Forest Service
Rural Housing Service
Rural Utilities Service
Foreign-Trade Zones Board
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Agency for Healthcare Research and Quality
Food and Drug Administration
Indian Health Service
National Institutes of Health
Coast Guard
U.S. Customs and Border Protection
Fish and Wildlife Service
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
Pipeline and Hazardous Materials Safety Administration
Foreign Assets Control Office
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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U.S. Small Business Administration.
Direct final rule.
SBA is amending the disaster assistance regulations to reflect changes made to the Small Business Act by several recent statutes. These changes provide two new types of disaster declaration authority and revise eligibility for the Military Reservist Economic Injury Disaster Loan (MREIDL) program. This direct final rule conforms the regulations to the Act by adopting the new statutory requirements without change.
This rule is effective June 5, 2023 without further action, unless significant adverse comment is received by May 19, 2023. If significant adverse comment is received, SBA will publish a timely withdrawal of the rule in the
You may submit comments, identified by number SBA-2023-0001 through the Federal eRulemaking Portal:
SBA will post all comments on
Eric Wall, Office of Disaster Recovery and Resilience, 409 3rd St. SW, Washington, DC 20416, (202) 205-6739.
This direct final rule implements regulatory changes required by three recent laws amending the Small Business Act: The Disaster Assistance for Rural Communities Act, Public Law 117-249 (December 20, 2022); the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Public Law 116-136 (March 27, 2020); and the National Defense Authorization Act for Fiscal Year 2020 (NDAA 2020), Public Law 116-92 (December 20, 2019). SBA has already implemented all of these statutory changes except for the new rural declaration authority authorized by the Disaster Assistance for Rural Communities Act, which requires SBA to issue implementing regulations within 120 days after enactment. The specific regulatory changes are further described below.
SBA is revising 13 CFR 123.3,
SBA is also adding paragraph (a)(7) to describe SBA's new declaration authority authorized by the CARES Act. 15 U.S.C. 636(b)(2)(D). Section 1110(f) of the CARES Act provides SBA the authority to declare an economic injury disaster following a declaration of an emergency involving Federal primary responsibility under Section 501(b) of the Stafford Act by the President. 42 U.S.C. 5191(b). When the President makes such a declaration, SBA will “deem that such an emergency affects each State or subdivision thereof (including counties), and that each State or subdivision has sufficient economic damage to small business concerns to qualify for assistance under this paragraph and [SBA] shall accept applications for such assistance immediately.”
SBA is revising 13 CFR 123.4,
SBA is also revising this provision to state that when SBA issues an economic injury disaster declaration in response to a determination of an emergency involving Federal primary responsibility by the President, the disaster area shall include each State or subdivision thereof (including counties) included in the President's emergency determination. If the President determines that a nation-wide emergency exists, then SBA will issue a nation-wide economic injury disaster declaration.
SBA is revising several sections in 13 CFR part 123, subpart F,
SBA is revising 13 CFR 123.500,
SBA is revising 13 CFR 123.501,
SBA is similarly revising 13 CFR 123.507,
Finally, SBA is revising §§ 123.503, 123.504(a) and (f), 123.505, 123.506, 123.507, and 123.511 to remove the words “active duty” and replace them with “active service.” All of the changes to 13 CFR subpart F have already been implemented; this direct final rule merely updates the regulations to reflect current statutory requirements.
Agencies typically utilize direct final rulemakings for routine, non-controversial regulatory actions that are unlikely to receive adverse comments. In direct final rulemaking, an agency publishes a final rule with a statement that the rule will go into effect unless the agency receives significant adverse comment within a specified period. Significant adverse comments are comments that provide strong justifications why the rule should not be adopted or for changing the rule. If the agency receives no significant adverse comment in response to the direct final rule, the rule goes into effect. If the agency receives significant adverse comment, the agency withdraws the direct final rule and may instead issue a proposed rulemaking.
SBA has determined that the regulatory changes addressed in this direct final rulemaking are routine, non-controversial, and not likely to result in adverse comments. SBA is implementing changes required by statute and, with the exception of the rural disaster declaration authority, all of the changes are already in effect—SBA is merely updating the regulations in order to conform to the statute. In implementing the rural disaster declaration authority, SBA is adopting regulations that conform to the statute and legislative history without any extraneous interpretation. Because the changes in this rule are prescribed by statute, SBA does not expect significant adverse comments.
The Office of Management and Budget has determined that this rule is not a significant regulatory action under Executive Order 12866, and a Regulatory Impact Analysis is not required. No action is warranted for Executive Order 13563 as the rule is not significant and no Regulatory Impact Analysis is required.
This action meets applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have preemptive effect or retroactive effect.
This rule does not have federalism implications as defined in Executive Order 13132. It will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in the Executive Order. As such it does not warrant the preparation of a Federalism Assessment.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
Subtitle E of the Small Business Regulatory Enforcement Fairness Act of
SBA has determined that this rule does not impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C., Chapter 35.
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, generally requires that when an agency issues a proposed rule, or a final rule pursuant to section 553(b) of the APA or another law, the agency must prepare a regulatory flexibility analysis that meets the requirements of the RFA and publish such analysis in the
Rules that are exempt from notice and comment are also exempt from the RFA requirements, including conducting a regulatory flexibility analysis, such as when—among other exceptions—the agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. SBA Office of Advocacy Guide: How to Comply with the Regulatory Flexibility Act, Ch. 1. p. 9. Since this rule is exempt from notice and comment, SBA is not required to conduct a regulatory flexibility analysis.
Disaster assistance, Loan mitigation, Loan programs—physical disaster (home, business).
For the reasons set forth in the preamble, the SBA amends 13 CFR part 123 as follows:
15 U.S.C. 632, 634(b)(6), 636(b), 636(d), 657n, and 9009.
(a) There are seven ways in which disaster declarations are issued which make SBA disaster loans possible:
(6) SBA makes a physical disaster declaration in a rural area (rural disaster declaration) upon request from the Governor of the State or the Chief Executive of the Indian tribal government in which the rural area is located. Rural area means any county or other political subdivision of a State, the District of Columbia, or a territory or possession of the United States that is designated as a rural area by the Bureau of the Census. The following conditions must be met:
(i) The President has declared a Major Disaster for the rural area, but has not authorized individual assistance; and
(ii) Any home, small business concern, private nonprofit organization, or small agricultural cooperative in the rural area has incurred significant damage. Significant damage means uninsured losses of 40 percent or more of the estimated fair replacement value or pre-disaster fair market value of the damaged property, whichever is lower.
(7) SBA makes an economic injury disaster declaration in response to a determination of an emergency involving Federal primary responsibility by the President.
Each disaster declaration defines the geographical areas affected by the disaster. Only those victims located in the declared disaster area are eligible to apply for SBA disaster loans. When the President declares a major disaster, the Federal Emergency Management Agency defines the disaster area. In major disasters, economic injury disaster loans and IDAP loans may be made for victims in contiguous counties or other political subdivisions, provided, however that with respect to major disasters which authorize public assistance only, SBA shall not make economic injury disaster or IDAP loans in counties contiguous to the disaster area. Except for rural disaster declarations (as defined in § 123.3), disaster declarations issued by SBA include contiguous counties for both physical, economic injury and, in some cases IDAP assistance. Rural disaster declarations do not include assistance for contiguous counties. Contiguous counties or other political subdivisions are those land areas which abut the land area of the declared disaster area without geographic separation other than by a minor body of water, not to exceed one mile between the land areas of such counties. When SBA issues an economic injury disaster declaration in response to a determination of an emergency involving Federal primary responsibility by the President, the disaster area shall include each State or subdivision thereof (including counties) included in the President's emergency determination.
(b)
(c)
(1) Service on active duty; or
(2) Full-time National Guard duty.
(a) It is a small business as defined in 13 CFR part 121 when the essential employee was called to active service,
(c) The essential employee has been called-up to active service for a period of more than 30 consecutive days,
(b) Your small business is in imminent danger of going out of business as a result of one or more essential employees being called up to active service for a period of more than 30 consecutive days, and a loan in excess of $2 million is necessary to reopen or keep open the small business; and
Department of Commerce.
Interim final rule; request for comments.
This rule implements the HAVANA Act of 2021 (the Act) for the Department of Commerce (Department). The Act provides the authority for the Secretary of Commerce and other agency heads to provide payments to certain individuals who have incurred qualifying injuries to the brain. The rule covers current and former Department employees, and dependents of current or former employees.
Submit comments on this interim final rule through the Federal eRulemaking Portal at
Comments may also be submitted by mail to: HAVANA Rule Comments, Attention: Anna Kelley, Rooms 1844-1846, 1401 Constitution Avenue NW, Washington, DC 20230. Any questions concerning the process for submitting comments should be submitted to Anna Kelley at 202-482-2200 or
Charles Cutshall, Chief Privacy Officer, at 202-482-5735 or
On December 20, 2019, Congress gave authority (Pub. L. 116-94, division J, title IX, section 901) to the Department of State to pay benefits to certain individuals for injuries suffered after January 1, 2016 in the Republic of Cuba, the People's Republic of China or another foreign country designated by the Department of State, in connection with certain injuries designated by the Secretary of State. These benefits were limited to Department of State employees, their dependents and other individuals affiliated with the Department of State.
On January 1, 2021, Congress amended that law (Pub. L. 116-283, div. A, title XI, section 1110), authorizing other Federal Government agencies (such as the Department) to provide similar benefits to their own employees for those injuries. Those provisions are codified at 22 U.S.C. 2680b.
On October 8, 2021, the “Helping American Victims Afflicted by Neurological Attacks” (HAVANA) Act of 2021 became law (Pub. L. 117-46). In the latest Act, Congress authorized Federal Government agencies to compensate affected current employees, former employees, and their dependents for qualifying injuries to the brain. Section 3 of the HAVANA Act of 2021 removed the requirement in Public Law 116-94, division J, title IX, section 901, that the qualifying injury occur in “the Republic of Cuba, People's Republic of China, or other foreign country designated by the Secretary of State” for the purpose of making a payment under the HAVANA Act. The Act also requires the Department (and other agencies) to “prescribe regulations” implementing the HAVANA Act not later than 180 days after the effective date of the Act. This interim final rule implements the HAVANA Act of 2021.
The regulation herein applies only to current and former employees of the Department, and dependents of current or former employees, as defined in § 3.2 of this rule.
The rule follows the definitional template provided in the HAVANA Act and its predecessors. The rule defines certain categories of individuals as employees, as well as those who are not considered employees.
The term “covered employee” captures Department Foreign Service and Civil Service employees (regardless of the nature of their appointment), as well as National Oceanic and Atmospheric Administration Commissioned Corps Officers and students providing voluntary services under 5 U.S.C. 3111 who, on or after January 1, 2016, became injured by a qualifying injury to the brain while they were an employee of the Department.
The term “covered individual” captures any former employee of the Department (including retired or separated employees) who, on or after January 1, 2016, became injured by a qualifying injury to the brain while they were an employee of the Department.
The term “covered dependent” captures a family member of a Department current or former employee who, on or after January 1, 2016, became injured by reason of a qualifying injury to the brain while the dependent's sponsor was an employee of the Department. For purposes of determining whether an individual is a covered dependent, the term “family members” includes unmarried children under 21 years of age (or certain other children) at the time of injury; parents; sisters and brothers; and spouses. Step-parents and step-siblings are included in the definition.
The definition of “qualifying injury to the brain” is based on current medical practices related to brain injuries. Further, the injury must have occurred in connection with certain hostile acts, including war, terrorist activity, or other incidents designated by the Secretary of State or the Secretary of Commerce, as permitted by law, and must not have been the result of the willful misconduct of the individual. The individual must have: an acute injury to the brain such as, but not limited to, a concussion, penetrating injury, or as the consequence of an event that leads to permanent alterations in brain function as demonstrated by confirming correlative findings on imaging studies (to include computed tomography scan (CT), or magnetic resonance imaging scan (MRI)), or electroencephalogram (EEG); or a medical diagnosis of a traumatic brain injury (TBI) that required active medical treatment for 12 months or more; or acute onset of new persistent, disabling neurologic
In implementing this definition of “qualifying injury to the brain,” the Department adopts the standard set forth by the Department of State in its January 25, 2023, regulations implementing the HAVANA Act (see 88 FR 4722). With regard to these standards, this definition accounts for a variety of observable impacts to an individual, including either a concussion, a penetrating injury, or absent either of those, the ability of an appropriately certified physician to review one of a variety of forms of medical imaging evidence indicating permanent alterations in brain function. This will ensure there is some documented evidence of impact to the brain, while minimally circumscribing what that impact entails. The definition of “qualifying injury to the brain” will provide multiple avenues for demonstrating sustained, long-term impact to the individual. Establishing a 12-month threshold of active medical treatment is indicative of a long-term injury which the Department believes must be demonstrated prior to the awarding of benefits. For example, the Centers for Disease Control and Prevention (CDC) broadly defines chronic diseases “as conditions that last 1 year or more and require ongoing medical attention or limit activities of daily living or both.”
The definition of “other incident” is a new onset of physical manifestations that cannot otherwise be explained.
The Department will communicate with its entire workforce to inform them of the rule, regulations, and process for requesting payment. The Department will work together with potential recipients to provide the necessary documentation to qualify for payment. The Department believes these efforts will ensure all potential requestors will be able to identify themselves to the Department and begin the process of requesting a payment. However, Form CD-350, the form associated with developing the necessary evidence to submit a claim, will also be publicly hosted on the Department's public-facing website with instructions on how to contact the Department if a requestor believes they are eligible for a HAVANA Act payment.
Section 3.3 states the conditions required before the Department will consider payments to current or former employees and dependents of current or former employees: the qualifying injury to the brain for a former employee must have occurred on or after January 1, 2016, and while the former employee was an employee of the Department; and for a dependent, the injury must have occurred on or after January 1, 2016, and while the dependent's sponsor was an employee of the Department. The Director, Office of Human Resources Management, must approve any HAVANA Act payment.
Payments will be a one-time, non-taxable, lump sum payment, based on the annual salary of an Executive Schedule III employee (
The award thresholds are based on the annual rate of basic pay for Level III of the Executive Schedule (ES). A Base payment will be 75 percent of Level III pay and a Base Plus payment will be 100 percent of Level III pay. If the requestor meets any of the criteria listed in (2) in the paragraph immediately above, the requestor will be eligible to receive a Base Plus payment. Requestors with a documented “qualifying injury to the brain” but who do not meet any of the criteria listed in (2) in the paragraph immediately above will be eligible to receive a Base payment. The criteria established in (2) in the paragraph immediately above are reflective of the Department's objective of ensuring that the individuals most severely affected by anomalous health incidents (AHIs) (as indicated by a lack of reemployment potential, an inability to engage in substantial gainful activity, or the need for a full-time caregiver) receive additional payment. The specific use of the DOL or the SSA determinations is to ensure that both current and former Federal employees as well as covered dependents have access to a mechanism for this determination. The Department recognizes that criteria DOL and SSA use in their disability determinations are distinct, as well as the fact that the procedural timelines for seeking and receiving approval may be different between these agencies. The third option, that a board-certified physician certifies that the individual requires a full-time caregiver for activities of daily living (as defined by the Katz Index of Independence in Activities of Daily Living), provides an alternative mechanism for all individuals. Finally, the Department notes that if a requestor who received a Base payment later meets any of the criteria listed in (2) above, the requestor may apply for an additional payment that will be the difference between the Base and Base Plus payment. As the payments are tied to the Executive Schedule, the amounts may change over time based on increases to that Schedule.
The Department may consult with the appropriate officials in other Federal agencies to identify their current and former covered employees, and current and former dependents who reported an anomalous health incident. The Department will not process payment for employees, former employees, or dependents of current or former employees of other agencies. While payments under the HAVANA Act may be on top of other leave, disability, or workers' compensation payments the requestor is receiving or may be entitled to receive that also help augment any loss of income, the Department believes this is an appropriate additional payment. The Department also believes this amount is the most it can reasonably compensate each requestor while ensuring available funds for all expected payments. The Department also notes that, because payments are contingent on appropriated funds, all payments will be paid out on a first come, first served basis. This is also in accordance with compensation awarded by the Department of State under the HAVANA Act.
This rule is being published as an interim final rule and is effective immediately upon publication. Because this rule is a matter relating to public benefits, it is exempt from the requirements of 5 U.S.C. 553.
The Chief Counsel for Regulations for the Department certifies that this rulemaking will not have a significant impact on a substantial number of small entities. This rule applies only to certain individuals who are current and former Department employees and family members who are eligible for payments as a result of certain injuries. Therefore, the rule will provide for payments to certain individuals, and is therefore not expected to impact any small entities. As a result, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act (5 U.S.C. 601,
This rule has been determined to be significant under Executive Order 12866. Potential causes of AHI are being investigated but remain unknown. Given the nature of the incidents, it is difficult to accurately estimate future incidents and numbers of individuals affected. For fiscal year (FY) 2023, the Department has been authorized to spend up to $5 million to pay claims that it finds to be substantiated.
The Department has reviewed the rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866 and finds that the benefits of the rule (in providing mechanisms for individuals to obtain compensation for certain injuries) outweigh any costs to the public. The Department has also considered this rulemaking in light of Executive Order 13563 and affirms that this regulation is consistent with the guidance therein.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501,
Federal retirees, Government employees, Health care.
22 U.S.C. 2680b.
(a) Under section 3 of the HAVANA Act of 2021 (Pub. L. 117-46), codified in 22 U.S.C. 2680b, the Secretary of Commerce or other agency heads may provide a payment for a qualifying injury to the brain to a covered employee or covered dependent, who incurred a qualifying injury to the brain on or after January 1, 2016. The authority to provide such payments is at the sole discretion of the Secretary or their designee.
(b) The regulations in this part are issued in accordance with 22 U.S.C. 2680b(i)(4) and also apply to former covered employees of the Department of Commerce and their covered dependents.
(a)
(2) The following are considered employees of the Department of Commerce for the purposes of this part: Department of Commerce employees in the Foreign Service, National Oceanic and Atmospheric Administration Commissioned Corps Officers, and Department of Commerce employees who meet the definition of “employee” set forth in 5 U.S.C. 2105(a), including students providing volunteer service under 5 U.S.C. 3111.
(3) The following are not considered employees of the Department of Commerce for purposes of this part: employees or retired employees of other agencies.
(b)
(c)
(d)
(1) Children who are unmarried and under 21 years of age at the time of the qualifying injury or, regardless of age, are unmarried and due to mental and/or physical limitations are incapable of self-support. The term “children” must include natural offspring, step-children, adopted children, and those under permanent legal guardianship (at least until age 18), or comparable permanent custody arrangement, of the employee or spouse or domestic partner when dependent upon and normally residing with the guardian or custodial party, and U.S. citizen children placed for adoption if a U.S. court grants temporary guardianship of the child to the employee and specifically authorizes the child to reside with the employee in the country of assignment before the adoption is finalized;
(2) Parents (including stepparents and legally adoptive parents) of the employee or of the spouse or of the domestic partner;
(3) Sisters and brothers (including stepsisters or stepbrothers, or adoptive sisters or brothers) of the employee, or of the spouse when such sisters and brothers are at least 51 percent dependent on the employee for support, unmarried and under 21 years of age, or regardless of age, are physically and/or mentally incapable of self-support; and
(4) Spouse.
(e)
(2) The individual must have:
(i) An acute injury to the brain such as, but not limited to, a concussion, penetrating injury, or as the consequence of an event that leads to permanent alterations in brain function as demonstrated by confirming correlative findings on imaging studies (to include computed tomography scan (CT), or magnetic resonance imaging scan (MRI)), or electroencephalogram (EEG); or
(ii) A medical diagnosis of a traumatic brain injury (TBI) that required active medical treatment for 12 months or more; or
(iii) Acute onset of new persistent, disabling neurologic symptoms as demonstrated by confirming correlative findings on imaging studies (to include CT or MRI), or EEG, or physical exam, or other appropriate testing, and that required active medical treatment for 12 months or more.
(f)
(a) The Department of Commerce may provide a payment to covered individuals, as defined this section, if the qualifying injury to the brain was assessed and diagnosed in person by a currently board-certified physician from the American Board of Psychiatry and Neurology (ABPN), the American Osteopathic Board of Neurology and Psychiatry (AOBNP), the American Board of Physical Medicine and Rehabilitation (ABPMR), or the American Board of Physical Medicine and Rehabilitation (AOBPMR); and occurred on or after January 1, 2016, and while the individual was a covered employee of the Department of Commerce.
(b) The Department of Commerce may provide a payment to covered employees, as defined in this section, if the qualifying injury to the brain was assessed and diagnosed in person by a currently board-certified physician from ABPN, AOBNP, ABPMR, or AOBPMR; and occurred on or after January 1, 2016, and while the employee was a covered employee of the Department.
(c) The Department of Commerce may provide a payment to a covered dependent, if the qualifying injury to the brain was assessed and diagnosed in person by a currently board-certified physician from the ABPN, AOBNP, ABPMR, or AOBMR; and occurred on or after January 1, 2016, and while the dependent's sponsor was a covered employee of the Department.
(d) Payment for a qualifying injury to the brain will be a non-taxable, one-time lump sum payment.
(e) The Department will determine the amount paid to each eligible person based on the following factors:
(1) The responses on Form CD-350, “Eligibility Questionnaire for HAVANA Act Payments”; and
(2) Whether the Department of Labor has determined that the requestor has no reemployment potential, or the Social Security Administration has approved the requestor for Social Security Disability Insurance or Supplemental Security Insurance (SSI) benefits; or the requestor's ABPN, AOBPN, ABPMR, or AOBPMR-certified physician has certified that the individual requires a full-time caregiver for activities of daily living, as defined by the Katz Index of Independence of Daily Living.
(3) The award thresholds are based on the Level III of the Executive Schedule: Base payment will be 75 percent of Level III pay, and Base Plus payment will be 100 percent of Level III pay. If the requestor meets any of the criteria listed in paragraph (e)(2) of this section, the requestor will be eligible to receive a Base Plus payment. Requestors who are otherwise eligible for payment for a qualifying injury to the brain (defined in § 3.2(e)) but do not meet any of the criteria listed in paragraph (e)(2) of this section will be eligible to receive a Base payment. If a requestor who received a Base payment later meets any of the criteria listed in paragraph (e)(2) of this section, the requestor may apply for an additional payment that will be the difference between the Base and Base Plus payment.
(f) The Director, Office of Human Resources Management may approve payments under this section. The Office of Human Resources Management will notify individuals of the decision in writing.
(g) An appeal of a decision made by the Director, Office of Human Resources Management may be directed to the Deputy Assistant Secretary for Administration in writing. The Deputy Assistant Secretary for Administration is the final appeal authority. The Office of Human Resources Management will notify individuals of the decision in writing.
The Department may consult with the appropriate officials in other Federal agencies to identify their current and former covered employees, and current and former dependents who reported an anomalous health incident. The Department will not process payment for employees, former employees, or dependents of current or former employees of other agencies.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for navigable waters of the Hylebos Waterway in Tacoma, Washington. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created by a firefighting efforts onboard the F/V KODIAK ENTERPRISE by emergency response personnel. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Sector Puget Sound.
This rule is effective without actual notice from April 19, 2023 through 6 p.m. April 21, 2023. For the purposes of enforcement, actual notice will be used from April 14, 2023 until April 19, 2023.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email MST1 Steve Barnett, Sector Puget Sound, Waterways Management Division, U.S. Coast Guard; telephone 206-217-6051, email
On April 9, 2023, the Coast Guard issued a rulemaking creating a temporary safety zone on the navigable waters of the Hylebos Waterway in Tacoma, Washington to protect persons and vessels and the marine environment from potential hazards created by a firefighting efforts onboard the F/V KODIAK ENTERPRISE by emergency response personnel. The safety zone was effective from 6 p.m. April 9, 2023 through 6 p.m. April 14, 2023. A copy of the rulemaking that ended on April 14, 2023 is available in the docket USCG-2022-0341, which can be found using instructions in the
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Puget Sound (COTP) has determined that potential safety hazards exist while ongoing firefighting is taking place onboard the F/V KODIAK ENTERPRISE in the Hylebos Waterway. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while response actions are taking place.
This rule establishes a temporary safety zone from 6 p.m. on April 14, 2023 until 6 p.m. on April 21, 2023. The safety zone will cover all navigable waters within the Hylebos Waterway in Tacoma, WA. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while firefighting operations onboard the F/V KODIAK ENTERPRISE are ongoing. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the fact that the safety zone created by this rule is limited in size and duration. Critical vessel traffic will be able to safely transit through this safety zone with permission from the COTP or designee. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about 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 rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only as long as necessary for response operations that will prohibit entry or departure from the Hylebos Waterway, Tacoma, WA. It is categorically excluded from further review under paragraph L60(d) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination will be available in the docket. For instructions on locating the docket, see the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.
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Fish and Wildlife Service, Interior.
Final rule.
In accordance with the Marine Mammal Protection Act of 1972, as amended, and its implementing regulations, we, the U.S. Fish and Wildlife Service, finalize incidental take regulations that facilitate the authorization of nonlethal, incidental, unintentional take by harassment of small numbers of northern sea otters during marine construction and pile driving in the Gulf of Alaska coastal waters. Take may result from marine construction and pile-driving activities. This rule is effective for 5 years from the date of issuance.
This rule is effective May 19, 2023, through May 19, 2028.
You may view this rule, the associated final environmental assessment, finding of no significant impact (FONSI), comments received, and other supporting material at
Sierra Franks, U.S. Fish and Wildlife Service, MS 341, 1011 East Tudor Road, Anchorage, AK 99503, by email at
In accordance with the Marine Mammal Protection Act (MMPA) of 1972, as amended, and its implementing regulations, we, the U.S. Fish and Wildlife Service (Service, USFWS, or we), finalize incidental take regulations (ITR) that facilitate the authorization of nonlethal, incidental, unintentional take by harassment of small numbers of northern sea otters (
This rule sets forth permissible methods of incidental nonlethal taking, mitigation measures to ensure the least practicable adverse impacts upon this species, its habitat, and the availability of this species for subsistence uses, and requirements for monitoring and reporting. This rule is based on our findings that the total takings of sea otters during pile driving and marine construction activities will impact only small numbers of animals, will have a negligible impact on this species, and will not have an unmitigable adverse impact on the availability of this species for subsistence use by Alaska Natives. We base our findings on data from research on this species; potential and documented effects on this species from similar activities; information regarding the natural history and conservation status of sea otters; and data reported from Alaska Native subsistence hunters. We also prepared an environmental assessment (EA) in accordance with National Environmental Policy Act (NEPA) requirements for this rulemaking and, after consideration of public comments, made a finding of no significant impact (FONSI).
Section 101(a)(5)(A) of the Marine Mammal Protection Act (MMPA; 16 U.S.C. 1371(a)(5)(A)) gives the Secretary of the Interior (Secretary) the authority to allow the incidental, but not intentional, taking of small numbers of marine mammals, in response to requests by U.S. citizens (as defined in title 50 of the Code of Federal Regulations (CFR) in part 18 at § 18.27(c)) engaged in a specified activity (other than commercial fishing) in a specified geographic region. The Secretary has delegated authority for implementation of the MMPA to the Service. According to the MMPA, the Service shall allow this incidental taking if we make findings that the total of such taking for the 5-year regulatory period:
(1) is of small numbers of marine mammals of a species or stock;
(2) will have a negligible impact on such species or stock; and
(3) will not have an unmitigable adverse impact on the availability of these species or stock for taking for subsistence use by Alaska Natives.
If the requisite findings are made, we issue regulations that set forth the following, where applicable:
(a) permissible methods of taking;
(b) means of effecting the least practicable adverse impact on the species or stock and its habitat and the availability of the species or stock for subsistence uses; and
(c) requirements for monitoring and reporting of such taking by harassment, including, in certain circumstances, requirements for the independent peer review of proposed monitoring plans or other research proposals.
If final regulations allowing such incidental taking are issued, we may then subsequently issue Letters of Authorization (LOA), upon request, to authorize incidental take during the specified activities.
The term “take” means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal (16 U.S.C. 1362(13)). “Harassment” means any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (the MMPA defines this as “Level A harassment”), or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (the MMPA defines this as “Level B harassment”) (16 U.S.C. 1362(18)).
The USCG's activities may result in the incidental taking of sea otters. The MMPA does not require the USCG to obtain incidental take authorization prior to engaging in activities that may incidentally take these marine mammals; however, any such taking that occurs without authorization is a violation of the MMPA.
The Service first received a petition requesting ITRs from the USCG on July 2, 2021. The Service sent requests for additional information on August 12, September 13, and November 10, 2021, and February 10, 2022. We received updated versions of the petition for rulemaking on October 14, 2021, January 18, 2022, and February 28, 2022; the version received on the latter date was determined to be adequate and complete. Several revisions were made involving animal presence, ensonified areas, number of days of operations, and mitigation and monitoring protocols. Geospatial files of the work sites were received on December 3, 2021. The Service used the February 2022 information and December 2021 spatial files for analyses.
Based on our analyses, we published a proposed rule for these ITRs on August 15, 2022 (87 FR 50041). The preamble to the proposed rule provided information on several issues, including the following topics:
• sea otter biology and stocks within the specified region;
• potential impacts to sea otters arising from the specified activities, including effects of underwater and airborne sounds, vessel presence, effects to prey, reactions of sea otters to anthropogenic activities, and consequences of disturbance;
• potential impacts of the specified activities on subsistence uses of sea otters;
• the definitions of incidental take under the MMPA as well as definitions of “negligible impact,” “unmitigable adverse impact,” “small numbers,” and “least practicable adverse impact”;
• methods of analyzing and estimating take by harassment;
• critical assumptions of the analyses; and
• a breakdown of incidental take by harassment at each location within the specified region.
Please see the August 15, 2022 (87 FR 50041), proposed rule for further background information related to this rulemaking action.
These regulations facilitate the authorization of nonlethal, incidental, unintentional take of small numbers of sea otters that may result from the proposed activities based on standards set forth in the MMPA. They would not authorize or “permit” activities. The regulations include:
(1) Permissible methods of nonlethal taking;
(2) Measures designed to ensure the least practicable adverse impact on sea otters and their habitat, and on the availability of this species for subsistence uses; and
(3) Requirements for monitoring and reporting.
An LOA is required to conduct activities pursuant to an ITR. Under these ITRs, the USCG may request LOAs for the authorized nonlethal, incidental, Level B harassment of sea otters. Requests for LOAs must be consistent with the activity descriptions and mitigation and monitoring requirements of the ITR and be received in writing at least 30 days before the activity is to begin. Requests must include (1) an operational plan for the activity; (2) a digital geospatial file of the project footprint, (3) a site-specific marine mammal monitoring and mitigation plan that specifies the procedures to monitor and mitigate the effects of the activities on sea otters, and, if necessary, (4) Plans of Cooperation (described below). Once this information has been received, we will evaluate each request and issue the LOA if we find that the level of taking will be consistent with the findings made for the total taking allowable under the ITR. We must receive an after-action report on the monitoring and mitigation activities within 90 days after the LOA expires. For more information on requesting and receiving an LOA, refer to 50 CFR 18.27.
A POC is a documented plan describing measures to mitigate potential conflicts between planned project activities and subsistence hunting. The circumstances under which a POC must be developed and submitted with a request for an LOA are described below.
To help ensure that the USCG's activities do not have an unmitigable adverse impact on the availability of the species for subsistence hunting opportunities, requests for an LOA under this ITR must provide the Service documentation of communication and coordination with Alaska Native communities potentially affected by the proposed activity and, as appropriate, with representative subsistence hunting and co-management organizations, such as the Alaska Sea Otter and Steller Sea Lion Commission. If Alaska Native communities or representative subsistence hunting organizations express concerns about the potential impacts of project activities on subsistence activities, and such concerns are not resolved during this initial communication and coordination process, then a POC must be developed and submitted with the applicant's request for an LOA. In developing the POC, the USCG will further engage with Alaska Native communities and/or representative subsistence hunting organizations to provide information and respond to questions and concerns. The POC must provide adequate measures to ensure that project activities will not have an unmitigable adverse impact on the availability of sea otters for subsistence uses.
The specified geographic region covered by these ITRs (USCG ITR region (figure 1)) encompasses Gulf of Alaska (GOA) coastal waters, including State waters, within 2 kilometers (km) (~1.25 miles (mi)) of eight USCG facilities within the USCG Civil Engineering Unit Juneau Area of Responsibility. These facilities are: Base Kodiak, Moorings Seward, Moorings Valdez, Moorings Cordova, Moorings Sitka, Station Juneau, Moorings Petersburg, and Base Ketchikan.
The USCG will perform maintenance activities that will include pile repair (
Detailed descriptions of the proposed work are provided in the applicant's
The USCG will conduct pile driving and marine construction activities over the GOA during a period of 5 years following the effective date of the final rule. A summary of total numbers of estimated takes by Level B harassment during the duration of the project by season and take category is provided in table 1. Ensuing paragraphs address impacts to each affected stock of northern sea otters.
In a single year, we estimate five instances of take by Level B harassment of one northern sea otter from the Southwest Alaska stock due to behavioral responses or Temporary Threshold Shift (TTS) associated with noise exposure. Over the 5-year duration of these ITRs, we estimate 25 instances of take by Level B harassment of 5 northern sea otters from the Southwest Alaska stock due to behavioral responses or TTS associated with noise exposure. Although multiple instances of harassment of otters are possible, we anticipate that these events will result in only temporary changes in behavior and will not have significant consequences for the health, reproduction, or survival of affected animals. We do not anticipate these events to cause any injuries or rise to the level of Level A harassment.
In a single year, we estimate 223 instances of take by Level B harassment of 45 northern sea otters from the Southcentral Alaska stock due to behavioral responses or TTS associated with noise exposure. Over the 5-year duration of these ITRs, we estimate 255 instances of take by Level B harassment of 77 northern sea otters from the Southcentral Alaska stock due to behavioral responses or TTS associated with noise exposure. Although multiple instances of harassment of otters are possible, these events are likely to result in only temporary changes in behavior. As such, these events are unlikely to have significant consequences for the health, reproduction, or survival of affected animals and, therefore, would not rise to the level of an injury or Level A harassment.
In a single year, we estimate 140 instances of take by Level B harassment of 23 northern sea otters from the Southeast Alaska stock due to behavioral responses or TTS associated with noise exposure. Over the 5-year duration of these ITRs, we estimate 700 instances of take by Level B harassment of 115 northern sea otters from the Southeast Alaska stock due to behavioral responses or TTS associated with noise exposure. Although an estimated 700 instances of harassment of 115 otters are possible, these events are likely to result in only temporary changes in behavior. As such, these events are unlikely to have significant consequences for the health, reproduction, or survival of affected animals and, therefore, would not rise to the level of an injury or Level A harassment.
For our small numbers determination, we considered whether the estimated number of northern sea otters to be subjected to incidental take is small relative to the population size of the species or stock.
1. The Southwest, Southcentral, and Southeast Alaska stocks of northern sea otters range well beyond the boundaries of the specified geographic area. Meanwhile, the USCG's specified activities would impact only a small fraction of the specified geographic area. We therefore expect that only a small proportion of animals from each stock could occur proximate enough to the USCG's activities to experience any effects.
2. We estimate the USCG's proposed activities in the specified geographic region during the 5-year period of this ITR will result in take by Level B harassment of no more than:
• One sea otter from the Southwest Alaska stock, representing 0.000 percent of the best available estimate of that stock (USFWS 2020) (1 ÷ 51,382 ≉ 0.00000);
• 45 sea otters from the Southcentral Alaska stock, representing 0.208 percent of the best available estimate that stock (Esslinger et al. 2021) (45 ÷ 21,617 = 0.00208); and
• 23 sea otters from the Southeast Alaska stock, representing 0.087 percent of the best available estimate of that stock (Eisaguirre et al. 2021) (23 ÷ 26,347 = 0.000873).
Based on these numbers, we find that the USCG's specified activities projects will take only a small number of animals from each affected stock of northern sea otters.
We note ongoing litigation concerning a separate, recently issued, ITR in which plaintiffs assert that the Service's “small numbers” analysis must aggregate the number of animals anticipated to be taken in each year contemplated by the ITR and compare that multiyear number to the population estimate applicable to 1 year. While we disagree with this approach, for the sake of providing the applicant with regulatory certainty pending resolution of that litigation, we further analyze the “small numbers” question using this alternative approach and estimate the incidental take of:
• 5 sea otters from the Southwest Alaska stock, representing 0.01 percent of the best available estimate of that
• 77 sea otters from the Southcentral Alaska stock, representing 0.356 percent of the best available estimate of that stock (Esslinger et al. 2021) (77 ÷ 21,617 = 0.00356); and
• 115 sea otters from the Southeast Alaska stock, representing 0.437 percent of the best available estimate of that stock (Eisaguirre et al. 2021) (115 ÷ 26,347 = 0.004363).
These alternative numbers also support our finding that the USCG's specified activities will take only a small number of animals from each affected stock of northern sea otters.
Therefore, we determine that the USCG's activities will take by Level B harassment only small numbers of the Southwest, Southcentral, and Southeast Alaska stocks of northern sea otters because: (1) Only a small proportion of the Southwest, Southcentral, and Southeast Alaska stocks of northern sea otters will overlap with the areas where the specified activities will occur; and (2) for each stock, the number of sea otters anticipated to be harassed is small relative to the population size of the stock.
For our negligible impacts determination, we considered the following:
1. The applicant will implement monitoring requirements and mitigation measures designed to reduce the potential impacts of their operations on sea otters.
2. The distribution and habitat use patterns of sea otters indicate that relatively few sea otters will occur in the specified areas of activity at any particular time and, therefore, few sea otters are likely to be affected. The potential for stock-wide effects resulting from exposure to and disturbance from the specified activities is further reduced by the relatively small area of the specified activities compared to the range of the Southwest, Southcentral, and Southeast Alaska stocks of northern sea otters.
3. The documented impacts of previous anthropogenic activities on sea otters, taking into consideration cumulative effects, suggests that the types of activities analyzed for this ITR will have minimal effects and will be short-term, temporary behavioral changes.
4. The Service does not anticipate any lethal or injurious harassment take that would remove individual sea otters from the population. Nor does the Service anticipate any impacts that would hinder or prevent their successful reproduction or successful rearing. Incidental harassment events are anticipated to be limited to human interactions that lead to short-term behavioral disturbances. These disturbances would not affect the rates of recruitment or survival for sea otter stocks. This ITR does not facilitate the authorization of injurious or lethal take, and we do not anticipate any such take will occur.
We also considered the specific congressional direction in balancing the potential for a significant impact with the likelihood of that event occurring. The specific congressional direction that justifies balancing probabilities with impacts follows:
If potential effects of a specified activity are conjectural or speculative, a finding of negligible impact may be appropriate. A finding of negligible impact may also be appropriate if the probability of occurrence is low, but the potential effects may be significant. In this case, the probability of occurrence of impacts must be balanced with the potential severity of harm to the species or stock when determining negligible impact. In applying this balancing test, the Service will thoroughly evaluate the risks involved and the potential impacts on marine mammal populations. Such determination will be made based on the best available scientific information (53 FR 8474, March 15, 1988; 132 Cong. Rec. S 16305 (October 15, 1986)).
We reviewed the effects of the pile driving and marine construction on sea otters, including impacts from insertion and removal of piles, socket drilling, and underwater use of tools. Based on our review of these potential impacts, past monitoring reports, and the biology and natural history of sea otters, we conclude that the anticipated incidental take from the USCG's specified activities would not affect the rates of recruitment or survival for the Southwest, Southcentral, and Southeast Alaska stocks of northern sea otters, and would have a negligible impact on each of those stocks.
We evaluated the practicability and effectiveness of mitigation measures based on the nature, scope, and timing of the specified activities; the best available scientific information; and monitoring data during previously conducted activities in the specified geographic region. We determine that the mitigation measures included within the USCG's request will ensure least practicable adverse impacts on sea otters.
In evaluating what mitigation measures are appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses, we considered the manner and degree to which the successful implementation of the measures are expected to achieve this goal. We considered the nature of the potential adverse impact being mitigated (likelihood, scope, range), the likelihood that the measures will be effective if implemented, and the likelihood of effective implementation. We also considered the practicability of the measures for applicant implementation (
To reduce the potential for disturbance from acoustic stimuli associated with the activities, the USCG has proposed mitigation measures, including the following:
• Using the smallest diameter piles practicable while minimizing the overall number of piles;
• Using block cushions or pile caps to reduce transmission of sounds from pile-driving into the water column;
• Conducting activities that may produce in-water sound as close to low tide as possible;
• Development of a marine mammal monitoring and mitigation plan;
• Establishment of shutdown and monitoring zones;
• Visual mitigation monitoring by designated Protected Species Observers (PSO);
• Limiting in-water activity to daylight hours;
• Site clearance before startup;
• Soft-start procedures; and
• Shutdown procedures.
These measures are further specified under § 18.149,
The USCG considered using bubble curtains to dampen underwater sounds produced during planned activities. This was deemed to be impracticable based on safety concerns arising from the presence of contaminated sediments and unexploded ordnance at the work sites. The Service has not identified any additional (
The USCG's specified activities will occur at existing USCG facilities located
The purposes of the monitoring requirements are to document and provide data for assessing the effects of specified activities on sea otters; to ensure that take is consistent with that anticipated in the small numbers, negligible impact, and subsistence use analyses; and to detect any unanticipated effects on the species. Monitoring plans include steps to document when and how sea otters are encountered and their numbers and behaviors during these encounters. This information allows the Service to measure encounter rates and trends and to estimate numbers of animals potentially affected. To the extent possible, monitors will record group size, age, sex, reaction, duration of interaction, and closest approach to the project activity.
Monitoring activities will be summarized and reported in a formal report each year. The USCG must submit a final monitoring report to us no later than 90 days after the expiration of the LOA. We will base each year's monitoring objective on the previous year's monitoring results. We will require an approved plan for monitoring and reporting the effects of pile driving and marine construction activities on sea otters prior to issuance of an LOA. We will require approval of the monitoring results for continued operation under the LOA.
We find that these monitoring and reporting requirements to evaluate the potential impacts of planned activities will ensure that the effects of the activities remain consistent with the rest of the findings.
In preparing these final regulations for the incidental take of sea otters, we reviewed and considered comments and information from the public concerning our proposed rule published in the
During the public comment period, we requested written comments from the public on the proposed ITR as well as the draft EA. The comment period opened August 15, 2022, and closed September 14, 2022. We received four comment submissions; these included comments on the proposed rule and the draft EA as well as a number of publications and other documents submitted in support of those comments.
We concluded that, because the sound isopleth radii for Level A harassment are all smaller than the 20-meter (m) shutdown zone prescribed in the mitigation measures, exposure of sea otters to sounds that may cause Level A harassment is not anticipated. Further, no coverage for take by Level A harassment was requested by the USCG.
We have prepared an environmental assessment in accordance with the NEPA (42 U.S.C. 4321
Under the Endangered Species Act (ESA) (16 U.S.C. 1536(a)(2)), all Federal agencies are required to ensure the actions they authorize are not likely to jeopardize the continued existence of any threatened or endangered species or result in destruction or adverse modification of critical habitat. The planned activities occur within the range of Southwest Alaska, Southcentral Alaska, and Southeast Alaska stocks of northern sea otters. The first of these, the Southwest Alaska stock, is listed as threatened under the ESA, whereas the Southcentral Alaska and Southeast Alaska stocks are not listed under the ESA. Prior to issuance of this ITR, the Service conducted intra-Service consultation under section 7 of the ESA on our issuance of an ITR. These evaluations and findings are available on the Service's website at
It is our responsibility to communicate and work directly on a Government-to-Government basis with federally recognized Alaska Native Tribes and organizations in developing programs for healthy ecosystems. We seek their full and meaningful participation in evaluating and addressing conservation concerns for protected species. It is our goal to remain sensitive to Alaska Native culture, and to make information available to Alaska Natives. Our efforts are guided by the following policies and directives:
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(2) the
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We have evaluated possible effects of the planned activities on federally recognized Alaska Native Tribes and organizations. The Service has determined that, due to this project's locations and activities, the Tribal organizations and communities across the Gulf of Alaska, as well as relevant Alaska Native Claims Settlement Act (ANCSA) corporations, will not be impacted by this project. Regardless, the Service has contacted Tribal organizations in neighboring communities, as well as relevant ANCSA corporations, to inform them of the availability of this authorization and offer them the opportunity to consult.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) will review all significant rules for a determination of significance. The OMB has designated this rule as not significant.
Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The Executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
The OIRA bases its determination of significance upon the following four criteria: (a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government; (b) Whether the rule will create inconsistencies with other Federal agencies' actions; (c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations
Expenses will be related to, but not necessarily limited to: the development of applications for LOAs; monitoring, recordkeeping, and reporting activities conducted during project operations; development of activity- and species-specific marine mammal monitoring and mitigation plans; and coordination with Alaska Natives to minimize effects of operations on subsistence hunting. Realistically, costs of compliance with this rule are minimal in comparison to those related to actual marine construction operations. The actual costs to develop the petition for promulgation of regulations and LOA requests do not exceed $200,000 per year, short of the “major rule” threshold that would require preparation of a regulatory impact analysis.
We have determined that this rule is not a major rule under 5 U.S.C. 804(2), the Congressional Review Act. The rule is also not likely to result in a major increase in costs or prices for consumers, individual industries, or government agencies or have significant adverse effects on competition, employment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic or export markets.
We have determined that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule does not have takings implications under Executive Order 12630 because it facilitates the authorization of nonlethal, incidental, but not intentional, take of sea otters by pile driving and marine construction and, thereby, exempts these companies from civil and criminal liability as long as they operate in compliance with the terms of their LOAs. Therefore, a takings implications assessment is not required.
This rule does not contain policies with federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 13132. The MMPA gives the Secretary of the Interior and, by delegation, the Service the authority and responsibility to protect sea otters.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
The Departmental Solicitor's Office has determined that this regulation does not unduly burden the judicial system and meets the applicable standards provided in sections 3(a) and 3(b)(2) of Executive Order 12988.
This final rule contains a collection of information we submitted to the OMB. All information collections require approval under the Paperwork Reduction Act of 1995 (PRA; 44 U.S.C. 3501
While the new regulations in 50 CFR part 18, subpart L, pertain only to the incidental taking of northern sea otters (while engaged in activities associated with or in support of marine construction activities in the Gulf of Alaska), the below listed information collections approved by the OMB also included previously existing requirements associated with the incidental taking of polar bears (
The Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
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(2) We also revised the previously approved “Onsite Monitoring and Observation Reports” information collection to split it into three separate information collections to more accurately account for burden for the various components under this specific section of the regulations:
a.
• Notify the Service at least 48 hours prior to the onset of activities;
• Provide the Service weekly progress reports of any significant changes in activities and/or locations; and
• Notify the Service within 48 hours after ending of activities.
b.
• Date, time, and location of observation;
• Number of polar bears;
• Sex and age of polar bears (if known);
• Observer name and contact information;
• Weather, visibility, sea state, and sea-ice conditions at the time of observation;
• Estimated closest distance of polar bears from personnel and facilities;
• Industry activity at time of sighting;
• Possible attractants present;
• Polar bear behavior;
• Description of the encounter;
• Duration of the encounter; and
• Mitigation actions taken.
c.
• All information specified for an observation report;
• A complete detailed description of the incident; and
• Any other actions taken.
In addition to the revisions described above, we are bringing the following existing regulatory requirements contained in part 18 not previously approved by OMB under the PRA into compliance:
(1)
• The type of activity and where and when the activity will occur (
• A food, waste, and other “bear attractants” management plan;
• Personnel training policies, procedures, and materials;
• Site-specific walrus and polar bear interaction risk evaluation and mitigation measures;
• Polar bear avoidance and encounter procedures; and
• Polar bear observation and reporting procedures.
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We also renewed the existing reporting and/or recordkeeping requirements identified below:
(1)
• A description of the specific activity or class of activities that can be expected to result in incidental taking of marine mammals.
• The dates and duration of such activity and the specific geographical region where it will occur.
• Based on the best available scientific information, each applicant must also provide:
• The anticipated impact of the activity upon the habitat of the marine mammal populations and the likelihood of restoration of the affected habitat.
• The availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, their habitat, and, where relevant, on their availability for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance. (The applicant and those conducting the specified activity and the affected subsistence users are encouraged to develop mutually agreeable mitigating measures that will meet the needs of subsistence users.)
• Suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species through an analysis of the level of taking or impacts and suggested means of minimizing burdens by coordinating such reporting requirements with other schemes already applicable to persons conducting such activity.
• Suggested means of learning of, encouraging, and coordinating research opportunities, plans, and activities
• Applicants must develop and implement a site-specific (or umbrella plan addressing site-specific considerations), Service-approved marine mammal monitoring and mitigation plan to monitor and evaluate the effectiveness of mitigation measures and the effects of activities on marine mammals and the subsistence use of these species.
• Applicants must also provide trained, qualified, and Service-approved onsite observers to carry out monitoring and mitigation activities identified in the marine mammal monitoring and mitigation plan.
This information is necessary for the Service to anticipate the impact of the activity on the species or stocks and on the availability of the species or stocks for subsistence uses. Under requirements of the MMPA, we cannot authorize a take unless the total of all takes will have a negligible impact on the species or stocks and, where appropriate, will not have an unmitigable adverse impact on the availability of the species or stocks for subsistence uses. These requirements ensure that applicants are aware of related monitoring and research efforts they can apply to their situation, and that the monitoring and reporting that we impose are the least burdensome to the applicant.
(2)
• Copies of all observation reports submitted under the LOA;
• A summary of the observation reports;
• A summary of monitoring and mitigation efforts including areas, total hours, total distances, and distribution;
• Analysis of factors affecting the visibility and detectability of walruses and polar bears during monitoring;
• Analysis of the effectiveness of mitigation measures;
• Analysis of the distribution, abundance, and behavior of walruses and/or polar bears observed; and
• Estimates of take in relation to the specified activities.
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(4)
(5)
Holders of an LOA seeking to carry out onshore activities during the denning season (November-April) must conduct two separate surveys for occupied polar bear dens in all denning habitat within 1.6 km (1 mi) of proposed activities using aerial infrared (AIR) imagery. Further, all denning habitat within 1.6 km (1 mi) of areas of proposed seismic surveys must be surveyed three separate times with AIR technology.
Flight crews will record and report environmental parameters including air temperature, dew point, wind speed and direction, cloud ceiling, and percent humidity, and a flight log will be provided to the Service within 48 hours of the flight.
On August 15, 2022, we published a proposed rule (87 FR 50041) soliciting comments on this collection of information for 60 days, ending on October 14, 2022. No comments on this collection of information were received.
As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on any aspect of this information collection, including:
(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) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Executive Order 13211 requires agencies to prepare statements of energy effects when undertaking certain actions. This rule provides exceptions from the MMPA's taking prohibitions for entities engaged in specified pile driving and marine construction activities in the specified geographic region. These specified activities are unrelated to the oil and gas industry or any other energy-related industry. Therefore, this rule is not expected to significantly affect energy supplies, distribution, or use and does not constitute a significant energy action. No statement of energy effects is required.
For a list of the references cited in this rule, see Docket No. FWS-R7-ES-2022-0025, available at
Administrative practice and procedure, Alaska, Imports, Indians, Marine mammals, Reporting and recordkeeping requirements, Transportation.
For the reasons set forth in the preamble, the Service amends part 18, subchapter B of chapter 1, title 50 of the Code of Federal Regulations as set forth below.
16 U.S.C. 1361
Regulations in this subpart apply to the nonlethal incidental, but not intentional, take, as defined in § 18.3 and under section 3 of the Marine Mammal Protection Act (16 U.S.C. 1371
(a) The specified geographic region encompasses areas within 2 kilometers (km) (~1.25 miles (mi)) of eight USCG facilities within the USCG Civil Engineering Unit, Juneau Area of Responsibility. These facilities are: Base Kodiak, Moorings Seward, Moorings Valdez, Moorings Cordova, Moorings Sitka, Station Juneau, Moorings Petersburg, and Base Ketchikan.
(b) The geographic area of the incidental take regulations (ITRs) in this subpart includes all Alaska State waters within the areas listed in paragraph (a) of this section as well as all adjacent rivers, estuaries, and coastal lands where sea otters may occur.
Regulations in this subpart are effective from May 19, 2023, until May 19, 2028.
(a) The applicant must submit the request for authorization to the U.S. Fish and Wildlife Service (Service) Alaska Region Marine Mammals Management Office (MMM), MS 341, 1011 East Tudor Road, Anchorage, Alaska, 99503, or by email at
(b) The request for an LOA must comply with the requirements set forth in §§ 18.149 through 18.151 and must include the following information:
(1) An operational plan for the activity;
(2) A digital geospatial file of the project footprint, including sound isopleths;
(3) A site-specific marine mammal monitoring and mitigation plan that specifies the procedures to monitor and mitigate the effects of the activities on sea otters; and
(4) When appropriate, a plan of cooperation, which is a documented plan that describes measures to mitigate potential conflicts between planned project activities and subsistence hunting.
(a) The Service will evaluate each request for an LOA to determine if the proposed activity is consistent with the analysis and findings made for the regulations in this subpart. Depending on the results of the evaluation, we may issue the LOA, add further conditions, or deny the LOA.
(b) Once issued, the Service may withdraw or suspend an LOA if the project activity is modified in a way that undermines the results of the previous evaluation, if the conditions of the regulations in this subpart are not being substantially complied with, or if the taking allowed is or may be having more than a negligible impact on the affected stock of sea otters or an unmitigable adverse impact on the availability of sea otters for subsistence uses.
(c) The Service will make decisions concerning withdrawals of an LOA, either on an individual or class basis, only after notice and opportunity for public comment in accordance with § 18.27(f)(5). The requirement for notice and public comment will not apply should we determine that an emergency exists that poses a significant risk to the well-being of the species or stocks of sea otters.
(a) To incidentally take sea otters pursuant to the regulations in this subpart, the USCG must apply for and obtain an LOA in accordance with §§ 18.27(f) and 18.145. The applicant is a U.S. citizen as defined in § 18.27(c).
(b) An LOA allows for the nonlethal, incidental, but not intentional take by harassment of sea otters during activities specified in § 18.142 within the Gulf of Alaska ITR region described in § 18.143.
(c) Each LOA will set forth:
(1) Permissible methods of incidental take;
(2) Means of effecting the least practicable adverse impact (
(3) Requirements for monitoring and reporting.
(d) Issuance of the LOA(s) must be based on a determination that the level of take will be consistent with the findings made for the total allowable take under the regulations in this subpart.
(a) Except as otherwise provided in this subpart, prohibited taking is described in § 18.11 as well as: intentional take, lethal incidental take of sea otters, and any take that fails to comply with this subpart or with the terms and conditions of an LOA.
(b) If project activities cause unauthorized take, the applicant must take the following actions:
(1) Cease activities immediately (or reduce activities to the minimum level necessary to maintain safety) and report the details of the incident to the Service MMM at 1-800-362-5148 (business hours) within 48 hours; and
(2) Suspend further activities until the Service has reviewed the circumstances, determined whether additional mitigation measures are necessary to avoid further unauthorized taking, and notified the applicant that project activities may resume.
(a)
(1) Implement policies and procedures to avoid interactions with and minimize to the greatest extent practicable adverse impacts on sea otters, their habitat, and the availability of these marine mammals for subsistence uses.
(2) Develop avoidance and minimization policies and procedures, in cooperation with the Service, that include temporal or spatial activity restrictions to be used in response to the presence of sea otters engaged in a biologically significant activity (
(3) Cooperate with the Service's MMM Office and other designated Federal, State, and local agencies to monitor and mitigate the impacts of pile driving and marine construction activities on sea otters.
(4) Allow Service personnel or the Service's designated representative to board project vessels or visit project worksites for the purpose of monitoring impacts to sea otters and subsistence uses of sea otters at any time throughout project activities so long as it is safe to do so.
(5) Designate trained and qualified protected species observers (PSOs) to monitor for the presence of sea otters, initiate mitigation measures, and monitor, record, and report the effects of the activities on sea otters. The applicant is responsible for providing training to PSOs to carry out mitigation and monitoring.
(6) Have an approved mitigation and monitoring plan on file with the Service MMM and onsite that includes the following information:
(i) The type of activity and where and when the activity will occur (
(ii) Personnel training policies, procedures, and materials;
(iii) Site-specific sea otter interaction risk evaluation and mitigation measures;
(iv) Sea otter avoidance and encounter procedures; and
(v) Sea otter observation and reporting procedures.
(b)
(1) Construction activities must be conducted using equipment that generates the lowest practicable levels of underwater sound within the range of frequencies audible to sea otters.
(2) During all pile-installation activities, regardless of predicted sound levels, a physical interaction shutdown zone of 20 meters (m) (66 feet (ft)) must be enforced. If a sea otter enters the shutdown zone, in-water activities must be delayed until either the animal has been visually observed outside the shutdown zone or 15 minutes have elapsed since the last observation time without redetection of the animal.
(3) If the impact driver has been idled for more than 30 minutes, an initial set of three strikes from the impact driver must be delivered at reduced energy, followed by a 1-minute waiting period, before full-powered proofing strikes.
(4) In-water activity must be conducted in daylight. If environmental conditions prevent visual detection of sea otters within the shutdown zone, in-water activities must be stopped until visibility is regained.
(5) All in-water work along the shoreline must be conducted during low tide when the site is dewatered to the maximum extent practicable.
(6) When an impact hammer is used, noise-dampening block cushions or pile caps will be placed between the hammer and pile.
(c)
(1) Vessels must remain at least 500 m (1,640 ft) from rafts of sea otters unless safety is a factor. Vessels must reduce speed and maintain a distance of 100 m (328 ft) from all sea otters unless safety is a factor.
(2) Vessels must not be operated in such a way as to separate members of
(3) When weather conditions require, such as when visibility drops, vessels must adjust speed accordingly to avoid the likelihood of injury to sea otters.
(4) Vessel operators must be provided written guidance for avoiding collisions and minimizing disturbances to sea otters. Guidance will include measures identified in paragraph (c) of this section.
(a) Operators must work with PSOs to apply mitigation measures and must recognize the authority of PSOs, up to and including stopping work, except where doing so poses a significant safety risk to personnel.
(b) Duties of PSOs include watching for and identifying sea otters, recording observation details, documenting presence in any applicable monitoring zone, identifying and documenting potential harassment, and working with operators to implement all appropriate mitigation measures.
(c) A sufficient number of PSOs will be available to meet the following criteria: 100 percent monitoring of exclusion zones during all daytime periods of underwater noise-generating work; a maximum of 4 consecutive hours on watch per PSO; a maximum of approximately 12 hours on watch per day per PSO.
(d) All PSOs will complete a training course designed to familiarize individuals with monitoring and data collection procedures. A field crew leader with prior experience as a sea otter observer will supervise the PSO team. Initially, new or inexperienced PSOs will be paired with experienced PSOs so that the quality of marine mammal observations and data recording is kept consistent. Resumes for candidate PSOs will be made available for the Service to review.
(e) Observers will be provided with reticule binoculars (10×42), big-eye binoculars or spotting scopes (30×), inclinometers, and range finders. Field guides, instructional handbooks, maps, and a contact list will also be made available.
(f) Observers will collect data using the following procedures:
(1) All data will be recorded onto a field form or database.
(2) Global positioning system data, sea state, wind force, and weather will be collected at the beginning and end of a monitoring period, every hour in between, at the change of an observer, and upon sightings of sea otters.
(3) Observation records of sea otters will include date; time; the observer's locations, heading, and speed (if moving); weather; visibility; number of animals; group size and composition (adults/juveniles); and the location of the animals (or distance and direction from the observer).
(4) Observation records will also include initial behaviors of the sea otters, descriptions of project activities and underwater sound levels being generated, the position of sea otters relative to applicable monitoring and mitigation zones, any mitigation measures applied, and any apparent reactions to the project activities before and after mitigation.
(5) For all sea otters in or near a mitigation zone, observers will record the distance from the vessel to the sea otter upon initial observation, the duration of the encounter, and the distance at last observation in order to monitor cumulative sound exposures.
(6) Observers will note any instances of animals lingering close to or traveling with vessels for prolonged periods of time.
(a) Operators must notify the Service at least 48 hours prior to commencement of activities.
(b) Monthly reports will be submitted to the Service MMM for all months during which noise-generating work takes place. The monthly report will contain and summarize the following information: dates, times, weather, and sea conditions (including the Beaufort Scale's sea state and wind force conditions) when sea otters were sighted; the number, location, distance from the sound source, and behavior of the sea otters; the associated project activities; and a description of the implementation and effectiveness of mitigation measures with a discussion of any specific behaviors the sea otters exhibited in response to mitigation.
(c) A final report will be submitted to the Service within 90 days after the expiration of each LOA. It will include the following:
(1) A summary of monitoring efforts (hours of monitoring, activities monitored, number of PSOs, and, if requested by the Service, the daily monitoring logs).
(2) A description of all project activities, along with any additional work yet to be done. Factors influencing visibility and detectability of marine mammals (
(3) A description of the factors affecting the presence and distribution of sea otters (
(4) A description of changes in sea otter behavior resulting from project activities and any specific behaviors of interest.
(5) A discussion of the mitigation measures implemented during project activities and their observed effectiveness for minimizing impacts to sea otters. Sea otter observation records will be provided to the Service in the form of electronic database or spreadsheet files.
(d) All reports must be submitted by email to
(e) Injured, dead, or distressed sea otters that are not associated with project activities (
(f) Operators must notify the Service upon project completion or end of the work season.
The Office of Management and Budget (OMB) has approved the information collection requirements contained in this part and assigned OMB Control Number 1018-0070. Federal agencies 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. Direct comments regarding the burden estimate or any other aspect of the information collection to the Service's Information Collection Clearance Officer at the address provided at 50 CFR 2.1(b).
Nuclear Regulatory Commission.
Preliminary proposed rule language; notice of availability and public meeting.
The U.S. Nuclear Regulatory Commission (NRC) is making available preliminary proposed rule language for a rulemaking on the reporting of nuclear medicine injection extravasations as medical events. To inform this rulemaking, the NRC is posing questions to obtain input from stakeholders. The NRC will consider feedback on this notice in the development of a proposed rulemaking planned for publication in late 2024. The NRC will also hold a public meeting during the comment period on this notice to facilitate feedback.
Submit comments by July 18, 2023. Comments received after this date will be considered if it is practical to do so, but the NRC is able to ensure consideration only for comments received before this date. The public meeting will be held on May 24, 2023, from 1:00 p.m. and 4:00 p.m. eastern time (ET) via the Microsoft Teams online interface.
You may submit comments by any of the following methods; however, the NRC encourages electronic comment submission through the Federal rulemaking website:
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•
•
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Irene Wu, telephone: 301-415-1951, email:
Please refer to Docket ID NRC-2022-0218 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:
•
•
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The NRC encourages electronic comment submission through the Federal rulemaking website (
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
On May 18, 2020, Lucerno Dynamics, LLC (Lucerno) submitted a petition for rulemaking (PRM), PRM-35-22, that requested the NRC amend part 35 of title 10 of the
On May 9, 2022, the NRC staff submitted SECY-22-0043, “Petition for Rulemaking and Rulemaking Plan on Reporting Nuclear Medicine Injection Extravasations as Medical Events (Docket IDs PRM-35-22; NRC-2020-0141),” to the Commission requesting approval to consider PRM-35-22 in the rulemaking process. In staff requirements memorandum (SRM) SRM-SECY-22-0043, dated December 12, 2022, the Commission approved the staff's recommendation to amend 10 CFR part 35 to include certain nuclear medicine injection extravasations as reportable medical events. On December 30, 2022, the NRC published a document in the
In 1980, the NRC amended the medical use regulations in 10 CFR part 35 to require the reporting of medical misadministrations (45 FR 31701; May 14, 1980). The reporting and analysis of medical events helps to identify deficiencies in the safe use of radioactive material and helps ensure that corrective actions are taken to prevent recurrence. In the 1980 rulemaking, the NRC stated in a comment response that it did not consider extravasation to be a misadministration because extravasation frequently occurs in otherwise normal intravenous or intraarterial injections and that extravasations are virtually impossible to avoid.
The reporting requirements were updated in 1991 (56 FR 34104; July 25, 1991), in 2002 (67 FR 20250; April 24, 2002), and again in 2018 (83 FR 33046; July 16, 2018). In 2002, the term and criteria for “misadministration” were replaced with “medical event” and several changes were made to § 35.3045, “Report and notification of a medical event.” None of these updates addressed extravasations.
The NRC is planning rulemaking to amend the NRC's regulations in 10 CFR part 35, “Medical Use of Byproduct Material” to include requirements for medical event reporting of certain extravasations that require medical attention for a suspected radiation injury. The information obtained from the medical event reporting of these extravasations would enhance the tracking and trending of these events and promote sharing information on their occurrence, detection, mitigation, and possible preventive strategies. The planned rulemaking would affect medical licensees who administer intravenous radiopharmaceuticals for diagnostic and therapeutic purposes.
The NRC is seeking feedback from the public on preliminary proposed rule language before proceeding to the development of a proposed rule. The preliminary proposed rule language is available in ADAMS at Accession No. ML23083B332 and on the federal rulemaking website at
The NRC is interested in receiving feedback and supporting rationale from the public on any aspect of the preliminary proposed rule language. Additionally, the NRC is seeking feedback on questions in the following three specific areas: Definitions, Procedures, and Healthcare Inequities. Please provide the rationale for responses to questions in these areas.
Currently, terms such as “
1. What term should the NRC use (
2. What criteria should the NRC use to define “suspected radiation injury”?
3. What techniques or methods should be included in the definition of “medical attention”?
The NRC is exploring approaches that would reduce the reliance on patient reporting of adverse tissue reactions to an authorized user physician. One of the strategies that the NRC is considering is requiring that licensees develop, implement, and maintain written procedures to detect and report extravasations in a timely manner to the NRC.
The NRC is considering adding two new sections, § 35.42, “Procedures for evaluating and reporting extravasations,” which would require licensees to develop procedures to address all extravasations that result in a suspected radiation injury that requires medical attention from all radiopharmaceutical injections, not just from those requiring a written directive, and § 35.2042, which would add recordkeeping requirements for new § 35.42. The NRC has the following questions on these potential regulations:
4. What steps could the licensee take to minimize the chance of a radiopharmaceutical extravasation occurring?
5. What steps should the licensee take when an extravasation is suspected or discovered?
6. What techniques, technologies, or procedures (
7. What techniques, technologies, or procedures (
8. What information should licensees provide to nuclear medicine patients on how to identify an extravasation and how to follow up with their physician if they suspect a radiation injury?
9. When should a reportable extravasation be counted as “discovered” for the purposes of notification (
10. The NRC requires that licensees notify the referring physician and the individual who is the subject of a medical event no later than 24 hours after discovery of the medical event. When should licensees be required to
11. Who (
12. What topics should the NRC include in guidance to assist licensees to accurately identify, characterize, and report extravasation events in a timely manner?
The NRC is trying to better understand concerns raised by several patient safety groups regarding the higher rates of extravasation in patients of color and underserved communities. The NRC has the following questions:
13. What regulatory actions could help ensure that extravasations in patients affected by healthcare inequities are accurately assessed and reported?
14. Are vascular access tools and other technologies (
The NRC will provide an opportunity for public comment on the proposed rule, expected to be published in late 2024. Feedback received in response to this request will be considered in the proposed rule.
The NRC will conduct a public meeting to provide information to facilitate stakeholder feedback on the preliminary proposed rule language and questions included in this document. The public meeting will be held on May 24, 2023, from 1:00 p.m. and 4:00 p.m. ET on the Microsoft Teams online platform. The NRC will publish a notice of the meeting with the meeting link and agenda on the NRC's public meeting website at least 10 calendar days before the meeting. Stakeholders should monitor the NRC's public meeting website for information about the public meeting at:
The NRC is following its Cumulative Effects of Regulation (CER) process by engaging with external stakeholders throughout the rulemaking process and is providing opportunity for public comment at this pre-rulemaking stage.
1. Given current or projected CER challenges, how should the NRC provide sufficient time to implement the new proposed requirements, including changes to programs and procedures?
2. If CER challenges currently exist or are expected, what should be done to address them?
3. What other (NRC or other agency) regulatory actions (
4. What are the unintended consequences, and how should they be addressed?
The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31885). The NRC requests comment on this document with respect to the clarity and effectiveness of the language used.
The documents identified in the following table are available to interested persons through one or more of the following methods, as indicated.
The NRC may post materials related to this document, including public comments, on the Federal rulemaking website at
During the rulemaking process, the NRC will solicit comments from the public and will consider all comments before issuing a final rule. If the NRC does not issue a proposed rule, the NRC will issue a document in the
For the Nuclear Regulatory Commission.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notification of petition for rulemaking; request for comment.
On January 12, 2023, the Department of Energy (“DOE”) received a petition from the Association of Home Appliance Manufacturers (“AHAM”) to consider amendments to the conventional cooking products test procedure to allow a calculation in place of certain testing provisions for conventional cooking tops, clarify the definition of the term specialty cooking zone, clarify the equipment used to measure electric coil heating element diameter, and stay the effectiveness of any mandatory use of the test procedure. Through this notification, DOE seeks comment on the petition, as well as any data or information that could be used in DOE's determination whether to grant the petition.
Written comments and information are requested and will be accepted on or before May 19, 2023.
Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at
No telefacsimiles (“faxes”) will be accepted. For detailed instructions on submitting comments and additional information on this process, see the
The docket web page can be found at
Dr. Carl Shapiro, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, Mailstop EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 287-5649. Email:
Ms. Celia Sher, U.S. Department of Energy, Office of the General Counsel, Mail Stop GC-33, Forrestal Building, 1000 Independence Avenue SW, Washington, DC 20585-0103. Telephone: (202) 287-6122. Email:
The Administrative Procedure Act (“APA”), 5 U.S.C. 551
In its petition, AHAM also requests that DOE stay the effectiveness of any mandatory use of the test procedure. Regarding the mandatory use of the test procedure for representations, under the Energy Policy and Conservation Act (“EPCA”), effective 180 days after a test procedure is published in the
Additionally, as specified in the Note to appendix I1, use of the test procedure is not required until the compliance date of any energy conservation standards for cooking tops. DOE is currently conducting a rulemaking to consider establishing energy conservation standards for conventional cooking products, including conventional cooking tops. 88 FR 6818.
In its petition, AHAM also requests that DOE consider amendments to the appendix I1 test procedure to: (1) allow a calculation to be used as an alternative to the simmer portion of the test to determine the energy consumption of each cooking zone, (2) clarify the definition of “specialty cooking zone” to more explicitly specify categories of cooking zones and cooking products that are considered to be specialty cooking zones and therefore would be excluded from the scope of the DOE test procedure, and (3) clarify the equipment used to measure the diameter of electric coil heating elements. AHAM also requests that DOE update its enforcement regulations to require DOE to use both the simmer test and AHAM's suggested alternative calculation method in assessment and enforcement testing to determine compliance with energy conservation standards, should DOE establish such standards.
In the docket for this petition, DOE has provided a data summary for the purposes of evaluating the merits of establishing a calculation method as an alternative to the simmer portion of the test. In particular, the report provides graphical representations of the difference between measured results—representing the appendix I1 test conducted in its entirety—and results
Although DOE welcomes comments on any aspect of the petition, DOE is particularly interested in receiving comments and views of interested parties concerning the following issues:
(1) The test burden associated with the simmer portion of the test procedure for conventional cooking tops, including third-party testing costs;
(2) Any additional test data of conventional cooking tops tested to appendix I1 that can be used to verify the accuracy of the recommended equations for determining the energy use of individual cooking zones;
(3) The accuracy of the energy consumption of each cooking zone that would be determined using the recommended calculation approach in place of the simmer portion of the cooking top test for the different cooking top technologies (
(4) In evaluating whether the calculation approach maintains the accuracy (
(5) The extent to which portable cooking tops can or should be tested under appendix I1; and
(6) The extent to which cooking tops with a downdraft fan that cannot be de-energized can or should be tested under appendix I1.
DOE invites all interested parties to submit in writing by May 19, 2023, comments and information regarding this petition.
However, your contact information will be publicly viewable if you include it in the comment or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. If this instruction is followed, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.
Do not submit to
DOE processes submissions made through
Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via postal mail or hand delivery/courier, please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. Faxes will not be accepted.
Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English and free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.
It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
DOE considers public participation to be a very important part of its process for considering rulemaking petitions. DOE actively encourages the participation and interaction of the public during the comment period. Interactions with and between members of the public provide a balanced discussion of the issues and assist DOE in determining how to proceed with a petition. Anyone who wishes to be added to DOE mailing list to receive future notifications and information about this petition should contact Appliance and Equipment Standards Program staff at (202) 586-6636 or via email at
This document of the Department of Energy was signed on April 7, 2023, by Francisco Alejandro Moreno, Acting
The Association of Home Appliance Manufacturers (AHAM), on behalf of its member companies, respectfully petitions the Department of Energy (DOE or Department) to amend the Test Procedure for Conventional Cooking Products, Appendix I1 to Subpart B of Part 430 (Appendix I).
AHAM has long supported DOE in its efforts to save energy and ensure a national marketplace through the Appliance Standards Program. Repeatable and reproducible test procedures that are representative of actual consumer use, but not unduly burdensome to conduct, are an integral part of the standards program. It is essential that mandatory test procedures be repeatable, reproducible, representative, and not unduly burdensome not just because these qualities are statutory requirements under the Energy Policy and Conservation Act of 1975, as amended (EPCA), but also because of their importance to the integrity and effectiveness of the Appliance Standards Program. That is why AHAM is engaging in several standards development efforts focused on improving the energy test procedures, including our task force—in which DOE participates—on cooktop energy test development.
AHAM has long been concerned that the cooktop test procedure is too burdensome and is not sufficiently reproducible, thus not meeting the EPCA test procedure criteria in 42 U.S.C. 6293(b)(3). With this petition, AHAM makes minor proposals to address primarily test burden. Specifically, AHAM respectfully requests that DOE amend the test procedure to allow for a calculation as an alternative to the simmer portion of the test.
We believe that these changes, though minor for DOE to make, will make a significant difference in reducing test burden and improving the clarity of the test. We note that mandatory use of Appendix I1 for representations of energy use or energy efficiency of a conventional cooking top is not required until on or after February 20, 2023. Additionally, to date, there are no applicable energy conservation standards for cooktops, which means that this test procedure is not used to demonstrate compliance with applicable standards. DOE should, however, quickly make the amendments AHAM proposes in light of the Environmental Protection Agency's proposed ENERGY STAR criteria and to allow the alternative method and additional clarity on other provisions to be used to assess DOE's recently proposed standards.
On August 18, 2020, in response to a petition AHAM submitted, DOE published a final rule withdrawing the test procedure for conventional cooktops.
To address issues raised in our petition, AHAM convened a Task Force to author updated industry standards AHAM ECT-1 and GCT-1. The Task Force began monthly meetings in April of 2021 and DOE and its contractor, Guidehouse, along with efficiency advocate representatives are participants in that effort. The Task Force's goal was (and remains) to develop cooktop test procedures for gas and electric cooktops that are repeatable, reproducible, representative, and accurate. AHAM's desire was to work quickly to complete this work together with other stakeholders and present it to DOE for incorporation by reference as the new DOE test procedure.
On November 4, 2021, DOE published a notice of proposed rulemaking (November 2021 NOPR) in which DOE proposed to re-establish a conventional cooking top test procedure.
The November 2021 NOPR also presented the results of an initial round robin test program initiated in January 2020 (2020 Round Robin). The purpose of the 2020 Round Robin was to investigate further the IEC water heating approach and the concerns AHAM raised in its petition that led to the withdrawal of the prior test procedure.
AHAM submitted comments in response to the November 2021 NOPR and December 2021 NODA stating DOE had not yet provided sufficient support for its proposed test procedure to demonstrate that it meets the statutory requirements for a mandatory test procedure. AHAM argued that the burden, repeatability, and reproducibility issues were still so significant that the proposed test procedure threatened the integrity of the Appliance Standards Program. And AHAM's research continued to show that the test procedure DOE proposed, though DOE attempted to improve it, may not be representative for some cooktops (especially gas). Moreover, AHAM pointed out that DOE's process to develop the proposed test procedure was fraught with the same problems that plagued the last version of the test, which DOE ended up withdrawing. AHAM also highlighted its continued concerns with lack of transparency in the process used to develop this test procedure, and argued that DOE's proposed rule was not adequately supported by data (despite the fact that AHAM—with DOE's knowledge—was actively working on obtaining data that would be highly relevant to the development of a cooktop test procedure).
On March 16, 2022, per a request from AHAM, DOE published full test data that was previously presented only in summary form in the December 2021 NODA. DOE indicated that it published this data in response to AHAM's request to provide its full, raw data on the record for stakeholder review, and indicated it did so only after receiving permission from applicable stakeholders to publish their data in the docket. On August 22, 2022, DOE adopted its proposed rule as a new final test procedure, 10 CFR part 430, subpart B, appendix I1.
In parallel to this rulemaking activity, AHAM's cooktop test procedure task force was working to address the issues AHAM previously identified with the test procedure. In fact, AHAM's task force continues to work. DOE, its consultant (Guidehouse), and efficiency advocates were, and continue to be, participants in this effort. From August 2021 to November 2022 AHAM completed two sets of testing at (1) third-party test laboratories; and (2) manufacturer test laboratories. The test results support AHAM's arguments that DOE's test procedure is not sufficiently reproducible and is overly burdensome to conduct.
Based on our extensive testing, AHAM continues to believe that—though some portions of the final test procedure are an improvement on the proposed test procedure—the test continues to be unduly burdensome. Our concerns about reproducibility have also not been fully addressed and, thus, we continue to have concerns about the test's accuracy as well. We recognize, however, that the Department is under significant political pressure and is unlikely to take the time needed to fully investigate and resolve those issues. As a result, AHAM is submitting this Petition targeting key areas in which we believe the test procedure can be improved to significantly decrease test burden without negatively impacting the test's accuracy or representativeness. These changes are not time-consuming to introduce and, especially because there is not yet an applicable standard, we request that the Department expeditiously consider and grant this Petition. It is critical that changes be made before mandatory use of the test procedure is required and before a second draft (and final version of) an ENERGY STAR specification. Thus, while DOE is reviewing these changes, we ask that DOE stay the effectiveness of any mandatory use of the test procedure with regard to representations and/or standards/ENERGY STAR compliance.
DOE's final rule estimated a third-party test laboratory cost of $4,100 to conduct the test procedure for a single cooking top, and an estimated 23.6 hours of technician time if the test were conducted in-house. AHAM data, however, demonstrates that this is a significant underestimate.
DOE must acknowledge that cooking tops are an attended product (
To get a detailed look at the test burden, AHAM collected member data on active hours (
AHAM data shows the average active hours for testing a 4-zone electric cooking top to be 37.4 hours, and the average active hours for testing a 5-zone gas cooking top to be 43.6 hours. Members estimated a total test time of 49.9 hours for a 4-zone electric cooking top and 57.8 hours for a 5-zone gas cooking top. This far exceeds DOE estimates with active hours alone being 58 percent and 85 percent more time, respectively. While the manufacturer estimates may include a small learning curve, AHAM data should not be discounted for this reason. Learning and training on this more involved test is part of the burden and will happen every time a new technician executes this test method. And the consideration of active test hours is an important one because it means that the technician is not as available to do other things during the test as s/he would be for an unattended appliance and a test that requires less technician interaction and monitoring.
In regards to (third-party) testing costs per single cooking top, AHAM data shows a cost 1.9 to 2.6 times more than DOE's estimate (approximately $7,900 to $10,800).
Because of the challenges associated with conducting the simmer portion of Appendix I1 such as finding the correct simmer settings for each cooking zone, the simmer portion of the test adds unnecessary procedural steps resulting in significant test burden without adding meaningfully to differentiating the energy efficiency of individual units.
To determine if a less burdensome approach is possible, AHAM conducted investigative testing on 18 cooking tops from ten different manufacturers using third party testing laboratories and testing per Appendix I1 as written. In addition, AHAM collected internal test data from three different manufacturers who conducted their own in-house testing, also using Appendix I1 as written. Using this data, AHAM developed a simmer calculation for each type of cooking top (electric coil, electric radiant, induction and gas) that is accurate and reliable and with this Petition we are asking DOE tom include it as an alternative in Appendix I1.
The calculation would require that each cooking zone be tested at the maximum setting until water reaches 90 °C. The energy consumption to reach 90 °C is then entered into the relevant simmer calculation for a final result that includes the simulated energy consumed during a physical simmer test. Major steps of a test using the simmer calculation are summarized in the graphic below:
This allows the test result for each model to maintain the same consumer representativeness of the full physical test. Given the limited technology options available for increasing efficiency for any of these product types, it is unlikely that these calculations will change significantly in the coming years. And even if changes are needed, manufacturers could seek guidance or waivers as needed.
The below chart shows the r-squared value by product type for each simmer calculation equation. As these values indicate, the alternative calculations AHAM proposes are highly correlated to the tested values and are, thus excellent approximations of conducting the physical test. Thus, DOE should include
Graphic representations of simmer calculations, and the data points that are used to create the calculations, are shown below to visually show the high degree of correlation between tested values and calculated values. (A coil plot is not shown because it is a multi-variable equation).
AHAM believes each product-type's simmer calculation equation will get stronger with the inclusion of DOE's round robin dataset (improving the R-squared values further). To make these calculations stronger (based on more data points), DOE should release the raw, second-by-second, data of its own testing. AHAM has repeatedly requested that data both as part of its task force work with DOE and on the record,
Due to the high correlation between the simmer calculation and the simmer test, AHAM requests that DOE amend the cooking top test procedure to allow manufacturers to use the simmer calculation as a replacement for the simmer portion of the test procedure. This would allow manufacturers to conduct a simmer calculation or a physical simmer test.
AHAM strongly urges DOE to amend the test procedure to include this alternate calculation method because it will significantly reduce test burden for manufacturers. If DOE believes that the proposed alternative calculation method's variation is too high, AHAM submits that the calculation is well correlated to the test results and thus, if the calculation variation is too significant, so too is the tested variation. The calculation method allows equivalence in variation, but with lower test burden. Table 4 identifies each part of the DOE test procedure that was conducted during active mode AHAM Location 2 investigative testing.
The total number of test parts would be reduced by 81 percent if a simmer calculation is used.
Importantly, the simmer calculation meets DOE's criteria as described in the final rule. DOE stated that in order to ensure that the test method is representative of consumer usage, any alternative method would need to provide an estimated energy consumption specific to the conventional cooking top model under test, rather than yielding an approximate value by means of a generic approach that applies equally for all models. Any such alternative method would need to produce equivalent estimated energy consumption results and associated product rankings as the physical test procedure established in Appendix I1.
We note that, in order to evaluate equivalent product rankings between the proposed alternative calculation method and the full physical test, there must be consistent product rankings for the full physical tests. The full physical test procedure does not produce consistent product rankings. For example, the same gas units rank differently when tested at different labs.
Since the full test, including simmer, produces inconsistent product rankings, it is not reasonable to expect consistency, nor does it make sense to require the alternative calculation to be equally inconsistent.
The simmer equations AHAM proposes in this Petition are based on testing a two third-party laboratories and three manufacturer laboratories.
The simmer equations AHAM proposes in this Petition are based on a number of models using different technologies including coil, radiant, induction, and gas heating elements.
AHAM proposes that a unique equation be established for each surface cooking type based on the underlying physics—
It is unclear what technology options DOE is looking to capture, but due to the high number of manufacturers that
The difference between physical test results and calculated results using the equations AHAM proposes in this Petition is small. As an example, the below table evaluates fully tested versus calculated results at one of the third-party testing locations in AHAM's testing. The average difference was only about one percent, which is insignificant, particularly when compared to the variation in the full test. Table 8 below demonstrates this point.
Based on discussions with Guidehouse during our task force efforts, AHAM understands “simmer strategies” to mean some combination of control type, power levels, power steps, and safety features that a model uses to set, control and maintain power levels. Twelve electric samples were tested at third-party labs; this data was used in developing the simmer equations. Of those samples, AHAM has confirmed that five use an infinite switch control and four use a software-based control. For gas units, see points three and four above showing the large number of models and manufacturers considered. (Note that information on controls was not provided for all units in AHAM's sample.)
As a supplement to this petition, we are confidentially submitting to Guidehouse raw test data that supports our arguments in this Petition and supports DOE amending Appendix I1 to include an alternative simmer calculation.
Additionally, AHAM requests that DOE add enforcement provisions that require DOE to use both simmer methods (the calculation and physical test) before making a finding of non-compliance with energy conservation standards (and ideally, before proceeding beyond assessment testing). A similar enforcement strategy is already in place for refrigerators.
Separate from our proposal to permit a calculation alternative to the simmer portion of the test procedure, AHAM also proposes additional minor changes to improve the clarity of the test procedure and we ask that DOE make these changes before the test procedure becomes mandatory to demonstrate compliance with standards/ENERGY STAR specifications, prior to required use of the test procedure to support energy related representations. It would also be helpful to have these improvements made in time to allow use of them in assessing amended standards.
The test procedure excludes specialty cooking zones. In the final rule, DOE noted that “. . . a cooking zone designed for use only with non-circular cookware would not be expected to be used with any regularity, such that measuring its energy use would not be representative of the energy use of a cooking top during a representative average consumer use cycle . . .”
The test procedure excludes non-cooking top portions of combined products. Appendix I1 covers conventional cooking tops and conventional cooking top components of combined products, where a combined product is defined as a conventional range, a microwave/conventional cooking top, a microwave/conventional oven, and a microwave/conventional range. DOE does not require that the microwave and cooking top be tested together. However, DOE does not provide the same distinction for products which are a combination of a range hood and a conventional cooking top. AHAM requests that DOE be consistent and exclude models where it is not possible to take a representative measurement of the cooking top only.
Additionally, AHAM believes that more detail is needed to achieve DOE's goal of excluding cooking zones which are not regularly used and do not match the scope of the test procedure—
For electric units, DOE requires measurement of the cooking zone diameter to determine cookware size and water load. Furthermore, “. . . DOE clarifies that open coil heating elements are to be treated as circular, and that the largest diameter is used . . .”
DOE does not adequately consider the method of measurement for open coil heating elements. These types of elements have rounded edges. If measured with a ruler, the rounded edges are unaccounted for, a smaller diameter is measured, and smaller cookware/water load may be required. But if a caliper were used, that would account for rounded edges, measuring a larger diameter, and thus larger cookware/water load may be needed. Currently, the test procedure appears to permit either measurement tool. AHAM proposes that DOE specify which measurement tool should be used either in the test procedure itself or through test procedure guidance.
As shown in the table above, a one percent difference in diameter measurement produces a 5.85 percent difference in measured energy consumption due to the change in required test water load.
DOE also had this issue for the coil units in its second round robin.
To remedy this, AHAM requests that DOE clarify 3.1.1.1.1 of the test procedure to require use of calipers, which provide a more accurate measurement than a ruler. We propose the following text: “Open-coil cooking zones shall be measured with calipers at the largest outside diameter.” Alternatively, DOE could issue guidance to clarify that calipers should be used.
In AHAM's view, data from DOE's second round robin still shows unacceptable levels of variation.
Variation of this nature will have serious consequences when it comes to future DOE compliance and enforcement efforts. Because of the differences in potential test results depending on the laboratory conducting the test, manufacturers will need to build in a buffer or “safety factor” of over ten percent on average (unit 6, Lab C vs. Lab A shows a 12.5 percent variation) to help ensure compliance with applicable standards.
The variation could also mean that, for example, if a manufacturer uses Lab B or C for certification and DOE uses Lab A for compliance and enforcement testing, DOE's results could be an overstated efficiency as the test unit(s) will have drifted away from their certified values due to variation in mass production. This could result in false findings of non-compliance. The analysis below uses DOE's round robin testing results and statistical simulation (as presently required under 10 CFR 429 Subpart C) to show that this variation is so significant, units with as much as five percent higher energy consumption could still meet a future minimum energy conservation standard level
We continue to believe that this variation threatens the credibility of the Appliance Standards Program and means that the cooktop test procedure DOE finalized does not produce sufficiently accurate results. Thus, we continue to question whether the test procedure truly meets EPCA's criteria.
Although AHAM does not have a proposal at this time for improving further the test's variation, we do believe DOE can reduce the test's burden so it is not overly burdensome to conduct. Specifically, AHAM asks that DOE simplify the test by removing the requirement to perform a physical simmer test and providing, as an option,
Based on the above reasoning and justification, combined with the data AHAM will submit with this petition, AHAM respectfully requests that DOE amend the test procedure to:
1. Allow for a calculation as an alternative to the simmer portion of the test;
2. Exclude models where the cooktop cannot be measured in a representative manner; and
3. Require measurement of open-coil cooking zone diameter using a caliper.
Although we understand that DOE is working to consider energy conservation standards for cooktops, we do not expect that making these relatively minor changes to the test procedure will impact DOE's ability to proceed with its other rulemaking plans. Mandatory use of appendix I1 for representations of energy use or energy efficiency of a conventional cooking top is not required until on or after February 20, 2023. We also note that, to date, there are no applicable energy conservation standards for cooktops, which means that this test procedure is not used to demonstrate compliance with applicable standards. Nevertheless, we ask DOE to move quickly to make these changes because the date for using the test procedure for representations is quickly approaching and EPA is moving quickly to develop an ENERGY STAR specification that uses DOE's test procedure. Moreover, these changes will be helpful in assessing DOE's proposed amended energy conservation standards.
AHAM appreciates the opportunity to submit this Petition to Amend the Cooktop Test Procedure and would be glad to discuss these matters in more detail should you so request. We respectfully request that DOE urgently review and act upon this petition as it is critical that changes be made before mandatory use of the test procedure is required. Thus, while DOE is reviewing these changes, we ask that DOE stay the effectiveness of that requirement.
Respectfully Submitted,
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain De Havilland Aircraft of Canada Limited Model DHC-8-401 and -402 airplanes. This proposed AD was prompted by reports that the saddle washer (radius filler) for the front and rear spar joints may have been incorrectly manufactured for several years. This proposed AD would require inspecting the horizontal stabilizer to vertical joint for gaps and bending of the saddle washer and adjacent washers, and replacing parts if necessary. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by June 5, 2023.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
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• For service information identified in this NPRM, contact De Havilland Aircraft of Canada Limited, Dash 8 Series Customer Response Centre, 5800 Explorer Drive, Mississauga, Ontario, L4W 5K9, Canada; telephone 855-310-1013 or 647-277-5820; email:
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th Street, Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
Yaser Osman, Aerospace Engineer, Airframe and Propulsion Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; email
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Yaser Osman, Aerospace Engineer, Airframe and Propulsion Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; email
Transport Canada, which is the aviation authority for Canada, has issued Transport Canada AD CF-2022-21, dated April 21, 2022 (Transport Canada AD CF-2022-21) (also referred to after this as the MCAI), to correct an unsafe condition on certain De Havilland Aircraft of Canada Limited Model DHC-8-401 and -402 airplanes. The MCAI states that certain saddle washers for the front and rear spar joint, may have been incorrectly manufactured for several years. Non-conforming saddle washers could potentially become deformed when installed, and lead to gaps at the horizontal stabilizer to vertical stabilizer joint, that would result in reduction of the pre-load at the joint.
The FAA is proposing this AD to address gapping and bending of the saddle washer that could have the potential to reduce the life of the bolt, which in turn could affect the structural integrity of the horizontal stabilizer to vertical stabilizer joint.
You may examine the MCAI in the AD docket at
The FAA reviewed De Havilland Aircraft of Canada Limited Service Bulletin 84-55-12, Revision A, dated February 16, 2022. This service information specifies procedures for a detailed visual inspection of the front and rear spar joints for signs of gapping or bending of the radius filler and/or adjacent washers, and depending on the inspection results, replacement of the saddle washer, adjacent washers, bolt, and barrel nut.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI and service information referenced above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information already described.
The FAA estimates that this AD, if adopted as proposed, would affect 400 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
The FAA estimates the following costs to do any necessary on-condition action that would be required based on the results of any required actions. The FAA has no way of determining the number of aircraft that might need this on-condition action:
The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected operators.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by June 5, 2023.
None.
This AD applies to De Havilland Aircraft of Canada Limited (Type Certificate Previously Held by Bombardier, Inc.) Model DHC-8-401 and -402 airplanes, certificated in any category, having serial numbers 4001 and 4003 through 4633 inclusive.
Air Transport Association (ATA) of America Code: 55, Stabilizers.
This AD was prompted by reports that the saddle washer (radius filler) for the front and rear spar joints may have been incorrectly manufactured for several years. The FAA is issuing this AD to address gaps and bending of the saddle washer that could have the potential to reduce the life of the bolt, which in turn could affect the structural integrity of the horizontal stabilizer to vertical stabilizer joint.
Comply with this AD within the compliance times specified, unless already done.
Within 8,000 flight hours after the effective date of this AD, perform a detailed visual inspection for signs of gapping or bending of the saddle washers and adjacent washers in the front spar and rear spar horizontal/vertical stabilizer joint fitting in accordance with Section 3.B., Part A, of the Accomplishment Instructions of De Havilland Aircraft of Canada Service Bulletin 84-55-12, Revision A, dated February 16, 2022.
If any gaps or bending of the washers is found during the inspection required in paragraph (g) of this AD, before further flight, replace the saddle washer, washers, PLI washer, bolt, and barrel nut, as applicable, in accordance with Section 3.B., Part B, of the Accomplishment Instructions of De Havilland Aircraft of Canada Service Bulletin 84-55-12, Revision A, dated February 16, 2022.
This paragraph provides credit for actions required by paragraphs (g) and (h) of this AD, if those actions were performed before the effective date of this AD using De Havilland Aircraft of Canada Limited Service Bulletin 84-55-12, dated September 7, 2021.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Transport Canada AD CF-2022-21, dated April 21, 2022, for related information. This Transport Canada AD may be found in the AD docket at
(2) For more information about this AD, contact Yaser Osman, Aerospace Engineer, Airframe and Propulsion Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; email
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) De Havilland Aircraft of Canada Limited Service Bulletin 84-55-12, Revision A, dated February 16, 2022.
(ii) [Reserved]
(3) For service information identified in this AD, contact De Havilland Aircraft of Canada Limited, Dash 8 Series Customer Response Centre, 5800 Explorer Drive, Mississauga, Ontario, L4W 5K9, Canada; telephone 855-310-1013 or 647-277-5820; email:
(4) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th Street, Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Forest Service, Agriculture (USDA).
Notice.
The Forest Service (Forest Service or Agency), United States Department of Agriculture, is issuing a final permanent order prohibiting recreational shooting in the proximity to canyon roads on the eastern side of the Huachuca Mountains in the vicinity of the City of Sierra Vista, Fort Huachuca, and the communities of Hereford and Palominas of the Sierra Vista Ranger District in the Coronado National Forest, which covers approximately 5,090 acres in Cochise County, Arizona.
The final permanent order, map, response to comments on the proposed permanent order, justification for the final permanent order, and regulatory certifications for the final permanent order are posted on the Coronado National Forest's web page at
Celeste Kinsey, District Ranger, 520-378-0311, or
Section 4103 of the John D. Dingell, Jr. Conservation, Management, and Recreation Act of 2019 (Pub. L. 116-9, title IV (Sportsmen's Access and Related Matters)), hereinafter “the Dingell Act,” requires the Forest Service to provide advance notice and opportunity for public comment before temporarily or permanently closing any National Forest System lands to hunting, fishing, or recreational shooting.
The final permanent order prohibiting recreational shooting in the proximity to canyon roads on the eastern side of the Huachuca Mountains in the vicinity of the City of Sierra Vista, Fort Huachuca, and the communities of Hereford and Palominas of the Sierra Vista Ranger District in the Coronado National Forest has completed the public notice and comment process required under the Dingell Act. The Forest Service is issuing the final permanent recreational shooting order. The final permanent order, map, response to comments on the proposed permanent order, justification for the final permanent order, and regulatory certifications for the final permanent order are posted on the Coronado National Forest's web page at
Forest Service, Agriculture (USDA).
Notice.
The Forest Service (Forest Service or Agency), U.S. Department of Agriculture, provides direction to employees through issuances in its Directive System, comprised of the Forest Service Manual and Forest Service Handbooks. The Agency must provide public notice of and opportunity to comment on any directives that formulate standards, criteria, or guidelines applicable to Forest Service programs. Once per quarter, the Agency provides advance notice of proposed and interim directives that will be made available for public comment during the next three months and notice of final directives issued in the last three months.
This notice identifies proposed and interim directives that will be published for public comment between April 1, 2023, and June 30, 2023; proposed and interim directives that were previously published for public comment but not yet finalized and issued; and final directives that have been issued since January 1, 2023.
Questions or comments may be submitted by email to the contact listed below.
JoLynn Anderson, 971-313-1718 or
Consistent with 16 U.S.C. 1612(a) and 36 CFR part 216, the Forest Service publishes for public comment Agency directives that formulate standards, criteria, and guidelines applicable to Forest Service programs. Agency procedures for providing public notice and opportunity to comment are specified in Forest Service Handbook (FSH) 1109.12, chapter 30, Providing Public Notice and Opportunity to Comment on Directives.
The following proposed directives are planned for publication for public comment from April 1, 2023, to June 30, 2023:
1. Forest Service Manual (FSM) 2000, National Forest Resource Management, chapter 40—National Forest System Monitoring (previously published as planned for publication for public comment April 8, 2022 (87 FR 20810)).
2. Forest Service Manual (FSM) 2300, Recreation, Wilderness, and Related Resource Management, chapter 55—Climbing Management (previously published as planned for publication for public comment January 28, 2022 (87 FR 4552)).
The following proposed and interim directives have been published for public comment but have not yet been finalized:
1. FSM 2200, Rangeland Management, chapters Zero Code; 2210, Rangeland
2. FSM 3800, Landscape Scale Restoration Program.
3. FSH 2409.12, Timber Cruising Handbook, chapters 30, Cruising Systems; 40, Cruise Planning, Data Recording, and Cruise Reporting; 60, Quality Control; and 70, Designating Timber for Cutting.
4. FSH 2409.15, Timber Sale Administration Handbook, chapters 20, Measuring and Accounting for Included Timber; 40, Rates and Payments; and 60, Operations and Other Provisions.
Final FSH 2209.13, Grazing Permit Administration Handbook, chapter 80, Grazing Fees (chapter 80), has been issued since January 1, 2023. Chapter 80 is the first of 16 other chapters being updated and yet to be issued to provide greater management flexibility and improve the clarity of policies and procedures guiding responsible and consistent management of grazing on National Forest System lands. Chapters in FSM 2200, Rangeland Management, FSH 2209.13, Grazing Permit Administration Handbook, and FSH 2209.16, Allotment Management Handbook, are being reviewed and will be published later.
Final chapter 80 incorporates the final rule on excess and unauthorized grazing that became effective in August 2022. The final rule allows responsible officials to waive excess and unauthorized grazing fees when certain conditions are met. Final chapter 80 merely incorporates this regulation without revision. In addition, final chapter 80 incorporates current direction regarding excess and unauthorized use penalty rates. In final chapter 80, excess and unauthorized use penalty rates were revised to reflect current market value rather than the market value from the 1960s. The 60-day comment period for the proposed directive began December 18, 2020, closed February 16, 2021, and was extended for 60 days to April 17, 2021. The 5,000 public comments and 2 comments from Tribes on all 17 of the proposed directives can be viewed at
Rural Housing Service, Department of Agriculture.
Notice.
The Rural Housing Service (RHS or the Agency), a Rural Development (RD) mission area agency of the United States Department of Agriculture (USDA), announces the availability of funding under the Housing Preservation Grant (HPG) program for fiscal year (FY) 2023, making available grant funds to sponsoring organizations for the repair or rehabilitation of housing owned or occupied by low- and very-low-income rural citizens under the HPG Program. The purpose of this notice is to announce the opening and closing dates for receipt of preapplications for HPG funds, including the availability of calendar year 2022 disaster assistance, from eligible applicants, as well as submission requirements. Expenses incurred in developing preapplications will be at the applicant's cost.
Completed preapplications for grants must be submitted according to one of the following methods:
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Applicants may also request paper preapplication packages from the RD office in their state. A list of Rural Development State Office (RDSO) contacts can be found via:
Mandy Couture, Finance and Loan Analyst, Single Family Housing Direct Division, Special Programs and New Initiatives Branch at (515) 418-2188 (voice) (this is not a toll-free number) or email:
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• Reducing climate pollution and increasing resilience to the impacts of climate change through economic support to rural communities.
• Ensuring all rural residents have equitable access to RD programs and benefits from RD funded projects; and
• Assisting rural communities recover economically through more and better market opportunities and through improved infrastructure.
For further information, visit
1.
The program assists cooperative housing complexes and rental property owners in rural areas in repairing and rehabilitating their units if they agree to make such units available to very low- and low-income persons. Rental property owners can include Section 515 and 538 rental properties if the eligibility requirements are met for the HPG program. In accordance with 7 CFR 1944.663, rental property owners must agree to make the units repaired or rehabilitated available for occupancy to very low- or low-income persons for a period of not less than five years. The minimum five-year rent restriction for very low- and low-income tenants will only apply to the units that are repaired with the HPG funding. Any units within the property that were not repaired with HPG funding will not be subject to the five-year restriction.
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A list of RDSO contacts is provided at:
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Preapplications for disaster assistance grants may be utilized for calendar year 2022 presidentially declared disaster area(s) only (2022 presidentially declared disaster areas can be viewed at
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Applicants may also request a paper application package from the RD office in their state. A list of RDSO contacts can be found via
2.
As specified by 7 CFR 1944.676, the Agency requires applicants to submit the following information to make an eligibility determination:
1. An SF-424, “Application for Federal Assistance”;
(i) Made available by contacting any RDSO at the website:
(ii)
2. A statement of activities proposed by the applicant for its HPG program as appropriate to the type of assistance the applicant is proposing, including:
(i) A complete discussion of the type of and conditions for financial assistance for housing preservation, including whether the request for assistance is for a homeowner assistance program, a rental property assistance program, or a cooperative assistance program.
(ii) The process for selecting recipients for HPG assistance, determining housing preservation needs of the dwelling, performing the necessary work, and monitoring/inspecting work performed.
(iii) A description of the process for coordinating with other public and private organizations and programs that provide assistance in rehabilitation of historic properties in accordance with 7 CFR 1944.673.
(iv) The development standard(s) the applicant will use for the housing preservation work; and, if not the RD standards for existing dwellings, the evidence of its acceptance by the jurisdiction where the grant will be implemented.
(v) The time schedule for completing the program.
(vi) The staffing required to complete the program.
(vii) The estimated number of very low- and low-income minority and non-minority persons the grantee will assist with HPG funds; and, if a rental property or cooperative assistance program, the number of units and the term of restrictive covenants on their use for very low- and low-income.
(viii) The geographical area(s) to be served by the HPG program.
(ix) The annual estimated budget for the program period based on the financial needs to accomplish the objectives outlined in the proposal. The applicant can use SF-424A to provide this information.
(x) A copy of an indirect cost proposal/rate or direct cost policy when the applicant has another source of federal funding in addition to the RD HPG program.
(xi) A brief description of the accounting system to be used.
(xii) The method of evaluation to be used by the applicant to determine the effectiveness of its program which encompasses the requirements for quarterly reports to RD in accordance with 7 CFR 1944.683(b) and the monitoring plan for rental properties and cooperatives (when applicable) according to 7 CFR 1944.689.
(xiii) The source and estimated amount of other financial resources to be obtained and used by the applicant for both HPG activities and housing development and/or supporting activities.
(xiv) The use of program income if any, and the tracking system used for monitoring same.
(xv) The applicant's plan for disposition of any security instruments held by them as a result of its HPG activities in the event of its loss of legal status.
(xvi) Any other information necessary to explain the proposed HPG program.
(xvii) The outreach efforts outlined in 7 CFR 1944.671(b).
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(i) The applicant must submit written statements and related correspondence reflecting compliance with 7 CFR 1944.674(a) regarding consultation with local leaders from the county, parish, and/or township governments of the area where the HPG activities will take place for the purpose of assuring that the proposed HPG program is beneficial and does not duplicate current activities. American Indian nonprofit organization applicants should obtain the written concurrence of the tribal governing body in lieu of consulting with the county governments when the program is operated only on tribal land.
(ii) The applicant is to make its statement of activities available to the public for comment prior to submission to RD pursuant to 7 CFR 1944.674(b). The applicant(s) must announce the availability of its statement of activities for review in a print or online newspaper of general circulation in the project area and allow at least 15 days for public comment. The start of this 15-day period must occur no later than 16 days prior to the last day for acceptance of preapplications by the Agency. Federally recognized Indian Tribes, pursuant to 7 CFR 1944.674, should obtain the written concurrence of the tribal governing body in lieu of consulting with the county governments when the program is operated only on tribal land. The preapplication must contain a description of how the comments (if any were received) were addressed.
12. Equal Opportunity Agreement. The applicant must submit an original of Form RD 400-1, “Equal Opportunity Agreement” and Form RD 400-4, “Assurance Agreement” in accordance with 7 CFR 1944.676.
13. RD Instruction 2000-FF. Provided for informational purposes during the preapplication period per 7 CFR 1944.673.
Applicants should review 7 CFR part 1944, subpart N for a comprehensive list of all application requirements. Preapplications will not be considered for funding if they do not provide sufficient information to determine eligibility or are missing required elements.
Applicants must collect and maintain data provided by recipients on race, sex, and national origin and ensure ultimate recipients collect and maintain this data as described in 7 CFR 1944.671. Race and ethnicity data will be collected in accordance with OMB
The applicant and the recipient must comply with Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, Age Discrimination Act of 1975, Executive Order 12250, Executive Order 13166 Limited English Proficiency (LEP), and 7 CFR part 1901, subpart E.
Debarment and suspension information is required in accordance with 2 CFR 417180 (OMB's Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement) (Non procurement Debarment and Suspension) supplemented by 2 CFR 180417 (Nonprocurement Debarment and Suspension) if it applies. The section heading is “What information must I provide before entering into a covered transaction with a Federal agency?” located at 2 CFR 180.335. It is part of OMB's Guidance for Grants and Agreements concerning Governmentwide Debarment and Suspension. Applicants are not eligible if they have been debarred or suspended or otherwise excluded from, or ineligible for, participation in Federal assistance programs under 2 CFR parts 180 and 417.
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(a) At the time of application, each applicant must have an active registration in the System for Award Management (SAM) before submitting its application in accordance with 2 CFR 25 (
(b) Applicant must maintain an active SAM registration, with current, accurate and complete information, at all times during which it has an active Federal award or an application under consideration by a Federal awarding agency.
(c) Applicant must ensure they complete the Financial Assistance General Certifications and Representations in SAM.
(d) Applicants must provide a valid UEI in its application, unless determined exempt under 2 CFR 25.110 (
(e) The Agency will not make an award until the applicant has complied with all SAM requirements including providing the UEI. If an applicant has not fully complied with the requirements by the time the Agency is ready to make an award, the Agency may determine that the applicant is not qualified to receive a Federal award and use that determination as a basis for making a Federal award to another applicant.
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All eligible and complete preapplications for Section 533 HPG funds must be filed with the appropriate RDSO and all paper or electronic preapplications must meet the requirements of this Notice and 7 CFR part 1944.679. Preapplications determined not eligible and/or not meeting the selection criteria will be notified by the RDSO.
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The Agency reserves the right to offer the applicant less than the grant funding requested. RDSOs will utilize the following threshold project selection criteria for applicants in accordance with 7 CFR 1944.679:
(a) Providing a financially feasible program of housing preservation assistance. “Financially feasible” is defined as proposed assistance which will be affordable to the intended recipient or result in affordable housing for very low- and low-income persons.
(b) Serving eligible rural areas with a concentration of substandard housing for households of very low- and low-income.
(c) Being an eligible applicant as defined in 7 CFR 1944.658.
(d) Meeting the requirements of consultation and public comment in accordance with 7 CFR 1944.674.
(e) Submitting a complete preapplication as outlined in 7 CFR 1944.676.
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For applicants meeting all the requirements listed above, the RDSOs will use weighted criteria in accordance with 7 CFR part 1944, subpart N as selection for the grant recipients. Each preapplication and its accompanying statement of activities will be evaluated and, based solely on the information contained in the preapplication, the applicant's proposal will be numerically rated on each criterion within the range provided. The highest-ranking applicant(s) will be selected based on allocation of funds available to the state.
(1) Points are awarded based on the percentage of very low-income persons that the applicant proposes to assist, using the following scale:
(2) The applicant's proposal may be expected to result in the following percentage of HPG fund use (excluding administrative costs) to total cost of unit preservation. This percentage reflects maximum repair or rehabilitation with the least possible HPG funds due to leveraging, innovative financial assistance, owner's contribution, or other specified approaches. Points are awarded based on the following percentage of HPG funds (excluding administrative costs) to total funds:
(3) The applicant has demonstrated its administrative capacity in assisting very low- and low-income persons to obtain adequate housing based on the following:
(i) The organization or a member of its staff has at least one or more years of experience successfully managing and operating a rehabilitation or weatherization type program: 10 points.
(ii) The organization or a member of its staff has at least one or more years of experience successfully managing and operating a program assisting very low- and low-income persons obtain housing assistance: 10 points.
(iii) If the organization has administered grant programs, there are no outstanding or unresolved audit or investigative findings which might impair carrying out the proposal: 10 points.
(4) The proposed program will be undertaken entirely in rural areas outside Metropolitan Statistical Areas (MSAs) identified by RD as having populations below 10,000 or in remote parts of other rural areas (
(5) The program will use less than 20 percent of HPG funds for administration purposes:
(6) The proposed program contains a component for alleviating overcrowding as defined in 7 CFR 1944.656: 5 points.
In the event more than one preapplication receives the same number of points, those preapplications will then be ranked based on the actual percentage figure used for determining the points in item (1) in the “Scoring” section of this Notice (7 CFR 1944.679 (b)(1)).
Example of 1st tie-break:
Further, if preapplications are still tied, then those preapplications still tied will be ranked based on the percentage figures used for determining the points in item (2) in the “Scoring” section of this Notice (7 CFR 1944.679 (b)(2)).
Example of 2nd tie-break:
Further, 7 CFR 1944.679(c), for preapplications where HPG assistance to rental properties or co-ops is proposed, those still tied will be further ranked based on the number of years the units are available for occupancy under the program (a minimum of five years is
Example of 3rd tie-break:
If any of the applicants that remain tied after the 1st and 2nd tie-breaks are offering to assist single family owners, then the 3rd tie-break would not be applicable, and a lottery would be used to select the applicant to be funded.
If there is still a tie after the first two (or three, when applicable) tie-breaks, then a lottery system will be used to select the applicant to be funded. The lottery will be conducted at the National Office. The lottery will consist of the names of each preapplication with equal scores printed onto a same size piece of paper, which will then be placed into a receptacle that fully obstructs the view of the names. The Director of the Single-Family Housing Loan Division, in the presence of two witnesses, will draw a piece of paper from the receptacle. The name on the piece of paper drawn will be the applicant to be funded.
After the award selections are made by the National Office, all applicants will be notified of the status of their preapplications by email or mail with Form AD-622, “Notice of Preapplication Review Action.” Applicants will be given their review rights or appeal rights in accordance with 7 CFR 1944.682.
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The Agency will notify in writing, applicants whose preapplications have been selected for funding. At the time of notification, the Agency will advise the applicant what further information and documentation is required along with a timeline for submitting the additional information. If the Agency determines it is unable to select the preapplication for funding, the applicant will be informed in writing. Such notification will include the reasons the applicant was not selected. The Agency will advise applicants, whose preapplications did not meet eligibility and/or selection criteria, of their review rights or appeal rights in accordance with 7 CFR 1944.682.
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(a) The following additional requirements apply to grantees selected for this program:
(i) Form SF-424, “Application for Federal Assistance”
(ii) Form RD 1940-1, “Request for Obligation of Funds”
(iii) RD Instruction 1944-N Exhibit A, “Housing Preservation Grant Agreement”
(iv) Letter of Conditions (if applicable)
(v) Complete Form RD 1942-46, “Letter of Intent to Meet Conditions” (if applicable)
(vi) 1940-Q Exhibit A-1, “Certification for Contracts, Grants and Loans” (if applicable)
(vii) Form SF 3881, “ACH Vendor Payment Enrollment Form”
(viii) Form SF 270, “Request for Advance or Reimbursement”
(ix) Form SF 425, “Federal Financial Report”
(x) RD Instruction 1944-N Exhibits E-1 and E-2, “Quarterly (Final) Performance Report” and “Quarterly (Final) Performance Report Guide”
(xi) 1970-B Exhibit D, “Categorical Exclusion Form”
(xii) RD Instruction 1944-N Exhibit F-1, “Grantee's Process for Identifying Properties Requiring Rural Development Environmental Assessments”
(xii) FEMA Form 086-0-32, “Standard Flood Hazard Determination Form (SFHDF)”
(xiv) Execute Form SF-LLL, “Disclosure of Lobbying Activities” (if applicable)
The grant recipient must include the required nondiscrimination statements in any of their advertisements and brochures. Grantees will be required to collect and maintain data provided by recipients on race, sex, and national origin and ensure recipients collect and maintain this data. Race and ethnicity data will be collected in accordance with OMB
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Performance reporting, including applicable forms, narratives, and other documentation, are to be completed and submitted in accordance with the provisions of 7 CFR 1944.683 and the Grant Agreement. Further, all grantees must submit an audit or financial information covering the defined period of performance as outlined in 7 CFR 1944.688 and the Grant Agreement.
For general questions about this announcement, please contact Mandy Couture, Finance and Loan Analyst, Single Family Housing Direct Division, Special Programs and New Initiatives Branch at (515) 418-2188 (voice) (this is not a toll-free number) or email:
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Program information may be made available in languages other than English. Persons with disabilities who require alternative means of communication to obtain program information (
To file a program discrimination complaint, a complainant should complete a Form AD-3027, USDA Program Discrimination Complaint Form, which can be obtained online at
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USDA is an equal opportunity provider, employer, and lender.
Rural Utilities Service, USDA.
Notice.
The Rural Utilities Service (RUS or the Agency), a Rural Development (RD) agency of the United States Department of Agriculture (USDA), announces the acceptance of applications—for Broadband Technical Assistance (BTA) for Fiscal Year (FY) 2023. Broadband Technical Assistance provides competitive cooperative agreement funding to eligible entities to receive or deliver broadband technical assistance and training that promotes the expansion of broadband into rural areas. Examples of broadband technical assistance projects may include conducting feasibility studies, completing network designs, and developing broadband financial assistance applications. This announcement lists the information needed to submit an application.
Applications must be submitted through
All applications must be submitted electronically via the online application system at
Laurel Leverrier, Assistant Administrator, Telecommunications Program, Rural Utilities Service, United States Department of Agriculture, telephone: (202) 720-9556, email:
• Assisting rural communities recover economically through more and better market opportunities and through improved infrastructure;
• Ensuring all rural residents have equitable access to RD programs and benefits from RD funded projects; and
• Reducing climate pollution and increasing resilience to the impacts of climate change through economic support to rural communities.
Broadband Technical Assistance provides financial assistance to eligible entities to receive or deliver broadband technical assistance and training and support the expansion or development of broadband cooperatives. Program funds must be used to support broadband technical assistance activities that promote the expansion of broadband into rural areas. Broadband technical assistance activities include, but are not limited to, project planning and community engagement, financial sustainability, environmental compliance, construction and engineering planning, accessing federal resources, and data collection and reporting.
All applicants should carefully review and prepare their applications according to instructions in the FY 2023 BTA Application Guide (Application Guide) and program resources available on the program website at:
The Rural eConnectivity Program is authorized under 7 U.S.C. 901
The terms and conditions provided in this FOA are applicable to and for the purposes of this FOA only. Unless otherwise provided in the award documents, all financial terms not defined herein shall have the meaning as defined by Generally Accepted Accounting Principles.
Applications will be reviewed for eligibility and completeness based on Sections C and D of this FOA. Applications determined to be eligible and complete will be further evaluated based on criteria outlined in Section E. All applications will be competitively scored and ranked. Notifications will be sent to applications in accordance with Section F of this FOA.
• Technical Assistance Providers. Up to $7.5 million is available. The minimum award amount is $50,000 and the maximum award amount is $1,000,000. Entities submitting an application under this funding category must propose to deliver broadband
• Technical Assistance Recipients. Up to $7.5 million is available. The minimum award amount is $50,000 and the maximum award amount is $250,000. Entities submitting an application under this funding category must be beneficiaries of broadband technical assistance.
• Projects Supporting Cooperatives. Up to $5 million is available. The minimum award amount is $50,000 and the maximum award amount is $1,000,000. Entities submitting an application under this funding category must propose a project that supports the establishment or growth of broadband cooperatives that will benefit rural communities.
Only entities legally organized as one of the following are eligible for financial assistance:
a. Federally recognized Tribes and Tribal entities;
b. States or local governments, including any agency, subdivision, instrumentality, or political subdivision thereof;
c. A territory or possession of the U.S.;
d. An institution of higher education (including 1862 Land-Grant Institutions, 1890 Land-Grant Institutions, 1994 Land-Grant Institutions, Hispanic-Serving Institutions, and Historically Black Colleges and Universities);
e. Nonprofit organizations with 501(c)(3) IRS status;
f. Cooperatives or mutual organizations;
g. Corporations; or
h. Limited Liability Companies or Limited Liability Partnerships
a. To be eligible for funding assistance, the proposed project must promote the expansion of broadband services into eligible rural areas.
b. Award funds may be used to assist rural communities, new and existing cooperatives, consultants, and others in identifying and planning for the following purposes to deliver broadband services to rural areas:
i. Identify resources to finance broadband facilities from public and private sources;
ii. Prepare feasibility studies, financial forecasts, market surveys, environmental studies, and technical design information to support broadband services;
iii. Prepare reports and surveys necessary to support the need for broadband services, the price range and to request financial assistance;
iv. Analyze and improve operations related to the management of broadband facilities (
c. The proposed project must include a component that allows for active participation and substantial involvement by RD in the applicant's project proposal. Examples of measurable substantial involvement include, but are not limited to the following:
i. Joint convenings of community members, partners, and stakeholders;
ii. Joint delivery of training for RD programs;
iii. The development of training sessions and outreach materials; and
iv. Joint efforts to form new broadband cooperatives and support existing cooperatives efforts to expand broadband service into rural areas.
It is the intent of the proposed project to engage RD staff in broadband technical assistance activities, and it is the responsibility of the applicant to identify specific tasks where RD staff can provide measurable, substantial involvement in the project. If such tasks are not identified, the application will not be eligible for funding.
d. A certification from the appropriate tribal official is required if a project is being proposed by a non-Tribal applicant over or on Tribal Lands. The appropriate Tribal official is the Tribal Council of the Tribal Government with jurisdiction over the Tribal Lands at issue. Any non-Tribal applicant that fails to provide a certification to administer a project on Tribal Lands will not be considered for funding.
There are no cost sharing or matching requirements associated with this funding opportunity.
Application and supporting materials are available at
a. A fully completed application is required to be considered eligible for funding. For an application to be considered complete, the applicant must complete and submit all forms, information, and supporting documentation described below.
i. Written narrative proposal. The written proposal should be assembled into one or more pdf file(s) and should conform to the order in which the evaluation criteria are presented in Section E. The completed pdf file(s) should be uploaded into
ii. Standard Form 424, “Application for Federal Assistance.”
iii. Standard Form 424B, “Assurances—Non-Construction Programs.”
iii. RD Form 400-4, “Assurance Agreement.”
iv. The Agency reserves the right to contact applicants to seek clarification on submitted materials or request additional information.
b. The Application Guide provides specific, detailed instructions for each item of a complete application. The Agency emphasizes the importance of including every item and strongly encourages applicants to follow the instructions carefully, using the examples and illustrations in the Application Guide.
a. At the time of application, each applicant must have an active registration in the System for Award Management (SAM) before submitting its application in accordance with 2 CFR part 25 (
b. Applicant must maintain an active SAM registration, with current, accurate and complete information, at all times during which it has an active Federal award or an application under consideration by a Federal awarding agency.
c. Applicant must ensure they complete the Financial Assistance General Representations and Certifications in SAM.
d. Applicants must provide a valid UEI in its application, unless determined exempt under 2 CFR 25.110 (
e. The Agency will not make an award until the applicant has complied with all SAM requirements including providing the UEI. If an applicant has not fully complied with the requirements by the time the Agency is ready to make an award, the Agency may determine that the applicant is not qualified to receive a Federal award and use that determination as a basis for making a Federal award to another applicant.
Applications must be submitted through
The Agency will not solicit or consider new scoring or eligibility information that is submitted after the application deadline. RUS also reserves the right to ask applicants for clarifying information and additional verification of assertions in the application.
This program is not subject to Executive Order 12372, “Intergovernmental Review of Federal Programs.”
In addition to costs identified as unallowable by 2 CFR part 200, award funds cannot be used to pay for the following types of expenses (this is not a comprehensive list of unallowable costs, see 2 CFR part 200).
a. Construction (in any form).
b. Activities serving non-rural communities.
c. Activities supporting communities with existing broadband access.
d. Duplicative project costs funded by another award.
e. Indirect Costs.
Applications must be submitted electronically using
The Agency will review each eligible, complete application based on the evaluation criteria identified in this section. The written narrative proposal addressed in Section D of this FOA must address the criteria in the following order:
a. Project Work Plan (up to 30 points). The applicant can receive up to 30 points for providing a detailed project work plan that demonstrates the soundness of the proposed broadband technical assistance approach. The scoring criterion will be based on the following:
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b. Organizational capacity (up to 20 points). All applicants must demonstrate the capacity to deliver and/or support broadband technical assistance activities. The applicant can receive up to 20 points based on organizational capacity and qualifications. The maximum 20 points for this criterion will be based on the following:
i. The applicant's proposal should demonstrate that the applicant has identified appropriate key personnel, both in terms of number of personnel and qualifications of personnel and should provide specific detail of qualifications of key personnel relating to broadband technical assistance. Capacity of personnel to access data for needs assessments and access to planners and other technical experts will be evaluated.
ii. Applicants that are technical assistance providers should specify the number of years of providing broadband technical assistance, detail experience in providing broadband technical assistance to rural communities, identify types of rural communities previously served, and detail experience in performance evaluation.
c. Targeted communities (20 points). The applicant must describe how the proposed technical assistance activities will benefit targeted communities. The applicant should provide detail on how the project will promote the expansion of broadband within the targeted communities. Describe how the plan will help entities plan for and access broadband funding opportunities. The applicant can receive 20 points if at least 50 percent of the rural
i. Tribes and Tribal entities,
ii. Colonias,
iii. Persistent poverty counties, or
iv. Distressed energy communities.
A GIS layer of the areas noted above can be found on the RUS mapping tool located at:
d. Rurality (up to 20 points). Points will be awarded for serving the least dense rural areas as measured by the population of the communities served.
e. Economic Need (up to 20 points). Economic need is based on the county poverty percentage of the communities proposed to be served in the application. The percentages must be determined by utilizing the U.S. Census Small Area Income and Poverty Estimates (SAIPE) Program. Communities located in geographic areas, for which no SAIPE data exist, will be determined to have an average SAIPE poverty percentage of 30 percent. SAIPE data can be found on the program website.
f. Performance measures (up to 10 points). The applicant can receive up to 10 points based on the proposed performance measures to evaluate the progress and impact of the proposed project.
Performance measures should be based on the applicant's proposal and must include a description for how the results of the technical assistance will be measured and the benchmarks to be used for measuring effectiveness. Indicators to be used should be specific and be quantifiable.
Applications are ranked by the final score. RUS selects applications based on those rankings, subject to the availability of funds. RUS will approve no more than one application per applicant. If an applicant submits more than one application for different projects, then the Agency will only consider the application with the highest score. If an applicant submits more than one application for the same project, then the Agency will only consider the latest submission. The Agency has the authority to limit the number of applications selected in any one state or for any one project during a fiscal year. An application receiving fewer points can be selected over a higher scoring application if there are insufficient funds available to cover the costs of the higher scoring application.
The Agency reserves the right to offer the applicant less than the amount of funding requested.
RUS notifies applicants whose projects are selected for awards by mailing or emailing a copy of an award letter. The receipt of an award letter does not authorize the applicant to commence performance under the award. The award letter will include an agreement that contains all the terms and conditions for the cooperative agreement. An applicant must execute and return the agreement, accompanied by any additional items required by the agreement, within the number of days specified in the selection notice letter.
The items listed in this FOA, the Application Guide, and program resources implement the appropriate administrative and national policy requirements, which include but are not limited to:
a. Using Form SF 270, “Request for Advance or Reimbursement,” to request reimbursements (along with the submission of receipts for expenditures, and any other documentation to support the request for reimbursement).
b. Submitting an annual project performance activity report, no later than January 31st of the year following the year in which all or any portion of the award is first advanced and continuing in subsequent years until completion of the project.
c. Ensuring that records are maintained to document all activities and expenditures utilizing program funds and matching funds (receipts for expenditures are to be included in this documentation).
d. Providing a final project performance report, no later than one hundred twenty (120) days after the expiration date, termination of the award, the project completion, or the final disbursement of the award by the awardee, whichever event occurs last.
e. Complying with policies, guidance, and requirements as described in the following applicable Code of Federal Regulations, and any successor regulations:
i. 2 CFR parts 200 and 400 (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards).
ii. 2 CFR parts 180 and 417 (Government-wide Nonprocurement Debarment and Suspension).
iii. Complying with Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency.” For information on limited English proficiency and agency-specific guidance, go to
iv. Accountability and Compliance with Civil Rights Laws. The regulation found at 7 CFR part 1901 subpart E (
The policies contained in this subpart apply to recipients. As recipients of federal financial assistance, awardees are required to comply with the applicable federal, state and local laws. Title VI of the Civil Rights Act of 1964 and Section 504 of the Rehabilitation Act prohibits discrimination by recipients of federal financial assistance. Recipients are required to adhere to specific outreach activities. These outreach activities include contacting community organizations and leaders that include minority leaders; advertising in local newspapers and other media throughout the entire service area; and including the nondiscrimination slogan, “This is an Equal Opportunity Program.”
Discrimination is prohibited by Federal Law, in methods that may include, but not be limited to, advertisements, public broadcasts, and printed materials, such as brochures and pamphlets.
By completing the Financial Assistance Representations and Certifications in SAM, recipients affirm that they will operate the program free from discrimination. The recipient will maintain the race and ethnic data on the board members and beneficiaries of the program. The recipient will provide alternative forms of communication to persons with limited English proficiency. The Agency will conduct Civil Rights Compliance Reviews on recipients to identify the collection of racial and ethnic data on program beneficiaries. In addition, the compliance review will ensure that
a. Performance reporting. All recipients of financial assistance must provide annual performance activity reports to RUS until the project is complete and the funds are expended. A final performance report is also required; the final report may serve as the last annual report. The final report must include an evaluation of the success of the project in meeting the program objectives. Success of the project can be demonstrated by identifying the progress achieved in securing financing to bring broadband service to the eligible rural area. Project performance reports should include, but are not limited to, the following:
i. A comparison of actual accomplishments to the objectives established for that period;
ii. A description of any problems, delays, or adverse conditions which have occurred, or are anticipated, and which may affect the attainment of overall project objectives, prevent the meeting of time schedules or objectives, or preclude the attainment of particular project work elements during established time periods. This disclosure shall be accompanied by a statement of the action taken or planned to resolve the situation; and
iii. Objectives and timetable established for the next reporting period.
iv. Activities demonstrating the coordination with the State Broadband Office.
b. Recipient and sub-recipient reporting. The applicant must have the necessary processes and systems in place to comply with the reporting requirements for first-tier sub-awards and executive compensation under the Federal Funding Accountability and Transparency Act of 2006 (Transparency Act) in the event the applicant receives funding, unless such applicant is exempt from such reporting requirements pursuant to 2 CFR 170.110(b). The reporting requirements under the Transparency Act are found at 2 CFR part 170 (
c. Record keeping and accounting. The agreement will contain provisions related to record keeping and accounting requirements.
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2. For inquiries regarding eligibility concerns, please contact program staff at
In accordance with the Paperwork Reduction Act of 1995, the information collection requirements associated with the program, as covered in this notice, have been approved by the Office of Management and Budget (OMB) under OMB Control Number 0503-0028.
All recipients under this notice are subject to the requirements of 7 CFR part 1970 (
However, awards for technical assistance and training under this notice are classified as a Categorical Exclusion according to 7 CFR 1970.53(b) (
In accordance with Federal civil rights laws and USDA civil rights regulations and policies, the USDA, its Mission Areas, agencies, staff offices, employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.
Program information may be made available in languages other than English. Persons with disabilities who require alternative means of communication to obtain program information (
To file a program discrimination complaint, a complainant should complete a Form AD-3027,
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U.S. Commission on Civil Rights.
Notice of public briefing.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act, that the West Virginia Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a public briefing via Zoom. The purpose of the briefing is to hear testimony on the civil rights impacts that exclusionary and punitive disciplinary policies, practices and
Monday, April 24, 2023, from 10:30 a.m.-12:30 p.m. Eastern Time.
The meeting will be held via Zoom.
Ivy Davis, Designated Federal Officer, at
This Committee meeting is available to the public through the registration link above. Any interested member of the public may attend the meeting. Immediately after the panel briefing concludes the Committee Chair will recognize members of the public to make a brief statement to the Committee on the panel topic—not to exceed five minutes—as time allows. Per the Federal Advisory Committee Act, public minutes of the meeting will include a list of persons present at the meeting. If joining via phone, callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Closed captioning will be available for individuals who are deaf, hard of hearing, or who have certain cognitive or learning impairments. To request additional accommodations, please email
Members of the public are entitled to submit written comments; the comments must be received in the regional office within 30 days following the schedule meeting. Written comments may be emailed to Sarah Villanueva at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit Office, as they become available, both before and after the meeting. Records of the meetings will be available via
U.S. Commission on Civil Rights.
Notice of public meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act, that the Massachusetts Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a briefing via Zoom to hear testimony on civil asset forfeiture. The committee will also hold a business meeting after the briefing.
Friday, April 28, 2023; 2:00 p.m. ET.
The meeting will be held via Zoom.
Barbara Delaviez, Designated Federal Official at
This committee meeting is available to the public through the meeting link above. Any interested member of the public may listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. Per the Federal Advisory Committee Act, public minutes of the meeting will include a list of persons who are present at the meeting. If joining via phone, callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Closed captioning will be available for individuals who are deaf, hard of hearing, or who have certain cognitive or learning impairments. To request additional accommodations, please email Evelyn Bohor at
Members of the public are entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be emailed to Barbara Delaviez at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit Office, as they become available, both before and after the meeting. Records of the meetings will be available via
U.S. Commission on Civil Rights.
Notice of public meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act, that the U.S. Virgin Islands Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a public meeting via Zoom. The purpose of the meeting is to discuss and plan on matters related to the Committee's inaugural civil rights project.
Thursday, May 4, 2023, from 12:00 p.m.-1:00 p.m. Atlantic Time.
The meeting will be held via Zoom.
David Barreras, Designated Federal Officer, at
This committee meeting is available to the public through the registration link above. Any interested member of the public may listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. Per the Federal Advisory Committee Act, public minutes of the meeting will include a list of persons who are present at the meeting. If joining via phone, callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Closed captioning will be available for individuals who are deaf, hard of hearing, or who have certain cognitive or learning impairments. To request additional accommodations, please email
Members of the public are entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be emailed to David Barreras at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit Office, as they become available, both before and after the meeting. Records of the meetings will be available via
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
The application to reorganize FTZ 64 to expand the service area under the ASF is approved, subject to the FTZ Act and the Board's regulations, including section 400.13, and to the Board's standard 2,000-acre activation limit for the zone.
An application has been submitted to the Foreign-Trade Zones (FTZ) Board by the Board of County Commissioners of Washington County, grantee of FTZ 255, requesting authority to reorganize and expand the zone under the alternative site framework (ASF) adopted by the FTZ Board (15 CFR Sec. 400.2(c)). The ASF is an option for grantees for the establishment or reorganization of zones and can permit significantly greater flexibility in the designation of new subzones or “usage-driven” FTZ sites for operators/users located within a grantee's “service area” in the context of the FTZ Board's standard 2,000-acre activation limit for a zone. The application was submitted pursuant to the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part
FTZ 255 was approved by the FTZ Board on July 3, 2002 (Board Order 1232, 67 FR 48877-48878, July 26, 2002).
The current zone includes the following sites:
The grantee's proposed service area under the ASF would be Washington County, Maryland, as described in the application. If approved, the grantee would be able to serve sites throughout the service area based on companies' needs for FTZ designation. The application indicates that the proposed service area is adjacent to the Baltimore U.S. Customs and Border Protection port of entry.
The applicant is requesting authority to reorganize its existing zone to include all of the existing sites as “magnet” sites. The ASF allows for the possible exemption of one magnet site from the “sunset” time limits that generally apply to sites under the ASF, and the applicant proposes that Site 2 be so exempted. The applicant is also requesting approval of the following subzone: Proposed Subzone 255A (94.7 acres)—Conair LLC, 10440 Downsville Pike, Hagerstown.
In accordance with the FTZ Board's regulations, Christopher Kemp of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the FTZ Board.
Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary and sent to:
A copy of the application will be available for public inspection in the “Online FTZ Information Section” section of the FTZ Board's website, which is accessible via
Jayco, Inc. submitted a notification of proposed production activity to the FTZ Board (the Board) for its facility in Middlebury, Indiana within FTZ 125. The notification conforming to the requirements of the Board's regulations (15 CFR 400.22) was received on April 10, 2023.
Pursuant to 15 CFR 400.14(b), FTZ production activity would be limited to the specific foreign-status material(s)/component(s) and specific finished product(s) described in the submitted notification (summarized below) and subsequently authorized by the Board. The benefits that may stem from conducting production activity under FTZ procedures are explained in the background section of the Board's website—accessible via
The proposed finished products are motorhomes (duty rate 2.5%).
The proposed foreign-status materials and components include vans and cab chassis (duty rate ranges from 4.0% to 25.0%). The request indicates that certain materials/components are subject to duties under section 301 of the Trade Act of 1974 (section 301), depending on the country of origin. The applicable section 301 decisions require subject merchandise to be admitted to FTZs in privileged foreign status (19 CFR 146.41).
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary and sent to:
A copy of the notification will be available for public inspection in the “Online FTZ Information System” section of the Board's website.
For further information, contact Juanita Chen at
Pursuant to section 766.24 of the Export Administration Regulations, 15 CFR parts 730-774 (“EAR” or “the Regulations”),
On April 21, 2022, I signed an order denying Aviastar—TU's (“Aviastar”) 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 was issued on October 17, 2022. The written request was made more than 20 days before the TDO's scheduled expiration. A copy of the renewal request was sent to Aviastar in accordance with sections 766.5 and 766.24(d) of the Regulations. No opposition to the renewal of the TDO has been received.
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 17, 2022, as well as other evidence developed during this investigation. These facts and evidence demonstrate that Aviastar continues to act in blatant disregard for U.S. export controls and the applicable TDO. Specifically, the initial TDO, issued on April 21, 2022, was based on evidence that Aviastar engaged in conduct prohibited by the Regulations by operating multiple aircraft subject to the EAR and classified under ECCN 9A991.b on flights into and out of Russia after March 2, 2022 from destinations including, but not limited to, Hangzhou, China; Shenzhen, China; and Zhengzhou, China from/to Novosibirsk, Russia and Abakan, Russia, without the required BIS authorization.
As discussed in the October 17, 2022 renewal order, evidence presented by BIS indicated that, after the initial order issued, Aviastar continued to operate aircraft subject to the EAR and classified under ECCN 9A991.b on flights both into and out of Russia, in violation of the Regulations and the TDO itself.
Since that time, Aviastar 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 Aviastar is operating aircraft subject to the EAR, which were flown into Russia on or after March 2, 2022, on flights within Russia in violation of the October 17, 2022 TDO and/or the Regulations. Specifically, BIS's evidence and related investigation demonstrates that Aviastar has continued to operate aircraft subject to the EAR, including, but not limited to, on flights from/to Novosibirsk, Russia, Moscow, Russia, Blagoveshchensk, Russia, Ulan-Ude, Russia, and Krasnoyarsk, Russia in apparent violation of section 736.2(b)(10) of the Regulations, as well as the previously issued TDO.
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 Aviastar 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 Aviastar, 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 Aviastar 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 Aviastar 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 Aviastar 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 Aviastar 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 Aviastar 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 Aviastar, or service any item, of whatever origin, that is owned, possessed or controlled by Aviastar 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.
Third, that, after notice and opportunity for comment as provided in section 766.23 of the EAR, any other person, firm, corporation, or business organization related to Aviastar by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business may also be made subject to the provisions of this Order.
In accordance with the provisions of sections 766.24(e) of the EAR, Aviastar 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 Aviastar 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 Aviastar, 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.
On March 30, 2023, the U.S. Department of Commerce (Commerce) published a notice in the
Applicable April 19, 2023.
Kristen Johnson, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW Washington, DC 20230; telephone: (202) 482-4793.
In the
On March 30, 2023, Commerce published the
Any comments must be submitted through the Federal eRulemaking Portal at
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) determines that countervailable subsidies were provided to certain exporters/producers of refillable stainless steel kegs (kegs) from the People's Republic of China (China) during the period of review (POR) January 1, 2020, through December 31, 2020.
Applicable April 19, 2023.
Ted Pearson, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2631.
Commerce published the
The products covered by the scope of the
All issues raised by the interested parties in their case and rebuttal briefs are addressed in the Issues and Decision Memorandum and are listed in the appendix to this notice. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Based on our analysis of comments from interested parties and the evidence on the record, we revised the calculation of the net countervailable subsidy rates for Ningbo Master International Trade Co., Ltd. (Ningbo Master). For a discussion of the issues,
Commerce conducted this administrative review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found to be countervailable, we find that there is a subsidy,
The statute and Commerce's regulations do not address the establishment of a rate to be applied to
There are two companies for which a review was requested and not rescinded, and which were not selected as mandatory respondents or found to be cross-owned with a mandatory respondent. For these non-selected companies, because the rate calculated for the only participating mandatory respondent in this review, Ningbo Master, was above
This is the same methodology Commerce applied in the
We determine find the net countervailable subsidy rates for the mandatory and non-selected respondents under review for the period January 1, 2020, through December 31, 2020, to be as follows:
Commerce intends to disclose calculations and analysis performed for the final results of review within five days after the date of publication of this notice in the
In accordance with section 751(a)(2)(C) of the Act and 19 CFR 351.212(b)(2), Commerce has determined, and U.S. Customs and Border Protection (CBP) shall assess, countervailing duties on all appropriate entries covered by this review, for the above-listed companies at the applicable
In accordance with section 751(a)(1) of the Act, Commerce also intends to instruct CBP to collect cash deposits of estimated countervailing duties in the amounts shown above for the above-listed companies with regard to shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of these final results of review. For all non-reviewed firms, we will instruct CBP to continue to collect cash deposits of estimated countervailing duties at the all-others rate or the most recent company-specific rate applicable to the company, as appropriate. These cash deposit requirements, effective upon publication of these final results, shall remain in effect until further notice.
This notice also serves as a final reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
The final results are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(5).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) has determined not to revoke the order on floor-standing, metal-top ironing tables and certain parts thereof from the People's Republic of China (China).
Applicable April 19, 2023.
Michael J. Heaney, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration,
On July 18, 2022, Commerce published the
For purposes of this
All issues raised by the interested parties in their case and rebuttal briefs are addressed in the Issues and Decision Memorandum and are listed in the appendix to this notice. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Section 751(d)(1) of the Tariff Act of 1930, as amended (the Act) and 19 CFR 351.222(g)(1)(i) provide that Commerce may revoke an order (in whole or in part) if it determines that producers accounting for substantially all of the production of the domestic like product have expressed a lack of interest in the order, in whole or in part.
Seymour Mfg. LLC demonstrated that it is a domestic producer of ironing tables and has expressed interest in the continuation of the
This notice serves as the only reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). 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 violation subject to sanction.
This determination is issued and published in accordance with sections 751(b)(1) and 777(i) of the Tariff Act of 1930, as amended, and 19 CFR 351.216(e).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) determines that Both-Well (Taizhou) Steel Fittings Co., Ltd. (Both-Well) as well as four additional companies which are eligible for a separate rate, exporters of forged steel fittings from the People's Republic of China (China), sold subject merchandise in the United States at prices below normal value (NV) during the period of review (POR) November 1, 2020, through October 31, 2021. Commerce further determines that Jiangsu Forged Pipe Fittings Co., Ltd. (Jiangsu) had no shipments of subject merchandise during the POR, and 20 companies for which this review was initiated are not eligible for a separate rate and are thus part of the China-wide entity.
Applicable April 19, 2023.
Robert Palmer, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0968.
Commerce published the
The merchandise covered by the
All issues raised in the parties' briefs are addressed in the Issues and Decision Memorandum. A list of the issues addressed is included as Appendix I to this notice. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Based on our review of the record and comments received from interested parties regarding the
In the
In our
In the
In the
For companies subject to this review, which established their eligibility for a separate rate, Commerce determines that the following weighted-average dumping margins exist for the period November 1, 2020, through October 31, 2021:
We intend to disclose the calculations performed to interested parties in this proceeding under an administrative protective order (APO) within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
Pursuant to section 751(a)(2)(C) of the Act and 19 CFR 351.212(b), Commerce has determined, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review. Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of the final results of this review in the
For Both-Well, which has a final weighted-average dumping margin that
For the respondents which were not selected for individual examination in this administrative review, and which qualified for a separate rate, the assessment rate will be equal to the weighted-average dumping margin assigned to them for the final results (
Pursuant to a refinement in our non-market economy practice, for sales that were not reported in the U.S. sales data submitted by Both-Well during this review, we will instruct CBP to liquidate entries associated with those sales at the rate for the China-wide entity.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of the subject merchandise from China entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) for Both-Well and the non-examined separate rate respondents, the cash deposit rate will be 29.06 percent; (2) for previously examined Chinese and non-Chinese exporters not listed above that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recently completed segment of this proceeding; (3) for all Chinese exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be the rate for the China-wide entity (
These cash deposit requirements, when imposed, shall remain in effect until further notice.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping and/or countervailing duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping and/or countervailing duties occurred and the subsequent assessment of double antidumping duties, and/or an increase in the amount of antidumping duties by the amount of the countervailing duties.
This notice also serves as a reminder to parties subject to an APO of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation subject to sanction.
These final results and notice are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(h) and 19 CFR 351.221(b)(5).
SelectUSA, International Trade Administration, U.S. Department of Commerce.
Notice of an open meeting.
In accordance with the Federal Advisory Committee Act (FACA), this notice announces, the United States Investment Advisory Council (IAC) will hold a public meeting on May 1, 2023 at the U.S. Department of Commerce in Washington, DC. In August 2022, U.S. Secretary of Commerce Gina M. Raimondo appointed a new cohort of members to serve two-year terms. Members of this cohort will meet for the
Monday, May 1, 2023, 4:30 p.m.-6:00 p.m. ET.
The meeting will be held in person only at the U.S. Department of Commerce in Washington, DC. Please note that registration is required both to attend the meeting and to make a statement during the public comment portion of the meeting. The meeting has a limited number of spaces for members of the public to attend in-person, and requests to attend will be considered on a first-come first-served basis. Please limit comments to five minutes or less and submit a brief statement summarizing your comments to:
Claire Pillsbury, United States Investment Advisory Council, Room 30011, 1401 Constitution Avenue NW, Washington, DC 20230, phone: 202-578-8239, email:
The IAC was established under the discretionary authority of the Secretary of Commerce (Secretary) and in accordance with the Federal Advisory Committee Act (5 U.S.C. app.). The IAC advises the Secretary on matters relating to the promotion and retention of foreign direct investment in the United States. At the meeting, the IAC members will discuss work done within the three working groups: Economic Competitiveness, Workforce, and SelectUSA 2.0. The final agenda will be posted on the Department of Commerce website for the IAC at:
Speakers are requested to submit a written copy of their prepared remarks by 5:00 p.m. ET on April 24, 2023, for inclusion in the meeting records and for circulation to the Members of the IAC.
In addition, any member of the public may submit pertinent written comments concerning the IAC's affairs at any time before or after the meeting. Comments may be submitted to Claire Pillsbury at the contact information indicated above. To be considered during the meeting, comments must be received no later than 5:00 p.m. ET on April 24, 2023, to ensure transmission to the IAC members prior to the meeting. Comments received after that date and time will be distributed to the members but may not be considered during the meeting. Comments and statements will be posted on the IAC website (
Copies of the meeting minutes will be available within 90 days of the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public online meeting.
The Groundfish and Economics Subcommittees of the Pacific Fishery Management Council's (Pacific Council) Scientific and Statistical Committee (SSC) will convene an online meeting to review the non-trawl commercial fishery sablefish trip limit model used by the Pacific Council's Groundfish Management Team. The methodology review meeting is open to the public.
The groundfish methodology review online meeting will be held Tuesday, May 9, 2023, from 9 a.m. until 3 p.m. (Pacific Daylight Time) or until business for the day has been completed.
The groundfish methodology review will be conducted as an online meeting. Specific meeting information, including the agenda and directions on how to join the meeting and system requirements, will be provided in the workshop announcement on the Pacific Council's website (see
Marlene A. Bellman, Staff Officer, Pacific Council; telephone: (503) 820-2414, email:
The purpose of the groundfish methodology review meeting is to evaluate proposed data inputs, modeling approaches, potential improvements, and any other pertinent information related to the sablefish trip limit model used in commercial non-trawl fisheries management. This review is planned in preparation for the 2025-26 biennial groundfish management cycle. The results of this review are not considered
No management actions will be decided by the meeting participants. The participants' role will be the development of recommendations and reports for consideration by the SSC and the Pacific Council at a future Pacific Council meeting. The Pacific Council and SSC are scheduled to consider methodology review recommendations for use in informing management decisions at their September 2023 meeting in Spokane, Washington.
Although nonemergency issues not contained in the meeting agenda may be discussed, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent of the workshop participants to take final action to address the emergency.
Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt (
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The New England Fishery Management Council is convening its Scientific and Statistical Committee (SSC) via webinar to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This webinar will be held on Friday, May 5, 2023, beginning at 9 a.m. Webinar registration information:
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Scientific and Statistical Committee will meet to discuss the challenges the SSC has faced when applying acceptable biological catch (ABC) control rules for Northeast multispecies (groundfish) stocks. They will also discuss the progress made on scoping a model for enhanced use of the SSC sociocultural and economics expertise in the SSC and Council process (
Although non-emergency issues not contained on the agenda may come before this Council for discussion, those issues may not be the subject of formal action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency. The public also should be aware that the meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for comments.
The Assistant Regional Administrator for Sustainable Fisheries, Greater Atlantic Region, NMFS, has made a preliminary determination that an Exempted Fishing Permit application contains all of the required information and warrants further consideration. The Exempted Fishing Permit would allow commercial fishing vessels to fish outside fishery regulations in support of research conducted by the applicant. Regulations under the Magnuson-Stevens Fishery Conservation and Management Act require publication of this notification to provide interested parties the opportunity to comment on applications for proposed Exempted Fishing Permits.
Comments must be received on or before May 4, 2023.
You may submit written comments by any of the following methods:
•
Louis Forristall, Fishery Management Specialist, (339) 674-7646.
The applicant submitted a complete application for an Exempted Fishing Permit (EFP) to conduct commercial fishing activities that the regulations would otherwise restrict. This EFP would exempt the participating vessels from the following Federal regulations:
The Northeast Fisheries Science Center's Cooperative Research Branch is requesting an EFP to allow participants in their Study Fleet Program to collect biological information on catch. The Center established the Study Fleet Program in 2002 to more fully characterize commercial fishing operations and provide sampling opportunities to augment NOAA's National Marine Fisheries Service's data collection programs. As part of the program, the Center contracts commercial fishing vessels to collect biological data and fish specimens for the Center to use in research relevant to stock assessments and fish biology.
Under the EFP, Study Fleet participants would be allowed to temporarily possess catch that is below minimum size restrictions and above possession limits for the purposes of biological sampling. When directed by the Center, participating vessels would be authorized to retain and land specific amounts of fish exceeding possession limits and/or below minimum fish sizes, for research purposes only. The captain or crew would deliver these fish to Center staff or local Port Agents upon landing. In these limited circumstances, the Study Fleet Program would give participating vessels a formal biological sampling request prior to landing. This would ensure that the landed fish do not exceed any collection needs of the Study Fleet Program, as detailed below.
During EFP trips, crew would sort, weigh, measure, and collect biological data from fish prior to discarding. During sampling, some discarded fish would remain on deck slightly longer than they would under normal sorting procedures. Exemptions from minimum fish sizes and possession restrictions would allow vessels to temporarily retain catch for at-sea sampling.
Vessels would be required to comply with all other applicable regulations specified at 50 CFR part 648 and would not be exempt from any inseason quota closures. All catch would be attributed to the appropriate commercial fishing quota. For a vessel fishing on a groundfish sector trip, all catch of groundfish stocks allocated to sectors would be deducted from the vessel's sector's annual catch entitlement (ACE). If the ACE for a stock has been reached in a sector, participating vessels would no longer be allowed to fish in that stock area unless the sector acquires additional ACE for the stock in question. For participating common pool vessels, all groundfish catch would be counted toward the appropriate trimester total allowable catch (TAC). Common pool vessels would be exempt from the possession and trip limits, but would still be subject to trimester TAC closures.
Vessels fishing under this EFP would be required to report via their Vessel Monitoring System (VMS) or the web- or app-based Interactive Voice Response (IVR) system to identify trips that would be landing species below minimum size limits and/or in excess of possession limits. Vessels not landing fish for the Center, but temporarily possessing fish for at-sea sampling, would not be required to report via the IVR system or VMS.
If approved, the applicant may request minor modifications and extensions to the EFP throughout the year. EFP modifications and extensions may be granted without further notice if they are deemed essential to facilitate completion of the proposed research and have minimal impacts that do not change the scope or impact of the initially approved EFP request. Any fishing activity conducted outside the scope of the exempted fishing activity would be prohibited.
Office of Special Education and Rehabilitative Services, Department of Education.
Notice.
The Department of Education (Department) is issuing a notice inviting applications for new awards for fiscal year (FY) 2023 for Personnel Development to Improve Services and Results for Children with Disabilities—Preparation of Early Intervention and Special Education Personnel Serving Children with Disabilities who have High-Intensity Needs, Assistance Listing Number (ALN) 84.325K. This notice relates to the approved information collection under OMB control number 1820-0028.
For the addresses for obtaining and submitting an application, please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the
Sunyoung Ahn, U.S. Department of Education, 400 Maryland Avenue SW, Room 5013, Potomac Center Plaza, Washington, DC 20202-5076. Telephone: 202-987-0141. Email:
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
This priority is:
The purpose of this priority is to prepare scholars who are fully credentialed to serve children, including infants, toddlers, and youth, with disabilities (children with disabilities) who have high-intensity needs.
For decades, State demand for fully credentialed early intervention and special education personnel to serve children with disabilities has persistently exceeded the available supply (Mason-Williams et al., 2020). The shortages have been exacerbated by the COVID-19 pandemic and are at a crisis point nationally. According to a recent survey by the National Center for Education Statistics, most schools reported starting the 2022-23 school year short-staffed for both instructional and non-instructional staff, with the most severe shortages for special education personnel (U.S. Department of Education, 2022). Recent data related to the special education personnel pipeline also indicate discouraging trends. Enrollment in educator preparation programs has dropped 35 percent over the last five years, foreshadowing an insufficient pipeline of special education personnel (Council of Administrators of Special Education, 2020). Also, special education personnel
The need for personnel with the knowledge and skills to serve children with disabilities who have high-intensity needs is even greater. To effectively serve children with disabilities who have high-intensity needs, personnel require specialized or advanced skills and knowledge to work within a multidisciplinary team, collaboratively design and deliver evidence-based instruction and intensive individualized intervention(s), and provide instruction and interventions in person and through distance learning technologies in natural environments, classrooms, and schools that address the needs of these individuals (Boe et al., 2013; Browder et al., 2014; McLeskey & Brownell, 2015). Personnel also need leadership skills to strengthen professional practice and cultural and linguistic competencies to effectively deliver services and education for children with disabilities who have high-intensity needs, including children who are multilingual and children who are from racially and ethnically diverse backgrounds.
To enable personnel to provide efficient, high-quality, integrated, and equitable services, both in person and through distance learning technologies, personnel preparation programs need to embed, into preservice training in early intervention settings, early childhood programs, and schools; content, practices, and extensive field or clinical experiences that are evidence-based and culturally and linguistically responsive. Therefore, this priority aims to fund high-quality projects that prepare scholars in early intervention and special education, including multilingual scholars and scholars from racially, and ethnically diverse backgrounds, who are fully credentialed to enter the field and serve children with disabilities who have high-intensity needs.
The purpose of this priority is to increase the number and improve the quality of personnel, including multilingual personnel and personnel from racially and ethnically diverse backgrounds, who are fully credentialed to serve children who have high-intensity needs
Within this absolute priority, the Secretary intends to support projects under the following two focus areas: (A) Preparing Personnel to Serve Infants, Toddlers, and Preschool-Age Children with Disabilities who have High-Intensity Needs; and (B) Preparing Personnel to Serve School-Age Children with Disabilities who have High-Intensity Needs.
Applicants must identify the specific focus area (
Applicants may, but are not required to, use up to the first 12 months of the performance period and up to $100,000 of funds awarded in the first budget period for planning, including enhancing an existing program, without enrolling scholars. If an applicant chooses to use the first year for program planning, then the applicant must provide sufficient justification for requesting program planning time and include the goals, objectives, and intended outcomes of program planning in year one, a description of the proposed strategies and activities to be supported, and a timeline for the work. The proposed strategies may include activities such as—
(1) Updating coursework, group assignments, or extensive and coordinated field or clinical experiences in early intervention settings, early childhood programs, and schools needed to support preparation for early intervention and special education personnel, including personnel from groups that are underrepresented in the field, including personnel with disabilities, multilingual personnel, and personnel from racially and ethnically diverse backgrounds, serving children with disabilities who have high-intensity needs;
(2) Building capacity (
(3) Purchasing needed resources (
(4) Establishing relationships with early intervention and early childhood programs or schools to serve as sites for field or clinical experiences needed to support the project. These sites may include high-need local educational agencies (LEAs),
Additional Federal funds may be requested for scholar support and other grant activities occurring in year one of the project, provided that the total request for year one does not exceed the maximum award available for one budget period of 12 months (
To be considered for funding under this absolute priority, all program applicants must meet the requirements contained in this priority.
To meet the requirements of this priority an applicant must—
(a) Demonstrate, in the narrative section of the application under “Significance,” how—
(1) The proposed project will address the need in the proposed preparation focus area to prepare personnel who are fully qualified to serve children with disabilities who have high-intensity needs;
(2) The proposed project will increase the number of personnel in the proposed preparation focus area who demonstrate the competencies
(i) Promote high expectations and improve outcomes for children with disabilities who have high-intensity needs;
(ii) Differentiate curriculum and instruction;
(iii) Provide intensive, evidence-based
(iv) Provide culturally and linguistically responsive instruction and services;
(v) Collaborate with diverse partners, including multilingual individuals, individuals and families from racially and ethnically diverse backgrounds, and individuals with disabilities, using a multidisciplinary team approach to address the individualized
(vi) Exercise leadership to improve professional practice and services and education for children with disabilities who have high-intensity needs; and
(3) The applicant has successfully graduated students in their program, including students with disabilities, multilingual students, and students who are from racially, and ethnically diverse backgrounds, including data disaggregated by disability status, race, national origin and primary language(s), and the number of students who have graduated in the last five years.
(b) Demonstrate, in the narrative section of the application under “Quality of project services,” how—
(1) The project will conduct its planning activities, if the applicant will use any of the allowable first 12 months of the project period for planning;
(2) The project will recruit and retain scholars. To meet this requirement, the applicant must describe—
(i) The selection criteria the project will use to identify applicants for admission in the program;
(ii) The specific recruitment strategies the project will use to attract applicants, including from groups that are underrepresented in the field, including applicants with disabilities, multilingual applicants, and applicants from racially and ethnically diverse backgrounds to ensure a diverse pool of applicants; and
(iii) The approach that will be used to mentor and support all scholars, and any specific approaches to supporting groups that are underrepresented in the field, including individuals with disabilities, multilingual scholars, and scholars from racially and ethnically diverse backgrounds, for retention and completion of the program within the project period and preparing them for careers in early intervention or special education; and
(3) The project will be designed to promote the acquisition of the competencies needed by early intervention or special education personnel to support improved outcomes for children with disabilities with high-intensity needs. To address this requirement, the applicant must—
(i) Describe how the proposed components, such as coursework; field or clinical experiences in early intervention, early childhood, and school settings; work-based experiences; or other opportunities provided to scholars, and sequence of the project components will enable the scholars to acquire the competencies needed by personnel working with children with disabilities with high-intensity needs;
(ii) Describe how the proposed project will reflect current evidence-based practices (EBPs) to prepare scholars to provide effective and equitable evidence-based culturally and linguistically responsive instruction, interventions, and services that improve outcomes for children with disabilities with high-intensity needs, in a variety of educational or early childhood and early intervention settings, including in-person and remote settings; and
(iii) Describe how the proposed project will engage partners, including: multilingual individuals and individuals and families from racially and ethnically diverse backgrounds; public or private partnering agencies, schools, or programs; centers or organizations that provide services to children with disabilities and their families; and individuals with disabilities and their families, to inform and support project components.
(c) Demonstrate, in the narrative section of the application under “Quality of the project personnel and management plan,” how—
(1) The project director and other key project personnel are qualified to prepare scholars in the project's preparation focus area;
(2) The project director and other key project personnel will manage the components of the project; and
(3) The time commitments of the project director and other key project personnel are adequate to meet the objectives of the proposed project.
(d) Demonstrate, in the narrative section of the application under “Adequacy of resources,” how—
(1) Information regarding the types of accommodations and resources available to fully support scholars' well-being and a work-life balance (
(2) The types of accommodations and resources provided to support scholars' well-being and a work-life balance will be individualized based on scholars' cultural, academic, and social emotional needs with the goal of supporting them to complete the program; and
(3) The budget is adequate for meeting the project objectives and mitigating financial burden to scholars in completing the program of study.
(e) Demonstrate, in the narrative section of the application under “Quality of the project evaluation,” how the applicant will—
(1) Evaluate how well the goals or objectives of the proposed project have been met. To meet this requirement, the applicant must describe—
(i) The outcomes to be measured for both the project and the scholars, particularly the acquisition of scholars' competencies; and
(ii) The evaluation methodologies, data collection methods, and data analyses that will be used; and
(2) Collect, analyze, and use data on scholars supported by the project to inform the project on an ongoing basis.
(f) Demonstrate, in the appendices or narrative under “Required project assurances” as directed, that the following requirements are met. The applicant must—
(1) Include in appendix A of the application—
(i) Charts, tables, figures, graphs, screen shots, and visuals that provide information directly relating to the application requirements for the
(ii) A letter of support from a public or private partnering agency, school, or program, that states it will provide scholars with a field or clinical experience in a high-need LEA, a high-poverty school, a school implementing a comprehensive support and improvement plan, a school implementing a targeted support and improvement plan for children with disabilities, an SEA, an early childhood and early intervention program located within the geographical boundaries of a high-need LEA, or an early childhood and early intervention program located within the geographical boundaries of an LEA serving the highest percentage of schools identified for comprehensive support and improvement or implementing targeted support and improvement plans in the State;
(2) Include in appendix B of the application—
(i) A table that lists the project's required coursework and includes the course title, brief description, learning goals, and relevant State or national professional organization personnel standards for each course;
(ii) Four exemplar course syllabi required by the degree program that reflect EBPs across the areas of assessment; social, emotional, and behavior development and learning; inclusive practices; instructional strategies; and literacy as appropriate;
(3) Include in the application budget attendance by the project director at a three-day project directors' meeting in Washington, DC, during each year of the project; and
(4) Provide an assurance that—
(i) The project will meet the requirements in 34 CFR 304.23, particularly those related to (i) informing all scholarship recipients of their service obligation commitment; and (ii) disbursing scholarships. Failure by a grantee to properly meet these requirements is a violation of the grant award that may result in the grantee being liable for returning any misused funds to the Department;
(ii) The project will meet the statutory requirements in section 662(e) through (h) of IDEA;
(iii) The project will be operated in a manner consistent with nondiscrimination requirements contained in Federal civil rights laws;
(iv) All the syllabi for the project's required coursework will be provided if requested by OSEP;
(v) At least 65 percent of the total award over the project period (
(vi) Scholar support provided by the project (
(vii) The project director, key personnel, and scholars will actively participate in learning opportunities (
(viii) The project website, if applicable, will be of high quality, with an easy-to-navigate design that meets government or industry-recognized standards for accessibility;
(ix) Scholar accomplishments (
(x) Annual data will be submitted on each scholar who receives grant support (OMB Control Number 1820-0686). The primary purposes of the data collection are to track the service obligation fulfillment of scholars who receive funds from OSEP grants and to collect data for program performance measure reporting under 34 CFR 75.110. Data collection includes the submission of a signed, completed pre-scholarship agreement and exit certification for each scholar funded under an OSEP grant (see paragraph (f)(4)(i) of this priority). Applicants are encouraged to visit the Personnel Development Program Data Collection System website at
Competitive Preference Priority—Applications from New Potential Grantees (0 or 3 points).
(a) Under this priority, an applicant must demonstrate that the applicant (
(b) For the purpose of this priority, a grant is active until the end of the grant's project or funding period, including any extensions of those periods that extend the grantee's authority to obligate funds.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2024 from the list of unfunded applications from this competition.
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a. Recipients of funding under this competition must make positive efforts to employ and advance in employment qualified individuals with disabilities (see section 606 of IDEA).
b. Applicants for, and recipients of, funding must, with respect to the aspects of their proposed project relating to the absolute priority, involve individuals with disabilities, or parents of individuals with disabilities ages birth through 26, in planning, implementing, and evaluating the project (see section 682(a)(1)(A) of IDEA).
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• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double-space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, reference citations, and captions, as well as all text in charts, tables, figures, graphs, and screen shots.
• Use a font that is 12 point or larger.
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The recommended page limit does not apply to the cover sheet; the budget section, including the narrative budget justification; the assurances and certifications; or the abstract (follow the guidance provided in the application package for completing the abstract), the table of contents, the list of priority requirements, the resumes, the reference list, the letters of support, or the appendices. However, the recommended page limit does apply to all of the application narrative, including all text in charts, tables, figures, graphs, and screen shots.
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(1) The Secretary considers the significance of the proposed project.
(2) In determining the significance of the proposed project, the Secretary considers the following factors:
(i) The extent to which the proposed project will prepare personnel for fields in which shortages have been demonstrated; and
(ii) The importance or magnitude of the results or outcomes likely to be attained by the proposed project, especially improvements in teaching and student achievement.
(b)
(1) The Secretary considers the quality of the services to be provided by the proposed project.
(2) In determining the quality of the services to be provided by the proposed project, the Secretary considers the quality and sufficiency of strategies for ensuring equal access and treatment for eligible project participants who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability.
(3) In addition, the Secretary considers the following factors:
(i) The extent to which the services to be provided by the proposed project reflect up-to-date knowledge from research and effective practice;
(ii) The extent to which the training or professional development services to be provided by the proposed project are of sufficient quality, intensity, and duration to lead to improvements in practice among the recipients of those services;
(iii) The extent to which the services to be provided by the proposed project involve the collaboration of appropriate partners for maximizing the effectiveness of project services; and
(iv) The extent to which the proposed activities constitute a coherent, sustained program of training in the field.
(c)
(1) The Secretary considers the quality of the project personnel and the quality of the management plan.
(2) In determining the quality of project personnel, the Secretary considers the extent to which the applicant encourages applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability.
(3) In addition, the Secretary considers the following factors:
(i) The qualifications, including relevant training and experience, of key project personnel;
(ii) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks; and
(iii) The extent to which the time commitments of the project director and principal investigator and other key project personnel are appropriate and adequate to meet the objectives of the proposed project.
(d)
(1) The Secretary considers the adequacy of resources of the proposed project.
(2) In determining the adequacy of resources of the proposed project, the Secretary considers the following factors:
(i) The adequacy of support, including facilities, equipment, supplies, and other resources, from the applicant organization or the lead applicant organization; and
(ii) The extent to which the costs are reasonable in relation to the objectives, design, and potential significance of the proposed project.
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(1) The Secretary considers the quality of the evaluation to be conducted of the proposed project.
(2) In determining the quality of the evaluation, the Secretary considers the following factors:
(i) The extent to which the methods of evaluation are thorough, feasible, and appropriate to the goals, objectives, and outcomes of the proposed project; and
(ii) The extent to which the methods of evaluation will provide performance feedback and permit periodic assessment of progress toward achieving intended outcomes.
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In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
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Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.
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(a) Selecting recipients most likely to be successful in delivering results based on the program objectives through an objective process of evaluating Federal award applications (2 CFR 200.205);
(b) Prohibiting the purchase of certain telecommunication and video surveillance services or equipment in alignment with section 889 of the National Defense Authorization Act of 2019 (Pub. L. 115—232) (2 CFR 200.216);
(c) Providing a preference, to the extent permitted by law, to maximize use of goods, products, and materials produced in the United States (2 CFR 200.322); and
(d) Terminating agreements in whole or in part to the greatest extent authorized by law if an award no longer effectuates the program goals or agency priorities (2 CFR 200.340).
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If your application is not evaluated or not selected for funding, we notify you.
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We reference the regulations outlining the terms and conditions of an award in the
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(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
(c) Under 34 CFR 75.250(b), the Secretary may provide a grantee with additional funding for data collection analysis and reporting. In this case the Secretary establishes a data collection period.
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In addition, the Department will gather information on the following outcome measures: the number and percentage of scholars proposed by the grantee in their application that were actually enrolled and making satisfactory academic progress in the current academic year; the number and percentage of enrolled scholars who are on track to complete the training program by the end of the project's original grant period; and the percentage of scholars who completed the preparation program and are employed in the field of special education for at least two years.
Grantees may be asked to participate in assessing and providing information on these aspects of program quality.
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In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with
You may also access documents of the Department published in the
U.S. Election Assistance Commission.
Notice of Federal Advisory Committee Charter renewals.
In accordance with the Federal Advisory Committee Act, the purpose of this notice is to announce that the Election Assistance Commission (EAC) has renewed the charters for the Board of Advisors, the Standards Board, the Technical Guidelines Development Committee, and Local Leadership Council for a two-year period through April 13, 2025. The Board of Advisors, the Standards Board, and the Technical Guidelines Development Committee are federal advisory committees under the Federal Advisory Committee Act and created by the Help America Vote Act of 2002. The Local Leadership Council is a discretionary federal advisory committee, established by the EAC on June 8, 2021.
Renewed through April 13, 2025.
Election Assistance Commission, 633 3rd Street NW, Suite 200, Washington, DC 20001.
Kristen Muthig, Telephone: (202) 897-9285, Email:
The Board of Advisors, the Standards Board, and the Technical Guidelines Development Committee are Federal advisory committees created by statute whose mission is to advise the EAC through review of the voluntary voting systems guidelines, review of voluntary guidance, and review of best practices recommendations. The Local Leadership Council is a discretionary advisory committee and is made up of 100 local election officials who are current or former officers in each state's local election official association. In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, this notice advises interested persons of the renewal of these Charters.
Office of Energy Jobs, Office of Policy, Department of Energy.
Notice of establishment.
The U.S. Department of Energy (DOE or the Department) announces the establishment of the 21st Century Energy Workforce Advisory Board (EWAB), pursuant to the Infrastructure Investment and Jobs Act (hereafter, “IIJA”), and in accordance with the Federal Advisory Committee Act (FACA), and the rules and regulations in implementation of that Act.
Piper O'Keefe, Designated Federal Officer, Office of Energy Jobs, Office of Policy, U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585 at (202) 809-5110, or
As detailed in its Charter, EWAB will provide advice and recommendations to the Secretary of Energy on a strategy for the Department to support and develop a skilled energy workforce that meets the current and future industry and labor needs of the energy sector; provides opportunities for students to become qualified for placement in traditional energy sector and emerging energy sector jobs; identifies areas in which the Department can effectively utilize the technical expertise of the Department to support the workforce activities of other Federal agencies; strengthens and engages the workforce training programs of the Department and the National Laboratories in carrying out the Equity in Energy Initiative of the Department and other Department workforce priorities; develops plans to support and retrain displaced and unemployed energy sector workers; and prioritizes education and job training for underrepresented groups, including racial and ethnic minorities, Indian Tribes, women, veterans, and socioeconomically disadvantaged individuals. EWAB will also analyze the effectiveness of existing Department-directed support and existing energy workforce training programs. The Advisory Board shall submit an annual report containing its findings and proposed energy workforce strategy to the Secretary, as described in section 18744(c) of IIJA.
Pursuant to section 18744(b) of IIJA, the Advisory Board shall be composed of not fewer than 10 and not more than 15 members, who are appointed by the Secretary of Energy. Board members will be appointed for two- or three-year terms and may be reappointed during the membership renewal period following review. The EWAB will meet bi-monthly. When vacancies occur, the Secretary of Energy will identify
Individuals appointed to the Advisory Board shall be selected in a representational capacity of the following fields of expertise: (A) the field of economics or workforce development; (B) relevant traditional energy industries or emerging energy industries, including energy efficiency; (C) secondary or postsecondary education; (D) energy workforce development or apprenticeship programs of States or units of local government; (E) relevant organized labor organizations; or (F) bringing underrepresented groups, including racial and ethnic minorities, women, veterans, and socioeconomically disadvantaged individuals, into the workforce. Other factors to be considered for Advisory Board membership include demographic, professional, and experiential diversity. In addition, the Office of Energy Jobs will strive for the EWAB to reflect the principles of inclusion, equity, and diversity, and to ensure that the Advisory Board's recommendations strive for equitable distribution of benefits for all Americans, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality. The Office of Energy Jobs also will also strive for geographic diversity in the composition of the EWAB, including individuals representing the perspectives of rural, urban, and suburban areas.
Additionally, the establishment of the Energy Workforce Advisory Board has been determined to be essential to conduct business of the Department of Energy's and to be the in the public interest in connection with the performance of duties imposed upon the Department of Energy, by law and agreement. The Advisory Board will continue to operate in accordance with the provisions of the Federal Advisory Committee Act, as amended, 5 U.S.C. § 10, the rules and regulations in implementation of that Act.
This document of the Department of Energy was signed on April 12, 2023, by Shena Kennerly, Acting Committee Management Officer, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
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
The following notice of meeting is published pursuant to section 3(a) of the government in the Sunshine Act (Pub. L. 94-409), 5 U.S.C. 552b:
Federal Energy Regulatory Commission.
April 20, 2023, 10:00 a.m.
Room 2C, 888 First Street NE, Washington, DC 20426.
Open to the public.
Agenda.
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Kimberly D. Bose, Secretary, Telephone (202) 502-8400.
For a recorded message listing items stricken from or added to the meeting, call (202) 502-8627.
This is a list of matters to be considered by the Commission. It does not include a listing of all documents relevant to the items on the agenda. All public documents, however, may be viewed on line at the Commission's website at
A free webcast of this event is available through the Commission's website. Anyone with internet access who desires to view this event can do so by navigating to
Immediately following the conclusion of the Commission Meeting, a press briefing will be held in the Commission Meeting Room. Members of the public may view this briefing in the designated overflow room. This statement is intended to notify the public that the press briefings that follow Commission meetings may now be viewed remotely at Commission headquarters but will not be telecast.
As announced in the Notice of Forum issued in this proceeding on February 16, 2023, the Federal Energy Regulatory Commission (Commission) will convene a Commissioner-led forum on Tuesday, June 20, 2023, from approximately 9:00 a.m. to 5:00 p.m. Eastern Time, to discuss possible solutions to the electricity and natural gas challenges facing the New England Region. A preliminary agenda for this forum is attached. The Commission will issue a further supplemental notice with a full agenda and the confirmed panelists prior to the forum. The forum will be open to the public and be held at the DoubleTree by Hilton Portland, 363 Maine Hall Rd, Portland, ME 04106.
The purpose of the forum is to continue discussion from the September 8, 2022, forum about the electricity and natural gas challenges facing the New England region. This forum will discuss studies on extreme weather risks, infrastructure on the electric and gas systems in New England, and infrastructure and market design reforms to aid with the electric and gas system challenges faced historically during New England winters. The goal of this forum is to identify solutions to address the electric and gas system challenges and discuss timing of their potential implementation.
While the forum is not for the purpose of discussing any specific matters before the Commission, some forum discussions may involve issues raised in proceedings that are currently pending before the Commission. These proceedings include, but are not limited to:
Only Commissioners and panelists will participate in the panel discussions. The forum will be open to the public for listening and observing, and written comments may be submitted in Docket No. AD22-9-000.
Registration for in-person attendance will be required, and there is no fee for attendance. A link to attendee registration will be available on the New England Winter Gas-Electric Forum event page on the Commission's website. Due to space constraints, seating for this event will be limited and registrants that get a confirmed space will be contacted via email. Only confirmed registrants can be admitted to the forum given the maximum occupancy limit at the venue (as required by fire and building safety code). Therefore, the Commission encourages members of the public who wish to attend this event in person to register at their earliest convenience. Online registration will be open, as long as attendance capacity is available, until the day before the forum (June 19). Once registration has reached capacity, registration will be closed. However, those interested in attending after capacity has been reached can join a waiting list (using the same registration link) and be notified if space becomes available. Those who are unable to attend in person may watch the free webcast.
The webcast will allow persons to listen and observe the forum remotely but not participate. Information on this forum, including a link to the webcast, will be posted prior to the event on this forum's event page on the Commission's website. A recording of the webcast will be made available after the forum in the same location on the Calendar of Events. The forum will be transcribed. Transcripts of the forum will be available for a fee from Ace-Federal Reporters, Inc. (202-347-3700).
Individuals interested in participating as panelists should submit a self-nomination email by 5:00 p.m. Eastern time on Friday, May 19, 2023, to
Commission conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations, please send an email to
For more information about this forum, please contact
The forum will commence with a presentation by ISO New England Inc. (ISO-NE) that discusses the upcoming winters of 2023/2024 and 2024/2025 with consideration for the Everett Marine Terminal's (Everett) availability and its impact on the ISO-NE electric grid. Following ISO-NE's presentation on upcoming winters, a second presentation will explain Everett's physical capabilities and its impact on the electric and natural gas systems in New England.
Panel 1 will allow panelists to provide their views on the need for Everett on the electric and natural gas systems in New England. This panel may also discuss fuel procurement needs and challenges, including the fuel procurement and LNG capabilities available to New England from facilities other than Everett. Finally, this panel will discuss the constraints surrounding the planned retirement of Everett and the expected impact on the electric and natural gas systems in New England in future winters.
The third presentation, by ISO-NE and the Electric Power Research Institute (EPRI), will detail the development of the EPRI model, the assumptions used, parameters considered, and the study results for the target year of 2027.
This panel will provide panelists an opportunity to provide their reactions to the EPRI study's assumptions, inputs, and results. This panel will discuss what actionable steps should be taken, if any, as a result of the study's findings, and whether additional study or analysis is needed.
Based on the findings and issues identified in the previous panels and presentations, Panel 3 will shift toward discussing potential infrastructure solutions beyond winter 2023/2024.
In Panel 4, Commissioners and panelists will discuss potential market solutions to New England's winter reliability challenges. Specifically, this panel will discuss any potential merits and benefits of market design changes to ISO-NE markets to enhance resource performance incentives, including incentives for resources to make advanced fuel procurements and/or maintain fuel inventories in the winter months; and align capacity market structure and rules with observed reliability risks—
In the Closing Roundtable, Commissioners and panelists will discuss what was learned through the presentations and panels and consider next steps. Topics will include what solutions stakeholders agree on pursuing and the timeline for implementing them as well as discussion of if, how, and when longer term solutions can be implemented sooner than currently expected.
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following Complaints and Compliance filings in EL Dockets:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
This is a supplemental notice in the above-referenced proceeding of Ocotillo Solar 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 May 3, 2023.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the 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 Ocotillo Solar 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 May 3, 2023.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the 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) Science Advisory Board (SAB) Staff Office is announcing a public meeting of the Science Advisory Board Environmental Justice Screen (EJScreen) Review Panel. The purpose of the meeting is to discuss responses to charge questions, listen to public comments and peer review the EPA's EJScreen methodology and updated calculations for the environmental justice (EJ) indexes released publicly in October 2022, as well as other aspects of the calculations. The Panel will also provide recommendations and expert input on other components of the tool.
1. May 8, 2023, from 9:00 a.m. to 5:00 p.m.
2. May 9, 2023, from 8:30 a.m. to 5:00 p.m.
3. May 10, 2023, from 8:30 a.m. to 1:30 p.m.
The meeting will be conducted in person at Hyatt Place National Harbor, located at 123 Waterfront Street, National Harbor, MD 20745, and virtually. Please refer to the SAB website at
Any member of the public who wants further information concerning this notice may contact Dr. Zaida Figueroa, Designated Federal Officer (DFO), via telephone (202) 564-2643, or email at
The Commission hereby gives notice of filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments, relevant information, or documents regarding the agreements to the Secretary by email at
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington, DC 20551-0001, not later than May 19, 2023.
1.
Board of Governors of the Federal Reserve System.
Agency for Healthcare Research and Quality (AHRQ), Department of Health and Human Services (HHS).
Notice of AHRQ subcommittee meeting.
The subcommittee listed below is a part of AHRQ's Health Services Research Initial Review Group (IRG) Committee. Grant applications are to be reviewed and discussed at this meeting. The subcommittee meeting will be closed to the public.
See below for date of meeting:
Agency for Healthcare Research and Quality (Virtual Review), 5600 Fishers Lane, Rockville, Maryland 20857.
(To obtain a roster of members, agenda or minutes of the non-confidential portions of the meeting.) Jenny Griffith, Committee Management Officer, Office of Extramural Research Education and Priority Populations, Agency for Healthcare Research and Quality (AHRQ), 5600 Fishers Lane, Rockville, Maryland 20857, Telephone (301) 427-1557.
In accordance with section 10 (a)(2) of the Federal Advisory Committee Act (5 U.S.C. app. 2), AHRQ announces meetings of the above-listed scientific peer review group, which is a subcommittee of AHRQ's Health Services Research Initial Review Group Committee. The subcommittee meeting will be closed to the public in accordance with the provisions set forth in 5 U.S.C. App. 2 section 10(d), 5 U.S.C. 552b(c)(4), and 5 U.S.C. 552b(c)(6). 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. Agenda items for this meeting are subject to change as priorities dictate.
Agency for Healthcare Research and Quality (AHRQ), Department of Health and Human Services (HHS).
Notice of delisting.
The Patient Safety and Quality Improvement Final Rule (Patient Safety Rule) authorizes AHRQ, on behalf of the Secretary of HHS, to list as a patient safety organization (PSO) an entity that attests that it meets the statutory and regulatory requirements for listing. A PSO can be “delisted” by the Secretary if it is found to no longer meet the requirements of the Patient Safety and Quality Improvement Act of 2005 (Patient Safety Act) and Patient Safety Rule, when a PSO chooses to voluntarily relinquish its status as a PSO for any reason, or when a PSO's listing expires. AHRQ accepted a notification of proposed voluntary relinquishment from the Emergency Medical Error Reduction Group PSO, PSO number P0235, of its status as a PSO, and has delisted the PSO accordingly.
The delisting was effective at 12:00 Midnight ET (2400) on March 29, 2023.
The directories for both listed and delisted PSOs are ongoing and reviewed weekly by AHRQ. Both directories can be accessed electronically at the following HHS website:
Cathryn Bach, Center for Quality Improvement and Patient Safety, AHRQ, 5600 Fishers Lane, MS 06N100B, Rockville, MD 20857; Telephone (toll free): (866) 403-3697; Telephone (local): (301) 427-1111; TTY (toll free): (866)
The Patient Safety Act, 42 U.S.C. 299b-21 to 299b-26, and the related Patient Safety Rule, 42 CFR part 3, published in the
The Patient Safety Act authorizes the listing of PSOs, which are entities or component organizations whose mission and primary activity are to conduct activities to improve patient safety and the quality of health care delivery.
HHS issued the Patient Safety Rule to implement the Patient Safety Act. AHRQ administers the provisions of the Patient Safety Act and Patient Safety Rule relating to the listing and operation of PSOs. The Patient Safety Rule authorizes AHRQ to list as a PSO an entity that attests that it meets the statutory and regulatory requirements for listing. A PSO can be “delisted” if it is found to no longer meet the requirements of the Patient Safety Act and Patient Safety Rule, when a PSO chooses to voluntarily relinquish its status as a PSO for any reason, or when a PSO's listing expires. Section 3.108(d) of the Patient Safety Rule requires AHRQ to provide public notice when it removes an organization from the list of PSOs.
AHRQ has accepted a notification of proposed voluntary relinquishment from the Emergency Medical Error Reduction Group PSO to voluntarily relinquish its status as a PSO. Accordingly, the Emergency Medical Error Reduction Group PSO, P0235, was delisted effective at 12:00 Midnight ET (2400) on March 29, 2023.
More information on PSOs can be obtained through AHRQ's PSO website at
Food and Drug Administration, HHS.
Notice; establishment of a public docket; request for comments; correction.
The Food and Drug Administration is correcting a notice entitled “Vaccines and Related Biological Products Advisory Committee; Notice of Meeting; Establishment of a Public Docket; Request for Comments” that appeared in the
Lisa Granger, Office of Policy, Planning, Legislation and International Affairs, Food and Drug Administration, 301-796-9115,
In the
1. On page 21688, in the third column, in the header of the document, “Docket No. FDA-2023-N-0378” is corrected to read “Docket No. FDA-2023-N-1338” and in the
2. On page 21689, in the first column, in the second line of the “Instructions:” section, Docket No. FDA-2023-N-0378” is corrected to read “Docket No. FDA-2023-N-1338”.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Submit written comments (including recommendations) on the collection of information by May 19, 2023.
To ensure that comments on the information collection are received, OMB recommends that written comments be submitted to
Amber Sanford, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-8867,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
This information collection supports FDA regulations and guidance. Tobacco products are generally governed by chapter IX of the Federal Food, Drug, and Cosmetic Act (sections 900 through 920) (21 U.S.C. 387 through 21 U.S.C. 387t).
On March 18, 2020, FDA issued a final rule establishing new cigarette health warnings for cigarette packages and advertisements entitled “Tobacco Products; Required Warnings for Cigarette Packages and Advertisements” (85 FR 15638;
Section 1141.10(g) (21 CFR 1141.10(g) and section 4(c) of the FCLAA sets forth the specific marketing requirements relating to the random and equal display and distribution of required warnings on cigarette packaging and quarterly rotation of required warnings in alternating sequence in cigarette advertising and requires the submission of plans outlining how the cigarette packaging and advertising will comply with such requirements. FDA must review and approve cigarette plans in advance of any person displaying or distributing cigarette packages or advertisements for products that are required to carry the required warnings, and a record of the FDA-approved plan must be established and maintained by the tobacco product manufacturer.
To implement these statutory and regulatory requirements, cigarette plans will be reviewed by FDA upon submission by respondents. FDA published a guidance document on July 9, 2021, entitled “Submission of Plans for Cigarette Packages and Cigarette Advertisements” which describes cigarette plans information, format and submission (
Pursuant to section 201(b) of the Tobacco Control Act, FDA finalized the “Required Warnings for Cigarette Packages and Advertisements” rule with an effective date of June 18, 2021, 15 months after the date of publication. On April 3, 2020, the final rule was challenged in the U.S. District Court for the Eastern District of Texas.
In the
FDA estimates the burden of this collection of information as follows:
The burden estimates are based on FDA's experience with information collections for other tobacco product plans (
FDA estimates 59 entities are affected. We estimate these 59 entities will submit initial plans, and it will take an average of 150 hours per respondent to prepare and submit a plan for packaging and advertising for a total of 8,850 hours. We estimate that about half of respondents will submit a supplement. If a supplement to an approved plan is submitted, FDA estimates it will take half the time per response. We estimate receiving 30 supplements at 75 hours per response for a total of 2,250 hours. FDA estimates that the total hours for submitting initial plans and supplements will be 11,100.
Section 1141.10(g)(4) establishes that each tobacco product manufacturer required to randomly and equally display and distribute warnings on cigarette packages or quarterly rotate warnings in cigarette advertisements in accordance with an FDA-approved plan under section 4 of the FCLAA and part 1141 must maintain a copy of the FDA-approved plan (approved under § 1141.10(g)(3)). This copy of such FDA-approved plan must be available for inspection and copying by officers or employees of FDA. This subsection requires that the FDA-approved plan must be retained while in effect and for a period of not less than 4 years from the date it was last in effect.
FDA estimates that 59 recordkeepers will keep a total of about 89 records at 3 hours per record for a total of 267 hours. As stated previously, these estimates are based on FDA's experience with information collections for other tobacco product plans (
FDA concludes that the required warnings for cigarette packages and cigarette advertisements in § 1141.10 are not subject to review by OMB because they do not constitute a “collection of information” under the PRA (44 U.S.C. 3501-3521). Rather, these labeling statements are a “public disclosure” of information originally supplied by the Federal Government to the recipient for the purpose of “disclosure to the public” (5 CFR 1320.3(c)(2)).
Since our last request for OMB approval, we have made no adjustments to our burden estimate.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Either electronic or written comments on the collection of information must be submitted by June 20, 2023.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” 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
Rachel Showalter, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 240-994-7399,
Under the PRA (44 U.S.C. 3501-3521), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
This information collection helps support the implementation of statutory and regulatory requirements that govern certain human cells, tissues, and cellular and tissue-based products (HCT/Ps). Manufacturers of HCT/Ps regulated solely under the authority of section 361 of the Public Health Service Act (the PHS Act) (42 U.S.C. 264) are required to register and list HCT/Ps pursuant to part 1271 (21 CFR part 1271) whether or not the HCT/P enters into interstate commerce. Manufacturers of HCT/Ps regulated as drugs, devices and/or biological products under section 351 of the PHS Act (42 U.S.C. 262) and/or section 201 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321), are required to register and list HCT/Ps following the procedures in part 207 (21 CFR part 207) (if a drug and/or biological product) or part 807 (21 CFR part 807) (if a device). Information collection associated with the registration and listing requirements in parts 207 and 807 are currently approved in OMB control numbers 0910-0045 and 0910-0625, respectively.
Agency regulations in part 1271 set forth general provisions applicable to HCT/Ps in subpart A (§§ 1271.1 through 1271.20). Those HCT/Ps that are regulated solely under the authority of section 361 of the PHS Act are described in § 1271.10. Provisions in part 1271, subpart B (§§ 1271.21 through 1271.37), establish procedures for registration and listing including format and content elements along with scheduled timeframes for the submission of certain information and action by FDA. The regulations also provide for waivers from the electronic format requirement, amendments to establishment registration, and requesting information on registration and listing from FDA.
Registrants use Form FDA 3356, Establishment Registration and Listing for HCT/Ps, to submit HCT/P establishment registration and listing information to the Electronic Human Cell and Tissue Establishment Registration System (eHCTERs). Electronic submission of HCT/P establishment and product listing information is required under § 1271.22. However, a request for waiver of the electronic submission requirement may be submitted pursuant to § 1271.23. If the waiver request is granted, Form FDA 3356 (and accompanying instructions) may be downloaded to complete and submit by mail. The Tissue Establishment Registration page (
Provisions in part 1271, subpart C (§§ 1271.45 through 1271.90), establish requirements for determining donor eligibility, including donor screening and testing, explaining these requirements are a component of current good tissue practice (CGTP) requirements set forth in part 1271, subpart D (§§ 1271.145 through 1271.320). The provisions in part 1271, subparts C and D, govern the methods used in, and the facilities and controls used for, the manufacture of HCT/Ps, including but not limited to all steps in recovery, donor screening, donor testing, processing, storage, labeling, packaging, and distribution.
The regulations in part 1271, subpart E and subpart F (§§ 1271.330 through 1271.440), establish additional requirements for establishments described in § 1271.10, including inspection and enforcement provisions, and recordkeeping requirements providing for the retention, notification to third parties, and disclosure of such records to FDA.
We estimate the burden of the information collection as follows:
Based on current data from eHCTERS, we estimate there are 2,374 HCT/P current registrants and 157 new registrants, for a total of 2,531 respondents annually. Information collection provisions that include reporting activities are identified in table 1. The estimated burden for each of the individual reporting activities was calculated based on the annual number of submissions, averaged among respondents, and based on informal communications with industry.
To calculate burden associated with the establishment and maintenance of operating procedures in accordance with applicable CGTP requirements, we assume twice the time is necessary for new establishments. Burden we attribute to recordkeeping activities associated with the remaining provisions in part 1271 is assumed to be distributed among the individual elements and averaged among respondents.
As part of the recordkeeping requirements, certain provisions in part 1271 require the disclosure of information to third parties, particularly as it pertains to the distribution of HCT/Ps. We estimate a proportion of the respondents to the information collection (1,611) will incur burden resulting from these disclosures and have therefore accounted for burden that may be attributable to these distinct activities.
Our estimated burden for the information collection reflects an overall reduction of 150,137 hours and 347,843 responses annually, which corresponds to a decrease in the number HCT/P establishments and a decrease in the number HCT/Ps distributed since our last evaluation.
The Indian Health Service (IHS) is accepting applications for cooperative agreements for the Tribal Self-Governance Planning Cooperative Agreement Program. This program is authorized under the Snyder Act, 25 U.S.C. 13; the Transfer Act, 42 U.S.C. 2001(a); and Title V of the Indian Self-Determination and Education Assistance Act (ISDEAA), 25 U.S.C. 5383(e). The Assistance Listings section of
The Tribal Self-Governance Program (TSGP) is more than an IHS program; it is an expression of the Government-to-Government relationship between the United States (U.S.) and Indian Tribes. Through the TSGP, Tribes negotiate with the IHS to assume Programs, Services, Functions, and Activities (PSFAs), or portions thereof, which gives Tribes the authority to manage and tailor health care programs in a manner that best fits the needs of their communities.
Participation in the TSGP affords Tribes the most flexibility to tailor their health care needs by choosing one of three ways to obtain health care from the Federal Government for their citizens. Specifically, Tribes can choose to: (1) receive health care services directly from the IHS; (2) contract with the IHS to administer individual programs and services the IHS would otherwise provide (referred to as Title I Self-Determination Contracting); and (3) compact with the IHS to assume control over health care programs the IHS would otherwise provide (referred to as Title V Self-Governance Compacting or the TSGP). These options are not exclusive and Tribes may choose to combine options based on their individual needs and circumstances.
The TSGP is a tribally-driven initiative and strong Federal-Tribal partnerships are essential to the program's success. The IHS established the Office of Tribal Self-Governance (OTSG) to implement the Self-Governance authorities under the ISDEAA. The primary OTSG functions are to: (1) serve as the primary liaison and advocate for Tribes participating in the TSGP; (2) develop, direct, and implement TSGP policies and procedures; (3) provide information and technical assistance to Self-Governance Tribes; and (4) advise the IHS Director on compliance with TSGP policies, regulations, and guidelines. Each IHS Area has an Agency Lead Negotiator (ALN), designated by the IHS Director to act on his or her behalf, who has authority to negotiate Self-Governance Compacts and Funding Agreements. Tribes interested in participating in the TSGP should contact their respective ALN to begin the Self-Governance planning and negotiation process. Tribes currently participating in the TSGP that are interested in expanding existing or adding new PSFAs should also contact their respective ALN to discuss the best methods for expanding or adding new PSFAs.
The purpose of this Planning Cooperative Agreement is to provide resources to Tribes interested in entering the TSGP and to existing Self-Governance Tribes interested in assuming new or expanded PSFAs. Title V of the ISDEAA requires a Tribe or Tribal organization (T/TO) to complete a planning phase to the satisfaction of the Tribe. The planning phase must include legal and budgetary research and internal Tribal government planning and organizational preparation relating to the administration of health care programs. See 25 U.S.C. 5383(d).
The planning phase is critical to negotiations and helps Tribes make informed decisions about which PSFAs to assume and what organizational changes or modifications are necessary to successfully support those PSFAs. A thorough planning phase improves timeliness and efficient negotiations and ensures that the Tribe is fully prepared to assume the transfer of IHS PSFAs to the Tribal health program.
A Planning Cooperative Agreement is not a prerequisite to enter the TSGP and a Tribe may use other resources to meet the planning requirement. Tribes that receive Planning Cooperative Agreements are not obligated to participate in the TSGP and may choose to delay or decline participation based on the outcome of their planning activities. This also applies to existing Self-Governance Tribes exploring the option to expand their current PSFAs or assume additional PSFAs.
The total funding identified for fiscal year (FY) 2023 is approximately $900,000. Individual award amounts are anticipated to be $180,000. The funding available for competing awards issued under this announcement is subject to the availability of appropriations and budgetary priorities of the Agency. The IHS is under no obligation to make awards that are selected for funding under this announcement.
The IHS anticipates issuing approximately five awards under this program announcement.
The period of performance is for 1 year.
Cooperative agreements awarded by the Department of Health and Human Services (HHS) are administered under the same policies as grants. However, the funding agency, IHS, is anticipated to have substantial programmatic involvement in the project during the
A. Provide descriptions of PSFAs and associated funding at all organizational levels (service unit, area, and headquarters) including funding formulas and methodologies related to determining Tribal shares.
B. Meet with Planning Cooperative Agreement recipients to provide program information and discuss methods currently used to manage and deliver health care.
C. Identify and provide statutes, regulations, and policies that provide authority for administering IHS programs.
D. Provide technical assistance on the IHS budget, Tribal shares, and other topics as needed.
To be eligible for this opportunity, applicant must meet the following criteria:
• Applicant must be an “Indian Tribe” as defined in 25 U.S.C. 5304(e); a “Tribal Organization” as defined in 25 U.S.C. 5304(l); or an “Inter-Tribal Consortium” as defined at 42 CFR 137.10. Please note that Tribes prohibited from contracting pursuant to the ISDEAA are not eligible. See section 424(a) of the Consolidated Appropriations Act, 2014, Public Law 113-76, as amended by section 445 of the Consolidated Appropriations Act, 2023, Public Law 117-328.
• Pursuant to 25 U.S.C. 5383(c)(1)(B), applicant must request participation in self-governance by resolution or other official action by the governing body of each Indian Tribe to be served. Note: If the applicant has already successfully completed the planning phase required and requested participation in the IHS Tribal Self-Governance Program by official Tribal action, then the applicant is not eligible for this funding opportunity.
• Pursuant to 25 U.S.C. 5383(c)(1)(C), applicant must demonstrate financial stability and financial management capability for 3 fiscal years.
Meeting the eligibility criteria for a Planning Cooperative Agreement does not mean that a T/TO is eligible for participation in the IHS TSGP under title V of the ISDEAA. See 25 U.S.C. 5383, 42 CFR 137.15-23. For additional information on the eligibility for the IHS TSGP, please visit the “Eligibility and Funding” page on the OTSG website located at
The Division of Grants Management (DGM) will notify any applicants deemed ineligible.
The IHS does not fund concurrent projects. If an applicant is successful under this announcement, any subsequent applications in response to other Tribal Self-Governance Planning Cooperative Agreement Program announcements from the same applicant will not be funded. Applications on behalf of individuals (including sole proprietorships) and foreign organizations are not eligible and will be disqualified from competitive review and funding under this funding opportunity.
Please refer to section IV.2 (Application and Submission Information/Subsection 2, Content and Form of Application Submission) for additional proof of applicant status documents required, such as Tribal Resolutions, proof of nonprofit status, etc.
The IHS does not require matching funds or cost sharing for grants or cooperative agreements.
Applications with budget requests that exceed the highest dollar amount outlined under section II Award Information, Estimated Funds Available, or exceed the period of performance outlined under Section II Award Information, Period of Performance, are considered not responsive and will not be reviewed. The DGM will notify the applicant.
The DGM must receive an official, signed Tribal Resolution prior to issuing a Notice of Award (NoA) to any T/TO selected for funding. An applicant that is proposing a project affecting another Indian Tribe must include resolutions from all affected Tribes to be served. However, if an official signed Tribal Resolution cannot be submitted with the application prior to the application deadline date, a draft Tribal Resolution must be submitted with the application by the deadline date in order for the application to be considered complete and eligible for review. The draft Tribal Resolution is not in lieu of the required signed resolution but is acceptable until a signed resolution is received. If an application without a signed Tribal Resolution is selected for funding, the applicant will be contacted by the Grants Management Specialist (GMS) listed in this funding announcement and given 90 days to submit an official signed Tribal Resolution to the GMS. If the signed Tribal Resolution is not received within 90 days, the award will be forfeited.
Applicants organized with a governing structure other than a Tribal council may submit an equivalent document commensurate with their governing organization.
The application package and detailed instructions for this announcement are available at
Please direct questions regarding the application process to
Mandatory documents for all applicants include:
• Application forms:
1. SF-424, Application for Federal Assistance.
2. SF-424A, Budget Information—Non-Construction Programs.
3. SF-424B, Assurances—Non-Construction Programs.
4. Project Abstract Summary form.
• Project Narrative (not to exceed 10 pages). See Section IV.2.A, Project Narrative for instructions.
• Budget Narrative (not to exceed 5 pages). See Section IV.2.B, Budget Narrative for instructions.
• One-page Timeframe Chart.
• Tribal Resolution(s) as described in Section III, Eligibility.
• Biographical sketches for all Key Personnel.
• Contractor/Consultant resumes or qualifications and scope of work (if applicable).
• Disclosure of Lobbying Activities (SF-LLL), if applicant conducts reportable lobbying.
• Certification Regarding Lobbying (GG-Lobbying Form).
• Copy of current Negotiated Indirect Cost (IDC) rate agreement (required in order to receive IDC).
• Organizational Chart (optional).
• Documentation sufficient to demonstrate financial stability and financial management capability for 3 fiscal years. The Indian Tribe must provide evidence that, for the 3 fiscal years prior to requesting participation in the TSGP, the Indian Tribe has had no uncorrected significant and material audit exceptions in the required annual audit of the Indian Tribe's Self-Determination Contracts or Self-Governance Funding Agreements with any Federal agency. See 25 U.S.C. 5383, 42 CFR 137.15-23. For T/TO that expended $500,000 or more in Federal awards, the OTSG shall retrieve the audits directly from the Federal Audit Clearinghouse. For T/TO that expended less than $500,000 in Federal awards, the T/TO must provide evidence of the program review correspondence from the IHS or Bureau of Indian Affairs officials. See 42 CFR 137.21-23.
• Documentation of current Office of Management and Budget (OMB) Financial Audit.
Acceptable forms of documentation include:
1. Email confirmation from Federal Audit Clearinghouse (FAC) that audits were submitted; or
2. Face sheets from audit reports. Applicants can find these on the FAC website at
All Federal public policies apply to IHS grants and cooperative agreements. Pursuant to 45 CFR 80.3(d), an individual shall not be deemed subjected to discrimination by reason of their exclusion from benefits limited by Federal law to individuals eligible for benefits and services from the IHS. See
A. Project Narrative: This narrative should be a separate document that is no more than 10 pages and must: (1) have consecutively numbered pages; (2) use black font 12 points or larger (applicants may use 10 point font for tables); (3) be single-spaced; and (4) be formatted to fit standard letter paper (8-
Be sure to succinctly answer all questions listed under the evaluation criteria (refer to Section V.1, Evaluation Criteria), and place all responses and required information in the correct section noted below or they will not be considered or scored. If the narrative exceeds the overall page limit, the reviewers will be directed to ignore any content beyond the page limit. The 10-page limit for the project narrative does not include the work plan, standard forms, Tribal Resolutions, budget, budget narratives, and/or other items. Page limits for each section within the project narrative are guidelines, not hard limits.
There are three parts to the project narrative: Part 1—Program Information; Part 2—Program Planning and Evaluation; and Part 3—Program Report. See below for additional details about what must be included in the narrative.
The page limits below are for each narrative and budget submitted.
Describe the Tribe's current health program activities, including: how long it has been operating; what programs or services are currently being provided; and if the applicant is currently administering any ISDEAA Title I Self-Determination Contracts or Title V Self-Governance Compacts. Identify the need for assistance and how the Planning Cooperative Agreement would benefit the health activities the Tribe is currently administering or looking to expand.
State in measurable terms the objectives and appropriate activities to achieve the following Planning Cooperative Agreement recipient award activities:
(A) Research and analyze the complex IHS budget to gain a thorough understanding of funding distribution at all organizational levels and determine which PSFAs the Tribe may elect to assume or expand.
(B) Establish a process to identify PSFAs and associated funding that may be incorporated into current programs.
(C) Determine the Tribe's share of each PSFA and evaluate the current level of health care services being provided to make an informed decision on new or expanded program assumption.
(D) Describe how the objectives are consistent with the purpose of the program, the needs of the people to be served, and how they will be achieved within the proposed timeframe. Identify the expected results, benefits, and outcomes or products to be derived from each objective of the project and how they will be measured.
Describe the organizational structure of the Tribe and its ability to manage the proposed project. Include resumes or position descriptions of key staff showing requisite experience and expertise. If applicable, include resumes and scope of work for consultants that demonstrate experience and expertise relevant to the project.
Define the criteria to be used to evaluate planning activities and how they will be measured. Describe fully and clearly the methodology that will be used to determine if the needs identified are being met and if the outcomes are being achieved. This section must address the following questions:
(A) Are the goals and objectives measurable and consistent with the purpose of the program and the needs of the people to be served?
(B) Are the goals achievable within the proposed timeframe?
Section 1: Describe your organization's significant program activities and accomplishments over the past 6 to 12 months associated with the goals of this announcement.
Please identify and describe significant program activities and achievements associated with the delivery of quality health services. Provide a comparison of the actual accomplishments to the goals established for the project period or, if applicable, provide justification for the lack of progress.
Provide a budget narrative that explains the amounts requested for each line item of the budget from the SF-424A (Budget Information for Non-Construction Programs) for the first year of the project. The applicant can submit with the budget narrative a more detailed spreadsheet than is provided by the SF-424A (the spreadsheet will not be considered part of the budget narrative). The budget narrative should specifically describe how each item would support the achievement of proposed objectives. Be very careful about showing how each item in the “Other” category is justified. Do NOT
Applications must be submitted through
If technical challenges arise and assistance is required with the application process, contact
The IHS will not acknowledge receipt of applications.
Executive Order 12372 requiring intergovernmental review is not applicable to this program.
• Pre-award costs are not allowable.
• The available funds are inclusive of direct and indirect costs.
• Only one cooperative agreement may be awarded per applicant.
All applications must be submitted via
If you cannot submit an application through
If the DGM approves your waiver request, you will receive a confirmation of approval email containing submission instructions. You must include a copy of the written approval with the application submitted to the DGM. Applications that do not include a copy of the waiver approval from the DGM will not be reviewed. The Grants Management Officer of the DGM will notify the applicant via email of this decision. Applications submitted under waiver must be received by the DGM no later than 5:00 p.m. Eastern Time on the Application Deadline Date. Late applications will not be accepted for processing. Applicants that do not register for both the System for Award Management (SAM) and
Please be aware of the following:
• Please search for the application package in
• If you experience technical challenges while submitting your application, please contact
• Upon contacting
• Applicants are strongly encouraged not to wait until the deadline date to begin the application process through
• Please follow the instructions on
• Applicants must comply with any page limits described in this funding announcement.
• After submitting the application, you will receive an automatic acknowledgment from
Organizations that are not registered with the System for Award Management (SAM) must access the SAM online registration through the SAM home page at
Your
Check your organization's
Check your
The Federal Funding Accountability and Transparency Act of 2006, as amended (“Transparency Act”), requires all HHS recipients to report information on sub-awards. Accordingly, all IHS recipients must notify potential first-tier sub-recipients that no entity may receive a first-tier sub-award unless the entity has provided its UEI number to the prime recipient organization. This requirement ensures the use of a universal identifier to enhance the quality of information available to the public pursuant to the Transparency Act.
Additional information on implementing the Transparency Act, including the specific requirements for SAM, are available on the DGM Grants Management, Policy Topics web page at
Possible points assigned to each section are noted in parentheses. The project narrative and budget narrative should include only the first year of activities. The project narrative should be written in a manner that is clear to outside reviewers unfamiliar with prior related activities of the applicant. It should be well organized, succinct, and contain all information necessary for reviewers to fully understand the project. Attachments requested in the criteria do not count toward the page limit for the narratives. Points will be assigned to each evaluation criteria adding up to a total of 100 possible points. Points are assigned as follows:
Describe the Tribe's current health program activities, including: how long it has been operating, what programs or services are currently being provided, and if the applicant is currently administering any ISDEAA Title I Self-Determination Contracts or Title V Self-Governance Compacts. Identify the need for assistance and how the Planning Cooperative Agreement would benefit the health activities the Tribe is currently administering and/or looking to expand.
State in measurable terms the objectives and appropriate activities to achieve the following Planning Cooperative Agreement recipient award activities:
(1) Research and analyze the complex IHS budget to gain a thorough understanding of funding distribution at all organizational levels and determine which PSFAs the Tribe may elect to assume or expand.
(2) Establish a process to identify PSFAs and associated funding that may be incorporated into current programs.
(3) Determine the Tribe's share of each PSFA and evaluate the current level of health care services being provided to make an informed decision on new or expanded program assumption.
(4) Describe how the objectives are consistent with the purpose of the program, the needs of the people to be served, and how they will be achieved within the proposed timeframe. Identify the expected results, benefits, and outcomes or products to be derived from each objective of the project.
Define the criteria to be used to evaluate planning activities and how they will be measured. Clearly describe the methodologies and parameters that will be used to determine if the needs identified are being met and if the outcomes identified are being achieved. Are the goals and objectives measurable and consistent with the purpose of the program and meet the needs of the people to be served? Are they achievable within the proposed timeframe? Describe how the assumption of PSFAs enhances sustainable health delivery. Ensure the measurement includes activities that will lead to sustainability.
Describe the organizational structure of the Tribe and its ability to manage the proposed project. Include resumes or position descriptions of key staff showing requisite experience and expertise. If applicable, include resumes and scope of work for consultants that demonstrate experience and expertise relevant to the project.
Submit a budget with a narrative describing the budget request and matching the scope of work described in the project narrative. Justify all expenditures identifying reasonable and allowable costs necessary to accomplish the goals and objectives as outlined in the project narrative.
Additional documents can be uploaded as Other Attachments in
• Work plan, logic model, and/or timeline for proposed objectives.
• Position descriptions for key staff.
• Resumes of key staff that reflect current duties.
• Consultant or contractor proposed scope of work and letter of commitment (if applicable).
• Current Indirect Cost Rate Agreement.
• Organizational chart.
• Map of area identifying project location(s).
• Additional documents to support narrative (
Each application will be prescreened for eligibility and completeness as outlined in this funding announcement. Applications that meet the eligibility criteria shall be reviewed for merit by the Review Committee (RC) based on the evaluation criteria. Incomplete applications and applications that are not responsive to the administrative thresholds (budget limit, period of performance limit) will not be referred to the RC and will not be funded. The DGM will notify the applicant of this determination.
Applicants must address all program requirements and provide all required documentation.
All applicants will receive an Executive Summary Statement from the IHS Office of Tribal Self-Governance within 30 days of the conclusion of the ORC outlining the strengths and weaknesses of their application. The summary statement will be sent to the Authorizing Official identified on the face page (SF-424) of the application.
The NoA is the authorizing document for which funds are dispersed to the approved entities and reflects the amount of Federal funds awarded, the purpose of the award, the terms and conditions of the award, the effective date of the award, the budget period, and period of performance. Each entity approved for funding must have a user account in GrantSolutions in order to retrieve the NoA. Please see the Agency Contacts list in Section VII for the systems contact information.
Approved applications not funded due to lack of available funds will be held for 1 year. If funding becomes available during the course of the year, the application may be reconsidered.
Any correspondence, other than the official NoA executed by an IHS grants management official announcing to the project director that an award has been made to their organization, is not an authorization to implement their program on behalf of the IHS.
Awards issued under this announcement are subject to, and are administered in accordance with, the following regulations and policies:
A. The criteria as outlined in this program announcement.
B. Administrative Regulations for Awards:
• Uniform Administrative Requirements, Cost Principles, and Audit Requirements for HHS Awards currently in effect or implemented during the period of award, other Department regulations and policies in effect at the time of award, and applicable statutory provisions. At the time of publication, this includes 45 CFR part 75, at
• Please review all HHS regulatory provisions for Termination at 45 CFR 75.372, at the time of this publication located at
C. Grants Policy:
• HHS Grants Policy Statement, Revised January 2007, at
D. Cost Principles:
• Uniform Administrative Requirements for HHS Awards, “Cost Principles,” at 45 CFR part 75 subpart E, at the time of this publication located at
E. Audit Requirements:
• Uniform Administrative Requirements for HHS Awards, “Audit Requirements,” at 45 CFR part 75 subpart F, at the time of this publication located at
F. As of August 13, 2020, 2 CFR part 200 was updated to include a prohibition on certain telecommunications and video surveillance services or equipment. This prohibition is described in 2 CFR 200.216. This will also be described in the terms and conditions of every IHS grant and cooperative agreement awarded on or after August 13, 2020.
This section applies to all recipients that request reimbursement of IDC in their application budget. In accordance with HHS Grants Policy Statement, Part II-27, the IHS requires applicants to obtain a current IDC rate agreement and submit it to the DGM prior to the DGM issuing an award. The rate agreement must be prepared in accordance with the applicable cost principles and guidance as provided by the cognizant agency or office. A current rate covers the applicable award activities under the current award's budget period. If the current rate agreement is not on file with the DGM at the time of award, the IDC portion of the budget will be restricted. The restrictions remain in place until the current rate agreement is provided to the DGM.
Per 2 CFR 200.414(f) Indirect (F&A) costs,
Electing to charge a de minimis rate of 10 percent can be used by applicants that have received an approved negotiated indirect cost rate from HHS or another cognizant Federal agency. Applicants awaiting approval of their indirect cost proposal may request the 10 percent de minimis rate. When the applicant chooses this method, costs included in the indirect cost pool must not be charged as direct costs to the award.
Available funds are inclusive of direct and appropriate indirect costs. Approved indirect funds are awarded as part of the award amount, and no additional funds will be provided.
Generally, IDC rates for IHS recipients are negotiated with the Division of Cost Allocation at
The recipient must submit required reports consistent with the applicable deadlines. Failure to submit required reports within the time allowed may result in suspension or termination of an active award, withholding of additional awards for the project, or other enforcement actions such as withholding of payments or converting to the reimbursement method of payment. Continued failure to submit required reports may result in the imposition of special award provisions and/or the non-funding or non-award of other eligible projects or activities. This requirement applies whether the delinquency is attributable to the failure of the recipient organization or the individual responsible for preparation of the reports. Per DGM policy, all reports must be submitted electronically by attaching them as a “Grant Note” in GrantSolutions. Personnel responsible for submitting reports will be required to obtain a login and password for GrantSolutions. Please use the form under the Recipient User section of
The reporting requirements for this program are noted below.
Program progress reports are required semi-annually. The progress reports are due within 30 days after the reporting period ends (specific dates will be listed in the NoA Terms and Conditions). These reports must include a brief comparison of actual accomplishments to the goals established for the period, a summary of progress to date or, if applicable, provide sound justification for the lack of progress, and other pertinent information as required. A final report must be submitted within 120 days of the period of performance end date.
Federal Financial Reports are due 90 days after the end of each budget period, and a final report is due 120 days after the end of the period of performance. Recipients are responsible and accountable for reporting accurate information on all required reports: the Progress Reports and the Federal Financial Report.
Failure to submit timely reports may result in adverse award actions blocking access to funds.
This award may be subject to the Transparency Act sub-award and executive compensation reporting requirements of 2 CFR part 170.
The Transparency Act requires the OMB to establish a single searchable database, accessible to the public, with information on financial assistance awards made by Federal agencies. The Transparency Act also includes a requirement for recipients of Federal awards to report information about first-tier sub-awards and executive compensation under Federal assistance awards.
The IHS has implemented a Term of Award into all IHS Standard Terms and Conditions, NoAs, and funding announcements regarding the FSRS reporting requirement. This IHS Term of Award is applicable to all IHS grant and cooperative agreements issued on or after October 1, 2010, with a $25,000 sub-award obligation threshold met for any specific reporting period.
For the full IHS award term implementing this requirement and additional award applicability information, visit the DGM Grants Management website at
The recipient must administer the project in compliance with Federal civil rights laws, where applicable, that prohibit discrimination on the basis of race, color, national origin, disability, age, and comply with applicable conscience protections. The recipient must comply with applicable laws that prohibit discrimination on the basis of sex, which includes discrimination on the basis of gender identity, sexual
• Recipients of FFA must ensure that their programs are accessible to persons with limited English proficiency. For guidance on meeting your legal obligation to take reasonable steps to ensure meaningful access to your programs or activities by limited English proficiency individuals, see
• For information on your specific legal obligations for serving qualified individuals with disabilities, including reasonable modifications and making services accessible to them, see
• HHS funded health and education programs must be administered in an environment free of sexual harassment. See
• For guidance on administering your program in compliance with applicable Federal religious nondiscrimination laws and applicable Federal conscience protection and associated anti-discrimination laws, see
• Pursuant to 45 CFR 80.3(d), an individual shall not be deemed subjected to discrimination by reason of their exclusion from benefits limited by Federal law to individuals eligible for benefits and services from the IHS.
The IHS is required to review and consider any information about the applicant that is in the FAPIIS at
As required by 45 CFR part 75 Appendix XII of the Uniform Guidance, NFEs are required to disclose in FAPIIS any information about criminal, civil, and administrative proceedings, and/or affirm that there is no new information to provide. This applies to NFEs that receive Federal awards (currently active grants, cooperative agreements, and procurement contracts) greater than $10 million for any period of time during the period of performance of an award/project.
As required by 2 CFR part 200 of the Uniform Guidance, and HHS implementing regulations at 45 CFR part 75, the IHS must require an NFE or an applicant for a Federal award to disclose, in a timely manner, in writing to the IHS or pass-through entity all violations of Federal criminal law involving fraud, bribery, or gratuity violations potentially affecting the Federal award. All applicants and recipients must disclose in writing, in a timely manner, to the IHS and to the HHS Office of Inspector General all information related to violations of Federal criminal law involving fraud, bribery, or gratuity violations potentially affecting the Federal award. 45 CFR 75.113.
Disclosures must be sent in writing to:
Failure to make required disclosures can result in any of the remedies described in 45 CFR 75.371 Remedies for noncompliance, including suspension or debarment (see 2 CFR part 180 and 2 CFR part 376).
1. Questions on the program matters may be directed to:
2. Questions on awards management and fiscal matters may be directed to:
For technical assistance with
The Public Health Service strongly encourages all grant, cooperative agreement, and contract recipients to provide a smoke-free workplace and promote the non-use of all tobacco products. In addition, Public Law 103-227, the Pro-Children Act of 1994, prohibits smoking in certain facilities (or in some cases, any portion of the facility) in which regular or routine education, library, day care, health care, or early childhood development services are provided to children. This is consistent with the HHS mission to protect and advance the physical and mental health of the American people.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Advisory Child Health and Human Development Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has procedures at
Individuals will be able to view the meeting via NIH Videocast. Select the following link for Videocast access instructions:
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Advisory Dental and Craniofacial Research Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The 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.
Information is also available on the Institute's/Center's home page:
U.S. Customs and Border Protection (CBP), Department of Homeland Security.
60-Day notice and request for comments; revision of an existing collection of information.
The Department of Homeland Security, U.S. Customs and Border Protection (CBP) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). The information collection is published in the
Comments are encouraged and must be submitted (no later than June 20, 2023) to be assured of consideration.
Written comments and/or suggestions regarding the item(s)
Email. Submit comments to:
Requests for additional PRA information should be directed to Seth Renkema, Chief, Economic Impact Analysis Branch, U.S. Customs and Border Protection, Office of Trade, Regulations and Rulings, 90 K Street NE, 10th Floor, Washington, DC 20229-1177, Telephone number 202-325-0056 or via email
CBP invites the general public and other Federal agencies to comment on the proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
CBP is proposing to add the following required data fields to Form 7501:
For certain Harmonized Tariff Schedule (HTS) classifications of steel imports, the country where the steel used in the manufacture of the product was melted and poured; the country where the steel used in the manufacture of the product was melted and poured applies to the original location where the raw steel is first produced in a steel-making furnace in a liquid state; and then poured into its first solid shape.
For certain HTS classifications of aluminum imports, the countries where the largest and second largest volume of primary aluminum used in the manufacture of the imported aluminum product was smelted; and the country where the aluminum used in the imported aluminum product was most recently cast. The fields requiring identification of the countries where the largest volume of primary aluminum used in the manufacture of the product was smelted applies to the country where the largest volume of new aluminum metal is produced from alumina (or aluminum oxide) by the electrolytic Hall-Héroult process. Importers may be required to report if primary aluminum from specific countries is used in the imported aluminum product, if required by law and/or Presidential Proclamation.
Importers will be required to report on the Form 7501 the steel country of melt and pour and aluminum countries of smelt and cast for imports under those steel and aluminum HTS classifications subject to the Commerce Department's steel and aluminum import license applications, and where applicable, the Section 232 steel and aluminum measures.
These data fields will substantially align the Form 7501 reporting requirements with the Commerce Department's existing reporting requirements for steel melt and pour and aluminum smelt and cast countries for steel and aluminum import license applications under 19 CFR 360.103(c)(1) and 19 CFR 361.103(c)(1). The aluminum and steel license application information is used by the Commerce Department for monitoring of anticipated imports of certain aluminum and steel products into the United States. The Form 7501 data is used by CBP to determine, when imports are entered for consumption, the proper amount of duties, applicable fees, taxes, and imports subject to quota.
These data fields are also required to enforce the tariff rate quotas for imported steel and aluminum established by the following Presidential Proclamations under section 232 of the Trade Expansion Act of 1962, as amended: for products of the European Union, Proclamation 10327 of December 27, 2021 (87 FR 1, January 3, 2022) and Proclamation 10328 of December 27, 2021 (87 FR 11, January 3, 2022); for products of Japan (steel-only), Proclamation 10356 of March 31, 2022 (87 FR 19351, April 1, 2022); and for products of the United Kingdom, Proclamation 10405 of May 31, 2022 (87 FR 33583, June 3, 2022) and Proclamation 10406 of May 31, 2022 (87 FR 33591, June 3, 2022).
Cybersecurity and Infrastructure Security Agency (CISA), Department of Homeland Security (DHS).
Notice of Federal Advisory Committee Act (FACA) meeting; request for comments.
CISA is publishing this notice to announce the President's National Security Telecommunications Advisory Committee (NSTAC) meeting on May 16, 2023, in Washington, DC. This meeting will be partially closed to the public. The public can access the meeting via teleconference.
The May 2023 NSTAC Meeting's open session is set to be held from 3:30 to 5:00 p.m. ET in person at 1650 Pennsylvania Avenue NW, Washington, DC 20504. Members of the public may participate via teleconference. For access to the conference call bridge, information on services for individuals with disabilities, or to request special assistance, please email
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•
A public comment period is scheduled to be held during the meeting from 4:20 to 4:30 p.m. ET. Speakers who wish to participate in the public comment period must email
Christina Berger, 202-701-6354,
The NSTAC is established under the authority of Executive Order (E.O.) 12382, dated September 13, 1982, as amended by E.O. 13286, continued and amended under the authority of E.O. 14048, dated September 30, 2021. Notice of this meeting is given under FACA, 5 U.S.C. ch. 10 (Pub. L. 117-286). The NSTAC advises the president on matters related to national security
The committee will also meet in a closed session from 1:00 to 3:00 p.m. ET during which time: (1) senior government intelligence officials will provide a threat briefing concerning threats to NS/EP communications and engage NSTAC members in follow-on discussion; and (2) NSTAC members and senior government officials will discuss potential NSTAC study topics.
These agenda items are the: (1) classified threat briefing and discussion, which will provide NSTAC members the opportunity to discuss information concerning threats to NS/EP communications with senior government intelligence officials; and (2) potential NSTAC study topics discussion. The briefing is anticipated to be classified at the top secret/sensitive compartmented information level. Disclosure of these threats during the briefing, as well as vulnerabilities and mitigation techniques, is a risk to the Nation's cybersecurity posture because adversaries could use this information to compromise commercial and government networks. Subjects discussed during the potential study topics discussion are tentative and are under further consideration by the committee.
Therefore, this portion of the meeting is required to be closed pursuant to section 10(d) of FACA and 5 U.S.C. 552b(c)(1) because it will disclose matters that are classified.
Federal Emergency Management Agency, Department of Homeland Security.
Notice of correction.
The Department of Homeland Security (DHS) published a document in the
For general questions please contact: Tammi Hines, (202) 646-3606,
In the
Office of the Secretary, U.S. Department of Housing and Urban Development (HUD).
Notice; extension of public comment period.
On April 7, 2023, HUD posted on its website for public comment an extension to its previously issued public interest, general applicability waiver for the Buy America Domestic Content Procurement Preference (“Buy America Preference,” or “BAP”) as applied to Federal Financial Assistance (“FFA”) provided to Tribes, Tribally Designated Housing Entities (“TDHE”s), and other Tribal Entities (hereinafter collectively “Tribal Recipients”). Specifically, HUD's notice proposed that the waiver continue for an additional one-year period. The notice also established an April 24, 2023, deadline for public comment. The notice was also published in the
Interested persons are invited to submit comments regarding this proposed rule to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW, Room 10276, Washington, DC 20410-0500. Communications must refer to the above docket number and title. There are two methods for submitting public comments. All submissions must refer to the above docket number and title.
Faith Rogers, Department of Housing and Urban Development, 451 Seventh Street SW, Room 10126, Washington, DC 20410-5000, at (202) 402-7082 (this is not a toll-free number). HUD welcomes and is prepared to receive calls from individuals who are deaf or hard of hearing, as well as individuals with speech and communication disabilities. To learn more about how to make an accessible telephone call, please visit
The Build America, Buy America Act (the Act) was enacted on November 15, 2021, as part of the Infrastructure Investment and Jobs Act (IIJA) (Pub. L. 117-58). The Act establishes a domestic content procurement preference (the “Buy American Preference,” or “BAP”) that applies to HUD's Federal financial assistance used for infrastructure projects.
On May 3, 2022 (87 FR 26221), HUD published a notice HUD seeking public comment on a general applicability, public interest waiver for one year of the BAP as applied to FFA provided to Tribal Recipients to provide the Department with time to engage in the Tribal consultation policy with respect to the applicability of BABA requirements to Tribal Recipients. HUD's Tribal Government-to Government Consultation Policy
On April 7, 2023, HUD posted for comment on its website a proposed extension to May 3, 2022, of the public interest, general applicability waiver of the BAP as applied to FFA provided to Tribes Recipients. The notice proposed that the waiver continue for an additional period of one year and established an April 24, 2023, deadline for public comment. The notice was also published in the
HUD has received feedback requesting additional time to review and provide comments on HUD's proposal to extend for an additional one-year period its waiver of the BAP as applied to FFA provided to Tribal Recipients. Therefore, HUD is extending the deadline for comments until May 8, 2023.
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 an information collection with revisions.
Interested persons are invited to submit comments on or before June 20, 2023.
Send your comments on the information collection request (ICR) by one of the following methods (please reference 1018-041 in the subject line of your comments):
• Internet (preferred):
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Madonna L. Baucum, Service Information Collection Clearance Officer, by email at
In accordance with the Paperwork Reduction Act (PRA, 44 U.S.C. 3501
As part of our continuing effort to reduce paperwork and respondent
We are especially interested in public comment addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How might the agency minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
• Monitor the quality of services provided by commercial guides.
• Gauge client satisfaction with the services.
• Assess the impacts of the activity on refuge resources.
The client is the best source of information on the quality of commercial guiding services. We collect:
• Client name.
• Guide name(s).
• Type of guided activity.
• Dates and location of guided activity.
• Information on the services received, such as the client's expectations, safety, environmental impacts, and client's overall satisfaction.
We encourage respondents to provide any additional comments that they wish regarding the guide service or refuge experience, and ask whether or not they wish to be contacted for additional information.
The above information, in combination with State-required guide activity reports and contacts with guides and clients in the field, provides a comprehensive method for monitoring permitted commercial guide activities. A regular program of client evaluation helps refuge managers detect potential problems with guide services so that we can take corrective actions promptly. In addition, we use this information during the competitive selection process for big game and sport fishing guide permits to evaluate a renewing applicant's ability to provide a quality guiding service.
The Service is actively reviewing the current evaluation form to identify ways to improve the information collected to:
• Provide more quantifiable and defensible data;
• Provide statistical data for each completed and submitted form; and
• Translate the client responses into useful information, so refuge management can make better informed decisions.
With this submission, the Service will propose a new form (tentatively assigned Form 3-2538, “Alaska Guide Service Evaluation”) to OMB for approval. The Service initially proposed this form for viability testing under OMB Control No. 1090-0011, “DOI Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery,” in our December 22, 2020,
In order to effectively adapt visitor services programming in the Alaska Region, we need to understand visitor satisfaction. To that end, the Alaska Guide Service Evaluation team, comprised of representatives from across the Region, with the assistance of the Human Dimensions Branch and the Service Information Collection Clearance Officer, has revised the current guide evaluation form. The revised form provides the region's refuges with a useful and quantitative tool that reflects social science survey design best practices, and that is standardized for use across refuges in the region. Form 3-2538 would collect the following information from participants in the Alaska guide program:
• Details regarding the guided trip—name of the outfitter(s) and person(s) guiding the trip and top three purposes for visiting the refuge.
• Experiences with the guided trip.
• Level of satisfaction with the guided trip and details regarding purpose of visit to refuge.
• Suggestions for improvements.
• Details about visitor—gender; State and/or country of residence; year of birth; race or ethnicity; details regarding formal schooling; and approximate household income.
• Contact information for follow-up questions (optional).
The public may request copies of any form contained in this information collection by sending a request to the Service Information Collection Clearance Officer (see
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Members of the National Council on Disability (NCD) will hold a quarterly business meeting on Thursday, May 4, 2023, 12 p.m.-4 p.m., Eastern Daylight Time (EDT).
This meeting will occur via Zoom videoconference. Registration is not required. Interested parties are encouraged to join the meeting in an attendee status by Zoom Desktop Client, Mobile App, or Telephone to dial-in. Updated information is available on NCD's event page at
In the event of audio disruption or failure, attendees can follow the meeting by accessing the Communication Access Realtime Translation (CART) link provided. CART is text-only translation that occurs real time during the meeting and is not an exact transcript.
Following welcome remarks and introductions, the Executive Committee will provide their report; followed by a policy briefing on NCD's Impact of Extreme Weather Events on People with Disabilities report; break; Chairman's report; policy updates; a Progress Report process discussion; and public comment session on the impact of genetic editing and fetal medicine on the future of people with disabilities, before adjourning.
For the May 4 Council meeting, NCD will have an extended public comment period of one hour and requests comments from the public regarding the impact of genetic editing and fetal medicine on the future of people with disabilities. Additional information on specifics of the topic is available on NCD's event page at
Because of the virtual format, the Council will receive public comment by email or by video or audio over Zoom.
NCD now requires advanced registration to provide public comment during a Council meeting. Interested parties may register by sending an email to
NCD will call upon as many individuals who registered as possible as time permits. All individuals called on to make comments will be allotted three minutes to speak and then will be asked to stop. Due to time constraints, NCD makes no guarantee that those who register will be able to provide comments during the public comment session, however, all public comment submissions sent via email will be collected and provided to the Council at the conclusion of the meeting. While public comment can be submitted on any topic over email, comments during the meeting should be specific to genetic editing and fetal medicine, as the input is needed for an upcoming report. If commenters speak on another topic at the meeting, they will be asked to stop out of courtesy to those who came prepared to speak on the topic. If any time remains following the conclusion of the comments of those registered, NCD may call upon those who desire to make comments but did not register.
Nicholas Sabula, Public Affairs Specialist, NCD, 1331 F Street NW, Suite 850, Washington, DC 20004; 202-272-2004 (V), or
If you require additional accommodations, please notify Netterie Lewis by sending an email to
Due to last-minute confirmations or cancellations, NCD may substitute items without advance public notice.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation (NSF) announces the following meeting:
A virtual meeting link will be posted on the AC OPP website at:
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on April 11, 2023, it filed with the Postal Regulatory Commission a
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe EDGA Exchange, Inc. (the “Exchange” or “EDGA”) is filing with the Securities and Exchange Commission (“Commission”) a proposed rule change to Exchange Rule 13.8 to introduce a new data product to be known as the US Equity Short Volume & Trades Report. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange seeks to amend Rule 13.8 to revise paragraph 13.8(h) in order to introduce a new data product to be known as the US Equity Short Volume & Trades Report. A description of market data products offered by the Exchange is provided in Exchange Rule 13.8 and proposed Rule 13.8(h) provides that the US Equity Short Volume & Trades Report is a report that will contain both an end-of-day short volume report and an end-of-month report that provides a record of all short sale transactions for the month. The proposed US Equity Short Volume & Trades Report will incorporate the existing Short Volume Report
The end-of-day report (“EOD Report”) included within the US Equity Short Volume & Trades Report will be identical to the existing Short Volume Report published by the Exchange. The existing Short Volume Report summarizes certain equity trading activity on the Exchange, including
As discussed in the Exchange's previous filing to introduce the EOD Report,
The Exchange notes that the data fields included in the EOM Report are nearly identical to the fields included by NYSE in its Monthly Short Sales file, except that the Exchange will not include two fields that appear within the NYSE Monthly Short Sales file.
Both the EOD Report and EOM Report will be included in the cost of the US Equity Short Volume & Trades Report and will be available for purchase by both Members and non-Members on an annual or monthly subscription basis.
The Exchange anticipates that a wide variety of market participants will purchase the proposed US Equity Short Volume & Trades Report, including, but not limited to, active equity trading firms and academic institutions. For example, the Exchange notes that academic institutions may utilize the US Equity Short Volume & Trades Report data and as a result promote research and studies of the equities industry to the benefit of all market participants. The Exchange further believes the proposed US Equity Short Volume & Trades Report may provide helpful trading information regarding investor sentiment that may allow market participants to make more informed trading decisions and may be used to create and test trading models and analytical strategies and provide comprehensive insight into trading on the Exchange. The proposal is a completely voluntary product, in that the Exchange is not required by any rule or regulation to make this data available and that potential subscribers may purchase it only if they voluntarily choose to do so.
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In adopting Regulation NMS, the Commission granted self-regulatory organizations (“SROs”) and broker-dealers increased authority and flexibility to offer new and unique market data to the public. It was believed that this authority would expand the amount of data available to consumers, and also spur innovation and competition for the provision of market data. The Exchange believes that the proposed US Equity Short Volume & Trades Report would further broaden the availability of U.S. equity market data to investors consistent with the principles of Regulation NMS. The proposal also promotes increased transparency through the dissemination of short volume and short sale execution data. The proposed rule change would benefit investors by providing access to the US Equity Short Volume & Trades data, which may promote better informed trading, as well as research and studies of the equities industry.
Moreover, as noted above, both NYSE and Nasdaq offer data products that contain both a daily and monthly short sale file. These products provide data that is nearly identical to the offering proposed by the Exchange. The proposed EOD Report that will be offered as one component of the US Equity Short Volume & Trades Report is the Exchange's existing Short Volume Report, which is substantially similar to the NYSE and Nasdaq daily short volume product offerings. The proposed EOM Report that will be offered as the second component of the US Equity Short Volume & Trades Report will contain date, time, size, price, short sale type, market center, and symbol, which is nearly identical to the data fields found within the NYSE and Nasdaq monthly short volume reports.
The Exchange believes the proposed rule change does not impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. Rather, the Exchange believes that the proposal will promote fair competition among the national securities exchanges by permitting the Exchange to offer a data product that provides substantially the same data offered by competing equities exchanges. The Exchange's proposed US Equity Short Volume & Trades Report will contain both an EOD Report and an EOM Report, both of which are nearly identical to the competing NYSE and Nasdaq data product offerings, with the only difference being that the Exchange will not include a linked indicator field or short size field in its EOM Report.
Additionally, the Exchange believes the proposed rule change does not impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. The US Equity Short Volume & Trades Report will be available equally to Members and non-Members. Market participants are not required to purchase the US Equity Short Volume & Trades Report, and the Exchange is not required to make the US Equity Short Volume & Trades Report available to investors. Rather, the Exchange is voluntarily making the US Equity Short Volume & Trades Report available, as requested by customers, and market participants may choose to receive (and pay for) this data based on their own business needs. Potential purchasers may request the data at any time if they believe it to be valuable or may decline to purchase such data. Given the above, the Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) significantly affect
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative prior to 30 days after the date of the filing. However, pursuant to Rule 19b-4(f)(6)(iii),
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe BYX Exchange, Inc. (the “Exchange” or “BYX”) is filing with the Securities and Exchange Commission (“Commission”) a proposed rule change to Exchange Rule 11.22 to introduce a new data product to be known as the US Equity Short Volume & Trades Report. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the
The Exchange seeks to amend Rule 11.22 to revise paragraph 11.22(f) in order to introduce a new data product to be known as the US Equity Short Volume & Trades Report. A description of market data products offered by the Exchange is provided in Exchange Rule 11.22 and proposed Rule 11.22(f) provides that the US Equity Short Volume & Trades Report is a report that will contain both an end-of-day short volume report and an end-of-month report that provides a record of all short sale transactions for the month. The proposed US Equity Short Volume & Trades Report will incorporate the existing Short Volume Report
The end-of-day report (“EOD Report”) included within the US Equity Short Volume & Trades Report will be identical to the existing Short Volume Report published by the Exchange. The existing Short Volume Report summarizes certain equity trading activity on the Exchange, including trade date,
As discussed in the Exchange's previous filing to introduce the EOD Report,
The Exchange notes that the data fields included in the EOM Report are nearly identical to the fields included by NYSE in its Monthly Short Sales file, except that the Exchange will not include two fields that appear within the NYSE Monthly Short Sales file.
Both the EOD Report and EOM Report will be included in the cost of the US Equity Short Volume & Trades Report and will be available for purchase by both Members and non-Members on an annual or monthly subscription basis.
The Exchange anticipates that a wide variety of market participants will purchase the proposed US Equity Short Volume & Trades Report, including, but not limited to, active equity trading firms and academic institutions. For example, the Exchange notes that academic institutions may utilize the US Equity Short Volume & Trades Report data and as a result promote research and studies of the equities industry to the benefit of all market participants. The Exchange further believes the proposed US Equity Short Volume & Trades Report may provide helpful trading information regarding investor sentiment that may allow market participants to make more informed trading decisions and may be used to create and test trading models and analytical strategies and provide comprehensive insight into trading on the Exchange. The proposal is a completely voluntary product, in that the Exchange is not required by any rule or regulation to make this data available and that potential subscribers may purchase it only if they voluntarily choose to do so.
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In adopting Regulation NMS, the Commission granted self-regulatory organizations (“SROs”) and broker-dealers increased authority and flexibility to offer new and unique market data to the public. It was believed that this authority would expand the amount of data available to consumers, and also spur innovation and competition for the provision of market data. The Exchange believes that the proposed US Equity Short Volume & Trades Report would further broaden the availability of U.S. equity market data to investors consistent with the principles of Regulation NMS. The proposal also promotes increased transparency through the dissemination of short volume and short sale execution data. The proposed rule change would benefit investors by providing access to the US Equity Short Volume & Trades data, which may promote better informed trading, as well as research and studies of the equities industry.
Moreover, as noted above, both NYSE and Nasdaq offer data products that contain both a daily and monthly short sale file. These products provide data that is nearly identical to the offering proposed by the Exchange. The proposed EOD Report that will be offered as one component of the US Equity Short Volume & Trades Report is the Exchange's existing Short Volume Report, which is substantially similar to the NYSE and Nasdaq daily short volume product offerings. The proposed EOM Report that will be offered as the second component of the US Equity Short Volume & Trades Report will contain date, time, size, price, short sale type, market center, and symbol, which is nearly identical to the data fields found within the NYSE and Nasdaq monthly short volume reports.
The Exchange believe the proposed rule change does not impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. Rather, the Exchange believes that the proposal will promote fair competition among the national securities exchanges by permitting the Exchange to offer a data product that provides substantially the
Additionally, the Exchange believes the proposed rule change does not impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. The US Equity Short Volume & Trades Report will be available equally to Members and non-Members. Market participants are not required to purchase the US Equity Short Volume & Trades Report, and the Exchange is not required to make the US Equity Short Volume & Trades Report available to investors. Rather, the Exchange is voluntarily making the US Equity Short Volume & Trades Report available, as requested by customers, and market participants may choose to receive (and pay for) this data based on their own business needs. Potential purchasers may request the data at any time if they believe it to be valuable or may decline to purchase such data. Given the above, the Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
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) 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 the filing. However, pursuant to Rule 19b-4(f)(6)(iii),
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing a proposal to amend the MIAX Emerald Fee Schedule (the “Fee Schedule”) to amend fees for historical Open-Close Report to: (i) add a fee for ad hoc requests for end-of-day data and no longer provide such data free of charge; (ii) respond to requests for ad hoc intra-day data and adopt a new fee for such requests; and (iii) adopt academic discounts for requests for ad hoc historical end-of-day and intra-day Open-Close data.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange adopted a new data product for options known as the Open-Close Report,
By way of background, the Exchange offers two versions of the Open-Close Report, an end-of-day summary and intra-day report.
Members and non-Members may purchase the Open-Close Report on a monthly basis. The Exchange currently assess a monthly fee of $600 per month for subscribing to the end-of-day summary Open-Close Report and $2,000 per month for subscribing to the intra-day Open-Close Report. For mid-month subscriptions, new subscribers are currently charged for the full calendar month for which they subscribe and will be provided Open-Close Report data for each trading day of the calendar month from the day on which they subscribed and receive data for each trading day of the calendar month prior to the day on which they subscribe.
The Exchange currently provides Members and Non-Members who request on an ad hoc basis historical end-of-day Open-Close Report data free of charge. The Exchange initially proposed to provide such data for free because it only recently launched the Open-Close Report and had minimal amount of historical end-of-day data. The Exchange also wanted to support the introduction of the new product through such a pricing incentive to attract additional subscribers.
An ad hoc request may be for any number of months beginning with June 2021, the month in which the Exchange first made the Open-Close Report available. For example, a market participant may request end-of-day Open-Close Report data for the month of June 2021 or July 2021, or may request such data for both June and July 2021 and would not be currently charged a fee for such request(s). The Exchange notes that other exchanges that provide similar data products allow for ad hoc requests of their end-of-day data for a fee.
The Exchange currently makes the historical end-of-day Open-Close data available fifteen (15) days after the end of the month for which it is requested. The Exchange implemented this delay because historical end-of-day Open-Close Report data was free of charge and the Exchange sought to not encourage subscribers to request historical end-of-day Open-Close Report data over a paid subscription. Now that the Exchange proposes to charge a fee for historical end-of-day Open-Close Report data, it believes the fifteen (15) day delay in making the data available is no longer necessary and proposes to remove this language from its Fee Schedule.
The Exchange now proposes to provide Members and Non-Members who request on an ad hoc basis historical intra-day Open-Close Report data for a fee of $1,000 per request per month. When the Exchange proposed to provide for ad-hoc requests for end-of day data, it did not also propose to allow for ad hoc requests for intra-day Open-Close Report data.
As it currently specifies for historical end-of-day Open-Close data, an ad hoc request may be for any number of months beginning with June 2021, the month in which the Exchange first made the Open-Close Report available. Similarly, the Exchange will provide historical intra-day Open-Close data for the same time period. The Exchange notes that other exchanges that provide similar data products allow for ad hoc requests of their intra-day data for a fee.
The Exchange also proposes to adopt an academic discount for ad-hoc requests of historical months of these data sets. Specifically, the Exchange proposes to charge qualifying academic purchasers per request $1,500 per year for the first year (instead of $6,000 per year) and $125 per month thereafter for historical end-of-day Open-Close Report data covering all of the Exchange's securities. Further, the Exchange proposes to charge qualifying academic purchasers per request $3,000 per year for the first year (instead of $12,000 per year) and $250 per month thereafter for historical intra-day Open-Close Report data covering all of the Exchange's securities.
Particularly, the Exchange believes that academic institutions and researchers provide a valuable service for the Exchange in studying and promoting the options market. Though academic institutions and researchers have need for granular options data sets, they do not trade upon the data for which they subscribe. The Exchange believes the proposed reduced fee for qualifying academic purchasers of historical end-of-day Open-Close Report data and intra-day Open-Close Report data will encourage and promote academic studies of its market data by academic institutions. In order to qualify for the academic pricing, an academic purchaser must: (1) be an accredited academic institution or member of the faculty or staff of such an institution, and (2) use the data in independent academic research, academic journals and other publications, teaching and classroom use, or for other bona fide educational purposes (
The Exchange notes that competing exchanges currently offer academic discounts for similar data sets on those exchanges.
The Exchange intends to implement the proposed fee changes immediately.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
In adopting Regulation NMS, the Commission granted self-regulatory
The Exchange operates in a highly competitive environment. Indeed, there are currently 16 registered options exchanges that trade options. Based on publicly available information, for the month of March 2023, no single options exchange had more than approximately 13% of the equity options market share and the Exchange represented only approximately 3.27% of the equity options market share for the month of March 2023.
The Exchange believes its proposal to respond to requests and add fees for ad hoc requests for historical end-of-day and intra-day data and adopt academic discounts for such requests is reasonable as the proposed rates are similar to fees assessed by other exchanges that provide data in response to ad hoc request for their similar data products.
The Exchange also believes its proposal is reasonable as it would further support its offer of the Open-Close Report, which is designed to aid investors by providing insight into trading on the Exchange. Providing market data, such as the Open-Close Report, is also a means by which exchanges compete to attract business. Subscribers that receive end-of-day Open-Close data, and now intra-day Open-Close data as a result of this proposal, in response to an ad hoc request may use such data to evaluate the usefulness of the Exchange's Open-Close Report and decide, based on that data, whether to subscribe to the Open-Close Report on a monthly basis. To the extent that the Exchange is successful in attracting subscribers for the Open-Close Report through this proposal, it may earn trading revenues and further enhance the value of its data products. If the market deems the proposal to be unfair or inequitable, firms can diminish or discontinue their use of the data and/or avail themselves of similar products offered by other exchanges.
The Exchange believes its proposal is equitably allocated because a wide variety of market participants may choose to request historical Open-Close Report intra-day or end-of-day data, including but not limited to individual customers, buy-side investors and investment banks, all of which will be charged the same rates for the monthly data requests depending on the type of request (
The Exchange believes it is reasonable to remove the mandatory fifteen (15) day waiting period in order to receive historical ad hoc end-of-day Open-Close data because the Exchange initially implemented this delay because it made historical end-of-day Open-Close Report data free and sought to not encourage subscribers to request historical end-of-day Open-Close Report data over a paid subscription. Now that the Exchange proposes to charge a fee for historical end-of-day Open-Close Report data and because no other options exchange imposes similar delay requirements for the same data, the Exchange believes the fifteen (15) day waiting period is no longer necessary and is reasonable to remove this language from the Fee Schedule.
The Exchange believes that the discount for qualifying academic purchasers of the ad hoc historical end-of-day Open-Close and intra-day Open-Close Report data is reasonable because academic users are not able to monetize access to the data as they do not trade on the data set. The Exchange believes the proposed discount will allow for more academic institutions and faculty members to purchase historical end-of-day Open-Close and intra-day Open-Close Report data, and, as a result, promote research and studies of the options industry to the benefit of all market participants. The Exchange believes that the proposed discount is equitable and not unfairly discriminatory because it will apply equally to all academic users that submit applications and meet the accredited academic institution or faculty member and academic use criteria. As stated above, qualified academic users will subscribe to the data set for educational use and purposes and are not permitted to use the data for commercial or monetizing purposes, nor can qualify if they are funded by an industry participant. As a result, the Exchange believes the proposed discount is equitable and not unfairly discriminatory because it maintains equal treatment for all industry participants or other subscribers that use the data for vocational, commercial or other for-profit purposes.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Rather, the Exchange believes that the proposal will promote competition by permitting the Exchange to enhance the value of a data product that is similar to those offered by other competitor options exchanges.
Furthermore, the Exchange operates in a highly competitive environment, and its ability to price ad hoc requests for end-of-day and intra-day Open-Close Report data is constrained by competition among exchanges that offer similar fees for similar ad hoc requests for end-of-day and intra-day Open-Close report data to their customers. The Exchange notes that there are currently a number of similar products available to market participants and investors. At least eight other U.S. options exchanges offer similar fees for ad hoc requests for end-of-day and intra-day Open-Close report data that is substantially similar to the fees for ad hoc requests for end-of-day and intra-day Open-Close Report data proposed in this filing, which the Exchange must consider in its pricing discipline in order to compete for the market data.
The Exchange also does not believe the proposal would cause any unnecessary or inappropriate burden on intermarket competition as other exchanges are free to introduce their own comparable data product and lower their prices for ad hoc historical requests to better compete with the Exchange's offering. The Exchange does not believe the proposed rule change would cause any unnecessary or inappropriate burden on intramarket competition. Particularly, the proposal would apply uniformly to any market participant, in that it does not differentiate between requests for ad hoc historical Open-Close Report data, other than for qualifying academic users. The proposal allows any interested Member or non-Member to request on an ad hoc basis historical end-of-day or intra-day Open-Close Report databased on their business needs.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email 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 the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing a proposal to amend the MIAX Fee Schedule (“Fee Schedule”) to amend fees for historical Open-Close Report to: (i) add a fee for ad hoc requests for end-of-day data and no longer provide such data free of charge; (ii) respond to requests for ad hoc intra-day data and adopt a new fee for such requests; and (iii) adopt academic discounts for requests for ad hoc historical end-of-day and intra-day Open-Close data.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange adopted a new data product for options known as the Open-Close Report,
By way of background, the Exchange offers two versions of the Open-Close
Members and non-Members may purchase the Open-Close Report on a monthly basis. The Exchange currently assess a monthly fee of $600 per month for subscribing to the end-of-day summary Open-Close Report and $2,000 per month for subscribing to the intra-day Open-Close Report. For mid-month subscriptions, new subscribers are currently charged for the full calendar month for which they subscribe and will be provided Open-Close Report data for each trading day of the calendar month from the day on which they subscribed and receive data for each trading day of the calendar month prior to the day on which they subscribe.
The Exchange currently provides Members and Non-Members who request on an ad hoc basis historical end-of-day Open-Close Report data free of charge. The Exchange initially proposed to provide such data for free because it only recently launched the Open-Close Report and had minimal amount of historical end-of-day data. The Exchange also wanted to support the introduction of the new product through such a pricing incentive to attract additional subscribers.
An ad hoc request may be for any number of months beginning with June 2021, the month in which the Exchange first made the Open-Close Report available. For example, a market participant may request end-of-day Open-Close Report data for the month of June 2021 or July 2021, or may request such data for both June and July 2021 and would not be currently charged a fee for such request(s). The Exchange notes that other exchanges that provide similar data products allow for ad hoc requests of their end-of-day data for a fee.
The Exchange currently makes the historical end-of-day Open-Close data available fifteen (15) days after the end of the month for which it is requested. The Exchange implemented this delay because historical end-of-day Open-Close Report data was free of charge and the Exchange sought to not encourage subscribers to request historical end-of-day Open-Close Report data over a paid subscription. Now that the Exchange proposes to charge a fee for historical end-of-day Open-Close Report data, it believes the fifteen (15) day delay in making the data available is no longer necessary and proposes to remove this language from its Fee Schedule.
The Exchange now proposes to provide Members and Non-Members who request on an ad hoc basis historical intra-day Open-Close Report data for a fee of $1,000 per request per month. When the Exchange proposed to provide for ad-hoc requests for end-of day data, it did not also propose to allow for ad hoc requests for intra-day Open-Close Report data.
As it currently specifies for historical end-of-day Open-Close data, an ad hoc request may be for any number of months beginning with June 2021, the month in which the Exchange first made the Open-Close Report available. Similarly, the Exchange will provide historical intra-day Open-Close data for the same time period. The Exchange notes that other exchanges that provide similar data products allow for ad hoc requests of their intra-day data for a fee.
The Exchange also proposes to adopt an academic discount for ad-hoc requests of historical months of these data sets. Specifically, the Exchange proposes to charge qualifying academic purchasers per request $1,500 per year for the first year (instead of $6,000 per year) and $125 per month thereafter for historical end-of-day Open-Close Report data covering all of the Exchange's securities. Further, the Exchange proposes to charge qualifying academic purchasers per request $3,000 per year for the first year (instead of $12,000 per year) and $250 per month thereafter for historical intra-day Open-Close Report data covering all of the Exchange's securities.
Particularly, the Exchange believes that academic institutions and researchers provide a valuable service for the Exchange in studying and promoting the options market. Though academic institutions and researchers have need for granular options data sets, they do not trade upon the data for which they subscribe. The Exchange believes the proposed reduced fee for qualifying academic purchasers of historical end-of-day Open-Close Report data and intra-day Open-Close Report data will encourage and promote academic studies of its market data by academic institutions. In order to qualify for the academic pricing, an
The Exchange notes that competing exchanges currently offer academic discounts for similar data sets on those exchanges.
The Exchange intends to implement the proposed fee changes immediately.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
In adopting Regulation NMS, the Commission granted self-regulatory organizations (“SROs”) and broker-dealers increased authority and flexibility to offer new and unique market data to the public. It was believed that this authority would expand the amount of data available to consumers, and also spur innovation and competition for the provision of market data. Particularly, the Open-Close Report further broadens the availability of U.S. option market data to investors consistent with the principles of Regulation NMS. The data product also promotes increased transparency through the dissemination of the Open-Close Report. Particularly, information regarding opening and closing activity across different option series during the trading day may indicate investor sentiment, which may allow market participants to make better informed trading decisions throughout the day. Subscribers to the data may also be able to enhance their ability to analyze option trade and volume data and create and test trading models and analytical strategies. The Exchange believes the Open-Close Report provides a valuable tool that subscribers can use to gain comprehensive insight into the trading activity in a particular series, but also emphasizes such data is not necessary for trading and completely optional. Moreover, other exchanges offer a similar data product.
The Exchange operates in a highly competitive environment. Indeed, there are currently 16 registered options exchanges that trade options. Based on publicly available information, for the month of March 2023, no single options exchange had more than approximately 13% of the equity options market share and the Exchange represented only approximately 6.72% of the equity options market share for the month of March 2023.
The Exchange believes its proposal to respond to requests and add fees for ad hoc requests for historical end-of-day and intra-day data and adopt academic discounts for such requests is reasonable as the proposed rates are similar to fees assessed by other exchanges that provide data in response to ad hoc request for their similar data products.
The Exchange also believes its proposal is reasonable as it would further support its offer of the Open-Close Report, which is designed to aid investors by providing insight into trading on the Exchange. Providing market data, such as the Open-Close Report, is also a means by which exchanges compete to attract business. Subscribers that receive end-of-day Open-Close data, and now intra-day Open-Close data as a result of this proposal, in response to an ad hoc request may use such data to evaluate the usefulness of the Exchange's Open-Close Report and decide, based on that data, whether to subscribe to the Open-Close Report on a monthly basis. To the extent that the Exchange is successful in attracting subscribers for the Open-Close Report through this proposal, it may earn trading revenues and further enhance the value of its data products. If the market deems the proposal to be unfair or inequitable, firms can diminish or discontinue their use of the data and/or avail themselves of similar products offered by other exchanges.
The Exchange believes its proposal is equitably allocated because a wide variety of market participants may choose to request historical Open-Close Report intra-day or end-of-day data, including but not limited to individual customers, buy-side investors and investment banks, all of which will be charged the same rates for the monthly data requests depending on the type of request (
The Exchange believes it is reasonable to remove the mandatory fifteen (15) day waiting period in order to receive historical ad hoc end-of-day Open-Close data because the Exchange initially implemented this delay because it made historical end-of-day Open-Close Report data free and sought to not encourage subscribers to request historical end-of-day Open-Close Report data over a paid subscription. Now that the Exchange proposes to charge a fee for historical end-of-day Open-Close Report data and because no other options exchange imposes similar delay requirements for the same data, the Exchange believes the fifteen (15) day waiting period is no longer necessary and is reasonable to remove this language from the Fee Schedule.
The Exchange believes that the discount for qualifying academic purchasers of the ad hoc historical end-of-day Open-Close and intra-day Open-Close Report data is reasonable because academic users are not able to monetize access to the data as they do not trade on the data set. The Exchange believes the proposed discount will allow for more academic institutions and faculty members to purchase historical end-of-day Open-Close and intra-day Open-Close Report data, and, as a result, promote research and studies of the options industry to the benefit of all market participants. The Exchange believes that the proposed discount is equitable and not unfairly discriminatory because it will apply equally to all academic users that submit applications and meet the accredited academic institution or faculty member and academic use criteria. As stated above, qualified academic users will subscribe to the data set for educational use and purposes and are not permitted to use the data for commercial or monetizing purposes, nor can qualify if they are funded by an industry participant. As a result, the Exchange believes the proposed discount is equitable and not unfairly discriminatory because it maintains equal treatment for all industry participants or other subscribers that use the data for vocational, commercial or other for-profit purposes.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Rather, the Exchange believes that the proposal will promote competition by permitting the Exchange to enhance the value of a data product that is similar to those offered by other competitor options exchanges.
Furthermore, the Exchange operates in a highly competitive environment, and its ability to price ad hoc requests for end-of-day and intra-day Open-Close Report data is constrained by competition among exchanges that offer similar fees for similar ad hoc requests for end-of-day and intra-day Open-Close report data to their customers. The Exchange notes that there are currently a number of similar products available to market participants and investors. At least eight other U.S. options exchanges offer similar fees for ad hoc requests for end-of-day and intra-day Open-Close report data that is substantially similar to the fees for ad hoc requests for end-of-day and intra-day Open-Close Report data proposed in this filing, which the Exchange must consider in its pricing discipline in order to compete for the market data.
The Exchange also does not believe the proposal would cause any unnecessary or inappropriate burden on intermarket competition as other exchanges are free to introduce their own comparable data product and lower their prices for ad hoc historical requests to better compete with the Exchange's offering. The Exchange does not believe the proposed rule change would cause any unnecessary or inappropriate burden on intramarket competition. Particularly, the proposal would apply uniformly to any market participant, in that it does not differentiate between requests for ad hoc historical Open-Close Report data, other than for qualifying academic users. The proposal allows any interested Member or non-Member to request on an ad hoc basis historical end-of-day or intra-day Open-Close Report databased on their business needs.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email 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)
The Exchange proposes to modify Rule 900.2NY (Definitions) and to adopt new Rules 964NYP (Order Ranking, Display, and Allocation), 964.1NYP (Directed Orders and DOMM Quoting Obligations), and 964.2NYP (Participation Entitlement of Specialist Pool and Designation of Primary Specialist) to reflect the transition of the Exchange's options market to the Pillar trading platform. 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 plans to transition its options trading platform to its Pillar trading platform. The Exchange's affiliated options exchange, NYSE Arca, Inc. (“NYSE Arca” or “Arca Options”) is currently operating on Pillar, as are the Exchange's national securities exchange affiliates' cash equity markets.
The Exchange plans to roll out the new Pillar technology platform over a period of time based on a range of underlying symbols beginning on October 23, 2023.
Instead, the Exchange proposes new rules to reflect how options would trade on the Exchange once Pillar is implemented. These proposed rule changes will (1) use Pillar terminology that is identical to Pillar terminology governing options trading on NYSE Arca, except as otherwise noted; (2) provide for common functionality on both its options markets; and (3) reflect the Exchange's existing Customer priority and pro rata allocation model, with any differences noted herein.
As proposed, new rules governing options trading on Pillar would have the same numbering as current rules that address the same functionality, but with the modifier “P” appended to the rule number. For example, Rule 964NY, governing Display, Priority and Order Allocation—Trading Systems, would remain unchanged and continue to apply to any trading in symbols on the Exchange System. Proposed Rule 964NYP would govern Order, Ranking, Display, and Allocation for trading in options symbols migrated to the Pillar trading platform. All other current rules that have not had a version added with a “P” modifier will be applicable to how trading functions on both the Exchange System and Pillar. Once options overlying all symbols have migrated to the Pillar trading platform, the Exchange will file a separate rule proposal to delete rules that are no longer operative because they apply only to trading on the Exchange System.
To reflect how the “P” modifier would operate, the Exchange proposes to add rule text immediately following the title “Section 900NY. Rules Principally Applicable to Trading of Option Contracts,” and before “Rule 900.1NY. Applicability”), which would provide that rules with a “P” modifier would be operative for symbols that are trading on the Pillar trading platform. As further proposed, and consistent with the handling of the transition to Pillar by Arca Options, if a symbol (and the option overlying such symbol) is trading on the Pillar trading platform, a rule with the same number as a rule with a “P” modifier would no longer be operative for that symbol.
The Exchange will not implement the “P” rules proposed herein until all other Pillar-related rule filings (
In this filing, the Exchange proposes the following new Pillar rules: Rules 964NYP (Order Ranking, Display, and Allocation), 964.1NYP (Directed Orders and DOMM Quoting Obligations), and 964.2NYP (Participation Entitlement of Specialist Pool and Designation of Primary Specialist).
To promote clarity and transparency, the Exchange further proposes to add a preamble to the following current rules specifying that they would not be applicable to trading on Pillar: Rules 964NY (Display, Priority and Order Allocation—Trading Systems), and 964.1NY (Directed Orders), and 964.2NY (Participation Entitlement of Specialists and e-Specialists).
Rule 900.2NY sets forth definitions that are applicable to options trading. In connection with the transition of options trading to Pillar, the Exchange proposes the following amendments to Rule 900.2NY. As described in detail below, the proposed new definitions are identical to how the same terms are defined in NYSE Arca Rule 1.1, except that the proposed terms relate solely to options trading.
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In addition, also identical to NYSE Arca Rule 1.1 with respect to options trading, the Exchange proposes that it would adjust its calculation of the ABBO for options traded on the Exchange in the same manner that the Exchange would calculate the NBBO (as described herein). Accordingly, the Exchange proposes that, unless otherwise specified, the Exchange may adjust its calculation of the ABBO based on information about orders it sends to Away Markets, execution reports received from those Away Markets, and certain orders received by the Exchange.
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Rule 964NY, titled “Display, Priority and Order Allocation—Trading Systems,” governs order ranking, display and allocation for options trading on the current Exchange System. Proposed Rule 964NYP would address order ranking, display, and allocation for options trading on Pillar. The Exchange proposes that the title for new Rule 964NYP would be “Order Ranking, Display and Allocation” instead of “Display, Priority and Order Allocation—Trading Systems,” because the Exchange does not propose to use the term “Trading Systems,” which term is not defined in current Exchange rules, in connection with Pillar.
Current Rule 964NY sets forth the priority for the allocation of incoming orders to resting interest (orders or quotes) at a particular price in the Exchange System.
On Pillar, orders and quotes will be ranked and maintained in the same way that such interest is ranked and maintained on the Exchange System, including participation guarantees to DOMMs or the Specialist Pool, with one difference. Today, same-priced displayed orders and quotes are be ranked ahead of same-priced non-displayed orders and quotes, with displayed Customer orders afforded first priority to trade ahead of same-priced non-Customer interest and, non-displayed interest, orders and quotes are ranked in time priority with no priority afforded to Customer interest.
On Pillar, the Exchange is adopting the same priority categories as are utilized by Arca Options,
Proposed Rule 964NYP(a) would set forth definitions for purposes of all “Options Trading” on the Pillar trading platform. Each of the proposed definitions are identical to definitions utilized on Arca Options to describe order ranking and display.
• Proposed Rule 964NYP(a)(1) would define the term “display price” to mean the price at which an order or quote ranked “Priority 2—Display Orders”
• Proposed Rule 964NYP(a)(2) would define the term “limit price” to mean the highest (lowest) specified price at which a Limit Order or quote to buy (sell) is eligible to trade. The limit price is designated by the order sender. As noted in the proposed definitions of display price and working price, the limit price designated by the order sender may differ from the price at which the order/quote would be displayed or eligible to trade. This proposed definition is identical to Arca Options Rule 6.76P-O(a)(2).
• Proposed Rule 964NYP(a)(3) would define the term “working price” to mean the price at which an order or quote is eligible to trade at any given time, which may be different from the limit price or display price of an order. This proposed definition is identical to Arca Options Rule 6.76P-O(a)(3). The Exchange believes that the term “working price” would provide clarity regarding the price at which an order/quote may be executed at any given time. Specifically, the Exchange believes that use of the term “working” denotes that this is a price that is subject to change, depending on the circumstances. The Exchange will be using this term in connection with orders/quotes and modifiers available on Pillar, which (as noted herein) will be the subject of a separate rule filing.
• Proposed Rule 964NYP(a)(4) would define the term “working time” to mean the effective time sequence assigned to an order or quote for purposes of determining its priority ranking. The Exchange proposes to use the term “working time” in its rules for trading on the Pillar trading platform instead of terms such as “time sequence” or “time priority,” which are used in rules governing options trading on the Exchange's current system. The Exchange believes that use of the term “working” denotes that this is a time assigned to an order/quote for purposes of ranking and is subject to change, depending on circumstances. This proposed definition is identical to Arca Options Rule 6.76P-O(a)(4).
• Proposed Rule 964NYP(a)(5) would be identical to Arca Options Rule 6.76P-O(a)(5) and would define an “Aggressing Order” or “Aggressing Quote” to mean a buy (sell) order or quote that is or becomes marketable against sell (buy) interest on the Consolidated Book. The proposed terms would therefore refer to orders or quotes that are marketable against other orders or quotes on the Consolidated Book. These terms would be applicable to incoming orders or quotes, orders that have returned unexecuted after routing, or resting orders or quotes that become marketable due to one or more events. For the most part, resting orders or quotes will have already traded with contra-side interest against which they are marketable.
To maximize the potential for orders or quotes to trade, the Exchange continually evaluates whether resting interest may become marketable. Events that could trigger a resting order to become marketable include updates to the working price of such order or quote, updates to the NBBO, changes to other interest resting on the Consolidated Book, or processing of inbound messages. To address such circumstances and identical to Arca Options Rule 6.76P-O(a)(5), the Exchange proposes to include in proposed Rule 964NYP(a)(5) that a resting order or quote may become an Aggressing Order or Aggressing Quote if its working price changes, if the NBBO is updated, because of changes to other orders or quotes on the Consolidated Book, or when processing inbound messages. The Exchange believes that these proposed definitions would promote transparency in Exchange rules by providing detail regarding circumstances when a resting order or quote may become marketable, and thus would become an Aggressing Order or Aggressing Quote.
Under current Rule 964NY(a), the Exchange System displays all non-marketable limit orders in the Display Order Process, unless indicated otherwise.
Proposed Rule 964NYP(b)(1) would provide that the Exchange would “disseminate current consolidated quotations/last sale information, and such other market information as may be made available from time to time pursuant to agreement between the Exchange and other Trading Centers, consistent with the Plan for Reporting of Consolidated Options Last Sale Reports and Quotation Information.” This proposed Rule mirrors the second sentence of current Rule 964NY(a), except that the proposed Rule refers to the “Exchange” rather than the “System” and uses the term “Trading Centers” instead of “Market Centers.”
Finally, proposed Rule 964NYP(b)(2) is identical to Arca Options Rule 6.76P-O(b)(3) and would provide that if “an Away Market locks or crosses the Exchange BBO, the Exchange will not change the display price of any Limit Orders or quotes ranked Priority 2—Display Orders and any such orders will be eligible to be displayed as the Exchange's BBO.” This proposed rule describes Pillar functionality, which is the same as current functionality not described in the rule. The Exchange believes that including this text in the proposed rules would promote clarity and granularity because this proposed concept makes clear that resting displayed interest that did not cause a locked or crossed market condition can stand its ground and maintain priority at the price at which it was originally displayed.
Proposed Rule 964NYP(c) would describe the Exchange's general process for ranking orders and quotes. Current Rule 964NY(b) describes Customer priority,
As proposed, Rule 964NYP(c), which is identical to Arca Options Rule 6.76P-O(c), would provide that all non-marketable orders and quotes would be ranked and maintained in the Consolidated Book according to price-time priority in the following manner: (1) price; (2) priority category; (3) time; and (4) ranking restrictions applicable to an order/quote or modifier condition. Accordingly, orders and quotes would be first ranked by price. Next, at each price level, orders and quotes would be assigned a Pillar Priority category and, within each priority category, interest would be ranked by time. The general requirements for ranking per proposed Rule 964NYP(c) are applicable to all orders and quotes, unless an order or quote or modifier has a specified exception to this ranking methodology (per proposed paragraph (g) as described below).
Proposed Rule 964NYP(d), which is identical to Arca Options Rule 6.76P-O(d), would describe how orders and quotes would be ranked based on price, which additional detail would provide transparency regarding the Exchange's price-ranking process. Specifically, as proposed, all orders and quotes would be ranked based on the working price of an order or quote. Orders and quotes to buy would be ranked from highest working price to lowest working price and orders and quotes to sell would be ranked from lowest working price to highest working price. The proposed rule would further provide that if the working price of an order or quote changes, the price priority of an order or quote would change. This proposed pricing priority is current functionality (not included in the rule), but the new rule, which is identical to Arca Options Rule 6.76P-O(d), would add detail regarding the concept of “working price” and its impact on priority.
Proposed Rule 964NYP(e) would describe the proposed Pillar Priority categories for ranking purposes, which added detail and terminology would be new for the Exchange but would be based on Pillar terminology as used in Arca Options rules. As proposed, at each price, all orders and quotes would be assigned a priority category and, within each priority category, Customer orders would be ranked ahead of non-Customer. If, at a price, there are no remaining orders or quotes in a priority category, then same-priced interest in the next priority category would have priority. Proposed Rule 964NYP(e) is based on Arca Options Rule 6.76P-O(e), except that the Exchange's rule specifies its distinct Customer priority model, which affords Customer orders in each Pillar Priority category first priority at a price (over same-price non-Customer interest), which differs from the price-time model on Arca Options.
The proposed Pillar Priority categories would be:
• Proposed Rule 964NYP(e)(1) would be identical to Arca Options Rule 6.76P-O(e)(1) and would specify “Priority 1—Market Orders,” which provides that unexecuted Market Orders would have priority over all other same-side orders with the same working price. For example, a Market Order subject to a Trading Collar would be displayed on the Consolidated Book. In such circumstances, the displayed Market Order would have priority over all other resting orders at that price. The Exchange believes that the proposed rule change would add transparency and specificity to Exchange rules.
• Proposed Rule 964NYP(e)(2) would be identical to Arca Options Rule 6.76P-O(e)(2) and would specify “Priority 2—Display Orders.” As proposed, non-marketable Limit Orders or quotes with a displayed working price would have second priority. For an order or quote that has a display price that differs from the working price of the order or quote, the order or quote would be ranked Priority 3—Non-Display Orders at the working price.
• Proposed Rule 964NYP(e)(3) would be identical to Arca Options Rule 6.76P-O(e)(3) and would specify “Priority 3—Non-Display Orders.” As proposed, non-marketable Limit Orders or quotes for which the working price is not displayed, including reserve interest of Reserve Orders, have third priority. This proposed rule is consistent with current functionality as described in current Rule 964NY(b)(2)(E), which affords last priority to orders that are not displayed (except, as noted herein, non-displayed Customer orders are ranked ahead of non-Customer orders in this category). The Exchange believes that the proposed rule would add transparency and specificity to Exchange rules.
Proposed Rule 964NYP(f) is identical to Arca Options Rule 6.76P-O(f) and would set forth that at each price level within each priority category, orders and quotes would be ranked based on time priority. The proposed changes set forth below are consistent with current functionality and would add detail not included in existing Rule 964NY.
• Proposed Rule 964NYP(f)(1) would be identical to Arca Options Rule 6.76P-O(f)(1) and would provide that an order or quote would be assigned a working time when it is first added to the Consolidated Book based on the time such order or quote is received by the Exchange. This proposed process of assigning a working time to orders is current functionality, although not specified in current Rule 964NY. To provide transparency in Exchange rules, the Exchange further proposes to copy Arca Options Rule 6.76P-O(f)(1) by including in proposed Rule 964NYP(f)(1) how the working time would be determined for orders that are routed, which is consistent with current options trading functionality. As proposed:
○ Proposed Rule 964NYP(f)(1)(A) would be identical to Arca Options Rule 6.76P-O(f)(1)(A) and would specify that an order that is fully routed to an Away Market on arrival, per proposed Rule 964NYP(k)(1) (described below), would not be assigned a working time unless and until any unexecuted portion of the order returns to the Consolidated Book. The Exchange notes that this is the current process for assigning a working time to an order, although not described in current Rule 964NY. This proposed rule is also consistent with current Rule 964NY(c)(2)(E), which provides that when an order or portion of an order has been routed away and is not executed either in whole or in part at the other Market Center, it will be ranked and displayed in the Consolidated Book in accordance with the terms of the order.
○ Proposed Rule 964NYP(f)(1)(B) would be identical to Arca Options Rule 6.76P-O(f)(1)(B) and would specify that for an order that, on arrival, is partially routed to an Away Market, the portion that is not routed would be assigned a working time. If any unexecuted portion of the order returns to the Consolidated Book and joins any remaining resting portion of the original order, the returned portion of the order would be assigned the same working time as the resting portion of the order. If the resting portion of the original order has already executed and any unexecuted portion of the order returns to the Consolidated Book, the returned portion of the order would be assigned a new working time. This process for assigning a working time to routed orders that return to the Exchange is the same as currently used on the Exchange.
• Proposed Rule 964NYP(f)(2) would be identical to Arca Options Rule 6.76P-O(f)(2) and would provide that an order or quote would be assigned a new working time if: (A) the display price of an order or quote changes, even if the working price does not change, or (B) the working price of an order or quote changes, unless the working price is adjusted to be the same as the display price of an order or quote. This proposed text would be new, and the Exchange believes that adjusting the working time any time the display price of an order or quote changes, would respect the priority of orders/quotes that were previously displayed at the price to which the display price is changing. In addition, the Exchange believes it is appropriate to adjust the working time of an order or quote any time its working price changes, unless the display price does not change. In addition to being identical to Arca Options Rule 6.76P-O(f)(2), this proposed order handling in Exchange rules is consistent with the rules of other options exchanges.
• Proposed Rule 964NYP(f)(3), which is identical to Arca Options Rule 6.76P-O(f)(3), would provide that an order or quote would be assigned a new working time if the size of an order or quote increases and that an order or quote retains its working time if the size of the order or quote is decreased. This proposed detail about the process for assigning (or not) a new working time when the size of an order changes is not described in the current Rule 964NY but is consistent with existing functionality for how orders (but not quotes) are processed on the Exchange System.
Proposed Rule 964NYP(g) is identical to Arca Options Rule 6.76P-O(g) and would specify that the Exchange would apply ranking restrictions applicable to specific order, quote or modifier instructions as provided for in Rule 900.3NYP.
Proposed Rule 964NYP(h), “Allocation of Resting Interest: Participation Entitlements and Pro Rata Pool,” describes the Exchange's participation entitlements and participants constituting the Size Pro Rata Pool. Unless otherwise specified, proposed Rule 964NYP(h) reflects current functionality for allocating non-Customer interest, including participation guarantees, and the “Size Pro Rata Pool” as set forth in Rules 964NY(b)(2)(B), (C) and (D) as well as Rules 964.1NY and 964.2NY.
Proposed Rule 964NYP(h)(1) is consistent with current functionality (with one new feature described below) and would provide that when the execution price is the NBBO, a DOMM may be entitled to guaranteed participation for its quote(s) to be matched against the balance of a Directed Order (the “DOMM Guarantee”).
• Proposed Rule 964NYP(h)(1)(A) is the same as current functionality and would provide that a DOMM will be allocated a number of contracts equal to the greater of the DOMM Guarantee or their “size pro rata” allocation as provided in this Rule 964NYP(i) (described below), but in either case, no greater than the DOMM's disseminated size.
○ Proposed Rule 964NYP(h)(1)(A)(i) would provide that if the result of applying the DOMM Guarantee is a fractional allocation of contracts, the DOMM Guarantee would be rounded down to the nearest contract. Further this proposed Rule would provide that if the result of applying the DOMM Guarantee results in less than one contract, the DOMM Guarantee will be equal to one contract. The Exchange believes that including this additional detail (which is the same as current functionality not codified in current rule) in the proposed rule would add transparency to Exchange rules. This methodology is also consistent with Arca Options Rule 6.76AP-O(a)(1)(C) regarding the analogous Lead Market Maker participation guarantee.
○ Proposed Rule 964NYP(h)(1)(A)(ii) would provide that if a DOMM has more than one eligible quote, each quote will receive a pro rata share of the DOMM Guarantee, which text would add granularity and transparency to Exchange rules. This text would be new and reflects that on Pillar, the Exchange would permit multiple quotes from the same DOMM at the same price and that each eligible quote would be entitled to a pro rata share of the DOMM Guarantee consistent with the Exchange's allocation model.
○ Proposed Rule 964NYP(h)(1)(B) would provide that for all Directed Orders of five (5) contracts or fewer, if the DOMM is also the Primary Specialist (as determined per proposed Rule 964.2NYP(b)), such DOMM will be allocated the balance of the Directed Order after any allocation to Customers, not to exceed the DOMM's disseminated size or, if the DOMM has more than one eligible quote, each quote will receive a pro rata share. This proposed functionality would be new but is consistent with the guaranteed participation entitlement afforded to Primary Specialists in the Specialist Pool.
Proposed Rule 964NYP(h)(2) is the same as current functionality and would provide that when the execution price is the NBBO, participants in the Specialist Pool may be entitled to guaranteed participation of their quote(s) to be matched against the balance of an Aggressing Order or Aggressing Quote (the “Specialist Pool Guarantee”).
• Proposed Rule 964NYP(h)(2)(A) is the same as current functionality and would provide that the Specialist Pool would be allocated a number of contracts equal to the greater of their share in the Specialist Pool Guarantee or their “size pro rata” allocation as provided in proposed Rule 964NYP(i), but in either case, no greater than the Specialist's Pool disseminated size.
○ Proposed Rule 964NYP(h)(2)(A)(i) would provide that if the result of applying the Specialist Pool Guarantee is a fractional allocation of contracts, the Specialist Pool Guarantee is rounded down to the nearest contract. Further, this proposed Rule would provide that if the result of applying the Specialist Pool Guarantee results in less than one contract, the Specialist Pool Guarantee would be equal to one contract. The Exchange believes that including this additional detail (which is the same as current functionality not codified in current rule) in the proposed rule would add transparency to Exchange rules. This methodology is also consistent with Arca Options Rule 6.76AP-O(a)(1)(C) regarding the analogous Lead Market Maker participation guarantee.
○ Proposed Rule 964NYP(h)(2)(A)(ii) is the same as current functionality and would provide that the size pro rata participation for the Primary Specialist (as determined per proposed Rule 964.2NYP(b)) in the Specialist Pool will receive additional weighting, as determined by the Exchange, and announced by Trader Update (the “Additional Weighting”).
○ Proposed Rule 964NYP(h)(2)(A)(iii) is the same as current functionality and would provide that each Specialist or e-Specialist in the Specialist Pool will be allocated a number of contracts equal to the greater of their share in the Specialist Pool Guarantee or their “size pro rata” allocation as provided in proposed Rule 964NYP(i), but in either
Proposed Rule 964NYP(h)(2)(A)(iii)(a) is the same as current functionality and would provide that if there is only one Specialist or e-Specialist in Specialist Pool, that Specialist or e-Specialist would be allocated a number of contracts equal to the greater of their share in the Specialist Pool Guarantee (
○ Proposed Rule 964NYP(h)(2)(A)(iv) would be new text and would provide that if a Specialist has more than one eligible quote in the Specialist Pool, each such quote will receive a pro rata share of the Specialist Pool Guarantee, no greater than the size of their disseminated size. This would be new text to address the fact that (as noted above), on Pillar, Specialists will have the ability to submit more than one quote in a series at the same time.
Proposed Rule 964NYP(h)(2)(A)(iv)(a) is new text and would provide that if the Primary Specialist has more than one eligible quote, each quote will receive Additional Weighting on its pro rata share of the Specialist Pool Guarantee. This would be new text to address the fact that (as noted above), on Pillar, Specialists will have the ability to submit more than one quote in a series at the same time
• Proposed Rule 964NYP(h)(2)(B) is the same as current functionality and would provide that for all Aggressing Orders or Aggressing Quotes of five (5) contracts or fewer, the Primary Specialist (as determined per proposed Rule 964.2NYP(b)) would be allocated the balance of the Aggressing Order or Aggressing Quote after any allocation to Customers, not to exceed the Primary Specialist's disseminated size, or, if the Primary Specialist has more than one eligible quote, each quote will receive a pro rata share.
Proposed Rule 964NYP(h)(3) is the same as current Rule 964NY(b)(2)(D) and would describe interest that is included in the “Size Pro Rata Pool.” As proposed, if there are multiple orders and quotes of non-Customers (including Professional Customers) that are displayed in the Consolidated Book at the same price, then such orders and quotes will be afforded priority on a “size pro rata” basis and will comprise the “Size Pro Rata Pool.”
Proposed Rule 964NYP(i) is the same as current functionality and would set forth the pro rata formula and example of its application to same-priced interest in the Size Pro Rata Pool.
• Proposed Rule 964NYP(i)(1) would add non-substantive changes by adding a heading for the “Size Pro Rata Formula and Example of Application,” and adding the prefatory words “[f]or example, assume there are . . .” to signal the example that follows this text. In addition, the Exchange would make several other non-substantive clarifying changes to make clear that the Size Pro Rata Formula would apply to the “Remaining Size of Order or Quote to be Allocated” divided by the “Participants' Aggregated Order/Quote Size,” which result is multiplied by each “Participant's Order/Quote Size, to provide the Size Pro Rata Allocation for each participant in the Size Pro Rata Pool. The Exchange believes these non-substantive changes would add clarity and transparency to Exchange rules making them easier to navigate and understand.
• Proposed Rule 964NYP(i)(2) is consistent with current functionality and would provide that the pro rata share allocated to each participant in the Size Pro Rata Pool will be rounded down to the nearest contract, if applicable and that any residual contracts to be filled after the size pro rata calculation has been completed will be allocated one contract per participant in the following sequence:
○ Proposed Rule 964NYP(i)(2)(A) would provide that the participant in the Size Pro Rata Pool who has the largest remaining size (based on the pro rata calculation) will receive the first contract, and each successive contract (if any) will be allocated to each subsequent participant based on size (largest to smallest).
○ Proposed Rule 964NYP(i)(2)(A)(i) would provide that if there are two or more participants with the same remaining size, then the participant in the Size Pro Rata Pool that has first in time priority would be allocated the next contract and then each successive contract (if any) will be allocated in the same manner.
Proposed Rule 964NYP(j) would set forth how orders and quotes are matched for execution on Pillar. Proposed Rule 964NY(j) and its subparagraphs would set forth the Exchange's order execution process. The Exchange proposes to refer to an “Aggressing Order” and “Aggressing Quote” rather than an “inbound order” as used in current Rule 964NY(c) because (as described above) the proposed terms allow for interest to be (or become) marketable even after arrival (
Current Rule 964NY(c) sets forth how orders and quotes are executed on the Exchange. Rule 964NY(c)(1) provides that an “an inbound order that is marketable will be immediately executed against bids and offers in the Consolidated Book, provided the execution price is at the NBBO.” In addition, Rules 964NY(c)(2)(A)-(D) set forth the sequence and manner in which an inbound order will be executed against interest resting in the Consolidated Book at a price—first with displayed Customers; second per the DOMM Guarantee or Specialist Pool Guarantee, if applicable; third with non-Customer interest on a size pro rata basis; and fourth with “orders in the Working Order File in the order of their ranking at the limit price.” The Exchange believes proposed Rule 964NYP(j) regarding Order Execution on Pillar is substantially similar to the current execution scheme, with the difference being that, at a price, both Customer and non-Customer interest within each priority category executes until all interest in that Pillar Priority category is exhausted before an Aggressing Order or Aggressing Quote then executes with same-priced interest in the next Pillar Priority Category.
Proposed Rule 964NYP(j) would specify that, at each price, an Aggressing Order or Aggressing Quote in an option series that is open for trading would be allocated against contra-side orders or quotes in the Consolidated Book as follows.
• First, to Customer orders ranked Priority 1—Market Orders based on time (proposed Rule 964NYP(j)(1));
• Second, to non-Customer orders ranked Priority 1—Market Orders on a size pro rata basis pursuant to paragraph (i) of this Rule (proposed Rule 964NYP(j)(2));
• Third, to Customer orders ranked Priority 2—Display Limit Orders based on time (proposed Rule 964NYP(j)(3));
• Fourth, to interest ranked Priority 2—Display Limit Orders that is eligible for the DOMM Guarantee or the Specialist Pool Guarantee, as applicable, pursuant to paragraph (h) of this Rule provided that the execution price is the NBBO; (proposed Rule 964NYP(j)(4));
• Fifth, to non-Customer orders and quotes in the Pro Rata Pool ranked Priority 2—Display Limit Orders on a size pro rata basis pursuant to paragraph (i) of this Rule (proposed Rule 964NYP(j)(5));
• Sixth, to Customer orders ranked Priority 3—Non-Display Orders based on time (proposed Rule 964NYP(j)(6)); and
• Finally, to non-Customer orders and quotes ranked Priority 3—Non-Display Orders based on time (proposed Rule 964NYP(j)(7)).
The proposed allocation set forth in proposed Rules 964NYP(j)(1)-(7) are consistent with the Exchange's current Customer priority and pro rata allocation model.
Proposed Rule 964NYP(k) would set forth the Exchange's routing process. Current Rule 964NY(c)(2)(E) provides that any unexecuted portion of an order that is eligible to route is routed to another Market Center.
Proposed Rule 964NYP(k) would then set forth additional details regarding routing that are consistent with current routing functionality, but are not described in current rules:
• Proposed Rule 964NYP(k)(1) would provide that an order that cannot meet the pricing parameters of proposed Rule 964NYP(j) (
• Proposed Rule 964NYP(k)(2) would provide that an order with an
• Proposed Rule 964NYP(k)(3) is identical to Arca Options Rule 6.76AP-O(b)(3) and would provide that any order or portion thereof that has been routed would not be eligible to trade on the Consolidated Book, unless all or a portion of the order returns unexecuted. This routing methodology is current functionality and covers the same subject as current Rule 964NY(c)(2)(E). Rule 964NY(c)(2)(E) provides that an order that routed away and returns is ranked and displayed in the Consolidated Book but does not have time standing relative to orders at the same price that arrived while the order was routed. Because, as discussed above, the working time assigned to orders that are routed is being proposed to be addressed in new Rules 964NYP(f)(1)(A) and (B), the Exchange does not propose to include (and restate) such information in the proposed rule.
• Proposed Rule 964NYP(k)(4) is identical to Arca Options Rule 6.76AP-O(b)(4) and would provide that requests to cancel an order that has been routed in whole or in part would not be processed unless and until all or a portion of the order returns unexecuted.
Proposed Rule 964NYP(l), regarding residual interest, would provide that after trading with eligible contra-side interest on the Consolidated Book and/or returning unexecuted after routing to Away Market(s), any unexecuted non-marketable portion of an order would be ranked consistent with new Rule 964NYP. This rule represents current functionality as set forth in Rule 964NY (generally) and paragraph (c)(2)(E) (specifically), as it pertains to orders that were routed away and then returned unexecuted in whole or part to the Exchange without any substantive differences. This proposed rule is identical to Arca Options Rule 6.76AP-O(c), except for the distinct cross-reference to the applicable Exchange rule.
Proposed Rule 964NYP(m) would be applicable to “Orders Executed Manually” and would contain the same text as set forth in Rule 964NY(e) without any substantive differences, except that the proposed text would correct certain of the punctuation and capitalization as contained in one provision of the existing rule.
The Exchange notes that current Rules 964NY(d)(1) and (2), regarding Prohibited Conduct Related to Crossing Orders, provide that “Brokers may not execute as principal orders they represent as agent” unless the agency orders meet the exposure requirements of Rule 935NY; or the Broker executes the orders pursuant to Rule 934NY. The Exchange does not propose to include this provision in new Rule 964NYP because the information is not related to priority and allocation. Moreover, the Exchange believes it would be duplicative and is unnecessary to state that Brokers must comply with Rules 934NY and 935NY as such compliance is required by those rules and need not be restated. As such, the Exchange believes that not including this language in the proposed rule would add clarity, transparency, and internal consistency to Exchange Rules.
Finally, the Exchange does not propose to include Commentary .02 to Rule 964NY regarding Self-Trade Prevention (STP) Modifiers in proposed Rule 964NYP as the Exchange will add this modifier to proposed Rule 900.3NYP with certain enhancements that will be identical to Arca Options Rule 6.62P-O(i)(2).
Current Rule 964.1NY, titled “Directed Orders,” governs Directed Orders, including how such orders may be allocated pursuant to Rule 964NY, as well as DOMM quoting obligations. The Exchange proposes that the new title for Rule 964.1NYP would be “Directed Orders and DOMM Quoting Obligations,” as this title is a more apt description. The Exchange proposes to maintain the current preamble to Rule 964.1NY in proposed Rule 964.1NYP(a) but would update the relevant cross-references, such that the new rule would provide that “Specialists and Market Makers may receive Directed Orders in their appointed classes in accordance with the provisions of Rule 964NYP(h), (j) and this Rule 964.1NYP.”
The Exchange also proposes that proposed Rule 964.1NYP(b)(1) would be identical to current Rule 964N.1(iv), with the only difference being the paragraph numbering.
As noted here, much of the information in current Rule 964.1NY is duplicative and repeats information already contained in current (and separate) Rule 964NY or that has been added to new Rule 964NYP to consolidate information relevant to the DOMM Guarantee into the proposed rule, which would add clarity and consistency to Exchange rules making them easier to navigate. As such, the Exchange does not propose to include in proposed Rule 964.1NYP (duplicative) information contained in Rules 964.1NY(i)-(iii) regarding the possible execution of Directed Orders (
Current Rule 964.2NY, titled “Participation Entitlement of Specialists and e-Specialists,” governs participation entitlement for Specialists including the criteria for selecting the Primary Specialist, the Additional Weighting accorded to the Primary Specialist's pro rata allocation, and the potential allocation of orders of five contracts or fewer to the Primary Specialist. The Exchange proposes that the title for new Rule 964.2NYP would be “Participation Entitlement of Specialist Pool and Designation of Primary Specialist” instead of “Participation Entitlement of Specialists and e-Specialists” because the current title does not indicate that details about the Primary Specialist are included in the current rule.
Proposed Rule 964.2NYP(a) would provide that “the Exchange may establish from time to time a participation entitlement formula that is applicable to all Specialists and e-Specialists, collectively the Specialist Pool as defined in Rule 900.2NY, pursuant to Rule 964NYP(h)(2),” which incorporates the first sentence of current Rule 964.2NY(a) together with current Rule 964.2NY(b), but is updated to cross-reference new paragraph (h)(2). In addition, proposed Rule 964.2NYP(b) would include verbatim the information from current Rule 964.2NY(a) (except
As noted here, much of the information in current Rule 964.2NY (
Finally, the Exchange will not include in proposed Rule 964.2NYP the provision in current rule 964.2NY(b)(1)(v) that provides that an e-Specialist is not eligible for the Special Pool Guarantee with respect to orders represented in open outcry on the Trading Floor. This provision is inapplicable on Pillar.
As discussed above, because of the technology changes associated with the migration to the Pillar trading platform, notwithstanding the timing of the effectiveness of this proposed rule change, the Exchange will announce by Trader Update when rules with a “P” modifier will become operative and for which symbols. The Exchange believes that keeping existing rules on the rulebook pending the full migration of Pillar will reduce confusion because it will ensure that the rules governing trading on the Exchange will continue to be available pending the full migration to Pillar.
As noted immediately above, the Exchange will not implement the “P” rules proposed herein until all other Pillar-related rule filings (
The proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
Generally, the Exchange believes that adding new rules with the modifier “P” to denote those rules that would be operative for the Pillar trading platform would remove impediments to and perfect the mechanism of a free and open market and a national market system by providing transparency of which rules would govern trading once a symbol has been migrated to the Pillar trading platform. The Exchange similarly believes that adding a preamble to those current rules that would not be applicable to trading on Pillar would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would promote transparency regarding which rules would govern trading on the Exchange during and after the transition to Pillar.
In addition, the Exchange believes that incorporating functionality currently available on Arca Options would remove impediments to and perfect the mechanism of a free and open market and a national market system because the Exchange would be able to offer consistent functionality with its affiliated options trading platform. Accordingly, with the transition to Pillar, the Exchange will be able to offer additional features to its ATP Holders that are currently available on Arca Options. For similar reasons, the Exchange believes that using Pillar terminology for the proposed new rules would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would promote consistency in trading rules on both the Exchange and its affiliated options exchange, Arca Options.
The Exchange believes that the proposed amendments to Rule 900.2NY would remove impediments to and perfect the mechanism of a free and open market and a national market system because the proposed changes are designed to promote clarity and transparency in Exchange rules. Specifically, the Exchange believes that the new terms it proposes to include in Rule 900.2NY (
The Exchange believes that proposed new Rule 964NYP would remove impediments to and perfect the mechanism of a free and open market and a national market system because the Exchange plans to retain the fundamental method by which the Exchange would rank and display orders and quotes on Pillar as compared to the current Exchange system. Specifically, the proposed revisions to
Moreover, the Exchange is not proposing any functional changes to how it would rank and display orders and quotes on Pillar as compared to current functionality, except (as noted herein) with regard to the treatment of reduced quote sizes, which would be handled the same as orders with reduced size under Pillar, thereby adding consistency and transparency to Exchange rules.
The Exchange believes that proposed new Rule 964NYP generally, and paragraph (j) in particular, would remove impediments to and perfect the mechanism of a free and open market and a national market system because the proposed rule would set forth a priority model on Pillar that is consistent with the Exchange's Customer-centric, pro rata allocation model and affords Customers priority at a price regardless of order type utilized. Specifically, using the Customer priority overlay, interest in each Pillar Priority category at a price would be exhausted before interest in the next category would be eligible to trade. For example, same-priced interest ranked Priority 1—Market Orders will afford Customer orders at a price first priority, followed by same-priced non-Customer interest. And the same concept holds true for each of the Priority 2 and Priority 3 interest. Accordingly, the Exchange believes that proposed Rule 964NYP would promote just and equitable principles of trade and remove impediments to and perfect the mechanism of a free and open market and a national market system because it would marry the Exchange's current allocation model with the terminology for Pillar Priority Categories already used in Arca Options rules.
The Exchange believes that the proposed modifications to the DOMM Guarantee and Specialist Pool Guarantee would remove impediments to and perfect the mechanism of a free and open market and a national market system because it provides clarity of how multiple quotes from a DOMM or Specialists (including the Primary Specialist) would be allocated. The Exchange similarly believes that eliminating duplicative text from proposed Rules 964.1NYP and 964.2NYP would remove impediments to and perfect the mechanism of a free and open market and a national market system because the proposed changes would streamline the Exchange's rules. The Exchange notes that the remaining differences in proposed Rule 964NYP relating to the DOMM Guarantee and the Specialist Pool Guarantee are designed to promote clarity and transparency in Exchange rules and would not introduce new functionality.
The Exchange believes that proposed new Rules 964.1NYP and 964.2NYP would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would not repeat information that is duplicative of current Rule 964NY but would include information solely related to Directed Orders and the provisions of proposed Rule 964NYP that must be satisfied to receive such orders (
The Exchange believes that the structure and content of the rule text in proposed Rules 964NYP, 964.1NYP, and 964.2NYP promote transparency by using consistent Pillar terminology. The Exchange also believes that adding more detail regarding current functionality in new Rule Rules 964NYP, as described above, would promote transparency by providing notice of when orders would be executed or routed by the Exchange.
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 operates in a competitive market and regularly competes with other options exchanges for order flow. The Exchange believes that the transition to Pillar would promote competition among options exchanges by offering a low-latency, deterministic trading platform. The proposed rule changes would support that inter-market competition by allowing the Exchange to offer additional functionality to its ATP Holders, thereby potentially attracting additional order flow to the Exchange. Otherwise, the proposed changes are not designed to address any competitive issues, but rather to amend the Exchange's rules relating to options trading to support the transition to Pillar. As discussed in detail above, with this rule filing, the Exchange is not proposing to change its core functionality regarding its priority model (
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
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”),
Cboe EDGX Exchange, Inc. (the “Exchange” or “EDGX”) is filing with the Securities and Exchange Commission (“Commission”) a proposed rule change to Exchange Rule 13.8 to introduce a new data product to be known as the US Equity Short Volume & Trades Report. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these
The Exchange seeks to amend Rule 13.8 to revise paragraph 13.8(h) in order to introduce a new data product to be known as the US Equity Short Volume & Trades Report. A description of market data products offered by the Exchange is provided in Exchange Rule 13.8 and proposed Rule 13.8(h) provides that the US Equity Short Volume & Trades Report is a report that will contain both an end-of-day short volume report and an end-of-month report that provides a record of all short sale transactions for the month. The proposed US Equity Short Volume & Trades Report will incorporate the existing Short Volume Report
The end-of-day report (“EOD Report”) included within the US Equity Short Volume & Trades Report will be identical to the existing Short Volume Report published by the Exchange. The existing Short Volume Report summarizes certain equity trading activity on the Exchange, including trade date,
As discussed in the Exchange's previous filing to introduce the EOD Report,
The Exchange notes that the data fields included in the EOM Report are nearly identical to the fields included by NYSE in its Monthly Short Sales file, except that the Exchange will not include two fields that appear within the NYSE Monthly Short Sales file.
Both the EOD Report and EOM Report will be included in the cost of the US Equity Short Volume & Trades Report and will be available for purchase by both Members and non-Members on an annual or monthly subscription basis.
The Exchange anticipates that a wide variety of market participants will purchase the proposed US Equity Short Volume & Trades Report, including, but not limited to, active equity trading firms and academic institutions. For example, the Exchange notes that academic institutions may utilize the US Equity Short Volume & Trades Report data and as a result promote research and studies of the equities industry to the benefit of all market participants. The Exchange further believes the proposed US Equity Short Volume & Trades Report may provide helpful trading information regarding investor sentiment that may allow market participants to make more informed trading decisions and may be used to create and test trading models and analytical strategies and provide comprehensive insight into trading on the Exchange. The proposal is a completely voluntary product, in that the Exchange is not required by any rule or regulation to make this data available and that potential subscribers may purchase it only if they voluntarily choose to do so.
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In adopting Regulation NMS, the Commission granted self-regulatory organizations (“SROs”) and broker-dealers increased authority and flexibility to offer new and unique market data to the public. It was believed that this authority would expand the amount of data available to consumers, and also spur innovation and competition for the provision of market data. The Exchange believes that the proposed US Equity Short Volume & Trades Report would further broaden the availability of U.S. equity market data to investors consistent with the principles of Regulation NMS. The proposal also promotes increased transparency through the dissemination of short volume and short sale execution data. The proposed rule change would benefit investors by providing access to the US Equity Short Volume & Trades data, which may promote better informed trading, as well as research and studies of the equities industry.
Moreover, as noted above, both NYSE and Nasdaq offer data products that contain both a daily and monthly short sale file. These products provide data that is nearly identical to the offering proposed by the Exchange. The proposed EOD Report that will be offered as one component of the US Equity Short Volume & Trades Report is the Exchange's existing Short Volume Report, which is substantially similar to the NYSE and Nasdaq daily short volume product offerings. The proposed EOM Report that will be offered as the second component of the US Equity Short Volume & Trades Report will contain date, time, size, price, short sale type, market center, and symbol, which is nearly identical to the data fields found within the NYSE and Nasdaq monthly short volume reports.
The Exchange believes the proposed rule change does not impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. Rather, the Exchange believes that the proposal will promote fair competition among the national securities exchanges by permitting the Exchange to offer a data
Additionally, the Exchange believes the proposed rule change does not impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. The US Equity Short Volume & Trades Report will be available equally to Members and non-Members. Market participants are not required to purchase the US Equity Short Volume & Trades Report, and the Exchange is not required to make the US Equity Short Volume & Trades Report available to investors. Rather, the Exchange is voluntarily making the US Equity Short Volume & Trades Report available, as requested by customers, and market participants may choose to receive (and pay for) this data based on their own business needs. Potential purchasers may request the data at any time if they believe it to be valuable or may decline to purchase such data. Given the above, the Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
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) 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 the filing. However, pursuant to Rule 19b-4(f)(6)(iii),
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing a proposal to amend the MIAX Pearl Options Fee Schedule (the “Fee Schedule”) to amend fees for historical Open-Close Report to: (i) add a fee for ad hoc requests for end-of-day data and no longer provide such data free of charge; (ii) respond to requests for ad hoc intra-day data and adopt a new fee for such requests; and (iii) adopt academic discounts for requests for ad hoc historical end-of-day and intra-day Open-Close data.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange adopted a new data product for options known as the Open-Close Report,
By way of background, the Exchange offers two versions of the Open-Close Report, an end-of-day summary and intra-day report.
Members and non-Members may purchase the Open-Close Report on a monthly basis. The Exchange currently assess a monthly fee of $600 per month for subscribing to the end-of-day summary Open-Close Report and $2,000 per month for subscribing to the intra-day Open-Close Report. For mid-month subscriptions, new subscribers are currently charged for the full calendar month for which they subscribe and will be provided Open-Close Report data for each trading day of the calendar month from the day on which they subscribed and receive data for each trading day of the calendar month prior to the day on which they subscribe.
The Exchange currently provides Members and Non-Members who request on an ad hoc basis historical end-of-day Open-Close Report data free of charge. The Exchange initially proposed to provide such data for free because it only recently launched the Open-Close Report and had minimal amount of historical end-of-day data. The Exchange also wanted to support the introduction of the new product through such a pricing incentive to attract additional subscribers.
An ad hoc request may be for any number of months beginning with June 2021, the month in which the Exchange first made the Open-Close Report available. For example, a market participant may request end-of-day Open-Close Report data for the month of June 2021 or July 2021, or may request such data for both June and July 2021 and would not be currently charged a fee for such request(s). The Exchange notes that other exchanges that provide similar data products allow for ad hoc requests of their end-of-day data for a fee.
The Exchange currently makes the historical end-of-day Open-Close data available fifteen (15) days after the end of the month for which it is requested. The Exchange implemented this delay because historical end-of-day Open-Close Report data was free of charge and the Exchange sought to not encourage subscribers to request historical end-of-day Open-Close Report data over a paid subscription. Now that the Exchange proposes to charge a fee for historical end-of-day Open-Close Report data, it believes the fifteen (15) day delay in making the data available is no longer necessary and proposes to remove this language from its Fee Schedule.
The Exchange now proposes to provide Members and Non-Members who request on an ad hoc basis historical intra-day Open-Close Report data for a fee of $1,000 per request per month. When the Exchange proposed to provide for ad-hoc requests for end-of day data, it did not also propose to allow for ad hoc requests for intra-day Open-Close Report data.
As it currently specifies for historical end-of-day Open-Close data, an ad hoc request may be for any number of months beginning with June 2021, the month in which the Exchange first made the Open-Close Report available. Similarly, the Exchange will provide historical intra-day Open-Close data for the same time period. The Exchange notes that other exchanges that provide similar data products allow for ad hoc requests of their intra-day data for a fee.
The Exchange also proposes to adopt an academic discount for ad-hoc requests of historical months of these data sets. Specifically, the Exchange proposes to charge qualifying academic purchasers per request $1,500 per year for the first year (instead of $6,000 per year) and $125 per month thereafter for historical end-of-day Open-Close Report data covering all of the Exchange's securities. Further, the Exchange proposes to charge qualifying academic purchasers per request $3,000 per year for the first year (instead of $12,000 per year) and $250 per month thereafter for historical intra-day Open-Close Report data covering all of the Exchange's securities.
Particularly, the Exchange believes that academic institutions and researchers provide a valuable service for the Exchange in studying and promoting the options market. Though academic institutions and researchers have need for granular options data sets, they do not trade upon the data for which they subscribe. The Exchange believes the proposed reduced fee for qualifying academic purchasers of historical end-of-day Open-Close Report data and intra-day Open-Close Report data will encourage and promote academic studies of its market data by academic institutions. In order to qualify for the academic pricing, an academic purchaser must: (1) be an accredited academic institution or member of the faculty or staff of such an institution, and (2) use the data in independent academic research, academic journals and other publications, teaching and classroom use, or for other bona fide educational purposes (
The Exchange notes that competing exchanges currently offer academic discounts for similar data sets on those exchanges.
The Exchange intends to implement the proposed fee changes immediately.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
In adopting Regulation NMS, the Commission granted self-regulatory organizations (“SROs”) and broker-dealers increased authority and flexibility to offer new and unique market data to the public. It was believed that this authority would expand the amount of data available to consumers, and also spur innovation and competition for the provision of market data. Particularly, the Open-Close Report further broadens the availability of U.S. option market data to investors consistent with the principles of Regulation NMS. The data product also promotes increased transparency through the dissemination of the Open-Close Report. Particularly, information regarding opening and closing activity across different option series during the trading day may indicate investor sentiment, which may allow market participants to make better informed trading decisions throughout the day. Subscribers to the data may also be able to enhance their ability to analyze option trade and volume data and create and test trading models and analytical strategies. The Exchange believes the Open-Close Report provides a valuable tool that subscribers can use to gain comprehensive insight into the trading activity in a particular series, but also emphasizes such data is not necessary for trading and completely optional. Moreover, other exchanges offer a similar data product.
The Exchange believes its proposal to respond to requests and add fees for ad hoc requests for historical end-of-day and intra-day data and adopt academic discounts for such requests is reasonable as the proposed rates are similar to fees assessed by other exchanges that provide data in response to ad hoc request for their similar data products.
The Exchange also believes its proposal is reasonable as it would further support its offer of the Open-Close Report, which is designed to aid investors by providing insight into trading on the Exchange. Providing market data, such as the Open-Close Report, is also a means by which exchanges compete to attract business. Subscribers that receive end-of-day Open-Close data, and now intra-day Open-Close data as a result of this proposal, in response to an ad hoc request may use such data to evaluate the usefulness of the Exchange's Open-Close Report and decide, based on that data, whether to subscribe to the Open-Close Report on a monthly basis. To the extent that the Exchange is successful in attracting subscribers for the Open-Close Report through this proposal, it may earn trading revenues and further enhance the value of its data products. If the market deems the proposal to be unfair or inequitable, firms can diminish or discontinue their use of the data and/or avail themselves of similar products offered by other exchanges.
The Exchange believes its proposal is equitably allocated because a wide variety of market participants may choose to request historical Open-Close Report intra-day or end-of-day data,
The Exchange believes it is reasonable to remove the mandatory fifteen (15) day waiting period in order to receive historical ad hoc end-of-day Open-Close data because the Exchange initially implemented this delay because it made historical end-of-day Open-Close Report data free and sought to not encourage subscribers to request historical end-of-day Open-Close Report data over a paid subscription. Now that the Exchange proposes to charge a fee for historical end-of-day Open-Close Report data and because no other options exchange imposes similar delay requirements for the same data, the Exchange believes the fifteen (15) day waiting period is no longer necessary and is reasonable to remove this language from the Fee Schedule.
The Exchange believes that the discount for qualifying academic purchasers of the ad hoc historical end-of-day Open-Close and intra-day Open-Close Report data is reasonable because academic users are not able to monetize access to the data as they do not trade on the data set. The Exchange believes the proposed discount will allow for more academic institutions and faculty members to purchase historical end-of-day Open-Close and intra-day Open-Close Report data, and, as a result, promote research and studies of the options industry to the benefit of all market participants. The Exchange believes that the proposed discount is equitable and not unfairly discriminatory because it will apply equally to all academic users that submit applications and meet the accredited academic institution or faculty member and academic use criteria. As stated above, qualified academic users will subscribe to the data set for educational use and purposes and are not permitted to use the data for commercial or monetizing purposes, nor can qualify if they are funded by an industry participant. As a result, the Exchange believes the proposed discount is equitable and not unfairly discriminatory because it maintains equal treatment for all industry participants or other subscribers that use the data for vocational, commercial or other for-profit purposes.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Rather, the Exchange believes that the proposal will promote competition by permitting the Exchange to enhance the value of a data product that is similar to those offered by other competitor options exchanges.
Furthermore, the Exchange operates in a highly competitive environment, and its ability to price ad hoc requests for end-of-day and intra-day Open-Close Report data is constrained by competition among exchanges that offer similar fees for similar ad hoc requests for end-of-day and intra-day Open-Close report data to their customers. The Exchange notes that there are currently a number of similar products available to market participants and investors. At least eight other U.S. options exchanges offer similar fees for ad hoc requests for end-of-day and intra-day Open-Close report data that is substantially similar to the fees for ad hoc requests for end-of-day and intra-day Open-Close Report data proposed in this filing, which the Exchange must consider in its pricing discipline in order to compete for the market data.
The Exchange also does not believe the proposal would cause any unnecessary or inappropriate burden on intermarket competition as other exchanges are free to introduce their own comparable data product and lower their prices for ad hoc historical requests to better compete with the Exchange's offering. The Exchange does not believe the proposed rule change would cause any unnecessary or inappropriate burden on intramarket competition. Particularly, the proposal would apply uniformly to any market participant, in that it does not differentiate between requests for ad hoc historical Open-Close Report data, other than for qualifying academic users. The proposal allows any interested Member or non-Member to request on an ad hoc basis historical end-of-day or intra-day Open-Close Report databased on their business needs.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe BZX Exchange, Inc. (the “Exchange” or “BZX”) is filing with the Securities and Exchange Commission (“Commission”) a proposed rule change to Exchange Rule 11.22 to introduce a new data product to be known as the US Equity Short Volume & Trades Report. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange seeks to amend Rule 11.22 to revise paragraph 11.22(f) in order to introduce a new data product to be known as the US Equity Short Volume & Trades Report. A description of market data products offered by the Exchange is provided in Exchange Rule 11.22 and proposed Rule 11.22(f) provides that the US Equity Short Volume & Trades Report is a report that will contain both an end-of-day short volume report and an end-of-month report that provides a record of all short sale transactions for the month. The proposed US Equity Short Volume & Trades Report will incorporate the existing Short Volume Report
The end-of-day report (“EOD Report”) included within the US Equity Short Volume & Trades Report will be identical to the existing Short Volume Report published by the Exchange. The existing Short Volume Report summarizes certain equity trading activity on the Exchange, including trade date,
As discussed in the Exchange's previous filing to introduce the EOD Report,
The Exchange notes that the data fields included in the EOM Report are nearly identical to the fields included by NYSE in its Monthly Short Sales file, except that the Exchange will not include two fields that appear within the NYSE Monthly Short Sales file.
Both the EOD Report and EOM Report will be included in the cost of the US Equity Short Volume & Trades Report and will be available for purchase by both Members and non-Members on an annual or monthly subscription basis.
The Exchange anticipates that a wide variety of market participants will purchase the proposed US Equity Short Volume & Trades Report, including, but not limited to, active equity trading firms and academic institutions. For example, the Exchange notes that academic institutions may utilize the US Equity Short Volume & Trades Report data and as a result promote research and studies of the equities industry to the benefit of all market participants. The Exchange further believes the proposed US Equity Short Volume & Trades Report may provide helpful trading information regarding investor sentiment that may allow market participants to make more informed trading decisions and may be used to create and test trading models and analytical strategies and provide comprehensive insight into trading on the Exchange. The proposal is a completely voluntary product, in that the Exchange is not required by any rule or regulation to make this data available and that potential subscribers may purchase it only if they voluntarily choose to do so.
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In adopting Regulation NMS, the Commission granted self-regulatory organizations (“SROs”) and broker-dealers increased authority and flexibility to offer new and unique market data to the public. It was believed that this authority would expand the amount of data available to consumers, and also spur innovation and competition for the provision of market data. The Exchange believes that the proposed US Equity Short Volume & Trades Report would further broaden the availability of U.S. equity market data to investors consistent with the principles of Regulation NMS. The proposal also promotes increased transparency through the dissemination of short volume and short sale execution data. The proposed rule change would benefit investors by providing access to the US Equity Short Volume & Trades data, which may promote better informed trading, as well as research and studies of the equities industry.
Moreover, as noted above, both NYSE and Nasdaq offer data products that contain both a daily and monthly short sale file. These products provide data that is nearly identical to the offering proposed by the Exchange. The proposed EOD Report that will be offered as one component of the US Equity Short Volume & Trades Report is the Exchange's existing Short Volume Report, which is substantially similar to the NYSE and Nasdaq daily short volume product offerings. The proposed EOM Report that will be offered as the second component of the US Equity Short Volume & Trades Report will contain date, time, size, price, short sale type, market center, and symbol, which is nearly identical to the data fields found within the NYSE and Nasdaq monthly short volume reports.
The Exchange believes the proposed rule change does not impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. Rather, the Exchange believes that the proposal will promote fair competition among the national securities exchanges by permitting the Exchange to offer a data product that provides substantially the same data offered by competing equities exchanges. The Exchange's proposed US Equity Short Volume & Trades Report will contain both an EOD Report and an EOM Report, both of which are nearly identical to the competing NYSE and Nasdaq data product offerings, with the only difference being that the Exchange will not include a linked indicator field or short size field in its EOM Report.
Additionally, the Exchange believes the proposed rule change does not impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. The US Equity Short Volume & Trades Report will be available equally to Members and non-Members. Market participants are not required to purchase the US Equity Short Volume & Trades Report, and the Exchange is not required to make the US Equity Short Volume & Trades Report available to investors. Rather, the Exchange is voluntarily making the US Equity Short Volume & Trades Report
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) 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 the filing. However, pursuant to Rule 19b-4(f)(6)(iii),
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to File Number SR-CboeBZX-2023-024. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's internet website (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing a proposal to amend the fee schedule (the “Fee Schedule”) applicable to MIAX Pearl Equities, an equities trading facility of the Exchange.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend the Fee Schedule to: (i) increase the rebate for Adding Liquidity Displayed Orders and Adding Liquidity Non-Displayed Orders in securities priced below $1.00 per share; (ii) increase the fee for Removing Liquidity in securities priced below $1.00 per share; (iii) update the corresponding liquidity indicator codes to reflect the aforementioned proposed changes in (i) and (ii) above; and (iv) increase the percentage threshold for Add Volume Tier 3 from 0.20% to 0.30% of total consolidated volume (“TCV”).
The Exchange first notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive or incentives to be insufficient. More specifically, the Exchange is only one of many venues, including 16 registered equities exchanges as well as a number of alternative trading systems and other off-exchange venues, to which market participants may direct their order flow. Based on publicly available information, no single registered equities exchange currently has more than approximately 15-16% of the total market share of executed volume of equities trading.
Currently, the Exchange provides a rebate of (0.10%)
Currently, the Exchange assesses a fee of 0.20% of the total dollar value of any transaction in securities priced below $1.00 per share that removes liquidity across all Tapes from the Exchange.
The Exchange provides a table of liquidity indicator codes and associated fees/rebates that are applied to transactions so that Equity Members
The Exchange now proposes to update the rebates for liquidity indicator codes that add liquidity to the Exchange to align to the aforementioned proposed change to increase the standard rebate for Adding Liquidity Displayed Orders and Adding Liquidity Non-Displayed Orders from (0.10%) to (0.15%) of the total dollar value of the transaction in securities priced below $1.00 per share. Specifically, the Exchange proposes to amend the column titled “Fee/(Rebate) Securities Priced Below $1.00” in Section 1)b) of the Fee Schedule to reflect the proposed increase to the standard rebate for Adding Liquidity (Displayed Orders and Non-Displayed Orders) in securities priced below $1.00 per share for the following liquidity indicator codes: AA, AB, AC, AR, Aa, Ab, Ac, Ap, and Ar.
Additionally, the Exchange proposes to update the fees for liquidity indicator codes that remove liquidity from the Exchange to align to the aforementioned proposed change to increase the standard fee for Removing Liquidity from 0.20% to 0.25% of the total dollar value of the transaction in securities priced below $1.00 per share. Specifically, the Exchange proposes to amend the column titled “Fee/(Rebate) Securities Priced Below $1.00” in Section 1)b) of the Fee Schedule to reflect the proposed increase to the standard fee for Removing Liquidity in securities priced below $1.00 per share for the following liquidity indicator codes: RA, RB, RC, RR, Ra, Rb, Rc, Rp, and Rr. The purpose of these changes is to harmonize the table in Section 1)b) of the Fee Schedule to the changes proposed in Section 1)a) of the Fee Schedule.
Currently, the Exchange provides a volume-based tier structure in Section 1)c) of the Fee Schedule, referred to as the Add Volume Tiers, in which the Exchange provides an enhanced rebate for executions of Adding Liquidity Displayed Orders in securities priced at or above $1.00 per share for Equity Members that meet certain specified volume thresholds on the Exchange (applicable to Liquidity Indicator Codes AA, AB and AC). Pursuant to the Add Volume Tiers table in Section 1)c) of the Fee Schedule, an Equity Member qualifies for an enhanced rebate under Tier 1 by achieving an average daily
The Exchange now proposes to amend the Add Volume Tiers table in Section 1)c) of the Fee Schedule to increase the percentage threshold for Add Volume Tier 3 from 0.20% to 0.30% of TCV. The Exchange does not propose to amend the percentage thresholds for Add Volume Tiers 1 or 2 and does not propose to amend any of the enhanced rebates applicable to the Add Volume Tiers table. With the proposed change, an Equity Member will now qualify for an enhanced rebate under Tier 3 by achieving an ADAV of at least 0.30% of the TCV (enhanced rebate of ($0.0036) per share for executions of Added Displayed Volume for executions of orders in securities priced at or above $1.00 per share across all Tapes). The purpose of this change is for business and competitive reasons and to level-set the Tier 3 volume threshold in light of recent market share change on the Exchange.
The Exchange proposes to implement the changes to the Fee Schedule pursuant to this proposal on April 1, 2023.
The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act
The Exchange operates in a highly fragmented and competitive market in which market participants can readily direct their order flow to competing venues if they deem fee levels at a particular venue to be excessive or incentives to be insufficient. More specifically, the Exchange is only one of many venues, including 16 registered equities exchanges as well as a number of alternative trading systems and other off-exchange venues, to which market participants may direct their order flow. Based on publicly available information, no single registered equities exchange currently has more than approximately 15-16% of the total market share of executed volume of equities trading.
The Exchange believes that the ever-shifting market share among the exchanges from month to month demonstrates that market participants can shift order flow or discontinue to reduce use of certain categories of products, in response to new or different pricing structures being introduced into the market. Accordingly, competitive forces constrain the Exchange's transaction fees and rebates, and market participants can readily trade on competing venues if they deem pricing levels at those other venues to be more favorable. The Exchange believes the proposal reflects a reasonable and competitive pricing structure designed to incentivize market participants to direct their order flow to the Exchange, which the Exchange believes would enhance liquidity and market quality to the benefit of all Equity Members and market participants.
The Exchange believes that the proposed increased rebate for executions of all orders in securities priced below $1.00 per share that add displayed and non-displayed liquidity to the Exchange is reasonable, equitable, and non-discriminatory because it would further incentivize Equity Members to submit displayed and non-displayed liquidity-adding orders in sub-dollar securities to the Exchange. The Exchange believes that this would deepen liquidity and promote price discovery in such securities to the benefit of all Equity Members, and such rebates would continue to apply equally to all Equity Members. The Exchange further believes that the proposed increased rebate is reasonable because the proposed rebates for executions of liquidity-adding orders in sub-dollar securities are higher than the rebates provided by competing exchanges for sub-dollar securities.
The Exchange believes that the proposed change to increase the standard fee for executions of all orders in securities priced below $1.00 per share that remove liquidity from the Exchange is reasonable, equitable, and consistent with the Act because it represents a modest increase from the current standard fee (change from 0.20% to 0.25% of the total dollar value). Even with the proposed increase, the Exchange's standard fee for executions of all orders in securities priced below $1.00 per share that remove liquidity from the Exchange remains lower than, or similar to, the standard fee to remove liquidity in securities priced below $1.00 per share charged by competing equities exchanges.
The Exchange believes that the proposed change to increase the percentage threshold for Add Volume Tier 3 is reasonable, equitable, and consistent with the Act because the Exchange's market share has risen over the past few months and the proposed change is designed to level-set Equity Members' trading activity on the Exchange with recent performance. Even with the proposed percentage threshold increase, the Exchange's percentage thresholds and corresponding enhanced rebates for executions of orders in securities priced at or above $1.00 per share that add liquidity in displayed orders remains similar to the enhanced rebates to add such liquidity by at least one competing equities exchange.
For the reasons discussed above, the Exchange submits that the proposal satisfies the requirements of Sections 6(b)(4) and 6(b)(5) of the Act in that it provides for the equitable allocation of reasonable dues, fees and other charges among its Equity Members and other persons using its facilities and is not designed to unfairly discriminate between customers, issuers, brokers, or dealers. As described more fully below in the Exchange's statement regarding the burden on competition, the Exchange believes that its transaction pricing is subject to significant competitive forces, and that the proposed fees and rebates described herein are appropriate to address such forces.
The Exchange does not believe that the proposed changes will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes the proposed changes will continue to encourage Equity Members to maintain or increase their order flow to the Exchange, thereby contributing to a deeper and more liquid market to the benefit of all market participants and enhancing the attractiveness of the Exchange as a trading venue. As a result, the Exchange believes the proposal will enhance its competitiveness as a market that attracts actionable orders, thereby making it a more desirable destination venue for its customers. For these reasons, the Exchange believes that the proposal furthers the Commission's goal in adopting Regulation NMS of fostering competition among orders, which promotes “more efficient pricing of individual stocks for all types of orders, large and small.”
The Exchange believes that the proposed changes will continue to incentivize market participants to direct order flow to the Exchange, thereby contributing to a deeper and more liquid market to the benefit of all market participants and enhancing the attractiveness of the Exchange as a trading venue, which the Exchange believes, in turn, will continue to encourage market participants to direct additional order flow to the Exchange. Greater liquidity benefits all Equity Members by providing more trading opportunities and encourages Equity Members to send orders to the Exchange, thereby contributing to robust levels of liquidity, which benefits all Equity Members.
The opportunity to qualify for the Add Volume Tiers, and thus receive the proposed enhanced rebates for executions of displayed added volume will continue to be available to all Equity Members that meet the associated volume requirement in any month. The Exchange believes that meeting the volume requirement of the Add Volume Tiers is attainable for market participants, as the Exchange believes the thresholds are relatively low, even with the proposed change to Tier 3, and are reasonably related to the enhanced liquidity and market quality that the Add Volume Tiers are designed to promote. Similarly, the proposed increase to the standard fee for executions of orders that remove volume from the Exchange will continue to apply equally to all Equity Members. As such, the Exchange believes the proposed changes would not impose any burden on intra-market competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange believes its proposal will benefit competition as the Exchange operates in a highly competitive market. Equity Members have numerous alternative venues they may participate on and direct their order flow to, including fifteen other
As described above, the proposed changes are competitive proposals through which the Exchange is seeking to encourage additional order flow to the Exchange. Such proposed changes to (i) increase the Adding Liquidity (displayed and non-displayed orders) rebates and Removing Liquidity fee and (ii) increase the threshold to achieve the enhanced Tier 3 Add Volume rebate are comparable to, and competitive with, rates charged by other exchanges.
Additionally, the Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Specifically, in Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email 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)
The Exchange proposes to amend certain Standard Rates in the NYSE American Equities Price List and Fee Schedule (“Price List”) for transaction fees and credits that add and remove liquidity in securities at or above $1. The Exchange proposes to implement the fee changes effective April 3, 2023. 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 certain Standard Rates in its Price List for transaction fees and credits that add and remove liquidity in securities at or above $1. Specifically, the Exchange proposes to (1) lower the Tier 1 fee of $ 0.0026 per share for orders that remove liquidity from the Exchange; (2) lower the Tier 2 credit of $0.0024 per share for orders adding liquidity that set a new best bid or offer (“BBO”) on the Exchange;
The proposed changes respond to the current competitive environment where order flow providers have a choice of where to direct liquidity-providing and liquidity-removing orders by offering further incentives for ETP Holders to send additional adding and removing liquidity to the Exchange.
The Exchange proposes to implement the fee changes effective April 3, 2023.
The Exchange operates in a highly competitive market. The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
While Regulation NMS has enhanced competition, it has also fostered a “fragmented” market structure where trading in a single stock can occur across multiple trading centers. When multiple trading centers compete for order flow in the same stock, the Commission has recognized that “such competition can lead to the fragmentation of order flow in that stock.”
The Exchange believes that the ever-shifting market share among the exchanges from month to month demonstrates that market participants can move order flow, or discontinue or reduce use of certain categories of products. While it is not possible to know a firm's reason for shifting order flow, the Exchange believes that one such reason is because of fee changes at any of the registered exchanges or non-exchange venues to which the firm routes order flow.
In response to this competitive environment, the Exchange has established incentives for ETP Holders who submit orders that provide and remove liquidity on the Exchange. The proposed fee change is designed to attract additional order flow to the Exchange by incentivizing ETP Holders to send additional adding and removing liquidity to the Exchange to qualify for the liquidity adding and removing tiers and corresponding higher credits and lower fees, as follows.
Currently, for transactions in securities priced at or above $1.00, other than transactions by eDMMs in assigned securities, the Exchange offers the following tiered credits and fees for displayed and non-displayed orders, including orders setting a new Exchange BBO, that add and removed liquidity. The credits and fees are divided into Tier 1, Tier 2, and Non-Tier rates.
Currently, ETP Holders that add liquidity to the Exchange with an average daily volume (“ADV”)
The proposed lower fee, together with the increased fee under Tier 2 for removing liquidity discussed below, seeks to encourage ETP Holders that are meeting or exceeding the minimum ADV requirement to qualify for Tier 2 rates to send additional liquidity in order to meet the higher Tier 1 requirement and therefore qualify for a lower fee.
Currently, ETP Holders with an Adding ADV of at least 700,000 shares are eligible for a credit of $0.0024 per share under Tier 2 for orders adding liquidity that set a new BBO on the Exchange. The Exchange proposes to decrease the credit to $0.0023 per share.
The Exchange determined that the current higher credit for setting the Exchange BBO did not incentivize setting activity by ETP Holders as expected and that lowering it was therefore reasonable. The Exchange notes that the proposed lower credit would bring the Tier 2 credit for setting the Exchange BBO into line with the current $0.0023 Tier 2 credit for adding displayed liquidity.
Similarly, ETP Holders with an Adding ADV of at least 700,000 shares are eligible for a fee of $0.0028 under Tier 2 for removing liquidity orders. The Exchange proposes to increase the current fee to $0.0029 per share.
In addition, as noted above, to seeking to encourage ETP Holders that are meeting or exceeding the minimum ADV requirements under Tier 2 to send additional liquidity to the Exchange, the proposed change would be consistent with the applicable rate on other marketplaces. For instance, Nasdaq charges a $0.0029 per share fee for removing liquidity for members meeting certain requirements; otherwise, its fee for removing liquidity is $0.0030 per share.
The Exchange's current Non-Tier rates are available to ETP Holders that do not qualify for either Tier 1 or Tier 2. Currently, orders adding displayed liquidity and orders adding liquidity that set a new BBO on the Exchange are both eligible for a Non-Tier credit of $0.0020 per share. The Exchange proposes to decrease both credits to $0.0016.
The proposed change would encourage ETP Holders to send additional liquidity in order to qualify for the minimum Tier 2 ADV requirements and therefore qualify for a higher credit. In addition, the proposed change would be consistent with the applicable rate on other marketplaces.
Overall, the proposed fee changes are designed to be available to all ETP Holders on the Exchange and is intended to provide ETP Holders a greater incentive to direct more orders to the Exchange.
As noted, the Exchange operates in a competitive environment, particularly as it relates to attracting non-marketable orders, which add liquidity to the Exchange. The Exchange does not know how much order flow ETP Holders choose to route to other exchanges or to off-exchange venues. The Exchange does not know how many ETP Holders could qualify for the proposed credits and fees based on their current trading profile on the Exchange and if they choose to direct order flow to the Exchange. However, without having a view of ETP Holder's activity on other exchanges and off-exchange venues, the Exchange has no way of knowing whether this proposed rule change would result in any ETP Holder directing more orders to the Exchange.
The proposed changes are not otherwise intended to address any other issues, and the Exchange is not aware of any significant problems that market participants would have in complying with the proposed changes.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
As discussed above, the Exchange operates in a highly fragmented and competitive market. The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Specifically, in Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
The Exchange believes that the ever-shifting market share among the exchanges from month to month demonstrates that market participants can shift order flow, or discontinue to reduce use of certain categories of products, in response to fee changes. ETP Holders can choose from any one of the 16 currently operating registered exchanges, and numerous off-exchange venues, to route such order flow. Accordingly, competitive forces constrain exchange transaction fees that relate to orders on an exchange. Stated otherwise, changes to exchange transaction fees can have a direct effect on the ability of an exchange to compete for order flow.
In light of the competitive environment in which the Exchange currently operates, the proposed rule change is a reasonable attempt to increase liquidity on the Exchange and improve the Exchange's market share relative to its competitors. The Exchange believes the proposed change is also reasonable because it is designed to attract higher volumes of orders transacted on the Exchange by ETP Holders, which would benefit all market participants by offering greater price discovery and an increased opportunity to trade on the Exchange.
More specifically, the Exchange believes that the proposed lower Tier 1 fee, together with the increased Tier 2 fee, for liquidity removing orders are
The Exchange believes that the proposed changes to the credits available for orders adding liquidity to the Exchange are also reasonable.
The Exchange believes that lowering the Tier 2 credit for setting the Exchange BBO is reasonable because the current higher credit did not incentivize setting activity by ETP Holders and result in greater liquidity as the Exchange had anticipated. The Exchange believes it is reasonable to revise credits when such incentives become underutilized. In addition, the Exchange believes the proposed credit is reasonable because it would bring the credit into line with the current $0.0023 Tier 2 credit for adding displayed liquidity.
Finally, the proposed changes to Non-Tier credits for orders adding displayed liquidity and orders adding liquidity that set a new Exchange BBO are reasonable because the proposed change would encourage ETP Holders to increase the liquidity-adding orders they send to the Exchange to qualify for higher credits under Tier 2, which would support the quality of price discovery on the Exchange and provide additional liquidity for incoming orders. The Exchange notes that the adding ADV requirement for Tier 2 is 700,000 shares, which the Exchange believes is an achievable level for many member organizations, given the higher requirements at other marketplaces. For example, the requirement for the Cboe BZX Adding Tier 1 adding credit of $0.0020 is 5,000,000 shares or 0.05% of CADV. The Exchange believes that by correlating the level of credits to the level of executed adding volume on the Exchange, the Exchange's fee structure would encourage ETP Holders to submit more liquidity-providing orders to the Exchange that are likely to be executed, thereby increasing the potential for incoming marketable orders submitted to the Exchange to receive an execution. As noted above, the Exchange operates in a competitive environment, particularly as it relates to attracting non-marketable orders that add liquidity to the Exchange. In addition, the proposed change would be consistent with the applicable rate on other marketplaces.
Because the proposal involves the introduction of new fee and credit levels, the Exchange does not know how many more ETP Holders could qualify for the new fees and credits based on their current trading profile on the Exchange and if they choose to direct order flow to the Exchange. As previously noted, without a view of ETP Holder activity on other exchanges and off-exchange venues, the Exchange has no way of knowing whether the proposed rule change would result in any ETP Holder directing additional liquidity to qualify for a better tier, and corresponding higher credit, or lower fee. The Exchange believes the proposed changes are reasonable as it would provide an incentive for ETP Holders to direct their order flow to the Exchange and provide meaningful added levels of liquidity in order to qualify for the credits, thereby contributing to depth and market quality on the Exchange.
The Exchange believes its proposal equitably allocates its fees and credits among its market participants by fostering liquidity provision and stability in the marketplace.
The Exchange believes the proposal equitably allocates fees and credits among its market participants because all ETP Holders that participate on the Exchange may qualify for the proposed fees and credits. The Exchange believes that the proposed changes, taken together, will incentivize ETP Holders to send additional liquidity to achieve lower fees when removing liquidity from the Exchange, thereby increasing the number of orders that are executed on the Exchange, promoting price discovery and transparency and enhancing order execution opportunities and improving overall liquidity on a public exchange. The Exchange also believes that the proposed change is equitable because it would apply to all similarly situated ETP Holders that add or remove liquidity. The proposed change also is equitable because it would be consistent with the applicable rate on other marketplaces.
As previously noted, the Exchange operates in a competitive environment, particularly as it relates to attracting orders that add liquidity to the Exchange. The Exchange does not know how much order flow ETP Holders choose to route to other exchanges or to off-exchange venues. Because the proposed introduces new fees and credits, the Exchange does not know how many ETP Holders could qualify for the new rates based on their current trading profiles on the Exchange and if they choose to direct order flow to the Exchange. Without having a view of ETP Holder's activity on other exchanges and off-exchange venues, the Exchange has no way of knowing whether this proposed rule change would result in any ETP Holder directing orders to the Exchange. The Exchange anticipates that ETP Holders would endeavor to send more of their orders for execution on the Exchange in order to earning higher credits and lower fees.
The Exchange further believes that the proposed change is equitable because it is reasonably related to the value to the Exchange's market quality associated with higher volume in orders. The Exchange believes that the proposed pricing adjustments would attract order flow to the Exchange, thereby contributing to price discovery on the Exchange and benefiting investors generally.
The Exchange believes that the proposed rule change is equitable because maintaining or increasing the proportion of orders in exchange-listed securities that are executed on a registered national securities exchange (rather than relying on certain available off-exchange execution methods) would contribute to investors' confidence in the fairness of their transactions and would benefit all investors by deepening the Exchange's liquidity pool, supporting the quality of price discovery, promoting market transparency, and improving investor protection.
The proposal neither targets nor will it have a disparate impact on any particular category of market participant. All ETP Holders would be eligible to qualify for the proposed fees and credits. The Exchange believes that offering fees for removing liquidity and credits for providing liquidity will continue to attract order flow and liquidity to the Exchange, thereby providing additional price improvement opportunities on the Exchange and benefiting investors generally. As to those market participants that do not presently meet the Adding ADV requirements to qualify for the Exchange's best prices, the proposal would not adversely impact the ability of those ETP Holders to qualify for other credits or fees provided by the Exchange
The Exchange believes that the proposal is not unfairly discriminatory. In the prevailing competitive environment, ETP Holders are free to disfavor the Exchange's pricing if they believe that alternatives offer them better value. The Exchange believes it is not unfairly discriminatory to provide the proposed fees and credits for ETP Holders that add or remove liquidity because the proposed fees and credits would be provided on an equal basis to all ETP Holders.
Further, the Exchange believes the proposed fees and credits would incentivize ETP Holders to send more orders to the Exchange to qualify for the revised fees and credits, thereby promoting price discovery and transparency and enhancing order execution opportunities for ETP Holders. Since the proposed fees and credits would be new, no ETP Holder currently qualifies for them. As noted, without a view of ETP Holder activity on other exchanges and off-exchange venues, the Exchange has no way of knowing whether this proposed rule change would result in any ETP Holders qualifying for the proposed adding tiers. The Exchange believes the proposal is reasonable as it would provide an incentive for ETP Holders to direct their order flow to the Exchange and provide meaningful added levels of liquidity in order to qualify for the credits, thereby contributing to depth and market quality on the Exchange.
In addition, the Exchange believes that the proposal is not unfairly discriminatory because it neither targets nor will it have a disparate impact on any particular category of market participant. All ETP Holders would be eligible to qualify for the proposed credits if they meet the proposed Adding ADV requirements for each proposed tier. The proposal does not permit unfair discrimination because the proposed rates would be applied to all similarly situated ETP Holders and other market participants, who would all be eligible for the same rates on an equal basis. Accordingly, no ETP Holder already operating on the Exchange would not be disadvantaged by the proposed allocation of fees and credits. The Exchange believes that offering credits for providing liquidity will continue to attract order flow and liquidity to the Exchange, thereby providing additional price improvement opportunities on the Exchange and benefiting investors generally. As to those market participants that do not presently qualify for the revised fees and credits, the proposal will not adversely impact their ability to qualify for other credits provided by the Exchange. Finally, the submission of orders is optional for ETP Holders in that they could choose whether to submit orders to the Exchange and, if they do, they can choose the extent of their activity in this regard. The Exchange believes that it is subject to significant competitive forces, as described above and below in the Exchange's statement regarding the burden on competition.
For the foregoing reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
The Exchange believes that the proposed change could promote competition between the Exchange and other execution venues, including those that currently offer similar order types and comparable transaction pricing, by encouraging additional orders to be sent to the Exchange for execution.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
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 490(b)(1)(A) of the Foreign Assistance Act of 1961, as amended, I hereby determine and certify the top five exporting and importing countries and economies of pseudoephedrine and/or ephedrine (cumulatively, Belgium, Czech Republic, Egypt, France, Germany, India, Indonesia, China, Republic of Korea, Romania, Singapore, Switzerland, Taiwan, and the United Kingdom) have cooperated fully with the United States, or have taken adequate steps on their own, to achieve full compliance with the goals and objectives established by the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.
This determination and certification shall be published in the
Based upon a review of the administrative record assembled in this matter, and in consultation with the Attorney General and the Secretary of the Treasury, I have concluded that there is a sufficient factual basis to find that Qari Amjad uses the additional aliases Mufti Hazrat Deroji and Mufti Hazrat Ali. I also conclude that Mufti Hazrat Deroji is the primary name for this person.
Therefore, pursuant to Section 1(a)(ii) of E.O. 13224, I hereby amend the designation of Qari Amjad as a Specially Designated Global Terrorist to include the following new aliases: Mufti Hazrat Deroji and Mufti Hazrat Ali.
This notice shall be published in the
Acting under the authority of and in accordance with section 1(a)(ii)(B) of E.O. 13224 of September 23, 2001, as amended by E.O. 13268 of July 2, 2002, E.O. 13284 of January 23, 2003, and E.O. 13886 of September 9, 2019, I hereby determine that the person known as Sami Mahmud Mohammed al-Uraydi (also known as Sami Mahmoud Mohammad Eridi and Abu Mahmud al-Shami) is a leader of Hurras al-Din, a group whose property and interests in property are currently blocked pursuant to a determination by the Secretary of State pursuant to E.O. 13224.
Consistent with the determination in section 10 of E.O. 13224 that prior notice to persons determined to be subject to the order who might have a constitutional presence in the United States would render ineffectual the blocking and other measures authorized in the order because of the ability to transfer funds instantaneously, I determine that no prior notice needs to be provided to any person subject to this determination who might have a constitutional presence in the United States, because to do so would render ineffectual the measures authorized in the order.
This notice shall be published in the
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request Office of Management and Budget (OMB) approval to renew an information collection. The
Written comments should be submitted by May 19, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Brad Zeigler by email at:
The
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition; denial of application for exemption.
FMCSA announces its decision to deny the exemption request from the National Propane Gas Association (NPGA). NPGA sought an exemption from various hours-of-service (HOS) requirements to enable the propane industry to prepare and respond to peak periods of consumer demand among residential, agricultural, and commercial consumers in anticipation of, during, and to recover from emergency conditions. NPGA requests that the exemption apply on a per-driver, per-route basis, and that each company that elects to utilize it must maintain appropriate documentation to demonstrate the presence of peak consumer demand conditions within the scope of the exemption. FMCSA analyzed the exemption application and public comments and determined that the exemption would not achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.
Mr. Richard Clemente, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards at (202) 366-2722 or
To view comments, go to
To view documents mentioned in this notice as being available in the docket, go to
If you do not have access to the internet, you may view the docket online by visiting Dockets Operations in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., ET, Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from certain Federal Motor Carrier Safety Regulations (FMCSRs). FMCSA must publish a notice of each exemption
The Agency reviews safety analyses and public comments submitted, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
FMCSA's hours of service (HOS) regulations in 49 CFR part 395 place limits on the amount of time drivers of commercial motor vehicles (CMVs) may drive to reduce the possibility of driver fatigue. The regulations in 49 CFR 395.3(a)(2)—commonly referred to as the 14-hour “driving window”—allow an individual a period of 14 consecutive hours in which to drive up to 11 hours after being off duty for 10 or more consecutive hours. The regulations in 49 CFR 395.3(a)(3) prohibit individuals from driving again after 11 hours driving until they have been off duty for a minimum of 10 consecutive hours. The regulation in 49 CFR 395.3(b)(1) prohibits a motor carrier that does not operate vehicles every day of the week from requiring or permitting a driver to drive, nor may the driver drive, a CMV after being on duty 60 hours during any 7 consecutive days, and 49 CFR 395.3(b)(2) prohibits a motor carrier that operates CMVs every day of the week from requiring or permitting a driver to drive, nor may the driver drive, a CMV after being on duty 70 hours in any 8 consecutive days. These are generally called the 60- and 70-hour “weekly” limits.
The National Propane Gas Association (NPGA) requests a five-year exemption for its member company drivers to extend the 14-hour duty period in § 395.3(a)(2) to no more than 17 hours; extend the 11-hour driving period in § 395.3(a)(3) to no more than 14 hours, following 10 consecutive hours off duty; waive the 60- and 70-hour rules in § 395.3(b) for a period of no more than six consecutive days; and a period of six consecutive days may end with the beginning of an off-duty period of 34 or more consecutive hours. The exemption request is made in order to enable the propane industry to prepare and respond to peak periods of consumer demand among residential, agricultural, and commercial consumers.
NPGA is the national trade association of the propane industry with a membership of nearly 2,500 companies and 36 State and regional associations representing members in all 50 States. Its membership includes retail marketers of propane gas who deliver fuel to the end user, propane producers, transporters and wholesalers, and manufacturers and distributors of equipment, containers, and appliances. NPGA's petition states that, in order to meet consumer demand, long- and short-haul propane drivers often reach the maximum “weekly” HOS limits within three or four days, making them unavailable for the rest of the “week” while consumer demand continues. According to NPGA, the purpose of its request is to prepare and serve residential, commercial, and agricultural consumers ahead of and during peak consumption periods efficiently and safely. To clearly define the scope in its application, NPGA provided a brief outline of the terms and conditions that would apply to those individuals providing propane services for periods of peak consumer demand.
To ensure an equivalent or greater level of safety, the NPGA application states that before operating under the special exemption, drivers must complete the Fatigue and Wellness Awareness course available online from the Propane Education & Research Council. NPGA further adds that recordkeeping relating to use of a special permit for exemption shall be in accordance with requirements of 49 CFR 390.29, 49 CFR 390.31, and 49 CFR 395.8. Drivers operating under the exemption would be allowed only six consecutive days to utilize the exemption, and NPGA members must comply with all other provisions of the Federal Motor Carrier Safety Regulations.
On September 30, 2022, FMCSA published notice of this application and requested public comments (87 FR 59486). The Agency received seven comments, six of which opposed the exemption. The six commenters that opposed the exemption were the following: the Commercial Vehicle Safety Alliance (CVSA); Owner-Operator Independent Drivers Association (OOIDA); Advocates for Highway and Auto Safety (Advocates)/Truck Safety Coalition (TSC); AWM Associates, LLC; Rebecca Transport; and one individual commentor. One commenter took no position on the application.
Advocates/TSC stated “. . . the exemption could be triggered by such common occurrences as cold temperatures and fallen trees [and t]he Petitioner also fails to meet the statutory requirements for requesting such an exemption.” CVSA opposed granting the exemption and suggested that “. . . FMCSA find alternative solutions to meet this need that are narrower and more targeted to the individual scenarios. One possible solution would be to direct the service centers to monitor needs and coordinate with industry to provide region specific waivers as appropriate.”
OOIDA's comment focused on the impact the exemption would have on individual drivers: “While we believe drivers should be provided maximum flexibility under HOS regulations, we fear this proposal could lead to greater coercion of employee drivers, with propane providers applying pressure to complete hauls while drivers are fatigued. Furthermore, it is unclear at what point drivers may waive the 60- and 70-hour rule.” AWM Associates, LLC, provided the following comment: “If a community is impacted, then the local government official may declare an emergency per Part 390.23 so the drivers needed may function as needed. A blanket exemption is far reaching and would exempt areas not impacted by the shortage of drivers.”
FMCSA has evaluated the NPGA application and the public comments and denies the exemption. Research studies demonstrate that long work hours contribute to driver fatigue and can cause harm to a driver's health. Research also shows that crash risk increases with long work hours. The Agency established the HOS regulations to ensure that drivers stay awake and alert, and to reduce the possibility of
Furthermore, what constitutes an emergency, sufficient to be exempted from existing safety regulations, is a fact-specific inquiry. Among the conditions specified in the NPGA application were “railcar delays in excess of five business days,” “limitation of pipeline services due to pipeline allocation,” and “weather- and storm-related events including but not limited to fallen trees, rock and mudslides and other debris on the roadways . . .” The Agency does not find a categorical exemption for the scenarios requested is appropriate.
For the above reasons, NPGA's exemption application is denied.
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice of applications for exemption; request for comments.
FMCSA announces receipt of applications from 15 individuals for an exemption from the prohibition in the Federal Motor Carrier Safety Regulations (FMCSRs) against persons with a clinical diagnosis of epilepsy or any other condition that is likely to cause a loss of consciousness or any loss of ability to control a commercial motor vehicle (CMV) to drive in interstate commerce. If granted, the exemptions would enable these individuals who have had one or more seizures and are taking anti-seizure medication to operate CMVs in interstate commerce.
Comments must be received on or before May 19, 2023.
You may submit comments identified by the Federal Docket Management System Docket No. FMCSA-2023-0032 using any of the following methods:
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•
•
•
To avoid duplication, please use only one of these four methods. See the “Public Participation” portion of the
Ms. Christine A. Hydock, Chief, Medical Programs Division, FMCSA, DOT, 1200 New Jersey Avenue SE, Room W64-224, Washington, DC 20590-0001, (202) 366-4001,
If you submit a comment, please include the docket number for this notice (Docket No. FMCSA-2023-0032), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
To view comments go to
In accordance with 49 U.S.C. 31315(b)(6), DOT solicits comments from the public on the exemption request. DOT posts these comments, without edit, including any personal information the commenter provides, to
Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant an exemption from the FMCSRs for no longer than a 5-year period if it finds such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption. The statutes also allow the Agency to renew exemptions at the end of the 5-year period. FMCSA grants medical exemptions from the FMCSRs for a 2-year period to align with the maximum duration of a driver's medical certification.
The 15 individuals listed in this notice have requested an exemption from the epilepsy and seizure disorders
The physical qualification standard for drivers regarding epilepsy found in § 391.41(b)(8) states that a person is physically qualified to drive a CMV if that person has no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause the loss of consciousness or any loss of ability to control a CMV.
In addition to the regulations, FMCSA has published advisory criteria
The criteria states that if an individual has had a sudden episode of a non-epileptic seizure or loss of consciousness of unknown cause that did not require anti-seizure medication, the decision whether that person's condition is likely to cause the loss of consciousness or loss of ability to control a CMV should be made on an individual basis by the ME in consultation with the treating physician. Before certification is considered, it is suggested that a 6-month waiting period elapse from the time of the episode. Following the waiting period, it is suggested that the individual have a complete neurological examination. If the results of the examination are negative and anti-seizure medication is not required, then the driver may be qualified.
In those individual cases where a driver has had a seizure or an episode of loss of consciousness that resulted from a known medical condition (
Drivers who have a history of epilepsy/seizures, off anti-seizure medication, and seizure-free for 10 years, may be qualified to operate a CMV in interstate commerce. Interstate drivers with a history of a single unprovoked seizure may be qualified to drive a CMV in interstate commerce if seizure-free and off anti-seizure medication for a 5-year period or more.
As a result of MEs misinterpreting advisory criteria as regulation, numerous drivers have been prohibited from operating a CMV in interstate commerce based on the fact that they have had one or more seizures and are taking anti-seizure medication, rather than an individual analysis of their circumstances by a qualified ME based on the physical qualification standards and medical best practices.
On January 15, 2013, FMCSA announced in a notice of final disposition titled, “Qualification of Drivers; Exemption Applications; Epilepsy and Seizure Disorders,” (78 FR 3069), its decision to grant requests from 22 individuals for exemptions from the regulatory requirement that interstate CMV drivers have “no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a CMV.” Since that time, the Agency has published additional notices granting requests from individuals for exemptions from the regulatory requirement regarding epilepsy found in § 391.41(b)(8).
To be considered for an exemption from the epilepsy and seizure disorders prohibition in § 391.41(b)(8), applicants must meet the criteria in the 2007 recommendations of the Agency's Medical Expert Panel (78 FR 3069).
Jeffrey Baker is a 36-year-old class CM1 license holder in California. They have a history of epilepsy and have been seizure free since February 2015. They take anti-seizure medication with the dosage and frequency remaining the same since February 2015. Their physician states that they are supportive of Jeffrey Baker receiving an exemption.
Robert Bennett is a 37-year-old class AM commercial driver's license holder in New York. They have a history of focal epilepsy and have been seizure free since January 2014. They take anti-seizure medication with the dosage and frequency remaining the same since January 2014. Their physician states that they are supportive of Robert Bennett receiving an exemption.
Karl Bohmuller is a 24-year-old class C license holder in North Carolina. They have a history of generalized idiopathic epilepsy and have been seizure free since October 2012. They take anti-seizure medication with the dosage and frequency remaining the same since 2012. Their physician states that they are supportive of Karl Bohmuller receiving an exemption.
David Brown is a 69-year-old class E license holder in Florida. They have a history of seizure disorder and have been seizure free since 2003. They take anti-seizure medication with the dosage and frequency remaining the same since 2018. Their physician states that they are supportive of David Brown receiving an exemption.
John Carroll is a 35-year-old class 3 license holder in Hawaii. They have a history of epilepsy and have been seizure free since 2007. They take anti-seizure medication with the dosage and frequency remaining the same since January 2007. Their physician states that they are supportive of John Carroll receiving an exemption.
Jean Daza is a 55-year-old class D license holder in New Jersey. They have a history of focal epilepsy and have been seizure free since July 2013. They take anti-seizure medication with the dosage and frequency remaining the same since April 2014. Their physician states that they are supportive of Jean Daza receiving an exemption.
Jerrid Hielscher is a 41-year-old class A license holder in South Dakota. They have a history of seizures and have been seizure free since April 1999. They take anti-seizure medication with the dosage and frequency remaining the same since April 1999. Their physician states that they are supportive of Jerrid Hielscher receiving an exemption.
Brandon Kirby is a 23-year-old class D license holder in Connecticut. They have a history of seizures and have been seizure free since 2012. They take anti-seizure medication with the dosage and frequency remaining the same since 2012. Their physician states that they are supportive of Brandon Kirby receiving an exemption.
Alexander Kumm is a 47-year-old class D license holder in Illinois. They have a history of idiopathic generalized epilepsy and have been seizure free since 2013. They take anti-seizure medication with the dosage and
Armando Leandry is a 41-year-old class D license holder in New Jersey. They have a history of epilepsy and have been seizure free since 2014. They take anti-seizure medication with the dosage and frequency remaining the same since October 2016. Their physician states that they are supportive of Armando Leandry receiving an exemption.
Nicholas Liebe is a 28-year-old class D license holder in Wisconsin. They have a history of complex partial epileptic seizure and have been seizure free since 2013. They take anti-seizure medication with the dosage and frequency remaining the same since 2020. Their physician states that they are supportive of Nicholas Liebe receiving an exemption.
Sheldon Martin is a 40-year-old class A license holder in New York. They have a history of idiopathic generalized epilepsy and have been seizure free since July 2008. They take anti-seizure medication with the dosage and frequency remaining the same since January 2013. Their physician states that they are supportive of Sheldon Martin receiving an exemption.
Robert Moseler is a 65-year-old class C chauffeur license holder in Michigan. They have a history of seizure disorder and have been seizure free since 1996. They take anti-seizure medication with the dosage and frequency remaining the same since 1996. Their physician states that they are supportive of Robert Moseler receiving an exemption.
Tammy Snyder is a 51-year-old class A license holder in North Carolina. They have a history of an unprovoked seizure and have been seizure free since July 2013. They take anti-seizure medication with the dosage and frequency remaining the same since March 2021. Their physician states that they are supportive of Tammy Snyder receiving an exemption.
Michael Urbshot is a 38-year-old class 23 license holder in Hawaii. They have a history of partial complex seizures and have been seizure free since 2012. They take anti-seizure medication with the dosage and frequency remaining the same since 2009. Their physician states that they are supportive of Michael Urbshot receiving an exemption.
In accordance with 49 U.S.C. 31136(e) and 31315(b), FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. We will consider all comments received before the close of business on the closing date indicated under the
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of provisional renewal of exemption; request for comments.
FMCSA announces its decision provisionally to renew the TowMate, LLC (TowMate) exemption which allows motor carriers to operate rechargeable wireless temporary stop, turn, and tail lighting systems during temporary towing operations that do not meet the vehicle power supply requirements for all required lamps in the Federal Motor Carrier Safety Regulations (FMCSRs). The exemption is renewed for 5 years, unless rescinded earlier.
This renewed exemption is effective February 9, 2023, through February 9, 2028, unless rescinded earlier. Comments must be received on or before May 19, 2023.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket ID FMCSA-2015-0238 using any of the following methods:
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Each submission must include the Agency name and the docket number for this notice (FMCSA-2015-0238). Note that DOT posts all comments received without change to
Mr. Luke Loy, Vehicle and Roadside Operations Division, Office of Carrier, Driver, and Vehicle Safety, FMCSA, 1200 New Jersey Avenue SE, Washington, DC 20590-0001; (202) 366-0676;
FMCSA encourages you to participate by submitting comments and related materials.
If you submit a comment, please include the docket number for this notice (FMCSA-2015-0238), indicate the specific section of this document to which the comment applies, and provide a reason for suggestions or recommendations. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency
To submit your comment online, go to
FMCSA has authority under 49 U.S.C. 31136(e) and 31315(b) and 49 CFR 381.300(b) to renew an exemption from the FMCSRs for a 5-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.”
Under 49 CFR 393.23, all required lamps must be powered by the electrical system of the motor vehicle with the exception of battery powered lamps used on projecting loads. This requirement ensures that vehicle-supplied electrical power is connected to all required vehicle lamps during normal operation of the vehicle.
TowMate has requested a 5-year renewal of its exemption from 49 CFR 393.23,
[T]he use of conventional hard wired temporary stop, turn, and tail lights has many drawbacks that wireless tow lights solve. These drawbacks include broken connections, frayed wires, burnt out incandescent bulbs, and the potential to be snagged or pulled from the tow light receptacle due to improper running of wires, and road hazards, along with the safety hazard of increasing the amount of time spent on the roadside or the scene of an accident by stringing wired lighting systems between vehicles and securing the wires. With the advent of LED technology coupled with advancements in battery technologies, wireless tow lights are more reliable and better equipped for the rigors of daily temporary use. . . .
Temporary wireless stop, turn, tail lighting systems can operate for 10+ hours of continuous use on a full charge, and in-cab wire-less monitoring systems give the driver constant information on the functioning of the system, displaying state of charge of the battery inside the unit, displaying the functioning of the system during operation, and warning the driver if the unit is no longer functioning. In this sense, wireless tow lights provide a level of safety and redundancy that is not currently required on wired temporary lighting systems. In an emergency situation with a drained battery, power can be directly connected to the temporary wireless stop, turn, and tail lighting system from a standard 4 pin or 7 pin electrical connection. . . .
Without the proposed temporary exemption, [tow and haul away] operators will be forced to continue to use cumbersome wired temporary towing light systems, placing an unnecessary burden on their daily operations. The current temporary lighting requirements for stop, tail, and turn lamps require that the lamps receive their power from a direct wired connection to the towing vehicle with no ascertainable benefit from doing such. Wireless tow lights afford benefits that wired systems are unable to, such as redundancies like monitoring the status of the unit in real time, thus assuring their proper operation at all times.
In its original application, TowMate utilized the same justification that rechargeable wireless temporary stop, turn, and tail lighting systems solve many of the safety issues inherent with wired temporary lighting systems. Based on TowMate's application, FMCSA granted a two-year exemption on February 9, 2016 (81 FR 6927), and subsequently renewed that exemption for five years from February 9, 2018, to February 9, 2023 (83 FR 6306).
FMCSA is not aware of any evidence showing that the operation of rechargeable wireless temporary stop, turn, and tail lighting systems during temporary towing operations during the current exemption has resulted in any degradation of safety. The Agency believes that extending the exemption for a period of five years will likely achieve a level of safety that is equivalent to, or greater than, the level of safety achieved without the exemption because the use of hard-wired temporary stop, turn, and tail lights has many drawbacks that wireless tow lights solve. These include broken connections, frayed wires, the potential for lights to be snagged or pulled from the tow light receptacle due to improper running of wires, and road hazards. The use of rechargeable wireless lighting system also reduces the amount of time that would be spent on the roadside or the scene of an accident stringing wired lighting systems between vehicles and securing the wires. With the advent of LED technology, coupled with advancements in battery technologies, wireless tow lights are more reliable and better equipped for the rigors of daily temporary use and will likely achieve a level of safety that is equivalent to, or greater than, the level of safety achieved without the exemption.
FMCSA is provisionally renewing the exemption for a period of five years subject to the terms and conditions of this decision and the absence of public comments that would cause the Agency to terminate the exemption at an earlier date under Sec. V.D. below. The exemption from the requirements of 49 CFR 393.23, is otherwise effective from February 9, 2023, through February 9, 2028, 11:59 p.m. EST unless rescinded.
The exemption is restricted to motor carriers operating rechargeable wireless temporary stop, turn, and tail lighting systems that do not meet the lighting power supply requirements of 49 CFR 393.23, provided the requirements of 49 CFR 393.17(b)(2) are met.
Drivers operating under the exemption must comply with all other applicable FMCSRs (49 CFR parts 350-399).
In accordance with 49 U.S.C. 31315(d), as implemented by 49 CFR 381.600, during the period this exemption is in effect, no State shall enforce any law or regulation applicable to interstate commerce that conflicts with or is inconsistent with this exemption with respect to a firm or person operating under the exemption. States may, but are not required to, adopt the same exemption with respect to operations in intrastate commerce.
The exemption will be valid for five years unless rescinded earlier by FMCSA. The exemption will be rescinded if: (1) motor carriers and/or
Interested parties possessing information that would demonstrate that companies operating under this exemption are not achieving the requisite statutory level of safety should immediately notify FMCSA. Such information may be reported via email to
In accordance with 49 U.S.C. 31315(b), FMCSA requests public comment from all interested persons on TowMate's application for renewal of its exemption from 49 CFR 393.23.
All comments received before the close of business on the comment closing date indicated at the beginning of this notice will be considered and will be available for examination in the docket at the location listed under the
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of availability and request for comments.
This document provides the public with notice that, on April 11, 2023, Metro-North Railroad (MNR) submitted a request for amendment (RFA) to its FRA-approved Positive Train Control Safety Plan (PTCSP). As this RFA involves a request for FRA's approval of proposed material modifications to an FRA-certified positive train control (PTC) system, FRA is publishing this notice and inviting public comment on the railroad's RFA to its PTCSP. MNR state that this RFA is for an update to MNR's PTC Onboard Software, release OBC 5.04.000, correcting existing defects. With the successful completion of Factory and Field Testing and Supplier Safety Certification, MNR confirms the changes meet all technical requirements, provide an equivalent or greater level of safety than the existing PTC System in service, and does not adversely impact interoperability with tenant railroads.
FRA will consider comments received by May 9, 2023. FRA may consider comments received after that date to the extent practicable and without delaying implementation of valuable or necessary modifications to a PTC system.
Gabe Neal, Staff Director, Signal, Train Control, and Crossings Division, telephone: 816-516-7168, email:
In general, title 49 United States Code (U.S.C.) section 20157(h) requires FRA to certify that a host railroad's PTC system complies with title 49 Code of Federal Regulations (CFR) part 236, subpart I, before the technology may be operated in revenue service. Before making certain changes to an FRA-certified PTC system or the associated FRA-approved PTCSP, a host railroad must submit, and obtain FRA's approval of, an RFA to its PTCSP under 49 CFR 236.1021.
Under 49 CFR 236.1021(e), FRA's regulations provide that FRA will publish a notice in the
Interested parties are invited to comment on MNR's RFA to its PTCSP by submitting written comments or data. During FRA's review of this railroad's RFA, FRA will consider any comments or data submitted within the timeline specified in this notice and to the extent practicable, without delaying implementation of valuable or necessary modifications to a PTC system.
In accordance with 49 CFR 211.3, FRA solicits comments from the public to better inform its decisions. DOT posts these comments, without edit, including any personal information the commenter provides, to
Pipeline and Hazardous Materials Safety Administration (PHMSA); DOT.
Notice.
PHMSA is publishing this notice to solicit public comments on a request for special permit received from the Florida Gas Transmission Company, LLC (FGT). The special permit request is seeking relief from compliance with certain requirements in the federal pipeline safety regulations. At the conclusion of the 30-day comment period, PHMSA will review the comments received from this notice as part of its evaluation to grant or deny the special permit request.
Submit any comments regarding this special permit request by May 19, 2023.
Comments should reference the docket number for this special permit request and may be submitted in the following ways:
•
•
•
•
There is a privacy statement published on
PHMSA received a special permit request from FGT on March 27, 2023, seeking a waiver from the requirements of 49 CFR 192.611(a)(3)(iii): Change in class location: Confirmation or revision of maximum allowable operating pressure. Section 49 CFR 192.611(a)(3)(iii) requires a pressure test of 0.667 times the alternative maximum allowable operating (Alternative MAOP) for a Class 3 location.
This special permit is being requested in lieu of a pressure reduction or new pressure tests for Class 1 or 2 to Class 3 location changes on four (4) gas transmission special permit segments totaling 3,135 feet (approximately 0.594 miles). The proposed special permit segments have been previously pressure tested to either 1,899 pounds per square inch gauge (psig) or 1,900 psig. An Alternative MAOP of 1,333 psig in a Class 3 location requires a pressure test of 2,000 psig. The pipe wall thickness and strength meet the requirements of 49 CFR 192.611(a) for a Class 1 or 2 to Class 3 location change. The pipeline segments are as follows:
The special permit request, proposed special permit with conditions, and draft environmental assessment (DEA) for the above listed FGT pipeline segments are available for review and public comments in Docket Number PHMSA-2023-0022. PHMSA invites interested persons to review and submit comments on the special permit request
Before issuing a decision on the special permit request, PHMSA will evaluate all comments received on or before the comments closing date. Comments received after the closing date will be evaluated, if it is possible to do so without incurring additional expense or delay. PHMSA will consider each relevant comment it receives in making its decision to grant or deny this special permit request.
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List (SDN List) based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See
OFAC: Andrea Gacki, Director, tel.: 202-622-2490; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel.: 202-622-4855; or the Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On April 14, 2023, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following persons are blocked under the relevant sanctions authority listed below.
Internal Revenue Service (IRS), Treasury.
Notice.
This notice is provided in accordance with IRC section 6039G of the Health Insurance Portability and Accountability Act (HIPAA) of 1996, as amended. This listing contains the name of each individual losing United States citizenship (within the meaning of section 877(a) or 877A) with respect to whom the Secretary received information during the quarter ending March 31, 2023. For purposes of this listing, long-term residents, as defined in section 877(e)(2), are treated as if they were citizens of the United States who lost citizenship.
Notice is hereby given, pursuant to 5 U.S.C. App. 2, 10(a)(2), that a meeting will be held at the United States Treasury Department, 15th Street and Pennsylvania Avenue NW, Washington, DC on May 2, 2023, at 9:15 a.m., of the following debt management advisory committee: Treasury Borrowing Advisory Committee.
At this meeting, the Treasury is seeking advice from the Committee on topics related to the economy, financial markets, Treasury financing, and debt management. Following the working session, the Committee will present a written report of its recommendations. The meeting will be closed to the public, pursuant to 5 U.S.C. App. 2, 10(d) and Public Law 103-202, § 202(c)(1)(B)(31 U.S.C. 3121 note).
This notice shall constitute my determination, pursuant to the authority placed in heads of agencies by 5 U.S.C. App. 2, 10(d) and vested in me by Treasury Department Order No. 101-05, that the meeting will consist of discussions and debates of the issues presented to the Committee by the Secretary of the Treasury and the making of recommendations of the Committee to the Secretary, pursuant to Public Law 103-202,§ 202(c)(1)(B).
Thus, this information is exempt from disclosure under that provision and 5 U.S.C. 552b(c)(3)(B). In addition, the
Although the Treasury's final announcement of financing plans may not reflect the recommendations provided in reports of the Committee, premature disclosure of the Committee's deliberations and reports would be likely to lead to significant financial speculation in the securities market. Thus, this meeting falls within the exemption covered by 5 U.S.C. 552b(c)(9)(A).
The Office of Debt Management is responsible for maintaining records of debt management advisory committee meetings and for providing annual reports setting forth a summary of Committee activities and such other matters as may be informative to the public consistent with the policy of 5 U.S.C. 552(b). The Designated Federal Officer or other responsible agency official who may be contacted for additional information is Fred Pietrangeli, Director for Office of Debt Management (202) 622-1876.
Department of Veterans Affairs (VA).
Notice of a re-establishment for a matching program.
This computer matching agreement sets forth the terms, conditions, and safeguards under which the Internal Revenue Services (IRS) will disclose tax return information to the Department of Veterans Affairs, Veterans Health Administration (VA/VHA). VA/VHA will use the tax return information to verify veterans' employment status and earnings to determine eligibility for its health benefit programs.
Comments on this matching program must be received no later than May 19, 2023. If no public comment is received during the period allowed for comment or unless otherwise published in the
Comments may be submitted through
Stacey Echols, Director, Health Eligibility Center VHA Member Services, Department of Veterans Affairs, 2957 Clairmont Rd. NE, Suite 200, Atlanta, GA 30329, Email:
The Health Eligibility Center (HEC) verifies the self-reported income of certain veterans whose eligibility for medical care is based on income level. HEC is an entity within the VHA, Member Services.
“Tax return information,” for purposes of this agreement, means IRS records obtained under the authority of 26 U.S.C. 6103 concerning the amount of an individual's earnings from wages or self-employment income, the period(s) involved, and the identities and addresses of employers.
Department of Veterans Affairs, Veterans Health Administration (VA/VHA), and Internal Revenue Services (IRS)
The Internal Revenue Code (IRC), 26 U.S.C. 6103(l)(7)(B), authorizes the IRS to disclose return information with respect to unearned income, as defined by relevant sections of the IRC, to VHA for the purposes or administering certain health care programs under sections 1710(a)(2)(G), 1710(a)(3), and 1710(b) of Title 38, United States Code (U.S.C). The authority for VHA to enter into this matching program with IRS is contained in 38 U.S. C. 5317. VHA has a statutory obligation to collect income information from certain applicants for benefits and to use that income data to determine the applicant's eligibility for the benefits sought.
This computer matching agreement sets forth the terms, conditions, and safeguards under which the Internal Revenue Services (IRS) will disclose tax return information to the Department of Veterans Affairs, Veterans Health Administration (VA/VHA). VA/VHA will use the tax return information to verify veterans' employment status and earnings to determine eligibility for its health benefit programs.
Veterans applying for VA Health Care Benefits
VA/VHA will provide IRS with the following information for each individual for whom VA/VHA requests tax return information: SSN and the Name Control (first four characters of the surname) in accordance with the current IRS Publication 3373,
VHA will provide the IRS with identifying information with respect to applicants for and recipients of benefits available under programs cited in Article I.B. of this Agreement from VHA's System of Records entitled “Income Verification Records—VA” (89VA10NB) (Routine use nineteen (19)), as published at 73 FR 26192 (May 8, 2008), and updated at 78 FR 76897 (December 19, 2013). IRS will extract return information with respect to unearned income from the Information Return Master File (IRMF), Treas/IRS 22.061, as published at 80 FR 54081 (September 8, 2015), through the Disclosure of Information to Federal, State and Local Agencies (DIFSLA) Program.
The Senior Agency Official for Privacy, or designee, approved this document 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. John Oswalt, Chief Privacy Officer and Chair of the Data Integrity Board, Department of Veterans Affairs approved this document on March 10, 2023 for publication.
National Cemetery Administration, Department of Veterans Affairs.
Notice.
The National Cemetery Administration (NCA), 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 June 20, 2023.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Maribel Aponte, Office of Enterprise and Integration, Data Governance Analytics (008), 810 Vermont Ave. NW, Washington, DC 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, NCA invites comments on: (1) whether the proposed collection of information is necessary for the proper performance of NCA's functions, including whether the information will have practical utility; (2) the accuracy of NCA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
On July 29, 2022, the Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
The proposed rule change, as modified by Amendments Nos. 1 and 2, (hereinafter referred to as the “proposed rule change” unless otherwise specified) would amend the Codes to: (1) set forth requirements on expungement requests (a) filed during an investment-related, customer initiated arbitration (“customer arbitration”) by an associated person, or by a party to the customer arbitration on behalf of an associated person (an “on-behalf-of request”), or (b) filed by an associated person separate from a customer arbitration (“straight-in request”); (2) establish a roster of experienced public arbitrators from which a three-person panel
The proposed rule change was published for comment in the
Information regarding customer disputes involving associated persons is maintained in the Central Registration Depository (“CRD”). In general, the information in the CRD system is reported by registered broker-dealer firms (“firms” or “member firms”),
FINRA rules allow broker-dealers and their associated persons to seek expungement of certain customer dispute information from the CRD system and BrokerCheck.
Both the Customer Code and the Industry Code require arbitrators to hold a recorded hearing regarding, and review materials related to, the appropriateness of expungement of customer dispute information.
Regardless of whether expungement of customer dispute information is sought directly through a court or in arbitration, FINRA Rule 2080 requires a broker-dealer firm or associated person seeking expungement to obtain an order of a court of competent jurisdiction directing such expungement or confirming an award containing expungement.
FINRA Rule 12805 requires that arbitrators meet certain conditions in order to issue an award containing expungement of customer dispute information under the Customer Code.
The proposed rule change would amend FINRA Rule 12805 to set forth requirements addressing the method and timing for, and required contents of, expungement requests filed during a customer arbitration by an associated person or as an on-behalf-of request, including the types of expungement requests that must (or cannot) be made.
Currently, an associated person who is named as a respondent in a customer arbitration (“named associated person”) is not required to seek expungement of customer dispute information associated with the arbitration claim during the arbitration proceedings. Rather, the associated person can either request expungement at any time during the customer arbitration or separately from the customer arbitration in a straight-in request.
The proposed rule change would amend FINRA Rule 12805 to modify existing requirements and set forth new requirements for when and how a named associated person would file an expungement request during a customer arbitration.
Proposed Rule 12203(b) would authorize the Director to deny the DRS arbitration forum to requests made during a customer arbitration to expunge customer dispute information that is not associated with the customer's statement of claim. The Director would also be authorized to deny the forum if a named associated person does not request expungement of the customer dispute information associated with the customer's statement of claim during the customer arbitration but then seeks expungement of the same customer dispute information in a subsequent proceeding.
The proposed rule change would limit how and when expungement requests may be made by a named associated person during the customer arbitration. Under the proposed rule change, if a named associated person requests expungement during the customer arbitration, the request would be required to be included in the answer to the statement of claim or in a separate pleading requesting expungement.
The proposed rule change would also set forth content requirements for an expungement request made by a named associated person during a customer arbitration. Under the proposed rule change, a request for expungement by a named associated person in a customer arbitration would be required to include the applicable filing fee under the Customer Code.
According to FINRA, the Codes do not specifically address on-behalf-of requests.
Proposed Rule 12805(a)(2) would codify this practice to permit a party to a customer arbitration to file an on-behalf-of request that seeks to expunge customer dispute information associated with the customer's statement of claim during the customer arbitration (provided the request is eligible for arbitration under proposed Rule 12805).
To help ensure that an associated person that is the subject of an on-behalf-of request is aware of the request, the proposed rule change would require the unnamed person to consent in writing
The party making the request would also be required to file the request (including the Form) no later than 60 days before the first scheduled hearing.
Under the proposed rule change, an on-behalf-of request would be required to include the same elements as a request for expungement by a named associated person during a customer arbitration.
The proposed rule change would change when a panel is required to decide an expungement request (whether made by a named associated person or on behalf of an unnamed one) made during a customer arbitration. Specifically, when the panel would be required to decide an expungement request would depend on whether or not the customer arbitration closes: (1) by award after a hearing or (2) other than by award or by award without a hearing.
Currently, if a named associated person requests expungement, or a party files an on-behalf-of request, and the customer's claim closes by award after a hearing, the panel may consider and decide the expungement request during the customer arbitration and issue its decision in the award. If, however, the party requesting expungement does not pursue the issue of expungement during the hearing, the panel may not decide the request and may deem it withdrawn.
Under the proposed rule change, if a named associated person requests expungement or a party files an on-behalf-of request during a customer arbitration and the customer's claim closes by award after a hearing, the panel in the customer arbitration would be required to consider and decide the expungement request and issue its decision in the same award, even if the requesting party withdraws or fails to pursue the request (in which case the panel would deny the expungement request with prejudice).
Currently, if a named associated person requests expungement, or a party files an on-behalf-of request, the customer arbitration does not close by award after a hearing (
The proposed rule change would change this process. If the customer arbitration closes other than by award or by award without a hearing, the panel from the customer arbitration would not be permitted to decide the expungement request.
The proposed rule change would provide that if an associated person is not a party to a customer arbitration (
Currently, although the practice is relatively rare, associated persons sometimes file expungement requests against customers as new claims, separate from a customer arbitration.
As stated above, the Industry Code comprises the series of rules governing arbitrations for disputes between or among industry parties, such as between a member firm and an associated person. Under the proposed rule change, all requests to expunge customer dispute information that is not associated with a customer arbitration would be required to be filed as a straight-in request against the member firm with whom the associated person was associated at the time the subject of the request arose under proposed Rule 13805.
The process for initiating a straight-in-request for expungement of customer dispute information under the Industry Code would be governed, in part, by FINRA Rule 13302. This rule provides, in relevant part, that to initiate an arbitration, a claimant must file with the Director a signed and dated Submission Agreement, and a statement of claim specifying the relevant facts and remedies requested through the DR Party Portal (“Portal”).
The required content of a straight-in request under the Industry Code would be the same as that required for expungement requests filed under the Customer Code.
If an associated person files a straight-in request in accordance with proposed Rule 13805, a three-person panel randomly selected from the Special Arbitrator Roster pursuant to proposed Rule 13806 would be required to hold an expungement hearing, decide the expungement request, and issue an award.
The proposed rule change would include several requirements to help ensure that arbitrators on the Special Arbitrator Roster have the qualifications and training to decide straight-in requests.
First, the proposed rule change would require arbitrators on the Special Arbitrator Roster to be public arbitrators who are eligible for the chairperson roster (“public chairperson”).
Second, the proposed rule change would require arbitrators on the Special Arbitrator Roster to have evidenced successful completion of, and agreement with, enhanced expungement training provided by FINRA.
Third, the proposed rule change would require arbitrators on the Special Arbitrator Roster to have served as an arbitrator through award on at least four customer arbitrations administered by FINRA or by another SRO in which a hearing was held.
The proposed rule change would require the Neutral List Selection System (“NLSS”)
Currently, the Codes provide minimal constraints on making expungement requests. FINRA Rules 12805 and 13805 do not address when a party would not be permitted to file an expungement request in the DRS arbitration forum.
The Guidance provides that if a panel or a court has issued an award or decision denying an associated person's expungement request, the associated person may not request expungement of the same customer dispute information in another arbitration proceeding. In particular, the Guidance states that arbitrators should ask a party requesting expungement whether an arbitration panel or a court previously denied expungement of the customer dispute information at issue and, if there has been a prior denial, the arbitration panel should deny the expungement request.
The proposed rule change would codify the Guidance by providing that an associated person may not file a request for expungement of customer dispute information if: (1) a panel held a hearing to consider the merits of the associated person's expungement request for the same customer dispute information; or (2) a court of competent jurisdiction previously denied the associated person's request to expunge the same customer dispute information.
As discussed below, under the proposed amendments, four additional limitations would apply to straight-in requests.
The Guidance provides that an associated person may not file a separate request for expungement of customer dispute information arising from a customer arbitration until the customer arbitration has concluded.
Under the Codes, arbitration awards are final and binding unless vacated based on the limited grounds set forth in applicable state or federal statutes.
As discussed above, under proposed Rule 12805(a)(1)(A) an associated person who is named in a customer arbitration would be required to request expungement of associated customer dispute information during the arbitration or forfeit the ability to seek to expunge the customer dispute information associated with the customer's statement of claim in any subsequent proceeding.
FINRA Rules 12206(a) and 13206(a) require an associated person to submit a claim within six years from the occurrence or event giving rise to the claim. This six-year eligibility rule applies to all arbitration claims, including those requesting expungement of customer dispute information.
The proposed rule change would also establish time limits for requests to expunge customer dispute information arising from customer arbitrations and civil litigations that close, and for customer complaints that were initially reported to the CRD system, on or prior to the effective date of the proposed rule change.
The proposed rule change would require the Director to decline the use of the DRS arbitration forum if an associated person files an expungement request that the Director determines is ineligible for arbitration under proposed Rules 12805 and 13805.
FINRA Rules 12805 and 13805 currently provide a list of requirements panels must follow in order to issue an award containing expungement relief.
The Codes currently require a panel deciding an expungement request to hold a recorded hearing session (by telephone or in person) regarding the appropriateness of expungement.
The proposed rule change would require the associated person whose information in the CRD system is the subject of the expungement request to appear in person or by video conference at the expungement hearing and eliminate the ability to appear via telephone.
The Guidance states that it is important to allow customers and their representatives to participate in the expungement hearing if they wish to do so.
• Allow the customer and their representative to appear at the expungement hearing;
• Allow the customer to testify (telephonically, in person, or by other method) at the expungement hearing;
• Allow the representative for the customer or a pro se customer to introduce documents and evidence at the expungement hearing;
• Allow the representative for the customer or a pro se customer to cross-examine the associated person or other witnesses called by the party seeking expungement; and
• Allow the representative for the customer or a pro se customer to present opening and closing arguments if the panel allows any party to present such arguments.
The proposed rule change would codify these provisions of the Guidance.
Specifically, the proposed rule change would state that all customers whose customer dispute information is associated with the expungement request are entitled to attend and participate in all aspects of the prehearing conferences and the expungement hearing.
The proposed rule change would also specify certain parameters of the customer's participation.
Second, the customer and the customer's witnesses would be allowed to testify at the expungement hearing and be questioned by the customer or customer's representative.
Third, the customer or customer's representative would be permitted to state objections to evidence and cross-examine the associated person or party requesting expungement on behalf of an unnamed person and any other witnesses called during the expungement hearing.
Fourth, the customer or customer's representative would be permitted to present opening and closing arguments if the panel permits any party to present such arguments.
FINRA stated that customer attendance and participation during an expungement hearing would provide the panel with important information and perspective that it might not otherwise receive. In addition, by providing customers with options for how to attend and participate in hearings FINRA seeks to encourage customer attendance and participation.
The proposed rule change would explicitly authorize a panel to request from the associated person, the party requesting expungement on behalf of an unnamed person, and the member firm at which the person was associated at the time the customer dispute arose, as applicable, any documentary, testimonial or other evidence that the panel deems relevant to the expungement request.
Current FINRA Rules 12805(b) and 13805(b) provide that, in the event a customer dispute is resolved by settlement, the panel considering the expungement request must review the settlement documents and consider the amount of payments made to any party and any other terms and conditions of the settlement.
In addition, the Guidance currently recommends that arbitrators inquire and fully consider whether a party conditioned a settlement of a customer dispute upon an agreement not to oppose the request for expungement in cases in which the customer does not attend or participate in the expungement hearing or the requesting party states that a customer has indicated that the customer will not oppose the expungement request.
Unlike arbitration cases generally, which may be decided based on a majority decision of the panel, the proposed rule change would require that the arbitrators agree unanimously to issue an award containing expungement relief.
The panel is currently required “to provide a `brief' written explanation of the reasons for its finding that one or more of the [FINRA Rule 2080] grounds for expungement applies to the facts of the case.”
The proposed rule change would state that a panel shall not give any evidentiary weight to a decision by a customer or an authorized representative of state securities regulators (“authorized representative”) not to attend or participate in an expungement hearing when making a determination of whether expungement is appropriate.
The proposed rule change would retain the current requirements in FINRA Rules 12805(d) and 13805(d) that address how DRS arbitration forum fees are assessed in expungement hearings. Specifically, the proposed rule change would state that the panel must assess against the parties requesting expungement all DRS arbitration forum fees for each hearing session in which the sole topic is the determination of the appropriateness of expungement.
According to FINRA, the Guidance suggests that when a straight-in request is filed against a firm, arbitrators order the associated person to provide a copy of the statement of claim to the customers involved in the customer dispute that gave rise to the customer dispute information maintained in the CRD system.
The proposed rule change also would require the associated person to file with the panel proof of service for the statement of claim and any answers, copies of all documents provided by the associated person to the customers, and copies of all communications sent by the associated person to the customers and any responses received from the customers.
FINRA stated that providing notification to customers would help ensure that the customers know about the expungement request and have an opportunity to attend and participate in the expungement hearing or provide a position in writing regarding the associated person's request. FINRA also stated that requiring the panel to review all documents that the associated person used to inform the customers about the expungement request as well as any customer responses received would help ensure that the associated person does not attempt to dissuade a customer from attending or participating in the expungement hearing.
The proposed rule change would require the Director to notify all customers whose customer arbitrations, civil litigations or customer complaints are a subject of the expungement request, of the time, date and place of any prehearing conferences and the expungement hearing.
The proposed rule change would require FINRA to notify state securities
The proposed rule change would provide a mechanism for an authorized representative of a state securities regulator to provide their position or positions on an expungement request in writing or by attending and participating in the expungement hearing in person or by video conference.
The proposed rule change would also require the Director to provide state securities regulators with access to all documents relevant to: (1) the expungement request filed in the arbitration requesting expungement relief; and (2) any other customer arbitration brought under the Customer Code that is associated with the customer dispute information that is a subject of the expungement request.
If the Director receives notification from an authorized representative no later than 30 days after the last answer is due that the authorized representative intends to attend and participate in the expungement hearing, the proposed rule change would require the Director to notify the authorized representative of the time, date and place of any prehearing conferences and the expungement hearing.
According to FINRA, the authorized representative would not be considered a party to the proceeding and their attendance and participation would be limited to what is authorized by proposed Rule 13805(c)(6).
FINRA stated that allowing an authorized representative to attend and participate in straight-in requests may provide meaningful opposition to the expungement request, which might otherwise be unopposed, and thus help create a more complete factual record for the panel to rely upon to decide the expungement request.
FINRA Rule 12800, governing simplified arbitration,
The customer who files a simplified arbitration determines how the claim will be decided. In particular, the customer has the option of having the case decided in one of three ways: (1) without a hearing (referred to as “on the papers”), where the arbitrator decides the case on the pleadings or other materials; (2) in an “Option One” full hearing, in which prehearings and hearings on the merits take place pursuant to the regular provisions of the Customer Code; or (3) in an “Option Two” special proceeding, whereby the parties present their case in a hearing to the arbitrator in a compressed timeframe, so that the hearings last no longer than one day.
FINRA Rule 12800 does not expressly address how an expungement request should be filed or considered during a simplified arbitration.
The proposed rule change would permit a named associated person to request expungement, or a party to file an on-behalf-of request, during a simplified arbitration.
Under the proposed rule change, an associated person named as a respondent in a simplified arbitration could request expungement during the arbitration of the customer dispute information associated with the customer's statement of claim, provided the request is eligible for arbitration.
The arbitrator would be required to decide an expungement request that is filed by the associated person.
Under the proposed rule change, the requirements for a party to file an on-behalf-of request during a simplified arbitration would be the same as the requirements for a named associated person filing an expungement request during a simplified arbitration. A named party would only be able to file an on-behalf-of request during a simplified arbitration with the consent of the unnamed person.
The arbitrator would be required to decide an on-behalf-of request that is filed by the requesting party.
If expungement is not requested during a simplified arbitration under proposed Rule 12800(d), the associated person would be able to file a straight-in request under proposed Rule 13805 and have the request decided by a three-person panel randomly selected from the Special Arbitrator Roster.
If expungement is requested during simplified arbitration, the arbitrator would be required to decide the expungement request, regardless of how the simplified arbitration closes (
If the customer opts not to have a hearing or chooses an “Option Two” special proceeding, the arbitrator would decide the customer's dispute first and issue an award.
If the customer chooses to have an “Option One” full hearing on their claim and it closes by award, the arbitrator would be required to consider and decide the expungement request during the customer arbitration and include the decision on the expungement request in the same award as the decision on the customer arbitration.
If the customer arbitration closes other than by award or by award without a hearing, the arbitrator would be required to hold a separate expungement-only hearing to consider and decide the expungement request and issue a separate award containing the decision on the expungement
The proposed rule change would require the Director to notify all customers from the simplified arbitration of a separate expungement-only hearing.
The proposed rule change would also amend the Codes to make non-substantive, technical changes to the rules impacted by the proposed rule change. For example, the proposed rule change would require the renumbering of paragraphs and the updating of cross-references in the rules impacted by the proposed rule change. In addition, the title of Part VIII of the Customer Code would be amended to add a reference to “Expungement Proceedings.” Similarly, the title of Part VIII of the Industry Code would be amended to add a reference to “Expungement Proceedings” and “Promissory Note Proceedings.” FINRA is also proposing to re-number current FINRA Rule 13806 (Promissory Note Proceedings) as new FINRA Rule 13807, without substantive change to the current rule language and to amend FINRA Rule 13214 to change the cross references from Rules 13806(d)(1) and 13806(f) to Rules 13807(d)(1) and 13807(f), respectively. Finally, FINRA would also amend FINRA Rule 13600 to change the cross reference from Rule 13806(e)(1) to Rule 13807(e)(1).
After careful review of the proposed rule change, the comment letters, and FINRA's responses to the comments, the Commission finds that the proposed rule change is consistent with the requirements of the Exchange Act and the rules and regulations thereunder that are applicable to a national securities association.
The proposed rule change to amend FINRA Rule 12805 would, in part, govern how and when named associated persons may request expungement during a customer arbitration. Among other things, the proposed rule change would require that a named associated person file a request for expungement of the customer dispute information associated with the customer's statement of claim in the customer arbitration or forfeit the ability to request expungement of the same customer dispute information in a subsequent proceeding.
The proposed rule change would also dictate the method of and deadline for filing an expungement request.
Finally, the proposed rule change would further prescribe the contents of an expungement request.
FINRA stated that requiring the named associated person to request expungement in the customer arbitration increases the likelihood that a panel will have input from all parties and access to all of the evidence, testimony and other documents to make an informed decision on the expungement request.
Finally, FINRA stated the proposed 60-day deadline would provide adequate time for: (1) the named associated person to assess the customer's case, the potential merits of an expungement request, and whether to file the request; and (2) the parties to a customer arbitration to prepare their expungement-related arguments, since the expungement issues will overlap with the issues raised by the customer's claim.
Four commenters supported, and there was no opposition to, these aspects of the proposed rule change.
The Commission believes that the proposed rule change should improve the integrity of the expungement process. Where a customer arbitration closes by award after a hearing, the panel's experience with the parties and the dispute, as well as the panel's review of the documents, testimony, and other evidence in connection with the arbitration, should leave the panel well positioned to make a decision regarding the related expungement request. Moreover, requiring the expungement request to be made within 45 days of receipt of the customer's statement of claim (if included in the answer) or no later than 60 days before the first scheduled hearing begins (if included in a pleading) should allow the requesting party a reasonable amount of time to make an informed decision about whether to request expungement while at the same time providing the parties with reasonable case-preparation time, since the expungement issues will likely overlap with the issues raised by the customer's claim.
Further, the content required for an expungement request under the proposed rule change, including the CRD occurrence number that is the subject of the request, the case name and docket number associated with the customer dispute information, and whether expungement of such information had previously been requested and any resolution thereof, should improve the expungement process by clearly documenting both the request and whether it repeats a previous request. The required content would provide the panel with information sufficient to understand who is requesting expungement and in connection with which customer dispute.
As with expungement requests made by a named associated person, the proposed rule change would, in part, govern how and when an on-behalf-of request may be made during a customer arbitration. For example, proposed Rule 12805(a)(2)(C)(iii) would require the party making the request to file it no later than 60 days before the first scheduled hearing.
In addition, proposed Rule 12805(a)(2)(C)(ii) would require the party filing an on-behalf-of request to submit to the Director the Form signed by the unnamed person and a statement requesting expungement. As discussed above, by signing the Form the unnamed person would be: (1) consenting to the on-behalf-of request, (2) agreeing to be bound by the panel's decision on the on-behalf-of request, and (3) acknowledging their understanding that if the customer arbitration closes by award after a hearing, the unnamed person would be barred from filing a request for expungement for the same customer dispute information in a subsequent proceeding.
Finally, proposed Rules 12805(a)(1)(C)(ii) and 12805(a)(2)(C)(i) would require the party requesting expungement on behalf of an unnamed person to provide: the applicable filing fee; the CRD number of the unnamed person; each CRD occurrence number that is the subject of the request; the case name and docket number associated with the customer dispute information; and an explanation of whether expungement of the same customer dispute information was previously requested and, if so, how it was decided.
FINRA believes that requiring associated persons to sign and submit the Form would help address its concern that some associated persons are filing arbitration claims seeking expungement of the same customer dispute information that was the subject of a previous denial by a panel of an on-behalf-of request.
In addition, under the proposed rule change, on-behalf-of requests would resemble named associated person requests in timing (the proposed rule would require service on all parties no later than 60 days before the first scheduled hearing), and in content (an on-behalf-of request would be required to include the same elements as a named associated person request).
The Commission received no comment letters supporting or opposing this proposed rule change.
For reasons similar to those discussed above for expungement requests made by a named associated person in a customer arbitration, the Commission believes that these timing and content requirements should improve the integrity of the expungement process.
Further, the notice provided to the associated person pursuant to the requirement to submit the Form with the associated person's written consent should help ensure that the associated person is made aware of the on-behalf-of request and will likely help prevent inadvertent duplicative filings. The requirement that the associated person agree to be bound by the panel's decision on the request, and be barred from filing a request for expungement for the same customer dispute information, will help prevent the associated person from requesting expungement from a different panel if they are unsatisfied with the decision issued by the first panel. Such safeguards also help conserve resources and prevent inconsistent determinations.
As stated above, the proposed rule change would treat customer claims that close by award after a hearing differently from customer claims that close other than by award (
Conversely, where the customer's claim closes other than by award or closes by award without a hearing, the proposed rule change would preclude the panel that heard the customer claim from considering the ongoing expungement request.
Two commenters supported the proposed requirement that the panel in a customer arbitration decide an expungement request where the customer arbitration closes by award after a hearing.
Three commenters, however, suggested that associated persons should be able to voluntarily withdraw expungement requests without prejudice.
FINRA declined to amend the proposed rule change in response to comments. FINRA expressed concern that arbitrator-shopping and repeated attempts to seek expungement of the same customer dispute information are inconsistent with the arbitration process and threaten the integrity of the information in the CRD system because they permit parties to request expungement until they get a favorable response.
Two commenters also supported the proposed requirement that expungement requests made during customer arbitrations that close other than by award or close by award without a hearing, be heard by a panel from the Special Arbitrator Roster.
One commenter, however, contended that a named associated person who requests expungement during a customer arbitration that closes other than by award or that closes by award without a hearing should continue to be allowed to request an expungement-only hearing before the same panel from the customer arbitration.
FINRA considered these comments but declined to amend the proposed rule change.
The Commission believes the proposed rule changes are aimed at enhancing FINRA's expungement framework. On the one hand, they require a panel of arbitrators that has decided the merits of a case to leverage their understanding of the case to decide any related expungement requests; the panel would be required to decide the request even if the requesting party withdraws or fails to present a case in support of the request—in which case the panel would deny the expungement request with prejudice. This is both efficient and helps protect investors by preventing those requesting expungement from withdrawing and refiling their request to obtain new arbitrators when unsatisfied with the original panel. On the other hand, when a case closes other than by award or closes by award without a hearing, the efficiency benefits of having the same panel decide the request (while not eliminated) are diminished. Moreover, the risk that the expungement hearing will not benefit from either a fully developed record or the adversarial process increases. For example, a case may settle before the record has had a chance to develop and a customer who has settled their claims may have little incentive to commit more time and resources in a subsequent expungement hearing. Rather than leave it to arbitrators in individual cases to decide whether they have enough information to proceed to hear an expungement request, FINRA has established uniform, separate procedures to help ensure the development of an adequate factual record in connection with every expungement request. The proposed rule changes also aim to help ensure that arbitrators deciding straight-in expungement requests have the training and tools to develop an adequate factual record, particularly in the absence of customer participation. Finally, the proposed rule change allows for the effective administration of the expungement process and provides certainty to the parties about when requests for expungement may be made.
The Commission recognizes that in some cases the arbitrators from a customer arbitration could bring to a related standalone expungement hearing insights gleaned from their engagement with a well-developed factual record. Nevertheless, the proposed rule changes help ensure that every expungement request benefits from an adequate factual record. Moreover, it arms arbitrators on the Special Arbitrator Roster with the expungement-specific training and procedural tools necessary to develop and understand the factual record, regardless of both the state of the record prior to their involvement and the presence or absence of customers at the expungement hearing. Finally, it makes procedural improvements to facilitate customer participation in expungement hearings.
The proposed rule changes would prohibit an associated person from filing a straight-in request against a customer, and would prohibit unnamed persons from intervening in a customer arbitration and requesting expungement. FINRA stated that the proposed rule would help protect investors by preventing associated persons from interrupting, and thus delaying,
One commenter opposed the proposed prohibition against an associated person filing a straight-in request against a customer.
Two commenters objected to the proposed prohibition against expungement interventions by unnamed persons in customer arbitrations.
FINRA declined to amend the proposed rule change in response to comments. In the Notice and in response to comments, FINRA stated that in circumstances where an associated person is neither a named party nor the subject of an on-behalf-of request, the associated person's conduct is unlikely to be fully addressed by the parties during the customer arbitration, and permitting the unnamed person's intervention could unnecessarily interrupt or delay resolution of the case.
The Commission believes that prohibiting straight-in requests against customers, and prohibiting expungement interventions by unnamed persons in customer arbitrations, as proposed, will protect investors by conserving their time, resources, and ability to make their case efficiently and without interruption. The Commission appreciates that this will require the associated person to wait until the customer claim has been resolved to initiate a straight-in expungement proceeding, but believes such a delay is reasonable to help ensure that the related customer arbitration can be resolved as expeditiously as possible. Moreover, the panel selected from the Special Arbitrator Roster deciding the expungement request would have the benefit of any final factual record from the related customer dispute.
The proposed rule change would provide that an associated person may not file a request for expungement of customer dispute information if: (1) a panel held a hearing to consider the merits of the associated person's expungement request for the same customer dispute information; or (2) a court of competent jurisdiction previously denied the associated person's request to expunge the same customer dispute information.
FINRA stated that the proposed rule changes would prevent an associated person from forum shopping, or seeking to return to the DRS arbitration forum to garner a favorable outcome on their expungement request.
The proposed rule changes should help prevent an associated person, or firm seeking expungement on their behalf, from forum-shopping to garner a more favorable outcome on an expungement request. As such, the proposed rule change should help protect the integrity of the information in the CRD system.
Proposed Rule 13805 would require an associated person to make any request to expunge disclosures of customer dispute information (other than requests made in a customer arbitration itself) as a straight-in request, and would limit the circumstances in which an associated person could request expungement.
Two commenters recommended that FINRA adopt an alternative for unnamed parties to request expungement other than by straight-in requests.
FINRA responded that its existing rules help ensure that associated persons are aware of arbitration disclosures on their Forms U4 and U5.
Two commenters supported the proposed rule change regarding straight-in requests, but recommended that FINRA prohibit associated persons from filing a straight-in request to expunge multiple, unrelated requests in one arbitration claim.
FINRA responded that the proposed time limits for filing a request
The Commission believes the requirements set forth in the proposed rule change are designed to promote investor protection because it should enhance the integrity of the CRD system. The firm with which the person requesting expungement was associated at the time the dispute arose should have knowledge of the dispute and access to relevant documentary or other evidence.
Also, the practice of bundling multiple, unrelated claims should be largely curtailed by the proposed time limits and requirement that claims be filed against the member firm at which the person was associated at the time the customer dispute arose; and that the constraints on parties' ability to influence the composition of the panel should minimize the use of pre-selected, expungement-friendly arbitrators.
Finally, associated persons should be aware of arbitration disclosures on their Forms U4 and U5.
In addition, as with named associated person requests, the proposed rule change also would establish content requirements for straight-in expungement requests.
The Commission received no comment letters supporting or opposing this proposed rule change.
The proposed form and content requirements are reasonable for straight-in requests. In particular, requiring an associated person to file their expungement request against the
The proposed rule change would establish a new framework for arbitrators hearing straight-in expungement requests. The proposed rule change would require a three-person panel
The Commission received no comment letters supporting or opposing this proposed rule change. However, as discussed above, the Commission received, and FINRA responded to, comments supporting and opposing similar procedures for deciding expungement requests during customer arbitration.
The Commission believes that requiring a panel selected from the Special Arbitrator Roster to decide a straight-in expungement request and deny a claim that is withdrawn or not pursued, would help to prevent an associated person from undermining the enhanced expungement framework with this form of arbitrator-shopping.
The proposed rule change would establish a Special Arbitrator Roster from which a three-person panel would be drawn to decide all straight-in expungement requests.
Once the Special Arbitrator Roster has been established, the proposed rule change would require that three members of that roster be selected at random to decide each expungement request filed under proposed Rule 13805.
Four commenters supported the proposed rule change's establishment of a Special Arbitrator Roster, the selection of a panel from this roster for expungement requests under the Industry Code, and the restrictions on parties' ability to influence the panel's composition.
Five commenters, however, objected to the proposed rule change's limitations on ranking and striking
FINRA stated that currently, based on its experience with straight-in requests filed in the DRS arbitration forum, associated persons typically file straight-in request for expungement against the broker-dealer firm at which the associated person is currently employed.
FINRA also recognized the potential for the proposed rule change to limit the associated person's and member firm's input on arbitrator selection for reasons that may be unrelated to whether the arbitrator would potentially be sympathetic to the expungement request, such as their perception of the arbitrator's competence or efficiency.
Given the potential lack of adverse parties in straight-in expungement requests, FINRA reasonably determined that the random selection of a set number of arbitrators is appropriate. Random arbitrator selection, along with other aspects of the proposed rule change (
Several commenters also recommended that FINRA expand the pool of arbitrators eligible to serve on the Special Arbitrator Roster, in particular to allow for non-public arbitrators, stating that such a change would bring securities industry expertise to deciding expungement requests.
Another commenter suggested not limiting the Special Arbitrator Roster to chair-qualified public arbitrators.
FINRA declined to amend the proposed rule change in response to these comments. FINRA stated that it “believes that having experienced public arbitrators, without significant ties to the financial industry, deciding straight-in requests would help achieve the goal of balancing the competing interests in the expungement process of providing a fair process and ensuring that information about associated persons that is available to investors is accurate.”
The Commission believes that FINRA reasonably determined which arbitrators would be eligible to serve on the Special Arbitrator Roster. Specifically, limiting eligibility to public arbitrators reasonably balances the competing interests in the expungement process of providing a fair process and ensuring the integrity of the information in the CRD system. This approach should also enhance the public's perception that the expungement process and rules are fair, which, in turn, should enhance the perception of the integrity of the information on the CRD system. In addition, the proposed eligibility requirements should help ensure that experienced arbitrators are deciding expungement requests in light of the public interest in the integrity of the information in the CRD system.
The proposed rule change would provide a mechanism for an authorized representative of a state securities regulator to present the state securities regulator's position on an expungement request in writing or by attending and participating in the expungement hearing in person or by video conference.
While an authorized representative of a state securities regulator would not be a party to the expungement hearing, the authorized representative would be permitted to: (1) introduce documentary, testimonial, or other evidence; (2) cross-examine witnesses; and (3) present opening and closing arguments if the panel allows any party to present such arguments.
In the Notice, FINRA stated that allowing an authorized representative to attend and participate in straight-in requests may provide meaningful opposition to the expungement request, which might otherwise be unopposed, and thus help create a more complete factual record for the panel to rely upon to decide the expungement request.
Seven commenters supported the proposed rule change's inclusion of state securities regulators in the expungement process.
Five commenters expressed concern about permitting state securities regulator participation in straight-in expungement hearings.
FINRA responded that state securities regulators are already notified about, and can participate in, proceedings at the state court confirmation level. FINRA Rule 2080 requires that FINRA be named as a party in such proceedings, unless this requirement is waived by FINRA. Upon receipt of a complaint naming FINRA or a request for a waiver from the requirement to name FINRA as an additional party, FINRA will notify NASAA of the complaint or waiver request. NASAA, in turn, will notify the appropriate state securities regulator.
FINRA also responded that the arbitrators who would decide straight-in
FINRA acknowledged that in person attendance and participation by an authorized state representative may be limited given state resource constraints. FINRA pointed out that the proposed rule change provides low-cost options to help facilitate state participation; specifically, that it would permit the authorized representative to attend and participate via video conference or submit a state's position in writing.
The Commission believes that permitting attendance and participation by state securities regulators in straight-in expungement proceedings, which have a higher likelihood of proceeding unopposed, and providing state regulators low-cost options to do so, will enhance the straight-in expungement process. Specifically, including state securities regulators and providing them with access to documents relevant to the expungement request provides them the opportunity to fulfill their own regulatory obligations, while at the same time increasing the likelihood that the panel in an expungement proceeding will hear evidence from multiple viewpoints, thus allowing the panel to make more informed decisions. At the same time, the conditions applicable to state securities regulator participation are designed so that they do not delay the resolution of an expungement request and allow the claimants the opportunity to challenge any information presented in the forum by the state's representative. As such, the proposed rule change appropriately balances the interests of state regulators in the expungement process, as well as their need to allocate and preserve resources, with the importance of maintaining an efficient and cost effective process for associated persons requesting expungement.
Two commenters recommended that FINRA extend the option for a state regulator's representative to participate in other expungement requests, including those in customer arbitration,
FINRA declined to amend the proposed rule change in response to these comments. FINRA stated that attendance or participation in a customer arbitration could substantially disrupt the customer's case and would likely be less impactful, as the panel from the customer arbitration hears the customer's evidence on the merits.
The Commission believes that it is reasonable for FINRA to limit state securities regulator participation to straight-in requests where there is a higher likelihood of proceeding without meaningful opposition and state participation may provide the greatest benefit. In customer arbitration, the panel will have the benefit of a balanced presentation of the merits of the case that should allow it to make an informed decision on the expungement request. Moreover, in simplified arbitration it is more likely that a customer will participate, providing their version of events, in an expungement hearing when it occurs soon after the panel makes an award based on the merits of the claim. Finally, FINRA stated it will continue to evaluate whether there are other ways to further strengthen the current expungement process, including whether to allow state securities regulators to attend and participate in separate expungement-only hearings in simplified arbitrations.
While expressing support for the proposed rule change, three commenters contended that expungement determinations are more appropriately a regulatory decision not properly adjudicated by FINRA's arbitration process.
FINRA did not amend the proposed rule change in response to these comments. FINRA stated that it believes it is important to pursue a two-track approach to improving the expungement process. In the near term, FINRA stated the integrity of the information in the CRD system should be better protected by adopting the “substantial improvements” to the current expungement process that can be achieved with the proposed rule change.
The proposed rule change is designed to strengthen the current expungement framework and to protect investors and the public interest. The proposed rule change's establishment of a special roster of specially qualified and trained arbitrators to decide certain expungement requests should help mitigate the potentially non-adversarial nature of straight-in expungement requests. In particular, the Commission believes that having three specially qualified and trained arbitrators available to ask questions and
The proposed rule change also would codify and expand upon other aspects of the Guidance applicable to straight-in requests, in particular those related to eligibility to file the request. For example, the proposed rule change would: prohibit an associated person from filing a straight-in request if the customer arbitration, civil litigation, or customer complaint that gave rise to the customer dispute information has not closed; establish time limits for expungement requests that are specifically tied to the close of customer arbitrations and civil litigations, or the reporting of customer complaints in the CRD system; and, prevent an associated person from filing an expungement request if (1) a panel or court of competent jurisdiction previously found the associated person liable in a customer arbitration or civil litigation associated with the same customer dispute information or (2) the customer dispute information involves the same conduct that is the basis of a final regulatory action
The proposed rule change would codify and expand upon the Guidance by providing that an associated person may not file a straight-in request if the customer arbitration, civil litigation, or customer complaint that gave rise to the customer dispute information has not closed, a limitation that is designed to prevent an associated person from obtaining a decision on an expungement request while the related customer dispute is ongoing.
The proposed rule change would help maintain the integrity of the information in the CRD system by helping to prevent inconsistent expungement decisions on related customer dispute information. The proposed rule change would also help ensure that the panel deciding the straight-in request is able to consider the final factual record from the customer arbitration or civil litigation.
Currently, FINRA Rules 12206(a) and 13206(a) require an associated person to submit an arbitration claim, including requests for expungement of customer dispute information, within six years from the occurrence or event giving rise to the claim.
With respect to customer arbitrations and civil litigations, FINRA stated that it believes the two-year period would help ensure that expungement hearings are held close enough in time to the customer arbitration or civil litigation such that information regarding the dispute is available and in a timeframe that could increase the likelihood of customer participation where a customer so chooses. The shorter timeframe, FINRA believes, should help encourage customer attendance and participation in expungement proceedings and help ensure that straight-in requests are brought before relevant evidence and testimony
With respect to customer complaints where there was no customer arbitration or civil litigation associated with the customer dispute information, FINRA stated that it believes that the three-year period would help ensure that the expungement hearing is held close in time to the events that gave rise to the customer dispute and increase the likelihood of customer attendance and participation. The three-year time limitation should also provide sufficient time for firms to complete their investigation of the complaint, for associated persons to develop a sense of whether the complaint may evolve into an arbitration or civil litigation, and for the associated person to gather the necessary resources and determine whether to seek expungement. FINRA also believes that the three-year time limitation may curtail requests to expunge customer complaints that are filed many years after first being reported to the CRD system and the bundling of multiple unrelated and aged disclosures in a single expungement request.
Six commenters supported the proposed time limitations.
Seven commenters objected to the time period limitations.
FINRA considered these comments but declined to amend the proposed rule change. FINRA responded that it believes that the proposed time limitations appropriately address its concern that a number of expungement requests are currently filed many years after a customer arbitration closes or the reporting of a customer complaint in the CRD system.
FINRA also stated that allowing two years from the close of the customer arbitration or civil litigation to bring an
FINRA acknowledged that there could be instances when associated persons may not be aware that a customer arbitration has closed, and that the two-year time limit for requesting expungement of customer dispute information has begun to run.
FINRA's time limitations seek to balance two competing interests: (1) promoting customer participation and the availability of evidence and (2) providing sufficient time for an associated person to determine whether to seek expungement and, in the case of customer complaints, for firms to investigate and close a complaint and for the complaint to evolve, or not, into arbitration or civil litigation. The Commission believes that the proposed rule change strikes a reasonable balance between these competing interests. Holding expungement hearings closer in time to the event that gave rise to the customer dispute information should promote the availability of evidence and customer participation, which would help contribute to more informed expungement determinations and therefore to investor protection and the integrity of information in the CRD system.
The proposed rule change, as modified by Amendments No. 1 and No. 2, would also preclude an associated person from filing an expungement request if: (1) a panel or court of competent jurisdiction previously found the associated person liable in a customer arbitration or civil litigation associated with the same customer dispute information or (2) the customer dispute information involves the same conduct that is the basis of a final regulatory action
FINRA included the proposed preclusion of expungement requests where the associated person was previously found liable in a customer arbitration or civil litigation associated with the same customer dispute information as an amendment to its proposed rule change in response, in part, to a commenter's recommendation.
Two commenters supported the amendment.
After further consideration of the issue, FINRA proposed a modification to the proposed rule change in Amendment No. 2 to provide that an associated person shall not file a claim requesting expungement of customer dispute information from the CRD system against a member firm at which the person was associated at the time the customer dispute arose if the customer dispute information involves
Permitting expungement following a finding of liability in an arbitration or civil litigation associated with the same customer dispute information or a final regulatory action based on the same conduct sought to be expunged would be inconsistent with the specified grounds that can form the basis for an expungement award under the proposed rule change (
The proposed rule change would permit a named associated person to request expungement, or a party to file an on-behalf-of request, during a simplified arbitration,
The proposed rule change would require an arbitrator in a simplified arbitration to decide an expungement request that is filed by an associated person or as an on-behalf-of request.
In addition, unlike in a regular customer arbitration, if expungement is not requested during a simplified arbitration, the proposed rule change would permit the associated person to file a straight-in expungement request for the same customer dispute information under the Industry Code and have the request decided by a three-person panel randomly selected from the Special Arbitrator Roster.
One commenter requested that a named associated person should be required to request expungement during the arbitration of the customer's claim, as proposed for non-simplified cases.
FINRA declined to amend the proposed rule change, referencing the expedited nature of simplified arbitrations.
Requiring an arbitrator to decide an expungement request that is filed in a simplified arbitration, regardless of the outcome of that arbitration, along with requiring an arbitrator to a reject such a request with prejudice if it is withdrawn, will help protect the integrity of the information in the CRD system by limiting an associated person's ability to request expungement for the same claim (even if it has been denied in the past) until they find a panel willing to award it. By allowing an associated person to determine
As stated above, if expungement is requested during a simplified arbitration, the proposed rule change would require the arbitrator to decide the expungement request regardless of how the simplified arbitration case closes, including by settlement, in one of two ways, depending on the how the customer chooses to have their claim decided.
If the customer chooses to have their claim decided either (1) “on the papers” (
Alternatively, if the customer chooses to have their claim decided by an “Option One” full hearing and it closes by award, the proposed rule change would require the arbitrator to consider and decide the expungement request during the customer arbitration and include the decision in the award.
If a simplified arbitration closes other than by award or closes by award without a hearing, however, the proposed rule change would require the arbitrator to hold a separate expungement-only hearing to consider and decide the expungement request and issue a separate award containing the decision on the expungement request.
Three commenters voiced support for the proposed rule change, specifically identifying the bifurcation of the expungement hearing and simplified arbitration where the customer's claim is decided “on the papers” or in an “Option Two” hearing.
Another commenter suggested that FINRA create a simplified process for expungement with similar fees and an “on the papers” option before a single arbitrator for requests for expungement associated with customer complaints and customer arbitrations under $50,000.
The proposed rule change's procedure for determining the order in which a panel would decide an expungement request in a simplified arbitration based on the type of proceeding chosen by the customer is reasonable. For example, where a customer opts to have their claim decided without a hearing (
The proposed rule changes would include certain procedural provisions that would apply to all expungement hearings. As described above, these would include procedural requirements relating to: (1) hearing format; (2) associated person's appearance; (3) customer attendance and participation; (4) panel requests for additional documents or evidence; (5) review of settlement documents; (6) requirement for a unanimous decision to issue an award containing expungement relief; (7) contents of an expungement award; (8) grounds for awarding expungement; (9) evidentiary weight of a decision by customers or authorized representatives not to attend or participate; and, (10) forum fees.
Current FINRA rules require a panel that is deciding an expungement request to hold a recorded hearing session (by telephone or in person) regarding the appropriateness of expungement.
This is an appropriate approach. Permitting parties to hold a recorded hearing session by video conference enhances party participation by making it more convenient and allowing others to read facial expressions of those testifying. In addition, by not limiting the number of hearing sessions a panel could schedule to hear an expungement request, the proposed rule change would help ensure that parties would not be limited in presenting their arguments.
The proposed rule change would require the associated person whose information in the CRD system is the subject of the expungement request to appear in person or by video conference at the expungement hearing.
No commenter supported or objected to these proposed changes. One commenter stated that “FINRA should be mindful that not all persons have the same kind of access to technology and bandwidth. As such, the panel should also have discretion to decide the appropriateness of the manner and form of the requesting . . . [associated person's] participation given the circumstances.”
Given the importance of protecting the integrity of the information in the CRD system, FINRA reasonably determined to require that a party requesting expungement appear at the expungement hearing either in person or by video conference. Such a requirement will allow the panel to better assess the testimony of such persons, but also provides flexibility to accommodate instances in which it may not be reasonable or necessary to require an in-person hearing. Leaving the manner of appearance within the panel's discretion is appropriate, as the panel will be free to require an in-person appearance where, from the panel's perspective, the record requires or will be improved by such an appearance.
The proposed rule change would codify certain provisions of the Guidance to: (1) allow the customer and their representative to appear at the expungement hearing;
FINRA stated that it believes that customer participation during an expungement hearing provides the panel with important information and perspective that it might not otherwise receive. Through the proposed rule change, FINRA seeks to make it easier for customers to participate and, thereby, to encourage them to do so.
Commenters both supporting and opposing the proposed rule change recommended modifications to these provisions.
In response to the first commenter, FINRA stated that arbitrators on the Special Arbitrator Roster would have the experience necessary to assess the credibility of those attending and participating in the hearing, as well as any documentary information. In addition, FINRA pointed out that the proposed rule change would give an associated person requesting expungement the opportunity to cross-examine a non-party customer if the person chooses to testify or any witness called by the customer or authorized representative.
FINRA responded to the other comment by making one of the proposed modifications in Amendment No. 1 to provide that customers would have the opportunity and ability to participate in all aspects of the hearing.
In response, FINRA stated that customer attendance and participation in expungement hearings helps the panel fully develop a record on which to decide the expungement request.
Customer participation during an expungement hearing should provide a panel with important information and perspective that it might not otherwise receive. The Commission also understands that customers may have little personal interest in participating in a hearing once their claim has been resolved. The proposed rule changes would implement enhancements to facilitate customer participation in those cases where customers wish to participate. The Commission further believes that the procedural safeguards will appropriately balance the ability of a customer to participate in a hearing and provide relevant information with the interest of an associated person in testing any such information through objection or cross-examination. This ability to object or cross-examine should also help address concerns that non-parties are not themselves subject to FINRA's jurisdiction.
The proposed rule change would codify the ability of the panel to request from the associated person, the party requesting expungement on behalf of an unnamed person, and the member firm at which the person was associated at the time the customer dispute arose, as applicable, any documentary, testimonial, or other evidence that the panel deems relevant to the expungement request.
One commenter expressed support for the proposed rule change and suggested that FINRA amend the proposed rule change to consider the failure to produce requested documents to be grounds for denial of the expungement request with prejudice.
The proposed rule change should help ensure that a panel receives the documents or information that it requests, and further that a panel is already empowered to dismiss a claim with prejudice for failure to comply with an order of the panel. Further, the arbitrator's critical role as fact-finder in deciding expungement requests requires that arbitrators have the ability to request evidence relevant to their decisions. By providing arbitrators with this power, the proposed rule change will help panels establish more fully developed records upon which to base awards.
The proposed rule change would retain current FINRA Rules 12805(b)'s and 13805(b)'s requirement for a panel considering an expungement request to review any related settlement documents and consider the amount of payments made to any party, and any other terms and conditions of the settlement.
Under current FINRA rules, consistent with arbitration cases generally, a panel may award expungement based on a majority decision of the arbitrators.
Five commenters supported the proposed unanimity requirement.
Six commenters, on the other hand, opposed the unanimity requirement.
FINRA declined to amend the proposed rule change and responded that requiring a unanimous decision of the arbitrators would help protect the integrity of the information in the CRD system and help ensure that the expungement process operates as intended.
Requiring a unanimous decision will help enhance the integrity of the information in the CRD system by helping ensure expungement will only be awarded when there is no disagreement among the arbitrators that the factual record supports it. The importance of the CRD system extends to all aspects of regulation of broker-dealers and registered representatives. Among other things, the information about firms and registered representatives available on CRD facilitates regulators, such as FINRA and the other SROs, state regulators, as well as the Commission, in meeting their regulatory obligations. In addition, certain information in the CRD system is available to the public through BrokerCheck; this information helps investors make better-informed choices about the registered representatives and broker-dealer firms with whom they may conduct business. For these reasons, the importance of the integrity of information in the CRD system militates against awarding expungement in circumstances where there may be disagreement about the merits of a claim.
One commenter recommended that the panel's unanimous decisions to expunge records should only be reached when the evidence presented in support of expungement meets a clear and convincing standard of proof.
FINRA declined to amend the proposed rule change in response to this recommendation. FINRA stated that to further clarify the limited circumstances under which arbitrators must decide expungement requests, the proposed rule change would expressly list in the Codes the narrow grounds in FINRA Rule 2080(b)(1) for deciding these requests.
The importance of the integrity of information in the CRD system militates against awarding expungement in circumstances where there may be disagreement about the merits of a claim. Thus, as stated above, requiring a unanimous decision will enhance the integrity of the information in the CRD system by helping ensure expungement will only be awarded when there is no disagreement among the arbitrators that the factual record supports it. Furthermore, by requiring a three-person panel of specially trained, specially qualified arbitrators to unanimously decide an expungement request based on three specified grounds
Current FINRA Rules 12805(c) and 13805(c) require that the panel provide a “brief” written explanation of the reasons for its finding that one or more of the grounds for expungement applies to the facts of the case. The proposed rule change would retain the requirements of current Rules 12805(c) and 13805(c) but would remove the word “brief.” As a result, the panel would be required to provide enough detail in the award to explain its rationale for awarding expungement relief.
One commenter suggested that FINRA “strengthen” this aspect of the proposed rule change by requiring arbitrators to provide a thorough explanation of how a request meets expungement's extraordinary standard, including an explanation of how the arbitrators determined that the requesting party's uncontested assertions accurately reflected the truth of the matter.
FINRA declined to amend the proposed rule change and responded that the panel's explanation would be required to not be solely a recitation of one of the grounds for awarding expungement relief or language provided in the expungement request and that the proposed rule change would require the panel to identify any specific documentary, testimonial, or other evidence on which the panel relied in awarding expungement relief.
Requiring a written rationale that specifically identifies the basis for an expungement award and the documents or other evidence that supports such an award should be sufficient both to help ensure that a panel has considered the available evidence and its bearing on the available bases for an expungement award and should help ensure that a panel has correctly identified a permissible ground for expungement. Further, the written rationale requirement should provide interested parties with enough information to understand the reasons for an expungement award.
As stated above, both currently and under the proposed rule change, an associated person may seek expungement of customer dispute information by obtaining a court expungement order by either: (1) going through the arbitration process and obtaining an award recommending expungement (and then obtaining a court order confirming the arbitration award); or (2) going directly to court (without first going through arbitration). Regardless of whether expungement of customer dispute information is sought directly through a court or by first going through arbitration, FINRA Rule 2080 requires an associated person seeking expungement to obtain a court order directing such expungement or confirming an award containing such expungement.
In addition to FINRA's ability to waive the obligation to name FINRA as a party under FINRA Rule 2080(b)(1), FINRA may also waive the requirement to name FINRA as a party to a court proceeding seeking confirmation of an arbitration award pursuant to FINRA Rule 2080(b)(2).
It is FINRA's view that, currently, in order to issue an award containing expungement relief, a panel must affirmatively find that one of the three grounds contained in FINRA Rule 2080(b)(1) has been met.
The proposed rule change would replace FINRA Rules 12805's and 13805's reference to FINRA Rule 2080 with an enumeration of the specific grounds identified in FINRA Rule 2080(b)(1) (
In FINRA's view, both FINRA and the Commission historically have treated the grounds in Rule 2080(b)(1) as the exclusive grounds upon which expungement may be awarded.
One commenter objected to this provision of the proposed rule change, positing that FINRA should not limit the grounds for when arbitrators can recommend expungement to those contained in current Rule 2080(b)(1), incorporated into proposed Rule 12805 and 13805, but should also allow arbitrators to recommend expungement on the grounds contained in Rule 2080(b)(2) by also incorporating those grounds into the proposed rule change.
FINRA disagreed with the commenter, stating that Rules 12805 and 13805 and their rulemaking history and related guidance establish that arbitrators in the forum are currently limited to the grounds enumerated in FINRA Rule 2080(b)(1)(A)-(C) when awarding expungement.
FINRA further stated that by approving FINRA Rule 2080 and FINRA Rules 12805 and 13805, the Commission demonstrated its expectation that a panel should indicate in the arbitration award which of the grounds for expungement in Rule 2080(b)(1)(A)-(C) serves as the basis for the expungement order.
FINRA also disagreed with the commenter that not permitting expungement on Rule 2080(b)(2) grounds would lead to inaccurate and misleading information in the CRD system.
In response to the commenter's assertion that FINRA has not justified the proposed rule changes, FINRA reiterated its view, stated in the Notice, that the proposed rule changes would further protect the integrity of the information in the CRD system.
Finally, FINRA also disagreed with the commenter's assertion that FINRA has not provided adequate notice or opportunity for public comment of its intent to amend FINRA Rules 12805 and 13805 to codify the exclusive grounds upon which an arbitration panel may issue an award containing expungement of customer dispute information from the CRD system.
The Commission's order approving Rules 12805 and 13805 stated that “in order to grant expungement of customer dispute information under Rule [2080], the panel must . . . indicate in the arbitration award which of the grounds
The proposed rule change would also help protect the integrity of information in the CRD system by helping ensure that expungement remains an extraordinary remedy limited to narrow, enumerated circumstances. The Commission also believes that FINRA's decision to limit the grounds for expungement to those enumerated in Rule 2080(b)(1) is appropriate. Because Rule 2080(b)(2) describes a general standard for FINRA to consider in determining whether or not to waive an associated person's obligation to name FINRA as a party when seeking judicial confirmation of an expungement award, including Rule 2080(b)(2)'s standard would make the type of information that could be expunged broader and less foreseeable and thus risk undermining the integrity of the information in the CRD system.
Further, in contrast to the commenter's statement, FINRA provided justification to support limiting the grounds for awarding expungement to those under Rule 2080(b)(1). In its filing, FINRA details the economic impact analyzing “the regulatory need for the proposed rule change, its potential economic impacts, including anticipated costs, benefits and distributional and competitive effects, relative to the current baseline, and the alternatives FINRA considered in assessing how best to meet [its] regulatory objectives.”
Furthermore, as stated above, BrokerCheck helps investors make more informed choices about the associated persons and broker-dealer firms with whom they may conduct business. Since the information on BrokerCheck is populated by information from CRD, the integrity of the information investors use to make their investment decisions is dependent on the integrity of the information in the CRD system. An expungement process limited to clear, enumerated standards helps ensure that factually impossible, mistaken, or false information can be removed from the CRD system, while also decreasing the likelihood that arbitrators award expungement on unforeseen or unsound grounds to the detriment of the quality of information in the CRD system. In light of this, the Commission believes that FINRA has appropriately balanced the investor protection benefits of the proposed rule change against the potential harm to associated persons, and that FINRA has reasonably considered the impacts of the proposed rule change as outlined in its economic impact analysis and its response to comments.
Finally, Section 19(b) of the Act,
Originally, the proposed rule change would have included an instruction for arbitration panels that the decision of a customer or an authorized representative of state securities regulators not to attend or participate in the expungement hearing would not be material to the determination of whether expungement is appropriate.
As amended, the proposed rule change states that a panel shall not give any evidentiary weight to a decision by a customer or an authorized representative not to attend or participate in an expungement hearing when making a determination of whether expungement is appropriate.
The Commission agrees that customers or authorized representatives of a state securities regulator may decide not to appear for a variety of reasons unrelated to the merits of an expungement request and that FINRA reasonably determined that such a decision by a customer or an authorized representative should not be given weight by the panel assessing the request.
The proposed rule change would retain the current requirement that the panel must assess against the parties requesting expungement all forum fees for each hearing in which the sole topic is the determination of the appropriateness of expungement.
One commenter characterized the existing minimum member surcharge and process fees that would be assessed to firms if an associated person files a straight-in request, following an arbitration that closes other than by award or closes by award without a hearing, as “duplicative” and suggested that these fees be eliminated.
In response, FINRA stated that the member surcharge and process fees that a member firm would be assessed if an associated person files a straight-in request are not duplicate fees.
FINRA may reasonably assess member surcharge and process fees for straight-in requests. Straight-in requests are separate arbitrations before a separate panel of specially trained arbitrators. Proceedings have costs and it is appropriate that FINRA would require the parties generating those costs to pay them.
The proposed rule change would require the Director to decline the use of the DRS arbitration forum if an associated person files an expungement request that the Director determines is ineligible for arbitration under proposed Rules 12805 and 13805.
No commenter supported or objected to these proposed changes. The Commission believes that providing the Director with the authority to deny the use of the DRS arbitration forum should enhance the integrity of the expungement process and the CRD system.
The proposed rule change would codify a practice from the Guidance to require the associated person who files a straight-in request to serve all customers whose customer arbitrations, civil litigations, and customer complaints are a subject of the expungement request with a copy of the statement of claim requesting expungement and any answer.
Three commenters supported this aspect of the proposed rule change.
The proposed customer notification provision will help ensure that customers are aware of expungement requests and have an opportunity to participate. Further, requiring filing of proof of service and any communications will help ensure that customers are notified in accordance with the proposed rule change and that customers are not inappropriately dissuaded from participating in an expungement proceeding. Under these proposed rule changes, customers should be more likely to participate in a hearing to decide an expungement request, which helps ensure that the panel has a more fully formed set of evidence upon which to base its decision. With this additional information, the panel should be more likely to award expungement only when appropriate, thereby helping protect the integrity of the information in the CRD system.
To facilitate customer notification of an expungement request, proposed Rule 13805(b)(1)(B)(i) would require an associated person to include in any request to expunge customer dispute information a current address for the relevant customer.
Proposed Rule 13805(b)(1)(B)(i) would require the Director to notify all customers whose customer arbitrations, civil litigations, or customer complaints are the subject of an expungement request of the time, date, and place of any prehearing conferences and the expungement hearing. FINRA stated that this proposed notification requirement would facilitate customer participation in the expungement process by providing the customer the time to plan and prepare for the hearing.
Three commenters recommended amendments to these provisions.
With respect to the notification requirements, FINRA stated that customer attendance and participation in expungement hearings helps the panel fully develop a record on which to decide the expungement request.
FINRA likewise declined to amend the proposed rule change in response to one commenter's suggestion that FINRA “will deliver” materials on request, rather than providing access.
The proposed rule change related to customer notification would help ensure that customers are notified of expungement requests and able to access related necessary documents. The requirement that an associated person include a current address for the relevant customer would help ensure that customers are notified of expungement requests in a timely manner. Moreover, DRS will provide paper documents to customers that may not have the ability to access the Portal upon request. Notified customers would be more likely to participate in a hearing to decide an expungement request, which would help ensure that the panel has a more fully formed set of evidence upon which to base its decision. With this additional information, the panel is more likely to appropriately decide whether to award expungement, thereby helping protect the integrity of the information in the CRD system.
The proposed rule change would require FINRA to notify state securities regulators, in the manner to be determined by the Director in collaboration with state securities regulators, of an expungement request within 15 days of receiving an expungement request.
No commenter supported or objected to these proposed changes. Two commenters, however, recommended that FINRA take further action.
In response, FINRA stated that FINRA Rule 2080 requires an associated person seeking to confirm an arbitration award containing expungement relief to name FINRA as an additional party unless this requirement is waived by FINRA.
The Commission believes that notification to state securities regulators within 15 days of receiving an expungement request should provide adequate notice and, for straight-in requests, allow the state securities regulator to determine whether to participate in the expungement proceeding. As stated above, permitting attendance and participation by state securities regulators in straight-in expungement proceedings should enhance the straight-in expungement process. Specifically, inclusion of state securities regulators provides them the opportunity to fulfill their own regulatory obligations, while at the same time increasing the likelihood that the panel in an expungement proceeding that may not involve a customer will hear evidence from multiple viewpoints. With this additional information, the panel is more likely to award expungement only when appropriate, thereby helping protect the integrity of the information in the CRD system. The Commission also believes that panels deciding separate expungement-only hearings in simplified arbitrations should have sufficient information from the underlying claim to develop a complete factual record in order to make a fully-informed decision on the expungement request. In this way, the rule as proposed would help protect the integrity of the information in the CRD system. Finally, FINRA has stated that it will continue to monitor the expungement process to evaluate whether additional rule changes may be necessary to further strengthen the expungement process, including whether to allow state securities regulators to attend and participate in separate expungement-only hearings in simplified arbitrations.
Interested persons are invited to submit written data, views, and arguments concerning whether Amendment No. 2 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.
The Commission finds good cause to approve the proposed rule change, as modified by Amendments Nos. 1 and 2, prior to the thirtieth day after the date of publication of notice of the filing of Amendment No. 2 in the
After consideration of the comments FINRA received on the proposed rule change, the Commission believes that Amendment No. 2 represents a
For the reasons set forth above, the Commission finds that the proposed rule change, as modified by Amendments Nos. 1 and 2, is consistent with the provisions of Exchange Act Section 15A(b)(6),
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.