.333 are not exceeded. This proposed paragraph would also provide a mechanism for transferability of the qualification under this proposed section to allow operation of previously qualified vehicles over new track segments at the same class of track and cant deficiency. This proposed paragraph would not provide transferability of any qualification conferred under § 213.345, however.
Again, FRA makes clear that the requirements of this section are intended to be complementary to those requirements found under § 213.345. FRA recognizes that in some scenarios, there may be overlap between the requirement proposed under this section and those under § 213.345. For example, when attempting to qualify a new vehicle type for operation at Class 4 track speeds, where up to 6 inches of cant deficiency would be produced, § 213.345 would require the use of carbody accelerometers and the performance of a lean test. As proposed, when attempting to qualify the same new vehicle type for the same service, this proposed section would also require the use of carbody accelerometers, in addition to truck accelerometers and MCAT simulations. So, while there may be overlap in certain requirements between these proposed requirements and existing requirements under part 213 (such as the use of carbody accelerometers), FRA views any as harmonious. The new vehicle type being qualified in this scenario would be subject to the following requirements: a lean test, the use of carbody and truck accelerometers, and MCAT simulations, with the testing and simulations starting at Class 2 track speeds and 3 inches of cant deficiency. FRA does invite comment, however, on whether there are any possible scenarios where there could be a conflict.
Paragraph (c)(2) describes the analysis procedure that is to be performed using an industry-recognized methodology. The analysis considers the vehicle under evaluation operating on analytically defined track segments representing minimally compliant track conditions as defined in appendix C to this part, and a track segment representative of the route over which the vehicle is to operate. These requirements are reflective of similar requirements in § 213.345 for track Class 6 and greater, but do not replace the testing and analysis required under § 213.345. This paragraph also requires a linear system analysis to identify the frequency and damping of the truck hunting modes. Damping of these modes must be at least 5%, up to the maximum intended operating speed + 5 mph considering equivalent conicities starting at 0.1 up to 0.6. The conicities range proposed is based on conicities prevalent on the Northeast Corridor. FRA invites comments on whether this proposed range is appropriate.
Proposed paragraphs (c)(3) and (4) would require representative route testing for all operations at track Class 2 through 5 speeds and up to 6 inches of cant deficiency. Testing shall include measurements of carbody lateral and vertical accelerations and truck lateral accelerations that must not exceed the safety limits specified in § 213.333.
In paragraph (d), FRA proposes to separate and explicitly define the qualification requirements for vehicle types previously qualified by simulation and testing under paragraph (c) of this section intended to operate on new track segments as defined in paragraphs (d)(1) through (3). FRA notes simulations are especially useful for demonstrating that, when qualified vehicles are intended to operate on a new route, the new vehicle/track system is adequately examined for deficiencies prior to revenue service operation.
Paragraph (d)(1) addresses vehicle types previously qualified in accordance with paragraph (c). These vehicles may be operated on other routes with the same track class designation and at the same or lower cant deficiency without additional testing, simulations, or FRA approval.
For vehicle types operating at speeds not to exceed Class 6 track speeds or at curving speeds producing greater than 5 inches of cant deficiency, but not exceeding 6 inches, paragraph (d)(2) would require that qualification testing on a representative segment of the new route be performed to demonstrate that the carbody lateral and vertical acceleration limits in § 213.333 are respected.
Proposed paragraph (d)(3) would require vehicle types that are previously qualified by testing alone to be subject to the requirements of paragraph (c) for new equipment.
Paragraph (e) would provide requirements for the content of the qualification testing plan, which would
As proposed, the test program would establish a program of tests that permit identification of the operating limits of the vehicle/track system and would include, as identified in the following proposed paragraphs: under (e)(1), a description of the representative segment of the route over which the vehicle is intended to be operated; under (e)(2), consideration of the operating environment during qualification testing, including operating practices and conditions, the signal system, highway-rail grade crossings, and trains on adjacent tracks; under (e)(3), identification of the maximum angle found on the gage face of the designed (newly profiled) wheel flange referenced to the axis of the wheelset (the wheel flange angle would be used to determine the Single Wheel L/V Ratio safety limit specified in § 213.333); under (e)(4), identification of the target maximum testing speed in accordance with paragraph (a) of this section and the maximum testing cant deficiency; and under (e)(5), the results of vehicle/track performance simulations required by this section.
Proposed paragraph (f) would contain the requirements for conducting the two-stage qualification testing upon FRA approval of the qualification test plan. The two-stage testing approach permits assessment of safe vehicle operation on tangent and curved track segments individually as the test speed is incrementally increased.
Stage-one testing, proposed under paragraph (f)(1), would require that for testing on tangent track (proposed under paragraph (f)(1)(i)), test speed is incrementally increased from maximum speeds corresponding to each track class to the target maximum test speed. Under paragraph (f)(1)(ii), testing speeds for curved track would start at that speed necessary to produce 3 inches of cant deficiency and would be incrementally increased until the maximum testing cant deficiency is achieved. The target maximum test speed and maximum testing cant deficiency are specified in the test plan. Incrementally increasing the testing speed would allow for assessment of the dynamic response of the vehicle with respect to the vehicle/track interaction safety limits specified in § 213.333 of this chapter and establish the maximum safe speed and cant deficiency.
Under paragraph (f)(2), FRA proposes requirements for stage-two testing of the vehicle over the representative segment of the route. As proposed, stage-two testing can begin only when stage-one testing has successfully demonstrated a maximum safe operating speed and cant deficiency. Under these proposed requirements, two round-trips over the representative segment of the route are required: the first is at the speed for which the railroad is seeking FRA approval for service (which may be limited by the results of stage-one testing); the second is performed at 5 mph above this speed. The orientation of the equipment (in the direction of travel) is to be reversed for each leg of the round-trip.
Under proposed paragraph (f)(3), if during stage-one and -two testing, any of the monitored safety limits are exceeded on any segment of track, testing may continue provided that the track location(s) where any of the limits are exceeded be identified and test speeds be limited at the track location(s) until corrective action is taken. Corrective action may include making an adjustment in the track, in the vehicle, or in both of these system components.
Proposed paragraph (f)(4) would require that Track Geometry Measurement System (TGMS) equipment be operated over the intended test route (the representative segment of the route) within 30 days prior to the start of the testing, to help ensure the integrity of the test results.
Proposed paragraph (g) would contain the requirements for reporting to FRA's Associate Administrator the results of the qualification testing program. The qualification test report must include all results obtained during the qualification test program. When simulations comprise a portion of the report, comparisons of the simulated accelerations to those measured during the testing must be submitted to demonstrate model validation. For purposes of model validation, the report should also include comparisons that demonstrate the accuracy of the model under various conditions, specifically: predicting the transfer of wheel loads when a vehicle is unbalanced, the transfer of wheel loads when the primary suspension is deflected to simulate twist or warp, and the frequency and damping ratio associated with dominant vehicle modes. FRA invites comment whether FRA should make these expectations explicit in the regulatory text for MCAT model validation under this part, and potentially under part 213 of this chapter as well. The qualification test report must be submitted no less than 60 days from the date the railroad intends to operate the equipment in revenue service.
Under paragraph (h)(1), FRA proposes to approve a maximum train speed and value of cant deficiency for revenue service, based on the test results and all other required submissions. FRA intends to provide an approval decision normally within 45 days of receipt of all the required information in the form of the qualification test report. FRA may impose conditions, as necessary, to help ensure safe operations at the maximum train speed and value of cant deficiency approved for revenue service.
Proposed paragraph (h)(2) would consider vehicle types previously qualified in accordance with paragraph (c) of this section for operations at Class 2 through 5 speeds, or at curving speeds producing up to 6 inches of cant deficiency, on one route to be approved for operation on another route at the same maximum speed and cant deficiency.
Proposed paragraph (i) makes clear that the documents required by this section must be provided to FRA by either: (1) the track owner; or (2) a railroad that provides service with the same vehicle type over trackage of one or more track owner(s), with the written consent of each affected track owner. For example, Amtrak is a railroad that provides passenger service over trackage often owned by other entities, usually freight railroads. Under this example, Amtrak would need the consent of the freight railroad (the affected track owner) to conduct the testing. This is to ensure that the track owner is fully apprised as to the status of the track owner's track in case any anomalies during testing should arise. In another example, Amtrak is also a track owner over whose trackage numerous passenger railroads operate, such as the Southeastern Pennsylvania Transportation Authority (SEPTA) and New Jersey Transit (NJT); under this scenario, Amtrak, as the track owner, would not need the consent of these railroads, but these railroads would
FRA is proposing to revise paragraph (a)(1) of this section to harmonize the language with other changes being proposed to part 238. Specifically, FRA would harmonize the language referencing the Safety Appliance Act (49 U.S.C. ch. 203) in an effort to make clear that Tier I equipment may follow either the current, legacy safety appliance requirements (49 CFR part 231, and §§ 238.229 and 238.230), or the proposed requirements under § 238.791. So, while the requirements of the Safety Appliance Act would continue to remain applicable, other means would be provided for complying with those statutory requirements.
Additionally, FRA proposes to correct a typographical error. Currently, this paragraph references § 232.2, which does not exist. FRA would correct that reference instead to § 232.3, the applicability section of part 232.
FRA proposes to amend paragraph (a) of this section to clarify that a Tier I alternative passenger trainset that complies with the requirements of proposed § 238.791 is not subject to the requirements of this section.
FRA is proposing to revise this section to identify the design standards for safety appliances on non-passenger carrying locomotives used in passenger service, in an effort to provide clarity and to remove the need for interpretation for the various requirements contained in 49 CFR part 231. Specifically, paragraph (a) proposes to clarify that these requirements are intended to apply to locomotives used in passenger service that utilize monocoque, semi-monocoque, or carbody construction common to most passenger road locomotives. FRA is inviting comment on this paragraph generally and, in particular, whether specific implementation dates are necessary (and, if so, what the implementation dates should be).
Because many of these proposed requirements were developed when the PSWG developed the safety appliances standards for Tier III trainsets (contained in proposed § 238.791), there is considerable overlap between the proposed requirements. Accordingly, FRA references proposed § 238.791 when provisions under this section are identical to those under § 238.791. In such situations, FRA relies on the analysis provided under § 238.791, rather than repeat it here.
Proposed paragraphs (b) through (e) of this section address attachment, fatigue life, handholds, and sill steps. The requirements proposed under each of these paragraphs are identical to the requirements under proposed § 238.791(b) through (e).
Proposed paragraph (f) contains the requirements for ground level access to (or egress to ground level from) the locomotive cab and other carbody side doors on a non-passenger carrying locomotive. This proposed paragraph contains the general requirement that exterior side locomotive cab access doors and other carbody side doors be equipped with appropriate safety appliances to permit safe access to the locomotive cab by employees and other authorized personnel from ground level. Because many passenger road locomotives do not utilize switching steps and platforms with external walkways, access to the locomotive cab or other compartments, or the locomotive's B end, is usually provided by an external door accompanied with a ladder and handhold arrangement. Accordingly, this proposed paragraph would provide the requirements for how such arrangements should be applied properly, based on the governing elements of part 231 and contemporary practice on diesel-electric and electric locomotives.
Proposed paragraph (f)(1) would provide the requirements for the number, location, dimension, and clearance for handholds at each ground level access location to the locomotive cab and other carbody side doors on a non-passenger carrying locomotive. These requirements would mirror similar provisions under proposed § 238.791(f). Additionally, proposed paragraph (f)(2) would make the requirements of proposed § 238.791(e)(2) and (3) applicable to steps at each of these locations.
Under proposed paragraph (g), concerning couplers on non-passenger carrying locomotives, FRA would make the coupler requirements of § 238.791(g) applicable to these locomotives.
Proposed paragraph (h) would provide requirements for uncoupling levers. As these requirements would very closely mirror similar requirements under proposed § 238.791(h), FRA relies on the same, supporting analysis. However, there is a notable difference between the two sections that should be highlighted. If a non-passenger carrying locomotive is equipped with a manual uncoupling lever, that lever must be operative from both sides of the locomotive, rather than just the left side of the equipment as proposed under § 238.791(h).
Proposed paragraph (i) would permit the coupler, end handholds, and uncoupling mechanism on the leading and trailing ends of a non-passenger carrying locomotive to be stored within a removable shroud to reduce aerodynamic effects. This mirrors the same requirement proposed under § 238.791(i).
Proposed paragraph (j) contains the requirement for a non-passenger carrying locomotive to be equipped with an efficient hand brake. This proposed paragraph also includes the term “parking” brake, acknowledging the brake's primary role on a locomotive as a device used to hold a locomotive or train at a static location, as opposed to a means to brake (slow or stop) the train, as applied to railcars before the wide adoption of pneumatic braking systems. In this respect, the proposed performance requirement based on a 3 percent grade, or the railroad's maximum grade (if greater), was also added to reflect common practice. This proposed requirement would mirror § 238.791(j).
Proposed paragraph (k)(1) provides for the arrangement of safety appliances on non-passenger carrying locomotives to facilitate certain maintenance tasks. Should a locomotive be equipped with appurtenances such as headlights, windshield wipers, marker lights, and other similar items required for the safe operation of the locomotive that are designed to be maintained or replaced from the exterior of the locomotive, then the locomotive must be equipped with handholds and steps meeting the requirements of this section to allow for the safe maintenance and replacement of these appurtenances. However, under proposed paragraph (k)(2), the requirements under proposed paragraph (k)(1) would not apply if railroad operating rules require, and actual practice entails, the maintenance and replacement of these components by maintenance personnel in locations that are protected by the requirements of subpart B of part 218 of this chapter and equipped with ladders and other tools to safely repair or maintain those appurtenances. The requirements of this proposed paragraph (k) mirror similar requirements proposed under § 238.791(k).
Paragraph (l) would require that any safety appliances installed at the option of the railroad must be approved pursuant to § 238.110.
This subpart contains requirements for railroad passenger equipment operating in a shared right-of-way at speeds not exceeding 125 mph and in an exclusive right-of-way without grade crossings at speeds exceeding 125 mph but not exceeding 220 mph. FRA proposes to revise the scope of this subpart by adding a reference to proposed § 238.110, to help clarify the compliance demonstration and approval process for this Tier III passenger equipment. FRA is also proposing to remove the undesignated center headings in this subpart (“Trainset Structure,” “Glazing,” “Brake System,” “Interior Fittings and Surfaces,” “Emergency Systems,” and “Cab Equipment”) to accommodate proposed additions and other changes.
In this section, FRA proposes safety performance standards for Tier III suspension systems. These performance standards would require a suspension system design that reasonably prevents wheel climb, wheel unloading, rail rollover, rail shift, and vehicle overturn to ensure safe, stable performance and ride quality. The proposed requirements are consistent with the general standards for high-speed trainsets adopted by the railroad industry and regulatory bodies around the world, and the overall approach is based on the suspension system safety provisions in existing §§ 238.227 and 238.427.
Proposed paragraph (a)(1) would explain the general requirements applicable to Tier III trucks and suspension systems and describe the different track conditions and characteristics that must be taken into account when determining compliance with these requirements. Proposed paragraph (a)(2) would clarify the applicability of part 213 to Tier III trucks and suspension systems subject to this section, both while in general operation and during the pre-revenue service qualification and revenue service operation stages of operations.
Paragraph (b) would prohibit Tier III trainsets from operating under conditions that result in a steady-state lateral acceleration greater than 0.15g, as measured parallel to the car floor inside the passenger compartment. This paragraph would also require that Tier III trainsets comply with the carbody acceleration limits specified in § 213.333.
Paragraph (c) describes the proposed lateral acceleration performance standards, with specific reference to the appropriate train monitoring system response to the detection of truck hunting and explains that compliance with this paragraph would be subject to the limits defined in § 213.333.
Paragraph (d) proposes limits for wheelsets based on the distances between wheel flanges. Notably, paragraph (d)(3) proposes that the back-to-back distance between flanges of two wheels on the same axle not vary more than
FRA invites comments on this proposed section, including comment specifically on the appropriate track conditions and characteristics to be included in determining compliance with this section.
Under this section, FRA proposes requirements for pilots, snowplows, and end plates on passenger equipment, which aim to serve the same purposes as § 229.123 of this chapter, with slight modifications to address the unique characteristics of Tier III passenger equipment and operations. The most significant difference between the proposed requirements for pilots, snowplows, and end plates on Tier III passenger equipment and similar requirements in § 229.123 would be the increase in the maximum clearance from six inches to nine inches for a lead vehicle equipped with an obstacle deflector or truck (bogie)-mounted wheel guard. FRA is proposing this modification based on industry input to address the greater vertical movement of the lead vehicle during higher-speed passenger operations.
Proposed section 238.725 would make applicable to Tier III trainsets the same minimum requirements for the use and placement of overheat sensors currently applicable to Tier II trainsets under § 238.428. Section 238.428 requires overheat sensors for each Tier II equipment wheelset journal bearing, placed either onboard the equipment or at reasonable intervals along the railroad's right-of-way. FRA invites comment on this proposed application to Tier III trainsets to monitor wheelset journal overheating.
FRA is proposing to add this section to address communication systems, to provide requirements for public address (PA) and intercom systems for Tier III trainsets. By adding these requirements, which FRA had intended to include in the 2018 final rule, FRA would harmonize the emergency communication requirements for Tier III trainsets with similar emergency system requirements (
With one exception, the proposed emergency communication requirements for Tier III trainsets would be the same as the existing emergency communication requirements in § 238.121 for passenger trainsets, as stated in proposed paragraph (a). The exception would be for emergency communication back-up power systems, permitting alternative crash loadings instead of those required in § 238.121(c)(2). This proposed exception is detailed in paragraph (b), under which a railroad may seek to use the loading requirements defined in Section 6.1.4, “Security of furniture, equipment and features,” of Railway Group Standard GM/RT2100, Issue Four, “Requirements for Rail Vehicle Structures,” Rail Safety and Standards Board Ltd., December 2010, which FRA proposes to incorporate by reference in this paragraph. In particular, these loading requirements are the same as those for alternatively demonstrating adequate attachment strength of emergency lighting back-up power systems in Tier III trainsets discussed in the 2016 NPRM and 2018 final rule under § 238.743.
Section 6.1.4 contains requirements for securement of furniture, on-board equipment, and other trainset features to help mitigate against injuries to passengers and crew from secondary impacts within the occupied volume. GM/RT2100 is available to all interested parties online at
In this section, FRA proposes requirements for emergency roof access to the cabs of Tier III trainsets. These requirements aim to ensure that the trainset design allows for proper roof access for rescue access purposes for cab occupants in Tier III trainsets. This emergency roof access point would be required only if trainset design does not allow cab occupants access to emergency roof access locations otherwise required in the passenger compartment of the trainset. The proposed requirements would also define the dimensions for the emergency roof access location while making specifically applicable paragraphs (b), (d), and (e) of § 238.123 (Emergency roof access).
Should train crewmembers occupying the Tier III cab have ready access to emergency roof access locations in the passenger compartment that comply with § 238.123, then the railroad would not need to comply with the requirements of this section, as the intent of the requirement (access to the roof of the trainset for cab occupants in emergency situations to facilitate rescue access) would be fulfilled. FRA also clarifies that the location of the emergency roof access point under this proposed section would not need to be directly over or into the cab, and could be a location behind the cab, so long as cab occupants have access.
Proposed § 238.755 is based on existing §§ 229.13, 229.41, and 229.45. Specifically, proposed paragraph (a) would cross-reference the requirements of § 229.41 for protection from personal injury. Proposed paragraph (b) would cross-reference the requirements of § 229.45, requiring that a Tier III trainset be free from conditions that would endanger the safety of the passengers, crew, or equipment. Moreover, FRA makes clear that it does not intend for this provision to be limited to the list of conditions identified under § 229.45. FRA would view other conditions not listed but still endangering the safety of passengers, crew, or equipment to be covered by this provision. Proposed paragraph (c) would make applicable the requirements of § 229.13 when multiple Tier III trainsets are coupled in remote- or multiple-control. FRA reiterates that although the term “locomotive” is used under § 229.13, the substantive requirements of this proposed paragraph are intended to be applied to Tier III trainsets, and thus should be read as such.
Under § 238.757, FRA is proposing requirements for Tier III trainset cabs, floors, and passageways, and is basing these proposed requirements on § 229.119. Proposed paragraph (a), based on § 229.119(a) and (i), contains the requirements for Tier III trainset cab doors. This paragraph proposes that such trainset cab doors be equipped with a secure and operable device to lock the doors from both the inside and outside without impeding egress from the cab.
Proposed paragraph (b), based on § 229.119(b), would require that Tier III end-facing windows located in the leading end of the trainset be free of cracks, breaks, or other conditions that obscure the view of the right-of-way for the crew from their normal positions in the operating cab.
Proposed paragraph (c) would make applicable to Tier III trainsets the requirements of § 229.119(c).
Proposed paragraph (d), based on § 229.119(g) and (h), would require that cabs of Tier III trainsets shall be climate-controlled, providing both appropriate heating and air conditioning. This proposed paragraph also states that the inspection, testing, and maintenance requirements for the heating and air condition system be specified in the railroad's ITM program.
Under § 238.759, FRA is proposing requirements to address trainset cab noise, which are based on § 229.121. Proposed paragraph (a), based on § 229.121(a), would establish a maximum noise threshold that occupants of a Tier III trainset may be subjected to (85 A-weighted decibels (85 db(A))); prohibit railroads from modifying the cab in a manner that would cause the noise to exceed the maximum level; and require railroads to follow the testing protocols, outlined under proposed appendix I to part 238 (discussed further, below), to verify that the noise levels within the cab do not exceed the maximum level. Proposed paragraph (b) would contain the requirements addressing excessive noise reports. This paragraph is based on § 229.121(b) with minor editorial changes.
Under § 238.761, FRA is proposing a set of requirements addressing crewmember sanitation facilities, which are based on § 229.137. Proposed paragraph (a) would require that if a railroad provides a crewmember sanitation compartment, as that term is defined under § 229.5, accessible only to the crew onboard a Tier III trainset, that compartment must meet the requirements of § 229.137 and be maintained in accordance with § 229.139. However, under proposed paragraph (b), should a railroad not provide such a sanitation compartment exclusively for crewmembers on board its trainset, the railroad would be required to provide access to sanitation facilities in accordance with § 229.137(b)(1)(i) in that employees should have ready access to railroad-provided sanitation facilities external to the trainset or sanitation facilities elsewhere on the trainset.
Again, FRA reiterates that although the term “locomotive” is used under § 229.137, the substantive requirements of this proposed paragraph are intended to be applied to Tier III trainsets, and thus should be read as such.
Under § 238.763, FRA is proposing requirements addressing speed indicators for Tier III trainsets. Although these requirements are based on § 229.117, the requirements for speed indicators being proposed mark a significant departure from the traditional requirements under part 229. Proposed paragraph (a) provides that all Tier III trainsets be equipped with speed indicators, clearly readable for the engineer's normal position. Notably, the accuracy requirements under proposed paragraph (a)(1) would represent the biggest modification of the speed indicator requirements. Under this proposal, a Tier III speed indicator would be required to be accurate to within plus or minus 1.24 mph for speeds not exceeding 18.6 mph.
Proposed paragraph (b) would require that the speed indicator output (what the engineer sees) be based on a system of independent, onboard speed measurement sources to comply with the accuracy requirements of proposed paragraph (a). At a minimum, FRA would expect that, from whatever source the speed is derived, there would be multiple (at least two) inputs provided by different sensors to ensure the accuracy of the speed as displayed to the engineer.
Proposed paragraph (c) permits the railroad to define the calibration frequency for the speed indicator in its ITM program.
Under this section, FRA is proposing a set of requirements addressing event recorders for Tier III trainsets. The requirements, as proposed, largely follow the event recorder requirements under § 229.135. However, FRA has made some changes to account for the different technology. Notably, under proposed paragraph (a), which would contain the general requirement that all Tier III trainsets be equipped with an in-service event recorder and is based on § 229.135(a), FRA would not require railroads to note the mere presence of an event recorder on FORM FRA F6180-49A or other record, as all Tier III trainsets would require event recorders.
Proposed paragraph (b) contains the specific data elements to be recorded by the event recorder and the level of recording accuracy necessary. Notably, proposed paragraph (b)(2) outlines the data elements to be recorded. This paragraph would cross-reference a large majority of data elements contained in § 229.135(b)(4), specifically, § 229.135(b)(4)(i) through (xv), (xvii), (xx) and (xxi). In addition, proposed paragraph (b)(2) lists several more data elements that are tailored toward Tier III trainsets, such as: the application and operation of the eddy current brake, if equipped ((b)(2)(i)); a passenger brake alarm request ((b)(2)(ii)); a passenger brake alarm override ((b)(2)(iii)); the activation of the bell ((b)(2)(iv)); and the trainset brake cylinder pressures ((b)(2)(v)). Finally, proposed paragraph (b)(2) would require the recorded data to be retained on a certified crashworthy event recorder memory module that meets the requirements of appendix D to part 229 of this chapter.
Proposed paragraph (c), which is based on § 229.135(c), would require that when an in-service event recorder is taken out of service, the date the device was removed from service would be annotated in the trainset's maintenance records, required in accordance with proposed § 238.777.
Proposed paragraph (d), which is based on § 229.135(d), would permit a Tier III trainset on which the event recorder has been taken out of service to continue in service only until the next pre-service inspection, as required by the railroad's ITM program under proposed § 238.903(c)(2).
Proposed paragraph (e) would make applicable to Tier III trainsets the requirements set forth in § 229.135(e) through (g).
Proposed paragraph (f) would require that event recorders be tested at intervals not to exceed 368 days, in accordance with § 229.27(c).
FRA again reiterates that although the term “locomotive” is used under § 229.135, the substantive requirements of this proposed paragraph are intended to be applied to Tier III trainsets, and thus should be read as such.
Under this section, FRA is proposing requirements for Tier III trainset headlights. As proposed under paragraph (a), each end of a Tier III trainset would be required to be equipped with a headlight comprised of at least two lamps that meets the angular, intensity, and illumination requirements of § 229.125(a).
Proposed paragraph (b) would prohibit Tier III trainsets from operating with a leading end in revenue service if a defective headlight is discovered during the pre-service inspection; under such circumstances, it would only be allowed to move in accordance with the requirements covering the movement of defective equipment under proposed § 238.1003(e). However, this proposed paragraph would permit continued operation of a trainset's leading end with a defective headlight if the defect is discovered while the trainset is in service in accordance with the requirements of proposed § 238.1003(b)(1) through (3).
Proposed paragraph (c) would permit the headlights of a Tier III trainset to be dimmed, which is consistent with existing § 229.125(c). However, because the headlight and auxiliary light standards are driven around the need for consistency and conspicuity when Tier III trainsets are used on a shared right-of-way, the performance requirements, themselves, would not directly address that it may be advantageous for a Tier III trainset to operate for extended periods of time with a lower candela setting. Specifically, whereas a conventional freight or passenger operation is likely to utilize the dim setting only when passing another train, idling, or as an alternative to marker lights, a Tier III trainset could operate for extended periods of time within a dedicated (and more protected) environment where the higher output may not be necessary or desired, particularly if the Tier III right-of-way is adjacent to or within a highway corridor. The use of this functionality, however, should be described by the railroad under proposed § 238.110(d)(2)(xv).
Proposed paragraph (d) would provide an allowance to use alternative lighting technology (
Under this section, FRA is proposing requirements addressing auxiliary lights for Tier III trainsets, based on similar requirements in § 229.125. Under proposed paragraph (a), FRA would establish the general requirement that Tier III trainsets operating in shared rights-of-way over public highway-rail grade crossings at speeds 20 mph or greater be equipped with auxiliary lights that conform to § 229.125(d)(1) though (3). FRA recognizes that § 229.125(d)(1) through (3) uses some traditional terms, such as “locomotive,” when describing the placement of auxiliary lights; however, the use of the term “locomotive,” or other similar terms, should not be an impediment to
Proposed paragraph (b) would permit auxiliary lights to be arranged in any manner specified in § 229.125(e)(1) through (2), and proposed paragraph (c) would require compliance with § 229.125(f).
Proposed paragraphs (d)(1) through (3) address requirements concerning defective auxiliary lights, and would require that a lead unit with a single defective auxiliary light be switched to a trailing position (or repaired) if discovered during the pre-service inspection. Although the proposal would permit a unit to continue in the lead position if a single defective auxiliary light is discovered while in service, a lead unit discovered with two defective auxiliary lights while in service would be allowed to continue in service only to the next forward location where repairs could be made.
This section proposes a set of requirements for rear marker devices for Tier III trainsets, based generally on part 221. Proposed paragraph (a) contains the general requirement that Tier III trainsets be equipped with a rear marking device. Paragraph (a) would also require marking devices to conform with the characteristics of § 221.14(a)(1) through (a)(3), along with other requirements in proposed paragraphs (a)(1) and)(2) of this section.
Proposed paragraph (a)(1) would require that marking devices continuously illuminate, with proposed paragraph (a)(2) permitting alternative lighting technology so long as the railroad's ITM program plan contains procedures for determining that the marker lights conform with the requirements of proposed paragraphs (a) and (a)(1).
Proposed paragraph (b) specifies that the centroid of the marking device would be located 48 inches above the top of the rail.
Proposed paragraph (c) would require that marking devices be illuminated while the trainset is in service and that they be inspected as part of the pre-service inspection.
Proposed paragraph (d)(1) would specify that a trainset with a defective or inoperative marking device not be moved in revenue service if discovered as part of a pre-service inspection. However, proposed paragraph (d)(2) would permit movement to the next forward repair location if the marking device is discovered inoperative while the trainset in service.
Proposed paragraph (e) would provide an exception to equipping trainsets with a marking device in conformance with paragraph (a) by allowing a headlight set on dim to serve as a rear marking device.
This proposed section would require that cab lights comply with the requirements of § 229.127(a). It also would require that cab passageways and compartments be adequately illuminated.
FRA reiterates that although the term “locomotive” is used under § 229.127, the substantive requirements of this proposed section are intended to be applied to Tier III trainsets, and thus should be read as such.
Proposed paragraph (a) would require that each Tier III trainset be equipped and arranged with a horn that conforms with § 229.129(a).
Proposed paragraph (b) provides an option for testing the trainset horn. Railroads would be able either to perform acceptance sampling in accordance with § 229.129(b)(1) or test each horn individually under the procedures of proposed paragraph (e).
Proposed paragraph (c) would require that, but for the exception under proposed paragraph (d), replacement trainset horns be tested individually in accordance with proposed paragraph (e). Under proposed paragraph (d), replacement trainset horns need not be tested if the replacement horn is of the same model of horn being replaced that had been successfully tested either in accordance with § 229.129(b)(1) or proposed paragraph (e).
Proposed paragraph (e) would require that trainset horns be individually tested in accordance with § 229.129(c), subject to one exception and one addition. The positioning of the microphone used for testing the trainset horn would be specified under proposed paragraph (e)(1), in lieu of complying with § 229.129(c)(7). Additionally, proposed paragraph (e)(2) would permit the records required under § 229.129(c)(10) to be kept electronically.
Although § 229.129 references the term “locomotive,” this should not prove an impediment to compliance, as substantive requirements of this proposed section are intended to be applied to Tier III trainsets.
This proposed section is generally based on § 229.23 insofar as certain periodic inspections must be performed at certain intervals and completion thereof must be recorded. In addition, and as discussed further below, certain other pertinent information must also be recorded and made available to railroad employees and FRA inspectors.
The most significant aspect of this proposed section is that FRA is not requiring use of FRA form F6180-49A (form 49A), or any future variants, to record the pertinent inspection data and other data that FRA necessitates under part 229 (such as the presence of an in-service event recorder in the remarks section of the form). FRA would permit users of Tier III equipment the option of using onboard technology to provide to the engineer the same type of information regarding the inspection state of the Tier III trainset as would be provided through use of form 49A under part 229 and its physical presence in the cab of a locomotive. As discussed below, should a railroad using Tier III equipment wish to use this option, the onboard technology would need to have the capability of informing the engineer that, at the time of use, the trainset has received all required periodic inspections. The technology would also need to be able to communicate the type of brake system used, and various other pieces of necessary information. On the other hand, should a railroad using Tier III equipment not elect this option, the railroad may still use a physical form under a transparent cover in the controlling cab of the Tier III trainset. Although a railroad would not be required to use form 49A for Tier III equipment specifically, this proposed paragraph should not be construed as absolving a railroad using Tier III equipment from complying with the applicable requirements for Tier I or II equipment it may also operate. For clarity, the periodic inspection information intended to be captured under this proposed section would be analogous to the periodic inspection information captured under § 229.23, albeit the periodic inspections would be conducted pursuant to a Tier III railroad's approved ITM program. FRA also welcomes comment on whether to make this option available to Tier I or II equipment.
Proposed paragraph (a) would establish a general requirement that for certain periodic inspections as defined by a Tier III railroad's ITM program, certain information be captured with respect to those inspections. Proposed paragraphs (a)(1) through (3) would specify the minimum information required for each inspection record: the date the last inspection was done, the name of the inspector conducting the work, and the name of the supervisor certifying the work was done correctly.
Proposed paragraph (b) would require that the locomotive engineer have access to information from the inspection record and summary report and identify digital (proposed paragraph (b)(1)) and physical methods (proposed paragraph (b)(2)) for enabling that access. Should a railroad using Tier III equipment elect to comply with proposed paragraph (b)(2), use of form 49A (or any future variant) to display or record the particular maintenance information listed in this proposed section would not be required; the railroad would be free to develop its own form unique to its needs for its Tier III equipment.
Proposed paragraph (c) would establish the requirements for a summary report. This summary report is similar in intent to FRA's form 49A (providing pertinent information regarding the state of the trainset to those in the controlling cab), requiring information that is consistent with what is required currently under part 229. However, use of FRA's form is not required for Tier III equipment, as discussed under proposed paragraph (b). This paragraph proposes that the summary report, in whatever form it takes, should contain certain information regarding the specific trainset such as the date(s) of the last periodic inspection required under the railroad's ITM program plan, whether there are any waivers of compliance granted by FRA under part 211 applicable to the trainset, the type of brake system used on the trainset, and whether the event recorder is out of service.
Proposed paragraph (d) would permit compliance with § 229.23 as satisfying the requirements of this section.
This proposed section would apply many of the requirements for the use of current collectors in part 229 to passenger equipment and trainsets, with some changes. Proposed paragraphs (a)(1) and (b) would apply requirements from part 229 through cross-references, and proposed paragraph (a)(4) would impose requirements similar to those in part 229, with minor changes. Other paragraphs in this proposed section would contain requirements with no direct counterpart in part 229.
Paragraph (a) proposes requirements for pantographs and other overhead collection systems. Paragraph (a)(1) proposes to apply the requirements of § 229.77(a) to Tier III equipment. Paragraphs (a)(2) and (3) have no counterparts in part 229, and propose requirements to provide additional protection for engineers and other personnel by requiring the electrical grounding of insulated parts to reduce the risk of electric shock and by enabling an engineer to identify the position of and secure the pantograph without mounting the roof of the trainset.
Proposed paragraph (a)(4), which is based on § 229.81(a), would require that, for pantographs used on Tier III trainsets, a means be provided to safely lower the pantograph in the event of an emergency, permitting the use of an emergency pole, subject to certain requirements (such as properly marking where the pole can be safely handled and keeping the pole free from moisture and damage when not in use). Paragraph (a)(4) proposes an additional requirement that a railroad's ITM program identify an alternate means of securement and electrical isolation of a damaged pantograph when automatic methods are not possible.
Paragraph (b) proposes to apply the requirements of §§ 229.79 and 229.81(b) to trainsets equipped with pantographs and third-rail shoes. Although the requirements of §§ 229.79 and 229.81(b) use the term “locomotive,” rather than “trainset,” the proposed language of paragraph (b) would clarify the application of these requirements to Tier III trainsets.
This section proposes requirements for the protection of electrical circuits used within a Tier III trainset. Proposed paragraph (a) describes the general requirements for circuit protection in Tier III passenger equipment. Proposed paragraphs (b) and (c) would provide requirements for more specific categories of circuit protection, with proposed paragraph (b) addressing lightning protection and proposed paragraph (c) addressing overload and ground fault protection. For purposes of this section, the term “lightning arrestor” includes a surge arrestor that also functions as a lightning arrestor.
Under this section, FRA is proposing requirements addressing various aspects of a Tier III trainset's electric system and is proposing to apply by cross-reference certain electrical system requirements for locomotives in part 229. Proposed paragraph (a) would address the insulation or grounding of metal parts and apply by cross-reference requirements of §§ 229.83 and 238.225 to trainsets.
Proposed paragraph (b) would address high voltage markings on doors, cover plates, or barriers, and apply by cross-reference the requirements of § 229.85. Although in § 229.85 the words “Danger-High Voltage” or “Danger” appear with just each word's first letter capitalized, FRA makes clear that use of all capital letters (
Proposed paragraph (c) would apply the requirements for hand-operated electrical switches in § 229.87 to Tier III trainsets.
Under the proposed requirements of paragraph (d), trainsets would be subject to the requirements for conductors, jumpers, and cable connections in §§ 229.89 and 238.225(a). As clarification, while § 229.89 refers to cable and jumper connections for a locomotive, proposed paragraph (d) would apply such requirements to Tier III trainsets.
Paragraph (e), as proposed, describes requirements for energy storage systems (batteries and capacitors) on Tier III trainsets. Paragraph (e)(1), which addresses batteries, proposes to apply the requirements of § 238.225(b) and also proposes an additional requirement: battery circuits must include an emergency battery cut-off switch to completely disconnect the energy stored in the batteries from the load.
Paragraph (e)(2), which has no counterpart in part 229, proposes requirements for the design of capacitors for high-energy storage on trainsets and would require that such capacitors be isolated by a fire-resistant barrier from passenger seating areas and the trainset cabs (proposed paragraph (e)(2)(i)) and that the capacitors be designed to protect against overcharging (proposed paragraph (e)(2)(ii)).
Paragraph (f) proposes to apply the requirements for power dissipation resistors in § 238.225(c) to Tier III trainsets, with one additional proposed requirement: power dissipation resistor circuits must incorporate warning or protective devices for low ventilation air
Paragraph (g) proposes to apply the requirements for electromagnetic interference and compatibility in § 238.225(d), so that the onboard electronic equipment, among other things, not produce electrical noise that interferes with the trainline control and communications or wayside signaling systems. In addition to applying the requirements of § 238.225(d), FRA is proposing an additional requirement: electrical and electronic systems of equipment must be capable of operation in the presence of external electromagnetic noise sources.
In paragraph (h), FRA proposes requirements for motors and generators in use on a Tier III trainset. Proposed paragraph (h)(1) contains a general requirement that all motors and generators would be in proper working order or safely cut-out and isolated. Proposed paragraph (h)(2) would require that if motors and generators are equipped with support brackets, bearings, isolation mounts, or guards, those items would be present and function properly as defined by the railroad's ITM program.
Under this section, FRA is proposing a comprehensive set of requirements addressing safety appliances for Tier III trainsets. As described in paragraph (a), this section may also be applied to Tier I passenger-carrying vehicles and trainsets. Non-passenger-carrying passenger locomotives that are not part of an integrated trainset design would be covered under proposed § 238.235. A railroad or supplier may still utilize the relevant passenger rail car safety appliance standards contained in part 231 of this chapter, if appropriate. The proposed safety appliance standards in this section, however, are intended to address modern passenger rail vehicle designs considerations and updated ergonomics from the recommendations provided by APTA and the international car builders represented in the PSWG. FRA notes that the application of these proposed requirements to Tier I equipment would be an all-or-none approach, like the alternative crashworthiness requirements under § 238.201 and appendix G to this part. This means that Tier I equipment would either follow all the requirements, as proposed under this section, or comply with the existing safety appliance requirements for Tier I equipment; however, no mixing of the two sets of requirements would be permitted.
Proposed paragraph (b) outlines the requirements for the attachment of safety appliances to the structural carbody of passenger rail equipment. These requirements are subdivided into two main categories: attachment by mechanical fasteners (
Proposed paragraph (b)(2) addresses the minimum requirements for appliances, sub-assemblies, brackets, and supports that are welded as a means of attachment to the structural carbody. Proposed paragraph (b)(3) would further identify when brackets or supports (
Proposed paragraph (b)(4) would require that safety appliance designs facilitate the regular inspection of their attachment points to ensure threaded connections are not loose and welds show no signs of premature failure. Proposed paragraph (b)(5) would provide for the use of a minimum factor of safety of two, if the design loads in proposed paragraphs (d)(4)(ii) or (e)(4)(ii) are used as the method of determining appliance strength. FRA makes clear that this proposed requirement would apply only if the design load methodology for appliance strength is utilized, as a factor of safety would not be necessary if the traditional (
Proposed paragraph (c) would establish that the appliance and its attachment must be designed to account for fatigue, particularly as it relates to the size of welded connections. Because of the high-vibrational environment in which safety appliances are utilized, particularly where reciprocal engines are also present (
Proposed paragraphs (d) and (e) address the pertinent requirements for the design of all handholds and sill steps, respectively. FRA notes that the proposed text represents an organizational change from the RSAC recommendations. Because handholds and sill steps are the most common types of safety appliances installed on passenger rail equipment, and the requirements can vary depending on their location and function, FRA believes that by consolidating requirements for all handholds and sill steps, it can avoid repeating requirements that are common to all locations (
Proposed paragraph (d)(1) would detail the number of handholds required, and any critical dimensions depending on the function, location and arrangement (
Proposed paragraph (d)(1)(ii) addresses the minimum requirements for locations where external access to the cab of a trainset, power car, or
Proposed paragraph (d)(1)(iii) addresses the requirements for all side handholds. Side handholds are required at any location where sill steps are installed, including those required by statute or regulation, and optional installations. A major goal of the PSWG was to address the various arrangements that have been developed over the years to provide better ergonomics. For example, some passenger equipment designs incorporate two horizontal handholds above side sill steps located at car ends, as opposed to the single horizontal handhold design codified under part 231 for most passenger cars. The multiple handhold arrangement was adopted to provide better ergonomics for crews riding on car ends performing switching moves and other activities, while providing a lower handhold for stability from the ballast level. Proposed paragraphs (d)(1)(iii)(A) through (F) provide specific dimensions for the different types of arrangements that are commonly used on modern passenger rail equipment.
Proposed paragraph (d)(1)(iv) provides the requirements for end handholds. End handholds are generally required at the end of any car where a coupler is installed that requires crewmembers to manually couple, uncouple, or make electrical or pneumatic connections, as detailed in this section. The PSWG recommendations added additional language to address position requirements for vehicles with tapered (aerodynamic noses), included in proposed paragraph (d)(1)(iv)(C), and when the use of an uncoupling lever is acceptable in lieu of a separate end handhold, as contained in proposed paragraph (d)(1)(iv)(E). Perhaps most significantly, this rule would codify the exception proposed in paragraph (d)(1)(iv)(F) that end handholds would not be required at the ends of vehicles equipped with an automatic coupling mechanism that can be safely operated from inside the appropriate cab of the vehicle and does not require a person to go between vehicle units. This approach has been adopted in numerous, recent equipment designs that incorporate some level of semi-permanent connection (
Proposed paragraphs (d)(2) and (3) provide the required minimum handhold dimension and hand clearance requirements.
Proposed paragraph (d)(4) contains the handhold strength and rigidity requirements with proposed paragraph (d)(4)(i) providing an option to utilize the traditional
Proposed paragraph (d)(5) addresses the use of multiple handholds when arranged vertically in a “ladder” type arrangement, often used by crewmembers to access cabs or carbody doors from the ground level.
The requirements for different sill step arrangements are consolidated within proposed paragraph (e) of this section. Proposed paragraph (e)(1)(i) would specify the locations where sill steps must be equipped and proposed paragraphs (e)(1)(ii) and (iii), respectively, the required dimensions. Proposed paragraph (e)(1)(iv) would provide exceptions for where side sill steps are not required. Specifically, under proposed paragraph (e)(1)(iv)(A), side sill steps would not be required if steps are provided for an exterior cab access door in a location where a crewmember can ride the equipment with an unobstructed view of the track ahead. This would reduce the need to have redundant safety appliances where the cab ladder arrangement can be effectively used to safely perform switching moves. Under proposed paragraph (e)(1)(iv)(B), sill steps, as with end handholds, would not be required at locations equipped with an automatic coupling mechanism that can be safely operated from inside the appropriate cab of the vehicle and does not require ground intervention from a person to go on, under, or between the equipment such as to couple air, electric, or other connections. As with other safety appliance requirements proposed in this section, FRA proposes to adopt these common exceptions from the statutory need to equip a vehicle with sill steps by the authority provided in 49 U.S.C. 20306. Doing so would also remove the need for continued waiver requests under this authority for modern passenger equipment designs.
Proposed paragraph (e)(2) provides the various required dimensions for various sill step arrangements. Proposed paragraph (e)(2)(i) would establish the minimum tread length as 10 inches, which is the useable length of the step where a person could place their foot, excluding any construction features such as bend radii where someone could not step onto a flush surface of the step. Proposed paragraph (e)(2)(ii) would establish the clear (unobstructed) distance required above the usable tread of a step. This dimension has historically been referred to as the clear “depth” in part 231. The PSWG recommended use of the term “clear distance” in the proposal, to avoid historical confusion regarding the meaning of the term “depth,” which could also be interpreted as meaning the distance from the outside vertical plane of a step.
Proposed paragraph (e)(2)(ii)(A) would require that a Tier III trainset have a minimum of at least 4.7 inches of clear distance, whereas proposed paragraph (e)(2)(ii)(B) would provide the traditional 8-inch clear distance requirement for Tier I equipment. In discussions with the PSWG, industry requested that FRA adopt the service-proven clear distance based on international standards (4.7 inches). The PSWG noted that this standard has proven appropriate for international high-speed passenger equipment as it reduces the potential pocket size that can be a major contributor to aerodynamic noise. Additionally, the PSWG noted that this standard would help avoid the need for potential modifications to the carbody underframe of service-proven, high-speed trainsets if manufacturers were required to increase the clear distance length to the historical 8 inches. In a continuing effort to harmonize FRA regulations with service-proven international standards to facilitate the implementation of service-proven, high-speed rail in the United States, FRA is proposing to adopt this recommendation. However, as these proposed regulations may also apply to Tier I equipment, FRA is proposing to retain the requirement that Tier I
Proposed paragraph (e)(2)(iii) would specify the required clear space from the outside edge of a sill step. The purpose of this dimension is to allow the user to have enough room to firmly place the ball of their foot on the step. The most common application of this requirement would be where a step is built directly into the side of a vehicle, or into the pocket of the carbody or side sill of a locomotive or passenger vehicle. The term “clear space” is being introduced here to avoid confusion with similar terms, such as clear length and depth. FRA welcomes comments on other terminology that might be considered for this dimension.
Proposed paragraph (e)(2)(iv) would adopt a maximum vertical rise between consecutive sill steps. This proposed requirement is intended to ensure that vertical spacing is ergonomic for users in multiple sill step arrangements, particularly those used in a ladder-type arrangement, and is derived from other regulations such as those for box car ladders outlined in § 231.1(e) of this chapter. Similarly, proposed paragraph (e)(2)(v) would require that proper clearance be provided behind a sill step and running gear or any other moving parts. This is intended to ensure that the truck or other moving part of a passenger vehicle does not come into contact with the boot (foot) of a crewmember riding on a sill step or cab access ladder. This would also effectively prohibit steps being installed directly onto such moving parts, which could present an unsafe condition if the equipment starts to move.
Proposed paragraph (e)(3) would establish the requirements for sill step tread surfaces and provide some examples for acceptable methods. Railroad and suppliers should consider the appropriate anti-skid material to use depending on the functionality of the sill step. For example, if a sill step is also intended to function as a handhold, then it should utilize an anti-skid material that does not affect the use of the handhold. This proposed language would also require that enclosed steps, such as those built into the side sill or carbody of equipment, have at least 50 percent of the tread area as open space to help prevent the minor build-up of snow or ice from impacting the utility of the anti-skid surface.
Proposed paragraph (e)(4) provides the strength requirements for sill steps. These requirements would be similar to those the PSWG recommended for other appliances in this section, but also include an empirical requirement for sill steps constructed with a rectangular cross-section.
Proposed paragraph (f) addresses the minimum crew access locations for new passenger trainsets and individual pieces of equipment. It is intended to ensure that vehicles designed to provide only high-level boarding for passengers also have a means for crewmembers to board a trainset or passenger car from ground level, or alight from one to the ground. Specifically, proposed paragraphs (f)(1)(i) through (iii) would detail when such access locations must be provided and when low-level boarding or cab access locations can be used to satisfy this requirement.
Proposed paragraphs (f)(2)(i) and (ii) provide the requirements for steps and handholds utilized in crew access locations, primarily referencing similar requirements proposed in this section. FRA is also including additional provisions recommended by the PSWG in proposed paragraphs (f)(2)(iii) and (iv), which would allow for crew access steps to be retractable, or for portable ladders to be utilized in lieu of permanently installed external steps, respectively. These proposed requirements were added to address concerns with aerodynamic noise contribution, particularly on Tier III trainsets. If portable ladder arrangements are used, they should be readily accessible to crewmembers, designed to provide strength equivalent to or greater than that required for sill step arrangements in this section, and be securely attached to the equipment.
Proposed paragraph (g)(1) details where “automatic” couplers must be equipped, and their functionality, as required by 49 U.S.C. ch. 203. FRA is proposing to codify exemptions from the need to install automatic couplers and their associated appliances (
Proposed paragraph (h) provides the requirements for uncoupling levers or devices and would require uncoupling levers or devices on each vehicle end equipped with an automatic coupler, as required under proposed paragraph (g) of this section. Proposed paragraphs (h)(1)(i) and (ii) would require that an automatic coupler be equipped with either a traditional, manual uncoupling lever or some other uncoupling mechanism operated by controls located in the appropriate cab, or other secure location in a trainset, respectively. Additionally, proposed paragraph (h)(1)(ii) provides that additional uncoupling levers or handles on the coupler that serve only as a backup to the remotely operated mechanism would not be subject to the requirements of proposed paragraph (h)(2).
Proposed paragraph (h)(2) would require that manual uncoupling levers be installed so that the automatic coupler may be operated from the left side of the equipment, as determined when facing the end of the equipment, from ground level without requiring a person to go between cars or equipment units and have a clearance around the handle of 2, preferably 2
Proposed paragraph (i) would permit the automatic coupler, end handholds, and uncoupling mechanism on the leading and trailing ends of a trainset unit to be located within a removable shroud to reduce aerodynamic effects.
Proposed paragraph (j) would provide that trainsets, and equipment units or sections of trainsets that are not semi-permanently coupled to an adjacent equipment unit or section of trainset, must be equipped with an efficient parking or hand brake capable of holding the trainset, equipment unit, or section of trainset on at least a 3-percent grade, or on the worst-case grade conditions identified by the operating railroad. This proposal is consistent with that for use of worst-case grade conditions under proposed § 238.110.
Proposed paragraph (k)(1) provides for the arrangement of safety appliances on trainsets and equipment units to facilitate certain maintenance tasks.
However, under proposed paragraph (k)(2), the requirements under proposed paragraph (k)(1) would not apply if railroad operating rules require, and actual practice entails, the maintenance and replacement of these components by maintenance personnel in locations protected by the requirements of subpart B of part 218 of this chapter equipped with ladders and other tools to safely repair or maintain those appurtenances.
Paragraph (l) would require that any safety appliances installed at the option of the railroad must be approved pursuant to proposed § 238.110.
This proposed subpart would contain specific inspection, testing, and maintenance requirements.
Proposed § 238.903 would provide an overview of the general requirements applicable to Tier III passenger equipment. Most of these requirements are referenced and described in more detail in other sections of part 238. Accordingly, this proposed section would address the ITM program for Tier III passenger equipment, and specifically the content of the program and the procedures and intervals for performance of inspection, testing, and maintenance activities; requirements for the safe operation of a Tier III trainset; required safety inspections; and requirements for the training and qualification program and retention of records.
Proposed paragraph (a) contains the general requirement that railroads operating Tier III equipment would have an ITM program that contains detailed information regarding the inspection, testing, and maintenance procedures necessary for the railroad to safely maintain and operate its Tier III passenger equipment.
Proposed paragraphs (b)(1) through (8) list specific informational requirements to be discussed in detail as part of the railroad's ITM program. Most notably, proposed paragraph (b)(8) would require the railroad to describe the required operational braking capability for the trainset. Consistent with § 238.731(b), required operational braking capability is proposed as the capability of the trainset to stop from its maximum operating speed within the signal spacing existing on the track over which the trainset is operating under the worst-case adhesion conditions defined by the railroad. Under this proposed requirement, FRA would require railroads to detail the total effective braking power necessary to achieve this performance standard. FRA recognizes that this would mark a significant change in how the health of the brake system is categorized as further discussed under proposed § 238.1003(d)(1). FRA notes that a railroad would need to establish and verify the required operational braking capability during the dynamic testing and commissioning of the trainset under § 238.111.
Proposed paragraph (c) would require that trainsets receive thorough inspections from qualified individuals. It would prohibit a trainset from being put into service with any safety-critical defect until that defect is repaired, except for defects discovered in the brake system during a pre-service inspection under proposed paragraph (c)(2)(i). Proposed paragraphs (c)(1) through (5) would list the specific safety inspections required in addition to any inspection required under subpart H of this part.
A pre-departure inspection, as proposed under paragraph (c)(1), would mean trainset system verifications, inspections, or functional tests that must be performed prior to departure from terminal locations or when operating ends or crews are changed.
Pre-service inspections, as proposed under paragraph (c)(2), would mean those inspections to be performed before a trainset goes into passenger service. They would be conducted at locations where such inspections can be performed safely and properly, typically in a shop location, but also at terminal locations provided a qualified individual performing the inspection can safely go on, under, or between the equipment. This inspection is proposed to be performed before a trainset enters revenue service, at an interval of no more than every 48 hours. As proposed, this inspection would ensure the trainset is safe to enter revenue service, similar to the mechanical and brake inspections required of Tier I trains under subpart D; however, the specifics of the pre-departure inspection proposed here for Tier III trainsets would be defined by each individual railroad in its ITM program. FRA is also proposing certain minimum requirements for pre-service inspections.
Under proposed paragraph (c)(2)(i), the procedures for pre-service inspections would cover all the items required by a pre-departure inspection under proposed paragraph (c)(1). FRA is also proposing to include the specific exception for the brake system as discussed elsewhere in this NPRM in that, should the pre-service inspection uncover an issue with brake system, but yet the brake system still meet or exceed the required operational braking capability, the trainset may enter passenger service, assuming no other safety-critical defect is discovered. However, in accordance with proposed § 238.1003(d)(1), this practice would be permitted only for up to 5 consecutive calendar days, at which time the trainset could no longer continue in service and would be required to have the brake system fully repaired. Further, should a pre-service inspection reveal that the brake system no longer meets the required operational braking capability, then the trainset would not be permitted to enter or continue in passenger service and must move immediately to a repair location with the trainset not being able to depart the repair location until all defects were repaired.
Paragraph (c)(2)(ii) proposes another minimum requirement in that an interior inspection of the trainset must be performed of the emergency systems to ensure proper functionality of certain emergency systems (such as public address, intercom, and emergency lighting systems) and to ensure that any permitted tools or other implements necessary for emergency egress are present.
Paragraph (c)(3) proposes that the railroad's ITM program have one comprehensive section or chapter where the railroad would detail all the required brake inspections to be performed on the trainset, to include the procedures for performing those inspections, along with the periodicity of inspections. This would include brake system inspections performed as part of other inspections, such as a pre-service inspection. FRA envisions this section or chapter of a railroad's ITM program as a central repository of the brake system inspections for ease of reference and use. This discussion is equally applicable to proposed paragraph (c)(4), with respect to truck inspections.
Under paragraph (c)(5), FRA is proposing that the railroad detail all other safety-critical periodic inspections
To set a baseline, FRA is proposing under paragraph (d) that the railroad specify in its initial ITM program submission the initial scheduled maintenance intervals for Tier III equipment. Deviations from this baseline for safety-critical components could only be implemented when approved by FRA, and those changes would require justification by accumulated, verifiable operating data.
Proposed paragraph (e) contains the training and qualification program requirements for individuals performing inspections, testing, or maintenance on Tier III trainsets. Proposed paragraph (e)(1) would require the railroad to identify which inspections, tests, or maintenance tasks require special training or qualification.
Proposed paragraph (e)(2) would require the railroad to develop a training and qualification program for those tasks identified under proposed paragraph (e)(1) of this section that, at a minimum, addresses those items listed under § 238.109(b).
Proposed paragraph (e)(3) would require the railroad to maintain a list of those individuals designated as qualified pursuant to the railroad's training and qualification program to perform those tasks identified in proposed paragraph (e)(1). The railroad would be required to make those records available to FRA upon request.
Proposed paragraph (e)(4) contains the proposed, overarching requirement that only those individuals qualified pursuant to the railroad's training and qualification program can inspect, test, or maintain safety-critical components or systems on Tier III equipment. This approach was recommended by the RSAC to avoid more specifically defining those who can or cannot perform certain inspection, testing, or maintenance tasks under the regulation.
Proposed paragraph (f) specifies that the railroad would maintain records of each inspection required under proposed paragraph (c) for at least one year from the date of the inspection.
This proposed section would require the railroad to adopt and comply with its ITM program once approved by FRA under proposed § 238.913.
Proposed paragraph (a) would require the railroad to establish standard procedures addressing the performance of inspection, testing, maintenance, and repair tasks, and identify the informational, approval, enforcement, and review processes that must be included in the procedures. Under proposed paragraph (a)(5), “the railroad's official responsible for safety” would be the party who must approve the written standard procedures; however, FRA invites comment whether it would be more appropriate to designate the head of high-speed rail maintenance, the chief maintenance officer, some other railroad official, or a combination thereof, as the “railroad's official responsible for safety.”
Proposed paragraph (b) clarifies that FRA does not intend for the ITM program required by this subpart I to address employee working conditions related to the performance of the inspections, tests, and maintenance required by the program. Such working conditions are the purview of the Occupational Health and Safety Administration.
This proposed section would require that each railroad establish an inspection, testing, and maintenance quality control/quality assurance program for the purpose of ensuring that each railroad performs its inspections, testing, and maintenance in accordance with its approved ITM program. Either the railroad or its contractors would be able to perform compliance responsibilities related to the quality control program established under this proposed section.
This proposed section establishes the format in which the ITM program would be submitted to FRA for review and approval.
Proposed paragraph (a) would require that the railroad prepare a complete ITM program covering all components, systems, or sub-systems on a Tier III trainset, regardless of whether the railroad deems those components, systems, or sub-systems safety-critical. This would include all inspections, tests, and maintenance tasks required, the intervals and periodicity of those inspections, tests, and maintenance tasks, and all associated information and procedures required for the railroad and its personnel to implement the program. The purpose behind this proposed requirement is to allow FRA to ensure that the railroad has properly captured all safety-critical items. Under proposed paragraph (b), below, the railroad would be required to submit a condensed version of the program addressing only the safety-critical elements as deemed by the railroad. FRA notes that under proposed § 238.913, FRA would approve the ITM program addressing only those safety-critical elements. Additionally, once the ITM program has received its initial approval, FRA would not expect submission of the complete ITM program with any future amendment to a safety-critical portion.
Proposed paragraph (b) would require the railroad to submit a condensed version of the ITM program, with only the program items identified as safety-critical by the railroad. It would be this condensed version of the ITM program that FRA would approve under § 238.913. Nevertheless, FRA has identified certain components or systems that are always considered safety-critical, such as the operation of emergency equipment, emergency back-up systems, trainset exits, and trainset safety-critical hardware and software systems.
FRA invites comment on the utility of this approach.
Under this section, FRA is proposing the procedures for the submission and approval of the railroad's ITM program.
Proposed paragraph (a) describes requirements for both the initial submission of the ITM program and the submission of amendments. With respect to the initial submission, the proposed language under paragraph (a)(1) explains that the ITM program must be submitted no less than 180 days prior to the commencement of revenue service. FRA makes clear though, that the mileage accumulated during dynamic qualification testing must be accurately recorded in the maintenance records of the trainsets so that prior to entering revenue service, the trainset is current on all required inspection, tests, and maintenance required under the ITM based on the mileage of the trainset. Thus, if a certain maintenance interval is specified in miles, FRA expects that the milage incurred during
Proposed paragraph (a)(2) would require that an amendment to an approved ITM program must be submitted for approval not less than 60 days prior to the railroad's proposed implementation date. FRA welcomes comments on the appropriate review period for both the initial submission and the submission of program amendments.
Proposed paragraph (b) identifies the required content for the ITM program or program amendment submission. As proposed, not only must the railroad submit the ITM program or amendment itself, but it must also include the primary point of contact for the program or amendment and affirm that the program or amendment was provided to the designated representatives of railroad employees along with a list of the names and addresses of those persons.
Proposed paragraph (c) would require the railroad to provide a copy of the ITM program or amendment to the designated representatives of railroad employees responsible for the equipment's operation, and inspection, testing, and maintenance under this subpart. Additionally, this proposed paragraph would impose a deadline of 45 days for providing comment to FRA. Proposed paragraphs (c)(1) through (3) would outline the required process for each comment.
Proposed paragraphs (d)(1) and (2) would explain the approval process for the initial ITM program submission and amendments, the timing of FRA's review and approval determination, and the requirement to correct a program or amendment if FRA discovers a deficiency during its review.
Notably, under proposed paragraph (d)(3), at any time after its approval determination, FRA would retain the ability to review the program and amendments under its general inspection authority and to require further corrections to the ITM program or amendment. Submittal of a revised program or amendment made pursuant to this paragraph would follow the submittal procedures detailed in proposed paragraphs (d)(1) and (2).
Proposed paragraph (e) would establish requirements for the annual review of the ITM program, addressing the scheduling of such review with FRA and the designated representatives of railroad employees.
This proposed subpart would contain specific requirements for the movement of Tier III passenger equipment that is defective.
Under § 238.1003, FRA is proposing the procedural requirements for the movement of defective Tier III equipment. These requirements would address defective conditions identified during a pre-service inspection and defective conditions discovered during revenue service operations.
Except as explained in proposed § 238.903(c)(2)(i) and paragraph (d) of this section, proposed paragraph (a) would describe the general prohibition on the movement of a Tier III trainset with a defect identified during a pre-service inspection and specify that such a trainset may only move pursuant proposed paragraph (e), as explained in more detail below.
Proposed paragraph (b) would describe the procedural requirements for the movement of a Tier III trainset with a safety-critical defect discovered during revenue service operations (such as during a pre-departure inspection under proposed § 238.903(c)(1)) and between required pre-service inspections. Under these proposed requirements, an individual qualified pursuant to proposed § 238.903(e) would be required to make a determination, consistent with railroad operating rules, that it is safe to move the trainset (proposed paragraph (b)(1)). It would be permissible for such a qualified individual to make this determination remotely based on information provided by on-site personnel, provided that a qualified individual performs an on-site inspection of the defect when the trainset arrives at the first location where an on-site inspection by a qualified individual is possible.
After determining that it is safe to move the defective trainset, the qualified individual would be required to notify the train crew of the authorized speed and destination, and any other operational restrictions on the movement of the non-compliant trainset, pursuant to proposed paragraph (b)(2). The qualified individual may provide this notice through the tagging process described in proposed paragraph (b)(3) or through the automated tracking system described in proposed paragraph (c), which would adopt the requirements of § 238.15(c)(3).
Proposed paragraph (d) addresses the requirements for the movement of a trainset that experiences an in-service failure of the braking system. During PSWG meetings, there was significant discussion regarding the applicability of these requirements to trainsets with advanced technology brake systems and automated reporting systems that provide the engineer with real-time information concerning the operative brakes within the trainset. Specifically, there was discussion that these modern Tier III trainsets are designed and equipped with a braking capability that most often exceeds what is necessary for routine operational braking. Thus, FRA is proposing a balanced approach that considers the operational capability of these trainsets without compromising safety.
A such, under proposed paragraph (d)(1), a trainset may continue in service for no more than 5 consecutive calendar days (to include leaving a repair point) so long as the trainset meets or exceeds its required operational braking capability. As discussed above under proposed § 238.903(a)(8), the railroad would be required to describe in detail in its ITM program this required operational braking capability. Additionally, FRA clarifies that consistent with the proposal under § 238.19(d)(2), after 5 consecutive calendar days elapse, a Tier III trainset may not leave a designated brake repair point with anything less than a brake system that is free from defects, regardless of whether the trainset meets or exceeds its required operational braking capability (
Under paragraph (d)(2), FRA is proposing requirements for a trainset that has in-service failure of the brake system bringing it below the required operational braking capability. FRA is proposing that in such a situation, a trainset may only move in service until its next pre-service inspection in accordance with railroad operating rules relating to the percentage of operative brakes and at a speed no greater than the maximum authorized speed as
As part of the comment process for this proposed rulemaking, FRA welcomes input on the appropriateness of these proposed requirements for the movement of defective trainsets equipped with advanced technology brake systems.
Under proposed paragraph (e), a railroad would be permitted to move a trainset with a safety-critical defect discovered during a pre-service inspection for purposes of repair without complying with the procedural requirements of proposed paragraph (b), provided the movement is without passengers, within a yard, at speeds not to exceed 10 mph, and for the sole purpose of repair. FRA is also proposing that, should a railroad elect to repair a trainset with a safety-critical defect in place, it would be required, at a minimum, to apply a tag that complies with proposed paragraph (b)(3) to provide notice that the trainset is defective and not in service. FRA makes clear that the tag is to be applied while the trainset is non-compliant; once the repair is made, the tag may be removed, and the trainset placed into service.
Proposed paragraph (f), which is identical to § 238.17(f), makes clear that the movement of a defective Tier III trainset subject to a Special Notice for Repair under part 216 would continue to be subject to the restrictions in a Special Notice.
This proposed appendix would contain requirements for using computer simulations to comply with the vehicle/track system qualification testing requirements specified in § 238.139. These simulations would be performed using a track model containing defined geometry perturbations at the limits that are permitted for a specific class of track and level of cant deficiency. This track model is known as Minimally Compliant Analytical Track (MCAT). These simulations would be used to identify vehicle dynamic performance issues prior to service or, as appropriate, a change in service, and demonstrate that a vehicle type is suitable for operation on the track over which it is intended to operate. FRA notes that, for the short warp (a
For simulations measuring hunting perturbation involving tangent track segments, FRA proposes the use of a high-conicity, wheel-rail profile combination approved by FRA that produces a minimum conicity of 0.4 for wheelset lateral shifts up to flange contact. FRA has added to the docket a file that reflects wheel-rail profile combinations FRA has found acceptable in the past, and welcomes comment on this data or the incorporation of such combinations into the regulation.
As noted under the discussion of proposed § 238.139, Vehicle/track system qualification, the proposed requirements are intended to complement existing requirements for higher speed and higher cant deficiency operations in part 213 of this chapter. Specifically, this appendix would apply to operations up to 6 inches of cant deficiency on lower-speed track classes, and would have no impact on part 213 requirements for operations over 6 inches of cant deficiency on such track classes. By illustration, proposed table 6 would apply to track Classes 2 through 5 where cant deficiency exceeds 5 inches but is not more than 6 inches, while table 7 of appendix D to part 213 currently applies to track Classes 1 through 5 where cant deficiency exceeds 6 inches. Although there would be no direct conflict in application of the respective appendices, FRA notes in particular that the differences in repeated surface limits and repeated alinement limits between the two tables may not necessarily be explained by the differences in cant deficiency alone. FRA therefore welcomes comments on the potential impact of the proposed changes, will evaluate any comments received, and will consider revisions to both parts 213 and 238 in the final rule or a future rulemaking.
In proposed appendix I to part 238, which is modeled after appendix H to part 229 of this chapter, FRA presents proposed testing protocols to verify that the noise levels within the cab of a Tier III trainset comply with the requirements established in § 238.759(a)(1). These proposed protocols address measurement instrumentation, test site requirements, procedures for measurement, and recordkeeping. In this proposal, FRA is intending to align these measurement procedures with those used in international practice and welcomes comments on any relevant international practice that could contribute to the further development of the proposed protocols. FRA also notes that although the requirements proposed in this appendix are very similar to those under appendix H to part 229, this appendix would also contain a separate set of requirements due to subtle but significant differences. Notably, the test proposed under this appendix would be under dynamic conditions, while the trainset is moving, whereas the test under appendix H to part 229 is under static conditions, not involving equipment movement.
Proposed appendix J would establish a framework that enables the evaluation of an individual piece of Tier I passenger equipment for compliance with crash energy management (CEM) requirements. Current regulations provide for the assessment of CEM components in the context of a complete trainset. Although a railroad, equipment manufacturer, or other party is not required to incorporate CEM features into an individual piece of Tier I equipment, this proposed appendix would provide direction for the development of these features for a single vehicle, rather than a complete trainset. Under the framework of this proposed appendix, single pieces of rail equipment that are fully compliant with existing Tier I structural requirements, and have additional CEM features, could operate within conventional, Tier I-compliant trains.
Proposed appendix J would define in-line and offset collision scenarios for locomotives, cab cars, and intermediate cars. As proposed, the crashworthiness requirements contained in proposed appendix J would not apply to Tier I alternatively designed trainsets or single pieces of equipment with traditionally compliant structures outfitted with pushback couplers as the only CEM feature.
Current industry standards served as a model for the crashworthiness requirements proposed in this
FRA is proposing to add appendix K to part 238 to contain the minimum information necessary for test procedures associated with the required testing to be performed pursuant to the railroad's pre-revenue service acceptance testing plan under § 238.111. This is to ensure that testing is performed in a safe and controlled manner, and that the testing captures information critical to the demonstration of compliance. FRA understands this level of information may not be available for all tests at the time of initial submission of a test plan; however, if a test procedure relied on for a test does not contain this minimum level of information, FRA may take exception to it and require the test be repeated or the test procedure updated. This determination may be made in advance of testing (
This proposed rule is not a significant regulatory action within the meaning of Executive Order (E.O.) 12866 (“Regulatory Planning and Review”) and DOT Order 2100.6A (“Rulemaking and Guidance Procedures”).
FRA has prepared and placed in the docket (FRA-2021-0067) a Regulatory Impact Analysis (RIA) addressing the economic impacts of this proposed rule. The RIA estimates the costs and benefits of this proposed rule over a 30-year period. FRA used discount rates of 7 and 3 percent with these estimates. For the 30-year period analyzed, the net costs of this proposed rule are estimated to be approximately $55.2 million, undiscounted. The present value is approximately $21.4 million, discounted at 7 percent, and $35.2 million, discounted at 3 percent. The annualized net costs are approximately $1.7 million and $1.8 million, discounted at 7 and 3 percent, respectively.
The analysis of this proposed rule includes estimates of costs associated with the proposed requirement for low-speed vehicle/track system qualification, emergency roof access for certain Tier III trainsets, as well as for the inspection, testing, and maintenance of high-speed trainsets. FRA estimates that the 30-year total costs of this proposed rule would be approximately $55.5 million, undiscounted. The present value is approximately $21.7 million, discounted at 7 percent, and $35.5 million, discounted at 3 percent.
This analysis also estimates the benefits associated with: (A) railroads not needing to apply for a waiver for pilots, snowplows, and end plates installed on Tier III trainsets; (B) railroads not having to redesign Tier III trainsets to account for legacy attachment strength requirements for emergency communication equipment back-up power fixtures; (C) modernizing the safety appliance requirements for Tier III and certain Tier I passenger equipment, and for certain non-passenger carrying locomotives (reducing the need for railroads to seek statutory exemptions); and (D) a reduction in the administrative burden of processing, reviewing, and implementing safety regulatory waivers. FRA estimates a 30-year total benefits of approximately $0.3 million, undiscounted, for this proposed rule. The present value is approximately $0.2 million, discounted at 7 percent, and $0.3 million, discounted at 3 percent.
The net costs of this proposed rule are estimated to be approximately $55.2 million, undiscounted. The present value is approximately $21.4 million, discounted at 7 percent, and $35.2 million, discounted at 3 percent. The annualized net costs are approximately $1.7 million and $1.8 million, discounted at 7 and 3 percent, respectively.
Details on the estimated costs and benefits of this proposed rule can be found in the RIA associated with this docket. FRA invites comments on the costs and benefits associated with this proposed rule.
The Regulatory Flexibility Act of 1980
FRA is submitting the information collection requirements in this proposed rule to the Office of Management and Budget (OMB) for approval under the Paperwork Reduction Act of 1995.
All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. Pursuant to 44 U.S.C. 3506(c)(2)(B), FRA solicits
OMB is required to decide concerning the collection of information requirements contained in this rule between 30 and 60 days after publication of this document in the
Executive Order 13132, Federalism,
FRA has analyzed this proposed rule in accordance with the principles and criteria contained in Executive Order 13132. FRA has determined that this proposed rule has no federalism implications, other than the possible preemption of State laws under 49 U.S.C. 20106. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply, and preparation of a federalism summary impact statement for the proposed rule is not required.
The Trade Agreements Act of 1979
FRA has assessed the potential effect of this rulemaking on foreign commerce and believes that its proposed requirements are consistent with the Trade Agreements Act. The proposed requirements are safety standards, which, as noted, are not considered unnecessary obstacles to trade. Moreover, FRA has sought, to the extent practicable, to state the proposed requirements in terms of the performance desired, rather than in more narrow terms restricted to a particular design or system.
FRA has evaluated this proposed rule in accordance with the National Environmental Policy Act
The main purpose of this rulemaking is to amend FRA's Passenger Equipment Safety Standards by adding safety standards to facilitate the safe implementation of high-speed rail at speeds up to 220 mph (Tier III). 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 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.
Under section 201 of the Unfunded Mandates Reform Act of 1995,
Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use, requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.”
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, to
As required by 1 CFR 51.5, FRA has summarized the standards it is proposing to incorporate by reference and shown the reasonable availability of those standards in the section-by-section analysis of this rulemaking document (see the discussions of §§ 238.139(c)(1)(i) and 238.745(b)). APTA standard PR-M-S-18-10 is currently approved for the location where is appears in the amendatory text; no change to the standard is proposed.
Railroad safety, Reporting and recordkeeping requirements.
Railroad safety.
Incorporation by reference, Passenger equipment, Railroad safety, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, FRA proposes to amend chapter II, subtitle B of title 49 of the Code of Federal Regulations as follows:
49 U.S.C. 20102-20104, 20107, 20111, 20133, 20701-20702, 21301-21302, 21304; 28 U.S.C. 2461 note; and 49 CFR 1.89.
(c) Railroad passenger equipment subject to a Special Notice may be moved from the place where it was found to be unsafe for further service to the nearest available point where the equipment can be repaired, if such movement is necessary to make the repairs. However, the movement is subject to the further restrictions of §§ 238.15 and 238.17, or § 238.1003 of this chapter.
49 U.S.C. 20102-20103, 20107, 20131, 20301-20303, 21301-21302, 21304; 28 U.S.C. 2461, note; and 49 CFR 1.89.
(b) * * *
(6) Tier III passenger equipment as defined in § 238.5 of this chapter (
49 U.S.C. 20103, 20107, 20133, 20141, 20302-20303, 20306, 20701-20702, 21301-21302, 21304; 28 U.S.C. 2461 note; and 49 CFR 1.89.
(2) * * *
(i) Is being handled in accordance with §§ 238.15, 238.17, 238.305(d), 238.503(f), or 238.1003 as applicable;
(1) A continuous track section or multiple track sections no less than 50 miles in length that consist of—
(i) A curvature distribution as described below;
(ii) A segment or segments of tangent track over which the intended maximum operating speed can be sustained; and
(iii) Any bridges and special-trackwork that are within the track section or track sections.
(2) If each of a railroad's line segments is less than 50 miles, then the “representative segment of the route” means one complete line segment that consists of the conditions described in paragraphs (1)(ii) and (iii) of this definition.
(3) A track section as described under paragraph (1) of this definition shall have a curvature distribution that is within 2% of the curvature distribution of the complete line segment, evaluated using the root mean squared (RMS) of the differences between the two distributions.
(a) * * *
(4) The determination made by a qualified person, qualified maintenance person, or other qualified individual on whether the equipment is safe to run;
(5) The name of the qualified person, qualified maintenance person, or other qualified individual making such a determination;
(b)
(1) For Tier I equipment, one periodic maintenance interval for each specific type of equipment as described in the railroad's inspection, testing, and maintenance plan required by § 238.107. FRA strongly encourages railroads to keep these records for longer periods of time because they form the basis for future reliability-based decisions concerning test and maintenance intervals that may be developed pursuant to § 238.307(b).
(2) For Tier III equipment, at least one year.
(d)
(2) Railroads operating Tier III passenger trainsets shall designate locations, in writing, where repairs to safety-critical items on passenger equipment, including those with a power brake defect will be made. The railroad shall designate brake system repair point(s) in the inspection, testing, and maintenance program required by § 238.903(a). No Tier III trainset shall depart a brake system repair point where repairs can be made with brake system defect unless that trainset has its required operational braking capability, and not for a period to exceed 5 consecutive calendar days.
(3) The railroad shall provide the list required under either paragraph (d)(1) or (2) of this section to FRA's Associate Administrator and make it available to FRA for inspection and copying upon request. The designations made in such lists shall not be changed without at least 30 days' advance written notice to FRA's Associate Administrator.
Except as provided below under paragraph (f) of this section, the requirements of this section apply to electronic hardware and software used to control or monitor safety functions in passenger equipment ordered on or after September 8, 2000, and such components implemented or materially modified in new or existing passenger equipment on or after September 9, 2002.
(a)
(b)
(1) The hardware and software design process;
(2) The hardware and software design documentation;
(3) The hardware and software hazard analysis;
(4) Hardware and software safety reviews;
(5) Hardware and software hazard monitoring and tracking;
(6) Hardware and software integration safety testing;
(7) Demonstration of overall hardware and software system safety as part of the pre-revenue service testing of the equipment; and
(8) Safety analysis that follows the requirements of paragraph (c) of this section.
(c)
(d)
(e)
(f)
(1) Section 229.309(a)(1) through (6), Safety-critical changes and failures;
(2) Section 229.311(a), (c), and (d)(1) through (3), Review of SAs;
(3) Section 229.313, Product testing results and records;
(4) Section 229.315, Operations and maintenance manual;
(5) Section 229.317(a), Training and qualification program; and
(6) Section 229.319, Operating personnel training.
(g)
(h)
(a)
(2)
(i) The status of all appliable safety plans or regulatory programs, and any associated certifications, qualifications, and employee training required for the start of revenue service including, but not limited to, the following:
(A) Railroad workplace safety procedures, programs, and training pursuant to part 214 of this chapter;
(B) A drug and alcohol program pursuant to part 219 of this chapter;
(C) If required, information on the status of PTC certification or any request for amendment under part 236 of this chapter, and compliance with conditions and requirements of § 236.1015 of this chapter as required by the host railroad's PTC safety plan. If the railroad submitting the pre-revenue safety validation plan is not the host railroad, the host railroad must acknowledge in writing that all requisite testing, validation, or other conditions have been satisfactorily met for the use of the tenant's PTC system in revenue service;
(D) A bridge management program pursuant to part 237 of this chapter;
(E) Passenger equipment compliance validation and testing conducted pursuant to §§ 238.110 and 238.111;
(F) Inspection, testing, and maintenance programs, as required under this part;
(G) Emergency preparedness planning pursuant to part 239 of this chapter, with a focus on first responder outreach and employee training;
(H) Locomotive engineer and conductor training, qualification and certification programs under parts 240 and 242 of this chapter;
(I) Training, qualification, and oversight program for safety-related railroad employees under part 243 of this chapter, to include information and data indicating the number of safety-related employees required to receive training and qualification, and information regarding the roles and responsibilities of executing the program between the railroad and its contractors;
(J) A system safety program plan pursuant to part 270 of this chapter, with particular focus on the status of mitigations and actions associated with hazard logs and risk assessments that have a direct impact on the safety of the operation; and,
(K) Speed limit action plans required under 49 U.S.C. 20169, if applicable.
(ii) A detailed description of the completeness of the system. This description must, at a minimum, include completeness descriptions of the vehicles, signals, crossings, stations, train control systems, track structure, wayside systems, signage, rule books, and employee staffing. For any area that is not expected to be complete when the system performance demonstration period commences, the railroad must provide an explanation as to why completeness or substantial completeness is not necessary for the demonstration of safe operations. If the railroad submitting the pre-revenue safety validation plan is not the host railroad, the host railroad must provide the railroad submitting the pre-revenue safety validation plan pertinent information regarding any scheduled construction activities planned during the system performance demonstration period and their anticipated completion date. The railroad submitting the pre-revenue safety validation plan must then explain why completeness or
(iii) A detailed description of the operating plan including schedules, headways, equipment required, equipment staging locations, crew schedules, grade crossing locations, signal locations, timetable, general orders, special instructions, and other relevant information regarding the regular railroad operations. This description must also include a summary of the operating plan that includes, at a minimum, the number of vehicles required to operate the plan, the number of crewmembers per day, the number of round trips per crewmember, and the total number of trips per day.
(iv) The period of simulated service prior to revenue passenger service (expressed either in days or number of completed train trips) necessary to demonstrate operational readiness and reliability, to include successful completion of any safety-critical activities required (
(b)
(1)
(i) For new passenger service or extension of existing service, the safety performance demonstration period must be conducted while executing the full schedule over the entire route utilizing all stations and systems intended to operate at the start of revenue passenger service. The period shall be of sufficient duration to demonstrate that all safety-related employees are properly trained and able to execute the railroad's programs and plans identified in paragraph (a)(2)(i) of this section. The railroad shall also demonstrate its ability to operate its planned schedule when speed restrictions, mandatory directives, or other common situations arise that may impact operations.
(ii) For the re-starting or permanent re-routing of existing service, the safety performance demonstration period may be conducted using a modified schedule or dedicated test trains accounting for crew and equipment availability. The period shall be of sufficient duration to demonstrate that all safety-related employees are properly trained and able to execute the railroad's programs and plans identified in paragraph (a)(2)(i) of this section, with particular attention to employees or groups of employees, who are not actively engaged in the existing operations.
(2)
(3)
(c)
(a)
(1)
(i) A passenger equipment design that has not been used in revenue service in the United States.
(ii) Rebuilt or modified passenger equipment where the carbody structure or any safety-critical elements have been modified or replaced by a new design not identical to the original component's design. Submittals shall be required only to verify the safe operations of the modified system/sub-system and any safety-critical systems affected by such change.
(2)
(b)
(2) The railroad shall retain a copy of the documentation required under paragraph (b)(1) of this section for the lifetime of the equipment and make it available to FRA for review upon request. If the equipment is leased or sold to another entity, a copy of the documentation shall be provided to the lessee or purchasing entity.
(c)
(i)
(ii)
(2)
(ii) If disapproved or disapproved in part, FRA shall explain the reason(s) on which the disapproval is based, and the measures needed to obtain approval. Upon receipt of notification by FRA of the disapproval or disapproval in part, the railroad shall revise the vehicle qualification plan to address the measures identified by FRA to obtain approval, and resubmit to FRA in accordance with paragraph (c)(2)(i) of this section.
(iii) The railroad shall adopt and comply with the approved vehicle qualification plan, including completion of all design review and/or testing required by the plan.
(d)
(1)
(i) Infrastructure characteristics, to include governing or limiting geometry (including turnouts), maximum grade, minimum required braking or safe stopping distance, and rail or grinding profile (if maintained).
(ii) Systems integration elements, to include types of train control systems, types of signal systems, grade crossing system types, and traction power systems (if used).
(iii) Railroad operational parameters, to include alerter timing.
(2)
(i) Identify the assumptions used to calculate the worst-case braking adhesion conditions.
(ii) Specify the maximum designed braking capacity.
(iii) Identify the on-board locations where crewmembers can initiate an irretrievable emergency brake application.
(iv) Identify the on-board locations of passenger brake alarms.
(v) Specify the time period for train operations to remain under the full control of the engineer after a passenger brake alarm is activated.
(vi) Detail the manner or means used to confirm that the trainset has safely cleared the boarding platform in which the application of a passenger brake alarm will no longer immediately initiate an irretrievable emergency brake application.
(vii) Detail the railroad procedures to be followed and trainset controls that must be activated to retrieve the full-service brake application described in § 238.731(d)(5).
(viii) Identify and maintain the approved standard for designing and testing main reservoirs, in accordance with § 238.731(f).
(ix) Specify the parameters set by the railroad to determine if the wheel-slide protection system has failed to prevent wheel-slide.
(x) Provide the details of the brake system functionality, monitoring, and diagnostics and any corresponding safety analysis.
(xi) Identify the worst-case grade condition on which Tier III equipment must be effectively secured while unattended.
(xii) Specify the operational parameters under which the engineer must acknowledge the alerter in order for train operations to remain under the full control of the engineer.
(xiii) Provide the procedures to retrieve a full-service brake application as described in § 238.751(c).
(xiv) Provide an analysis that confirms the ability of the railroad's alternate technology to provide an equivalent level of safety if a standard alerter is not used.
(xv) Provide information on the use of the headlight dimming functionality for Tier III trainsets when operating on a dedicated right-of-way.
(xvi) Identify and maintain the approved standard procedure for use of flashing lights at public highway-rail grade crossings if an alternative to the flashing rate for auxiliary lights under § 238.769(b) is used.
(e)
(i) Full-scale testing;
(ii) Quasi-static and dynamic analysis performed by a validated computer model supported by quasi-static test results; or
(iii) Engineering calculations.
(2)
(i) A test plan and associated procedures; and
(ii) Finite element analysis results.
(f)
(g)
(i) Design review, testing, or inspection documentation shall be submitted to FRA in advance for review.
(ii) Upon receipt of notification by FRA of the disapproval or disapproval in part, the railroad shall revise the documentation to address the measures identified by FRA to obtain approval. The revised documentation shall be reviewed and approved in accordance with paragraph (g)(1)(i) of this section.
(2)
(A) Notifying FRA with the first available date and location that the sample equipment can be inspected, which will be at least 45 days in advance of the inspection; and
(B) Submitting engineering drawings reflecting the design and configuration of the safety appliances, emergency systems and signage, and any other elements to be inspected as part of the sample-equipment inspection.
(ii) Should FRA take exception during the inspection, FRA will provide the railroad an inspection report documenting the exceptions taken within 30 days of the sample-equipment inspection. The railroad shall address all exceptions taken and then, if directed by FRA, request a reinspection pursuant to paragraph (g)(2)(i) of this section.
(iii) If the sample equipment conforms, then FRA will indicate that no exceptions are noted on the inspection report.
(a)
(1)
(i) A description of the passenger equipment, its physical characteristics, the version or type of safety-critical features installed (
(ii) A description of the railroad, systems, and conditions against which the pre-revenue service acceptance test plan is intended to demonstrate safe operation in accordance with the railroad's system description and design criteria required under § 238.110(d). This includes the physical characteristics of the railroad, any known physical constraints (
(iii) An identification of any approvals, qualifications, or waivers of FRA safety regulations required for the testing or for revenue service operation of the equipment.
(iv) An identification of the maximum speed and cant deficiency at which the equipment is intended to operate.
(v) A list of all tests to be conducted, indicating any interdependences or predecessor requirements that may exist, and a list of any testing of the equipment that has been previously performed.
(vi) A schedule for conducting the testing.
(vii) An identification of the applicable test procedures, test results or reports, and post-test analysis required by this part, corresponding to paragraph (a)(1)(v) of this section detailing the approach to verify—
(A) Safe vehicle-track system interaction in accordance with §§ 213.57, 213.329, 213.345, 238.139, or any applicable combination thereof.
(B) The brake system functional requirements and performance of the system and components in accordance with §§ 238.231, 238.431, or 238.731.
(C) That vehicle noise emission levels comply with part 210 of this chapter.
(D) That locomotive or trainset cab noise complies with §§ 229.121 or 238.759.
(E) Systems integration and compatibility with technology utilized on the routes the equipment is intended to operate over, to include—
(
(
(
(2)
(3)
(4)
(5)
(6)
(i) Test results for Tier I equipment will be made available to FRA upon request.
(ii) Test results for Tier II and Tier III equipment shall be submitted to FRA at least 60 days prior to the equipment being placed in revenue service.
(7)
(8)
(b)
(2) Retain a description of such testing and make such description available to FRA for inspection and copying upon request.
(3) For purposes of paragraph (b) of this section, passenger equipment design that has previously been used in revenue service in the United States means—
(i) The actual equipment used in such service;
(ii) Equipment manufactured identically to that actual equipment; and
(iii) Equipment manufactured similarly to that actual equipment with no material differences in safety-critical components or systems.
(c)
(c) At an interval not to exceed 184 days, as part of the required periodic mechanical inspection, each railroad shall test a representative sample of the emergency lighting systems on its passenger cars to determine that they operate as intended when the cars are in revenue service. The sampling method must conform with a formalized, statistical test method.
(a) * * *
(1) Be built in accordance with APTA standard PR-M-S-18-10. In particular, locomotives used in passenger service shall be connected to or interlocked with the door summary circuit to prohibit the train from developing tractive power if an exterior side door in a passenger car is not closed, unless the door is under the direct physical control of a crewmember for their exclusive use. APTA standard PR-M-S-18-10, “Standard for Powered Exterior Side Door System Design for New Passenger Cars,” approved February 11, 2011 is incorporated by reference into this section with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy of the incorporated document from the American Public Transportation Association, 1666 K Street NW, Suite 1100, Washington, DC 20006 (telephone 202-496-4800;
(i) Visual instructions for emergency operations of each plug-type exterior side door shall be provided. A manual interior and exterior emergency release mechanism shall be provided at each plug-type exterior side door. A clearly labeled emergency release mechanism, when activated, shall unlatch the door, disengage or unlock the local door isolation lock (if engaged), remove power from the door operator or controls, and allow the door to be moved to the open position. Feedback must be provided to the passenger to indicate that the mechanism has been actuated.
(ii) The emergency release mechanism shall not require the availability of electric or pneumatic power to activate. The emergency release actuation device shall be readily accessible, without the use of tools or another implement. The force necessary to actuate the interior emergency release mechanism shall not exceed 20 lbf. The force necessary to actuate the exterior emergency release mechanism shall not exceed 30 lbf using a lever type mechanism or 50 lbf using a “T” handle type mechanism. When actuated, the emergency release mechanism shall override any local door isolation locks, and it shall be possible to manually open the released door with a force not to exceed 35 lbf. The emergency release mechanism shall require a manual reset.
(iii) A speed interlock preventing operation of emergency release mechanism when vehicle is moving is permitted.
Pursuant to a railroad's pre-revenue service acceptance test plan under § 238.111, a railroad must demonstrate that its equipment does not exceed the safety limits of § 213.333 of this chapter. A railroad may demonstrate compliance by measuring the carbody and truck accelerations in accordance with § 213.333 over the entirety of the territory the vehicle is intended to operate, or by complying with the below enumerated requirements of this section. Nothing in this section affects a railroad's responsibility to comply with § 213.345 of this chapter.
(a)
(1) Up to and including 5 mph above the proposed maximum operating speed; and
(2) On track meeting the requirements for the class of track associated with the proposed maximum operating speed. For purposes of qualification testing, speeds may exceed the maximum allowable operating speed for the class of track in accordance with the test plan approved by FRA under § 238.111.
(b)
(c)
(1)
(i) When operated over Class 1 track, the vehicle type shall demonstrate the ability to negotiate a 12-degree curve with a coefficient of friction representative of dry track conditions
(ii) When operated over track Classes 2 through 5 at speeds producing no more than 6 inches of cant deficiency, the vehicle type shall be qualified by simulations performed under paragraph (c)(2) of this section and the measurement of carbody and truck accelerations during qualification testing in accordance with paragraphs (c)(3) and (4) of this section. If successful, the testing shall result in a transferable qualification with respect to the requirements of this section so long as the equipment is used at the same track class and cant deficiency.
(iii) APTA PR-M-S-014-06, Rev. 1, “Standard for Wheel Load Equalization of Passenger Railroad Rolling Stock,” Authorized June 1, 2017, is incorporated by reference into this section with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. All approved material is available for inspection at FRA and at the National Archives and Records Administration (NARA). Contact FRA at: Federal Railroad Administration Docket Clerk, 1200 New Jersey Avenue SE, Washington, DC;
(2)
(A) Minimally compliant analytical track (MCAT) conditions for the respective track class(es) as specified in appendix C to this part; and
(B) A track segment representative of the full route on which the vehicle type is intended to operate. Both simulations and physical examinations of the route's track geometry shall be used to determine a track segment representative of the route.
(ii) Linear system analysis shall be performed to identify the frequency and damping of the truck hunting modes. It shall be demonstrated that the damping of these modes is at least 5 percent, up to the intended operating speed +5 mph considering equivalent conicities starting at 0.1 up to 0.6.
(3)
(4)
(d)
(1) Vehicle types previously qualified by simulation and testing in accordance with paragraph (c) of this section on one route shall not require additional simulations, testing, or approval so long as operated on routes with the same track class designation and at the same or lower cant deficiency.
(2) For vehicle types intended to operate at speeds not to exceed Class 6 track or at any curving speed producing more than 5 inches of cant deficiency, but not exceeding 6 inches, qualification testing conducted over a representative segment of the new route shall demonstrate that the vehicle type will not exceed the carbody lateral and vertical acceleration safety limits specified in § 213.333 of this chapter.
(3) Vehicle types previously qualified by testing alone shall be subject to the requirements of paragraph (c) of this section for new equipment.
(e)
(1) Identification of the representative segment of the route on which the vehicle type is intended to operate for qualification testing;
(2) Consideration of the operating environment during qualification testing, including operating practices and conditions, the signal system, highway-rail grade crossings, and trains on adjacent tracks;
(3) The maximum angle found on the gage face of the designed (newly profiled) wheel flange referenced with respect to the axis of the wheelset that will be used for the determination of the Single Wheel L/V Ratio safety limit specified in § 213.333 of this chapter when conducting simulations in accordance with (c)(2) of this section;
(4) A target maximum testing speed in accordance with paragraph (a) of this section and the maximum testing cant deficiency; and
(5) The results of vehicle/track performance simulations that are required by this section.
(f)
(1) Stage-one testing shall include demonstration of acceptable vehicle dynamic response of the subject vehicle as speeds are incrementally increased—
(i) On a segment of tangent track, from maximum speeds corresponding to each track class to the target maximum test speed; and
(ii) On a segment of curved track, from the speeds corresponding to 3 inches of cant deficiency to the maximum testing cant deficiency.
(2) When stage-one testing has successfully demonstrated a maximum safe operating speed and cant deficiency, stage-two testing shall commence with the subject vehicle over a representative segment of the route as identified in paragraph (e)(1) of this section. A round-trip test run shall be conducted over the representative route segment at the speed the railroad will request FRA to approve for such service. An additional round-trip test run shall be conducted at 5 mph above this speed. The equipment shall be oriented differently in each leg of the round-trip test run.
(3) When conducting stage-one and stage-two testing, if any of the monitored safety limits are exceeded on
(4) Prior to the start of the qualification testing program, a qualifying Track Geometry Measurement System (TGMS) specified in § 213.333 of this chapter shall be operated over the intended route within 30 calendar days prior to the start of the qualification testing program.
(g)
(h)
(2) Previously qualified vehicle types operating at track Class 2 through 5 speeds, or at curving speeds producing up to 6 inches of cant deficiency, on one route may be qualified and approved for operation at the same class and cant deficiency on another route provided the vehicle types have been previously qualified by simulation and testing in accordance with paragraph (c) of this section for the same track class and cant deficiency.
(i)
(1) The track owner; or
(2) A railroad that provides service with the same vehicle type over trackage of one or more track owner(s), with the written consent of each affected track owner.
(a) * * *
(1) This subpart contains requirements for railroad passenger equipment operating at speeds not exceeding 125 miles per hour. All such passenger equipment remains subject to the safety appliance requirements contained in Federal statute at 49 U.S.C. chapter 203 and in applicable FRA regulations in this part 238, at part 231, and § 232.3 of this chapter. Unless otherwise specified, these requirements only apply to passenger equipment ordered on or after September 8, 2000, or placed in service for the first time on or after September 9, 2002.
(a)
(a)
(b)
(c)
(d)
(e)
(f)
(1)
(i) Have a minimum diameter of
(ii) Have a distance from the bottom clear length of the vertical handholds not to exceed 54 inches above top of rail.
(iii) Be installed so as to have a clear length extending at least 60 inches, or as high as practicable based on carbody design, above the floor of the cab. The design shall enable a person to safely turn around in order to exit the trainset. A smaller handhold, providing at least 16 inches clear length, may be installed above the exterior cab access door opening on the inside of the equipment to facilitate a person's ability to safely turn around.
(iv) Have a clearance distance between the vehicle body of a minimum of 2 inches, preferably 2
(2)
(g)
(h)
(i) A manual, double-lever type uncoupling lever, operative from either side of the locomotive; or
(ii) An uncoupling mechanism operated by controls located in the locomotive cab, or other secure location. Additional manual uncoupling levers or handles on the coupler provided only as a backup for that remotely operated mechanism are not subject to paragraph (h)(2) of this section.
(2)
(i)
(j)
(k)
(2) The requirements of paragraph (k)(1) of this section do not apply if railroad operating rules require, and actual practice entails, the maintenance and replacement of these components by maintenance personnel in locations protected by the requirements of subpart B of part 218 of this chapter equipped with ladders and other tools to safely repair or maintain those appurtenances.
(l)
This subpart contains specific requirements for railroad passenger equipment operating in a shared right-of-way at speeds not exceeding 125 mph and in an exclusive right-of-way without grade crossings at speeds exceeding 125 mph but not exceeding 220 mph. Passenger seating is permitted in the leading unit of a Tier III trainset if the trainset complies with the crashworthiness and occupant protection requirements of this subpart, and the railroad has an approved right-of-way plan under § 213.361 of this chapter and an approved HSR-125 plan under § 236.1007(c) of this chapter. Demonstration of compliance with the requirements of this subpart is subject to FRA review and approval under §§ 238.110 and 238.111.
(a)
(i) In all operating environments as defined by the railroad under §§ 238.110(d) and 238.111(a)(1)(ii); and
(ii) At all track speeds and over all track qualities consistent with the Track Safety Standards in part 213 of this chapter, up to the maximum operating speed and maximum cant deficiency for which the equipment is qualified.
(2) All passenger equipment shall meet the safety standards for suspension systems contained in part 213 of this chapter, or alternative standards providing at least equivalent safety if approved by FRA under the provisions of § 238.21. In particular—
(i)
(ii)
(b)
(c)
(d)
(1) The distance between the inside gauge of the flanges on non-wide flange wheels may not be less than 53
(2) The distance between the inside gauge of the flanges on wide flange wheels may not be less than 53 inches or more than 53
(3) The back-to-back distance of flanges of wheels mounted on the same axle shall not vary more than
Each lead vehicle must be equipped with a pilot, snowplow, or end plate that extends across both rails. The minimum clearance above the rail of the pilot, snowplow, or end plate is 3 inches. In general, the maximum clearance is 6 inches. For a lead vehicle equipped with an obstacle deflector or truck-mounted wheel guard (or both) to minimize the risk of derailment from substantial obstacles that pass beneath them and into the path of the wheels, the maximum clearance is 9 inches.
Overheat sensors for each wheelset journal bearing shall be provided. The sensors may be placed either onboard the equipment or at reasonable intervals along the railroad's right-of-way.
(a) Except as provided in paragraph (b) of this section, Tier III trainsets shall comply with the emergency communication requirements specified in § 238.121.
(b) Emergency communication back-up power systems shall, at a minimum, be capable of operating after experiencing the individually applied accelerations defined in either of the following paragraphs:
(1) Section 238.121(c)(2); or
(2) Section 6.1.4, “Security of furniture, equipment and features,” of GM/RT2100, provided that—
(i) The conditions of § 238.705(b)(2) are met;
(ii) The initial shock of a collision or derailment is based on a minimum load of 5g longitudinal, 3g lateral, and 3g vertical; and
(iii) Use of the standard is carried out under any conditions identified by the railroad, as approved by FRA.
(c) Railway Group Standard GM/RT2100, Issue Four, “Requirements for Rail Vehicle Structures,” December 2010, is incorporated by reference into this section with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. All approved material is available for inspection at the Federal Railroad Administration (FRA) and the National Archives and Records Administration (NARA). Contact FRA at: Federal Railroad Administration Docket Clerk, 1200 New Jersey Avenue SE, Washington, DC;
Each cab of a Tier III trainset shall have an emergency roof access location for crewmembers occupying the cab, unless the crewmembers have direct access to an emergency roof access point located in a passenger compartment of the trainset. Each emergency roof access location shall have a minimum opening of 26 inches longitudinally by 24 inches laterally and comply with the emergency roof access requirements specified in § 238.123(b), (d), and (e).
(a)
(b)
(c)
(a)
(b)
(c)
(d)
(a)
(2) A railroad shall not make any alterations during maintenance, or otherwise modify the cab, to cause the average sound level to exceed the requirements in paragraph (a)(1) of this section.
(3) The railroad or manufacturer shall follow the test protocols set forth in appendix I to this part to determine compliance with paragraph (a)(1) of this section and, to the extent reasonably necessary to evaluate the effect of alterations during maintenance, to determine compliance with paragraph (a)(2) of this section.
(b)
(i) On or before the next periodic inspection required by the railroad's inspection, testing, and maintenance program; or
(ii) At the time of the next major equipment repair commonly used for the particular type of maintenance needed if the railroad determines that the repair or replacement of the item or component requires significant shop or material resources that are not readily available.
(2) A railroad has an obligation to respond to an excessive noise report filed by a trainset cab occupant. The railroad meets its obligation to respond to an excessive noise report, as set forth in paragraph (b)(1) of this section, if the railroad makes a good faith effort to identify the cause of the reported noise, and where the railroad is successful in determining the cause, if the railroad repairs or replaces the items that cause the noise.
(3)(i) A railroad shall maintain a written or electronic record of any excessive noise report, inspection, test, maintenance, and replacement or repair completed pursuant to paragraph (b) of this section, and the date on which that inspection, test, maintenance, and replacement or repair occurred. If a railroad elects to maintain an electronic record, the railroad must satisfy the conditions listed in § 227.121(a)(2)(i) through (v) of this chapter.
(ii) The railroad shall retain these records for a period of one year.
(iii) The railroad shall establish an internal, auditable, monitorable system that contains these records.
(a) Tier III trainsets that are equipped with a sanitation compartment, as this term is defined in § 229.5 of this chapter, accessible only to train crewmembers shall meet the requirements set forth in § 229.137 of this chapter, and be maintained to the requirements of § 229.139 of this chapter.
(b) Railroads that do not provide sanitation compartments solely for use by crewmembers on board Tier III trainsets shall provide an alternate arrangement in accordance with § 229.137(b)(1)(i) of this chapter.
(a) Each trainset controlling cab shall be equipped with a speed indicator which is—
(1) Accurate within ±1.24 mph for speeds under 18.6 mph, then increasing linearly up to ±5 mph at 220 mph; and
(2) Clearly readable from the engineer's normal position under all light conditions.
(b) The speed indicator shall be based on a system of independent on-board speed measurement sources guaranteeing the accuracy level specified in paragraph (a)(1) of this section under all operational conditions.
(c) The speed indicator shall be calibrated periodically as defined in the railroad's inspection, testing, and maintenance program.
(a)
(b)
(2) A trainset shall be equipped with an event recorder with a certified crashworthy event recorder memory module that meets the requirements of appendix D to part 229 of this chapter. The certified crashworthy event recorder memory module shall be mounted for its maximum protection. (Although other mounting standards may meet this requirement, an event recorder memory module mounted in a non-crush zone area of the trainset and above the platform level is deemed appropriate “for its maximum protection.”) The event recorder shall record, and the certified crashworthy event recorder memory module shall retain, the data elements or information needed to support the data elements as specified in § 229.135(b)(4)(i) through (xv), (xvii), (xx), and (xxi). In addition, the event recorder shall record, and the certified crashworthy event recorder memory module shall retain, the following data elements or information needed to support the following data elements:
(i) Application and operation of the eddy current brake, if so equipped;
(ii) Passenger brake alarm request;
(iii) Passenger brake alarm override;
(iv) Bell activation; and
(v) Trainset brake cylinder pressures.
(c)
(d)
(e)
(f)
(a) Except as provided in paragraphs (c) and (d) of this section, each end of a Tier III trainset shall be equipped with a headlight comprised of at least two lamps, one of which shall be illuminated when the trainset is in use. Each lamp, when illuminated, shall comply with the angular, intensity, and illumination requirements of § 229.125(a) of this chapter.
(b) The leading unit of a trainset with a headlight not in compliance with the requirements of paragraph (a) of this section shall not be moved in revenue service if the defective headlight is discovered during the pre-service inspection required by § 238.903(d)(1), and may only move in accordance with § 238.1003(e). The leading unit of a trainset with a headlight not in compliance with the requirements of paragraph (a) of this section that is discovered while the trainset is in service may continue in service only to the nearest forward location where either the leading unit can be switched, repairs necessary to bring the trainset into compliance can be made, or the trainset can be moved according to the procedures specified in § 238.1003(b)(1) through (3).
(c) Headlights may be provided with a device to dim the light. The use of this feature for Tier III trainsets operating on a dedicated right-of-way shall be described by the railroad in its system description required under § 238.110(d)(2)(xv).
(d) If Tier III trainsets are equipped with headlights incorporating alternative technology, the number of lamps specified in paragraph (a) of this section does not apply, and—
(1) The railroad's inspection, testing, and maintenance program shall include procedures for determining that such headlights provide the illumination intensity required by paragraph (a) of this section; and
(2) A means must be provided to ensure that the minimum illumination intensity required by paragraph (a) of this section can be achieved under the snow or ice conditions expected in the geographic region in which the trainsets will be operated.
(a) Trainsets operated at a speed greater than 20 mph in a shared right-of-way over one or more public highway-rail grade crossings shall be equipped with operative auxiliary lights, in addition to the headlight required by § 238.767. Auxiliary lights shall conform with § 229.125(d)(1) though (3) of this chapter.
(b) Auxiliary lights required by paragraph (a) of this section may be arranged in any manner specified in § 229.125(e)(1) through (2) of this chapter.
(c) In addition to the requirements of paragraphs (a) and (b) of this section, auxiliary lights required by paragraph (a) of this section shall comply with § 229.125(f).
(d)(1) A lead unit of a trainset with only one operative auxiliary light must be repaired or switched to a trailing position before departure from the place where a pre-service inspection is required under § 238.903(d)(1) for that trainset.
(2) A lead unit of a trainset with only one operative auxiliary light that is discovered after the trainset enter service may continue to be used in passenger service:
(i) Until the next scheduled inspection of the trainset where the repairs necessary to bring the trainset into compliance can be made; or
(ii) According to the procedures specified in the railroad's inspection, testing, and maintenance program.
(3) A lead unit of a trainset with two failed auxiliary lights may only proceed to the next forward location where repairs can be made. This movement must be made according to the procedures specified in § 238.1003(b)(1) through (3).
(a) Except for paragraph (d)(3) of this section, the trailing end of each trainset shall be equipped with at least one marking device conforming with the characteristics specified in § 221.14(a)(1) through (3), along with the following other requirements:
(1) An arrangement to continuously illuminate when on the trailing end of the train; and
(2) For marker lights incorporating alternative technology, the railroad's inspection, testing, and maintenance program shall include procedures for determining that such marker lights meet the requirements of paragraphs (a) and (a)(1) of this section.
(b) The centroid of the marking device shall be located at a minimum of 48 inches above the top of the rail.
(c) Trailing end marking devices shall operate when the trainset is in service and be inspected as defined in the railroad's inspection, testing, and maintenance program.
(d)(1) A trainset with a marking device not in compliance with the requirements of paragraph (a) of this section shall not be moved in revenue service if the defective marking device is discovered during the pre-service inspection required by § 238.903(c)(2).
(2) Whenever a marking device prescribed in this section becomes inoperative en route, the train may be moved to the next forward location where the marking device can be repaired or replaced.
(3) A trainset's trailing end headlight illuminated on the dim setting satisfies the requirements of a highly visible marking device as described in paragraph (a) of this section.
Each trainset cab shall have cab lights in conformance with the requirements of § 229.127(a) of this chapter. Cab passageways and compartments shall also be adequately illuminated.
(a) Each leading end of trainset shall be equipped with a horn that conforms to the requirements of § 229.129(a) of this chapter.
(b) Each trainset horn shall be individually tested under paragraph (e) of this section, or through acceptance sampling under § 229.129(b)(1) of this chapter, to ensure compliance with paragraph (a) of this section.
(c) Except as provided in paragraph (d) of this section, each trainset equipped with a replacement horn shall be tested, in accordance with paragraph (e) of this section, before the next specified test required by the railroad inspection, testing and maintenance program.
(d) Trainsets that have already been tested individually under paragraph (e) of this section, or through acceptance sampling under § 229.129(b)(1) of this chapter, shall not be required to undergo sound level testing when equipped with a replacement trainset horn, provided the replacement trainset horn is of the same model as the horn that was replaced and the mounting location and type of mounting are the same.
(e) Testing of the trainset horn sound level shall be in accordance with § 229.129(c) of this chapter, with the following exceptions:
(1) In lieu of § 229.129(c)(7) of this chapter, the microphone shall be located 100 feet forward of the front-most car body structure of the trainset, four feet above the top of the rail, at an angle no greater than 20 degrees from the center line of the track, and oriented with respect to the sound source according to the manufacturer's recommendations. The observer shall not stand between the microphone and the horn.
(2) Reports required by § 229.129(c)(10) of this chapter may be maintained electronically.
(a) For certain periodic inspections, as defined by the railroad's inspection, testing, and maintenance program required under subpart I of this part, the railroad shall maintain a record of the inspection that shall contain at a minimum:
(1) The date the last periodic inspection was performed as required by the railroad's inspection, testing, and maintenance program;
(2) The name of the person conducting the inspection; and
(3) The name of the supervisor certifying that the inspection was performed.
(b) The information contained in the inspection record and summary report required under paragraph (c) of this section shall be made available to the engineer so that the engineer knows the trainset is ready for service. The inspection record and summary report shall be made available to the engineer by either—
(1) Electronic displays provided in the cab or other FRA-approved devices located within the trainset; or
(2) Being physically displayed in hardcopy form under a transparent cover in a conspicuous place in the cab of each trainset.
(c) The summary report shall be generated that provides pertinent information to review and will be made available to FRA upon request. At a minimum, the summary report shall include information such as the periodic inspection dates, applicable waivers, the type of brake system used (
(d) Compliance with the requirements of § 229.23 of this chapter shall satisfy the requirements of this section.
(a)
(2) Each overhead collector system, including the pantograph, shall be equipped with a means to electrically ground any uninsulated parts to prevent the risk of electrical shock on personnel working on the system.
(3) Means shall be provided to permit the engineer to determine that the pantograph is in its lowest position, and for securing the pantograph if necessary, without the need to mount the roof of the trainset.
(4) Each pantograph shall be equipped with a means to safely lower the pantograph in the event of an emergency. If an emergency pole is used for this purpose, that part of the pole which can be safely handled shall be marked to so indicate. This pole shall be protected from moisture and damage when not in use. The means of securement and electrical isolation of a damaged pantograph, when automatic methods are not possible, shall be addressed in the railroad's inspection, testing, and maintenance program.
(b)
(a)
(b)
(c)
(a)
(b)
(c)
(d)
(e)
(2)
(i) Isolated from the cab and passenger seating areas by a fire-resistant barrier; and
(ii) Designed to protect against overcharging and overheating.
(f)
(g)
(h)
(2) If equipped, support brackets, bearings, isolation mounts, and guards shall be present, function properly, and function as intended, as specified in the railroad's inspection, testing, and maintenance program.
(a)
(b)
(1)
(i) Self-locking feature, including locknut and locking bolt, that meets the prevailing torque requirements for locking fasteners such as those specified by the Industrial Fastener Institute for the applicable grade and size fastener used.
(ii) Locking device that provides the minimum prevailing first removal torque value for locking fasteners, such as those specified by the Industrial Fastener Institute for the applicable grade and size fastener used.
(iii) Wedge-locking washers consisting of two symmetrically designed washers that have inclined ramps on the sides in mutual contact and non-slip contact surfaces on the sides in contact with the nut and work piece. Washer and nut or bolt arrangements utilizing similar locking principles are also acceptable.
(iv) Lock washers that meet the requirements for lock washers specified by the Industrial Fastener Institute for the applicable grade and size fastener used.
(v) Locking tab, cotter pin, or safety wire that restricts rotation of the bolt, or nut, or both.
(2)
(i) Designed and fabricated in accordance with the welding process and the quality control procedures contained in the applicable American Welding Society Standard, the Canadian Welding Bureau Standard, or an equivalent nationally or internationally recognized welding standard;
(ii) Performed by an individual possessing the qualifications to be certified under the applicable American Welding Society Standard, the Canadian Welding Bureau Standard, or an equivalent nationally or internationally recognized welding qualification standard;
(iii) Inspected by an individual qualified to determine that the welding has been performed in accordance with the requirements in paragraph (b)(2)(i) of this section. A written or electronic record of the inspection shall be retained by the railroad operating the equipment and shall be provided to FRA upon request. At a minimum, this record shall include the date, time, and location of the inspection, and the identification and qualifications of the person performing the inspection.
(iv) Repaired in accordance with the requirements of paragraphs (b)(2)(i) through (iii) of this section.
(3)
(4)
(5)
(c)
(d)
(B) Each vertical handhold provided for passengers shall be positioned so that the bottom clear length shall not be more than 54 inches above top of rail.
(ii)
(B) Vertical handholds provided for cab access doors shall have a clear length extending above the floor of the cab at least 48 inches, and where practicable at least 60 inches or as high as feasible based on carbody design, enabling a person to safely turn around. A smaller handhold, providing at least 16 inches of clear length, may be installed above the exterior cab access door opening on the inside of the equipment to facilitate a person's ability to safely turn around.
(iii)
(B) If one horizontal handhold is used it shall be not less than 58.5 nor more than 64.5 inches above top of rail.
(C) If two horizontal handholds are used, one horizontal handhold shall be at most 54 inches above top of rail. The second horizontal handhold shall be 54 to 58 inches above the step.
(D) If one vertical handhold is used, its lowest clearance point shall be at most 54 inches above top of rail. Its highest clearance point shall be at least 70 inches above top of rail. The handhold shall be located above the clear length of the step.
(E) If two vertical handholds are used, the lowest clearance point of each vertical handhold shall be at most 54 inches above top of rail. The highest clearance point of each vertical handhold shall be at least 58 inches above the step. Each set of vertical handholds shall be spaced not less than 16 inches nor more than 22 inches apart. To align two vertical handholds with the sill steps, the handholds shall be located in the longitudinal direction such that the inside face of the outboard handhold is no more than 2 inches outboard of the inside face of the outboard vertical leg of the step and is no less than 10 inches outboard from the inside face of the inboard vertical leg.
(F) When a combination of horizontal and vertical handholds is used, the horizontal handhold shall be 54 to 58 inches above the step. The lowest clearance point of the vertical handhold shall be at most 54 inches above top of rail. The highest clearance point of the vertical handhold shall be at least 70 inches, preferably 78 inches above top of rail. One continuous handhold may be used as long as it meets the dimensional requirements of this paragraph.
(iv)
(B) There shall be no more than 16 inches between the side of the vehicle or trainset unit to the useable clear length of an end handhold, measured horizontally.
(C) If the equipment is designed with a tapered nose, the side of the car shall be determined based on the outer dimension of the tapered nose where the end handhold is attached.
(D) End handholds shall be positioned no more than 50 inches from top of rail. Handholds may be attached to any primary structure (
(E) An uncoupling lever may be used as an end handhold if it meets the requirements of paragraphs (b), (c), and (d) of this section.
(F) End handholds are not required at the ends of vehicles equipped with an automatic coupling mechanism that can be safely operated from inside the appropriate cab of the vehicle and does not require ground intervention from a person such as to go on, under, or between to couple air, electric or other connections.
(2)
(3)
(4)
(i) They must be made of
(ii) They must be designed to support a load of 350 lbs at any point on the useable length, in any direction, and shall be rigidly attached to the carbody structure such that the maximum elastic deflection at the midpoint of an unsupported span under 50 percent of the applied 350-lb load shall be no greater than L/120, where L is the unsupported length of the span. Stresses in the handhold and the carbody structure to which it is attached shall be less than the minimum yield strength for the load values specified in this paragraph. For purposes of evaluation, the load may be distributed over a distance of not more than 3 inches along the usable clear length of the handhold.
(5)
(e)
(ii) The sill step tread shall be no more than 24 inches, preferably no more than 22 inches, above top of rail.
(iii) The outside edge of the sill step tread shall be no more than 2 inches inside of any carbody structure located directly above the sill step and below the lowest side handhold.
(iv) Sill steps are not required—
(A) If an exterior cab access door or an exterior passenger access door is equipped with handholds and steps, as required by this section, and is located such that an employee riding on the step has an unobstructed view of the track ahead.
(B) At the ends of vehicles equipped with an automatic coupling mechanism that can be safely operated from inside the appropriate cab of the vehicle and does not require ground intervention from a person such as to go on, under, or between to couple air, electric or other connections.
(2)
(ii) The minimum clear distance above the usable clear length of each step shall be—
(A) 4.7 inches for Tier III trainsets.
(B) 8 inches for applicable Tier I equipment as specified in paragraph (a) of this section.
(iii) The minimum clear space from the outside edge of the sill step shall be 6 inches for the entire usable clear length of the step, of which at least 2 inches shall be tread surface.
(iv) Sill steps shall not have a vertical rise between treads exceeding 18 inches.
(v) Proper clearance must be provided between steps and the vehicle running gear to provide proper clearance from moving parts.
(3)
(4)
(i) If a rectangular cross-section is used, the sill step shall have a minimum
(ii) Sill steps shall be designed to support individually applied loads at any point on the useable length of 450 lbs in the downward direction and 350 lbs in the horizontal direction (inward or outward). Stresses in the sill step and the carbody structure to which it is attached shall be less than the minimum yield strength for the load values specified in this paragraph. For purposes of evaluation, the load may be distributed over a distance of not more than 3 inches along the usable clear length of the sill step.
(f)
(A) For a trainset, or any section of a trainset that is not semi-permanently connected to an adjacent unit of the same trainset, a minimum of four locations, two per side, shall be provided.
(B) For single vehicles or trainset units that are not semi-permanently connected to an adjacent vehicle or trainset unit, a minimum of two locations, one per side, shall be provided.
(ii) Exterior side doors used for passenger boarding and alighting that provide ground-level access equipped with handholds meeting the requirements of paragraphs (d)(1)(i), (d)(2), and (d)(3) of this section may be used to satisfy the requirements of paragraph (f)(1)(i) of this section so long as access to the controlling cab can be gained from the interior of the trainset.
(iii) An exterior cab access side door that provides access to the trainset cab and is equipped with handholds meeting the requirements of paragraphs (d)(1)(ii), (d)(2), and (d)(3) of this section may be used to satisfy the requirements of paragraph (f)(1)(i) of this section so long as access to the interior of the trainset can be gained from the trainset cab.
(2)
(A) The outside edge of the tread of the step shall be not more than 3 inches inside of the edge of the door threshold; and
(B) The bottom tread shall be not more than 24 inches, preferably not more than 22, inches above top of rail.
(ii) Handholds meeting the requirements of paragraphs (d)(1)(ii), (d)(2), and (d)(3) of this section shall be provided at each location where ground level crew access steps are provided.
(iii) The steps required under paragraph (f)(2)(i) may be retractable.
(iv) Portable ladders equipped with handrails designed for safe access from ground level can also be used in lieu of crew side access steps.
(g)
(i) Couple on impact; and
(ii) Uncouple by either activation of a traditional uncoupling lever, or some other type of uncoupling mechanism that does not require a person to go on, under, or between the trainset units.
(2) An automatic coupler is not required—
(i) At trainset unit ends that are semi-permanently coupled to an adjacent trainset unit; or
(ii) Where the coupler on the leading and trailing ends of a trainset is only used for rescue purposes. The railroad shall develop and implement rescue procedures that assure employee safety during rescue operations are included as part of its inspection, testing, and maintenance program.
(h)
(i) A manual uncoupling lever; or,
(ii) An uncoupling mechanism operated by controls located in the appropriate cab, or other secure location in a trainset. Additional manual uncoupling levers or handles on the coupler provided only as a backup for that remotely operated mechanism are not subject to paragraph (h)(2) of this section, but shall allow use from outside the gage of the track, or in accordance with railroad procedures.
(2)
(i)
(j)
(k)
(2) The requirements of paragraph (k)(1) do not apply if railroad operating rules require, and actual practice entails, the maintenance and replacement of these components by maintenance personnel in locations protected by the requirements of subpart B of part 218 of this chapter equipped with ladders and other tools to safely repair or maintain those appurtenances.
(l)
This subpart contains specific requirements for inspection, testing, and maintenance of Tier III passenger equipment.
(a)
(b)
(1) Inspection procedures, intervals, and acceptance/rejection criteria addressing applicable reliability-based monitoring and inspections based on appendix E to this part or an equivalent national or international standard;
(2) Test procedures and intervals;
(3) Scheduled preventative maintenance intervals;
(4) Maintenance procedures;
(5) Special testing equipment or measuring devices required to perform inspections and tests;
(6) The training, qualification, and designation of employees and contractors to perform inspections, tests, and maintenance pursuant to the requirements of paragraph (h) of this section;
(7) Out-of-service procedures to protect out-of-service equipment, to account for time out of service, and how the railroad will return out-of-service equipment back to service; and
(8) The required operational braking capability.
(c)
(1) Pre-departure inspections,
(i) Verification of application and release of the service and emergency brakes using the monitoring system; and
(ii) Functional tests of the passenger access exterior side doors.
(2) Pre-service inspections,
(i) All items covered under paragraph (c)(1) of this section. Defects with the brake system discovered during a pre-service inspection shall be handled in accordance with § 238.1003(d)(1), except that if a trainset's braking system is discovered having less than the required operational braking capability, it shall move immediately to a repair point under the provisions of § 238.1003(b) and (e).
(ii) An interior inspection of emergency systems, ensuring functionality of certain systems (such as the public address and intercom systems) including a determination that any required tools or other implements necessary for emergency egress are present.
(3) Brake system inspections.
(4) Truck inspections.
(5) Other safety-critical periodic inspections.
(d)
(e)
(1) The railroad shall identify which inspection, testing, or maintenance tasks require special training or qualifications.
(2) The training and qualification program shall, at a minimum, address the items in § 238.109(b).
(3) A list of all personnel and contractors designated as qualified to perform activities specific to paragraph (e)(1) of this section, training material, and records shall be maintained and made available to FRA upon request.
(4) Only individuals qualified under the railroad's program may inspect, test, or maintain components or systems the railroad deems safety-critical.
(f)
After the railroad's inspection, testing, and maintenance program is approved by FRA pursuant to § 238.913, the railroad shall adopt and comply with the program, and perform—
(a) All inspections and tests described in the program in accordance with the procedures and criteria for the components that the railroad identifies as safety-critical; and
(b) All maintenance tasks described in the program in accordance with the procedures and intervals for the components that the railroad identifies as safety-critical.
(a) The railroad shall establish standard procedures for performing all safety-critical or potentially hazardous inspection, testing, maintenance, and repair tasks. These standard procedures shall—
(1) Describe in detail each step required to safely perform the task;
(2) Describe the knowledge necessary to safely perform the task;
(3) Describe any precautions that shall be taken to safely perform the task;
(4) Describe the use of any safety equipment necessary to perform the task;
(5) Be approved by the railroad's official responsible for safety;
(6) Be enforced by the railroad's supervisors responsible for accomplishing the tasks; and
(7) Be reviewed annually by the railroad and its designated employee representatives pursuant to § 238.913(e).
(b) The inspection, testing, and maintenance program required by this section is not intended to address and should not include procedures to address employee working conditions that arise in the course of conducting the inspections, tests, and maintenance set forth in the program. When reviewing the railroad's program, FRA does not intend to review any portion of the program that relates to employee working conditions.
Each railroad shall establish an inspection, testing, and maintenance quality control/quality assurance program. The railroad or its contractor(s), or both, shall ensure that inspections, testing, and maintenance are performed in accordance with the railroad's approved inspection, testing, and maintenance program.
The railroad's inspection, testing, and maintenance program established pursuant to this subpart I shall be comprised of—
(a) The complete inspection, testing, and maintenance program for all components, systems, or sub-systems on a Tier III trainset, whether safety-critical or not, to include all inspections, tests, and maintenance tasks required, the intervals and periodicity of those inspections, tests, and maintenance tasks, and all associated information and procedures required for the railroad and its personnel to implement the program. The railroad shall submit the complete program to FRA along with the condensed version required under paragraph (b) of this section for FRA review to ensure that the railroad has properly classified a particular inspection, test, or maintenance task as safety-critical or not. Should FRA identify a particular inspection, test, or maintenance task as safety-critical, the railroad shall include the particular inspection, test, or maintenance task in the condensed version of the program under paragraph (b) of this section.
(b) A condensed version of the program that contains only those items identified as safety-critical by the railroad. The railroad shall submit this version for approval by FRA, as provided in § 238.913. The operation of emergency equipment, emergency back-up systems, trainset exits, and trainset safety-critical hardware and software systems shall be deemed safety-critical.
(a)
(2)
(b)
(1) The information prescribed in this subpart for such program or amendment;
(2) The name, title, address, and telephone number of the primary point of contact for the program or amendment; and
(3) A statement affirming that the railroad has provided a copy of the program or amendment on designated representatives of railroad employees as required under paragraph (c) of this section, together with a list of the names and addresses of those persons.
(c)
(1) Each comment shall set forth specifically the basis upon which it is made and contain a concise statement of the interest of the commenter in the proceeding.
(2) Each comment shall be submitted to the Associate Administrator.
(3) The commenter shall certify that a copy of the comment was provided to the railroad.
(d)
(2)
(3)
(e)
This subpart contains specific requirements for the movement of defective Tier III passenger equipment.
(a) Except as provided in § 238.903(c)(2)(i) and paragraph (d)(1) of this section, a Tier III trainset with one or more safety-critical items not in compliance with the railroad's approved inspection, testing, and maintenance program identified during a pre-service inspection required by § 238.903(c)(2) shall not be moved in revenue service and may only be moved in accordance with paragraph (e) of this section.
(b) A Tier III trainset with one or more safety-critical items not in compliance with the railroad's approved inspection, testing, and maintenance program identified while en route to its destination after its pre-service inspection is performed and before its next pre-service inspection is performed, may be moved only after the railroad has complied with the following:
(1) An individual qualified under the training and qualification program implemented pursuant to § 238.903(e) determines that it is safe to move the trainset, consistent with the railroad's operating rules. If appropriate, this determination may be made based upon a description of the defective condition provided by a crewmember. If the determination required by this paragraph is made by an off-site, qualified individual based on a description of the defective condition by on-site personnel, then a qualified individual shall perform a physical inspection of the defective equipment at the first location possible to verify the description of the defect provided by the on-site personnel.
(2) The qualified individual who made the determination in paragraph (b)(1) of this section notifies the train crew, in accordance with the railroad's operating rules, of the maximum authorized speed, authorized destination, and any other operational restrictions that apply to the movement of the non-compliant trainset. This notification may be achieved through the tag required by paragraph (b)(3) of this section.
(3) The qualified individual securely attaches to the control stand on each control cab of the trainset a tag bearing the words “NON-COMPLIANT TRAINSET” and containing the following information:
(i) The trainset, and unit or car number;
(ii) The name, job title, location, and signature if possible, of the qualified individual making the determination that the non-compliant trainset is otherwise safe to move;
(iii) The location and date of the inspection that led to the discovery of the non-compliant item;
(iv) A description of each non-compliant item;
(v) Movement restrictions, if any; and
(vi) The authorized destination of the trainset.
(c) Automated tracking systems used to meet the tagging requirements contained in paragraph (b)(3) of this section must comply with § 238.15(c)(3).
(d) In the event of an in-service failure of the braking system—
(1) The trainset may continue in service for no more than 5 consecutive calendar days so long as the trainset meets or exceeds its required operational braking capability.
(2) When below the required operational braking capability, the trainset may remain in service until the next pre-service inspection and proceed only in accordance with railroad operating rules relating to the percentage of operative brakes and at a speed no greater than the maximum authorized speed as determined by § 238.731(e)(4), so long as the requirements of paragraph (b) of this section are otherwise fully met.
(e) Except as provided in paragraph (d)(1) of this section, a trainset with one or more safety-critical items not in compliance with the railroad's approved inspection, testing, and maintenance program may be moved without passengers, within a yard, and at speeds not to exceed 10 mph, without meeting the requirements of paragraph (b) of this section where the movement is solely for the purpose of repair. A railroad shall ensure that the movement is made safely. If the railroad elects to repair the equipment in place, it shall, at a minimum, tag the equipment in accordance with paragraph (b)(3) of this section to make clear that the trainset is defective.
(f) Nothing in this section authorizes the movement of Tier III equipment subject to a Special Notice for Repair under part 216 of this chapter unless the movement is made in accordance with the restrictions contained in the Special Notice.
(a) This appendix contains requirements for using computer simulations to comply with the vehicle/track system qualification testing requirements specified in § 238.139.
(b) As specified in § 238.139(c), MCAT shall be used for the qualification of new vehicle types intended to operate at track Classes 2 through 5 speeds, or at any curving speed producing no more than 6 inches of cant deficiency. In addition, as specified in § 238.139(d)(2), MCAT shall be used to qualify on new routes vehicle types that have previously been qualified, by testing only, on other routes.
(1)
(2)
(i)
(A)
(B)
(C)
(D)
(E)
(F)
(G)
(H)
(I)
(ii)
(iii)
(B) Table 2 of this appendix depicts the degree of curvature for use in MCAT simulations of passenger equipment performance on Class 2 through 5 track, based on the equation in paragraph (b)(2)(iii)(A) of this appendix.
(3)
(A) All simulations shall be performed using the design wheel profile and a nominal track gage of 56.5 inches, using tables 4, 5, or 6 of this appendix, as appropriate. In addition, all simulations involving the assessment of curving performance shall be repeated using a nominal track gage of 57.0 inches, using tables 5 or 6 of this appendix, as appropriate.
(B) For tangent track segments, all simulations on the hunting perturbation shall be repeated using a high-conicity, wheel-rail profile combination approved by FRA that produces a minimum conicity of 0.4 for wheelset lateral shifts up to flange contact.
(C) All simulations shall be performed using a wheel/rail coefficient of friction of 0.5.
(ii)
(A)
(B)
(C)
This appendix prescribes the procedures for the in-cab noise measurements for Tier III trainsets at speed. The purpose of the cab noise testing is to ensure that the noise levels within the cab of the trainset meet the minimum requirements defined within § 238.759(a)(1).
The instrumentation used shall conform to the measurement instrumentation requirements prescribed in paragraph I of appendix H to part 229 of this chapter.
The test site shall meet the following requirements:
(1) The passenger trainset shall be tested over a representative segment of the railroad and shall not be tested in any site specifically designed to artificially lower in-cab noise levels.
(2) All windows, doors, cabinets seals, etc., must be installed in the trainset cab and be closed.
(3) The heating, ventilation, and air conditioning (HVAC) system or a dedicated heating or air conditioner system must be operating on high, and the vents must be open and unobstructed.
(1) L
(2) The sound level meter shall be calibrated with the acoustic calibrator immediately before and after the in-cab tests. The calibration levels shall be recorded.
(3) Any change in the before and after calibration level(s) shall be less than 0.5 dB.
(4) The sound level meter shall be located:
(i) Laterally as close as practicable to the longitudinal centerline of the cab, adjacent to the engineer's seat;
(ii) Longitudinally at the center of the engineer's nominal seating position; and
(iii) At a height 1,219 mm (48 inches) above the floor.
(5) The sound measurements shall be taken autonomously within the cab.
(6) The sound level shall be recorded at the maximum approved train speed ± 3km/h (±1.86 mph).
(7) After the trainset speed has become constant at the maximum test speed and the in-cab noise is continuous, L
To demonstrate compliance, the entity conducting the test shall maintain records of the following data. The records created under this procedure shall be retained and made readily accessible for review for a minimum of three years. All records may be maintained in either written or electronic form.
(1) Name(s) of persons conducting the test, and the date of the test.
(2) Description of the passenger trainset cab being tested, including: model number, serial number, and date of manufacture.
(3) Description of sound level meter and calibrator, including: make, model, type, serial number, and manufacturer's calibration date.
(4) The recorded measurement during calibration and for the microphone location during operating conditions.
(5) The recorded measurements taken during the test.
(6) Other information as appropriate to describe the testing conditions and procedure.
(7) Where a trainset fails a test and is re-tested under the provisions of section III(7) of this appendix, the suspected reason(s) for the failure.
As required by § 238.110(e)(1), this appendix applies to single pieces of passenger equipment that are fully compliant with existing Tier I structural requirements, provide additional CEM features, and are intended for interoperable use within conventional, Tier I-compliant trains. The requirements of this appendix do not apply to Tier I alternatively designed trainsets, or single pieces of equipment fully compliant with existing Tier I structural requirements outfitted with pushback couplers as the only CEM feature. Each new, fully Tier I-compliant single vehicle design equipped with additional CEM features shall be subject to the following collision scenarios to ensure appropriate performance of the crush zone and stable load transmission.
The new single car or locomotive design shall be placed into a reference train composed of vehicles of similar design, the details of which depend upon whether the single car is a locomotive, cab car, or an intermediate car. The vehicles shall be in-line without offset between adjacent cars. The reference train shall be subjected to a collision with an identical train on level, tangent track as described below. This symmetric scenario may be simulated by a collision of the reference train moving at one-half the collision speed into a rigid, stationary plane whose normal direction is parallel to the direction of travel (representing the plane of symmetry). Each car in both trains shall have a weight corresponding to AW0 and shall not have the brakes applied.
For non-passenger carrying locomotives with CEM features, the reference train shall consist of five of the non-passenger carrying CEM locomotives. The closing speed for this collision scenario is that which is sufficient to exhaust the design energy-absorption capacity of the leading locomotive crush zone.
For evaluation of the performance of a CEM-equipped cab car, the reference train shall consist of five such CEM-equipped cab cars. If the CEM-equipped cab cars are not all of symmetric design, each end of the trailing four cars shall have the same crush zone as that of the non-cab end of the non-symmetric cab car under evaluation. The closing speed for this collision scenario is that which results in dissipation of no less than 75 percent of the design energy-absorption capacity of at least one crush zone at the colliding interface.
Evaluation of the performance of CEM-equipped intermediate cars shall be performed using a reference train consisting of four identical intermediate cars behind a leading vehicle with the following characteristics:
(a)(1) The leading vehicle shall be decelerated to zero by:
(i) A prescribed motion equivalent to a constant, longitudinal deceleration of 8g; or
(ii) An application of forces resulting in a deceleration of at least 8g.
(2) The point of application of the motion constraint or the measurement of the resulting speed shall be located in the rear half of the leading vehicle.
(b) The trailing end of the leading vehicle shall have the same crash characteristic as the adjacent end of the coach to be assessed (if the evaluation vehicle is of a symmetric design), or the same crash characteristic as the trailing end of the coach to be assessed (if the evaluation vehicle is of a non-symmetric design), where:
(1) The crush zone shall be represented with the same degree of detail as the coach to be assessed; and
(2) Any additional potential contact surfaces shall be represented, at a minimum, as rigid geometry.
(c) The forward structure of the leading vehicle may be modelled:
(1) Identically to the coach to be assessed;
(2) As a lumped mass model with a stiffness not less than the coach to be assessed; or
(3) As rigid.
(d) The criteria for preservation of survival space in § 238.705(b)(1)(i) and (ii) shall apply to the deformable portion of the lead vehicle, excluding its crush zone.
(e) The four remaining identical intermediate cars (including the intermediate car being assessed) shall follow the leading vehicle described, because CEM-equipped intermediate cars cannot be placed in the lead position in a train. The intermediate car to be assessed shall be placed immediately behind the leading vehicle; all other vehicles are not part of the assessment and may be simplified.
(f) The closing speed for this collision scenario is that which results in dissipation of no less than 75 percent of the design energy-absorption capacity of at least one crush zone at the colliding interface.
An offset simulated collision between identical trains shall be run under the conditions defined in § 238.707(a) for locomotive- or cab car-led trains.
The performance of the evaluated single vehicle in the in-line and offset collision scenarios shall meet the deformation requirements in § 238.705(b)(1)(i) and (ii), and, if the single vehicle being evaluated is a cab car or locomotive, the requirements in § 238.705(b)(3)(i) through (iv).
The following is the minimum information necessary to be provided to FRA as part of pre-revenue service acceptance testing plan procedures under § 238.111(a)(3):
(a) A clear statement of the test objectives. One of the principal test objectives shall be to demonstrate that the equipment meets the safety requirements specified in this part when operated in the environment in which it is to be used.
(b) Dates, times, and locations of the pre-revenue service tests to permit FRA observation of such tests.
(c) Any special safety precautions to be observed during testing.
(d) A description of the railroad property or test facilities to be used to conduct the testing.
(e) Prerequisites for conducting each test.
(f) A detailed description of how the testing is to be conducted. This description shall include all the following:
(1) Identification of the equipment and on-board sub-systems to be tested.
(2) The method for testing.
(3) The instrumentation to be used.
(4) The means by which the test results will be recorded and reported.
(5) A description of the information or data to be obtained.
(6) A description of any criteria to be used as safety limits during the testing.
(7) The acceptance criteria to be used to evaluate the equipment and on-board sub-systems performance. If acceptance is to be based on extrapolation of less than full-level testing results, the analysis to be done to justify the validity of the extrapolation shall be described.
(g) Inspection, testing, and maintenance procedures to be followed to ensure testing is conducted safely.
Issued in Washington, DC.