Foreign Agricultural Service
Rural Business-Cooperative Service
Rural Housing Service
Rural Utilities Service
Census Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
National Telecommunications and Information Administration
Federal Energy Regulatory Commission
Agency for Healthcare Research and Quality
Centers for Disease Control and Prevention
National Institutes of Health
U.S. Customs and Border Protection
Land Management Bureau
National Park Service
Employee Benefits Security Administration
Copyright Office, Library of Congress
National Endowment for the Humanities
Federal Aviation Administration
Federal Railroad Administration
Federal Transit Administration
Great Lakes St. Lawrence Seaway Development Corporation
Pipeline and Hazardous Materials Safety Administration
Alcohol and Tobacco Tax and Trade Bureau
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends the Daytona Beach, FL Class C airspace description to update the airport name, and the geographic coordinates of the airport reference point (ARP) to match the FAA's National Airspace System Resources (NASR) database information. Additionally, this action amends the airspace description by updating the header format. This action does not change the boundaries, altitudes, or operating requirements of the Class C airspace area.
Effective date 0901 UTC, October 5, 2023. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
A copy of this final rule, and all background material may be viewed online at
FAA Order JO 7400.11G, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Paul Gallant, Rules and Regulations Group, Office of Policy, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it updates the information in the Daytona Beach, FL Class C airspace description.
During a review of the Daytona Beach, FL Class C airspace description, the FAA identified the need to update the name and ARP geographic coordinates for the Daytona Beach Regional Airport, and to update the text header format for the Daytona Beach Class C airspace description as published in FAA Order JO 7400.11G.
Class C airspace areas are published in paragraph 4000 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the
FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.
This action amends 14 CFR part 71 by updating the Daytona Beach, FL Class C airspace description as published in FAA Order JO 7400.11G, Airspace Designations and Reporting Points. The name “Daytona Beach Regional Airport” is changed to “Daytona Beach International Airport” to match the Airport Master Record database. The ARP geographic coordinates are updated from “lat. 29°10′52″ N, long. 81°03′21″ W” to “lat. 29°10′48″ N, long. 81°03′29″ W” which matches the FAA's NASR database information. Additionally, the airport name is moved from the first line in the text header of the description to the second line. These changes align with the current formatting standard. In the body of the Class C description, the name “Daytona Beach Regional Airport” is changed to “Daytona Beach International Airport.”
This action consists of administrative changes only and does not affect the boundaries, altitudes, or operating requirements of the airspace. Therefore, notice and public procedure under 5 U.S.C. 553(b) is unnecessary.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action of amending the Daytona Beach, FL Class C airspace description to update the airport name, and geographic coordinates of the airport reference point (ARP) to match the FAA's NASR database information, qualifies for
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p.389.
That airspace extending upward from the surface to and including 4,000 feet MSL within a 5-mile radius of the Daytona Beach International Airport; and that airspace extending upward from 1,200 feet MSL to and including 4,000 feet MSL within a 10-mile radius of Daytona Beach International Airport.
National Aeronautics and Space Administration.
Direct final rule.
The National Aeronautics and Space Administration (NASA) is amending its delegations and designations rule to make nonsubstantive changes to correct citations and titles throughout and clarify regulatory text in specific sections.
This direct final rule is effective on September 5, 2023. Comments due on or before August 4, 2023. If adverse comments are received, NASA will publish a timely withdrawal of the rule in the
Comments must be identified with RINs 2700-AE70 and may be sent to NASA via the Federal E-Rulemaking Portal:
Daniela Cruzado, 202-295-7589.
NASA has determined that this rulemaking meets the criteria for a direct final rule because it makes nonsubstantive changes to correct citations and titles and clarify regulatory text in specific sections. No opposition to the changes and no significant adverse comments are expected. However, if NASA receives significant adverse comments, it will withdraw this direct final rule by publishing a notice in the
Subpart 5 of part 1204, promulgated March 13, 1965 [30 FR 3378], established delegations and designations for NASA officials and other Government agencies acting on behalf of the Agency to carry out functions related to real estate and related matters, granting easements, leaseholds, permits, and licenses in real property, executing certificates of full faith and credit, and taking actions on liquidated damage. Sections 1204.501, 1204.503, and 1204.504 will be amended to correct citations and titles, and to clarify regulatory text in specific sections.
The National Aeronautics and Space Act (the Space Act), 51 U.S.C. 20113 (a), authorizes the Administrator of NASA to make, promulgate, issue, rescind, and amend rules and regulations governing the manner of its operations and the exercise of the powers vested in it by law.
E.O.s 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated as “not significant” under E.O. 12866.
The Regulatory Flexibility Act (5 U.S.C. 601
This direct final rule does not contain any information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
E.O. 13132, “Federalism,” 64 FR 43255 (August 4, 1999) requires regulations be reviewed for federalism effects on the institutional interest of states and local governments and, if the effects are sufficiently substantial, preparation of the Federal assessment is required to assist senior policy makers. The amendments will not have any substantial direct effects on state and local governments within the meaning of the E.O. Therefore, no federalism assessment is required.
Authority delegation.
Accordingly, under the authority of the National Aeronautics and Space Act, as amended, 51 U.S.C. 20113, NASA amends 14 CFR part 1204 as follows:
42 U.S.C. 2473(c)(5); 42 U.S.C. 2473b; Public Law 101-507, the VA/HUD/Indep. Agencies Appropriation Act for FY 1991, at 104 Stat. 1380 (Nov. 5, 1990); and 15 U.S.C. 631-650.
(a)
(b)
(c)
(2) The Real Estate Branch Chief may redelegate this authority to the appropriate warranted Real Estate Contracting Officer, in accordance with the requirements set forth in NASA Procedural Requirements (NPR) 8800.15, Real Estate Management Program.
(d)
(1) The appropriate Real Estate Contracting Officer determines:
(i) That the interest in real property to be conveyed is not required for a NASA program.
(ii) That the grantee's exercise of rights under the easement will not be adverse to the interests of the United States or interfere with NASA operations.
(2) Monetary or other benefit, including any interest in real property, is received by the government as consideration for the granting of the easement.
(3) The instrument granting the easement is on a form or template approved or directed to be used by the Real Estate Branch Chief, and provides at a minimum:
(i) For the termination of the easement, in whole or in part, and without cost to the Government, if there has been:
(A) A failure to comply with any term or condition of the easement;
(B) A nonuse of the easement for a consecutive 2-year period for the purpose for which granted; or
(C) An abandonment of the easement.
(ii) That written notice of the termination shall be given to the grantee, or its successors or assigns, by the Assistant Administrator for the Office of Strategic Infrastructure or the Director, Facilities and Real Estate Division, and that termination shall be effective as of the date of the notice.
(iii) That restoration provisions are provided for in the agreement that protect the interests of the United States and ensure the grantee is responsible for removal of any and all improvements in or on NASA real property.
(iv) Such other reservations, exceptions, limitations, benefits, burdens, terms, or conditions as are set forth in the forms and templates for easements approved for NASA use by the Real Estate branch Chief.
(e)
(f)
(1) Utilize the services of the Corps of Engineers, U.S. Army.
(2) Delegate authority to the Corps of Engineers to execute, on behalf of NASA, grants of easements in real property, as authorized in this section, provided that the conditions set forth in paragraphs (d) and (e) of this section are complied with.
(g)
(a)
(b)
(c)
(2) The Real Estate Branch Chief may redelegate this authority to the appropriate warranted Real Estate Contracting Officer, in accordance with the requirements set forth in NPR 8800.15.
(d)
(1) The Real Estate Contracting Officer determines:
(i) That the interest or rights to be granted are not required for a NASA program.
(ii) That the interests or rights to be granted will not be adverse to the interests of the United States nor interfere with NASA operations.
(2) That, in the case of leaseholds fair market value monetary consideration is received by NASA.
(3) The instrument granting the leasehold, permit, or license in real property is on a form or template approved by or directed to be used by the Real Estate Branch Chief, and provides, at a minimum:
(i) For unilateral termination by NASA in the event of:
(A) Default by the grantee; or
(B) Abandonment of the property by the grantee; or
(C) Force majeure circumstances including a determination by Congress, the President, or the NASA Administrator that the interest of the national space program, the national defense, or the public welfare require the termination of the interest granted, with a suitable notice provided to the grantee.
(ii) A liability waiver, indemnification requirements, environmental requirements, and insurance provisions as needed to suitably protect the United States from damages arising from the grantee's use of NASA real property.
(iii) That restoration provisions are provided for in the agreement that protect the interests of the United States and ensure the grantee is responsible for removal of any and all improvements in or on NASA real property.
(iv) Such other reservations, exceptions, limitations, benefits, burdens, terms, or conditions as are set forth in the forms and templates for leaseholds, permits, and licenses in real property approved by and directed for use by the Real Estate Branch Chief.
(e)
(f)
Federal Trade Commission.
Final rules.
The Commission is amending its rules of practice to reflect the creation of the agency's new Office of Technology. The Commission is also amending, its rules of practice for adjudicative proceedings so that administrative law judges presiding over an administrative hearing render a “recommended” decision rather than an “initial” decision. Additionally, the Commission is amending its rules of practice to reflect new procedures for making
This rule is effective on June 5, 2023. The rules of practice for adjudicative proceedings that were in effect before June 5, 2023 will govern all currently pending Commission adjudicative proceedings.
Josephine Liu, (202) 326-2170, or Michael Lezaja, (202) 326-2661, Office of the General Counsel, Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580.
The Federal Trade Commission is revising certain rules in parts 0 through 4 of its rules of practice, 16 CFR parts 0 through 4. These revisions fall into four categories: (1) revisions in parts 0 and 2 to reflect the creation of the agency's new Office of Technology; (2) revisions in part 3 so that the administrative law judge (ALJ) will issue a “recommended” decision after each administrative hearing rather than an “initial” decision, and so that each recommended decision will be subject to automatic Commission review; (3) revisions in part 4 to amend the procedures for
Because these rule revisions relate solely to agency procedure and practice, publication for notice and comment is not required under the Administrative Procedure Act. 5 U.S.C. 553(b).
The Commission recently created a new Office of Technology. Consequently, the Commission is adding new 16 CFR 0.8(f) to include
The Commission is revising part 1 of its rules to fix cross-references in §§ 1.13(b) and 1.26(b)(5), fix misspellings in §§ 1.22(c) and 1.73(b)(1), correct an outdated reference to the “Division of Credit Practices” in § 1.71, and eliminate redundant use of both spelled-out numbers and Roman numerals in § 1.73(b)(1).
As noted above, the Commission recently created the new Office of Technology. The Commission is revising §§ 2.7(l) and 2.10(a)(5) to add the Chief Technology Officer and Deputy Chief Technology Officer to the list of officials who have delegated authority to modify the terms of compliance with compulsory process and extend certain deadlines relating to compulsory process. This change will put the Chief Technology Officer and Deputy Chief Technology Officer on equal footing with other designated officials like the Director and Deputy Director of the Office of Policy Planning who already have this delegated authority.
The Commission is revising part 3 so that the ALJ will issue a “recommended” decision after each administrative hearing, rather than an “initial” decision. Under the Administrative Procedure Act, an ALJ who presides at the reception of evidence in an adjudicative proceeding can either (1) render an “initial decision,” or (2) “recommend a decision” to the agency and “certify” the “entire record” to the agency for a decision. 5 U.S.C. 557(b). When the ALJ issues an “initial decision,” that “becomes the decision of the agency without further proceedings” unless a party seeks review of the initial decision before the agency or the agency, on its own initiative, elects to review the initial decision.
In § 3.24, the Commission is deleting the language about referring motions for summary decision to the ALJ. The granting of summary decision indicates that there is no genuine issue as to any material fact regarding liability or relief, and it results in the issuance of a final decision and order. Because the Commission is amending its rules of practice so that the ALJ will issue only recommended decisions, not initial decisions, the Commission is revising § 3.24 to eliminate the ALJ's ability to rule on motions for summary decision. In addition, as a practical matter, the Commission has not referred any motions for summary decision to the ALJ since § 3.24 was revised in 2009 to permit the Commission to resolve dispositive motions in the first instance unless referred by the Commission to the ALJ.
This section—previously named “Initial decision”—is being renamed to reflect the ALJ's new role in issuing recommended decisions.
The Commission is also deleting outdated language in § 3.51(a) about the initial decision becoming the decision of the Commission unless a party perfects an appeal or the Commission places the case on its own docket for review. That language is inapplicable to recommended decisions, which are automatically reviewed by the Commission.
Under the APA, when an ALJ issues a recommended decision, the ALJ must also “certify” the “entire record” to the agency for a decision. 5 U.S.C. 557(b). In new § 3.51(a)(2), the Commission is adding language to explain what constitutes the record of the proceeding—
Under the APA, parties must be given a “reasonable opportunity to submit exceptions” to the recommended decision and “supporting reasons for the exceptions.” 5 U.S.C. 557(c). The Commission is renaming § 3.52—previously named “Appeal from initial decision”—to be consistent with this terminology and also to eliminate the reference to initial decisions.
Section 3.52(a) will continue to govern the timing of Commission review for cases in which the Commission sought preliminary relief in federal court; § 3.52(b) will continue to govern the timing of Commission review for all other cases.
In § 3.52(b)(1), the Commission is eliminating the requirement that parties first file a notice of appeal and then perfect their appeal by filing an opening appeal brief. Under the revised rule, parties will file their exceptions to the recommended decision simply by filing an opening brief.
In new § 3.52(b)(2), the Commission is adding a paragraph to explain the procedures that will govern when no party files exceptions to the recommended decision. As stated in new § 3.52(b)(2), the Commission may in its discretion hold oral argument within 30 days after the deadline for the filing of exceptions. The Commission will issue its final decision within 100 days after oral argument; or, if no oral argument is scheduled, the Commission will issue its final decision within 100 days after the deadline for the filing of exceptions.
The Commission is renaming this section—previously named “Review of recommended decision in absence of appeal”—to be consistent with the terminology used elsewhere in the revised rules.
As explained in § 3.53, if no party files exceptions to the recommended decision, the Commission will enter an order placing the case on its own docket for review. The Commission's order will set forth the scope of such review and the issues to be considered. The order will also provide for the filing of briefs if appropriate.
The Commission is renaming this section—previously named “Decision on appeal or review”—to be consistent with the terminology used elsewhere in the revised rules.
The Commission is deleting old § 3.54(a). The old language about the powers of the Commission during an appeal from or review of an initial decision is no longer needed, given that the entire record is now being certified to the Commission for a decision.
In these rules, the Commission is changing language that mentions “initial decisions” so that the language instead mentions “recommended decisions.” The Commission is also correcting other provisions that are inconsistent with the recommended decision procedure.
Finally, the Commission is eliminating redundant use of both spelled-out numbers and Roman numerals in § 3.42(e) and (g)(2).
The Commission is revising § 4.11(e) to clarify the procedures that apply to
In § 4.11(e), the Commission is adding language to clarify that where there is a request under § 4.11(e) for records or testimony from the Commission Office of Inspector General, the Inspector General—rather than the General Counsel—will consider and act upon these requests.
In § 4.13(d), the Commission is clarifying when persons submitting written requests are required to verify their identity. This change complies with the requirements of the Creating Advanced Streamlined Electronic Services for Constituents Act of 2019 (“CASES Act”), Public Law 116-50, 133 Stat. 1074 (codified at 5 U.S.C. 552a note), and OMB M-21-04, Modernizing Access to and Consent for Disclosure of Records Subject to the Privacy Act (Nov. 12, 2020). Under the CASES Act and implementing OMB guidance, agencies must accept remote identity-proofing and authentication for the purposes of allowing an individual to request access to their records or to provide prior written consent authorizing disclosure of their records under the Privacy Act. Specifically, the changes to § 4.13(d) clarify that persons submitting Privacy Act requests are required to verify their identity, and that the deciding official will require additional verification of a requester's identity when reasonably necessary to protect against improper disclosure of records.
Administrative practice and procedure.
Administrative practice and procedure, Freedom of information, Public record, Sunshine Act.
For the reasons set forth in the preamble, the Federal Trade Commission amends title 16, chapter I, subchapter A of the Code of Federal Regulations as follows:
5 U.S.C. 552(a)(1); 15 U.S.C. 46(g).
(d) The Office of Policy Planning, which assists the Commission to develop and implement long-range competition and consumer protection policy initiatives;
(e) The Office of Public Affairs, which furnishes information concerning Commission activities to news media and the public; and
(f) The Office of Technology, which employs expertise in technology to strengthen and support law enforcement investigations and actions, advise and engage with FTC staff and the Commission on policy and research initiatives, and engage the public and relevant experts to understand trends and to advance the Commission's work.
15 U.S.C. 46; 15 U.S.C. 57a; 5 U.S.C. 552; 5 U.S.C. 601 note.
(b) * * * If requested under § 1.11(e), an informal hearing with the opportunity for oral presentations will be conducted by the presiding officer. * * *
15 U.S.C. 46; 5 U.S.C. 601 note.
(c)
(b) * * *
(5) A statement setting forth such procedures for treatment of communications from persons not employed by the Commission to Commissioners or Commissioner Advisors with respect to the merits of the proceeding as will incorporate the requirements of § 1.18(c), including the transcription of oral communications required by § 1.18(c)(1)(ii), adapted in such form as may be appropriate to the circumstances of the particular proceeding.
84 Stat. 1128, 15 U.S.C. 1681
The general administration of the Fair Credit Reporting Act (Title VI of the Consumer Credit Protection Act of 1968; enacted October 26, 1970; Pub. L. 91-508, 82 Stat. 146, 15 U.S.C. 1601
(b) * * *
(1) Requests for Commission interpretations should be submitted in writing to the Secretary of the Federal Trade Commission stating the nature of the interpretation requested and the reasons and justification therefor. If the request is granted, as soon as practicable thereafter, the Commission will publish a notice in the
15 U.S.C. 46.
(l) * * * The Directors of the Bureaus of Competition, Consumer Protection, and Economics and the Office of Policy Planning, their Deputy Directors, the Assistant Directors of the Bureaus of Competition and Economics, the Associate Directors of the Bureau of Consumer Protection, the Regional Directors, the Assistant Regional Directors, the Chief Technology Officer, and the Deputy Chief Technology Officer are all authorized to modify and, in writing, approve the terms of compliance with all compulsory process, including subpoenas, CIDs, reporting programs, orders requiring reports, answers to questions, and orders requiring access. * * *
(a) * * *
(5)
15 U.S.C. 46.
* * * The Commission, at any time, or the Administrative Law Judge at any time prior to the filing of his or her recommended decision, may, with the consent of the parties, shorten any time limit prescribed by these Rules of Practice.
(c) * * *
(2) * * * In determining whether to grant the motion, the Administrative Law Judge shall consider any extensions already granted, the length of the proceedings to date, the complexity of the issues, and the need to conclude the evidentiary hearing and render a recommended decision in a timely manner. * * *
(a) * * *
(2) Any other party may, within 14 days after service of the motion, file opposing affidavits. The opposing party shall include a separate and concise statement of those material facts as to which the opposing party contends there exists a genuine issue for trial, as provided in § 3.24(a)(3). The parties may file memoranda of law in support of, or in opposition to, the motion consistent with § 3.22(c). If a party includes in any such brief or memorandum information that has been granted in camera status pursuant to § 3.45(b) or is subject to confidentiality protections pursuant to a protective order, the party shall file 2 versions of the document in accordance with the procedures set forth in § 3.45(e). If the Commission determines that there is no genuine issue as to any material fact regarding liability or relief, it shall issue a final decision and order. A summary decision, interlocutory in character and in compliance with the procedures set forth in § 3.51(c), may be rendered on the issue of liability alone although there is a genuine issue as to relief.
(3) Affidavits shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The Commission may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary decision is made and supported as provided in this rule, a party opposing the motion may not rest upon the mere allegations or denials of his or her pleading; the response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue of material fact for trial. If no such response is filed, summary decision, if appropriate, shall be rendered.
(4) Should it appear from the affidavits of a party opposing the motion that it cannot, for reasons stated, present by affidavit facts essential to justify its opposition, the Commission may deny the motion for summary decision or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or make such other order as is appropriate and a determination to that effect shall be made a matter of record.
(5) If on motion under this rule a summary decision is not rendered upon the whole case or for all the relief asked and a trial is necessary, the Commission shall issue an order specifying the facts that appear without substantial controversy and directing further proceedings in the action. The facts so specified shall be deemed established.
(b) * * *
(1) Should it appear to the satisfaction of the Commission at any time that any of the affidavits presented pursuant to this rule are presented in bad faith, or solely for the purpose of delay, or are patently frivolous, the Commission shall enter a determination to that effect upon the record.
(2) If upon consideration of all relevant facts attending the submission of any affidavit covered by paragraph (b)(1) of this section, the Commission concludes that action to suspend or remove an attorney from the case is warranted, it shall take action as specified in § 3.42(d).
(c) Any such action may be taken by written or oral order issued in the course of the proceeding or by inclusion in a recommended decision of the Administrative Law Judge or an order or opinion of the Commission. * * *
(c) * * *
(9) To make and file recommended decisions;
(e)
(g) * * *
(2) * * * If the Administrative Law Judge does not disqualify himself within 10 days, he shall certify the motion to the Commission, together with any statement he may wish to have considered by the Commission. * * *
(e)
(a)
(2)
(b)
(c)
(2) The recommended decision shall be prepared in a common word processing format, such as WordPerfect or Microsoft Word, and shall be filed by the Administrative Law Judge with the Office of the Secretary in both electronic and paper versions.
(3) When more than one claim for relief is presented in an action, or when multiple parties are involved, the Administrative Law Judge may direct the entry of a recommended decision as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of recommended decision.
(d)
(e)
(1) At any time from the close of the hearing record pursuant to § 3.44(c) until the filing of his or her recommended decision, an Administrative Law Judge may reopen the proceeding for the reception of further evidence for good cause shown.
(2) Except for the correction of clerical errors or pursuant to an order of remand from the Commission, the jurisdiction of the Administrative Law Judge is terminated upon the filing of his or her recommended decision with respect to those issues decided pursuant to paragraph (c)(1) of this section.
(a)
(2) If no exceptions to the recommended decision are filed, the Commission may in its discretion hold oral argument within 10 days after the deadline for the filing of exceptions, and will issue its final decision pursuant to § 3.54 within 45 days after oral argument. If no oral argument is scheduled, the Commission will issue its final decision pursuant to § 3.54 within 45 days after the deadline for the filing of exceptions.
(b)
(2) If no exceptions to the recommended decision are filed, the Commission may in its discretion hold oral argument within 30 days after the deadline for the filing of exceptions, and will issue its final decision pursuant to § 3.54 within 100 days after oral argument. If no oral argument is scheduled, the Commission will issue its final decision pursuant to § 3.54 within 100 days after the deadline for the filing of exceptions.
(c)
(i) A subject index of the matter in the brief, with page references, and a table of cases (alphabetically arranged), textbooks, statutes, and other material cited, with page references thereto;
(ii) A concise statement of the case, which includes a statement of facts relevant to the issues submitted for review, and a summary of the argument, which must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief, and which must not merely repeat the argument headings;
(iii) A specification of the questions intended to be urged;
(iv) The argument presenting clearly the points of fact and law relied upon in support of the position taken on each question, with specific page references to the record and the legal or other material relied upon; and
(v) A proposed form of order for the Commission's consideration instead of the order contained in the recommended decision.
If no party files exceptions to the recommended decision of the Administrative Law Judge under § 3.52(a)(1) or § 3.52(b)(1), the Commission will enter an order placing the case on its own docket for review. The Commission's order will set forth the scope of such review and the issues which will be considered and will make provision for the filing of briefs if deemed appropriate by the Commission.
The revisions read as follows:
(a) In rendering its decision, the Commission will adopt, modify, or set aside the recommended findings, recommended conclusions, and proposed rule or order contained in the recommended decision, and will include in the decision a statement of the reasons or basis for its action and any concurring and dissenting opinions.
5 U.S.C. 504 and 5 U.S.C. 553(b).
(d) * * *
(3) For purposes of this subpart,
(i) The date that the Commission issues an order disposing of any petitions for reconsideration of the Commission's final order in the proceeding; or
(ii) The date that the Commission issues a final order or any other final resolution of a proceeding, such as a consent agreement, settlement or voluntary dismissal, which is not subject to a petition for reconsideration.
(g)
(1)
(2)
(h)
15 U.S.C. 46.
(e) * * *
(1) * * * Where a demand is made for Commission Office of Inspector General (“OIG”) records or OIG employee testimony, the term “Inspector General” will be substituted in this paragraph (e) for the term “General Counsel.”
(d)
By direction of the Commission.
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Final rule; Treasury decision.
The Alcohol and Tobacco Tax and Trade Bureau (TTB) establishes the approximately 7,605-acre “Long Valley-Lake County” viticultural area in Lake County, California. Additionally, TTB is expanding the boundary of the established 14,000-acre High Valley viticultural area by approximately 1,542 acres in order to create a contiguous border with the Long Valley-Lake County viticultural area. Finally, TTB is modifying the boundary of the North Coast viticultural area to eliminate a partial overlap with the Long Valley-Lake County viticultural area. TTB designates viticultural areas to allow vintners to better describe the origin of their wines and to allow consumers to better identify wines they may purchase.
This final rule is effective August 4, 2023.
Karen A. Thornton, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Box 12, Washington, DC 20005; phone 202-453-1039, ext. 175.
Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels, and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). In addition, the Secretary of the Treasury has delegated certain administration and enforcement authorities to TTB through Treasury Order 120-01.
Part 4 of the TTB regulations (27 CFR part 4) authorizes TTB to establish definitive viticultural areas and regulate the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission of petitions for the establishment or modification of American viticultural areas (AVAs) and lists the approved AVAs.
Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features as described in part 9 of the regulations and, once approved, a name and a delineated boundary codified in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to the wine's geographic origin. The establishment of AVAs allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of an AVA is neither an approval nor an endorsement by TTB of the wine produced in that area.
Section 4.25(e)(2) of the TTB regulations (27 CFR 4.25(e)(2)) outlines the procedure for proposing an AVA and allows any interested party to petition TTB to establish a grape-growing region as an AVA. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes standards for petitions to establish or modify AVAs. Petitions to establish an AVA must include the following:
• Evidence that the area within the proposed AVA boundary is nationally or locally known by the AVA name specified in the petition;
• An explanation of the basis for defining the boundary of the proposed AVA;
• A narrative description of the features of the proposed AVA affecting viticulture, such as climate, geology, soils, physical features, and elevation, that make the proposed AVA distinctive and distinguish it from adjacent areas outside the proposed AVA;
• If the proposed AVA is to be established within, or overlapping, an existing AVA, an explanation that both identifies the attributes of the proposed AVA that are consistent with the existing AVA and explains how the proposed AVA is sufficiently distinct from the existing AVA and therefore appropriate for separate recognition;
• The appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed AVA, with the boundary of the proposed AVA clearly drawn thereon; and
• A detailed narrative description of the proposed AVA boundary based on USGS map markings.
TTB received a petition from Terry Dereniuk, owner of Terry Dereniuk Consulting, and Don Van Pelt and Clay Shannon, of Cache Creek Vineyards and the Shannon Family of Wines, respectively, on behalf of Long Valley wine grape growers, proposing the establishment of the “Long Valley-Lake County” AVA and the modification of the boundaries of the established High Valley (27 CFR 9.189) and North Coast (27 CFR 9.30) AVAs. The proposed Long Valley-Lake County AVA and the existing AVAs are located in Lake County, California. The proposed AVA covers approximately 7,605 acres and currently contains 5 commercially-producing vineyards covering a total of approximately 149 acres, as well as 3 bonded wineries. According to the petition, the distinguishing features of the proposed Long Valley-Lake County AVA include its topography and elevation, geology, and climate.
According to the petition, the topography of the proposed AVA consists of a long, narrow valley floor and the surrounding foothills. The median elevation on the valley floor is approximately 1,322 feet above sea level, and the foothills included in the proposed AVA rise an additional 200 to 500 feet above the valley floor. During the growing season, winds blowing through the valley within the proposed AVA cool the vines from the heat of the day. Cool air drainage provides protection from damaging late spring frosts in vineyards in the foothills, while vineyards along the valley floor require overhead sprinklers for protection. To the west and southwest, the established High Valley AVA has higher elevations than the proposed AVA, with its valley floor rising to 1,800 feet and the surrounding ridges rising as high as 3,000 feet. To the east and south of the proposed AVA are steep hillsides with elevations that rise to 2,000 feet.
The proposed Long Valley-Lake County AVA sits on a geologic formation known as the Cache Formation, while different geologic formations characterize the surrounding areas. The formation is largely made up of lake deposits and consists of tuffaceous and diatomaceous sands and silts, limestone, gravel, and intercalated volcanic rocks. The Cache Formation is the foundation for the soils of the proposed AVA and the nutrients found therein.
The petition provides information about the annual rainfall amounts and growing degree day (GDD) accumulations
The petition also included information on annual GDD accumulations from three locations within the proposed AVA, but only one, Noggle Vineyards and Winery, included data for more than two years. Based on data from Noggle Vineyards and Winery from 2003-2016, the proposed Long Valley-Lake County AVA is classified as Region III on the Winkler scale with an average annual GDD accumulation of 3,378.
By contrast, the established High Valley AVA, which is located immediately south and to the west of the proposed AVA, has a median annual GDD accumulation of 3,548. Farther south, the median annual GDD accumulation of the established Red Hills Lake County AVA (27 CFR 9.169) is 3,595. These average annual GDD accumulations suggest a warmer climate to the south and west of the proposed AVA and place the High Valley AVA in the higher end of Region III and the Red Hills Lake County AVA in the lower end of Region IV. Farther to the west, southwest, and southeast, established AVAs have annual median GDD accumulations suggesting warmer climates than the proposed AVA.
The North Coast AVA was established by T.D. ATF-145 on September 21, 1983 (48 FR 42973). The western third of the proposed Long Valley-Lake County AVA and approximately three-quarters of the established High Valley AVA lie within the existing North Coast AVA. To eliminate the partial overlap, the petitioner also proposed modifying the boundary of the North Coast AVA to encompass both AVAs. The proposed modification would increase the size of the North Coast AVA by approximately 23,690 acres.
The proposed Long Valley-Lake County AVA is partially located within the North Coast AVA and shares some of the characteristics of the larger established AVA. For example, similar to other locations in the North Coast AVA, Long Valley is a northwest-southeast oriented valley surrounded by tillable foothills or hillsides suitable for planting wine grapes and steeper mountains. The established North Coast AVA is generally characterized as having climatic Regions I through III on the Winkler scale. The proposed AVA is also classified as Region III on the Winkler scale. The petition provided more recent rainfall averages from seven
The petition also proposes to expand the boundary of the established High Valley AVA. The High Valley AVA was established by T.D. TTB-30 on July 1, 2005 (70 FR 37998). The proposed Long Valley-Lake County AVA lies to the north and east of the established AVA and shares a small part of its boundary. There is a small gap between the northern boundary of the established AVA and the southwestern boundary of the proposed AVA. To eliminate the gap, the petition proposes to expand the northern boundary of the High Valley AVA to make it contiguous with the southwestern boundary of the proposed Long Valley-Lake County AVA. The proposed boundary modification would increase the size of the High Valley AVA by approximately 1,542 acres.
The petition claims that the proposed expansion area has soils and topography similar to those of the established High Valley AVA. T.D. TTB-30 describes the High Valley AVA as having elevations from a low of 1,700 feet to over 3,000 feet in some areas. Elevations in the proposed expansion area range from a low of 1,720 feet along the adjacent boundary of the proposed AVA to over 2,000 feet where the proposed expansion area joins the High Valley AVA boundary. T.D. TTB-30 describes the soils of the High Valley AVA to include Maymen, Hopland, and Mayacama series soils, as well as Konocti, Hambright, Benridge, and Sodabay series soils. The expansion petition notes that many of the same soils are also found within the proposed expansion area. The petition to establish the High Valley AVA states that the mineral serpentine is not found within the AVA. Similarly, serpentine is not found in the proposed expansion area, while it can be found in the eastern part of the proposed AVA.
TTB published Notice No. 209 in the
In Notice No. 209, TTB solicited comments on the accuracy of the name, boundary, topography, and other required information submitted in support of the petition. In addition, given that one-third of the proposed AVA's location lies within the existing North Coast AVA, TTB solicited comments on whether the evidence submitted in the petition regarding the distinguishing features of the proposed AVA sufficiently differentiates the proposed viticultural area from the North Coast AVA. TTB also asked for comments on whether the geographical features of the proposed viticultural area are so distinguishable from the surrounding North Coast AVA that the third of the proposed Long Valley-Lake County AVA should not be part of the existing viticultural area. Finally, TTB asked for comments on the proposed modifications of the established North Coast and High Valley AVAs and whether the evidence presented in the proposed Long Valley-Lake County AVA petition sufficiently supported the modifications. The comment period on Notice No. 209 closed on May 9, 2022.
In response to Notice No. 209, TTB received one comment submitted by the Lake County Winegrape Commission supporting the establishment of the Long Valley-Lake County AVA due to its topography and elevation, geology, and climate. The comment did not reference the expansion of the High Valley AVA and North Coast AVA boundaries. TTB received no comments opposing the Long Valley-Lake County AVA or the proposed boundary modifications of the existing North Coast and High Valley AVAs.
After careful review of the petition and of the comment received in response to Notice No. 209, TTB finds that the evidence provided by the petitioner supports the establishment of the approximately 7,605-acre Long Valley-Lake County AVA and the modification of the boundaries of the High Valley and North Coast AVAs. Accordingly, under the authority of the FAA Act, section 1111(d) of the Homeland Security Act of 2002, and parts 4 and 9 of the TTB regulations, TTB establishes the “Long Valley-Lake County” AVA in Lake County, California.
Furthermore, TTB modifies the boundary of the High Valley AVA to create a contiguous border with the Long Valley-Lake County AVA. TTB also modifies the boundary of the North Coast AVA to entirely encompass the Long Valley-Lake County AVA and the High Valley AVA. TTB has determined that the topography and elevation, climate, and geology of the expansion areas described in Notice No. 209 are consistent with the features of the North Coast AVA. These changes are effective August 4, 2023.
See the narrative boundary description of the Long Valley-Lake County AVA and the modified boundaries of the North Coast and High Valley AVAs in the regulatory text published at the end of this final rule.
The petitioner provided the required maps, and they are listed below in the regulatory text. The Long Valley-Lake County AVA boundary and the modified North Coast AVA and High Valley AVA boundaries may also be viewed on the AVA Map Explorer on the TTB website, at
Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. For a wine to be labeled with an AVA name or with a brand name that includes an AVA name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible for labeling with an AVA name and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the AVA name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Different rules apply if a wine has a brand name containing an AVA name that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.
With the establishment of the Long Valley-Lake County AVA, its name, “Long Valley-Lake County,” will be recognized as a name of viticultural significance under § 4.39(i)(3) of the TTB regulations (27 CFR 4.39(i)(3)). The text of the regulations clarifies this point. Consequently, wine bottlers using the name “Long Valley-Lake County” in a brand name, including a trademark, or in another label reference to the origin of the wine, will have to ensure that the product is eligible to use the AVA name as an appellation of origin.
The establishment of the Long Valley-Lake County AVA will allow vintners to use “Long Valley-Lake County” as an appellation of origin for wines made primarily from grapes grown within the Long Valley-Lake County AVA if the wines meet the eligibility requirements for the appellation. The expansion of the North Coast AVA will also allow vintners to use “North Coast” as an appellation of origin for wines made primarily from grapes grown anywhere in the Long Valley-Lake County AVA or the High Valley AVA if the wines meet the eligibility requirements for the appellation. The expansion of the High Valley AVA will allow vintners to use “High Valley” as an appellation of origin for wines made primarily from grapes grown in the expansion area.
Bottlers who wish to label their wines with “Long Valley-Lake County” as an appellation of origin must obtain a new Certificate of Label Approval (COLA) for the label, even if the currently approved label already contains another AVA appellation of origin. Please do not submit COLA requests to TTB before the effective date shown in the
TTB certifies that this regulation will not have a significant economic impact on a substantial number of small entities. The regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of an AVA name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.
It has been determined that this final rule is not a significant regulatory action as defined by Executive Order 12866 of September 30, 1993, as amended. Therefore, no regulatory assessment is required.
Wine.
For the reasons discussed in the preamble, TTB amends title 27, chapter I, part 9, Code of Federal Regulations, as follows:
27 U.S.C. 205.
(c) * * *
(18) Then north-northwest in a straight line for approximately 7.6 miles to the 1,851-foot summit of Red Rocks;
(19) Then northwest in a straight line for approximately 4.3 miles to the 1,696- foot summit of Chalk Mountain;
(20) Then northwest in a straight line for approximately 6 miles to the 4,005- foot summit of Evans Peak;
The revisions read as follows:
(c) * * *
(3) Proceed north along the western boundary of section 12 (also the eastern boundary of the Mendocino National Forest), T14N/R8W, to its intersection with the 1,720-foot elevation contour; then
(4) Proceed easterly along the meandering 1,720-foot elevation contour for approximately 11.3 miles, crossing onto the Benmore Canyon map, to the intersection of the elevation contour with the northern fork of an unnamed creek in Salt Canyon known locally as Salt Creek in section 23, T14N/R7W; then
(5) Proceed easterly (downstream) along Salt Creek approximately 760 feet to its intersection with the 1,600-foot elevation contour in section 23; then
(a)
(b)
(1) Clearlake Oaks, California, 1996;
(2) Benmore Canyon, California, 1996; and
(3) Lower Lake, California, 1993.
(c)
(1) The beginning point is on the Benmore Canyon map at the intersection of State Highway 20 and the 1,600-foot elevation contour, just north of Sweet Hollow Creek, in section 35, T14N/R7W.
(2) From the beginning point, proceed northerly along the meandering 1,600-foot elevation contour for approximately 4.1 miles to its intersection with the northern fork of an unnamed creek in Salt Canyon known locally as Salt Creek in section 23, T14N/R7W; then
(3) Proceed westerly (upstream) along Salt Creek approximately 760 feet to its intersection with the 1,720-foot elevation contour in section 23, T14N/R7W; then
(4) Proceed northeasterly, then westerly along the meandering 1,720- foot elevation contour for approximately 11.3 miles, crossing onto the Clearlake Oaks map, to the intersection of the elevation contour with the Mendocino National Forest boundary along the western boundary of section 12, T15N/R8W; then
(5) Proceed north along the Mendocino National Forest boundary approximately 896 feet to its intersection with the unnamed creek in Sulphur Canyon; then
(6) Proceed northeast (downstream) along the unnamed creek approximately 770 feet to its intersection with the 1,400-foot elevation contour in section 12, T14N/R8W; then
(7) Proceed northeasterly, then northwesterly along the meandering 1,400-foot elevation contour to its intersection with the Mendocino National Forest boundary along the western boundary of section 36, T15N/R8W; then
(8) Proceed north along the western boundary of section 36 to its
(9) Proceed east along the northern boundary of section 36 to its intersection with the 1,400-foot elevation contour; then
(10) Proceed southeasterly along the 1,400-foot elevation contour, crossing onto the Benmore Canyon map and continuing easterly along the 1,400-foot elevation contour to its intersection with the southern boundary of section 11, T14N/R7W; then
(11) Proceed north in a straight line to the northern boundary of section 11; then
(12) Proceed east along the northern boundary of section 11, crossing Wolf Creek, to the intersection of the section boundary with the 1,320-foot elevation contour; then
(13) Proceed south in a straight line to the 1,400-foot elevation contour in section 11; then
(14) Proceed southeasterly along the 1,400-foot elevation contour to the western boundary of section 12, T14N/R7W; then
(15) Proceed southeast in a straight line, crossing the North Fork of Cache Creek, to the 1,400-foot elevation contour in section 12 west of the summit of Chalk Mountain; then
(16) Proceed southeasterly, then southerly along the meandering 1,400- foot elevation contour to its third intersection with the eastern boundary of section 13; then
(17) Proceed west in a straight line to an unnamed, unimproved 4-wheel drive road in section 13; then
(18) Proceed south in a straight line, crossing over a second unnamed, unimproved 4-wheel drive road in section 13, to the 1,240-foot elevation contour in section 24, T14N/R7W; then
(19) Proceed east in a straight line to the 1,400-foot elevation contour in section 24; then
(20) Proceed southeasterly, then northeasterly along the meandering 1,400-foot elevation contour to its intersection with an unnamed creek in section 19, T14N/R6W; then
(21) Proceed southwesterly (downstream) along the unnamed creek to its intersection with the 1,200-foot contour in section 19; then
(22) Proceed south in a straight line to the northern boundary of section 30, T14N/R6W; then
(23) Proceed southeast, then east along the northern boundary of section 30 to its intersection with the 1,400-foot elevation contour; then
(24) Proceed south in a straight line to the unnamed creek in Benmore Canyon in section 30; then
(25) Proceed southeast in a straight line to the 1,400-foot elevation contour in section 30; then
(26) Proceed southeasterly along the 1,400-foot elevation contour to its intersection with the eastern boundary of section 31, T14N/R6W; then
(27) Proceed generally south along the eastern boundary of section 31 and continuing along the eastern boundary of section 6, T13N/R6W, crossing onto the Lower Lake map, to the intersection of the boundary line and State Highway 20 north of Phipps Creek; then
(28) Proceed west in a straight line to the 1,200-foot elevation contour; then
(29) Proceed northerly along the 1,200-foot elevation contour, crossing onto the Benmore Canyon map, and continuing along the 1,200-foot elevation contour to its intersection with an unnamed trail in section 31, T14N/R6W; then
(30) Proceed north in a straight line to State Highway 20; then
(31) Proceed west along State Highway 20, returning to the beginning point.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS implements an accountability measure for recreational greater amberjack in the Gulf of Mexico (Gulf) reef fish fishery for the 2023-2024 fishing year through this temporary rule. NMFS has determined that Gulf greater amberjack landings are projected to reach the recreational annual catch target (ACT) for the 2023-2024 fishing year by August 25, 2023. Therefore, the recreational fishing season for greater amberjack in the Gulf exclusive economic zone (EEZ) will close on August 25, 2023, and the sector will remain closed until the start of the next recreational fishing season on August 1, 2024. This closure is necessary to protect the Gulf greater amberjack resource.
This rule is effective 12:01 a.m., local time, August 25, 2023, until 12:01 a.m., local time, August 1, 2024.
Kelli O'Donnell, NMFS Southeast Regional Office, telephone: 727-824-5305, or email:
NMFS manages the reef fish fishery of the Gulf, which includes greater amberjack, under the Fishery Management Plan for the Reef Fish Resources of the Gulf (FMP). The Gulf of Mexico Fishery Management Council prepared the FMP and NMFS implements the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. All greater amberjack weights discussed in this temporary rule are in round weight.
On June 15, 2023, NMFS published the final rule implementing Amendment 54 to the FMP (88 FR 39193). Among other measures, that final rule decreased the recreational annual catch limit (ACL) and quota (recreational ACT) for Gulf greater amberjack. Effective on the July 17, 2023, the recreational greater amberjack ACL and ACT are 404,000 lb (183,251 kg) and 335,320 lb (152,099 kg), respectively (50 CFR 622.41(a)(2)(iii) and 622.39(a)(2)(ii)).
As described at 50 CFR 622.7(h), the fishing year for the Gulf greater amberjack recreational sector is August 1 through July 31. Under 50 CFR 622.41(a)(2)(i), NMFS is required to close the greater amberjack recreational sector when the recreational ACT is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS has determined that for the 2023-2024 fishing year, the recreational ACT of 335,320 lb (152,099 kg) will be reached by August 25, 2023. Accordingly, NMFS closes recreational harvest of greater amberjack from the Gulf EEZ effective 12:01 a.m., local time, August 25, 2023, until 12:01 a.m., local time, August 1, 2024.
During the recreational closure, the bag and possession limits for greater amberjack in or from the Gulf EEZ are zero. The prohibition on possession of Gulf greater amberjack also applies in Gulf state waters for any vessel issued
NMFS notes that for the current 2022-2023 recreational fishing year of August 1, 2022, through July 31, 2023, the recreational fishing season is closed. Therefore, through July 31, 2023, the bag and possession limits for greater amberjack in or from the Gulf EEZ are zero. The recreational season will reopen on August 1, 2023, the start of the 2023-2024 recreational fishing year and remain open until August 25, 2023.
Additionally, NMFS notes that on June 18, 2023, commercial harvest of Gulf greater amberjack was closed for the remainder of the current commercial fishing year of January 1 through December 31, 2023, because NMFS determined that harvest had exceeded the commercial ACL (88 FR 40121, June 21, 2023).
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 622.41(a)(1), which was issued pursuant to section 304(b) of the Magnuson-Stevens Act, and is exempt from review under Executive Order 12866.
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment is unnecessary and contrary to the public interest. Such procedures are unnecessary because the regulations associated with the closure of the greater amberjack recreational sector 50 CFR 622.41(a)(2) have already been subject to notice and public comment, and all that remains is to notify the public of the closure. Prior notice and opportunity for public comment are contrary to the public interest because there is a need to immediately implement this action to protect the greater amberjack stock. In addition, prior notice and opportunity for public comment would require time and many of those affected by the length of the recreational fishing season, particularly for-hire operators who book trips for clients in advance, need as much notice as possible to adjust their business plans to account for the recreational fishing season.
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes. This proposed AD was prompted by a determination that a certain nondestructive test (NDT) procedure associated with a certain airworthiness limitation for inspecting the inboard, mid, and outboard flap metallic end ribs does not contain all of the necessary instructions. This proposed AD would require a revision to the existing maintenance or inspection program to require using a revised NDT procedure when performing an airworthiness limitation task. This proposed AD would also prohibit the use of earlier revisions of that NDT procedure. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by August 21, 2023.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
• For service information identified in this NPRM, contact Bombardier, Inc., Business Aircraft Customer Response Center, 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-2999; 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, Aviation Safety Engineer, FAA, 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, Aviation Safety Engineer, FAA, 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-2022-40, dated July 21, 2022 (Transport Canada AD CF-2022-40) (also referred to after this as the MCAI), to correct an unsafe condition for certain Bombardier, Inc., Model BD-700-1A10, and BD-700-1A11 airplanes. The MCAI states that Bombardier determined that non-destructive testing manual (NDTM) procedure ET-57-51-009, dated May 6, 2019, or earlier, did not contain all of the necessary instructions to perform the inspections of the inboard, mid, and outboard flap metallic end ribs in associated airworthiness limitation task number 57-51-00-109. If those inspections are not fully completed, there is a potential for undetected cracks in the inspection area; which can result in structural failure of the flap.
The FAA is proposing this AD to address undetected cracking. The unsafe condition, if not addressed, could result in structural failure of the flap, which
The FAA reviewed procedure ET-57-51-009. “Special Detailed Inspection of the Inboard, Mid and Outboard Flap (Metallic) End Ribs, of Part 6—Eddy Current, of Bombardier Global 5000 Nondestructive Testing Manual, Publication No. BD-700 NDTM, Revision 46, dated August 16, 2022. This service information specifies revised inspection procedures for NDT procedure ET-57-51-009.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
This 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, the FAA has been notified of the unsafe condition described in the MCAI and service information referenced above. The FAA is proposing this AD because the FAA evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design.
This proposed AD would require a revision to the existing maintenance or inspection program to require using a revised NDT procedure when performing a certain airworthiness limitation task. This proposed AD would also prohibit the use of earlier revisions of that NDT procedure when performing that airworthiness limitation task.
The FAA estimates that this AD, if adopted as proposed, would affect 441 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by August 21, 2023.
None.
This AD applies to Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes, certificated in any category, having serial numbers 9002 through 9879 inclusive, 9998, and 60001 and subsequent.
Air Transport Association (ATA) of America Code: 57, Wings.
This AD was prompted by a determination that a certain nondestructive test (NDT) procedure associated with a certain airworthiness limitation for inspecting for cracks at the inboard, mid, and outboard flap metallic end ribs does not contain all of the necessary instructions. The FAA is issuing this AD to address undetected cracks. The unsafe condition, if not addressed, could result in structural failure of the flap, which could result in possible reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
As of 90 days after the effective date of this AD, revise the existing maintenance or inspection program, as applicable, to use procedure ET-57-51-009. “Special Detailed Inspection of the Inboard, Mid and Outboard Flap (Metallic) End Ribs, of Part 6—Eddy Current, of Bombardier Global 5000 Nondestructive Testing Manual, Publication No. BD-700 NDTM, Revision 46, dated August 16, 2022, when performing
As of 90 days after the effective date of this AD, it is prohibited to use procedure ET-57-51-009. “Special Detailed Inspection of the Inboard, Mid and Outboard Flap (Metallic) End Ribs, of Part 6—Eddy Current, of Bombardier Global 5000 Nondestructive Testing Manual, Publication No. BD-700 NDTM, dated May 6, 2019, or earlier revisions when performing airworthiness limitation task number 57-51-00-109.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Transport Canada AD CF-2022-40, dated July 21, 2022, for related information. This Transport Canada may be found in the AD docket at
(2) For more information about this AD, contact Yaser Osman, Aviation Safety Engineer, FAA, 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) Procedure ET-57-51-009. “Special Detailed Inspection of the Inboard, Mid and Outboard Flap (Metallic) End Ribs, of Part 6—Eddy Current, of Bombardier Global 5000 Nondestructive Testing Manual, Publication No. BD-700 NDTM, Revision 46, dated August 16, 2022.
(ii) [Reserved]
(3) For service information identified in this AD, contact Bombardier, Inc., Business Aircraft Customer Response Center, 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-2999; 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
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Bombardier, Inc., ModelCL-600-2B16 (604 Variant) airplanes. This proposed AD was prompted by a determination that a combination of system faults and procedural actions will cause the ground spoilers to deploy in the air. This proposed AD would require revising the existing airplane flight manual (AFM) to add revised procedures. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by August 21, 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 Bombardier Business Aircraft Customer Response Center, 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-2999; 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.
William Reisenauer, Aviation Safety Engineer, FAA, 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 William Reisenauer, Aviation Safety Engineer, FAA, 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-2023-01, dated January 4, 2023 (Transport Canada AD CF-2023-01) (also referred to as the MCAI), to correct an unsafe condition on certain Bombardier, Inc., Model CL-600-2B16 (604 Variant) airplanes. The MCAI states that, during an in-service event, a combination of system faults and procedural actions caused the ground spoilers to deploy in the air. During this event, the WOW (weight on wheels) INPUT Caution message had posted on the engine indication and crew alerting system (EICSA) after takeoff. The WOW INPUT message persisted, even after the flightcrew executed the WOW INPUT Quick Reference Handbook (QRH) procedure. During this time, the GND SPLRS (ground spoilers) NOT ARMED message also posted, and the flightcrew consequently manually armed the ground spoilers as required by procedure. An investigation by Bombardier, Inc., revealed that a fault occurred in the proximity sensor electronic unit (PSEU), which erroneously indicated ON GROUND while the airplane was in the air.
The FAA is proposing this AD to address possible ground spoiler deployment leading to reduced controllability of the airplane, or excessive loss of altitude on final approach. You may examine the MCAI in the AD docket at
The FAA reviewed the following service information, which specifies revised Abnormal Procedures of the AFM for Ground Spoilers Unsafe and Weight-on-Wheels Input Fault procedures. These documents are distinct since they apply to different airplane models and configurations.
• Sub-sub-section K., “Ground Spoilers Unsafe,” of sub-section 1. “Flight Controls,” of Section 05-11, “Flight Controls,” of Chapter 5—ABNORMAL PROCEDURES of Bombardier Challenger 604 Airplane Flight Manual-Publication No. PSP 604-1, Revision 125, dated March 14, 2022. (For obtaining Bombardier Challenger 604 Airplane Flight Manual-Publication No. PSP 604-1, use Document Identification No. CH 604 AFM.)
• Sub-sub-section H., “Weight-on-Wheels Input Fault,” of sub-section 1. “Landing Gear, Wheel and Brake System,” of Section 05-16, “Landing Gear, Wheel and Brake System,” of Chapter 5—ABNORMAL PROCEDURES of Bombardier Challenger 604 Airplane Flight Manual-Publication No. PSP 604-1, Revision 125, dated March 14, 2022. (For obtaining Bombardier Challenger 604 Airplane Flight Manual-Publication No. PSP 604-1, use Document Identification No. CH 604 AFM.)
• Sub-sub-section L., “Ground Spoilers Unsafe,” of sub-section 1. “Flight Controls,” of Section 05-11, “Flight Controls,” of Chapter 5—ABNORMAL PROCEDURES of Bombardier Challenger 605 Airplane Flight Manual-Publication No. PSP 605-1, Revision 63, dated March 14, 2022. (For obtaining Bombardier Challenger 605 Airplane Flight Manual-Publication No. PSP 605-1, use Document Identification No. CH 605 AFM.)
• Sub-sub-section H., “Weight-on-Wheels Input Fault,” of sub-section 1. “Landing Gear, Wheel and Brake System,” of Section 05-16, “Landing Gear, Wheel and Brake System,” of Chapter 5—ABNORMAL PROCEDURES of Bombardier Challenger 605 Airplane Flight Manual-Publication No. PSP 605-1, Revision 63, dated March 14, 2022. (For obtaining Bombardier Challenger 605 Airplane Flight Manual-Publication No. PSP 605-1, use Document Identification No. CH 605 AFM.)
• Sub-sub-section L., “Ground Spoilers Unsafe,” of sub-section 1. “Flight Controls,” of Section 05-11, “Flight Controls,” of Chapter 5—ABNORMAL PROCEDURES of Bombardier Challenger 650 Airplane Flight Manual-Publication No. PSP 650-1, Revision 28, dated March 14, 2022. (For obtaining Bombardier Challenger 650 Airplane Flight Manual-Publication No. PSP 650-1, use Document Identification No. CH 650 AFM.)
• Sub-sub-section H., “Weight-on-Wheels Input Fault,” of sub-section 1. “Landing Gear, Wheel and Brake System” of Section 05-16, “Landing Gear, Wheel and Brake System,” of Chapter 5—ABNORMAL PROCEDURES of Bombardier Challenger 650 Airplane Flight Manual-Publication No. PSP 650-1, Revision 28, dated March 14, 2022. (For obtaining Bombardier Challenger 650 Airplane Flight Manual-Publication No. PSP 650-1, use Document Identification No. CH 650 AFM.)
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 revising the existing AFM to add revised procedures.
Transport Canada AD CF-2023-01 requires operators to “advise all flight crews” of revisions to the AFM, and thereafter to “operate the affected aircraft accordingly.” However, this proposed AD would not specifically require those actions as those actions are already required by FAA regulations. FAA regulations require operators furnish to pilots any changes to the AFM (for example, 14 CFR 121.137), and to ensure the pilots are familiar with the AFM (for example, 14 CFR 91.505). As with any other flightcrew training requirement, training on the updated AFM content is tracked by the operators and recorded in each pilot's training record, which is available for the FAA to review. FAA
The FAA estimates that this AD, if adopted as proposed, would affect 44 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by August 21, 2023.
None.
This AD applies to Bombardier, Inc., Model CL-600-2B16 (604 Variant) airplanes, certificated in any category, serial numbers (S/N) 5301 through 5665 inclusive, 5701 through 5988 inclusive, and 6050 through 6174 inclusive.
Air Transport Association (ATA) of America Code: 27, Flight Controls.
This AD was prompted by a determination that a combination of system faults and procedural actions will cause the ground spoilers to deploy in the air. The FAA is issuing this AD to address possible ground spoiler deployment in the air leading to reduced controllability of the airplane, or excessive loss of altitude on final approach.
Comply with this AD within the compliance times specified, unless already done.
Within 60 days after the effective date of this AD: Do the applicable actions specified in paragraph (g)(1) through (3) of this AD.
(1) For Model CL-600-2B16 (604 variant) airplanes, S/N 5301 through 5665 inclusive: Revise the existing airplane flight manual (AFM) to incorporate the information specified in paragraphs (g)(1)(i) and (ii) of this AD of Bombardier Challenger 604 Airplane Flight Manual-Publication No. PSP 604-1, Revision 125, dated March 14, 2022.
(i) Sub-sub-section K., “Ground Spoilers Unsafe,” of sub-section 1. “Flight Controls,” of Section 05-11, “Flight Controls,” of Chapter 5—ABNORMAL PROCEDURES.
(ii) Sub-sub-section H., “Weight-on-Wheels Input Fault,” of sub-section 1. “Landing Gear, Wheel and Brake System,” of Section 05-16, “Landing Gear, Wheel and Brake System,” of Chapter 5—ABNORMAL PROCEDURES.
(2) For Model CL-600-2B16 (604 variant) airplanes, S/N 5701 through 5988 inclusive: Revise the existing AFM to incorporate the information specified in paragraphs (g)(2)(i) and (ii) of this AD of Bombardier Challenger 605 Airplane Flight Manual-Publication No. PSP 605-1, Revision 63, dated March 14, 2022.
(i) Sub-sub-section L., “Ground Spoilers Unsafe,” of sub-section 1. “Flight Controls,” of Section 05-11, “Flight Controls,” of Chapter 5—ABNORMAL PROCEDURES.
(ii) Sub-sub-section H., “Weight-on-Wheels Input Fault,” of sub-section 1. “Landing Gear, Wheel and Brake System,” of Section 05-16, “Landing Gear, Wheel and Brake System,” of Chapter 5—ABNORMAL PROCEDURES.
(3) For Model CL-600-2B16 (604 variant) airplanes, S/N 6050 through 6174 inclusive: Revise the existing AFM to incorporate the information specified in paragraphs (g)(3)(i) and (ii) of this AD of Bombardier Challenger 650 Airplane Flight Manual-Publication No. PSP 650-1, Revision 28, dated March 14, 2022.
(i) Sub-sub-section L., “Ground Spoilers Unsafe,” of sub-section 1. “Flight Controls,” of Section 05-11, “Flight Controls,” of Chapter 5—ABNORMAL PROCEDURES.
(ii) Sub-sub-section H., “Weight-on-Wheels Input Fault,” of sub-section 1. “Landing Gear, Wheel and Brake System” of Section 05-16, “Landing Gear, Wheel and Brake System,” of Chapter 5—ABNORMAL PROCEDURES.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Transport Canada AD CF-2023-01, dated January 4, 2023, for related information. This Transport Canada AD may be found in the AD docket at
(2) For more information about this AD, contact William Reisenauer, Aviation Safety Engineer, FAA, 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) Sub-sub-section K., “Ground Spoilers Unsafe,” of sub-section 1. “Flight Controls,” of Section 05-11, “Flight Controls,” of Chapter 5—ABNORMAL PROCEDURES of Bombardier Challenger 604 Airplane Flight Manual-Publication No. PSP 604-1, Revision 125, dated March 14, 2022.
(ii) Sub-sub-section H., “Weight-on-Wheels Input Fault,” of sub-section 1. “Landing Gear, Wheel and Brake System,” of Section 05-16, “Landing Gear, Wheel and Brake System,” of Chapter 5—ABNORMAL PROCEDURES of Bombardier Challenger 604 Airplane Flight Manual-Publication No. PSP 604-1, Revision 125, dated March 14, 2022.
(iii) Sub-sub-section L., “Ground Spoilers Unsafe,” of sub-section 1. “Flight Controls,” of Section 05-11, “Flight Controls,” of Chapter 5—ABNORMAL PROCEDURES of Bombardier Challenger 605 Airplane Flight Manual-Publication No. PSP 605-1, Revision 63, dated March 14, 2022.
(iv) Sub-sub-section H., “Weight-on-Wheels Input Fault,” of sub-section 1. “Landing Gear, Wheel and Brake System,” of Section 05-16, “Landing Gear, Wheel and Brake System,” of Chapter 5—ABNORMAL PROCEDURES of Bombardier Challenger 605 Airplane Flight Manual-Publication No. PSP 605-1, Revision 63, dated March 14, 2022.
(v) Sub-sub-section L., “Ground Spoilers Unsafe,” of sub-section 1. “Flight Controls,” of Section 05-11, “Flight Controls,” of Chapter 5—ABNORMAL PROCEDURES of Bombardier Challenger 650 Airplane Flight Manual-Publication No. PSP 650-1, Revision 28, dated March 14, 2022.
(vi) Sub-sub-section H., “Weight-on-Wheels Input Fault,” of sub-section 1. “Landing Gear, Wheel and Brake System” of Section 05-16, “Landing Gear, Wheel and Brake System,” of Chapter 5—ABNORMAL PROCEDURES of Bombardier Challenger 650 Airplane Flight Manual-Publication No. PSP 650-1, Revision 28, dated March 14, 2022.
(3) For service information identified in this AD, contact Bombardier, Inc., Business Aircraft Customer Response Center, 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-2999; 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
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish United States Area Navigation (RNAV) route Q-476; and to amend RNAV route T-739, in support of the FAA's Very High Frequency (VHF) Omnidirectional Range (VOR) Minimum Operational Network (MON) Program. The purpose is to enhance the efficiency of the National Airspace System (NAS) by transitioning from ground-based navigation aids to a satellite-based navigation system.
Comments must be received on or before August 21, 2023.
Send comments identified by FAA Docket No. FAA-2023-1417 and Airspace Docket No. 22-AEA-17 using any of the following methods:
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FAA Order JO 7400.11G, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Brian Vidis, Rules and Regulations Group, Office of Policy, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify the route structure as to improve the efficient flow of air traffic within the NAS.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.
The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Operations office (see
United States Area Navigation routes are published in paragraph 2006 and paragraph 6011 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. These updates would be published in the next update to FAA Order JO 7400.11. That order is publicly available as listed in the
FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.
The FAA is proposing an amendment to 14 CFR part 71 to establish RNAV route Q-476; and amend RNAV route T-393. These actions are in support of the FAA's VOR MON Program. The proposed changes are described below.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F: “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
U.S. Copyright Office, Library of Congress.
Notice of inquiry; extension of comment period.
The United States Copyright Office is extending the deadline for written petitions for new exemptions in connection with the ninth triennial rulemaking proceeding under the Digital Millennium Copyright Act from the original deadline identified in the Office's June 8, 2023 notice.
Written petitions for new exemptions must be received no later than 11:59 p.m. Eastern Time on August 25, 2023. All other deadlines imposed in the June 8, 2023 notice remain unchanged.
Written petitions proposing new exemptions must be completed using the form provided on the Office's website at
Rhea Efthimiadis, Assistant to the General Counsel, by email at
On June 8, 2023, the U.S. Copyright Office issued a notice of inquiry initiating the ninth triennial rulemaking proceeding under the Digital Millennium Copyright Act to consider possible temporary exemptions to the prohibition against circumvention of technological measures that control access to copyrighted works.
To ensure that members of the public, including those represented by law school clinics, have sufficient time to submit written petitions for new exemptions, and to ensure that the Office has the benefit of a complete record, the Office is extending the deadline for the submission of written petitions for new exemptions to 11:59 p.m. Eastern Time on August 25, 2023. All other deadlines imposed in the June 8, 2023 notice of inquiry remain unchanged.
Department of Veterans Affairs.
Proposed rule.
The Department of Veterans Affairs (VA), as authorized under the
Comments must be received on or before August 4, 2023.
Comments must be submitted through
Kenneth Fenner, Program Analyst, Outreach, Transition and Economic Development, Veterans Benefits Administration, 1800 G Street SW, Washington, DC 20006; 202-461-9412 (this is not a toll-free telephone number). If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS) toll-free at 1-800-877-8339.
Public Law 116-315, the
According to the U.S. Department of Labor's Transition Assistance Program, approximately 200,000 men and women leave U.S. military service and return to civilian life each year. This process is known as the military-to-civilian transition. In a study published in 2015, more than 8,500 Veterans, active-duty Service members, National Guard and Reserve members, and military dependents identified their most significant transition challenges as:
• Navigating VA programs, benefits, and services (60%);
• Finding a job (55%);
• Adjusting to civilian culture (41%);
• Addressing financial challenges (40%); and
• Applying military-learned skills to civilian life (39%).
While a plethora of services exist to assist former Service members with their post-military transition, barriers persist limiting Veterans' ability to use them effectively.
To assist VSTAGP participants in addressing these challenges and in response to section 4304 of the Act, Outreach, Transition, and Economic Development (OTED) would issue grants to eligible organizations to provide transition services to former members of the Armed Forces who were separated, retired, or discharged, as well as their spouses. VSTAGP is intended to be a workforce program providing intensive client-centered case management services tailored to the unique employment needs of program participants. In this respect, VSTAGP will compliment other workforce programs and will assist Veterans and their spouses with navigating numerous transitional resources. VA proposes to accept applications from organizations that can determine a definitive need for the project in a defined service delivery area, such as those currently providing transition services and organizations desiring to provide transition services. Allowable transition services could include resume assistance, interview training, job recruitment training and related services that would result in a successful transition as determined by the Secretary. Related services would include, but are not limited to, employment placement services, employment education and/or training and employment referrals. To the extent feasible, services should be informed by existing evidence on effective approaches to supporting the transition, including research on evidence-based workforce development approaches.
Applications for VSTAGP funding proposals must clearly show through a comprehensive and coherent narrative how they will place program participants into jobs that are meaningful and sustainable. Successful applicants must describe their overall approach and strategy for providing a set of employment services leading to the successful transition of members of the U.S. Armed Forces who are separated, retired, or discharged, as well as their spouses. The strategy must include procedures for outreach, assessment, intake and follow-up services that enhance transition, as well as any other anticipated outcome. Applicants must also identify and fully describe the support services that will be provided to participants as part of the applicant's strategy to promote, prepare and improve the participant's transition. A participant flow chart, Gantt chart or similar graphic to show the sequence and mix of services is also required. Examples of historically successful placement strategies are on-the-job
Awarded programs will be expected to conduct outreach, intake and assessment, employment training, job placement, and employment retention services.
Proposed § 80.1 would set forth the purpose of VSTAGP, as noted above. As this is a new VA authority, we propose to define terms in § 80.2 that would be referenced in §§ 80.1 through 80.17. For the “eligible recipient (organization)” definition, we propose to list various entities that currently are providing or may desire to provide transition services described in section 4304(b) of the Act and then provide more specific definitions of the listed entities (a list of entity definitions can be found on pages 27-30). We also propose to define the term “participant” as a former member of the U.S. Armed Forces who was separated, retired, or discharged from the U.S. Armed Forces or spouse of such former member who receives services for which a VSTAGP grant is awarded.
In § 80.3, we would provide general information about VSTAGP grants. For example, § 80.3(b) would state that the maximum amount of a grant award to a grantee and the total maximum amount available for all grants would be specified in the Notice of Funding Opportunity (NOFO). Section 80.3(d) would clarify that an eligible entity may receive only one VSTAGP grant and that VA would award only one VSTAGP grant in any one location as specified in the NOFO. Section 80.3(e) would provide that a VSTAGP grant would be awarded for a maximum period of 5 years. Section 80.3(f) would note the statutory funds matching requirement for grantees, and § 80.3(g) would prohibit a grantee from charging fees to a participant or requiring a participant to participate in other activities sponsored by the grantee.
VA would publish at
We propose to describe in § 80.5 that, to apply for a VSTAGP grant, an applicant must submit a complete grant application package as described in a NOFO posted at www.grants.gov. An applicant may need to provide a well-articulated project narrative that describes proposed program services that would best address the scope of the NOFO. The content that may be required in the narrative may have to describe program design (including outreach), recruitment and engagement plans, assessments process, identify any local area network service providers and address the applicant's ability and capacity to administer the grant.
In selecting awardees, VA will want to consider an applicant's experience with similar programs as defined by the NOFO or related work in that particular field or subject matter. Applicants will need to propose a budget of costs and proposed expenditures. Other budgetary requirements may be included in the NOFO. These disclosures will help VA to more fully assess the extent to which an applicant has considered all aspects of planning and the likelihood of successful completion of grant objectives. Because grants awarded under this program require cost-sharing or matching funds, an applicant will have to provide evidence of secured cash matching funds from non-Federal sources that are at least equal to Federal grant funds awarded by VA or an explanation of the applicant's ability to secure commitments to receive such funding. In this section, VA also proposes a catch-all provision to allow for flexibility in assessing proposed budget narrative to including matching fund requirements that would be published in the NOFO. Applicants, whether successful or not, would not be entitled to reimbursement of pre-award costs.
As proposed under § 80.7, VA would review completed grant applications, as described in the NOFO. Applications would have to be submitted on time and meet the minimum application and other NOFO requirements. The NOFO would include information about the scoring process and clarify the minimum point totals per scoring category that an applicant must receive to be considered for a grant. Proposed § 80.7(b) would explain how VA would score and rank the grant applicants and select grant recipients. VA would rate all grant applications against each other to determine the likelihood of successful implementation of the grant program published in the NOFO and would consider other factors, as explained in § 80.6, when evaluating an applicant's qualifications for the grant award. Factors such as an applicant's past performance on a prior award, an applicant's fiscal integrity, or risk assessments are examples of other considerations that would affect VA's scoring of grant applications. VA would conduct a risk assessment prior to issuing VSTAGP awards. The results of this pre-award risk assessment would be used to determine if specific terms and conditions are needed upon award. Grants would be awarded based on a competitive application process. Section 4304 provides priority preferences for organizations that either (1) provide multiple forms of services, or (2) are located in a State with (a) a high rate of unemployment among Veterans; (b) a high rate of usage of unemployment benefits for recently separated members of the Armed Forces; or (c) a labor force or economy that has been significantly impacted by a covered public health emergency. Any grant made would have to be matched by the recipient organization with funds at least equal to the funds awarded by VA.
As proposed under § 80.8, VA may approve VSTAGP grant applications in whole or in part subject to conditions
VA proposes to include a withdrawal provision in § 80.9. Applicants would be able to submit a request in writing to the VA point of contact specified in the published NOFO to withdraw their application from consideration. Applicants should provide a rationale for the withdrawal request.
For grant awards, VA proposes in § 80.10 to memorialize the awards in an agreement, in accordance with the terms set out in § 80.10 and in the NOFO. As a condition of receiving a VSTAGP grant, grantees and grantee subrecipients (
Additionally, upon execution of the grant agreement, VA would obligate grant funds, as provided in proposed § 80.11, to the extent such costs are authorized by VA in the NOFO or the grant agreement or authorized subsequently by VA in writing, should the need arise.
As proposed in § 80.13(a), VA may terminate a grant agreement if a grantee does not comply with the terms of the grant agreement. Under proposed § 80.13(b), if VA determines that recovery of funds is necessary for violations of the grant agreement or unauthorized use of grant funds, VA would notify grantees in writing of the intent to recover grant funds. Grantees would have 30 days to submit documentation refuting the proposed recovery, which VA would review for a final determination. If VA makes a final decision that action would be taken to recover grant funds from the grantee, VA would stop further payments of grant funds under this part until the grant funds are recovered and the condition that led to the decision to recover grant funds has been resolved, unless the grant agreement has been terminated. If the grant agreement has been terminated, no future payments would be issued upon recovery. VA believes these measures would help safeguard Federal funds and ensure the appropriate use of the VSTAGP grant funds awarded.
As part of VA's duty to ensure fiscal responsibility, VA proposes in § 80.14 to conduct site visits to grantee locations to review grantee accomplishments and management control systems. In addition, VA may conduct, as needed, inspections of grantee records to determine compliance with the provisions of this part. All visits and evaluations would be performed with minimal disruption to the grantee to the extent practicable. Further, as proposed in § 80.15, VA would enforce 2 CFR part 200 regulations to ensure all VSTAGP grant recipients comply with the requirements of the Single Audit Act of 1996 and use a compliant financial management system based on OMB cost principles. As proposed in § 80.16, grantees would have to produce, upon VA's request, records maintained in accordance with 2 CFR 200.337.
Executive Order 12866 (Regulatory Planning and Review) directs agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 (Executive Order on Modernizing Regulatory Review) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review), and Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review). The Office of Information and Regulatory Affairs has determined that this rulemaking is a significant regulatory action under Executive Order 12866, as amended by Executive Order 14094. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at
The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). Receiving or not receiving a grant is unlikely to have a significant economic impact on small entity applicants. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603—604 do not apply.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local and tribal governments, in the aggregate or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local and tribal governments or on the private sector.
This proposed rule contains provisions constituting new collections of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) that require approval by OMB. Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of this rulemaking action to OMB for review and approval.
OMB assigns control numbers to collections of information it approves. VA may not conduct, or sponsor, and a person is not required to respond to, a
Comments on the new collections of information contained in this rulemaking should be submitted through
OMB is required to make a decision concerning the collections of information contained in this proposed rule between 30 and 60 days after the publication of this document in the
The Department considers comments by the public on proposed collections of information in:
• Assessing whether the proposed collections of information are necessary for the proper performance of the functions of the Department, including whether the information will have practical utility;
• Assessing the accuracy of the Department's estimate of the burden of the proposed collections of information, including the validity of the methodology and assumptions used;
• Enhancing the quality, usefulness, and clarity of the information to be collected; and
• Minimizing the burden of the collections 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, such as permitting electronic submission of responses.
The collections of information contained in 38 CFR 80.5, 80.12 and 80.16 are described immediately following this paragraph.
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The Assistance Listing number and title for the program affected by this document is 64.058, Veteran Transitional Assistance Grant Program.
Administrative practice and procedure, Armed forces, Employment, Grant programs—veterans, Reporting and recordkeeping requirements, Transition, Veterans.
Denis McDonough, Secretary of Veterans Affairs, approved and signed this document on May 3, 2023, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.
For the reasons stated in the preamble, VA proposes to amend title 38 by adding part 80 as set forth below:
38 U.S.C. 501, 512; Pub. L. 116-315, sec. 4304.
Sections 80.1 through 80.17 establish the Veteran Transitional Assistance Grant Program (VSTAGP). Under this program, VA may provide grants to eligible organizations defined in § 80.2 to provide transition services and intensive client centered case management services tailored to the unique employment needs of program participants to include, but not limited to such services, such as resume assistance, interview training, job recruitment training and related services, that will help in a successful transition from military to civilian life.
For purposes of this part and any Notice of Funding Opportunity (NOFO) issued pursuant to this part:
(a)
(b)
(1) State government;
(2) County government;
(3) Local government;
(4) Institution of Higher Education;
(5) Indian/Native American tribal government (Federally recognized);
(6) Nonprofit organization; or
(7) Faith-based organization;
(c)
(d)
(e)
(f)
(g)
(h)
(1) Is operated primarily for scientific, educational, service, charitable, or similar purposes in the public interest;
(2) Is not organized primarily for profit; and
(3) Uses net proceeds to maintain, improve, or expand the operations of the organization. In accordance with section 18 of the Lobbying Disclosure Act of 1995 (Pub. L. 104-65) (codified at 2 U.S.C. 1611), non-profit entities incorporated under section 501(c)(4) of the Internal Revenue Code that engage in lobbying activities are not eligible to receive Federal funds or grants. (Note: After receiving a grant, such organization may not engage in any activities, including awareness-raising or advocacy activities, that include fundraising for, or lobbying of, U.S. Federal, state, or local governments (see 2 CFR 200.450 for more information).)
(i)
(j)
(k)
(1) An industry sector that has a substantial current or potential impact (including through jobs that lead to economic self-sufficiency and opportunities for advancement) on the State, regional, or local economy, as appropriate, and that contributes to the growth or stability of other supporting businesses, or the growth of other industry sectors; or
(2) An occupation that currently has or is projected to have a number of positions (including positions that lead to economic self-sufficiency and opportunities for advancement) in an industry sector so as to have a significant impact on the State, regional, or local economy, as appropriate.
(l)
(m)
(n)
(o)
(p)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
When funds are available for VSTAGP grants, VA will publish a NOFO at
(a) The location for obtaining VSTAGP grant applications, including the specific forms that will be required;
(b) The date, time, and place for submitting completed VSTAGP grant applications;
(c) Priority population categories;
(d) The estimated total amount of funds available and the maximum funds available to a single grantee;
(e) Matching funds requirements;
(f) The minimum number of total points and points per category that an applicant must receive to be considered for a grant and information regarding the scoring process;
(g) Any timeframes and manner for payments under the VSTAGP grant;
(h) A description of eligible entities or other eligibility requirements necessary to receive the grant; and
(i) Other information necessary for the VSTAGP grant application process, as determined by VA, including contact information for the office that will oversee the VSTAGP within VA.
To apply for a grant, an eligible entity must submit a complete application package to VA, as described in the NOFO. Applications will be accepted only through
(a)
(b)
(c)
(1) A high rate of unemployment among Veterans;
(2) A high rate of usage of unemployment benefits for recently separated members of the Armed Forces; or
(3) A labor force or economy that has been significantly impacted by a covered public health emergency.
(d)
(a)
(b)
(a)
(1) Approve the application for funding, in whole or in part, for such amount of funds, and subject to such conditions that VA deems necessary or desirable;
(2) Determine that the application is of acceptable quality for funding, in that it meets minimum criteria, but disapprove the application for funding because it does not rank sufficiently high in relation to other applications to qualify for an award based on the level of funding available, or for another reason as provided in the decision document; or
(3) Defer action on the application for such reasons as lack of funds or a need for further review.
(b)
Applicants may withdraw a VSTAGP application submitted through
(a) VA will draft a VSTAGP grant agreement to be executed by VA and the grantee.
(b) The VSTAGP grant agreement will provide that the grantee agrees to, and will ensure that each subgrantee (if applicable) agrees to:
(1) Operate the project in accordance with this part and the terms of the agreement.
(2) Abide by the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards under 2 CFR part 200 and 2 CFR parts 25 and 170, if applicable.
(3) Comply with such other terms and conditions, including recordkeeping and reports for project monitoring and evaluation purposes, as VA may establish for purposes of carrying out the VSTAGP effectively and efficiently and as described in the NOFO; and
(4) Provide any necessary additional information requested by VA in the manner and timeframe specified by VA.
(a)
(b)
(a)
(1) Record of time and resources expended in outreach activities and the methods used;
(2) The number of participants served, including demographics of this population;
(3) Types of assistance provided;
(4) A full accounting of VSTAGP grant funds received from VA and used or unused funds during the quarter; and
(5) Results of routine monitoring and any project variations.
(b)
(c)
(1) Title I of the Foundations for Evidence-Based Policymaking Act of 2018 (Evidence Act), Public Law 115-435 (2019) defines evaluation as “an assessment using systematic data collection and analysis of one or more programs, policies, and organizations intended to assess their effectiveness and efficiency.” Evidence Act section 101 (codified at 5 U.S.C. 311). Credible program evaluation activities are implemented with relevance and utility, rigor, independence and objectivity, transparency, and ethics (OMB Circular A-11, Part 6 Section 290).
(2) Evaluation costs are allowable costs (either as direct or indirect), unless prohibited by statute or regulation, and such costs may include the personnel and equipment needed for data infrastructure and expertise in data analysis, performance, and evaluation. (2 CFR part 200).
(3) In addition, recipients are required to participate in a VA-led evaluation if selected, which may be carried out by a third-party on behalf of VA. By accepting grant funds, recipients agree to participate in the evaluation.
(a)
(b)
(c)
(a)
(b)
(a)
(b)
Grantees must ensure that records are maintained in accordance with 2 CFR 200.337. Grantees must produce such records at VA's request.
Grant award decisions are discretionary and are not subject to appeal to any VA official or board.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve, under the Clean Air Act (CAA), the limited maintenance plans (LMP) submitted on September 8, 2021, by the Ohio Environmental Protection Agency (OEPA) for the Canton-Massillon (Stark County), Cleveland-Akron-Lorain (Cuyahoga, Lake, Lorain, Medina, Portage, and Summit Counties) and Steubenville-Weirton (Ohio-West Virginia, Jefferson County) maintenance areas. The plans address the second 10-year maintenance periods for particulate matter with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers (PM
Comments must be received on or before August 4, 2023.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2021-0615 (Canton-Massillon), EPA-R05-OAR-2021-0616 (Cleveland-Akron-Lorain), or EPA-R05-OAR-2021-0617 (Steubenville-Weirton) at
Olivia Davidson, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-0266,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
Particulate matter with an aerodynamic diameter less than or equal to 2.5 micrometers, known as PM
On November 13, 2009, EPA designated the Canton-Massillon (Canton), Cleveland-Akron-Lorain (Cleveland), and Steubenville-Weirton (Steubenville) areas as PM
Section 175A of the CAA sets forth the elements of a maintenance plan. Under section 175A, a state must submit a revision to the SIP that provides for maintenance of the applicable NAAQS for at least 10 years after an area is redesignated to attainment. Section 175A also requires that eight years into the first maintenance period, the state must submit a second maintenance plan demonstrating that the area will continue to attain for the following 10-year period.
EPA has published long-standing guidance for states on developing maintenance plans.
Most recently, in October 2022, EPA released guidance extending this streamlined option for demonstrating maintenance under CAA section 175A to certain PM
EPA refers to this streamlined demonstration of maintenance as an LMP. EPA has interpreted CAA section 175A as permitting this option because section 175A of the Act defines few specific content requirements for maintenance plans, and in EPA's experience implementing the various NAAQS, areas that qualify for a LMP and have approved LMPs have rarely, if ever, experienced subsequent violations
The PM
Specifically, the PM
Transportation conformity is required by section 176(c) of the CAA. Under that provision, conformity to a SIP means that transportation activities will not cause or contribute to new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS or any required interim emission reductions or other milestones in any area.
While qualification for the LMP option does not exempt an area from the need to determine conformity, in an area with an LMP, conformity may be demonstrated without a regional emissions analysis for the relevant NAAQS and pollutant (40 CFR 93.109(e)). An LMP must demonstrate that it is unreasonable to expect that the qualifying areas would experience so much growth in on-road emissions during the maintenance period that a violation of the relevant NAAQS would occur (40 CFR 93.109(e)). Hence, because no such impact is expected, areas with LMPs are not required to do a regional emissions analysis as part of a transportation conformity determination.
While areas with maintenance plans approved or found adequate under the LMP option are not required to do a regional emissions analysis (and are not subject to the budget test in 40 CFR 93.118), the areas remain subject to the other transportation conformity requirements of 40 CFR part 93, subpart A, including fulfilling project-level conformity analyses requirements and consultation requirements. Ohio has established transportation conformity criteria and procedures related to interagency consultation, and enforceability of certain transportation related control and mitigation measures. Updates to the OEPA transportation conformity SIP were approved March 3, 2015 (80 FR 11133), which addresses the consultation requirements for the purpose of evaluating the conformity of transportation plans. The LMP SIP submissions for Canton, Cleveland, and Steubenville were developed as part of an interagency consultation process which includes Federal, state, and local agencies.
The PM
In addition to these proposed actions, EPA is notifying the public that the Agency is initiating the adequacy process for the Canton, Cleveland, and Steubenville LMPs.
The general conformity rule of November 30, 1993 (58 FR 63214) applies to nonattainment areas and redesignated attainment areas operating under maintenance plans (
EPA redesignated the Cleveland and Steubenville areas to attainment of the NAAQS on September 18, 2013 (78 FR 57270 and 78 FR 57273) and the Canton area on October 22, 2013 (78 FR 62459). Table 1 below shows the historical design values for each area since the areas were redesignated in 2013.
We propose to find that the Canton, Cleveland, and Steubenville areas meet the critical design value demonstration for a limited maintenance plan. As noted above, the parameters of the CDV calculation, outlined in the PM
We also propose to find that Ohio has adequately demonstrated that it is unlikely there will be an increase in motor vehicle emissions growth sufficient to cause a NAAQS violation in any of these three areas. In its submission, Ohio included an on-road PM
The site-specific 2006 24-hour PM
As noted above, this specific on-road PM
We think this is particularly so given the air quality trends in each area provided in the state's submission. From the time the areas started attaining the NAAQS in 2013 through 2019, ambient PM
EPA therefore proposes to find that the Canton, Cleveland, and Steubenville 2006 24-hour PM
As noted above, states that qualify for an LMP must still meet the other elements of a maintenance plan, as articulated in the Calcagni Memo. This includes an attainment year emissions inventory.
OEPA's Canton, Cleveland, and Steubenville PM
Once an area is redesignated, the state must continue to operate an appropriate air monitoring network in accordance with 40 CFR part 58 to verify the attainment status of the area. OEPA continues to operate a PM
In its submission, OEPA commits to continued operation of at least one EPA-approved PM
The level of the 2006 24-hour PM
CAA section 175A(d) states that a maintenance plan must include contingency provisions, as necessary, to ensure prompt correction of any violation of the relevant NAAQS which may occur after redesignation of the area to attainment. As explained in the Calcagni Memo, these contingency provisions are an enforceable part of the federally approved SIP. The maintenance plan should clearly identify the events that would “trigger” the adoption and implementation of a contingency provision, the contingency provision(s) that would be adopted and implemented, and the schedule indicating the time frame by which the State would adopt and implement the provision(s). The Calcagni Memo states that EPA will determine the adequacy of a contingency plan on a case-by-case basis. At a minimum, the plan must require that the state implement all measures contained in the CAA part D nonattainment plan for the area prior to redesignation.
In the Canton, Cleveland, and Steubenville PM
EPA is proposing to approve the second 10-year PM
To identify environmental burdens and potentially susceptible populations in Canton, Cleveland, and Steubenville, EPA performed a screening-level analysis using EPA's environmental justice (EJ) screening and mapping tool (EJSCREEN).
This proposed action would approve the second 10-year limited maintenance plans submitted by Ohio for the Canton, Steubenville, and Cleveland areas. We expect that this action, which would, among other things, find that the state has adequately provided for maintenance of the NAAQS and approve the state's contingency plan to address any potential violations of the NAAQS in the future, will be generally neutral or contribute to reduced environmental and health impacts on all populations in the three areas, including people of color and low-income populations. At a minimum, this action would not worsen any existing air quality and is expected to ensure the areas are meeting requirements to maintain the air quality standards. Further, there is no information in the record indicating that this action is expected to have disproportionately high or adverse human health or environmental effects on a particular group of people.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA.
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines EJ as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”
OEPA did not evaluate EJ considerations as part of its SIP submittals; the CAA neither prohibits nor requires such an evaluation. Consistent with EPA's discretion under the CAA, EPA has evaluated the environmental justice considerations of this action, as is described above in the section title, “Environmental Justice Considerations.” Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. In addition, there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving EJ for people of color, low-income populations, and Indigenous peoples.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM); extension of comment period.
On May 31, 2023, FRA published an NPRM proposing to require railroads to develop written programs for certifying individuals who work as dispatchers on their networks and to submit those written certification programs to FRA for approval prior to implementation. By this notice, FRA is extending the NPRM's comment period by 30 days.
The comment period for the NPRM, published May 31, 2023, at 88 FR 35574, scheduled to close on July 31, 2023, is extended until August 30, 2023.
Curtis Dolan, Railroad Safety Specialist, Dispatch Operating Practices, telephone: (470) 522-6633 or email:
In a June 16, 2023, petition, the American Short Line and Regional Railroad Association (ASLRRA) requested a 60-day extension of the NPRM's comment period.
The comment period for this NPRM is scheduled to close on July 31, 2023. As FRA is partially granting ASLRRA's request, the comment period is now extended to August 30, 2023, which is a total of 30 days.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, to
49 U.S.C. 20103, 20107, 20162, 21301, 21304, 21311; 28 U.S.C. 2461 note; 49 CFR 1.89; and Pub. L. 110-432, sec. 402, 122 Stat. 4884.
Issued in Washington, DC.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM); extension of comment period.
On May 31, 2023, FRA published an NPRM proposing to require railroads to develop written programs for certifying individuals who work as signal employees on their networks and to submit those written certification programs to FRA for approval prior to implementation. By this notice, FRA is extending the NPRM's comment period by 30 days.
The comment period for the NPRM, published May 31, 2023, at 88 FR 35632, scheduled to close on July 31, 2023, is extended until August 30, 2023.
Gabe Neal, Staff Director, Signal, Train Control, and Crossings Division, telephone: (816) 516-7168 or email:
In a June 16, 2023, petition, the American Short
The comment period for this NPRM is scheduled to close on July 31, 2023. As FRA is partially granting ASLRRA's request, the comment period is now extended to August 30, 2023, which is a total of 30 days.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, to
49 U.S.C. 20103, 20107, 20162, 21301, 21304, 21311; 28 U.S.C. 2461 note; 49 CFR 1.89; and Pub. L. 110-432, sec. 402, 122 Stat. 4884.
Issued in Washington, DC.
Foreign Agricultural Service, U.S. Department of Agriculture.
Notice.
The Foreign Agricultural Service announces the establishment of the Fiscal Year (FY) 2024 (October 1, 2023-September 30, 2024) in-quota aggregate quantity of raw cane sugar at 1,117,195 metric tons raw value (MTRV), and the establishment of the FY 2024 in-quota aggregate quantity of certain sugars, syrups, and molasses (also referred to as refined sugar) at 232,000 MTRV.
This notice is applicable on July 5, 2023.
Souleymane Diaby, Multilateral Affairs Division, Trade Policy and Geographic Affairs, Foreign Agricultural Service, U.S. Department of Agriculture, Stop 1070, 1400 Independence Avenue SW, Washington, DC 20250-1070; by telephone (202) 720-2916; or by email
The provisions of paragraph (a)(i) of Additional U.S. Note 5, Chapter 17 in the U.S. Harmonized Tariff Schedule (HTS) authorize the Secretary to establish the in-quota tariff-rate quota (TRQ) amounts (expressed in terms of raw value) for imports of raw cane sugar and certain sugars, syrups, and molasses that may be entered under the subheadings of the HTS subject to the lower tier of duties during each fiscal year. The Office of the U.S. Trade Representative (USTR) is responsible for the allocation of these quantities among supplying countries and areas.
Section 359(k) of the Agricultural Adjustment Act of 1938, as amended, requires that at the beginning of the quota year the Secretary of Agriculture establish the TRQs for raw cane sugar and refined sugars at the minimum levels necessary to comply with obligations under international trade agreements, with the exception of specialty sugar.
The Secretary's authority under paragraph (a)(i) of Additional U.S. Note 5, Chapter 17 in the HTS and Section 359(k) of the Agricultural Adjustment Act of 1938, as amended, has been delegated to the Under Secretary for Trade and Foreign Agricultural Affairs (7 CFR 2.26). The Under Secretary has further delegated this authority to the Administrator of the Foreign Agricultural Service (7 CFR 2.601).
Notice is hereby given that I have determined, in accordance with paragraph (a)(i) of Additional U.S. Note 5, Chapter 17 in the HTS and section 359(k) of the 1938 Act, that an aggregate quantity of up to 1,117,195 MTRV of raw cane sugar may be entered or withdrawn from warehouse for consumption during FY 2024. This is the minimum amount to which the United States is committed under the WTO Uruguay Round Agreements. The conversion factor is 1 metric ton raw value equals 1.10231125 short tons raw value. I have further determined that an aggregate quantity of 232,000 MTRV of sugars, syrups, and molasses (refined sugar) may be entered or withdrawn from warehouse for consumption during FY 2024. This quantity includes the minimum amount to which the United States is committed under the WTO Uruguay Round Agreements, 22,000 MTRV, of which 20,344 MTRV is established for any sugars, syrups and molasses, and 1,656 MTRV is reserved for specialty sugar. An additional amount of 210,000 MTRV is added to the specialty sugar TRQ for a total of 211,656 MTRV.
Because the specialty sugar TRQ is first-come, first-served, tranches are needed to allow for orderly marketing throughout the year. The FY 2024 specialty sugar TRQ will be opened in five tranches. The first tranche, totaling 1,656 MTRV, will open October 2, 2023. All specialty sugars are eligible for entry under this tranche. The second tranche of 60,000 MTRV will open on October 9, 2023. The third tranche of 60,000 MTRV will open on January 19, 2024. The fourth tranche of 45,000 MTRV will open on April 15, 2024. The fifth tranche of 45,000 MTRV will open on July 15, 2024. The second, third, fourth, and fifth tranches will be reserved for organic sugar and other specialty sugars not currently produced commercially in the United States or reasonably available from domestic sources.
Rural Business-Cooperative Service, Rural Housing Service and Rural Utilities Service, USDA.
Notice.
The Rural Business-Cooperative Service (RBCS), Rural Housing Service (RHS), and the Rural Utilities Service (RUS), agencies of the Rural Development mission area within the U.S. Department of Agriculture (USDA), hereinafter collectively referred to as the Agency, offer loan guarantees through four programs: Community Facilities (CF) administered by the RHS; Water and Waste Disposal (WWD) administered by the RUS; and Business and Industry (B&I) and Rural Energy for America Program (REAP) administered by the RBCS. This notice provides applicants with the Guarantee Fee rates, Guarantee percentage for Guaranteed Loans, the Periodic Retention Fee, and Fee for Issuance of the Loan Note Guarantee Prior to Construction Completion for Fiscal Year (FY) 2024, to be used when applying for guaranteed loans under the guaranteed loan types listed above. This notice is being published prior to the passage of a FY
The fees in this notice are effective October 1, 2023.
For information specific to this notice contact Michele Brooks, Director, Regulations Management, Rural Development Innovation Center—Regulations Management, USDA, 1400 Independence Avenue SW, Washington, DC 20250-1522. Telephone: (202) 690-1078. Email:
As set forth in 7 CFR part 5001, the Agency is authorized to charge a guarantee fee, a periodic guarantee retention fee, a fee for the issuance of the loan note guarantee prior to construction completion and establish a loan guarantee percentage for guaranteed loans made under this rule. Pursuant to this and other applicable authority, and subject to the current appropriated authority, the Agency is establishing the following for FY 2024:
The initial guarantee fee is paid at the time the loan note guarantee is issued. The periodic guarantee retention fee is paid by the lender to the Agency once a year. Payment of the periodic guarantee retention fee is required in order to maintain the enforceability of the guarantee. The fee for issuance of the loan note guarantee prior to construction completion DOES NOT apply to all construction loans. This additional fee only applies to loans requesting to receive a loan note guarantee prior to project completion. For loans where the loan note guarantee is issued between October 1 and December 31, the first periodic retention fee payment is due January 31 of the second year following the date the loan note guarantee was issued.
Unless precluded by a subsequent FY 2024 appropriation, these rates will apply to all guaranteed loans obligated in FY 2024. The amount of the periodic retention fee on each guaranteed loan will be determined by multiplying the periodic retention fee rate by the outstanding principal loan balance as of December 31, multiplied by the percentage of guarantee.
In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its agencies, offices, and 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.
Persons with disabilities who require alternative means of communication for program information (
To file a program discrimination complaint, a complainant should complete a Form, AD-3027,
(1)
(2)
(3)
USDA is an equal opportunity provider, employer, and lender.
Rural Utilities Service, USDA.
Notice; announcement of the opening of the online application window for the PACE Program.
The Rural Utilities Service, a Rural Development agency of the United States Department of Agriculture (USDA), hereinafter referred to as “RUS” or “the Agency” announced its intent to solicit Letters of Interest (LOI) for loan applications under the Powering Affordable Clean Energy (PACE) Program in a Notice of Funding
The Agency will begin accepting LOIs for the PACE Program beginning at 11:59 a.m. Eastern Time (ET) on July 10, 2023, and until 11:59 p.m. ET on September 29, 2023.
All LOIs must be submitted to RUS electronically at
Christopher McLean, Assistant Administrator, Electric Program, Rural Utilities Service, Rural Development, United States Department of Agriculture, 1400 Independence Avenue SW, STOP 1568, Washington, DC 20250-1560; Telephone: 202-690-4492. Email to:
On August 16, 2022, The Biden Harris Administration and the United State Congress passed the Inflation Reduction Act of 2022 which authorized the PACE Program. The goal of the PACE Program is to support clean, affordable energy growth across America by providing loans to eligible entities, with varying levels of loan forgiveness, for projects that generate and/or store electricity from RER.
On May 16, 2023, the Agency published a NOFO in the
The Agency has added the requirement to submit an Application for Federal Assistance (SF 424) to the list of items needed for a complete LOI in order to accept the LOI's through
1.
2.
The LOIs must be submitted electronically thru
To be eligible for an award, applications must meet all of the requirements contained in the NOFO published in the
Commission on Civil Rights.
Notice: revision to meeting date.
The Commission on Civil Rights published a notice in the
July 6, 2023, Thursday, at 12:00 p.m. (ET).
The meeting will be held via the same Zoom information.
Barbara Delaviez, at
Census Bureau, Department of Commerce.
Notice of public virtual meeting.
The Census Bureau is giving notice of a virtual meeting of the Census Scientific Advisory Committee (CSAC or Committee). From August 17-November 15, 2022, the Census Bureau posted a
The virtual meeting will be held Tuesday, July 25, 2023, from 1:00 p.m. to 4:00 p.m. EDT.
Please visit the Census Advisory Committee website at Census Scientific Advisory Committee Virtual Meeting: July 25, 2023, for the CSAC meeting information, including the agenda, and how to join the meeting.
Shana Banks, Advisory Committee Branch Chief, Office of Program, Performance and Stakeholder Integration (PPSI),
The Committee provides scientific and technical expertise to address Census Bureau program needs and objectives. The members of the CSAC are appointed by the Director of the Census Bureau. The Committee has been established in accordance with the Federal Advisory Committee Act (Title 5, United States Code, Appendix).
All meetings are open to the public. Public comments will be accepted in writing only to
Robert L. Santos, Director, Census Bureau, approved the publication of this Notice in the
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Every five years, pursuant to the Tariff Act of 1930, as amended (the Act), the U.S. Department of Commerce (Commerce) and the International Trade Commission automatically initiate and conduct reviews to determine whether revocation of a countervailing or antidumping duty order or termination of an investigation suspended under section 704 or 734 of the Act would be likely to lead to continuation or recurrence of dumping or a countervailable subsidy (as the case may be) and of material injury.
Pursuant to section 751(c) of the Act, the following Sunset Reviews are scheduled for initiation in August 2023 and will appear in that month's
No Sunset Review of suspended investigations is scheduled for initiation in August 2023.
Commerce's procedures for the conduct of Sunset Review are set forth in 19 CFR 351.218. The
Pursuant to 19 CFR 351.103(c), Commerce will maintain and make available a service list for these proceedings. To facilitate the timely preparation of the service list(s), it is requested that those seeking recognition as interested parties to a proceeding contact Commerce in writing within 10 days of the publication of the Notice of Initiation.
Please note that if Commerce receives a Notice of Intent to Participate from a member of the domestic industry within 15 days of the date of initiation, the review will continue.
Thereafter, any interested party wishing to participate in the Sunset Review must provide substantive comments in response to the notice of initiation no later than 30 days after the date of initiation. Note that Commerce has modified certain of its requirements for serving documents containing business proprietary information, until further notice.
This notice is not required by statute but is published as a service to the international trading community.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) determines that the sole exporter/producer subject to this review did not make sales of subject merchandise at less than normal value during the period of review (POR), February 1, 2021, through January 31, 2022.
Applicable July 5, 2023.
Benjamin Luberda or Ann Marie Caton, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2185 or (202) 482-2607, respectively.
On March 7, 2023, Commerce published the
Commerce conducted this administrative review in accordance with section 751 of the Tariff Act of 1930, as amended (the Act).
The merchandise subject to the
We determine that the following weighted-average dumping margin exists for the period February 1, 2021, through January 31, 2022:
Because Commerce received no comments on the
Pursuant to section 751(a)(2)(C) of the Act and 19 CFR 351.212(b)(1), Commerce has determined, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review.
Pursuant to 19 CFR 351.212(b)(1), where the respondent reported the entered value of their U.S. sales, we calculated importer-specific
Commerce's “automatic assessment” will apply to entries of subject merchandise during the POR produced
Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of the final results of this review in the
The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) the cash deposit rate for the company listed above will be that established in the final results of this review, except if the rate is less than 0.50 percent and, therefore,
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice 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), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of return/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.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of the determinations by the U.S. Department of Commerce (Commerce) and the U.S. International Trade Commission (ITC) that revocation of the antidumping duty (AD) orders on certain frozen warmwater shrimp from the People's Republic of China (China), India, Thailand, and the Socialist Republic of Vietnam (Vietnam) would likely lead to the continuation or recurrence of dumping, and material injury to an industry in the United States, Commerce is publishing a notice of continuation of these AD orders.
Applicable June 26, 2023.
Andrew Hart, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1058.
On February 1, 2005, Commerce published in the
On June 26, 2023, the ITC published its determination, pursuant to sections
The products covered by the
The frozen warmwater shrimp and prawn products included in the
The products described above may be processed from any species of warmwater shrimp and prawns. Warmwater shrimp and prawns are generally classified in, but are not limited to, the Penaeidae family. Some examples of the farmed and wild-caught warmwater species include, but are not limited to, whiteleg shrimp (
Frozen shrimp and prawns that are packed with marinade, spices or sauce are included in the scope of the
Excluded from the
The products covered by the
As a result of the determinations by Commerce and the ITC that revocation of the
The effective date of the continuation of the
This notice also serves as a final 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 which is subject to sanction.
These five-year (sunset) reviews and this notice are in accordance with sections 751(c) and 751(d)(2) of the Act and published in accordance with section 777(i) of the Act, and 19 CFR 351.218(f)(4).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that Christopher Marshall, Ph.D., Texas A&M University, 200 Seawolf Parkway, Building 3029, Room 253, Galveston, TX 77553, has applied in due form for a permit to take Kemp's ridley (
Written, telefaxed, or email comments must be received on or before August 4, 2023.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the “Features” box on the Applications and Permits for Protected Species (APPS) home page,
Written comments on this application should be submitted via email to
Those individuals requesting a public hearing should submit a written request via email to
Erin Markin, Ph.D., or Amy Hapeman, (301) 427-8401.
The subject permit is requested under the authority of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
The applicant proposes to continue research to characterize the movement, habitat use, foraging ecology, and health of juvenile, subadult, and adult sea turtles in estuarine, coastal, and offshore waters of Texas. Up to 25 Kemp's ridley, 25 green, 25 loggerhead, and 10 hawksbill sea turtles may be captured by hand, dip net, cast net, or entanglement net, marked (temporary paint, flipper, passive integrated transponder), epibiota removed, photographed, videoed, weighed, and measured prior to release. A subset of sea turtles would be biologically sampled (blood, scute, skin) or receive transmitters (acoustic and satellite tags or a video tag attached with epoxy or by drilling through the carapace) prior to release. The permit would be valid for 10 years.
The Department of Commerce will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. We invite the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Public comments were previously requested via the
Heat continues to be the leading weather-related killer with the Centers for Disease Control and Prevention (CDC) estimating more than 700 deaths a year resulting from heat exposure. The National Weather Service (NWS) needs to bridge the gap between physical science information and how it is received and acted upon by its public and partners. As such, this collection is critical in expanding NWS knowledge of public perception and understanding of heat to inform and improve national and local level heat communication and messaging. It is mission-critical for NWS to get their information out effectively, particularly to those most at risk including children, older adults, people experiencing homelessness, people with pre-existing conditions, indoor and outdoor workers, emergency responders, incarcerated people, low income communities, pregnant people, and athletes.
The information will be used to improve heat-related products and services. Specifically, the information collected will be used to improve the NWS' national and local level heat communication and messaging. Information collected will also improve resources provided through
This study is permitted by the Weather Research and Forecasting Innovation Act of 2017 which calls on NOAA to “improve the understanding of how the public receives, interprets, and responds to warnings and forecasts of high impact weather events that endanger life and property.” It also addresses Executive Order 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government. The study addresses the NOAA FY22-26 Strategic Plan.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
Office for Coastal Management, National Ocean Service, National Oceanic and Atmospheric Administration, Department of Commerce.
Notice of public meeting and opportunity to comment.
The National Oceanic and Atmospheric Administration (NOAA), Office for Coastal Management, will hold an in-person public meeting to solicit input on the performance evaluation of the Alabama Coastal Management Program. NOAA also invites the public to submit written comments.
NOAA will hold an in-person public meeting on Tuesday, July 18, 2023, at 6 p.m. NOAA will consider all relevant written comments received by Friday, July 28, 2023.
Comments may be submitted by one of the following methods:
•
•
NOAA will accept anonymous comments; however, the written comments NOAA receives are considered part of the public record, and the entirety of the comment, including the name of the commenter, email address, attachments, and other supporting materials, will be publicly accessible. Sensitive personally identifiable information, such as account numbers and Social Security numbers, should not be included with the comment. Comments that are not related to the performance evaluation of the Alabama Coastal Management Program or that contain profanity, vulgarity, threats, or other inappropriate language will not be considered.
Michael Migliori, Evaluator, NOAA Office for Coastal Management, by email at
Section 312 of the Coastal Zone Management Act (CZMA) requires NOAA to conduct periodic evaluations of federally approved coastal management programs. The evaluation process includes holding one or more public meetings, considering public comments, and consulting with interested Federal, State, and local agencies and members of the public. During the evaluation, NOAA will consider the extent to which the State of Alabama has met the national objectives, adhered to the management program approved by the Secretary of Commerce, and adhered to the terms of financial assistance under the CZMA. When the evaluation is complete, NOAA's Office for Coastal Management will place a notice in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of receipt of an application for exempted fishing permit; request for comments.
NMFS announces the receipt of an application for an exempted fishing permit (EFP) from Dr. Max Lee, Mote Marine Laboratory and Aquarium (Mote), Center for Fisheries Electronic Monitoring, Sarasota, Florida. If granted, the EFP would allow the retention of a limited number of undersized red grouper in Gulf of Mexico (Gulf) Federal waters by three federally permitted commercial reef fish bottom longline vessels. The results from this EFP are expected assist in Federal fishery management decisions.
Written comments must be received on or before August 4, 2023.
You may submit comments on the application, identified by “NOAA-NMFS-2023-0076” by any of the following methods:
Electronic copies of the EFP application may be obtained from the Southeast Regional Office website at
Rich Malinowski, 727-824-5305; email:
The EFP is requested under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801
Federal regulations at 50 CFR 622.37(b)(2)(i) prohibit the possession, sale, or purchase red grouper less the commercial minimum size limit of 18 inches (45.7 cm), total length (TL). The EFP would allow the possession, sale, and purchase of a limited number of
Over 6 years of electronic monitoring (EM) data collected by the applicant indicates that in the primary red grouper commercial fishing areas of the eastern Gulf, 46.7 percent of red grouper harvested in waters less than 35 fathoms (64 meters) are undersized and discarded. Of those discarded undersized red grouper, an estimated 25 percent of those discarded red grouper die after release. For red grouper commercially harvested in water deeper than 35 fathoms (64 meters), 18.7 percent of the fish are undersized and discarded, of which 42.7 percent estimated to die. These derived discard mortality estimates are a minimum value for bottom longline gear given the increased biological stresses on discarded fish that can occur when using this gear type. In 2018, the Southeast Data Assessment and Review 61, used a discard mortality rate of 44.1 percent for red grouper harvested with bottom longline gear.
The optimized retention management strategy tested under the EFP would require retention of all undersized red grouper harvested deeper than 35 fathoms on the three project vessels during their normal fishing operations. The applicant chose the 35 fathom (64 meter) depth contour based on the EM discard data, which indicates that approximately 3,000 lb (1,361 kg), gutted weight, of undersized red grouper would be subjected to high post-release mortality (and thus lost to both the fishery and the population) and could be sustainably retained. Therefore, the undersized fish retention limit is expected to eliminate red grouper discards in water deeper than 35 fathoms (64 meters). The 35 fathom (64 meter) depth contour is also consistent with the Gulf reef fish bottom longline seasonal prohibition in 50 CFR 622.35(b)(1).
The EFP would be effective from January 1, 2024, through December 31, 2024, or until the project vessels have retained a combined 3,000 lb (1,361 kg), gutted weight, of undersized red grouper. The three project vessels would be equipped with EM systems, which use multiple cameras and sensors to record fishing activity, and would be required to have the EM systems on during all commercial fishing activities. In Gulf Federal waters, all commercial grouper harvest occurs within the individual fishing quota (IFQ) system where each participating commercial vessel may harvest up to their respective allocation, in pounds, of an IFQ species. The three project vessels are part of the IFQ system and will possess the necessary red grouper allocation to harvest the amount of fish requested under the EFP. The three vessels will not be changing their normal fishing activities or normal fishing locations for the project, and except for the limited retention of undersized red grouper, would comply with all other applicable Federal regulations.
Undersized red grouper that are harvested in waters seaward of the line approximating the 35 fathom (64 meter) depth contour will be fitted with unique tags supplied to each vessel for this project. The tag will facilitate dockside sorting where these tagged undersized red grouper will be weighed separately to ensure that the poundage from undersized red grouper counted towards the total allowable amount under the EFP. Undersized red grouper will be weighed and processed through the IFQ system and assigned their own separate category on the weigh-out ticket, to note any pricing differences from the rest of the IFQ catch. The tagged fish will be further utilized by Florida Fish and Wildlife Conservation Commission (FWC) dockside samplers who will obtain biological data (
All trips made by the 3 project vessels will include 100 percent video review using established and approved protocols to verify fishing and project activity. The fish tags will serve to link each fish to a specific location of capture, documented through the EM systems and vessel monitoring system. Fish catch locations will be linked with associated metadata (
NMFS finds the application warrants further consideration based on a preliminary review. Possible conditions the agency may impose on the EFP, if granted, include but are not limited to, a prohibition on fishing within marine protected areas, marine sanctuaries, or special management zones without additional authorization.
A final decision on issuance of the EFP will depend on NMFS' review of public comments received on the application, consultations with the appropriate fishery management agencies of the affected states, the Gulf of Mexico Fishery Management Council, and the U.S. Coast Guard, and a determination that the activities to be taken under the EFP are consistent with all other applicable laws.
National Telecommunications and Information Administration, U.S. Department of Commerce.
Notice; request for comment.
The Broadband Equity, Access and Deployment (BEAD) Program was established in November 2021 through the Infrastructure Investment and Jobs Act, also known (and referred to subsequently herein) as the Bipartisan Infrastructure Law. Under the BEAD Program, the National Telecommunications and Information Administration (NTIA) is responsible for administering $42.45 billion in grants to the States, Territories, and the District of Columbia (Eligible Entities) with the principal focus of ensuring that every American has access to affordable, reliable high-speed internet service. Various stakeholders have requested NTIA to consider exemptions of certain provisions of OMB's
Submit written comments on or before 5 p.m. Eastern Standard Time on August 4, 2023.
You may submit public comments on this action, identified by
1. Using the Federal e-Rulemaking Portal at
2. Mailing a printed submission to National Telecommunications and Information Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Room 4878, Washington, DC 20230, Attention: BEAD Uniform Guidance RFC.
Please submit your comments in only one of these ways to minimize the receipt of duplicate submissions.
Please direct questions regarding this Notice to Sean Conway at
The Office of Management and Budget (OMB) released the
The Uniform Guidance generally sets out requirements for Federal awards to “non-federal entities.”
The Department of Commerce (DOC) adopted the Uniform Guidance and gave it regulatory effect in December 2014.
In accordance with the DOC ST&Cs, NTIA has routinely applied the relevant subparts of the Uniform Guidance to non-Federal entities and commercial entities in its grant programs that fund last mile and middle mile broadband deployment, such as the Broadband Technologies Opportunities Program (BTOP), the Broadband Infrastructure Program, the Tribal Broadband Connectivity Program, and the Middle Mile Grants Program established by the Bipartisan Infrastructure Law. Such application of the Uniform Guidance occurred without significant opposition, or even significant discussion, from applicants or program participants or apparent material impact on the programs or the projects funded thereunder.
Consistent with this approach, the Notice of Funding Opportunity (NOFO) for the BEAD Program provides that the Uniform Guidance and DOC ST&Cs will apply to the BEAD Program.
Following publication of the NOFO, various stakeholders requested that NTIA clarify the extent to which the Uniform Guidance applies to grants and subgrants awarded under the BEAD Program, if at all, and identified provisions of the Uniform Guidance that they argue will deter the participation of internet service providers (ISPs) in the BEAD Program and/or increase the costs that subgrantees will incur—and the award amounts they will require—to participate in the program without concomitant benefit. These stakeholders also requested that NTIA address their concerns by waiving or otherwise modifying the application of the Uniform Guidance to the BEAD Program.
This Request for Comment affords all interested persons an opportunity to provide input on any exemptions from the Uniform Guidance that might help facilitate the implementation of the BEAD Program. Given the unprecedented amount of funding Congress made available through the BEAD Program and the scale, scope, and character of the deployment challenge the Program is designed to resolve, it is critically important that NTIA operate this program as effectively and efficiently as possible, while also ensuring a high level of accountability to prevent waste, fraud, and abuse. This approach will further the goal of ensuring all Americans have access to affordable, reliable, high-speed internet service.
The BEAD Program differs from prior Federal broadband funding programs administered by NTIA, the Federal Communications Commission (FCC), the United States Department of Agriculture, and other Federal entities in important ways. First, the BEAD
To meet this challenge, the BEAD Program will provide a historic level of grant funding, providing significant resources to every State, Territory, and the District of Columbia. Each of these Eligible Entities will be required to conduct a “subgrantee selection process” to identify subgrantees
The relevant provisions of the Bipartisan Infrastructure Law use the terms “subgrantee” and “subgrant”—rather than “subrecipient” or “subaward” as used in the Uniform Guidance.
The Uniform Guidance defines program income as earned income “that is directly generated by a supported activity or earned as a result of the Federal award during the period of performance.”
In the context of broadband projects in the Capital Projects Fund (CPF) and State and Local Fiscal Relief Fund (SLFRF) programs, the Treasury Department is allowing CPF and SLFRF subrecipients to retain program income for use without restriction, including keeping it as profit.
NTIA tentatively agrees with the Treasury Department's approach to program income. In creating the BEAD Program, Congress established competitive subrecipient selection processes as the principle means for disbursing BEAD subawards.
As discussed above, maximizing provider participation in the BEAD Program is a key to ensuring its success. Broad participation facilitates competition, and the opportunity for providers to retain program income to support their business case and to avoid the transaction costs of tracking income generated on Program-funded network assets separate from other operating income will help stimulate participation.
Internet service is provided by a multitude of types of entities, including cooperatives, nonprofit organizations, public-private partnerships, utilities, public utility districts, local governments, and, most commonly, private companies. While some of these
Moreover, as discussed above, incentives for broad participation are needed to address the unique challenges for which the BEAD Program was created to solve. Unserved and underserved areas present significant barriers for service, as evidenced by the lack of existing high-speed internet infrastructure even after decades of the Federal efforts to expand broadband deployment in these areas. Indeed, the lack of a sustainable business case—namely a business case that generates a reasonable return on investment—is a core problem the BEAD Program is designed to address. The program income rules will in many cases prevent providers from earning a reasonable return on investment during the period of performance, and would not address the economic conditions that have stunted investment in these areas.
The increased incentive for providers to participate in the BEAD Program and compete for grant funding may also help extend the benefits of the BEAD Program to more Americans. Competition for a given set of locations will reduce the level of grant funding required on a per location basis. Efficient funding levels will in turn create opportunities for Eligible Entities to ensure that broadband network facilities are deployed to all unserved and underserved locations within their jurisdiction, and potentially pursue eligible access-, adoption-, and equity-related uses.
For these reasons, the program income provisions of the Uniform Guidance and DOC ST&Cs may be counterproductive in this specific context.
In responding to Question 1, commenters should take into account NTIA's interpretation of Section V.H.2.b. of the NOFO.
The Uniform Guidance defines fixed amount subawards as those in which a “pass-through entity provides a specific level of support without regard to actual costs incurred under the [subaward].”
The Federal Government's cost principle rules do not apply as compliance requirements to fixed amount subawards. Instead, the cost principles are used as a guide when budgeting for the work that will be performed. The Treasury Department is allowing CPF and SLFRF pass-through entities to structure broadband infrastructure subawards as fixed amount subawards. The cost principle rules thus will not apply as compliance requirements to subrecipients of those subawards.
NTIA tentatively agrees with the Treasury Department's approach in this area. Competitive subrecipient selection processes, as directed by Congress in the Bipartisan Infrastructure Law, are likely to result in fixed amount broadband infrastructure subawards that have measurable goals and objectives.
In addition, under the BEAD NOFO, the total amount of grant funding requested is among the criteria that Eligible Entities must give the greatest weight in deciding among competitive projects covering the same location or locations, which gives potential subgrantees significant financial incentive to estimate their costs conservatively.
For the reasons above, we believe the structure of the BEAD program and certain program features justify treating BEAD subgrants as fixed amount subawards. We expect this classification will result in fewer administrative burdens on Eligible Entities and subgrantees which should result in the more efficient administration of the BEAD program and more efficient use of program funding.
At the same time, it is important to minimize the risk of waste, fraud, and abuse. We therefore propose requiring Eligible Entities as a condition of their BEAD grants to monitor the costs of their subrecipients using reasonable and appropriate accounting methodologies. An Eligible Entity, for example, could require subgrantees to periodically report their expenses for grant-funded
NTIA plans to otherwise apply the fixed amount award provisions of 2 CFR 200.201(b) and the cost principle provisions of 2 CFR part 200, subpart E to State, Territorial, local or federally-recognized Indian Tribal Governments and 48 CFR part 31 to commercial organizations.
The Uniform Guidance generally imposes procurement rules on recipients and subrecipients that use federal assistance funds to obtain property or services.
The Treasury Department is allowing pass-through entities in the CPF and SLFRF programs to waive the procurement rules for subrecipients of fixed amount broadband infrastructure subawards. An awarding agency may provide less restrictive requirements when making fixed amount awards.
NTIA plans to otherwise apply the procurement provisions of 2 CFR 200.318-327.
The Uniform Guidance's property standards, in conjunction with the DOC ST&Cs, provide NTIA with a framework for holding subrecipients accountable and ensuring that BEAD investments deliver for the American people.
The Uniform Guidance requires real property and equipment acquired or improved with a subgrant to be held in trust for the beneficiaries of the BEAD Program.
The Uniform Guidance establishes use requirements on real property and equipment acquired under a Federal award or subaward during the Federal Interest Period. One such requirement is that the real property and equipment must be used in the program or project for which it was acquired as long as needed, whether or not the project or program continues to be supported by the Federal award.
NTIA plans to otherwise apply the real property and equipment use provisions of 2 CFR 200.311(b) and 2 CFR 200.313(c)(1)-(2).
The Uniform Guidance provides specific procedures for managing equipment (including replacement equipment) acquired in whole or in part under a Federal award or subaward.
NTIA plans to otherwise apply the equipment management provisions of 2 CFR 200.313(d).
The Uniform Guidance and DOC ST&Cs contain specific provisions regarding the replacement of equipment and the disposition of equipment no longer needed for the original project or program.
The equipment replacement and disposition requirements play an important role in safeguarding the Federal interest in real property acquired or improved under a Federal award. At the same time, requiring subrecipients of internet infrastructure subawards to sell older equipment in every instance of equipment upgrades, or obtain instructions for every instance of equipment disposition, may prove impractical given the scale and duration of the BEAD Program. Moreover, it may unintentionally chill efforts by BEAD subrecipients to upgrade and evolve networks during the Federal Interest Period.
NTIA plans to otherwise apply the equipment replacement and disposition provision of 2 CFR 200.313(c)(4) and 200.313(e).
The Uniform Guidance defers to the Federal awarding agency regarding whether to require the recording of liens or other notices of record on real property and equipment acquired or approved under a Federal subaward.
The Treasury Department is requiring subrecipients to record liens only in those instances in which the subrecipient encumbers the project property. These liens must reflect the Treasury Department's shared first lien position in the project property such that, if the project property were foreclosed upon and liquidated, Treasury would receive the portion of the fair market value of the property that is equal to Treasury's percentage contribution to the project costs.
While the NOFO establishes default audit requirements, it affords NTIA authority to prescribe different requirements for commercial entities via the terms and conditions of awards.
NTIA plans to otherwise apply the audit requirements specified in section VII.G of the NOFO and 2 CFR part 200, subpart F.
The Uniform Guidance requires recipients to report, and request prior approvals from Federal awarding agencies for, budget and program plan revisions.
NTIA plans to otherwise apply the budget revision provisions of 2 CFR 200.308(b).
National Telecommunications and Information Administration, U.S. Department of Commerce.
Notice of open meeting.
This notice announces a public meeting of the Commerce Spectrum Management Advisory Committee (Committee). The Committee provides advice to the Assistant Secretary of Commerce for Communications and Information and the National Telecommunications and Information Administration (NTIA) on spectrum management policy matters.
The meeting will be held July 18, 2023, from 3:00 p.m. to 5:00 p.m., Eastern Daylight Time (EDT).
The meeting will be held at Wilkinson Barker Knauer, LLP, 1800 M St. NW, Suite 800N, Washington, DC 20036. The public may also access the meeting via audio teleconference (866-880-0098, participant code 48261650). Public comments may be emailed to
Antonio Richardson, Designated Federal Officer, at (202) 482-4156 or
This Committee is subject to the Federal Advisory Committee Act (FACA), 5 U.S.C. app. 2, and is consistent with the National Telecommunications and Information Administration Act, 47 U.S.C. 904(b). The Committee functions solely as an advisory body in compliance with the FACA. For more information about the Committee visit:
Office of Special Education and Rehabilitative Services (OSERS), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act (PRA) of 1995, the Department is proposing a revision of a currently approved information collection request (ICR).
Interested persons are invited to submit comments on or before August 4, 2023.
Written comments and recommendations for proposed information collection requests should be submitted within 30 days of publication of this notice. Click on this link
For specific questions related to collection activities, please contact David Steele, 202-245-6520.
The Department is especially interested in public comment addressing the following issues: (1) is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR part 380, the Office of Energy Projects has reviewed the application for a subsequent license to continue to operate and maintain the Watson Dam Project. The project is located on the Cocheco River, in the City of Dover, Strafford County, New Hampshire. Commission staff has prepared an Environmental Assessment (EA) for the project.
The EA contains staff's analysis of the potential environmental impacts of the project and concludes that licensing the project, with appropriate environmental protective measures, would not constitute a major Federal action that would significantly affect the quality of the human environment.
The Commission provides all interested persons with an opportunity to view and/or print the EA via the internet through the Commission's Home Page (
You may also register online at
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
Any comments should be filed within 45 days from the date of this notice.
The Commission strongly encourages electronic filing. Please file comments using the Commission's eFiling system at
If you have process questions, contact Michael Watts at (202) 502-6123 or by email at
Take notice that the Commission has received the following Natural Gas & Oil Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
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:
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
Take notice that on June 21, 2023, Port Arthur LNG, LLC and PALNG Common Facilities Company, LLC (together referred to as PALNG), 488 8th Avenue, San Diego, CA 92101 filed an amendment under section 3 of the NGA to the existing authorization issued by the Commission on April 18, 2019, in Docket No. CP17-20-000 (2019 authorization or Liquefaction Project).
In addition to publishing the full text of this document in the
Any questions regarding the proposed project should be directed to Jerrod L. Harrison, Assistant General Counsel, Sempra Infrastructure, 488 8th Avenue, San Diego, CA 92101, (619) 696-2987 or
Pursuant to section 157.9 of the Commission's Rules of Practice and Procedure,
There are two ways to become involved in the Commission's review of this project: you can file comments on the project, and you can file a motion to intervene in the proceeding. There is no fee or cost for filing comments or intervening. The deadline for filing a
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
Any person wishing to comment on the project may do so. Comments may include statements of support or objections to the project as a whole or specific aspects of the project. The more specific your comments, the more useful they will be.
Pursuant to section 157.205 of the Commission's regulations under the NGA,
To ensure that your comments or protests are timely and properly recorded, please submit your comments on or before July 19, 2023.
There are three methods you can use to submit your comments to the Commission. In all instances, please reference the Project docket number CP23-501-000 in your submission.
(1) You may file your comments electronically by using the eComment feature, which is located on the Commission's website at
(2) You may file your comments electronically by using the eFiling feature, which is located on the Commission's website (
(3) You can file a paper copy of your comments by mailing them to the following address below. Your written comments must reference the Project docket number (CP23-501-000).
To mail via USPS, use the following address: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
To mail via any other courier, use the following address: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852.
The Commission encourages electronic filing of comments (options 1 and 2 above) and has eFiling staff available to assist you at (202) 502-8258 or
Persons who comment on the environmental review of this project will be placed on the Commission's environmental mailing list, and will receive notification when the environmental documents (EA or EIS) are issued for this project and will be notified of meetings associated with the Commission's environmental review process.
The Commission considers all comments received about the project in determining the appropriate action to be taken. However, the filing of a comment alone will not serve to make the filer a party to the proceeding. To become a party, you must intervene in the proceeding. For instructions on how to intervene, see below.
Any person, which includes individuals, organizations, businesses, municipalities, and other entities,
To intervene, you must submit a motion to intervene to the Commission in accordance with Rule 214 of the Commission's Rules of Practice and Procedure
There are two ways to submit your motion to intervene. In both instances, please reference the Project docket number CP23-501-000 in your submission.
(1) You may file your motion to intervene by using the Commission's eFiling feature, which is located on the Commission's website (
(2) You can file a paper copy of your motion to intervene, along with three copies, by mailing the documents to the address below. Your motion to intervene must reference the Project docket number CP23-501-000.
To mail via USPS, use the following address: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
To mail via any other courier, use the following address: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852.
The Commission encourages electronic filing of motions to intervene (option 1 above) and has eFiling staff available to assist you at (202) 502-8258 or
Protests and motions to intervene must be served on the applicant either by mail or email at: Jerrod L. Harrison, Assistant General Counsel, Sempra Infrastructure, 488 8th Avenue, San Diego, CA 92101, or at
All timely, unopposed
Throughout the proceeding, additional information about the project will be available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. For more information and to register, go to
Take notice that 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:
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as
Take notice that on June 27, 2023, Tamara J. Faber submitted for filing, application for authority to hold interlocking positions, pursuant to section 305(b) of the Federal Power Act, 16 U.S.C. 825d(b) and part 45.8 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR part 45.8.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
On July 13, 2023, from 8:00 p.m. to 8:45 p.m. Eastern time or 7:00 p.m. to 7:45 p.m. Central time, Commission staff will host a virtual workshop to discuss public participation in the natural gas and liquified natural gas pre-filing review process. Commission staff will describe the pre-filing review process which was designed to encourage involvement in the development of a project by all stakeholders, including affected landowners, area residents, and other concerned parties in a manner that allows for the early identification and resolution of potential environmental issues and impacts. The intent of the workshop is to provide an overview of the pre-filing review process, emphasize public participation opportunities, and to outline resources available to assist the public.
The virtual workshop will be open for the public to participate, and there is no fee for attendance. Simultaneous Spanish interpretation will be available during the event. Further details on the workshop can be found on FERC's Office of Public Participation website and on the Calendar of Events on the Commission's website,
The workshop will be accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations, please send an email to
For more information about the workshop, please contact Kelley Muñoz Lytle of the Commission's Office of Public Participation at 202-502-6739 or send an email to
This is a supplemental notice in the above-referenced proceeding of DRW Energy Trading 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
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 July 18, 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
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202)502-6595 or
Environmental Protection Agency (EPA).
Notice of final decision.
The Environmental Protection Agency (EPA) is granting a petition for variances from the classification as solid waste for two materials produced by HVF Precious Metals, LLC (HVF) at its facility in Tucson, Arizona.
Date of publication is July 5, 2023.
For further information regarding the
For further information regarding the incoming petition, Statement of Basis, and any technical questions, contact Sharon Lin, RCRA Branch; Land, Chemicals, and Redevelopment Division, U.S. Environmental Protection Agency Region 9, 75 Hawthorne Street, (Mail code LND-4-2), San Francisco, CA 94105; telephone number: (415) 972-3446; email address:
Section 260.30(c) allows the EPA Administrator to determine on a case-by-case basis that materials that have been reclaimed but must be further reclaimed before the materials are fully recovered are not solid wastes. The effect of a variance from the classification of solid waste is to exempt the material from RCRA hazardous waste regulations. The EPA, after providing for notice and comment (see 88 FR 9277), is finalizing its response to a petition submitted by HVF on July 26, 2022 (HVF's Petition). HVF's Petition concerns two partially-reclaimed materials (“Solution Sweeps” and “Filter Sweeps”) produced at its Tucson, Arizona facility from precious metal-bearing waste from cyanide-based electroplating operations. As explained in the “Statement of Basis” available in the docket [Docket ID EPA-HQ-OLEM-2022-0967-0008], EPA's determination is that the two materials produced by HVF are “commodity-like” under the criteria listed in § 260.31(c) and are legitimately recycled, thus qualifying for variances from classification as solid waste under § 260.30(c). The EPA published a proposed response to the petition on February 13, 2023 (88 FR 9277). The comment period for the proposed action closed on March 30, 2023. The EPA did not receive any comments on the proposed action during the public comment period and is therefore finalizing the variance as proposed.
For information on the EPA's rationale for granting the petition, see the “Statement of Basis” available in the docket [Docket ID EPA-HQ-OLEM-2022-0967-0008]. EPA had previously provided a proposed “Statement of Basis” in the docket for the proposed variance determination [Docket ID EPA-HQ-OLEM-2022-0967-0002], and now, with this final variance determination, published in the July 5, 2023
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is requesting comment on applications from Ford Motor Company (“Ford”) for off-cycle carbon dioxide (CO
Comments must be received on or before September 5, 2023.
Submit your comments referencing Docket ID No. EPA-HQ-OAR-2023-0303 online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Linc Wehrly, Director, Light Duty Vehicle Center, Compliance Division, Office of Transportation and Air Quality, U.S. Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105. Telephone: (734) 214-4286. Fax: (734) 214-4053. Email address:
EPA's light-duty vehicle greenhouse gas (GHG) program provides three pathways by which a manufacturer may accrue off-cycle carbon dioxide (CO
Under the regulations, a manufacturer seeking to demonstrate off-cycle credits with an alternative methodology (
• Use modeling, on-road testing, on-road data collection, or other approved analytical or engineering methods;
• Be robust, verifiable, and capable of demonstrating the real-world emissions benefit with strong statistical significance;
• Result in a demonstration of baseline and controlled emissions over a wide range of driving conditions and number of vehicles such that issues of data uncertainty are minimized;
• Result in data on a model type basis unless the manufacturer demonstrates that another basis is appropriate and adequate.
Further, the regulations specify the following requirements regarding an application for off-cycle CO
• A manufacturer requesting off-cycle credits must develop a methodology for demonstrating and determining the benefit of the off-cycle technology and carry out any necessary testing and analysis required to support that methodology.
• A manufacturer requesting off-cycle credits must conduct testing and/or prepare engineering analyses that demonstrate the in-use durability of the technology for the full useful life of the vehicle.
• The application must contain a detailed description of the off-cycle technology and how it functions to reduce CO
• The application must contain a list of the vehicle model(s) which will be equipped with the technology.
• The application must contain a detailed description of the test vehicles selected and an engineering analysis that supports the selection of those vehicles for testing.
• The application must contain all testing and/or simulation data required under the regulations, plus any other data the manufacturer has considered in the analysis.
Finally, the alternative methodology must be approved by EPA prior to the manufacturer using it to generate credits. As part of the review process defined by regulation, the alternative methodology submitted to EPA for consideration must be made available for public comment.
Ford is applying for off-cycle GHG credits for the use of an Enhanced Window Anti-Fogging Strategy (EWAFS). The EWAFS system uses an on-glass humidity sensor to calculate the fogging probability in mild ambient conditions. This technology improves the efficiency by allowing more accurate fogging prediction and less widespread A/C usage. The requested credit amount was confirmed by Ford through a series of AC17 tests with ambient temperatures from 5 to 25 degrees Celsius. Testing was done with and without the EWAFS system and an
Ford is applying for off-cycle GHG credits for the use of a Brushless Engine Cooling Fan Technology (BMECF). The brushless motor's increased efficiency reduces electrical load. Brushless motors improve efficiency by removing a source of friction at the brushes. While brushed motor cooling fans are typically 1 or 2 speed, brushless motors are inherently variable speed. This allows for a more efficient fan speed for a given set of vehicle conditions. Ford evaluated on-road fan usage collected through on-vehicle data loggers. Electrical power consumption was measured for 2-speed brushed, pulse-width modulated brushed, and brushless cooling fan types. Data was collected using several 2019 and 2020 vehicles and across various ambient temperatures. The electrical load reduction was converted to a CO
EPA has reviewed the applications for completeness and is now making the applications available for public review and comment as required by the regulations. The off-cycle credit applications submitted by the manufacturers (with confidential business information redacted) have been placed in the public docket (see
EPA is providing a 30-day comment period on the applications for off-cycle credits described in this document, as specified by the regulations. The manufacturers may submit a written rebuttal of comments for EPA's consideration, or may revise an application in response to comments. After reviewing any public comments and any rebuttal of comments submitted by manufacturers, EPA will make a final decision regarding the credit requests. EPA will make its decision available to the public by placing a decision document (or multiple decision documents) in the docket and on EPA's website at the same manufacturer-specific pages shown above. While the broad methodologies used by these manufacturers could potentially be used for other vehicles and by other manufacturers, the vehicle specific data needed to demonstrate the off-cycle emissions reductions would likely be different. In such cases, a new application would be required, including an opportunity for public comment.
Environmental Protection Agency (EPA).
Notice of filing of petition and request for comment.
This document announces the Agency's receipt of an initial filing of a pesticide petition requesting the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities.
Comments must be received on or before August 4, 2023.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2023-0069, through the
Anne Overstreet, Biopesticides and Pollution Prevention Division (BPPD) (7511M), main telephone number: 202-566-2425, email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
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EPA is announcing receipt of a pesticide petition filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the request before responding to the petitioner. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petition described in this document contains data or information prescribed in FFDCA section 408(d)(2), 21 U.S.C. 346a(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the pesticide petition. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on this pesticide petition.
Pursuant to 40 CFR 180.7(f), a summary of the petition that is the subject of this document, prepared by the petitioner, is included in a docket EPA has created for this rulemaking. The docket for this petition is available at
As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is publishing notice of the petition so that the public has an opportunity to comment on this request for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petition may be obtained through the petition summary referenced in this unit.
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Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit an information collection request (ICR) “Registration of Fuels and Fuel Additives—Requirements for Manufacturers” (EPA ICR No. 0309.16, OMB Control No. 2060-0150) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA). Before doing so, EPA is soliciting public comments on specific aspects of the proposed information collection as described below. This is a proposed extension of the ICR, which is currently approved through March 31, 2024. 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.
Comments must be submitted on or before September 5, 2023.
Submit your comments, referencing Docket ID No. EPA-HQ-OAR-2006-0894, online using
James W. Caldwell, Compliance Division, Office of Transportation and Air Quality, Mail Code 6405A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 343-9303; fax number: (202) 343-2800; email address:
Supporting documents which explain in detail the information that EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) 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,
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit an Information Collection Request (ICR), Registration of Fuels and Fuel Additives—Health-Effects Research Requirements for Manufacturers, EPA ICR No. 1696.11, OMB Control No. 2060-0297, to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA). Before doing so, EPA is soliciting public comments on specific aspects of the proposed information collection as described below. This is a proposed extension of the ICR, which is currently approved through March 31, 2024. 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.
Comments must be submitted on or before September 5, 2023.
Submit your comments, referencing Docket ID No. EPA-HQ-OAR-2006-0525, online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
James W. Caldwell, Compliance Division, Office of Transportation and Air Quality, Mailcode: 6406J, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 343-9303; fax number: (202) 343-2800; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) 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,
Manufacturers may perform the research independently or may join with other manufacturers to share in the costs for each applicable group. Several research consortiums (groups of manufacturers) have been formed. The largest consortium, organized by the American Petroleum Institute (API), represents most of the manufacturers of baseline gasoline, baseline diesel fuel, baseline fuel additives, and the prominent non-baseline oxygenated additives for gasoline. The research is structured into three tiers of requirements for each group. Tier 1 requires an emissions characterization and a literature search for information on the health effects of those emissions. Voluminous Tier 1 data for gasoline and diesel fuel were submitted by API and others in 1997. Tier 1 data have been submitted for biodiesel, water/diesel emulsions, several atypical additives, and renewable gasoline and diesel fuels. Tier 2 requires short-term inhalation exposures of laboratory animals to emissions to screen for adverse health effects. Tier 2 data have been submitted for baseline diesel, biodiesel, and water/diesel emulsions. Alternative Tier 2 testing can be required in lieu of standard Tier 2 testing if EPA concludes that such testing would be more appropriate. EPA reached that conclusion with respect to gasoline and gasoline-oxygenate blends, and alternative requirements were established for the API consortium for baseline gasoline and six gasoline-oxygenate blends. Alternative Tier 2 requirements have also been established for the manganese additive MMT manufactured by the Afton Chemical Corporation (formerly the Ethyl Corporation). Tier 3 provides for follow-up research, at EPA's discretion, when remaining uncertainties as to the significance of observed health effects, welfare effects, and/or emissions exposures from a fuel or fuel/additive mixture interfere with EPA's ability to make reasonable estimates of the potential risks posed by emissions from a fuel or additive. To date, EPA has not imposed any Tier 3 requirements. Under regulations promulgated pursuant to Section 211 of the Clean Air Act, (1) submission of the health-effects information is necessary for a manufacturer to obtain registration of a motor-vehicle gasoline, diesel fuel, or fuel additive, and thus be allowed to introduce that product into commerce, and (2) the information shall not be considered confidential.
10:00 a.m. on Friday, June 30, 2023.
The meeting was held in the Board Room located on the sixth floor of the FDIC Building located at 550 17th Street NW, Washington, DC.
Closed.
The Board of Directors of the Federal Deposit Insurance Corporation met to consider matters related to the Corporation's supervision, corporate, and resolution activities. In calling the meeting, the Board determined, on motion of Director Michael J. Hsu (Acting Comptroller of the Currency), seconded by Director Rohit Chopra (Director, Consumer Financial Protection Bureau), and concurred in by Vice Chairman Travis J. Hill, Director Jonathan P. McKernan, and Chairman Martin J. Gruenberg, that the public interest did not require consideration of the matters in a meeting open to public observation; and that the matters could be considered in a closed meeting by authority of subsections (c)(2) (c)(4), (c)(6), (c)(8), (c)(9)(A)(ii), (c)(9)(B), and (c)(10) of the “Government in the Sunshine Act” (5 U.S.C. 552b (c)(2), (c)(4), (c)(6), (c)(8), (c)(9)(A)(ii), (c)(9)(B), and (c)(10)).
Requests for further information concerning the meeting may be directed to Debra A. Decker, Executive Secretary of the Corporation, at 202-898-8748.
Thursday, July 13, 2023 at 10:30 a.m.
Hybrid Meeting: 1050 First Street NE, Washington, DC (12th Floor) and Virtual.
This meeting will be open to the public, subject to the above-referenced guidance regarding the COVID-19 hospital admission level and corresponding health and safety procedures. To access the meeting virtually, go to the Commission's website
Judith Ingram, Press Officer. Telephone: (202) 694-1220.
Individuals who plan to attend in person and who require special assistance, such as sign language interpretation or other reasonable accommodations, should contact Laura E. Sinram, Secretary and Clerk, at (202) 694-1040, at least 72 hours prior to the meeting date.
The Commission gives notice that it has formally requested that the parties to the below listed agreements provide additional information pursuant to 46 U.S.C. 40304(d). This action prevents the agreements from becoming effective as originally scheduled. Interested parties may submit comments, relevant information, or documents regarding the agreements to the Secretary by email at
By Order of the Federal Maritime Commission
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 August 4, 2023.
1.
Board of Governors of the Federal Reserve System.
Agency for Healthcare Research and Quality (AHRQ), HHS.
Request for supplemental evidence and data submissions.
The Agency for Healthcare Research and Quality (AHRQ) is seeking scientific information submissions from the public. Scientific information is being solicited to inform our review on
Kelly Carper, Telephone: 301-427-1656 or Email:
The Agency for Healthcare Research and Quality has commissioned the Evidence-based Practice Centers (EPC) Program to complete a review of the
The EPC Program is dedicated to identifying as many studies as possible that are relevant to the questions for each of its reviews. In order to do so, we are supplementing the usual manual and electronic database searches of the literature by requesting information from the public (
This is to notify the public that the EPC Program would find the following information on Breastfeeding and Health Outcomes for Infants and Children helpful:
A list of completed studies that your organization has sponsored for this indication. In the list, please
Description of whether the above studies constitute
Your contribution is very beneficial to the Program. Materials submitted must be publicly available or able to be made public. Materials that are considered confidential; marketing materials; study types not included in the review; or information on indications not included in the review cannot be used by the EPC Program. This is a voluntary request for information, and all costs for complying with this request must be borne by the submitter.
The draft of this review will be posted on AHRQ's EPC Program website and available for public comment for a period of 4 weeks. If you would like to be notified when the draft is posted, please sign up for the email list at:
The systematic review will answer the following questions. This information is provided as background. AHRQ is not requesting that the public provide answers to these questions.
This review will be guided by one Key Question (KQ 1) that addresses the infant and child health outcomes associated with breastfeeding and consuming human milk. One sub-KQ (KQ 1a) addresses variation in the associations by important variables related to breastfeeding and human milk consumption.
1. What is the association between breastfeeding/human milk consumption and health outcomes among infants and children?
a. How do these associations vary by intensity (including exclusivity), duration, and mode of feeding, and by source of human milk?
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice.
The Centers for Disease Control and Prevention (CDC), within the Department of Health and Human Services (HHS), is seeking nominations for membership on the Board of Scientific Counselors, National Center for Injury Prevention and Control (BSC, NCIPC). The BSC, NCIPC consists of up to 18 experts in pertinent disciplines involved in injury and violence prevention.
Nominations for membership on the BSC, NCIPC must be received no later than September 15, 2023. Packages received after this time will not be considered for the current membership cycle.
All nominations should be emailed to
Christopher R. Harper, Ph.D., Designated Federal Officer, Board of Scientific Counselors, National Center for Injury Prevention and Control, Centers for Disease Control and Prevention, 4770 Buford Highway NE, Mailstop S-1069, Atlanta, Georgia 30341. Telephone: (404) 718-8330. Email:
Nominations are sought for individuals who have expertise and qualifications necessary to contribute to the accomplishment of the objectives of the Board of Scientific Counselors, National Center for Injury Prevention and Control (BSC, NCIPC). Nominees will be
Department of Health and Human Services (HHS) policy stipulates that committee membership be balanced in terms of points of view represented and the committee's function. Appointments shall be made without discrimination on the basis of age, race, ethnicity, gender, sexual orientation, gender identity, HIV status, disability, and cultural, religious, or socioeconomic status. Nominees must be U.S. citizens and cannot be full-time employees of the U.S. Government. Current participation on federal workgroups or prior experience serving on a federal advisory committee does not disqualify a candidate; however, HHS policy is to avoid excessive individual service on advisory committees and multiple committee memberships. Board members are Special Government Employees, requiring the filing of financial disclosure reports at the beginning of and annually during their terms. CDC reviews potential candidates for BSC, NCIPC membership each year and provides a slate of nominees for consideration to the Secretary of HHS for final selection. HHS notifies selected candidates of their appointment near the start of the term in September 2024, or as soon as the HHS selection process is completed. Note that the need for different expertise varies from year to year and a candidate who is not selected in one year may be reconsidered in a subsequent year. Candidates should submit the following items:
Cover letter stating area of expertise
Current curriculum vitae, including complete contact information (telephone numbers, mailing address, email address)
At least one letter of recommendation from person(s) not employed by HHS. Candidates may submit letter(s) from current HHS employees if they wish, but at least one letter must be submitted by a person not employed by an HHS agency (
Nominations may be submitted by the candidate or by the person/organization recommending the candidate.
The Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign
In accordance with 5 U.S.C. 1009(d), the Centers for Disease Control and Prevention (CDC) announces the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended, and the Determination of the Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, CDC, pursuant to Public Law 92-463.
The Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of meeting and request for comment.
The CDC announces the following meeting of the Advisory Board on Radiation and Worker Health (ABRWH or the Advisory Board). This is a hybrid meeting, accessible both in person and virtually. It is open to the public, limited only by the space available and the number of audio conference lines and internet conference accesses. Time will be available for public comment. The public is also welcomed to submit written comments in advance of the meeting, to the contact person listed in the addresses section below. Written comments received in advance of the meeting will be included in the official record of the meeting. The public is also welcomed to listen to the meeting by joining the audio conference (information below). The combined number of audio conference lines and internet conference accesses is 200.
The meeting will be held on August 16, 2023, from 8:15 a.m. to 6:00 p.m., EDT. A public comment session will be held at 5:00 p.m., EDT, and will conclude at 6:00 p.m., EDT, or following the final call for public comment, whichever comes first. Written comments must be received on or before August 9, 2023.
DoubleTree by Hilton Augusta, 2651 Perimeter Parkway, Augusta, GA 30909; Telephone: (706) 855-8100. The conference room will
You may submit comments by mail to: Rashaun Roberts, National Institute for Occupational Safety and Health (NIOSH), CDC, 1090 Tusculum Avenue, Mailstop C-24, Cincinnati, Ohio 45226. Written comments received in advance of the meeting will be included in the official record of the meeting.
Rashaun Roberts, Ph.D., Designated Federal Official, NIOSH, CDC, 1090 Tusculum Avenue, Mailstop C-24, Cincinnati, Ohio 45226; Telephone: (513) 533-6800; Email:
The Advisory Board's charter was issued on August 3, 2001, was renewed at appropriate intervals, was rechartered under Executive Order 13889 on March 22, 2022, and will terminate on March 22, 2024.
For additional information, please contact Toll Free 1-800-232-4636.
The Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
U.S. Customs and Border Protection, Department of Homeland Security.
General notice.
This notice advises the public that the quarterly Internal Revenue Service interest rates used to calculate interest on overdue accounts (underpayments) and refunds (overpayments) of customs duties will remain the same from the previous quarter. For the calendar quarter beginning July 1, 2023, the interest rates for overpayments will be 6 percent for corporations and 7 percent for non-corporations, and the interest rate for underpayments will be 7 percent for both corporations and non-corporations. This notice is published for the convenience of the importing public and U.S. Customs and Border Protection personnel.
The rates announced in this notice are applicable as of July 1, 2023.
Bruce Ingalls, Revenue Division, Collection Refunds & Analysis Branch, 6650 Telecom Drive, Suite #100, Indianapolis, Indiana 46278; telephone (317) 298-1107.
Pursuant to 19 U.S.C. 1505 and Treasury Decision 85-93, published in the
The interest rates are based on the Federal short-term rate and determined by the Internal Revenue Service (IRS) on behalf of the Secretary of the Treasury on a quarterly basis. The rates effective for a quarter are determined during the first-month period of the previous quarter.
In Revenue Ruling 2023-11, the IRS determined the rates of interest for the calendar quarter beginning July 1, 2023, and ending on September 30, 2023. The interest rate paid to the Treasury for underpayments will be the Federal short-term rate (4%) plus three percentage points (3%) for a total of seven percent (7%) for both corporations and non-corporations. For corporate overpayments, the rate is the Federal short-term rate (4%) plus two percentage points (2%) for a total of six percent (6%). For overpayments made by non-corporations, the rate is the Federal short-term rate (4%) plus three
For the convenience of the importing public and U.S. Customs and Border Protection personnel, the following list of IRS interest rates used, covering the period from July of 1974 to date, to calculate interest on overdue accounts and refunds of customs duties, is published in summary format.
Bureau of Land Management, Interior.
Notice of temporary closure.
Notice is hereby given that the Bureau of Land Management (BLM) Las Cruces District Office is implementing the following closure to all public use within the area known as Community Pit No. 1 in Doña Ana County, New Mexico, including casual use (defined as any short-term, non-commercial activity that does not noticeably damage or disturb public lands, resources, or improvements), due to public safety concerns. Specifically, the closure is needed to reduce or prevent the opportunity for damage to property, personal injury, or loss of life from unstable conditions such as 150-foot-high walls.
The area specified below will be closed until reclamation of the site is completed or, July 7, 2025 whichever comes first. In the interim, the BLM will mitigate the safety issues in this area as reclamation of the site proceeds.
This temporary closure order will be posted in the BLM Las Cruces District Office, 1800 Marquess Street, Las Cruces, NM 88005-3371. Maps of the affected area and other documents associated with this temporary closure are available at the Las Cruces District Office.
Anthony Hom, Supervisory Lands and Minerals Resources Specialist, 1800 Marquess Street, Las Cruces, New Mexico 88005; email:
The Las Cruces District Office has completed an environmental assessment (DOI-BLM-NM-L000-2010-0086-EA) and a determination of NEPA adequacy (DOI-BLM-NM-L000-2023-0005-DNA) to close the area to public use, evaluating the potential reclamation of the site and analyzing the hazards to public health and safety until such time as reclamation of the site would be completed.
The public lands to be closed under this notice are described as:
Doña Ana County, New Mexico, totaling 85 acres.
All public use, including casual use, is prohibited on this 85-acre parcel.
This closure does not affect the ability of local, State, or Federal officials in the performance of their duties in the area, including the discharge of firearms. This notice will be posted along the roads and trails near and within the area where this closure is in effect. The following persons are exempt from this closure order:
a. Federal, State, or local law enforcement officers, while acting within the scope of their official duties;
b. Any person who obtains, or currently is in possession of, an authorization or permit from the BLM for use of the land identified in this closure; and
c. Users of Prehistoric Trackways National Monument Loop Road, Presidential Staircase Road, and the Arroyo Trail, who may continue to use these routes to traverse the closure area; however, users must stay on those designated roads and trails.
Violations of these closures and restrictions are punishable by fines in accordance with 18 U.S.C. 3571, imprisonment not to exceed one year, or both. These actions are taken to protect public health and safety.
Bureau of Land Management, Interior.
Notice of proposed official filing.
The plats of surveys for the lands described in this notice are scheduled to be officially filed 30 calendar days after the date of this publication in the BLM Montana State Office, Billings, Montana. The surveys, which were executed at the request of the Superintendent, Crow Creek Agency, Bureau of Indian Affairs dated February 27, 2020, and Interagency Agreement No. 4500146692, dated July 30, 2020, are necessary for the management of these lands.
A person or party who wishes to protest this decision must file a notice of protest in time for it to be received in the BLM Montana State Office no later than 30 days after the date of this publication.
A copy of the plats may be obtained from the Public Room at the BLM Montana State Office, 5001 Southgate Drive, Billings, Montana 59101, upon required payment. The plats may be viewed at this location at no cost.
Josh Alexander, BLM Chief Cadastral Surveyor for South Dakota; telephone: (406) 896-5123; email:
The lands surveyed are:
A person or party who wishes to protest an official filing of a plat of survey identified above must file a written notice of protest with the BLM Chief Cadastral Surveyor for South Dakota at the address listed in the
If a notice of protest of the plat(s) of survey is received prior to the scheduled date of official filing or during the 10-calendar day grace period provided in 43 CFR 4.401(a) and the delay in filing is waived, the official filing of the plat(s) of survey identified in the notice of protest will be stayed pending consideration of the protest. Upon receipt of a timely protest, and after a review of the protest, the Authorized Office will issue a decision either dismissing or otherwise resolving the protest. A plat of survey will then be officially filed 30 days after the protest decision has been issued in accordance with 43 CFR part 4.
If a notice of protest is received after the scheduled date of official filing and the 10-calendar day grace period provided in 43 CFR 4.401(a), the notice of protest will be untimely, may not be considered, and may be dismissed.
Before including your address, phone number, email address, or other personal identifying information in a notice of protest or statement of reasons, you should be aware that the documents you submit—including your personal identifying information—may be made publicly available in their entirety at any time. While you can ask us to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
National Park Service, Interior.
Notice.
The National Park Service is soliciting electronic comments on the significance of properties nominated before June 17, 2023, for listing or related actions in the National Register of Historic Places.
Comments should be submitted electronically by July 20, 2023.
Comments are encouraged to be submitted electronically to
Sherry A. Frear, Chief, National Register of Historic Places/National Historic Landmarks Program, 1849 C Street NW, MS 7228, Washington, DC 20240,
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before June 17, 2023. Pursuant to section 60.13 of 36 CFR part 60, comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Additional documentation has been received for the following resources:
Nominations submitted by Federal Preservation Officers:
The State Historic Preservation Officer reviewed the following nominations and responded to the Federal Preservation Officer within 45 days of receipt of the nominations and supports listing the properties in the National Register of Historic Places.
United States International Trade Commission.
July 10, 2023 at 11 a.m.
Room 101, 500 E Street SW, Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
1. Agendas for future meetings: none.
2. Minutes.
3. Ratification List.
4. Commission vote on Inv. Nos. 731-TA-1334-1337 (Review) (Emulsion Styrene-Butadiene Rubber (ESBR) from Brazil, Mexico, Poland, and South Korea). The Commission currently is scheduled to complete and file its determination and views on July 27, 2023.
5. Outstanding action jackets: none.
Sharon Bellamy, Acting Supervisory Hearings and Information Officer, 202-205-2000.
The Commission is holding the meeting under the Government in the Sunshine Act, 5 U.S.C. 552(b). In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission:
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission (“Commission”) has determined to review in part a final initial determination (“ID”) of the presiding administrative law judge (“ALJ”), finding a violation of section 337. The Commission requests written submissions from the parties on the issues under review and submissions from the parties, interested government agencies, and other interested persons on the issues of remedy, the public interest, and bonding, under the schedule set forth below. The Commission has determined to grant Respondents' motion for leave to file a notice of supplemental authority and to extend the target date for completion of this investigation to September 19, 2023.
Panyin A. Hughes, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-3042. Copies of non-confidential documents filed in connection with this investigation may be viewed on the
On January 31, 2022, the Commission instituted this investigation based on a complaint filed by Brita LP (“Brita”) of Neuchatel NE, Switzerland. 87 FR 4913 (Jan. 31, 2022). The complaint, as supplemented, alleged violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain high-performance gravity-fed water filters and products containing the same by reason of infringement of claims 1-6, 20, 21, 23, and 24 of U.S. Patent No. 8,167,141 (“the '141 patent”).
On May 3, 2022, the ALJ issued an ID granting a motion to terminate the investigation as to the Mavea Respondents based upon settlement. Order No. 13 (May 3, 2022),
On June 1, 2022, the ALJ issued an ID granting a motion to terminate the investigation as to claims 20, 21, and 24 of the '141 patent based upon withdrawal of the allegations in the complaint as to these claims. Order No. 19 (June 1, 2022),
On June 2, 2022, the ALJ held a
On September 22, 2022, the ALJ issued an ID granting a motion to terminate the investigation as to the Aqua Crest Respondents based upon withdrawal of the allegations in the complaint as to these respondents. Order No. 43 (Sept. 22, 2022),
The ALJ held an evidentiary hearing from August 17-19, August 22-23, and October 13, 2022, and received post-hearing briefs thereafter.
On February 28, 2023, the ALJ issued the final ID finding a violation of section 337. The ID found that “because of importation stipulations of all Accused Products,” the importation requirement under 19 U.S.C. 1337(a)(1)(B) is satisfied. ID at 12-13. The ID also found that Brita successfully proved that all of the Accused Products infringe the asserted claims of the '141 patent (claims 1-6 and 23).
The ID included the ALJ's recommended determination on remedy and bonding (“RD”). The RD recommended, should the Commission find a violation, issuance of a limited exclusion order against all respondents and cease and desist orders against the PUR Respondents and LifeStraw. ID/RD at 258-291. The RD also recommended imposing a bond in the amount of one hundred percent (100%) of entered value for PUR's and ZeroWater's infringing products imported during the period of Presidential review and $6 per unit for infringing LifeStraw products imported during the period of Presidential review.
On March 13, 2023, Respondents and Brita filed respective petitions for review of the ID. On March 21, 2023, the parties filed responses to the petitions.
On May 24, 2023, Respondents moved for leave to file notice of supplemental authority regarding their petition for review. Specifically, Respondents seek to submit the recent U.S. Supreme Court decision in
Having reviewed the record of the investigation, including the final ID, the parties' submissions to the ALJ, the petitions for review, and the responses thereto, the Commission has determined to review in part the final ID. Specifically, the Commission has determined to review the following findings: (1) construction of the claim term “filter usage lifetime claimed by a manufacturer or seller of the filter,” (2) written description, (3) enablement, (4) section 101, (5) anticipation, and (6) the economic prong of the domestic industry requirement.
In connection with its review, the Commission requests responses to the following questions. The parties are requested to brief their positions with reference to the applicable law and the existing evidentiary record.
(1) Discuss whether the construction of the claim term “filter usage lifetime claimed by a manufacturer or seller of the filter” to mean “[t]he total number of gallons of water that a manufacturer or seller has validated can be filtered before the filter is replaced,” (Order No. 30 at 14), impermissibly deviates from the plain language of the claims. Further, discuss whether the foregoing construction requires the reading of one or more limitations from the specification into the claim in order to find the limitation not invalid for indefiniteness.
(2) Discuss the effect of the recent Supreme Court decision,
(3) Discuss whether a person of ordinary skill in the art would understand how to use filter types other than carbon block (
(4) Discuss the predictability of the technology at issue and, in particular, how predictably these other filter types were expected to perform in terms of the FRAP factor as compared to the carbon block arrangement described in the specification as of the priority date of the '141 patent.
(5) Discuss whether a person of ordinary skill in the art as of the priority date of the '141 patent could have readily manipulated the FRAP factor variables of volume V, average filtration unit time f, effluent lead concentration c
(6) If it was possible to predictably determine the FRAP factor for non-carbon block filter types as of the priority date of the '141 patent, explain why it took Brita ten years and 7,326 hours of research and development to design a nonwoven filter that practices the '141 patent.
In connection with the final disposition of this investigation, the statute authorizes issuance of,
The statute requires the Commission to consider the effects of that remedy upon the public interest. The public interest factors the Commission will consider include the effect that an exclusion order and cease and desist orders would have on: (1) the public health and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are like or directly competitive with those that are subject to investigation, and (4) U.S. consumers. The Commission is therefore interested in receiving written submissions that address the aforementioned public interest factors in the context of this investigation. In particular, the Commission requests that the parties respond to the statements on the public interest received from the various third parties.
In addition, the Commission requests specific briefing to address the following questions relevant to the public interest considerations in this investigation, and responses are encouraged to include evidence in support of their statements:
(1) Please identify whether any reasonable substitutes for the Accused Products are available to consumers and whether they are capable of meeting any public health and welfare concerns raised by any remedial relief in this investigation. Is or would there be sufficient supply of any such reasonable substitutes for the Accused Products?
(2) Are the identified reasonable substitutes capable of filtering Per- and polyfluoroalkyl substances (PFAS) chemicals in drinking water and how effective are they in doing so in relation to the accused products' capability of filtering PFAS in drinking water?
(3) Do the identified reasonable substitutes meet or exceed the following standards: NSF P231/US EPA (bacteria and parasites); NSF 53 (pesticides, herbicides, lead and other heavy metals); NSF 42 (chlorine); NSF 473 (PFAS); and NSF 401 (emerging chemical contaminants)? How does this compare to the accused products' performance with respect to these standards? Please discuss the impact, if any, on the public health and welfare of water filters not meeting these standards and please submit and discuss any studies, data, or other evidence that shows an impact on the public health and welfare.
(4) Is there any production of like or directly competitive products in the United States and how would such production be impacted by any remedial relief?
If the Commission orders some form of remedy, the U.S. Trade Representative, as delegated by the President, has 60 days to approve, disapprove, or take no action on the Commission's determination.
In its initial submission, Complainant is also requested to identify the remedy sought and to submit proposed remedial orders for the Commission's consideration. Complainant is further requested to provide the HTSUS subheadings under which the accused products are imported, and to supply the identification information for all known importers of the products at issue in this investigation.
The initial written submissions and proposed remedial orders must be filed no later than close of business on July 14, 2023. Reply submissions must be filed no later than the close of business on July 21, 2023. No further submissions on these issues will be permitted unless otherwise ordered by the Commission. Opening submissions are limited to 60 pages. Reply submissions are limited to 30 pages. No further submissions on any of these issues will be permitted unless otherwise ordered by the Commission.
Persons filing written submissions must file the original document electronically on or before the deadlines stated above. The Commission's paper filing requirements in 19 CFR 210.4(f) are currently waived. 85 FR 15798 (March 19, 2020). Submissions should refer to the investigation number (Inv. No. 337-TA-1294) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment by marking each document with a header indicating that the document contains confidential information. This marking will be deemed to satisfy the request procedure set forth in Rules 201.6(b) and 210.5(e)(2) (19 CFR 201.6(b) & 210.5(e)(2)). Documents for which confidential treatment by the Commission is properly sought will be
The Commission has determined to extend the target date for completion of this investigation from June 28, 2023 to September 19, 2023.
The Commission vote for this determination took place on June 28, 2023.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission instituted the subject five-year review on April 3, 2023 to determine whether revocation of the antidumping duty order on carton-closing staples from China would be likely to lead to continuation or recurrence of material injury. On June 22, 2023, the Department of Commerce published notice that it was revoking the order effective May 8, 2023, because no domestic interested party filed a timely notice of intent to participate. Accordingly, the subject review is terminated.
May 8, 2023 (effective date of revocation of the order).
Andres Andrade (202-205-2078), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
By order of the Commission.
Employee Benefits Security Administration, Labor.
Notice of exemption.
This document contains a notice of exemption issued by the Department of Labor (the Department) from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (ERISA or the Act) and/or the Internal Revenue Code of 1986 (the Code). This exemption allows certain asset managers with specified relationships to PIMCO (the PIMCO Affiliated QPAMs) to continue to rely on the exemptive relief provided by Prohibited Transaction Class Exemption 84-14 (PTE 84-14 or the QPAM Exemption), notwithstanding the judgment of conviction against Allianz Global Investors US LLC (AGI US) for one count of securities fraud (the AGI US Conviction), as described below. This exemption does not grant any relief to AGI US. AGI US submitted an exemption request to the Department (D-12074), which it subsequently withdrew. The Department did not grant any relief to AGI US pursuant to its application or as part of this exemption.
The exemption will be in effect for a period of five years beginning on the date of the AGI US Conviction, as defined below.
Mr. Joseph Brennan of the Department at (202) 693-8456. (This is not a toll-free number.)
On March 28, 2023, the Department published a notice of proposed exemption in the
The Department intends for the terms of this exemption to promote adherence by the PIMCO Affiliated QPAMs to basic fiduciary standards under Title I of ERISA and the Code. An important objective in granting this exemption is to ensure that Covered Plans can terminate their relationships with a PIMCO Affiliated QPAM in an orderly and cost-effective fashion in the event the fiduciary of a Covered Plan determines that it is prudent to do so.
Based on the Applicant's adherence to all the conditions of the exemption, the Department makes the requisite findings under ERISA Section 408(a) that the exemption is: (1) administratively feasible, (2) in the interest of Covered Plans and their participants and beneficiaries, and (3) protective of the rights of the participants and beneficiaries of Covered Plans. Accordingly, affected parties should be aware that the conditions incorporated in this exemption are, individually and taken as a whole, necessary for the Department to grant the relief requested by the Applicant. Absent these or similar conditions, the Department would not have granted this exemption.
The Applicant requested an individual exemption pursuant to ERISA Section 408(a) in accordance with the procedures set forth in 29 CFR part 2570, subpart B (76 FR 66637, 66644, October 27, 2011).
PIMCO is a global investment management firm that manages the assets of ERISA-covered plans on a discretionary basis and advises or sub-advises pooled funds. PIMCO manages approximately $156 billion in assets for ERISA plans, approximately $1.89 billion in pooled funds, and approximately $9.58 billion in collective investment trusts maintained for ERISA and public pension plan investors.
PIMCO routinely relies upon the QPAM Exemption to provide relief for party-in-interest investment transactions. The clients of PIMCO include the Covered Plans, which are plans subject to Part 4 of Title I of ERISA and plans subject to Code Section 4975, with respect to which PIMCO relies on the QPAM Exemption or has expressly represented that it qualifies as a QPAM or relies on the QPAM Exemption. PIMCO also may in the future acquire other asset managers that rely upon the QPAM exemption. This exemption applies to PIMCO and other asset managers that are affiliated with PIMCO and that are 100 percent owned, directly or indirectly, by PIMCO (the PIMCO Affiliated QPAMs).
The QPAM Exemption exempts certain prohibited transactions between a party in interest and an “investment fund” (as defined in Section VI(b) of PTE 84-14) in which a plan has an interest if the investment manager meets the definition of “qualified professional asset manager” (QPAM) and satisfies additional conditions of the exemption. The Department developed and granted the QPAM Exemption based on the essential premise that broad relief could be afforded for all types of transactions in which a plan engages with parties in interest only if the commitments and investments of plan assets and the negotiations leading thereto are the sole responsibility of an independent, discretionary investment manager.
Section I(g) of the QPAM Exemption prevents an entity that may otherwise meet the definition of QPAM from utilizing the exemptive relief provided by the QPAM exemption, for itself and its client plans, if that entity, an “affiliate” thereof,
On May 17, 2022, the Department of Justice filed a criminal information in the District Court for the Southern District of New York charging AGI US with one count of securities fraud (the Information).
According to the Statement of Facts that served as the basis for the Plea Agreement (the Statement of Facts), beginning in at least 2014 and continuing through March 2020, AGI US engaged in a scheme to defraud investors in a series of private investment funds (the Structured Alpha Funds) that at their height held over $11 billion in assets under management (the Misconduct). The investors that were victims of the Misconduct included ERISA-covered Plans. The fraudulent scheme was carried out by the three managers in AGI US's Structured Products Group who were primarily responsible for managing the Structured Alpha Funds (collectively, the Fund Managers).
According to the Statement of Facts, AGI US made false and misleading statements to investors that substantially understated the risks being taken by the Structured Alpha Funds and failed to disclose and sought to affirmatively withhold relevant risk information. AGI US repeatedly represented to investors that their investments were low-risk and designed to minimize the risk of large losses. Despite these assurances, AGI US deployed an investment strategy that prioritized returns over effective risk management by, among other things, taking aggressive options bets and devoting insufficient resources to hedge positions. When investors sought to obtain documentation to assess investment risk, AGI responded by providing manually altered data.
According to the Statement of Facts, while the Misconduct was perpetrated by the Fund Managers within AGI US's Structured Products Group, these individuals were able to carry out the fraud, in part, because AGI US lacked sufficient internal controls and oversight for the Structured Alpha Funds. AGI US's control functions were not designed and did not function to ensure that risk for the Structured Alpha Funds was being monitored in line with the disclosures AGI US made to investors. Further, AGI US's Compliance, Enterprise Risk
AGI US's failure to address data quality issues in back-office functions allowed the Fund Managers' fraudulent scheme to continue undetected. In this regard, multiple AGI US employees within the Structured Products Group who were not directly involved in the fraudulent scheme were nonetheless aware that the Fund Managers were altering numbers on certain disclosures before sending them to investors. To cover up their wrongdoing, the Fund Managers explained to their Structured Products colleagues that they were simply correcting “errors” in disclosures generated by back-office functions.
In its Statement of Facts, the Department of Justice states the following: “The misconduct occurred only within the small Structured Products Group at AGI US. The Government's investigation has not revealed evidence that anyone at AGI US outside of the Structured Products Group was aware of the misconduct before March 2020. The investigation also has not revealed that anyone at any other organizations that fell within the broader umbrella of the parent company Allianz SE was aware of or participated in the misconduct.”
PIMCO is a direct subsidiary of the following three entities that are indirectly wholly owned by Allianz SE (Allianz): (1) Allianz Asset Management of America L.P. (AAM) (77.9 percent ownership of PIMCO); (2) Allianz Asset Management of America LLC (11.4 percent ownership of PIMCO); and (3) Allianz Asset Management Holding II LLC (2.4 percent of PIMCO). PIMCO's parent and managing member is AAM, which is generally responsible for oversight of PIMCO on behalf of Allianz. Allianz is PIMCO's ultimate parent company. Allianz also indirectly owns 100 percent of AGI US, the entity that engaged in the fraudulent scheme. Thus, PIMCO and AGI US are affiliates for the purposes of Section I(g) of the QPAM Exemption. As affiliates of AGI US, the PIMCO Affiliated QPAMs would no longer be able to rely on the relief provided by the QPAM Exemption once AGI US is sentenced in connection with its conviction, absent this exemption.
PIMCO operates autonomously and independently from both Allianz and AGI US, and PIMCO has no directors, officers, or employees in common with Allianz, AAM, or any other Allianz subsidiary. PIMCO asserts that Allianz employees do not have access to PIMCO's systems and are not involved in any way in the PIMCO Affiliated QPAMs' investment processes. PIMCO's management of plan assets is conducted separately from (a) the investment management activities of AGI US; (b) the non-investment management business activities of Allianz; and (c) the conduct underlying the AGI US Conviction. Further, Allianz employees are not involved in the portfolio management of PIMCO accounts, nor do they supervise or oversee PIMCO's portfolio management activities. Investment decisions for PIMCO accounts, including decisions regarding investment strategy, are made by PIMCO personnel pursuant to PIMCO policies, procedures, and guidelines, without consultation with Allianz or AGI US.
Allianz has delegated to the PIMCO Management Board the authority to manage all of PIMCO's business affairs, except for certain extraordinary matters where Allianz retains approval rights. The PIMCO Management Board, which is comprised solely of PIMCO's Managing Directors, relies upon the PIMCO Executive Committee as the primary governance body for review and approval of significant matters. There are no representatives of Allianz (or other non-PIMCO personnel) on the Management Board.
The Applicant represents that the PIMCO Executive Committee has authority for most significant matters and is currently composed of nine voting members and two non-voting members, all of whom are PIMCO Managing Directors. PIMCO's Senior Executive Officers are elected by the PIMCO Management Board and may be removed by the PIMCO Executive Committee and the PIMCO Performance and Compensation Committee.
PIMCO states that Allianz and the other Allianz subsidiaries do not have a role in the governance of PIMCO's global subsidiaries. PIMCO's global offices are primarily organized as direct or indirect subsidiaries of PIMCO, and each has its own defined governance structure. Nonetheless, PIMCO's global affiliates are subject to PIMCO's oversight as the direct or indirect parent entity. Except as otherwise required by applicable local law, PIMCO conducts oversight of its global affiliates through the application of PIMCO's global policies.
PIMCO states that it does not share information or coordinate investment management decisions with Allianz or other Allianz asset management subsidiaries, including AGI US. Among other things, PIMCO does not share investment research, portfolio holdings, client information, or trade information, and all trading decisions are made independently. Also, PIMCO does not coordinate proxy voting and makes all decisions, including decisions with respect to the valuation of securities, independently and pursuant to its own valuation policies and procedures. Further, PIMCO's products, including funds for which PIMCO Investments is the principal underwriter, are distributed independently; and PIMCO's technology and proprietary trading systems are not shared.
PIMCO does contract with Allianz insurance subsidiaries for the management of insurance portfolios, and therefore PIMCO shares information and holdings with respect to those activities as they would with their other clients. Regarding Allianz as a parent, information flows are limited to those necessary for appropriate prudent oversight, supervision of controls, and groupwide financial reporting and regulatory requirements.
Finally, hiring, termination, and compensation decisions for PIMCO personnel and executives are determined entirely pursuant to PIMCO's processes, independent of any influence by Allianz and Allianz asset management subsidiaries. Allianz (but no other Allianz affiliate) retains the right to approve the hiring of PIMCO's CEO, Group CIO, CFO, General Counsel, and head of Compliance.
Without the ability to rely upon the QPAM exemption, PIMCO asserts that it will be unable to effectively implement the investment strategies that Covered Plans engaged PIMCO to pursue. Consequently, PIMCO assumes that Covered Plans will terminate their relationship with PIMCO and seek out alternative asset managers. According to PIMCO, the transaction costs to Covered Plans of changing managers are significant, especially in many of the
PIMCO currently manages 451 ERISA plan institutional separate accounts, representing $170.35 billion in assets under management. 82.3% of these 451 plan accounts, representing $155.15 billion in assets, invest in cash bonds and derivatives, whereas 17.7% of the accounts, representing $15.2 billion in assets, invest only in cash bonds. Because of the critical role played by derivatives, PIMCO believes that a Covered Plan that selects PIMCO to actively manage its fixed income portfolio pursuant to a broad set of guidelines, including derivatives, would be unlikely to retain PIMCO to run a cash bond strategy in the absence of the QPAM Exemption.
Based on its understanding of the experience of other asset managers who did not receive a QPAM exemption, and who lost at least some plan business, PIMCO believes that it is likely that many of its plan clients whose guidelines permit derivatives would terminate their relationship if PIMCO could no longer trade in derivatives for those plans because PIMCO would be limited in its ability to manage a portfolio consistent with such clients' objectives. The Department notes that PIMCO was unable to provide a precise estimate of the size or significance of the plan assets affected.
In the absence of an exemption, PIMCO represents that Covered Plans that choose to remain with PIMCO would have a circumscribed set of transactions available to them and could be prohibited from engaging in certain transactions that would be beneficial, such as hedging transactions using over-the-counter options or derivatives. Counterparties to such transactions are far more comfortable with the QPAM Exemption than any other existing exemption, and the unavailability of the QPAM Exemption could trigger a default or early termination. Even if other exemptions were acceptable to such counterparties, the associated transaction costs might well increase to reflect any lack of comfort with relying on another exemption.
The PIMCO Affiliated QPAMs also have entered, and could in the future enter, into contracts for other transactions such as swaps, forwards, real estate financing and leasing on behalf of their ERISA clients. The Applicant represents that: (a) these and other strategies and investments require the PIMCO Affiliated QPAMs to meet the conditions of the QPAM Exemption; (b) the loss of the QPAM Exemption could disrupt the plans using each of these strategies, as counterparties to those transactions could seek to terminate their contracts, resulting in significant losses to their Covered Plan clients; and (c) certain derivatives transactions and other contractual agreements automatically and immediately could be terminated, without notice or action, or could become subject to termination upon notice from a counterparty in the event PIMCO no longer qualifies for relief under the QPAM Exemption.
The Applicant submits that the question of which applicable exemption can be used is entirely at the discretion of the counterparty; if the counterparty is uncomfortable with the risks presented by other exemptions, it will simply terminate the ongoing transaction based on the plan's default (considered to occur if its investment manager is no longer able to use the QPAM Exemption). While PIMCO could argue that other exemptions apply, whether to accept that exemption is the decision of the counterparty, and the strongest counterparties generally will take the smallest legal risk on exemptive relief. PIMCO states that because the Department has never issued any guidance on the applicability of other exemptions to transactions involving cleared and over-the-counter swaps, PIMCO's Covered Plan clients could be at a disadvantage with respect to those transactions.
PIMCO represents that the cost of terminating an investment is the difference between the bid and ask price on the instrument since, generally, these investments are terminated earlier than contemplated and on the counterparty's side of the market. Some investments, however, are more liquid than others (
In the proposed exemption, PIMCO provided an assessment of the potential harm to Covered Plans if this exemption is not granted, both in the aggregate and with respect to a representative Covered Plan account, under orderly, stressed, and expedited scenarios in which all the Covered Plans decide to terminate their relationships with PIMCO. The Department refers readers to the proposed exemption for more detail regarding these harms.
The Department notes that this exemption includes protective conditions that allow Covered Plans to continue to utilize the services of a PIMCO Affiliated QPAM if they determine that it is prudent to do so. The Department's primary objective in granting this exemption is to allow Covered Plans to avoid cost and disruption to investment strategies that may arise if such Covered Plans are forced, on short notice, to hire a different QPAM or asset manager because the PIMCO Affiliated QPAM is no longer able to rely on the relief provided by the QPAM Exemption due to the Conviction.
In the proposed exemption, the Department invited all interested persons to submit written comments and/or requests for a public hearing with respect to the notice of proposed exemption by May 12, 2023. The Department received one written comment from the Applicant and no requests for a public hearing. The Department discusses the Applicant's comments below.
Section I(d) of the proposed exemption states:
The Applicant requests that the Department extend the term of the exemption to ten years, which would cover the entire period of disqualification. As support for this request, the Applicant asserts that the PIMCO Affiliated QPAMs operate their business separately and autonomously from Allianz and its subsidiaries and
The Applicant submits that a truncated period of relief would penalize PIMCO's Covered Plan clients for the isolated misconduct of three individuals employed by AGI US and that withholding exemptive relief under the circumstances would not render such conduct less likely, nor would a five-year initial term serve any administrative purpose. Put differently, even if the Department were to re-evaluate the propriety of exemptive relief after five years, the key requirements of the exemption could not provide any additional assurance, beyond that already provided by the complete separation between PIMCO and AGI US, that the Applicant's plan clients would be unaffected by future misconduct at AGI US.
Regardless of the length of the term, the Applicant requests that the proposed exemption define the “Exemption Period” as a period beginning on the date of the AGI US Conviction. The Applicant states that because the AGI US Conviction will not occur on May 17, 2023, as originally scheduled, the definition of “Exemption Period” would not accurately reflect the date of the AGI US Conviction.
The Department agrees with the Applicant's second requested change and accordingly has modified this exemption to provide that the exemption period begins on the date of the AGI US Conviction.
The Applicant requests the deletion of Section I(h), which defines the term “PIMCO Related QPAMs” and all references to PIMCO Related QPAMs throughout the exemption. The Applicant represents that no such entities exist or are expected to exist in the future, and, as such, no relief is necessary for PIMCO Related QPAMs.
Section III(a) of the proposed exemption states:
The Applicant requests that this condition require reporting to the PIMCO Executive Committee because PIMCO does not have a formal Board of Directors. The Applicant states that the PIMCO Executive Committee determines PIMCO's strategic direction and oversees the broad scope of its operations. As such, requiring reporting to the Executive Committee would better reflect PIMCO's organizational structure.
Section III(b) of the proposed exemption states:
The Applicant requests that the prohibition on receiving direct compensation be limited to knowingly doing so. The Applicant states that, as the Department recognized by narrowing the prohibition on receipt of indirect compensation to knowing receipt, inadvertent receipt of compensation, whether direct or indirect, should not disqualify PIMCO from exemptive relief.
Section III(c) of the proposed exemption states:
The Applicant requests that there be no prohibition on the employment of any individual who was employed by AGI US's Structured Products Group, other than the three individuals who participated in the misconduct. The Applicant states that the Department of Justice made clear that only three individuals were involved in the misconduct that was the subject of the AGI US Conviction and the wrongdoing of these three individuals should not be imputed to the entire Structured Products Group, including, for example, support staff, secretaries, and information technology specialists. As a practical matter, PIMCO does not have and cannot gain access to employment records for AGI US and, therefore, is not able to verify compliance with this condition unless the former AGI US employee indicates such employment on his or her resume.
The Applicant submits that prohibiting employment by the PIMCO Affiliated QPAMs of the three individuals identified by the Department of Justice as having participated in the misconduct adequately protects Covered Plans and their participants from any influence by the wrongdoers, and a far broader prohibition affects a hardship on innocent employees.
Section III(d) of the proposed exemption states:
The Applicant requests that the term “investment fund” be replaced with the term “Covered Plan” because the description of “investment fund” in the proposed exemption duplicates the definition of Covered Plan, and the use of the term Covered Plan would be clearer and less ambiguous while achieving the same result.
Section III(g) of the proposed exemption states:
Section III(n) of the proposed exemption provides:
The Applicant requests that these provisions be deleted because PIMCO is entirely separate from the Allianz entities and, as such, PIMCO has no control whatsoever over AGI US and could do nothing to ensure these conditions are met. The Applicant submits that imposing conditions upon PIMCO over which PIMCO has no control is not protective of Covered Plans and their participants, nor does it further their interests. Conversely, imposing a condition that is entirely outside of PIMCO's control could potentially harm plans if AGI US does not comply, as PIMCO would have no way to remedy the breach but would lose advantageous exemptive relief, nonetheless.
If the Department declines to delete the conditions, the Applicant requests that they be narrowed to actions within PIMCO's control—
Section III(h)(1) of the proposed exemption states:
The Applicant requests the deletion of the term “immediately.” Because the Proposal expressly allows 180 days for the development and implementation of the Policies, the Applicant assumes the contradictory requirement to do so immediately was inadvertent.
Section III(h)(1)(v) of the proposed exemption states:
The Applicant submits that the clause prohibiting material misrepresentations and omission of material information in communications with regulators is duplicative of the immediately preceding condition, which requires all filings and statements to regulators to be “materially accurate and complete.” While Section III(h)(1)(iv) concerns communications with regulators, Section III(h)(1)(v) should be devoted solely to communications with Covered Plans.
The Applicant requests that Section III(h)(1)(v) be modified to read:
Section III(h)(1)(vii) of the proposed exemption states, in pertinent part:
The Applicant requests clarification that any violation or failure to comply must be reported to the head of compliance and the General Counsel of the relevant PIMCO Affiliated QPAM, rather than the relevant line of business. Currently, these are the Chief Compliance Officer and General Counsel of PIMCO LLC. The Applicant states that this change would better reflect PIMCO's organizational structure, which generally does not have separate general counsels or chief compliance officers for different lines of business.
Section III(i)(1) of the proposed exemption states:
The Applicant submits that the dates for the audit cycles should be calculated from the date of the AGI US Conviction, rather than from May 17, 2023.
Section III(i)(5) and Section III(i)(7) of the proposed exemption state, in pertinent part:
The Applicant requests clarification to reflect that the PIMCO Affiliated QPAMs comprise the universe of managers that would utilize this exemption. By their terms, these conditions assume that PIMCO is a separate entity from the Affiliated QPAMs, which is not factually accurate because PIMCO is currently the sole Affiliated QPAM. Thus, the Applicant requests that the Department revise the phrases “PIMCO and the PIMCO Affiliated QPAM” and “PIMCO or the PIMCO Affiliated QPAM” to “the PIMCO Affiliated QPAM.”
Section III(i)(8) of the proposed exemption states:
The Applicant requests that this condition require reporting to the PIMCO Executive Committee, rather than the Board of Directors. In addition, the Applicant requests that this condition require certification of the Audit Report by a senior executive officer, without the requirement that the senior executive officer report to the
Section III(j)(1) of the proposed exemption states that the PIMCO Affiliated QPAMs will agree and warrant:
The Applicant requests the deletion of the term “inadvertent” with respect to the correction of prohibited transactions, claiming that limiting the obligation to correct prohibited transactions to only those that are inadvertent would not serve the interest of plans. The Applicant states that the PIMCO Affiliated QPAMs would endeavor to promptly correct any prohibited transaction, whether or not inadvertent, and are prepared to agree and warrant to that effect to Covered Plans.
Section III(j)(2) of the proposed exemption states that the PIMCO Affiliated QPAMs will agree and warrant:
The Applicant requests that the Department modify this condition so that only a material breach of contract by a PIMCO Affiliated QPAM will trigger the indemnification provision. The Applicant states that a nonmaterial breach of a contract, such as an ancillary provision that does not affect the fundamental aspects of the contract, typically does not provide a basis for contractual remedies. Mandating indemnification for nonmaterial breaches by a QPAM would invite myriad claims arising over minor or technical aspects of the contract, including claims for consequential or punitive damages, which are commonly excluded from most agreements, but which the QPAMs nonetheless would be obligated to defend, and which would expend valuable resources that would be better utilized in serving plans. The Applicant urges the Department to limit the meaning of actual losses to losses and related costs directly arising from unwinding and excise tax exposure. The Applicant argues that expanding the definition of “actual losses” beyond direct costs could encourage plans to seek indemnification for indirect and incidental losses only tenuously or remotely arising from the QPAM's actions.
Section III(m)(2)(i) of the proposed exemption states:
The Applicant requests that the above description be modified to reflect that the Compliance Officer must review “any material error, recommendation, and compliance failure identified in the” Audit Report. The Applicant submits that this modification would be helpful to clarify that the focus of the Compliance Officer's review of the Audit Report should be the correction of errors and compliance failures and the implementation of recommendations, rather than the entirety of the Audit Report generally.
Section III(m)(2)(iii) of the proposed exemption states, in relevant part:
The Applicant requests that the dates for the Exemption Review cycles be calculated from the date of the AGI US Conviction, rather than from May 17, 2023.
Section III(q) of the proposed exemption states:
The Applicant requests that this condition allow 240 days after the effective date of the exemption to notify Covered Plans of their right to Policies or Summary Policies. Pursuant to Section III(h), the PIMCO Affiliated QPAMs have 180 days to develop and implement the Policies. The Applicant states that the notification deadline should occur after the development period for the Policies because notifying plans of their right to Policies that do not yet exist would serve only to confuse them. The Applicant requests an additional 60 days after the Policies have been drafted to prepare and send notices.
The Applicant also requests the correction of certain typographical issues in the proposed exemption.
The complete application file (D-12075) is available for public inspection in the Public Disclosure Room of the Employee Benefits Security Administration, Room N-1515, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210. For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, please refer to the notice of proposed exemption that the Department published in the
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under ERISA Section 408(a) does not relieve a fiduciary or other party in interest from certain requirements of other ERISA provisions, including but not limited to any prohibited transaction provisions to which the exemption does not apply and the general fiduciary responsibility provisions of ERISA Section 404, which, among other things, require a fiduciary to discharge their duties respecting the plan solely in the interest of the plan's participants and beneficiaries and in a prudent fashion in accordance with ERISA Section 404(a)(1)(B).
(2) As required by ERISA Section 408(a), the Department hereby finds that the exemption is: (a) administratively feasible; (b) in the interests of Covered Plans and their participants and beneficiaries; and (c) protective of the rights of the Covered Plan's participants and beneficiaries.
(3) This exemption is supplemental to, and not in derogation of, any other ERISA provisions, including statutory or administrative exemptions and transitional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive for determining whether the transaction is in fact a prohibited transaction.
(4) The availability of this exemption is subject to the express condition that the material facts and representations contained in the application accurately describe all material terms of the transactions that are the subject of the exemption and are true at all times.
Accordingly, after considering the entire record developed in connection with the Applicant's exemption application and the Applicant's comments on the proposed exemption, the Department has determined to grant the following exemption under the authority of ERISA Section 408(a) in accordance with the Department's exemption procedures set forth in 29 CFR part 2570, subpart B:
(a) The term “AGI US” means Allianz Global Investors U.S. LLC.
(b) The term “AGI US Conviction” means the judgment of conviction against AGI US for one count of securities fraud in violation of Title 15, United States Code, Sections 78j(b) and 78ff, Title 17, Code of Federal Regulations, Section 240.10b-5, and Title 18, United States Code, Section 2, entered in the District Court for the U.S. District Court Southern District of New York (the District Court) case number 1:22-cr-00279-CM.
(c) The term “Covered Plan” means a plan subject to Part IV of Title I of ERISA (an “ERISA-covered plan”) or a plan subject to Code section 4975 (an “IRA”), in each case, with respect to which a PIMCO Affiliated QPAM relies on PTE 84-14, or with respect to which a PIMCO Affiliated QPAM (or any PIMCO affiliate) has expressly represented that the manager qualifies as a QPAM or relies on the QPAM class exemption (PTE 84-14 or the QPAM Exemption).
(d) The term “Exemption Period” means the period of five years that begins on the date of the AGI US Conviction.
(e) The term “Misconduct” means the conduct described in the Statement of Facts in case number 1:22-cr-00279-CM which indicated that beginning in at least 2014 and continuing through March 2020, AGI US engaged in a scheme to defraud investors in a series of private investment funds (the Structured Alpha Funds) that at their height had over $11 billion in assets under management.
(f) The term “PIMCO” means Pacific Investment Management Company LLC.
(g) The term “PIMCO Affiliated QPAM” means a “qualified professional asset manager,” as defined in Section VI(a) of PTE 84-14, that relies on the relief provided by PTE 84-14 or represents to ERISA-covered plans and/or IRAs that it qualifies as a QPAM, and
Under this exemption, the PIMCO Affiliated QPAMs will not be precluded from relying on the exemptive relief provided by Prohibited Transaction Class Exemption 84-14 (PTE 84-14 or the QPAM Exemption) notwithstanding the Conviction, as defined in Section I(b), during the Exemption Period, as defined in Section I(c) provided that the conditions set forth in Section III below are satisfied.
(a) The PIMCO Affiliated QPAMs (including their officers, directors, agents other than AGI US, and employees of such QPAMs) did not know or have reason to know of and did not participate in the Misconduct that is the subject of the AGI US Conviction. Further, any other party engaged on behalf of the PIMCO Affiliated QPAMs who had responsibility for, or exercised authority in connection with the management of plan assets did not know nor have reason to know of and did not participate in the Misconduct that is the subject of the AGI Conviction. For purposes of this proposed exemption, “participate in” refers not only to active participation in the Misconduct of AGI US that is the subject of the AGI US Conviction, but also to knowing approval of the Misconduct, or knowledge of such Misconduct without taking active steps to stop it, including reporting the Misconduct to the PIMCO Executive Committee.
(b) The PIMCO Affiliated QPAMs (including their officers, directors, and agents other than AGI US, and employees of such PIMCO QPAMs who had responsibility for, or exercised authority in connection with the management of plan assets) did not receive direct compensation or knowingly receive indirect compensation in connection with the Misconduct that is the subject of the AGI US Conviction. Further, any other party engaged on behalf of the PIMCO Affiliated QPAMs who had responsibility for or exercised authority in connection with the management of plan assets did not receive direct compensation nor knowingly receive indirect compensation in connection with the Misconduct that is the subject of the AGI US Conviction;
(c) The PIMCO Affiliated QPAMs do not currently and will not in the future employ or knowingly engage any of the individuals who participated in any of the Misconduct, or any of the individuals who were referenced in the DOJ Statement of Facts as having known about the Misconduct without reporting the Misconduct. The PIMCO QPAMs must make every reasonable effort to ensure that no employees who participated in the Misconduct, including any employees who knew about the Misconduct and failed to report it, are employed by a PIMCO Affiliated QPAM. This involves using every reasonably available resource to identify these employees;
(d) At all times during the Exemption Period, no PIMCO Affiliated QPAM will use its authority or influence to direct an “investment fund” (as defined in Section VI(b) of PTE 84-14) that is subject to ERISA or the Code and managed by such PIMCO Affiliated QPAM in reliance on PTE 84-14 or with respect to which a PIMCO Affiliated QPAM has expressly represented to an ERISA-covered plan or IRA with assets invested in such “investment fund” that it qualifies as a QPAM or relies on the QPAM class exemption, to enter into any transaction with AGI US or to engage AGI US to provide any service to such investment fund for a direct or indirect fee borne by such investment fund regardless of whether such transaction or service may otherwise be within the scope of relief provided by an administrative or statutory exemption;
(e) Any failure of a PIMCO Affiliated QPAM to satisfy Section I(g) of PTE 84-14 arose solely from the AGI US Conviction;
(f) A PIMCO Affiliated QPAM did not exercise authority over the assets of any plan subject to Part 4 of Title I of ERISA (an ERISA-covered plan) or Code Section 4975 (an IRA) in a manner that it knew or should have known would: (i) further the Misconduct that is the subject of the AGI US Conviction; or (ii) cause the PIMCO Affiliated QPAM or its affiliates to directly or indirectly profit from the Misconduct that is the subject of the AGI US Conviction;
(g) Other than with respect to employee benefit plans maintained or sponsored for its own employees or the employees of an affiliate, AGI US will not act as a fiduciary within the meaning of ERISA Section 3(21)(A)(i) or (iii) or Code Section 4975(e)(3)(A) and (C) with respect to ERISA-covered plan and IRA assets; provided, however, that PIMCO will not be treated as violating the conditions of this exemption solely because AGI US acted as an investment advice fiduciary within the meaning of ERISA Section 3(21)(A)(ii) or Code Section 4975(e)(3)(B);
(h)(1) Within 180 calendar days after the effective date of this five-year exemption, each PIMCO Affiliated QPAM must develop, maintain, implement, and follow written policies and procedures (the Policies) that must require, and be reasonably designed to ensure that:
(i) The asset management decisions of the PIMCO Affiliated QPAM are conducted independently of the corporate management and business activities of AGI US;
(ii) The PIMCO Affiliated QPAM fully complies with ERISA's fiduciary duties and with ERISA and the Code's prohibited transaction provisions as applicable with respect to each Covered Plan, and does not knowingly participate in any violation of these duties and provisions with respect to Covered Plans;
(iii) The PIMCO Affiliated QPAM does not knowingly participate in any other person's violation of ERISA or the Code with respect to Covered Plans;
(iv) Any filings or statements made by the PIMCO Affiliated QPAM to regulators, including, but not limited to, the Department, the Department of the Treasury, the Department of Justice, and the Pension Benefit Guaranty Corporation on behalf of or in relation to Covered Plans are materially accurate and complete to the best of such QPAM's knowledge at the time they are made;
(v) To the best of the PIMCO Affiliated QPAM's knowledge at the time, the PIMCO Affiliated QPAM does not make material misrepresentations or omit material information in its communications with such regulators with respect to Covered Plans or make material misrepresentations or omit material information in its communications with Covered Plans;
(vi) The PIMCO Affiliated QPAM complies with the terms of this exemption; and
(vii) Any violation of or failure to comply with an item in subparagraphs (ii) through (vi), is corrected by the PIMCO Affiliated QPAM as soon as reasonably possible upon discovery, or as soon after the PIMCO Affiliated QPAM reasonably should have known of the noncompliance (whichever is earlier), and any such violation or compliance failure not so corrected is reported, upon the discovery of such failure to so correct, in writing, to the head of compliance and the General
(2) Within 180 calendar days after the effective date of the exemption, each PIMCO Affiliated QPAM must develop, maintain, adjust (to the extent necessary), and implement a training program during the Exemption Period that will be conducted at least annually for all relevant PIMCO Affiliated QPAM's asset/portfolio management, trading, legal, compliance, and internal audit personnel (the Training). The Training required under this exemption may be conducted electronically and must:
(i) At a minimum, cover the Policies, ERISA and Code compliance (including applicable fiduciary duties and the prohibited transaction provisions), ethical conduct, the consequences for not complying with the conditions of this exemption (including any loss of exemptive relief provided herein), and prompt reporting of wrongdoing; and
(ii) Be conducted by a professional who has been prudently selected and has appropriate technical training and proficiency with ERISA and the Code to perform the tasks required by this exemption;
(iii) Be verified through in-training knowledge checks, “graduation” tests, and/or other technological tools designed to confirm that personnel fully and in good faith participate in the Training;
(i)(1) Each PIMCO Affiliated QPAM must submit to an audit conducted every two years by an independent auditor who has been prudently selected and has appropriate technical training and proficiency with ERISA and the Code to evaluate the adequacy of the Policies and Training conditions described herein and each PIMCO Affiliated QPAM's compliance with them. The audit requirement must be incorporated into the Policies. Each audit must cover the preceding consecutive twelve (12) month period. The first audit under this exemption must cover the twelve-month period beginning on the date of the AGI US Conviction The second audit must cover the twelve-month period beginning two years from the date of the AGI US Conviction The third audit must cover the twelve-month period beginning four years from the date of the AGI US Conviction. Each audit must be completed no later than six (6) months after the conclusion of the period to which the audit relates.
(2) Within the scope of the audit and to the extent necessary for the auditor, in its sole opinion, to complete its audit and comply with the conditions for relief described herein, the PIMCO Affiliated QPAMs will grant the auditor unconditional access to their businesses, including, but not limited to: its computer systems; business records; transactional data; workplace locations; training materials; and personnel. Such access will be provided only to the extent that it is not prevented by state or federal statute, or involves communications subject to attorney client privilege and may be limited to information relevant to the auditor's objectives as specified by the terms of this exemption;
(3) The auditor's engagement must specifically require the auditor to determine whether each PIMCO Affiliated QPAM has developed, implemented, maintained, and followed the Policies in accordance with the conditions of this exemption, and has developed and implemented the Training as required herein;
(4) The auditor's engagement must specifically require the auditor to test each PIMCO Affiliated QPAM's operational compliance with the Policies and Training conditions. In this regard, the auditor must test, a sample of each PIMCO Affiliated QPAMs' transactions involving Covered Plans that is sufficient in size and nature to afford the auditor a reasonable basis to determine the PIMCO Affiliated QPAM's operational compliance with the Policies and Training conditions;
(5) For each audit, on or before the end of the relevant period described in Section III(i)(1) for completing the audit, the auditor must issue a written report (the Audit Report) to the PIMCO Affiliated QPAM to which the audit applies that describes the procedures performed by the auditor during its examination. The auditor, at its discretion, may issue a single consolidated Audit Report that covers all of the PIMCO Affiliated QPAMs. The Audit Report must include the auditor's specific determinations regarding: (i) the adequacy of each PIMCO Affiliated QPAM's Policies and Training and compliance with the Policies and Training conditions; the need, if any, to strengthen such Policies and Training; and any instance of each PIMCO Affiliated QPAM's noncompliance with the written Policies and Training conditions described in Section III(h) above. The PIMCO Affiliated QPAM must promptly address any identified noncompliance or prepare a written plan of action to address any determination by the auditor regarding the adequacy of the Policies and Training and the auditor's recommendations (if any) with respect to strengthening the PIMCO Affiliated QPAM's Policies and Training. Any action taken, or the plan of action to be taken, by the respective PIMCO Affiliated QPAM must be included in an addendum to the Audit Report (and such addendum must be completed before the certification described in Section III(i)(7) below). In the event the plan of action that is developed to address the auditor's recommendation regarding the adequacy of the Policies and Training is not completed by the time of submission of the Audit Report, the following period's Audit Report must state whether the plan was satisfactorily completed. Any determination by the auditor that the respective PIMCO Affiliated QPAM has implemented, maintained, and followed sufficient Policies and a Training must not be based solely or in substantial part on an absence of evidence indicating noncompliance. In this last regard, any finding that a PIMCO Affiliated QPAM has complied with the requirements under this subparagraph must be based on evidence that such PIMCO Affiliated QPAM has implemented, maintained, and followed the Policies and Training conditions required by this exemption. Furthermore, the auditor must not solely rely on the Annual Report created by the compliance officer (the Compliance Officer), described in Section III(m) below, as the basis for the auditor's conclusions in lieu of independent determinations and testing performed by the auditor, as required by Section III(i)(3) and (4) above; and (ii) The adequacy of the most recent Annual Review described in Section III(m);
(6) The auditor must notify the respective PIMCO Affiliated QPAM of any instance of noncompliance identified by the auditor within five (5) business days after such noncompliance is identified by the auditor regardless of whether the audit has been completed as of that date;
(7) With respect to each Audit Report, the general counsel or one of the three most senior executive officers of the PIMCO Affiliated QPAM with respect to which the Audit Report applies must certify in writing and under penalty of
(8) The PIMCO Executive Committee is provided with a copy of each Audit Report, and a senior executive officer with a direct reporting line to the highest-ranking legal compliance officer of PIMCO must review the Audit Report for each PIMCO Affiliated QPAM and certify in writing under penalty of perjury that such officer has reviewed the Audit Report;
(9) Each PIMCO Affiliated QPAM provides its certified Audit Report by electronic mail to the Department by submitting it to
(10) Each PIMCO Affiliated QPAM and the auditor must submit to OED any engagement agreement(s) entered into pursuant to the engagement by the auditor under this exemption no later than sixty (60) calendar days after the execution of any such engagement agreement;
(11) The auditor must provide the Department, upon request, for inspection and review, access to all the workpapers created and utilized during the audit, provided such access and inspection is otherwise permitted by law; and
(12) PIMCO must notify the Department of a change in the independent auditor no later than sixty (60) calendar days after the engagement of a substitute or subsequent auditor and must provide an explanation for the substitution or change including a description of any material disputes between the terminated auditor and PIMCO;
(j) Throughout the Exemption Period, with respect to any arrangement, agreement, or contract between a PIMCO Affiliated QPAM and a Covered Plan, the PIMCO Affiliated QPAM agrees and warrants:
(1) To comply with ERISA and the Code, as applicable with respect to such Covered Plan; to refrain from engaging in prohibited transactions that are not otherwise exempt (and to promptly correct any prohibited transactions); and to comply with the standards of prudence and loyalty set forth in ERISA Section 404 with respect to each such ERISA-covered plan and IRA (to the extent that ERISA Section 404 is applicable);
(2) To indemnify and hold harmless the Covered Plan for any actual losses resulting directly from the PIMCO Affiliated QPAM's violation of ERISA's fiduciary duties, as applicable, and the prohibited transaction provisions of ERISA and the Code, as applicable; a breach of contract by the QPAM; or any claim arising out of the failure of such PIMCO Affiliated QPAM to qualify for the exemptive relief provided by PTE 84-14 as a result of a violation of Section I(g) of PTE 84-14, other than the Conviction. This condition applies only to actual losses caused by the PIMCO Affiliated QPAM's violations, which include: (i) actual losses include losses and related costs arising from unwinding transactions with third parties and from transitioning Plan assets to an alternative asset manager; and (ii) costs associated with any exposure to excise taxes under Code Section 4975 because of the PIMCO Affiliated QPAM's inability to rely upon the relief in the QPAM Exemption;
(3) Not to require (or otherwise cause) the Covered Plan to waive, limit, or qualify the liability of the PIMCO Affiliated QPAM for violating ERISA or the Code or engaging in prohibited transactions;
(4) Not to restrict the ability of the Covered Plan to terminate or withdraw from its arrangement with the PIMCO Affiliated QPAM with respect to any investment in a separately managed account or pooled fund subject to ERISA and managed by the PIMCO Affiliated QPAM, with the exception of reasonable restrictions, appropriately disclosed in advance, that are specifically designed to ensure equitable treatment of all investors in a pooled fund in the event such withdrawal or termination may have adverse consequences for all other investors. In connection with any of these arrangements involving investments in pooled funds subject to ERISA entered into after the initial effective date of this exemption, the adverse consequences must relate to a lack of liquidity of the underlying assets, valuation issues, or regulatory reasons that prevent the fund from promptly redeeming an ERISA-covered plan's or IRA's investment, and the restrictions must be applicable to all such investors and effective no longer than reasonably necessary to avoid the adverse consequences;
(5) Not to impose any fees, penalties, or charges for such termination or withdrawal with the exception of reasonable fees, appropriately disclosed in advance, that are specifically designed to prevent generally recognized abusive investment practices or specifically designed to ensure the equitable treatment of all investors in a pooled fund in the event the withdrawal or termination may have adverse consequences for all other investors, provided that such fees are applied consistently and in like manner to all such investors;
(6) Not to include exculpatory provisions disclaiming or otherwise limiting the liability of the PIMCO Affiliated QPAM for a violation of such agreement's terms. To the extent consistent with ERISA Section 410, however, this provision does not prohibit disclaimers for liability caused by an error, misrepresentation, or misconduct of a plan fiduciary or other party hired by the plan fiduciary who is independent of PIMCO and its affiliates, or damages arising from acts outside the control of the PIMCO Affiliated QPAM; and
(7)(a) Each PIMCO Affiliated QPAM must provide a notice of its obligations under this Section III(j) to each sponsor or beneficial owner of a Covered Plan which is a client as of the Effective Date by a date that is 90 days after the Effective Date. For all other Covered Plans that become clients between the Effective Date and a date that is 120 days after the Effective Date, each sponsor or beneficial owner of such Covered Plans must be provided with a notice of the obligations under this section by a date that is 180 days after the Effective Date. All prospective sponsors and beneficial owners of Covered Plans that enter into a written investment management agreement with a PIMCO Affiliated QPAM after a date that is 120 days after the Effective Date must receive a copy of the notice of the obligations under this Section III(j) before, or contemporaneously with, the Covered Plan's receipt of a written investment management or comparable agreement from the PIMCO Affiliated QPAM. The notices may be delivered
(k) Within 90 days after the effective date of this exemption, each PIMCO Affiliated QPAM provides notice of the exemption as published in the
(l) The PIMCO Affiliated QPAM must comply with each condition of PTE 84-14, as amended, with the sole exception of the violation of Section I(g) of PTE 84-14 that is attributable to the AGI US Conviction. If an affiliate of PIMCO's (as defined in Section VI(d) of PTE 84-14) is convicted of a crime described in Section I(g) of PTE 84-14 (other than the Conviction) during the Exemption Period, relief in this exemption would terminate immediately;
(m)(1) Within 60 calendar days after the effective date of this exemption, each PIMCO Affiliated QPAM must designate a senior compliance officer (the Compliance Officer) who will be responsible for compliance with the Policies and Training requirements described herein. Notwithstanding the above, no person, including any person referenced in the Statement of Facts underlying the AGI US Conviction, who knew of, or should have known of, or participated in, any of the Misconduct, by any party, may be involved with the designation or responsibilities required by this condition, unless the person took active documented steps to stop the Misconduct. The Compliance Officer must conduct a review of each twelve-month period of the Exemption Period (the Exemption Review), to determine the adequacy and effectiveness of the implementation of the Policies and Training. The following conditions must be met with respect to the Compliance Officer:
(i) The Compliance Officer must be a professional who has extensive experience with and knowledge of the regulation of financial services and products, including under ERISA and the Code; and
(ii) The Compliance Officer must have a direct reporting line to the highest-ranking corporate officer in charge of compliance for the applicable PIMCO Affiliated QPAM.
(2) With respect to the Exemption Review, the following conditions must be met:
(i) The annual Exemption Review includes a review by the Compliance Officer of: (A) the PIMCO Affiliated QPAM's compliance with and effectiveness of the Policies and Training; (B) any compliance matter related to the Policies or Training that was identified by or reported to the Compliance Officer or others within the compliance and risk control function (or its equivalent) during the previous year; (C) any material error, recommendation, and compliance failure identified in the most recent Audit Report issued pursuant to this exemption; (D) any material change in the relevant business activities of the PIMCO Affiliated QPAMs; and (E) any change to ERISA, the Code, or regulations related to fiduciary duties and the prohibited transaction provisions that may be applicable to the activities of the PIMCO Affiliated QPAMs;
(ii) The Compliance Officer must prepare a written report for the Exemption Review (an Exemption Report) that: (A) summarizes the Compliance Officer's material activities during the prior year; (B) sets forth any instance of noncompliance discovered during the prior year, and any related corrective action; (C) details any change to the Policies or Training to guard against any similar instance of noncompliance occurring again; and (D) makes recommendations, as necessary, for additional training, procedures, monitoring, or additional and/or changed processes or systems, and management's actions on such recommendations;
(iii) In the Exemption Report, the Compliance Officer must certify in writing that to the best of their knowledge at the time: (A) the report is accurate; (B) the Policies and Training are working in a manner that is reasonably designed to ensure that the Policies and Training requirements described herein are met; (C) any known instance of noncompliance during the prior year and any related corrections taken to date have been identified in the Exemption Report; and (D) the PIMCO Affiliated QPAMs have complied with the Policies and Training, and/or corrected (or are correcting) any known instances of noncompliance in accordance with Section III(h) above; (iv) The Exemption Report must be provided to appropriate corporate officers of PIMCO and each PIMCO Affiliated QPAM to which such report relates, the head of compliance and the general counsel (or their functional equivalent) of the relevant PIMCO Affiliated QPAM. The Exemption Report also must be made unconditionally available to the independent auditor described in Section III(i) above; (v) The annual Exemption Review, including the Compliance Officer's written Report, must be completed within 90 calendar days after the end of the period to which it relates. The annual Exemption Review, including the Compliance Officer's written Report, must be completed within 90 calendar days after the end of the period to which it relates. The annual Exemption Reviews under this exemption must cover the five consecutive twelve-month periods beginning on the date of the Conviction.
(n) AGI US complies in all material respects with the requirements imposed by a U.S. regulatory authority in connection with the Conviction;
(o) Each PIMCO Affiliated QPAM will maintain records necessary to demonstrate that it has met the conditions of this exemption for six (6) years after the date of any transaction for which the PIMCO Affiliated QPAM relies upon the relief in this exemption;
(p) During the Exemption Period, PIMCO must: (1) immediately disclose to the Department any Deferred
(q) Within 60 calendar days after the effective date of this exemption, each PIMCO Affiliated QPAM will clearly and prominently inform Covered Plan clients of their right to obtain a copy of the Policies or a description (Summary Policies) which accurately summarizes key components of the PIMCO Affiliated QPAM's written Policies developed in connection with this exemption in its agreements with or in other written disclosures provided to Covered Plans. If the Policies are thereafter changed, each Covered Plan client must receive a new disclosure within 180 calendar days after the end of the calendar year during which the Policies were changed.
(r) A PIMCO Affiliated QPAM will not fail to meet the conditions of this exemption solely because a different PIMCO Affiliated QPAM fails to satisfy a condition for relief described in Sections III(c), (d), (h), (i), (j), (k), (l), (o) or (q); or if the independent auditor described in Section III(i) fails to comply with a provision of the exemption other than the requirement described in Section III(i)(11), provided that such failure did not result from any actions or inactions of PIMCO or its affiliates; and
(s) All the material facts and representations set forth in the Summary of Facts and Representations are true and accurate at all times.
(t) With respect to an asset manager that becomes a PIMCO Affiliated QPAM after the effective date of this exemption by virtue of being acquired (in whole or in part) by PIMCO or a subsidiary of PIMCO (a “newly-acquired PIMCO Affiliated QPAM”), the newly-acquired PIMCO Affiliated QPAM would not be precluded from relying on the exemptive relief provided by PTE 84-14 notwithstanding the Conviction as of the closing date for the acquisition; however, the operative terms of the exemption shall not apply to the newly-acquired PIMCO Affiliated QPAM until a date that is six (6) months after the closing date for the acquisition. To that end, the newly-acquired PIMCO Affiliated QPAM will initially submit to an audit pursuant to Section III(i) of this exemption as of the first audit period that begins following the closing date for the acquisition. However, the first audit to which a newly-acquired QPAM submits may require the auditor to look back into the previous year for that particular QPAM. This will be the case where the interval between the acquisition date and the beginning of the next audit period is greater than 6 months.
Signed at Washington, DC.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Occupational Safety & Health Administration (OSHA)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that the agency receives on or before August 4, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Nicole Bouchet by telephone at 202-693-0213, or by email at
The information collection requirements in this standard apply to all walking and working surfaces operations conducted by employers involved in procedures that prevent injury and death among workers who work with or near ladders, rope descent systems, and unprotected siding and edging. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
DOL seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
National Credit Union Administration (NCUA).
Notice and request for comments.
The National Credit Union Administration (NCUA), as part of a continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on the following extensions of a currently approved collection, as required by the Paperwork Reduction Act of 1995.
Written comments should be received on or before September 5, 2023 to be assured consideration.
Interested persons are invited to submit written comments on the information collection to Mahala Vixamar, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314, Suite 5067; Fax No. 703-519-8579; or Email at
Address requests for additional information to Mahala Vixamar at the address above or telephone 703-518-6540.
By the National Credit Union Administration Board.
National Credit Union Administration (NCUA).
Notice of submission to the Office of Management and Budget.
The National Credit Union Administration (NCUA), as part of a continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on the following extension of a currently approved collection, as required by the Paperwork Reduction Act of 1995.
Written comments should be received on or before August 4, 2023 to be assured consideration.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of the submission may be obtained by contacting Mahala Vixamar at 703-518-6540, emailing
By the National Credit Union Administration Board.
National Endowment for the Humanities; National Foundation on the Arts and the Humanities.
Notice of meeting.
Pursuant to the Federal Advisory Committee Act, notice is hereby given that the National Council on the Humanities will meet to advise the Chair of the National Endowment for the Humanities (NEH) with respect to policies, programs and procedures for carrying out her functions; to review applications for financial assistance under the National Foundation on the Arts and Humanities Act of 1965 and make recommendations thereon to the Chair; and to consider gifts offered to NEH and make recommendations thereon to the Chair.
The meeting will be held on Thursday, July 13, 2023, from 10 a.m. until 3 p.m., and Friday, July 14, 2023, from 10 a.m. until adjourned.
The hybrid meeting will be held in person and by videoconference originating at Constitution Center, 400 7th Street SW, Washington, DC 20506.
Elizabeth Voyatzis, Committee Management Officer, 400 7th Street SW, 4th Floor, Washington, DC 20506; (202) 606-8322;
The National Council on the Humanities is meeting pursuant to the National Foundation on the Arts and Humanities Act of 1965 (20 U.S.C. 951-960, as amended).
The following Committees of the National Council on the Humanities will convene on July 13, 2023, from 10 a.m. until 12:30 p.m., to discuss specific grant applications and programs before the Council:
The National Council will convene in executive session on July 13, 2023, from 1:30 p.m. until 3 p.m.
The plenary session of the National Council on the Humanities will convene on July 14, 2023, at 10 a.m. The agenda for the plenary session will be as follows:
This meeting of the National Council on the Humanities will be closed to the public pursuant to sections 552b(c)(4), 552b(c)(6), and 552b(c)(9)(B) of Title 5 U.S.C., as amended, because it will include review of personal and/or proprietary financial and commercial information given in confidence to the agency by grant applicants, and discussion of certain information, the premature disclosure of which could significantly frustrate implementation of proposed agency action. I have made this determination pursuant to the authority granted me by the Chair's Delegation of Authority to Close Advisory Committee Meetings dated April 15, 2016.
National Science Foundation.
Submission for OMB review; comment request.
The National Science Foundation (NSF) has submitted the following information collection requirement to OMB for review and clearance under the Paperwork Reduction Act of 1995. This is the second notice for public comment; the first was published in the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314, or send email to
Copies of the submission may be obtained by calling 703-292-7556.
NSF may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
By qualitative feedback we mean information that provides useful insights on perceptions and opinions, but not statistical surveys that yield quantitative results that can be generalized to the population of study. This feedback will provide insights into customer or stakeholder perceptions, experiences, and expectations; provide an early warning of issues with service; or focus attention on areas where communication, training, or changes in operations might improve delivery of products or services. This collection will allow for ongoing, collaborative and actionable communications between the Agency and its customers and stakeholders. It will also allow feedback to contribute directly to the improvement of program management.
The solicitation of feedback will target areas such as: Timeliness, appropriateness, accuracy of information, courtesy, efficiency of service delivery, and resolution of issues with service delivery. Responses will be assessed to plan and inform
NSF will only submit a collection for approval under this generic clearance if it meets the following conditions:
○ The collection is voluntary;
○ The collection is low-burden for respondents (based on considerations of total burden hours, total number of respondents, or burden-hours per respondent) and is low-cost for both the respondents and the Federal Government;
○ The collection is non-controversial and does not raise issues of concern to other Federal agencies;
○ The collection is targeted to the solicitation of opinions from respondents who have experience with the program or may have experience with the program in the near future;
○ Personally identifiable information (PII) is collected only to the extent necessary and is not retained;
○ Information gathered is intended to be used only internally for general service improvement and program management purposes and is not intended for release outside of NSF (if released, NSF must indicate the qualitative nature of the information);
○ Information gathered will not be used for the purpose of substantially informing influential policy decisions; and
○ Information gathered will yield qualitative information; the collection will not be designed or expected to yield statistically reliable results or used as though the results are generalizable to the population of study.
Feedback collected under this generic clearance provides useful information, but it does not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: The target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed sample size, the expected response rate, methods for assessing potential nonresponse bias, the protocols for data collection, and any testing procedures that were or will be undertaken prior to fielding this study. Depending on the degree of influence the results are likely to have, such collections may still be eligible for submission for other generic mechanisms that are designed to yield quantitative results.
As a general matter, this information collection will not result in any new system of records containing privacy information and will not ask questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private.
Below we provide the National Science Foundation's projected average estimates for the next three years:
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the Market Dominant or the Competitive product list, or the modification of an existing product currently appearing on the Market Dominant or the Competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern Market Dominant product(s), applicable statutory and regulatory
1.
This Notice will be published in the
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form 20-F (17 CFR 249.220f) is used to register securities of foreign private issuers pursuant to Section 12 of the Securities Exchange Act of 1934 (“Exchange Act”) (15 U.S.C. 78l) or as annual and transitional reports pursuant to Sections 13 and 15(d) of the Exchange Act (15 U.S.C. 78m(a) and 78o(d)). The information required in the Form 20-F is used by investors in making investment decisions with respect to the securities of such foreign private issuers. We estimate that Form 20-F takes approximately 2,629.92 hours per response and is filed by approximately 729 respondents. We estimate that 25% of the 2,629.92 hours per response (657.48 hours) is prepared by the issuer for a total reporting burden of 479,303 (657.48 hours per response × 729 responses). Written comments are invited on: (a) whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden imposed by the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication by September 5, 2023.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
Please direct your written comment to David Bottom, Director/Chief Information Officer, Securities and Exchange Commission, c/o John Pezzullo, 100 F Street NE, Washington, DC 20549 or send an email to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form 10-K (17 CFR 249.310) is filed by issuers of securities to satisfy their annual reporting obligations under to Section 13 or 15(d) of the Exchange Act (“Exchange Act”) (15 U.S.C. 78m or 78o(d)). The information provided by Form 10-K is intended to ensure the adequacy of information available to investors and securities markets about an issuer. Form 10-K takes approximately 2,249.3666 hours per response to prepare and is filed by approximately 8,292 respondents. We estimate that 75% of the approximately hours per response (1,687.02495 hours) is prepared by the company for an annual reporting burden of 13,988,811 hours (1,687.02495 hours per response × 8,292 responses).
Written comments are invited on: (a) whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden imposed by the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication by September 5, 2023.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
Please direct your written comment to David Bottom, Director/Chief Information Officer, Securities and Exchange Commission, c/o John Pezzullo, 100 F Street NE, Washington, DC 20549 or send an email to:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe EDGX Exchange, Inc. (the “Exchange” or “EDGX”) proposes to amend its Fee Schedule. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its Fee Schedule applicable to its equities trading platform (“EDGX Equities”) as follows: (1) by introducing a new Add Volume Tier 6; (2) by eliminating Growth Tier 4; (3) by modifying the criteria of Remove Volume Tiers 1 and 2 and introducing Remove Volume Tier 3; and (4) modifying the rates associated with certain fee codes. The Exchange proposes to implement these changes effective June 1, 2023.
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 16 registered equities exchanges, as well as a number of alternative trading systems and other off-exchange venues that do not have similar self-regulatory responsibilities under the Securities Exchange Act of 1934 (the “Act”), to which market participants may direct their order flow. Based on publicly available information,
Under footnote 1 of the Fee Schedule, the Exchange currently offers various Add/Remove Volume Tiers. In particular, the Exchange offers five Add Volume Tiers that each provide an enhanced rebate for Members' qualifying orders yielding fee codes B,
• Add Volume Tier 6 provides a rebate of $0.0034 per share for securities priced above $1.00 to qualifying orders (
The Exchange believes that by introducing proposed Add Volume Tier 6, Members are incentivized to add volume on the Exchange, thereby
In addition to the Add/Remove Volume Tiers offered under footnote 1, the Exchange also offers two Growth Tiers that each provide an enhanced rebate for Members' qualifying orders yielding fee codes B, V, Y, 3, and 4, where a Member reaches certain add volume-based criteria, including “growing” its volume over a certain baseline month. The Exchange now proposes to discontinue Growth Tier 4, as the Exchange no longer wishes to, nor is required to, maintain such tier. More specifically, the proposed change removes this tier as the Exchange would rather redirect future resources and funding into other programs and tiers intended to incentivize increased order flow.
In addition to the Add/Remove Volume Tiers and Growth Tiers offered under footnote 1, the Exchange also offers two Remove Volume Tiers that each assess a reduced fee for Members' qualifying orders yielding fee codes BB,
• Remove Volume Tier 1 assesses a reduced fee of $0.00275 for securities priced at or above $1.00 to qualifying orders (
• Remove Volume Tier 2 assesses a reduced fee of $0.00275 for securities priced at or above $1.00 to qualifying orders (
Now, the Exchange proposes to revise the criteria of Remove Volume Tiers 1 and 2. The proposed criteria for Remove Volume Tiers 1 and 2 is as follows:
• Remove Volume Tier 1 assesses a reduced fee of $0.00285 for securities priced at or above $1.00 to qualifying orders (
• Remove Volume Tier 2 assesses a reduced fee of $0.00275 for securities priced at or above $1.00 to qualifying orders (
The proposed change to Remove Volume Tier 1 will provide a slightly lower reduced fee in exchange for less difficult criteria that continues to encourage Members to strive to meet the criteria by removing liquidity on the Exchange. Similarly, the proposed change to Remove Volume Tier 2 will assess the current reduced fee while lessening the difficulty of meeting the criteria in Remove Volume Tier 2.
Next, the Exchange proposes to introduce Remove Volume Tier 3. The proposed criteria for Remove Volume Tier 3 is as follows:
• Remove Volume Tier 3 assesses a reduced fee of $0.00275 for securities priced at or above $1.00, or a reduced fee of $0.28% of total dollar value for securities priced under $1.00, to qualifying orders (
The addition of proposed Remove Volume Tier 3 is designed to provide Members an alternative opportunity to earn a reduced fee where Members achieve certain add or remove volume-based criteria. The Exchange believes assessing an identical fee as Remove Volume Tier 2 albeit using slightly more difficult criteria will encourage Members to strive to meet the criteria by removing liquidity on the Exchange. The proposed changes to the Remove Volume Tiers are designed to incentivize Members to provide additional volume to the Exchange. An increase in remove liquidity on the Exchange signals an overall increase in activity from other market participants, contributes to a deeper, more liquid market, and provides additional execution opportunities for active market participants, which benefits the entire market system.
The Exchange currently offers various fee codes for orders routed away from the Exchange.
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
As described above, the Exchange 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. The Exchange believes that its proposal to: (1) introduce new Add Volume Tier 6; (2) discontinue Growth Tier 4; and (3) modify Remove Volume Tiers 1 and 2 and introduce Remove Volume Tier 3 reflects a competitive pricing structure designed to incentivize market participants to direct their order flow to the Exchange, which the Exchange believes would enhance market quality to the benefit of all Members. Additionally, the Exchange notes that relative volume-based incentives and discounts have been widely adopted by exchanges,
In particular, the Exchange believes its proposal to its Add/Remove Volume Tiers are reasonable because the proposed and revised tiers will be available to all Members and provide all Members with an additional opportunity to receive an enhanced rebate or a reduced fee. The Exchange further believes the proposed modifications to its Add/Remove Volume Tiers will provide a reasonable means to encourage liquidity adding displayed orders and liquidity adding non-displayed orders, respectively, in Members' order flow to the Exchange and to incentivize Members to continue to provide liquidity adding volume to the Exchange by offering them an additional opportunity to receive an enhanced rebate or reduced fee on qualifying orders. An overall increase in activity would deepen the Exchange's liquidity pool, offers additional cost savings, support the quality of price discovery, promote market transparency and improve market quality, for all investors.
The Exchange believes that its proposal to eliminate Growth Tier 4 is reasonable because the Exchange is not required to maintain this tier or provide Members an opportunity to receive enhanced rebates. The Exchange believes the proposal to eliminate this tier is also equitable and not unfairly discriminatory because it applies to all Members (
The Exchange believes that the proposed changes to its Add/Remove Volume Tiers are reasonable as they do not represent a significant departure from the criteria currently offered in the Fee Schedule. Further, the Exchange believes its proposed changes to the routing fee codes are reasonable as these changes do not represent a significant departure from the Exchange's general pricing structure. Specifically, the proposed changes to fee codes RZ, I, BY, AA, AY, RR, and RY are intended to match the base add or remove rates on the Exchange's affiliates.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Rather, as discussed above, the Exchange believes that the proposed changes would
The Exchange believes the proposed rule changes do not impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. Particularly, the proposed changes to the Exchange's Add/Remove Volume Tiers will apply to all Members equally in that all Members are eligible for each of the Tiers, have a reasonable opportunity to meet the Tiers' criteria and will receive the enhanced rebate on their qualifying orders if such criteria is met. In addition, the Exchange proposal to eliminate Growth Tier 4 will not impose any burden on intramarket competition because it applies to all Members uniformly, as in, the tier will no longer be available to any Member. The Exchange does not believe the proposed changes burden competition, but rather, enhances competition as it is intended to increase the competitiveness of EDGX by amending an existing pricing incentive and adopting pricing incentives in order to attract order flow and incentivize participants to increase their participation on the Exchange, providing for additional execution opportunities for market participants and improved price transparency. Greater overall order flow, trading opportunities, and pricing transparency benefits all market participants on the Exchange by enhancing market quality and continuing to encourage Members to send orders, thereby contributing towards a robust and well-balanced market ecosystem.
The Exchange does not believe the proposal to revise the applicable fee or rebate associated with the Exchange's routing fee codes does not impose a burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. Particularly, the fees and rebates associated with routing orders away from the Exchange similarly apply to all Members on an equal and non-discriminatory basis and Members can choose to use (or not use) the Exchange's routing functionality as part of their decision to submit order flow to the Exchange.
Next, the Exchange believes the proposed rule changes does not impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. As previously discussed, the Exchange operates in a highly competitive market. Members have numerous alternative venues that they may participate on and direct their order flow, including other equities exchanges, off-exchange venues, and alternative trading systems. Additionally, the Exchange represents a small percentage of the overall market. Based on publicly available information, no single equities exchange has more than 16% of the market share.
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission” or “SEC”).
Notice.
Notice of application for an order under sections 17(d) and 57(i) of the Investment Company Act of 1940 (the “Act”) and rule 17d-1 under the Act to permit certain joint transactions otherwise prohibited by sections 17(d) and 57(a)(4) of the Act and rule 17d-1 under the Act.
Applicants request an order to permit certain business development companies (“BDCs”) and closed-end management investment companies to co-invest in portfolio companies with each other and with certain affiliated investment entities.
MBC Total Private Markets Access Fund, Seneca Management, LLC, Arrowhead Capital, L.P., Cheyenne Capital Fund, LP, and MBC Private Equity Fund II LP.
The application was filed on January 13, 2023 and amended on April 24, 2023.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing on any application by emailing the SEC's Secretary at
The Commission:
Jill Ehrlich, Senior Counsel, or Lisa Reid Ragen, Branch Chief, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
For Applicants' representations, legal analysis, and conditions, please refer to Applicants' first amended and restated application, dated April 24, 2023, which may be obtained via the Commission's website by searching for the file number at the top of this document, or for an Applicant using the Company name search field, on the SEC's EDGAR system. The SEC's EDGAR system may be searched at,
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is filing a proposal to amend the fee schedule (the “Fee Schedule”) applicable to MIAX Pearl Equities, an equities trading facility, to amend certain connectivity and port fees.
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
The Exchange proposes to amend the Fee Schedule to amend fees for: (1) the 1 gigabit (“Gb”) and 10Gb ultra-low latency (“ULL”) fiber connections for Equity Members
Much of the cost relates to monitoring and analysis of data and performance of the network via the subscriber's connection with nanosecond granularity, and continuous improvements in network performance with the goal of improving the subscriber's experience. The costs associated with maintaining and enhancing a state-of-the-art network is a significant expense for the Exchange, and thus the Exchange believes that it is reasonable and appropriate to help offset those increased costs by amending fees for connectivity and port services. Subscribers expect the Exchange to provide this level of support so they continue to receive the performance they expect. This differentiates the Exchange from its competitors.
The Exchange now proposes to amend the Fee Schedule to amend the fees for 1Gb connectivity, 10Gb ULL connectivity and FIX and MEO Ports in order to recoup ongoing costs and increased expenses set forth below in the Exchange's cost analysis. The Exchange proposes to implement the changes to the Fee Schedule pursuant to this proposal immediately. The Exchange initially filed the proposal on December 30, 2022 (SR-PEARL-2022-61) (the “Initial Proposal”).
The Exchange previously included a cost analysis in the Initial Proposal, Second, and Third Proposals. As described more fully below, the Exchange provides an updated cost analysis that includes, among other things, additional descriptions of how the Exchange allocated costs among it and its affiliated exchanges (separately among MIAX Pearl Options and MIAX Pearl Equities, MIAX,
Starting in 2017, following the United States Court of Appeals for the District of Columbia's
While the above appeal to the D.C. Circuit was pending, on March 29, 2019, the Commission issued an order disapproving a proposed fee change by BOX Exchange LLC (“BOX”) to establish connectivity fees (the “BOX Order”), which significantly increased the level of information needed for the Commission to believe that an exchange's filing satisfied its obligations under the Act with respect to changing a fee.
Also while the above appeal was pending, on May 21, 2019, the Commission Staff issued guidance “to assist the national securities exchanges and FINRA . . . in preparing Fee Filings that meet their burden to demonstrate that proposed fees are consistent with the requirements of the Securities Exchange Act.”
Following the BOX Order and Staff Guidance, on August 6, 2020, the D.C. Circuit vacated the Commission's SIFMA Decision in
As a result of the Commission's loss of the
While the Exchange appreciates that the Staff Guidance articulates an important policy goal of improving disclosures and requiring exchanges to justify that their market data and access fee proposals are fair and reasonable, the practical effect of the Revised Review Process, Staff Guidance, and the Commission's related practice of continuous suspension of new fee filings, is anti-competitive, discriminatory, and has put in place an un-level playing field, which has negatively impacted smaller, nascent, non-legacy exchanges (“non-legacy exchanges”), while favoring larger, incumbent, entrenched, legacy exchanges (“legacy exchanges”).
The net result is that the non-legacy exchanges are effectively now blocked by the Commission Staff from adopting or increasing fees to amounts comparable to the legacy exchanges (which were not subject to the Revised Review Process and Staff Guidance), despite providing enhanced disclosures and rationale to support their proposed fee changes that far exceed any such support provided by legacy exchanges. Simply put, legacy exchanges were able to increase their non-transaction fees during an extended period in which the Commission applied a “market-based” test that only relied upon the assumed presence of significant competitive forces, while exchanges today are subject to a cost-based test requiring extensive cost and revenue disclosures, a process that is complex, inconsistently applied, and rarely results in a successful outcome,
Commission Staff now require exchange filings, including from non-legacy exchanges such as the Exchange, to provide detailed cost-based analysis in place of competition-based arguments to support such changes. However, even with the added detailed cost and expense disclosures, the Commission Staff continues to either suspend such filings and institute disapproval proceedings, or put the exchanges in the unenviable position of having to repeatedly withdraw and re-file with additional detail in order to continue to charge those fees.
The Commission Staff's change in position impedes the ability of non-legacy exchanges to raise revenue to invest in their systems to compete with the legacy exchanges who already enjoy disproportionate non-transaction fee based revenue. For example, the Cboe Exchange, Inc. (“Cboe”) reported “access and capacity fee” revenue of $70,893,000 for 2020
The much higher non-transaction fees charged by the legacy exchanges provides them with two significant competitive advantages. First, legacy exchanges are able to use their additional non-transaction revenue for investments in infrastructure, vast marketing and advertising on major media outlets,
While the Commission has clearly noted that the Staff Guidance is merely guidance and “is not a rule, regulation or statement of the . . . Commission . . . the Commission has neither approved nor disapproved its content . . .”,
Because of the un-level playing field created by the Revised Review Process and Staff Guidance, the Exchange believes that the Commission Staff, at this point, should either (a) provide sufficient clarity on how its cost-based standard can be met, including a clear and exhaustive articulation of required data and its views on acceptable margins,
In light of the above, disapproval of this would not meet the fairness standard under the Act, would be discriminatory and place a substantial burden on competition. The Exchange would be uniquely disadvantaged by not being able to increase its access fees to comparable levels (or lower levels than current market rates) to those of other exchanges for connectivity. If the Commission Staff were to disapprove this proposal, that action, and not market forces, would substantially affect whether the Exchange can be successful in its competition with other exchanges. Disapproval of this filing could also be viewed as an arbitrary and capricious decision should the Commission Staff continue to ignore its past treatment of non-transaction fee filings before implementation of the Revised Review Process and Staff Guidance and refuse to allow such filings to be approved despite significantly enhanced arguments and cost disclosures.
Sections 2(a) and (b) of the Fee Schedule describe network connectivity fees for the 1Gb ULL and 10Gb ULL fiber connections, which are charged to both Equity Members and non-Members for connectivity to the Exchange's primary and secondary facilities. The Exchange offers its Equity Members the ability to connect to the Exchange in order to transmit orders to and receive information from the Exchange. Equity Members can also choose to connect to the Exchange indirectly through physical connectivity maintained by a third-party extranet. Extranet physical connections may provide access to one or multiple Equity Members on a single connection. The number of physical connections assigned to each User
In order to partially cover the continuous increase in aggregate costs of providing physical connectivity to Equity Members and non-Equity Members, as described below, the Exchange proposes to amend the monthly connectivity fees as follows: (a) increase the 1Gb ULL connection from $1,000 to $2,500; and (b) increase the 10Gb ULL connection from $3,500 to $8,000.
Similar to other exchanges, the Exchange offers its Equity Members application sessions, also known as ports, for order entry and receipt of trade execution reports and order messages. Equity Members can also choose to connect to the Exchange indirectly through a session maintained by a third-party service bureau. Service bureau sessions may provide access to one or multiple Equity Members on a single session. The number of sessions assigned to each User as of April 18, 2023, ranges from one to more than 100, depending on the scope and scale of the Equity Member's trading activity on the Exchange (either through a direct connection or through a service bureau) as determined by the Equity Member. For example, by using multiple sessions, Equity Members can segregate order flow from different internal desks, business lines, or customers. The Exchange does not impose any minimum or maximum requirements for how many application sessions an Equity Member or service bureau can maintain, and does not propose to impose any minimum or maximum session requirements for its Equity Members or their service bureaus.
Section 2)d), Port Fees, of the Fee Schedule describes fees for access and services used by Equity Members and non-Members. The Exchange provides the following types of ports: (i) FIX Ports, which allow Equity Members to send orders and other messages using the FIX protocol; and (ii) MEO Ports, which allow Equity Members order entry capabilities to all Exchange matching engines.
The Exchange operates a primary and secondary data center as well as a disaster recovery center. Each Port provides access to all Exchange data centers for a single fee. The Exchange currently provides the first twenty-five (25) FIX and MEO Ports free of charge and absorbed all associated costs since the launch of MIAX Pearl Equities. The Exchange charges the following separate monthly fees for FIX and MEO Ports: $450 for ports 26-50, $400 for ports 51-75, $350 for ports 76-100, and $300 for ports 101 and higher. The Exchange now proposes to provide the first five (5) FIX or MEO Ports free of charge, then charge a flat rate of $450 per port for port six (6) and above.
The proposed fee changes are immediately effective.
The Exchange believes that the proposed fees are consistent with Section 6(b) of the Act
The Exchange believes that the information provided to justify the proposed fees meets or exceeds the amount of detail required in respect of proposed fee changes under the Revised Review Process and as set forth in recent Staff Guidance. Based on both the BOX Order
The Exchange believes that exchanges, in setting fees of all types, should meet high standards of transparency to demonstrate why each new fee or fee amendment meets the requirements of the Act that fees be reasonable, equitably allocated, not unfairly discriminatory, and not create an undue burden on competition among market participants. The Exchange believes this high standard is especially important when an exchange imposes various fees for market participants to access an exchange's marketplace.
In the Staff Guidance, the Commission Staff states that, “[a]s an initial step in assessing the reasonableness of a fee, staff considers whether the fee is constrained by significant competitive forces.”
The proposed fees are reasonable because they promote parity among exchange pricing for access, which promotes competition, including in the Exchanges' ability to competitively price transaction fees, invest in infrastructure, new products and other innovations, all while allowing the Exchange to begin to recover its costs to provide dedicated access via 1Gb and 10Gb ULL connectivity as well as FIX and MEO Ports. As discussed above, the Revised Review Process and Staff Guidance have created an uneven playing field between legacy and non-legacy exchanges by severely restricting non-legacy exchanges from being able to increase non-transaction relates fees to provide them with additional necessary revenue to better compete with legacy exchanges, which largely set fees prior to the Revised Review Process. The much higher non-transaction fees charged by the legacy exchanges provides them with two significant competitive advantages: (i) additional non-transaction revenue that may be used to fund areas other than the non-transaction service related to the fee, such as investments in infrastructure, advertising, new products and other innovations; and (ii) greater flexibility to lower their transaction fees by using the revenue from the higher non-transaction fees to subsidize transaction fee rates. The latter is more immediately impactful in competition for order flow and market share, given the variable nature of this cost on Equity Member firms. The absence of a reasonable path forward to increase non-transaction fees to comparable (or lower rates) limits the Exchange's flexibility to, among other things, make additional investments in infrastructure and advertising, diminishes the ability to remain competitive on transaction fees, and hinders the ability to compete for order flow and market share. Again, while one could debate whether the pricing of non-transaction fees are subject to the same market forces as transaction fees, there is little doubt that subjecting one exchange to a materially different standard than that applied to other exchanges for non-transaction fees leaves that exchange at a disadvantage in its ability to compete with its pricing of transaction fees.
The Exchange commenced operations in September 2020 and adopted its initial fee schedule, with 1Gb ULL connectivity set at $1,000, 10Gb ULL connectivity fees set at $3,500, and provided the first twenty-five (25) FIX and MEO Ports for free.
The Exchange has not amended any of its non-transaction fees since its launch in September 2022. The Exchange balanced business and competitive concerns with the need to financially compete with the larger incumbent exchanges that charge higher fees for similar connectivity and use that revenue to invest in their technology and other service offerings.
The proposed changes to the Fee Schedule are reasonable in several respects. As a threshold matter, the Exchange is subject to significant competitive forces, which constrains its pricing determinations for transaction fees as well as non-transaction fees. The fact that the market for order flow is competitive has long been recognized by the courts. In
The Commission and the courts have repeatedly expressed their preference for competition over regulatory intervention to determine prices, products, and services in the securities markets. In Regulation NMS, while adopting a series of steps to improve the current market model, the Commission highlighted the importance of market forces in determining prices and SRO revenues, and also recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
Congress directed the Commission to “rely on `competition, whenever possible, in meeting its regulatory responsibilities for overseeing the SROs and the national market system.' ”
The Exchange believes the competing exchanges' connectivity and port fees are useful examples of alternative approaches to providing and charging for access and demonstrating how such fees are competitively set and constrained. To that end, the Exchange believes the proposed fees are competitive and reasonable because the proposed fees are similar to or less than fees charged for similar connectivity and port access provided by other exchanges with comparable market shares. As such, the Exchange believes that denying its ability to institute fees that allow the Exchange to recoup its costs with a reasonable margin in a manner that is closer to parity with legacy exchanges, in effect, impedes its ability to compete, including in its pricing of transaction fees and ability to invest in competitive infrastructure and other offerings.
The following table shows how the Exchange's proposed fees remain similar to or less than fees charged for similar connectivity and port access provided by other exchanges with similar market share. Each of the connectivity or port rates in place at competing exchanges were filed with the Commission for immediate effectiveness and remain in place today.
There is no requirement, regulatory or otherwise, that any broker-dealer connect to and access any (or all of) the available equity exchanges. Market participants may choose to become a member of one or more equities exchanges based on the market participant's assessment of the business opportunity relative to the costs of the Exchange. With this, there is elasticity of demand for exchange membership. As an example, one Market Maker of MIAX Pearl Options terminated their membership effective January 1, 2023 as a direct result of the proposed connectivity and port fee changes by MIAX Pearl Options.
It is not a requirement for market participants to become members of all equities exchanges; in fact, certain market participants conduct an equities business as a member of only one market.
BOX recently noted in a proposal to amend their own trading permit fees
Not only is there not an actual regulatory requirement to connect to every equities exchange, the Exchange believes there is also no “de facto” or practical requirement as well, as further evidenced by the broker-dealer membership analysis of exchanges discussed above. Indeed, broker-dealers choose if and how to access a particular exchange and because it is a choice, the Exchange must set reasonable pricing, otherwise prospective members would not connect and existing members would disconnect from the Exchange. The decision to become a member of an exchange, is complex, and not solely based on the non-transactional costs assessed by an exchange. As noted herein, specific factors include, but are not limited to: (i) an exchange's available liquidity in equities securities; (ii) trading functionality offered on a particular market; (iii) product offerings; (iv) customer service on an exchange; and (v) transactional pricing. Becoming a member of the exchange does not “lock” a potential member into a market or diminish the overall competition for exchange services.
In lieu of becoming a member at each exchange, a market participant may join one exchange and elect to have their orders routed in the event that a better price is available on an away market. Nothing in the Order Protection Rule requires a firm to become an Equity Member at—or establish connectivity to—the Exchange.
With respect to the submission of orders, Equity Members may also choose not to purchase any connection from the Exchange, and instead rely on the port of a third party to submit an order. For example, a third-party broker-dealer Equity Member of the Exchange may be utilized by a retail investor to submit orders into an exchange. An institutional investor may utilize a broker-dealer, a service bureau,
Non-Member third-parties, such as service bureaus and extranets, resell the Exchange's connectivity. This indirect connectivity is another viable alternative for market participants to trade on the Exchange without connecting directly to the Exchange (and thus not pay the Exchange's connectivity fees), which alternative is already being used by non-Equity Members and further constrains the price that the Exchange is able to charge for connectivity and other access fees to its market. The Exchange notes that it could, but chooses not to, preclude market participants from reselling its connectivity. Unlike other exchanges, the Exchange also does not currently assess fees on third-party resellers on a per customer basis (
The Exchange is obligated to regulate its Equity Members and secure access to its environment. To properly regulate its Equity Members and secure the trading environment, the Exchange takes measures to ensure access is monitored and maintained with various controls. Connectivity and ports are methods utilized by the Exchange to grant Equity Members secure access to communicate with the Exchange and exercise trading rights. When a market participant elects to be an Equity Member, and is approved for membership by the Exchange, the Equity Member is granted trading rights to enter orders and/or quotes into Exchange through secure connections.
Again, there is no legal or regulatory requirement that a market participant become an Equity Member of the Exchange, or, if it is an Equity Member, to purchase connectivity beyond the one connection that is necessary to quote or submit orders on the Exchange. Equity Members may freely choose to rely on one or many connections, depending on their business model. This is again evidenced by the fact that one MIAX Pearl Options Market Maker terminated their MIAX Pearl Options membership effective January 1, 2023 as a direct result of the proposed connectivity and port fee changes by MIAX Pearl Options. If a market participant chooses to become an Equity Member, they may then choose to purchase connectivity beyond the one connection that is necessary to quote or submit orders on the Exchange. Members may freely choose to rely on one or many connections, depending on their business model.
In general, the Exchange believes that exchanges, in setting fees of all types, should meet very high standards of transparency to demonstrate why each new fee or fee increase meets the Exchange Act requirements that fees be reasonable, equitably allocated, not unfairly discriminatory, and not create an undue burden on competition among members and markets. In particular, the Exchange believes that each exchange should take extra care to be able to demonstrate that these fees are based on its costs and reasonable business needs.
In proposing to charge fees for connectivity and port services, the Exchange is especially diligent in assessing those fees in a transparent way against its own aggregate costs of providing the related service, and in carefully and transparently assessing the impact on Equity Members—both generally and in relation to other Equity Members,
As detailed below, the Exchange recently calculated its aggregate annual costs for providing physical 1Gb and 10Gb ULL connectivity to the Exchange at $18,331,650 combined ($17,726,799 for 10Gb ULL connectivity and $604,851 for 1Gb connectivity) (or approximately $1,527,637 per month for combined connectivity costs, rounded to the nearest dollar when dividing the combined annual cost by 12 months). The Exchange also recently calculated its aggregate annual costs for providing FIX and MEO Ports at $3,951,993 combined ($911,998 for FIX Ports and $3,039,995 for MEO Ports) (or approximately $329,333 per month for combined FIX and MEO Port costs, rounded to the nearest dollar when dividing the combined annual cost by 12 months). In order to cover a portion of the aggregate costs of providing connectivity to its Users (both Equity Members and non-Equity Members
In 2020, the Exchange completed a study of its aggregate costs to produce market data and connectivity (the “Cost Analysis”).
As an initial step, the Exchange determined the total cost for the Exchange and the affiliated markets cost driver as part of its 2023 budget review process. The 2023 budget review is a company-wide process that occurs over the course of many months, includes meetings among senior management, department heads, and the Finance Team. Each department head is required to send a “bottom up” budget to the Finance Team allocating costs at the profit and loss account and vendor levels for the Exchange and its affiliated markets based on a number of factors, including server counts, additional hardware and software utilization, current or anticipated functional or non-functional development projects, capacity needs, end-of-life or end-of-service intervals, number of members, market model (
The next step involves determining what portion of the cost allocated to the Exchange pursuant to the above methodology is to be allocated to each core service,
By allocating segmented costs to each core service, the Exchange was able to estimate by core service the potential margin it might earn based on different fee models. The Exchange notes that as a non-listing venue it has five primary sources of revenue that it can potentially use to fund its operations: transaction fees, fees for connectivity and port services, membership fees, regulatory fees, and market data fees. Accordingly, the Exchange must cover its expenses from these five primary sources of revenue. The Exchange also notes that as a general matter each of these sources of revenue is based on services that are interdependent. For instance, the Exchange's system for executing transactions is dependent on physical hardware and connectivity; only Equity Members and parties that they sponsor to participate directly on the Exchange may submit orders to the Exchange; many Equity Members (but not all) consume market data from the Exchange in order to trade on the Exchange; and the Exchange consumes market data from external sources in order to comply with regulatory obligations. Accordingly, given this interdependence, the allocation of costs to each service or revenue source required judgment of the Exchange and was weighted based on estimates of the Exchange that the Exchange believes are reasonable, as set forth below. While there is no standardized and generally accepted methodology for the allocation of an exchange's costs, the Exchange's methodology is the result of an extensive review and analysis and will be consistently applied going forward for any other potential fee proposals. In the absence of the Commission attempting to specify a methodology for the allocation of exchanges' interdependent costs, the Exchange is left with its best efforts attempt to conduct such an allocation in a thoughtful and reasonable manner.
Through the Exchange's extensive updated Cost Analysis, which was again recently further refined, the Exchange analyzed every expense item in the Exchange's general expense ledger to determine whether each such expense relates to the provision of connectivity and port services, and, if such expense did so relate, what portion (or percentage) of such expense actually supports the provision of connectivity and port services, and thus bears a relationship that is, “in nature and closeness,” directly related to network connectivity and port services. In turn, the Exchange allocated certain costs more to physical connectivity and others to ports, while certain costs were only allocated to such services at a very low percentage or not at all, using consistent allocation methodologies as described above. Based on this analysis, the Exchange estimates that the aggregate monthly cost to provide 1Gb and10Gb ULL connectivity, as well as FIX and MEO Ports, is $1,856,970, as further detailed below.
Lastly, the Exchange notes that, based on: (i) the total expense amounts contained in this filing (which are 2023 projected expenses), and (ii) the total expense amounts contained in the related MIAX Pearl Options filing (also 2023 projected expenses), MIAX PEARL, LLC's total costs have increased at a greater rate over the last three years than the total costs of MIAX PEARL, LLC's affiliated exchanges, MIAX and MIAX Emerald. This is also reflected in the total costs reported in MIAX PEARL, LLC's Form 1 filings over the last three years, when comparing MIAX PEARL, LLC to MIAX PEARL, LLC's affiliated exchanges, MIAX and MIAX Emerald. This is primarily because that MIAX PEARL, LLC operates two markets, one for options and one for equities, while MIAX and MIAX Emerald each operate only one market. This is also due to higher current expense for MIAX PEARL, LLC for 2022 and 2023, due to a hardware refresh (
The following charts detail the individual line-item costs considered by the Exchange to be related to offering physical dedicated 1Gb and 10Gb ULL connectivity via an unshared network as well as the percentage of the Exchange's overall costs that such costs represent
Below are additional details regarding each of the line-item costs considered by the Exchange to be related to offering physical 1Gb and 10Gb ULL connectivity. While some costs were attempted to be allocated as equally as possible among the Exchange and its affiliated markets, the Exchange notes that some of its cost allocation percentages for cost drivers differ when compared to the same cost drivers described by the Exchange's affiliated markets in their similar proposed fee changes for connectivity and ports. This is because MIAX Pearl Equities' cost allocation methodology utilizes the actual projected costs of MIAX Pearl Equities (which are specific to MIAX Pearl Equities, and are independent of the costs projected and utilized by MIAX Pearl Equities' affiliated markets) to determine its actual costs, which may vary across the Exchange and its affiliated markets based on factors that are unique to each marketplace. The Exchange provides additional explanation below (including the reason for the deviation) for the significant differences.
For personnel costs (Human Resources), the Exchange calculated an allocation of employee time for employees whose functions include providing and maintaining physical connectivity and performance thereof (primarily the Exchange's network infrastructure team, which spends most of their time performing functions necessary to provide physical connectivity) and for which the Exchange allocated weighted average percentages of 58% for 10Gb ULL connectivity and 2.0% for 1Gb connectivity of each employee's time from the above group assigned to the Exchange based on the above-described allocation methodology. The Exchange also allocated Human Resources costs to provide physical connectivity to a limited subset of personnel with ancillary functions related to establishing and maintaining such connectivity (such as information security, sales, membership, and finance personnel), for which the Exchange allocated cost on an employee-by-employee basis (
The estimates of Human Resources cost were therefore determined by consulting with such department leaders, determining which employees are involved in tasks related to providing physical connectivity, and confirming that the proposed allocations were reasonable based on an understanding of the percentage of their time such employees devote to tasks related to providing physical connectivity.
Lastly, the Exchange notes that the above allocation for 10Gb ULL connectivity is greater than its affiliate options exchanges as MIAX Pearl Equities allocated 46.1% of its Human Resources expense towards 10Gb ULL connectivity, while MIAX, MIAX Pearl Options and MIAX Emerald allocated 25%, 26.3% and 28%, respectively, to the same category of expense. This difference is due to meaningfully more current and anticipated business and technology initiatives dedicated to MIAX Pearl Equities than its affiliate options exchanges at the time of this filing. These initiatives include: enhancements to routing options, expanding the available order types, adding direct market data connectivity to competing exchanges, and adopting additional risk controls.
The Connectivity cost driver includes external fees paid to connect to other exchanges and third parties, cabling and switches required to operate the Exchange. The Connectivity cost driver is more narrowly focused on technology used to complete connections to the Exchange and to connect to external markets. The Exchange notes that its connectivity to external markets is required in order to receive market data to run the Exchange's matching engine and basic operations compliant with existing regulations, primarily Regulation NMS.
The Exchange relies on various connectivity providers for connectivity to the entire U.S. equities industry, and infrastructure services for critical components of the network that are necessary to provide and maintain its System Networks and access to its System Networks via 1Gb and 10Gb ULL connectivity. Specifically, the Exchange utilizes connectivity providers to connect to other national securities exchanges, the NASDAQ UTP and CTA/CQ Plans. The Exchange understands that these service providers provide services to most, if not all, of the other U.S. exchanges and other market participants. Connectivity provided by these service providers is critical to the Exchanges daily operations and performance of its System Networks to which market participants connect to via 10Gb ULL connectivity. Without these services providers, the Exchange would not be able to connect to other national securities exchanges, market data providers, or the NASDAQ UTP and CTA/CQ Plans and, therefore, would not be able to operate and support its System Networks. The Exchange does not employ a separate fee to cover its connectivity provider expense and recoups that expense, in part, by charging for 1Gb and 10Gb ULL connectivity.
The next cost driver consists of internet Services and external market data. Internet services includes third-party service providers that provide the internet, fiber and bandwidth connections between the Exchange's networks, primary and secondary data centers, and office locations in Princeton and Miami.
External market data includes fees paid to third parties, including other exchanges, to receive and consume market data from other markets. The Exchange included external market data fees to the provision of physical connectivity as such market data is necessary here to offer certain services related to such connectivity, such as certain risk checks that are performed prior to execution, and checking for other conditions (
The Exchange relies on content service providers for data feeds for the entire U.S. equities industry, as well as content for critical components of the network that are necessary to provide and maintain its System Networks and access to its System Networks via 10Gb ULL connectivity. Specifically, the Exchange utilizes content service providers to receive market data from Nasdaq UTP, CTA and CQ Plans, as well as from other exchanges and market data providers. The Exchange understands that these service providers provide services to most, if not all, of the other U.S. exchanges and other market participants. Market data provided these service providers and competing exchanges is critical to the Exchange's daily operations and performance of its System Networks to which market participants connect to via 1Gb ULL and 10Gb ULL connectivity. Without these services providers, the Exchange would not be able to receive market data and, therefore, would not be able to operate and support its System Networks. The Exchange does not employ a separate fee to cover its content service provider expense and recoups that expense, in part, by charging for 1Gb ULL and 10Gb ULL connectivity.
Lastly, the Exchange notes that the actual dollar amounts allocated as part of the second step of the 2023 budget process differ among the Exchange and its affiliated markets for the internet Services and External Market Data cost driver, even though, but for MIAX Emerald, the allocation percentages are generally consistent across markets (
Data Center costs includes an allocation of the costs the Exchange incurs to provide physical connectivity in the third-party data centers where it maintains its equipment (such as dedicated space, security services, cooling and power). The Exchange notes that it does not own the Primary Data Center or the Secondary Data Center, but instead, leases space in data centers operated by third parties. The Exchange has allocated a high percentage of the Data Center cost (62%) to physical 1Gb and 10Gb ULL connectivity because the third-party data centers and the Exchange's physical equipment contained therein is the most direct cost in providing physical access to the Exchange. In other words, for the Exchange to operate in a dedicated space with connectivity by market participants to a physical trading platform, the data centers are a very tangible cost, and in turn, if the Exchange did not maintain such a presence then physical connectivity would be of no value to market participants.
Lastly, MIAX Emerald, MIAX, MIAX Pearl Options and MIAX Pearl Equities allocated 61.9%, 60.60%, 60.60% and 60%, respectively, to the Data Center cost driver. However, MIAX Pearl Equities was allocated a larger dollar amount under the first step of the 2023 budget process. This resulted in MIAX Pearl Equities allocating a larger dollar amount to its Data Center cost driver than its affiliated options markets, despite nearly identical percentage allocations. The dollar amount of MIAX Pearl Equities' Data Center cost driver is higher than its affiliated options markets due to the factors set forth under the first step of the 2023 budget review process described above (unique technical architecture, market structure, and business requirements of each marketplace). As described herein, MIAX Pearl Equities connects directly to multiple individual equities exchanges for trading and market data. This, in turn, requires additional hardware and software requiring an increased data center footprint. MIAX Pearl Equities also maintains an additional gateway to support market participant's access demands and maintains 24 matching engines, double the number of matching engines on MIAX Emerald and MIAX Pearl Options.
Hardware and Software Licenses includes hardware and software licenses used to operate and monitor physical assets necessary to offer physical connectivity to the Exchange.
All physical assets, software, and hardware used to provide 1Gb ULL and 10Gb ULL connectivity, which also
Lastly, the Exchange notes that this allocation is greater than its affiliate options exchanges as MIAX Pearl Equities allocated 73.6% of its Depreciation expense towards 10Gb ULL connectivity, while MIAX, MIAX Pearl Options and MIAX Emerald allocated 61.6%, 58.2% and 63.8%, respectively, to the same category of expense. This is due to MIAX Pearl Equities being a newer market and having newer physical assets and software subject to depreciation than its affiliate options exchanges. The Exchange's affiliate options exchanges are older markets that have more software and equipment that have been fully depreciated when compared to the newer software and hardware currently being depreciated by MIAX Pearl Equities at higher rates.
Finally, a limited portion of general shared expenses was allocated to overall physical connectivity costs because without these general shared costs the Exchange would not be able to operate in the manner that it does and provide physical connectivity. The costs included in general shared expenses include general expenses of the Exchange, including office space and office expenses (
After determining the approximate allocated monthly cost related to 10Gb connectivity, the, total monthly cost for 10Gb ULL connectivity of $1,477,233 was divided by the number of physical 10Gb ULL connections the Exchange maintained at the time that proposed pricing was determined (90), to arrive at a cost of approximately $16,414 per month, per physical 10Gb ULL connection. The total monthly cost for 1Gb connectivity of $50,404 was divided by the number of physical 1Gb connections the Exchange maintained at the time that proposed pricing was determined (8), to arrive at a cost of approximately $6,301 per month, per physical 1Gb connection. Due to the nature of this particular cost, this allocation methodology results in an allocation among the Exchange and its affiliated markets based on set quantifiable criteria,
The following chart details the individual line-item costs considered by the Exchange to be related to offering FIX and MEO Ports as well as the percentage of the Exchange's overall costs such costs represent for such area (
Below are additional details regarding each of the line-item costs considered by the Exchange to be related to offering FIX and MEO Ports. While some costs were attempted to be allocated as equally as possible among the Exchange and its affiliated markets, the Exchange notes that some of its cost allocation percentages for certain cost drivers differ when compared to the same cost drivers for the Exchange's affiliated markets in their similar proposed fee changes for connectivity and ports. This is because the Exchange's cost allocation methodology utilizes the actual projected costs of the Exchange (which are specific to the Exchange, and are independent of the costs projected and utilized by the Exchange's affiliated markets) to determine its actual costs, which may vary across the Exchange and its affiliated markets based on factors that are unique to each marketplace. The Exchange provides additional explanation below (including the reason for the deviation) for the significant differences.
With respect to FIX and MEO Ports, the Exchange calculated Human Resources cost by taking an allocation of employee time for employees whose functions include providing FIX and MEO Ports and maintaining performance thereof (including a broader range of employees such as technical operations personnel, market operations personnel, and software engineering personnel) as well as a limited subset of personnel with ancillary functions related to maintaining such connectivity (such as sales, membership, and finance personnel). Just as described above for 10Gb ULL connectivity, the estimates of Human Resources cost were again determined by consulting with department leaders, determining which employees are involved in tasks related to providing FIX and MEO Ports and maintaining performance thereof, and confirming that the proposed allocations were reasonable based on an understanding of the percentage of their time such employees devote to tasks related to providing FIX and MEO Ports and maintaining performance thereof. The Exchange notes that senior level executives were allocated Human Resources costs to the extent they are involved in overseeing tasks specifically related to providing Full Service MEO Ports.
Lastly, the Exchange notes that the Human Resource allocation for MEO Ports is greater than its Human Resource allocation for FIX Ports as MIAX Pearl Equities allocated 5.2% of its Human Resource expense towards FIX Ports and 17.2% of its Human Resource expense towards MEO Ports. This is because the MEO interface is a customized binary interface that the Exchange developed in-house and maintains on its own. The FIX interface is the industry standard for simple order entry which requires less development, maintenance, and support than the MEO interface. The MEO interface is performance oriented and designed to meet the needs of more latency sensitive Equity Members. Due to the in-house development of the MEO interface, the Exchange was required to expend more internal personnel to support the MEO interface than the FIX interface. Because of the materially higher cost associated with maintaining and supporting MEO Ports versus FIX Ports, the Exchange allocates a materially higher percentage of Human Resource expense to MEO Ports versus FIX Ports.
The Connectivity cost driver includes external fees paid to connect to other exchanges, cabling and switches, as described above.
The next cost driver consists of internet services and external market data. Internet services includes third-party service providers that provide the internet, fiber and bandwidth
Data Center costs includes an allocation of the costs the Exchange incurs to provide physical connectivity in the third-party data centers where it maintains its equipment as well as related costs (the Exchange does not own the Primary Data Center or the Secondary Data Center, but instead, leases space in data centers operated by third parties).
Hardware and Software Licenses includes hardware and software licenses used to monitor the health of the order entry services provided by the Exchange, as described above.
The vast majority of the software the Exchange uses to provide FIX and MEO Ports has been developed in-house and the cost of such development, which takes place over an extended period of time and includes not just development work, but also quality assurance and testing to ensure the software works as intended, is depreciated over time once the software is activated in the production environment. Hardware used to provide FIX and MEO Ports includes equipment used for testing and monitoring of order entry infrastructure and other physical equipment the Exchange purchased and is also depreciated over time.
All hardware and software, which also includes assets used for testing and monitoring of order entry infrastructure, were valued at cost, depreciated or leased over periods ranging from three to five years. Thus, the depreciation cost primarily relates to servers necessary to operate the Exchange, some of which is owned by the Exchange and some of which is leased by the Exchange in order to allow efficient periodic technology refreshes. The Exchange allocated 8.6% of all depreciation costs to providing FIX and MEO Ports. The Exchange notes that this allocation differs from its affiliated markets due to a number of factors, such as the age of physical assets and software (
Lastly, the Exchange notes that the Depreciation allocation for MEO Ports is greater than the Depreciation allocation for FIX Ports as MIAX Pearl Equities allocated 2.00% of its Depreciation expense towards FIX Ports and 6.60% of its Depreciation expense towards MEO Ports. As discussed above, this is because the MEO interface is a customized binary interface that the Exchange developed in-house and maintains on its own. The FIX interface is the industry standard for simple order entry which requires less development, maintenance, and support than the MEO interface. The Exchange maintains more dedicated hardware per port for the MEO interface compared to the FIX interface; MEO Ports sit on their own core server, whereas for the FIX interface, three (3) to five (5) connections may go onto a single server. As a result, the MEO interface is supported by more dedicated in-house hardware and software than the FIX interface that is subject to depreciation. Thus, there is a greater amount of equipment supporting the MEO interface than the FIX interface, resulting in higher depreciation costs than the FIX interface.
Finally, a limited portion of general shared expenses was allocated to overall FIX and MEO Ports costs as without these general shared costs the Exchange would not be able to operate in the manner that it does and provide application sessions. The costs included in general shared expenses include general expenses of the Exchange, including office space and office expenses (
Lastly, the Exchange notes that the Allocated Shared Expense allocation for MEO Ports is greater than the same allocation for FIX Ports as MIAX Pearl Equities allocated 1.20% of its Allocated Shared Expense towards FIX Ports and 4.00% of its Allocated Shared Expense towards MEO Ports. As discussed above, this is because the MEO interface is a customized binary interface that the Exchange developed in-house and maintains on its own. The FIX interface is the industry standard for simple order entry which requires less development, maintenance, and support than the MEO interface. The MEO interface is performance oriented and designed to meet the needs of more latency sensitive Equity Members. This required more internal personnel and resources to support than the FIX interface. Because of the materially higher cost associated with maintaining and supporting MEO Ports versus FIX Ports, the Exchange allocates a materially higher percentage
The total monthly cost allocated to FIX Ports of $76,000 was divided by the number of chargeable FIX Ports the Exchange maintained at the time that proposed pricing was determined (142), to arrive at a cost of approximately $535 per month, per FIX Port (rounded to the nearest dollar when dividing the approximate monthly cost by the number of FIX Ports). The total monthly cost allocated to MEO Ports of $253,333 was divided by the number of chargeable MEO Ports the Exchange maintained at the time that proposed pricing was determined (336), to arrive at a cost of approximately $754 per month, per MEO Port (rounded to the nearest dollar when dividing the approximate monthly cost by the number of MEO Ports).
In conducting its Cost Analysis, the Exchange did not allocate any of its expenses in full to any core services (including physical connectivity or FIX and MEO Ports) and did not double- count any expenses. Instead, as described above, the Exchange allocated applicable cost drivers across its core services and used the same Cost Analysis to form the basis of this proposal and the filings the Exchange submitted proposing fees for proprietary data feeds offered by the Exchange. For instance, in calculating the Human Resources expenses to be allocated to physical connections based upon the above described methodology, the Exchange has a team of employees dedicated to network infrastructure and with respect to such employees the Exchange allocated network infrastructure personnel with a high percentage of the cost of such personnel (60%) to 1Gb and 10Gb ULL connectivity given their focus on functions necessary to provide physical connections. The salaries of those same personnel were allocated only 25% to FIX and MEO Ports and the remaining 15% was allocated to transactions and market data. The Exchange did not allocate any other Human Resources expense for providing physical connections to any other employee group, outside of a smaller allocation of 37% for 1Gb and 10Gb ULL connectivity of the cost associated with certain specified personnel who work closely with and support network infrastructure personnel. In contrast, the Exchange allocated much smaller percentages of costs (less than 21%) across a wider range of personnel groups in order to allocate Human Resources costs to providing FIX and MEO Ports. This is because a much wider range of personnel are involved in functions necessary to offer, monitor and maintain FIX and MEO Ports but the tasks necessary to do so are not a primary or full-time function.
In total, the Exchange allocated 47.6% of its personnel costs to providing physical connections and 22.4% of its personnel costs to providing FIX and MEO Ports, for a total allocation of 70% Human Resources expense to provide these specific connectivity services. In turn, the Exchange allocated the remaining 30% of its Human Resources expense to membership (less than 1%) and transactions and market data (9.5%). Thus, again, the Exchange's allocations of cost across core services were based on real costs of operating the Exchange and were not double-counted across the core services or their associated revenue streams.
As another example, the Exchange allocated depreciation expense to all core services, including physical connections and FIX and MEO Ports, but in different amounts. The Exchange believes it is reasonable to allocate the identified portion of such expense because such expense includes the actual cost of the computer equipment, such as dedicated servers, computers, laptops, monitors, information security appliances and storage, and network switching infrastructure equipment, including switches and taps that were purchased to operate and support the network. Without this equipment, the Exchange would not be able to operate the network and provide connectivity services to its Equity Members and non-Equity Members and their customers. However, the Exchange did not allocate all of the depreciation and amortization expense toward the cost of providing connectivity services, but instead allocated approximately 85% of the Exchange's overall depreciation and amortization expense to connectivity services (76.185% attributed to 1Gb and 10Gb ULL physical connections and 8.6% to FIX and MEO Ports). The Exchange allocated the remaining depreciation and amortization expense (approximately 15%) toward the cost of providing transaction services, membership services and market data.
The Exchange notes that its revenue estimates are based on projections across all potential revenue streams and will only be realized to the extent such revenue streams actually produce the revenue estimated. The Exchange does not yet know whether such expectations will be realized. For instance, in order to generate the revenue expected from connectivity, the Exchange will have to be successful in retaining existing clients that wish to maintain physical connectivity and/or FIX and MEO Ports or in obtaining new clients that will purchase such services. Similarly, the Exchange will have to be successful in retaining a positive net capture on transaction fees in order to realize the anticipated revenue from transaction pricing.
The Exchange notes that the Cost Analysis is based on the Exchange's 2023 fiscal year of operations and projections. It is possible, however, that actual costs may be higher or lower. To the extent the Exchange sees growth in use of connectivity services it will receive additional revenue to offset future cost increases.
However, if use of connectivity services is static or decreases, the Exchange might not realize the revenue that it anticipates or needs in order to cover applicable costs. Accordingly, the Exchange is committing to conduct a one-year review after implementation of these fees. The Exchange expects that it may propose to adjust fees at that time, to increase fees in the event that revenues fail to cover costs and a reasonable mark-up of such costs. Similarly, the Exchange may propose to decrease fees in the event that revenue materially exceeds our current projections. In addition, the Exchange will periodically conduct a review to inform its decision making on whether a fee change is appropriate (
The proposed fees will allow the Exchange to cover certain costs incurred
• The Exchange's Cost Analysis estimates the annual cost to provide 10Gb ULL connectivity services will equal $17,726,799. Based on current 10Gb ULL connectivity services usage, the Exchange would generate annual revenue of approximately $9,144,000. This represents a negative margin when compared to the cost of providing 10Gb ULL connectivity services, which will decrease over time.
• The Exchange's Cost Analysis estimates the annual cost to provide 1Gb connectivity services will equal $604,851. Based on current 1Gb connectivity services usage, the Exchange would generate annual revenue of approximately $312,000. This represents a negative margin when compared to the cost of providing 1Gb connectivity services, which will decrease over time.
• The Exchange's Cost Analysis estimates the annual cost to provide FIX Port services will equal $911,998. Based on current FIX Port services usage, the Exchange would generate annual revenue of approximately $388,800. This represents a negative margin when compared to the cost of providing FIX Port services, which will decrease over time.
• The Exchange's Cost Analysis estimates the annual cost to provide MEO Port services will equal $3,039,995. Based on current MEO Port services usage, the Exchange would generate annual revenue of approximately $1,296,000. This represents a negative margin when compared to the cost of providing MEO Port services, which will decrease over time.
Based on the above discussion, even if the Exchange earns the above revenue or incrementally more or less, the proposed fees are fair and reasonable because they will not result in excessive pricing that deviates from that of other exchanges or supra-competitive profit, when comparing the total expense of the Exchange associated with providing 1Gb and 10Gb ULL connectivity and FIX and MEO Port services versus the total projected revenue of the Exchange associated with those services. In fact, the Exchange will generate negative margins on those connectivity and port services even with the proposed fees.
The Exchange also notes that this the resultant margin differs from the profit margins set forth in similar fee filings by its affiliated markets. This is not atypical among exchanges and is due to a number of factors that differ between these four markets, including: different market models, market structures, and product offerings (equities, options, price-time, pro-rata, simple, and complex); different pricing models; different number of market participants and connectivity subscribers; different maintenance and operations costs, as described in the cost allocation methodology above; different technical architecture (
Further, the Exchange proposes to charge rates that are comparable to, or lower than, similar fees for similar products charged by competing exchanges. For example, for 10Gb ULL connectivity, the Exchange proposes a lower fee than the fee charged by BX for its comparable 10Gb Ultra fiber connection ($8,000 per month for the Exchange vs. $15,000 per month for BX).
MIAX Pearl Equities is one of the newer equities exchange and only commenced operations in September 2020. New entrants like MIAX Pearl Equities propose fees that may help these new entrants recoup their substantial investment in building out costly infrastructure. However, it is not uncommon for start-ups, like MIAX Pearl Equities, to incur losses while they seek to build their businesses.
MIAX Pearl Equities has operated at a cumulative net annual loss since it launched operations in 2020.
The Exchange notes that its revenue estimate is based on projections and will only be realized to the extent customer activity produces the revenue estimated. As a competitor in the hyper-competitive exchange environment, and an exchange focused on driving competition, the Exchange does not yet know whether such projections will be realized. For instance, in order to generate the revenue expected from 1Gb and 10Gb ULL connectivity as well as FIX and MEO Ports, the Exchange will have to be successful in retaining existing clients that wish to utilize 1Gb and 10Gb ULL connectivity as well as FIX and MEO Ports and/or obtaining new clients that will purchase such access. To the extent the Exchange has mispriced and experiences a net loss in connectivity clients or in transaction activity, the Exchange could experience a net reduction in revenue. While the Exchange is supportive of transparency around costs and potential margins (applied across all exchanges), as well as periodic review of revenues and applicable costs (as discussed below), the Exchange does not believe that these estimates should form the sole basis of whether or not a proposed fee is reasonable or can be adopted. Instead, the Exchange believes that the information should be used solely to confirm that an Exchange is not earning—or seeking to earn—supra-competitive profits. The Exchange believes the Cost Analysis and related projections in this filing demonstrate this fact.
The Exchange is part of a holding company that operates four exchange markets and, therefore, the Exchange and its affiliated markets must allocate shared costs across all of those markets accordingly, pursuant to the above-described allocation methodology. In contrast, the Investors Exchange LLC (“IEX”) and MEMX, which are currently each operating only one exchange, in their recent non-transaction fee filings can allocate the entire amount of that same cost to a single exchange. This can result in lower profit margins for the non-transaction fees proposed by IEX and MEMX because the single allocated cost does not experience the efficiencies and synergies that result from sharing costs across multiple platforms. The Exchange and its affiliated markets often share a single cost, which results in cost efficiencies that can cause a broader gap between the allocated cost amount and projected revenue, even though the fee levels being proposed are lower or competitive with competing markets (as described above). To the extent that the application of a cost-based standard results in Commission Staff making determinations as to the appropriateness of certain profit margins, the Exchange believes that Commission Staff should also consider whether the proposed fee level is comparable to, or competitive with, the same fee charged by competing exchanges and how different cost allocation methodologies (such as across multiple markets) may result in different profit margins for comparable fee levels. Further, if Commission Staff is making determinations as to appropriate profit margins in their approval of exchange fees, the Exchange believes that the Commission should be clear to all market participants as to what they have determined is an appropriate profit margin and should apply such determinations consistently and, in the case of certain legacy exchanges, retroactively, if such standards are to avoid having a discriminatory effect.
Further, as is reflected in the proposal, the Exchange continuously and aggressively works to control its costs as a matter of good business practice. A potential profit margin should not be evaluated solely on its size; that assessment should also consider cost management and whether the ultimate fee reflects the value of the services provided. For example, a profit margin on one exchange should not be deemed excessive where that exchange has been successful in controlling its costs, but not excessive on another exchange where that exchange is charging comparable fees but has a lower profit margin due to higher costs. Doing so could have the perverse effect of not incentivizing cost control where higher costs alone could be used to justify fees increases.
The Exchange believes that the proposed fees are reasonable, fair, equitable, and not unfairly discriminatory because they are designed to align fees with services provided and will apply equally to all subscribers.
The Exchange believes that the proposed fees are equitably allocated among users of the network connectivity and port alternatives, as the users of 10Gb ULL connections consume substantially more bandwidth and network resources than users of 1Gb ULL connection. Specifically, the Exchange notes that 10Gb ULL connection users account for more than 99% of message traffic over the network, driving other costs that are linked to capacity utilization, as described above, while the users of the 1Gb ULL connections account for less than 1% of message traffic over the network. In the Exchange's experience, users of the 1Gb connections do not have the same business needs for the high-performance network as 10Gb ULL users.
The Exchange's high-performance network and supporting infrastructure (including employee support), provides unparalleled system throughput with the network ability to support access to several distinct equities markets. To achieve a consistent, premium network performance, the Exchange must build out and maintain a network that has the capacity to handle the message rate requirements of its most heavy network consumers. These billions of messages per day consume the Exchange's resources and significantly contribute to the overall network connectivity expense for storage and network transport capabilities. The Exchange
To achieve a consistent, premium network performance, the Exchange must build out and maintain a network that has the capacity to handle the message rate requirements of its most heavy network consumers during anticipated peak market conditions. The need to support billions of messages per day consume the Exchange's resources and significantly contribute to the overall network connectivity expense for storage and network transport capabilities. The Exchange must also purchase additional storage capacity on an ongoing basis to ensure it has sufficient capacity to store these messages as part of it surveillance program and to satisfy its record keeping requirements under the Exchange Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange believes the proposed fees will not result in any burden on intra-market competition that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed fees will allow the Exchange to recoup some of its costs in providing 1Gb and 10Gb ULL connectivity as well as FIX and MEO Ports at below market rates to market participants since the Exchange launched operations. As described above, the Exchange has operated at a cumulative net annual loss since it launched operations in 2020
Further, the Exchange does not believe that the proposed fee increase for the 1Gb or 10Gb ULL connection change would place certain market participants at the Exchange at a relative disadvantage compared to other market participants or affect the ability of such market participants to compete. The proposed fees would apply uniformly to all market participants regardless of the number of connections they choose to purchase. The proposed fees do not favor certain categories of market participants in a manner that would impose an undue burden on competition.
The Exchange does not believe that the proposed rule change would place certain market participants at the Exchange at a relative disadvantage compared to other market participants or affect the ability of such market participants to compete. In particular, Exchange personnel has been informally discussing potential fees for connectivity services with a diverse group of market participants that are connected to the Exchange (including large and small firms, firms with large connectivity service footprints and small connectivity service footprints, as well as extranets and service bureaus) for several months leading up to that time. The Exchange does not believe the proposed fees for connectivity services would negatively impact the ability of Equity Members, non-Equity Members (extranets or service bureaus), third-parties that purchase the Exchange's connectivity and resell it, and customers of those resellers to compete with other market participants or that they are placed at a disadvantage.
The Exchange does anticipate, however, that some market participants may reduce or discontinue use of connectivity services provided directly by the Exchange in response to the proposed fees. In fact, as mentioned above, one MIAX Pearl Options Market Maker terminated their MIAX Pearl Options membership on January 1, 2023 as a direct result of the proposed fee changes for that market.
The Exchange also does not believe that the proposed rule change will result in any burden on inter-market competition that is not necessary or appropriate in furtherance of the purposes of the Act. As discussed above, market participants are not forced to connect to all exchanges. There is no reason to believe that our proposed price increase will harm another exchange's ability to compete. There are other markets of which market participants may connect to trade equities at higher rates than the Exchange's. There is also a range of alternative strategies, including routing to the exchange through another participant or market center or accessing the Exchange indirectly. Market participants are free to choose which exchange or reseller to use to satisfy their business needs. Accordingly, the Exchange does not believe its proposed fee changes impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
In conclusion, as discussed thoroughly above, the Exchange regrettably believes that the application of the Revised Review Process and Staff Guidance has adversely affected inter-market competition among legacy and non-legacy exchanges by impeding the ability of non-legacy exchanges to adopt or increase fees for their market data and access services (including connectivity and port products and services) that are on parity or commensurate with fee levels previously established by legacy exchanges. Since the adoption of the Revised Review Process and Staff Guidance, and even more so recently, it has become extraordinarily difficult to adopt or increase fees to generate revenue necessary to invest in systems, provide innovative trading products and solutions, and improve competitive standing to the benefit of non-legacy exchanges' market participants. Although the Staff Guidance served an important policy goal of improving disclosures and requiring exchanges to justify that their market data and access fee proposals are fair and reasonable, it has also negatively impacted non-legacy exchanges in particular in their efforts to adopt or increase fees that would enable them to more fairly compete with legacy exchanges, despite providing enhanced disclosures and rationale under both competitive and cost basis approaches provided for by the Revised Review Process and Staff Guidance to support their proposed fee changes
The Exchange received one comment letter on the Initial Proposal and one comment letter on the Second Proposal from the same commenter.
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.
The Small Business Administration publishes an interest rate called the optional “peg” rate (13 CFR 120.214) on a quarterly basis. This rate is a weighted average cost of money to the government for maturities similar to the average SBA direct loan. This rate may be used as a base rate for guaranteed fluctuating interest rate SBA loans. This rate will be 3.75 percent for the July-September quarter of FY 2023.
Pursuant to 13 CFR 120.921(b), the maximum legal interest rate for any third party lender's commercial loan which funds any portion of the cost of a 504 project (see 13 CFR 120.801) shall be 6% over the New York Prime rate or, if that exceeds the maximum interest rate permitted by the constitution or laws of a given State, the maximum interest rate will be the rate permitted by the constitution or laws of the given State.
Notice is hereby given of the following determinations: I hereby determine that certain objects being imported from abroad pursuant to agreements with their foreign owners or custodians for temporary display in the exhibition “Abraham Ángel: Between Wonder and Seduction” at the Dallas Museum of Art, Dallas, Texas, and at possible additional exhibitions or venues yet to be determined, are of cultural significance, and, further, that their temporary exhibition or display within the United States as aforementioned is in the national interest. I have ordered that Public Notice of these determinations be published in the
Reed Liriano, Program Coordinator, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The collection involves extracting flight data such as aircraft, routing speed, etc. from domestic and international flights.
Please send written comments:
Aldwin Humphrey by email at:
Almost 100 percent of flight plans are filed electronically. However, as a courtesy to the aviation public, flight plans may be submitted in paper form. Flight plans may be filed in the following ways:
• Air carrier and air taxi operations, and certain corporate aviation departments, have been granted authority to electronically file flight plans directly with the FAA. The majority of air carrier and air taxi flights are processed in this manner.
• Air carrier and air taxi operators may submit pre-stored flight plan information on scheduled flights to Air Route Traffic Control Centers (ARTCC) to be entered electronically at the appropriate times.
• Pilots may call 1-800-WX-BRIEF (992-7433) and file flight plans with a flight service station specialist who enters the information directly into a computer system that automatically transmits the information to the appropriate air traffic facility. Pilots calling certain flight service stations have the option of using a voice recorder to store the information that will later be entered by a specialist.
• Private and corporate pilots who fly the same aircraft and routes at regular times may prestore flight plans with flight service stations. The flight plans will then be entered automatically into the air traffic system at the appropriate time.
• Pilots who visit a flight service station in person may choose to file a flight plan by using a paper form. The data will then be entered into a computer and filed electronically. The pilot will often keep the paper copy for his/her record.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of information collection; request for comment.
Under the Paperwork Reduction Act of 1995 (PRA) and its implementing regulations, this notice announces that FRA is forwarding the Information Collection Request (ICR) abstracted below to the Office of Management and Budget (OMB) for review and comment. The ICR describes the information collection and its expected burden. On April 21, 2023, FRA published a notice providing a 60-day period for public comment on the ICR.
Interested persons are invited to submit comments on or before August 4, 2023.
Written comments and recommendations for the proposed ICR should be sent within 30 days of publication of this notice to
Ms. Arlette Mussington, Information Collection Clearance Officer, at email:
The PRA, 44 U.S.C. 3501-3520, and its implementing regulations, 5 CFR part 1320, require Federal agencies to issue two notices seeking public comment on information collection activities before OMB may approve paperwork packages.
FRA has received one comment related to the proposed collection of information. The Chief Economist of the Bureau of Economic Analysis (BEA) sent an electronic letter date May 30, 2023, expressing BEA's strong support for FRA's continued collection of on the Accident/Incident Reporting and Recordkeeping forms. The Chief Economist noted that the data collected on these forms are crucial to key components of BEA's economic analyses and requested that FRA keep BEA informed of any modifications to these forms. Before OMB decides whether to approve this proposed collection of information, it must provide 30-days' notice for public comment. Federal law requires OMB to approve or disapprove paperwork packages between 30 and 60 days after the 30-day notice is published. 44 U.S.C. 3507(b)-(c); 5 CFR 1320.12(d);
OMB believes the 30-day notice informs the regulated community to file relevant comments and affords the agency adequate time to digest public comments before it renders a decision. 60 FR 44983, Aug. 29, 1995. Therefore, respondents should submit their respective comments to OMB within 30 days of publication to best ensure having their full effect.
Comments are invited on the following ICR regarding: (1) Whether the information collection activities are necessary for FRA to properly execute its functions, including whether the information will have practical utility; (2) the accuracy of FRA's estimates of the burden of the information collection activities, including the validity of the methodology and assumptions used to determine the estimates; (3) ways for FRA to enhance the quality, utility, and clarity of the information being collected; and (4) ways to minimize the burden of information collection activities on the public, including the use of automated collection techniques or other forms of information technology.
The summary below describes the ICR that FRA will submit for OMB clearance as the PRA requires:
In response to the mandate in IIJA Section 22421,
FRA has made multiple adjustments to its estimated paperwork burden for the entire part 225 collection request, resulting in a reduction of 5,563 hours, from 35,846 hours in the current inventory, to 30,283 hours in the requested inventory. The primary reason for the reduction in the estimated paperwork burden is the expected decrease in the number of submissions. Specifically, under § 225.19(d), FRA expects submissions will decrease significantly from 11,636 hours to 7,040 hours due to a reduction in the number of injuries reported in the last two years. There is no change in the method of collection; this is a routine update for this 3-year ICR renewal period.
FRA informs all interested parties that it may not conduct or sponsor, and a respondent is not required to respond to, a collection of information that does not display a currently valid OMB control number.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of information collection; request for comment.
Under the Paperwork Reduction Act of 1995 (PRA) and its implementing regulations, FRA seeks approval of the Information Collection Request (ICR) abstracted below. Before submitting this ICR to the Office of Management and Budget (OMB) for approval, FRA is soliciting public comment on specific aspects of the activities identified in the ICR.
Interested persons are invited to submit comments on or before September 5, 2023.
Written comments and recommendations for the proposed ICR should be submitted on
Ms. Joanne Swafford, Information Collection Clearance Officer, at email:
The PRA, 44 U.S.C. 3501-3520, and its implementing regulations, 5 CFR part 1320, require Federal agencies to provide 60-days' notice to the public to allow comment on information collection activities before seeking OMB approval of the activities.
FRA believes that soliciting public comment may reduce the administrative and paperwork burdens associated with the collection of information that Federal statutes and regulations mandate. In summary, FRA reasons that comments received will advance three objectives: (1) reduce reporting burdens; (2) organize information collection requirements in a “user-friendly” format to improve the use of such information; and (3) accurately assess the resources expended to retrieve and produce information requested.
The summary below describes the ICR that FRA will submit for OMB clearance as the PRA requires:
In this 60-day notice, FRA made no adjustments to the previously approved burden hours.
FRA informs all interested parties that it may not conduct or sponsor, and a respondent is not required to respond to, a collection of information that does not display a currently valid OMB control number.
Federal Transit Administration (FTA), Department of Transportation (DOT).
Notice; Announcement of Project Selections.
The U.S. Department of Transportation's (DOT) Federal Transit Administration (FTA) announces the award of a total of $1,689,864,104, including $1,216,941,397 to projects under the Fiscal Year (FY) 2023 Low or No Emission Grant Program (Low-No) and $472,922,707 to projects under the Grants for Buses and Bus Facilities Program (Buses and Bus Facilities Program) and provides administrative guidance on project implementation.
Successful applicants should contact the appropriate FTA Regional Office for information regarding applying for the funds or program-specific information. A list of Regional Offices can be found at
Federal public transportation law (49 U.S.C. 5339(b)) authorizes FTA to make competitive grants for the Buses and Bus Facilities Program. Federal public transportation law (49 U.S.C. 5339(c)) authorizes FTA to make competitive grants for the Low-No Program.
Federal public transportation law (49 U.S.C. 5338(a)(2)(N)) authorized $383,544,933 in FY 2023 funds for the Buses and Bus Facilities Program. The Consolidated Appropriations Act, 2023, appropriated an additional $90,000,000 for the Buses and Bus Facilities Program in addition to the authorized amount noted above. After the oversight takedown of $4,099,509, the total funding available is $469,445,424 for the Buses and Bus Facilities Program. FTA is also making additional prior year(s) funding available for this round, bringing the total available funding to $473,075,256.
Federal public transportation law (49 U.S.C. 5338(a)(2)(N)) authorized $73,056,178 in FY 2023 funds for the Low or No Emission Grant Program; an additional $1,029,000,000 appropriated under the 2021 Bipartisan Infrastructure Law (enacted as the Infrastructure Investment and Jobs Act, Public Law 117-58) after accounting for the authorized takedown for administrative and oversight expenses and the Office of Inspector General (OIG). The Consolidated Appropriations Act, 2023 (Pub. L. 117-328), appropriated an additional $49,625,000 for the Low or No Emission Grant Program after accounting for the authorized oversight takedown in addition to the authorized amount noted above. Further, due to less funding being requested than funding available during the FY 2022 competition for low-emission projects, $69,668,939 of FY 2022 Low-No Program funds remained available for award, of which $69,192,987 is reserved for low-emission projects as required by statute. After the oversight takedown and transfer to the OIG, and the addition of prior year(s) funding, a grand total of $1,221,466,973 was made available for the Low-No program in FY 2023.
On January 27, 2023, FTA published a joint Notice of Funding Opportunity (NOFO) (88 FR 5400) announcing the availability of approximately $469 million in FY 2023 Buses and Bus Facilities Program funds and approximately $1.22 billion in Low-No funds. Consistent with the NOFO, which stated that FTA “may award additional funding that is made available to the programs prior to the announcement of project selections,” FTA is electing to add prior year(s) unallocated funds for Buses and Bus Facilities Program and Low-No to this funding opportunity. These funds will provide financial assistance to states and eligible public agencies to replace, rehabilitate, purchase, or lease buses, vans, and related equipment, and for capital projects to rehabilitate, purchase, construct, or lease bus-related facilities. For the Low-No Program, projects must be directly related to the low or no-emission vehicles within the fleet. In response to the NOFO, FTA received 475 eligible project proposals totaling approximately $8.7 billion in Federal
Based on the criteria in the NOFO, FTA is funding 83 projects, as shown in Table 1, for a total of $1,216,941,397 for the Low-No Program and 47 projects, as shown in Table 2, for a total of $472,922,707 for the Buses and Bus Facilities Program. A minimum of 15 percent of the amounts made available for the Buses and Bus Facilities Program are set aside for projects located in rural areas, which is reflected in FTA's selections. A statutory cap of 10 percent for any one applicant in the Buses and Bus Facilities Program is also reflected. A minimum of 25 percent of the amounts made available for the Low-No Program are set aside for projects related to the acquisition of low-emission buses or bus facilities other than zero-emission vehicles and related facilities, which is reflected as well. Recipients selected for competitive funding are required to work with their FTA Regional Office to submit a grant application in FTA's Transit Award Management System (TrAMS) for the projects identified in the attached tables to quickly obligate funds. Grant applications must include only eligible activities applied for in the original project application. Funds must be used consistent with the competitive proposal and for the eligible capital purposes described in the NOFO.
In cases where the allocation amount is less than the proposer's total requested amount, recipients are required to fund the scalable project option as described in the application. If the award amount does not correspond to the scalable option, the recipient should work with the Regional Office to reduce scope or scale the project such that a complete phase or project is accomplished. Recipients may also provide additional local funds to complete a proposed project. A discretionary project identification number has been assigned to each project for tracking purposes and must be used in the TrAMS application.
Selected projects are eligible to incur costs under pre-award authority no earlier than the date projects were publicly announced. Pre-award authority does not guarantee that project expenses incurred prior to the award of a grant will be eligible for reimbursement, as eligibility for reimbursement is contingent upon other requirements, such as planning and environmental requirements, having been met. For more about FTA's policy on pre-award authority, please see the current FTA Apportionments, Allocations, and Program Information at
For each project, a technical review panel assigned a rating of Highly Recommended, Recommended, or Not Recommended for each of the six criteria. The technical review panel then assigned an overall rating of Highly Recommended, Recommended, Not Recommended, or Ineligible to the project proposal.
Projects were assigned a final overall rating of Highly Recommended if they were rated Highly Recommended in at least four categories and did not receive a Not Recommended rating. Projects were assigned a final overall rating of Recommended if the projects had three or more Recommended ratings and no Not Recommended ratings. Projects were assigned a rating of Not Recommended if they received a Not Recommended rating in any criteria. A summary of the final overall ratings for all 475 eligible project proposals is shown in the Overall Project Ratings table below.
As outlined in the NOFO, FTA made the final selections based on the technical ratings as well as geographic diversity, diversity in the size of transit systems receiving funding, additional considerations/administration priorities including climate change, the creation of good-paying jobs, an application's zero-emission fleet transition plan supporting a full fleet transition, procurement methods to reduce customization, and the Justice40 initiative.
As further outlined in the NOFO, in some cases, due to funding limitations, proposals that were selected for funding received less than the amount originally requested.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
List of applications for special permits.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations, notice is hereby given that the Office of Hazardous Materials Safety has received the application described herein.
Comments must be received on or August 4, 2023.
Record Center, Pipeline and Hazardous Materials Safety Administration U.S. Department of Transportation, Washington, DC 20590.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Donald Burger, Chief, Office of Hazardous Materials Safety General Approvals and Permits Branch, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-13, 1200 New Jersey Avenue Southeast, Washington, DC 20590-0001, (202) 366-4535.
Each mode of transportation for which a particular special permit is requested is indicated by a number in the “Nature of Application” portion of the table below as follows: 1—Motor vehicle, 2—Rail freight, 3—Cargo vessel, 4—Cargo aircraft only, 5—Passenger-carrying aircraft.
Copies of the applications are available for inspection in the Records Center, East Building, PHH-13, 1200 New Jersey Avenue Southeast, Washington, DC.
This notice of receipt of applications for special permit is published in accordance with part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice of actions on special permit applications.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations, notice is hereby given that the Office of Hazardous Materials Safety has received the application described herein.
Comments must be received on or before August 4, 2023.
Record Center, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, Washington, DC 20590.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Donald Burger, Chief, Office of Hazardous Materials Safety General Approvals and Permits Branch, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-13, 1200 New Jersey Avenue Southeast, Washington, DC 20590-0001, (202) 366-4535.
Copies of the applications are available for inspection in the Records Center, East Building, PHH-13, 1200 New Jersey Avenue Southeast, Washington, DC.
This notice of receipt of applications for special permit is published in accordance with part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).
Issued in Washington, DC, on June 1, 2023.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
List of applications for modification of special permits.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations, notice is hereby given that the Office of Hazardous Materials Safety has received the application described herein.
Comments must be received on or before July 20, 2023.
Record Center, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, Washington, DC 20590.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Donald Burger, Chief, Office of Hazardous Materials Safety General Approvals and Permits Branch, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-13, 1200 New Jersey Avenue Southeast, Washington, DC 20590-0001, (202) 366-4535.
Each mode of transportation for which a particular special permit is requested is indicated by a number in the “Nature of Application” portion of the table below as follows: 1—Motor vehicle, 2—Rail freight, 3—Cargo vessel, 4—Cargo aircraft only, 5—Passenger-carrying aircraft.
Copies of the applications are available for inspection in the Records Center, East Building, PHH-13, 1200 New Jersey Avenue Southeast, Washington, DC or at
This notice of receipt of applications for special permit is published in
Great Lakes St. Lawrence Seaway Development Corporation, DOT.
Notice; correction.
The Great Lakes St. Lawrence Seaway Development Corporation (GLS) published a document in the
Kevin O'Malley, Strategic Advisor for Financial and Resource Management, Great Lakes St. Lawrence Seaway Development Corporation, 1200 New Jersey Avenue SE, Suite W62-300, Washington, DC 20590; 202-366-0091.
In the
1. In the second column, under the
• Wednesday, July 26, 2023, from 3:30 p.m.-5:30 p.m. CDT
○ Requests to attend the meeting must be received by July 21, 2023.
○ Requests for accommodations to a disability must be received by July 21, 2023.
○ If you wish to speak during the meeting, you must submit a written copy of your remarks to GLS by July 21, 2023.
○ Requests to submit written materials to be reviewed during the meeting must be received no later than July 21, 2023.
2. In the third column, correct the
“The Wednesday July 26, 2023, meeting will take place in-person in the Millennium Park Room at the Sheraton Grand Chicago Riverwalk hotel, Chicago, Illinois 60611. All other meetings will be held via conference call at the GLS's Headquarters, 1200 New Jersey Ave. SE, Suite W62-300, Washington, DC 20590.”
3. In the third column, under the
“Wednesday, July 26, 2023, from 3:30 p.m.-5:30 p.m. CDT”
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. ch. 10, that the Advisory Committee on Homeless Veterans will meet on September 19-20, 2023. The meeting sessions will be a hybrid, held in-person at the Department of Veterans Affairs 810 Vermont Avenue NW, Sonny Montgomery Conference Room 230, Washington, DC 20420; and virtually via Zoom conferencing platform. The meeting sessions will begin and end as follows:
The meetings are open to the public.
The purpose of the Committee is to provide the Secretary of Veterans Affairs with an ongoing assessment of the effectiveness of the policies, organizational structures, and services of VA in assisting Veterans at risk of and experiencing homelessness. The Committee shall assemble and review information related to the needs of homeless Veterans and provide advice on the most appropriate means of assisting this Veteran population.
On September 19-20, 2023, the agenda will include briefings from officials at VA and other Federal, state and local agencies regarding services for homeless Veterans on September 19, 2023 and a vote on recommendations to Secretary of Veterans Affairs on September 20, 2023.
Time will be allocated at the September 19, 2023 meeting for receiving oral presentations from the public. By September 14, 2023, interested parties that would like to provide oral presentations should provide written comments on issues affecting homeless Veterans to
Additionally, members of the public who wish to attend the September 19-20, 2023 meeting virtually, please notify Mr. Love at
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
Veterans Benefits Administration, Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before September 5, 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, VBA invites comments on: (1) whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
Veterans Benefits Administration, Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before September 5, 2023.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Maribel Aponte, Office of Enterprise and Integration, Data Governance Analytics (008), 810 Vermont Ave. NW, Washington, DC 20420, (202) 266-4688 or email
Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT).
Advance notice of proposed rulemaking (ANPRM).
PHMSA is publishing this ANPRM to solicit stakeholder feedback on initiatives PHMSA is considering that may modernize the Hazardous Materials Regulations and improve efficiencies while maintaining or improving a current high level of safety. To fully engage with stakeholders, this ANPRM solicits comments and input on questions related to 46 distinct topics under consideration. Any comments, data, and information received will be used to evaluate and potentially draft proposed amendments.
Comments must be received by October 3, 2023. However, PHMSA will consider late-filed comments to the extent possible.
You may submit comments identified by the docket number PHMSA-2019-0031 (HM-265A) by any of the following methods:
•
•
•
•
Eamonn Patrick, Standards and Rulemaking Division, Office of Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590, at 202-366-8553.
PHMSA, in consultation with its modal partners, is publishing this ANPRM to solicit stakeholder input on initiatives PHMSA is considering that may modernize its Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) in order to improve hazardous material transportation efficiency, improve transparency and stakeholder engagement, and better accommodate technological innovations—all while maintaining or improving public safety and environmental impacts.
PHMSA regularly reviews HMR requirements to ensure that the regulations continue to serve a useful safety purpose. In accordance with executive order (E.O.) 12866,
On October 2, 2017, the Office of the Secretary of Transportation, consistent with E.O.s 12866, 13771, 13777, and 13783,
PHMSA periodically revises the HMR based on changing economic, technological, and safety conditions. Moreover, PHMSA addresses requests to add, amend, or delete a regulation from diverse stakeholders through our petition process (see §§ 106.95-106.105). PHMSA also regularly reviews special permits (documents that permit activities not otherwise allowed under the HMR provided the applicant is able to demonstrate it will maintain an equivalent level of safety) and adopts the provisions of special permits with broad potential applicability and satisfactory safety records into the HMR for general use. Additionally, PHMSA participates in the development of international standards for the transportation of hazardous materials, including the International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO TI), the International Maritime Dangerous Goods Code (IMDG Code), and the UN Recommendations on the Transport of Dangerous Goods—Model Regulations. PHMSA updates the HMR biennially to reflect the most recent changes in these and other international regulations to maintain harmonization with international requirements and facilitate international commerce.
PHMSA has addressed many of the comments to the 2017 Regulatory Reform Notice regarding the subject of hazardous materials transportation regulation through completed and proposed rulemaking efforts, including:
• HM-219A,
• HM-219B,
• HM-219C,
• HM-233G,
• HM-215O,
• HM-265,
The Department has received additional regulatory modernization topics through petitions and internal review efforts. PHMSA believes these additional topics reflect changing technologies, transportation trends, and economic conditions and therefore deserve our consideration. However, PHMSA understands there is value in obtaining additional information on the potential safety and economic impacts for these topics to inform specific changes to the HMR in the future. Thus, the intent of this ANPRM is to raise awareness about these topics, gather more information, and further evaluate the safety and environmental benefits as well as the feasibility of proposing changes to the HMR. PHMSA will review and evaluate all comments received and late-filed comments to the extent practicable.
Federal Hazardous Materials Transportation law authorizes the Secretary to “prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce” (49 U.S.C. 5101
As new technologies are developed, understanding of the risks inherent in the transportation of hazardous materials may change. New technologies can potentially provide new opportunities to improve packaging, hazard communication, and incident minimization. PHMSA recognizes new technologies and techniques can potentially reduce costs and burdens to society but remains focused on our primary mission to protect people and the environment by advancing the safe transportation of hazardous materials, including energy products, that are essential to our daily lives. Any change to the existing safety system in the HMR—
Therefore, we are publishing this ANPRM to solicit comments on the safety, environmental, and economic impacts of regulatory modernization initiatives suggested by the regulated community and other stakeholders. To assist us in properly compiling information that we receive, when responding to a specific question below, please note the topic letter and question number in your comment. When providing estimates of economic impact or other quantitative information, please describe the basis for estimates, including data sources and calculations. With respect to cost data, both granular (
9. The total cost of each non-bulk drum design periodic recertification is approximately $XXX. We estimate total spending on package recertifications is $XXXXX for our company annually. If PHMSA were to change those recertification requirements to allow a longer interval between required recertification events as discussed in the ANPRM, we believe this would result in a total additional cost savings to our company of $XXX annually. We also anticipate one-time implementation costs (pertaining to initial training and updating of documentation) of $XXX and recurring costs of $XXX annually.
Carriers that transport hazardous material must maintain emergency response information (ERI) that meets the requirements of § 172.602 onboard their motor vehicle, train, plane, or vessel. In accordance with § 172.602, ERI must be immediately accessible to train crew personnel, drivers of motor vehicles, flight crew members, and bridge personnel on vessels for use in the event of incidents involving hazardous materials as well as emergency responders and representatives of government agencies conducting an investigation.
PHMSA requests comment on the continued utility of this requirement given advancements in technology and greater availability of resources, such as the Emergency Response Guidebook (ERG), to the emergency responder community. Specifically, PHMSA requests comment on the following questions:
1. Should ERI be required to accompany shipments of hazardous materials? If no, what alternatives should be considered that maintain existing levels of safety?
2. How does, if anything, the utility or value of ERI vary under § 172.602 in the different modes of transportation?
a. In highway and rail accidents, is emergency response generally conducted by emergency responders rather than carrier personnel? Explain.
b. How much do emergency responders rely on the ERI provided by the highway or rail carrier, or do they rely on their own?
c. For air and marine vessel incidents, are carrier personnel engaged in response actions? Explain.
d. Does air and vessel incident response depend to a larger degree on ERI maintained by the carrier compared to highway and rail?
3. Provided an equivalent level of safety can be maintained, what are the potential cost savings involved in revising the ERI requirements under § 172.602?
a. Would revisions to § 172.602 in effect “shift” the costs of maintaining ERI to entities other than the carrier, such as emergency responders affiliated with tribes, states, counties, or localities?
4. Are there differences in the reliance on the carrier's copy of ERI between different types of emergency responders? Differences to consider include urban and rural organizations, professional and volunteer, and different response branches such as law enforcement officers and firefighters.
Packaging standards for UN Performance Oriented Packagings (POP), also referred to as UN specification packagings, Intermediate Bulk Containers (IBCs), and Large Packagings, are performance-based, rather than highly prescriptive. The HMR provide general standards and instructions for the construction of UN specification packagings and IBCs in part 178, subparts L and N, respectively. However, in order to be qualified to bear a UN specification packaging mark, each non-bulk packaging or IBC design must pass qualification tests in part 178, subparts M and O, respectively. After a design has been initially qualified, the HMR require that each non-bulk single packaging design and IBC design must undergo a periodic retest at least every 12 months (see §§ 178.601(e) and 178.801(e)). Each non-bulk combination packaging design and Large Packaging design must undergo periodic retest at least every 24 months (see §§ 178.601(e) and 178.955(e)). These tests are intended to demonstrate that the manufacturer's packagings continue to meet the standards required for the safe transportation of hazardous materials.
The Research and Special Programs Administration (RSPA)—PHMSA's predecessor agency—adopted UN POP standards into the HMR on December 21, 1990, in a rulemaking known as HM-181 (55 FR 52402).
Those prescriptive requirements accommodated limited innovation in package design and qualification and contributed to a sizable code of regulations through unnecessary duplication of regulatory text. At the time the UN POP standards were proposed, RSPA received comments stating opposition to periodic packaging testing requirements after initial qualification. Commenters specifically requested that no “requalification” testing be required unless a design change was made to the packaging because of the time and expense involved in annually testing packagings. In response to these comments, RSPA stated its understanding that conducting periodic packaging testing every 12 months was not, by itself, sufficient to ensure each packaging produced by a manufacturer would meet the required performance standards. RSPA stated the expectation that manufacturers would need to take additional measures, such as testing an increased number of samples or testing samples to more stringent levels (
Additionally, RSPA noted that a 12-month periodic retesting requirement was a relaxation of testing requirements for many packaging types, compared to the previous packaging standards in the HMR. However, RSPA acknowledged that this requirement would be particularly onerous for manufacturers of non-bulk combination packagings because of the large number of very similar designs in production, and therefore allowed a number of variations in package design that would not require retesting (see § 178.601(g)) and extended the periodic retest requirement to 24 months for non-bulk combination packagings. See pages 55 FR 52459-52460 of final rule HM-181 for further details on RSPA's response to commenters regarding implementation of UN POP standards.
Several comments related to the periodic retest requirement for UN specification non-bulk packagings and IBCs were submitted to the 2017 Regulatory Reform Notice docket. The Reusable Industrial Packaging Association (RIPA),
PHMSA notes that, unlike many other countries, when the UN POP standards were adopted into the HMR, we did not require that packaging manufacturers send their packagings to an independent third-party laboratory for design qualification and periodic retesting. Rather, we allowed, and continue to allow, non-bulk UN specification packaging and IBC manufacturers to “self-certify” their own packagings by conducting the required tests and recording the results. PHMSA is requesting comment on the following questions to evaluate RIPA, IPANA, and SAAMI's requests:
1. Can a package manufacturer or a UN Third-Party Packaging Certification Agency demonstrate through data, modeling, or other means, that a packaging design that is tested every 60 months performs as well as a design tested every 12 to 24 months? Explain.
2. How have manufacturers' quality assurance procedures evolved and improved since the implementation of UN POP system? Please provide specific examples for all packaging types believed to warrant a longer design qualification interval.
3. For trade associations who represent packaging manufacturers, what percentage of packaging manufacturers in the United States have implemented improved quality assurance procedures for UN POP (non-bulk, Large Packagings, and IBCs) since the current system was adopted in the HMR in 1990?
4. For trade associations and packaging manufacturers, how frequently are internal quality control tests conducted by manufacturers?
a. What types of tests?
b. Does every U.S. IBC and non-bulk specification packaging manufacturer follow the same internal quality control program? If not, are there similarities among these manufacturers' quality control programs? Are there best practices?
c. Is there a voluntary consensus standard (
5. Are there similar quality control methods used for all the different types of packagings (
6. For trade associations who represent packaging manufacturers, or packaging manufacturers, how many how many non-bulk, Large Packaging, and IBC packaging designs are currently in production in the U.S.? Please provide information by type and whether the packagings are single packagings or combination packagings (
7. Of the current UN POP designs in production in the U.S., what percentage(s) are variations on tested designs produced without further testing under § 178.601(g)?
8. What is the cost of periodic retesting of a packaging for self-certifiers (
a. For a typical manufacturer, how much does periodic recertification cost on an annual basis?
9. What is the total cost of a non-bulk, Large Packaging, and IBC packaging periodic recertification for manufacturers who use UN Third-Party Packaging Certification Agencies to certify their packagings? Please provide information by type (
a. For a typical manufacturer, how much does periodic recertification cost on an annual basis?
10. Given the variability in packaging types encompassed by non-bulk, Large Packaging, IBC POP standards and the differing capabilities of manufacturers, would it be more effective to consider extension of periodic retest periods on a case-by-case basis through issuance of approvals, as provided by §§ 178.601(e), 178.801(e) and 178.955(e)?
11. Would packaging manufacturers be willing to submit packagings to UN Third-Party Packaging Certification Agencies for testing, in lieu of self-certification, in order to have a longer interval between periodic qualifications? Why or why not?
12. Do the users of non-bulk packagings, IBCs, or Large Packagings support an extension of the periodic qualification interval? Why or why not?
13. How would the extension of the periodic qualification interval impact costs or savings for users of non-bulk packagings, IBCs, or Large Packagings? Please quantify the impact on burden hours for employees using Bureau of Labor Statistics labor categories, if possible.
The HMR require that all non-bulk UN POP designs, also known as UN specification packagings, be tested in accordance with the requirements in part 178, subpart M. These testing requirements specify the types of tests that must be conducted, and the number of samples of packages that must be subjected to the tests. Generally, the HMR do not allow sample packages to be reused for multiple tests,
In 2017, PHMSA issued Letter of Interpretation Reference Number 16-0154,
1. How many package designs would benefit from the option to re-use a test sample for another test (
2. How much time would be saved for each design so tested? What type of employee would save time? (Use Bureau of Labor employee category codes, if possible.)
3. How many fewer test samples would be required for each design so tested?
4. What are the cost savings, per design test or design recertification test cycle, by reusing test samples for additional tests?
5. Are there certain combinations of design tests that are most suited for use of one sample across multiple tests? Are there certain tests that should not be allowed to be performed with tests samples subjected to other tests?
6. In practice, would sample reuse be limited to certain packaging designs, types, and packaging materials? Please provide the packaging types and materials.
7. Would permitting package sample reuse increase test failures and associated costs with re-running certification tests? Please explain your reasoning.
8. If sample reuse is permitted, what is the potential impact on safety?
a. Would permitting sample reuse cause packaging designers to create more robust packaging designs? If so, how?
b. Is there any possibility that allowing reuse would degrade safety in packaging designs? If so, how?
c. Is there any concern that it will be more difficult to determine the root cause of a packaging test failure if the sample has been subjected to multiple tests?
Section 171.8 of the HMR define an “aerosol” as:
Aerosols are limited to 1 L in capacity and are eligible to be shipped as a limited quantity in accordance with § 173.306(a)(3), (a)(5) and (b). These limited quantity exceptions allow for alternative packaging, specifically: non-specification non-refillable containers; DOT-specification DOT 2P, DOT 2P1, DOT 2Q, DOT 2Q1 or DOT 2Q2 non-refillable metal receptacles; or DOT-specification DOT 2S non-refillable plastic receptacles. Eligibility for the different containers (non-specification, DOT 2P, 2Q or 2S) is dependent on the pressure and flammability of the contents (
In the § 172.101 Hazardous Materials Table (HMT), there are five entries for UN1950 aerosols:
These entries do not address other possible combinations of propellants and the liquid, paste, or powder contained in the aerosol (
The IMDG Code Dangerous Goods List (DGL) lists only one entry for UN1950 aerosols, which is associated with Special Provision (SP) 63. SP 63 directs shippers to classify the primary hazard as Division 2.1 flammable gas or Division 2.2 non-flammable gas, based on the flammability of the contents of the container, and then assign a Class 8 or Division 6.1 subsidiary hazard as necessary based on the nature of the contents to be expelled. The IMDG Code also authorizes Division 6.1, PG II and Class 8, PG II subsidiary hazard materials in aerosols, which the ICAO TI do not. The HMR currently allow Class 8, PG II subsidiary hazard materials in aerosols, but not Division 6.1, PG II. In practice, despite having only a single UN1950 entry for aerosols in the DGL, the IMDG Code acknowledges an even broader list of possible classifications for aerosols than the ICAO TI. The lack of alignment between the HMR and international regulations for aerosol classification creates confusion for shippers and carriers engaged in international shipments.
Matson Navigation submitted petition P-1698
1. How many shipments of Division 2.2 (6.1), PG II and Division 2.1 (6.1), PG II aerosols would move within the U.S. per year if authorized? Please provide estimates for marine vessel, highway, and rail separately, if possible.
2. Are there any known international incidents involving Division 6.1, PG II aerosols, including those shipments that have entered the U.S.? Explain.
3. What would be the cost savings, per shipment, associated with allowing Division 2.2 (6.1) PG II and Division 2.1 (6.1) PG II material to be transported as an aerosol?
a. Would shippers be able to reduce costs by switching to less expensive packaging authorized in § 173.306(a)(3)? How much would shippers save per packaging or shipment?
b. How much time would shippers save due to the reduced hazard communication requirements associated with limited quantity shipments by highway, rail, and vessel? What categories of employees would save time? (Use Bureau of Labor Statistics labor categories, if possible.)
4. Do you support adoption of the IMDG Code 120-mL limit for Division 2.2 and Division 2.1 (6.1) PG II aerosols transported by highway, rail, and marine vessel? Marine vessel only? Why or why not?
a. Do you support adoption of the 120-mL limit for Division 2.2 and Division 2.1 (6.1) PG III aerosols that currently do not have a 120-mL limit when transported under the HMR? Why or why not?
5. How would the creation of additional entries on the § 172.101 HMT for Division 2.1 aerosols with subsidiary hazards decrease confusion and facilitate international commerce?
6. Should aerosols in Division 2.2 and Division 2.1 with a subsidiary hazard of 6.1 PG II be required to bear markings indicating the package is forbidden for transportation aboard aircraft?
a. Would such a marking reduce the risk that a forbidden aerosol would be transported aboard an aircraft? Explain your reasoning.
7. How often are shipments frustrated by the current disharmony between the HMR and international regulations? How many shipments are frustrated on an annual basis?
a. What are the direct and indirect costs of a frustrated shipment? For example, what amount of delay occurs and what are the costs of this delay? Are “demurrage”—
b. What amount of revenue is forfeited when a shipper or carrier declines to offer or transport a potentially non-compliant aerosol shipment?
The HMR generally require that a package that contains a residue of a hazardous material must be transported in the same manner as when it contained a greater quantity of material (
• Create an exception for IBCs containing a residue (not more than 0.3 percent full) of Class 3, 4.1, 5.1, 6.1 PG III, 8, or 9 from subparts C-F (shipping papers, marking, labeling, and placarding, respectively) and subpart G Emergency Response Information (ERI). (Shipments not subject to shipping papers are not subject to ERI, see § 172.600(d)). Although not specifically requested by RIPA, exception from the ERI requirements is implicit with a shipping paper exception, and therefore, we mention it here.
• Require a statement on a shipping document carried onboard any vehicle transporting residue IBCs (
To support their petition, RIPA cites a bonfire test they conducted on an IBC containing residue of acetone that demonstrated only fire behavior, with no explosion, fragmentation, or fireballs.
Additionally, PHMSA is aware that Transport Canada has issued an equivalency certificate, SU 11819,
To evaluate creating an exception for residue IBCs, PHMSA requests comment on the following questions:
1. Please provide supporting information describing how the transportation of residue IBCs in accordance with P-1618 maintains an equivalent level of safety compared to the HMR's current requirements for IBCs that contain a residue of hazardous materials.
a. Does the P-1618 request account for the presence of vapors of hazardous materials in the residue IBCs? Please describe.
b. If placarding the motor vehicle carrying residue IBCs is no longer required—and therefore a hazmat endorsement on a Commercial Driver's License is no longer required—how would a carrier ensure that the driver is aware of the hazards of the material he or she is transporting?
2. Do you support adoption of RIPA's request to have the vehicle display no placards or ID number marks for a shipment of residue IBCs? Why or why not? Alternatively, please propose an alternative form of hazard communication for the vehicle.
3. Do you support adopting RIPA's request to have a statement for all shipments paraphrased as follows: “This vehicle is carrying emptied intermediate bulk containers that may contain up to 0.3% of capacity of residues of hazardous materials in Classes 3, 8, 9, and Divisions 4.1, 5.1, 6.1 (packing group III). These IBCs do not contain residues of any toxic inhalation hazard or Packing Group I hazardous material.” Why or why not? Should the statement be revised in any way? How so?
4. Do you support a requirement that vehicles carry ERI for the hazardous materials transported under this proposed exception?
5. Do you support RIPA's request to authorize this proposed exception for Class 3, 8, and 9, and Division 4.1, 5.1, 6.1 (PG III only) materials? Why or why not?
6. Do you support limiting the authorization to highway and rail transport only, as requested in RIPA's petition, or include vessel transport as authorized in SU 11819? Please explain your reasoning.
7. How much material should be allowed to remain in the IBC to take this exception? How would the amount of material left in the IBC be verified? Options to consider include alignment of the exception to apply to containers emptied in accordance with:
a.
b.
c.
d.
8. Are there any known incidents or accidents involving residue IBCs shipped under Canadian SU 11819 or the European Agreements Concerning the International Carriage of Dangerous Goods by Road (ADR) exception for residue IBCs? If so, please describe. For reference, ADR regulations provide exceptions for emptied IBCs that are similar to the exceptions provided in Canadian SU 11819.
9. Are there any known incidents or accidents involving residue IBCs in the United States where improper emergency response protocols were implemented, due to the lower hazard posed by the small amount of hazardous material present on the vehicle? Please describe.
10. How would offerors of “empty” IBCs determine that they meet the 0.3 percent residue requirement before offering?
a. P-1618 uses the term “emptier,” which is not a term defined or generally used in the HMR. Please explain the difference between the offeror of a hazardous material for transportation and the “emptier.”
11. Do you support restricting the exception to transport for purposes of testing/inspection or delivery to a disposal facility, as provided in Canadian SU 11819? Why or why not?
12. Do you support limiting the exception to IBCs with a capacity less than or equal to 550 gallons (2100 liters)—as RIPA requests—or allowing the exception for IBCs of all sizes?
13. What cost savings would be achieved by shippers and carriers of residue IBCs if this was adopted as proposed by RIPA? Please explain your calculations including the amount of labor required and the rate of compensation for that labor.
a. Please explain the current industry practice for determining the shipping information for residue IBCs (
b. What, if any, costs savings would be realized if placarding for the vehicle carrying residue IBCs is no longer required, and a driver without a hazmat endorsement is allowed to operate the vehicle?
14. What cost savings would be achieved by shippers and carriers of residue IBCs if the HMR was modified to align with SU 11819? For example, Transport Canada's SU 11819 requires the use of the “DANGEROUS” placard and updated shipping documents. Please explain your calculations, including any additional costs accrued through the additional shipping paper statement.
The HMR permit the shipment of damaged, defective, or recalled (DDR) lithium cells and batteries in accordance with § 173.185(f). These packaging instructions are more stringent than the normal lithium cell and battery instructions found in § 173.185(b), and do not permit the transportation of DDR lithium batteries and cells aboard aircraft. We received a comment
PRBA explained that the use of the word “recalled” in § 173.185(f) creates confusion for shippers and causes shippers to offer batteries and devices containing batteries that have been recalled for non-safety related reasons under the damaged, defective, or recalled provisions in § 173.185(f). It was never PHMSA's intent to subject lithium batteries and lithium battery powered devices to the conditions in § 173.185(f) if they had been recalled for a non-safety related purpose. When PHMSA created § 173.185(f) in final rule HM-224F
The HMR do not currently contain provisions for transporting batteries subject to a manufacturer's recall or that are damaged and potentially dangerous. Based on previously developed guidance material and competent authority approvals, PHMSA will require lithium batteries that have been damaged, identified as being defective, or are otherwise being returned to the manufacturer for safety reasons [emphasis added], to be packaged in combination packages, surrounded by non-conductive cushioning material, and transported by highway or rail only.
While our intent may have been clear in the HM-224F preamble, we acknowledge that the wording of § 173.185(f) could mislead a cautious shipper to ship lithium batteries and battery powered devices that had been recalled for any reason under the more restrictive requirements of this paragraph. Therefore, PHMSA requests comment on the following questions to evaluate PRBA's comment:
1. PHMSA's concerns with DDR batteries include that damaged or defective batteries have a higher chance of thermal runaway and creating fire and explosion in transportation. PHMSA does not consider devices and batteries recalled for non-safety related purposes to be subject to the “damaged, defective, or recalled” packing instruction in § 173.185(f). How should PHMSA define “damaged, defective, or recalled” for lithium batteries to clearly communicate this distinction?
2. Given PHMSA's intended meaning of “damaged, defective, or recalled,” how frequently do shippers prepare lithium battery shipments under the restrictive requirements of § 173.185(f) when the shipment does not actually involve DDR batteries, but batteries that are recalled for reasons other than safety? How many shipments are involved on an annual basis?
a. How common are shipments of non-safety related recalled batteries compared to those of safety related recalled batteries?
3. How much costlier are shipments of DDR batteries than non-DDR battery shipments? What contributes to higher costs for DDR battery shipments relative to non-DDR battery shipments?
a. Who mostly bears these costs of DDR or non-DDR battery shipments? Shippers, manufacturers, or recyclers?
4. What techniques, besides a visual examination of the battery, are in use to identify DDR batteries prior to shipment? Please describe any known to you.
5. Do the current requirements for DDR batteries in § 173.185(f) provide an adequate level of safety during transportation for these higher-risk batteries? If not, please describe the safety deficiencies you are aware of and suggest a means to address the deficiency.
6. Describe any technologies, practices, or procedures known to you that could reduce the risks presented by these batteries in transportation.
Proper classification of a hazardous material is a cornerstone of the packaging and hazard communication requirements in the HMR. The person who offers a hazardous material for transportation (
PHMSA received two comments in the 2017 Regulatory Reform Notice related to the sampling and testing plan for unrefined petroleum-based products. American Fuel and Petrochemical Manufacturers (AFPM) submitted a comment
PHMSA believes that the requirements in § 173.41 serve an important role in ensuring the proper classification of unrefined petroleum-based products, which exhibit more variation than refined or manufactured materials. Therefore, we do not anticipate removing this section at this time. However, clarifications of the requirements in § 173.41 could encourage compliance and efficiency—and in turn reduce environmental burdens. PHMSA requests comment on the following questions:
1. Would the adoption in the HMR or incorporation by reference of ANSI/API RP 3000
2. Are there any specific technical requirements or provisions in ANSI/API RP 3000 or it's technical addendums that should be incorporated into the HMR? If yes, please explain.
3. Should PHMSA adopt any of the DOT Special Permits that have been issued in connection with § 173.41 or the testing requirements of § 173.120 (
4. What specific provisions of § 173.41 for shippers and carriers may improve compliance and efficiency?
a. Provide suggested regulatory text that would revise the identified provisions.
b. Provide detailed estimated costs for the current requirement and projected cost savings for the suggested revised requirements.
c. Provide detailed safety justifications that demonstrate how the revised requirements will meet an equivalent or greater level of safety to the current sampling and testing plan requirement.
In accordance with § 130.31, any person who transports liquid petroleum oil in a packaging with a capacity of 3,500 gallons or greater must have a basic written plan to respond to an oil spill. RSPA instituted the 3,500-gallon threshold for basic oil spill response plans in HM-214/PC-1 Interim Final Rule 2 (IFR-2)
The Utilities Solid Waste Activities Group (USWAG) submitted a comment
1. How many companies, utilities, or other entities transport liquid petroleum oil in a packaging with a capacity of 3,500 gallons or greater?
a. What percentage of these shipments result in spills and what potential gaps exist in this data?
b. What are the likely consequences and damages, including worst-case consequences?
c. How much higher would damages be for these spills without a basic oil spill response plan?
2. If we were to change the criterion for applicability of the basic oil spill response plan requirement to a packaging
3. If we were to change the criterion for applicability of the basic oil spill response plan requirement to a packaging
4. What is the cost to develop a basic (non-comprehensive) oil spill response plan “from scratch?” While other estimation methods are possible, consider describing the cost in terms of the amount of labor required to develop the plan and the rate of compensation for that labor.
5. Are there alternative thresholds for a basic (non-comprehensive) oil spill response plan that PHMSA should consider; for example, a quantity of oil that is between 0 gallons and 3,500 gallons? Please provide experience or knowledge of oil spills from packages covered by the basic oil spill response plan requirements in the United States.
6. Would exceptions for equipment such as electrical transformers containing residue amounts of oil be a more suitable approach?
a. How would this be implemented?
b. What type of oil is found in electrical transformers?
c. Should all types of oil be eligible for this exception?
d. What quantity of oil is typically found in an electrical transformer that is being transported via highway or rail?
7. If we changed the threshold for the requirement from packaging capacity to actual quantity transported, what would be the appropriate threshold for the quantity transported to require a basic oil spill response plan? (
8. How would an offeror determine the amount of oil in the packaging prior to offering it into transportation?
The HMR incorporate by reference (IBR) approximately 200 technical standards from industry groups, standard-setting organizations, and international organizations as legally
While PHMSA reviews and updates IBR documents regularly, many IBR standards currently in the HMR do not reflect the most current version and may not reflect the state of the art for a particular area of the transport industry. Please note it may also be purposeful on PHMSA's part to not IBR a more recent version based on concerns with a particular edition or IBR a standard in part. In accordance with the Administrative Procedure Act (see 5 U.S.C. 500
In other cases, some members of the regulated community may prefer the older edition and find technical standards are being updated too frequently, citing high costs to purchase new standards, training costs, and other costs. Additionally, the incorporation of an older industry standard may not necessarily create a conflict as an entity conforming to the incorporated edition in the HMR can also at the same time be conforming to the most current version for purposes of satisfying condition(s) for a standard setting organization.
PHMSA recognizes that many IBR documents in the HMR are not the most current version of the document available. To address this issue, we request comment on the following questions:
1. Which documents incorporated by reference in § 171.7 are outdated and should be updated to reflect today's best practices in the industry?
a. For each IBR document so identified, what is the most current edition of the standard?
b. For each IBR document so identified, is the newest edition readily available? What is the cost of purchasing the newest edition?
c. For each IBR document so identified, describe the relevant changes from the currently incorporated edition to the newest edition.
d. For each identified change from the current IBR document to the newest standard, please provide supporting rationale for the change based on relevant technical and scientific data.
e. Please provide all available information on the:
i. costs imposed;
ii. cost savings created; and
iii. safety benefits of the changes identified from the current IBR standard in the HMR to the most current industry standard.
f. Please indicate the costs, savings, and benefits to any identifiable groups within society, such as specific companies, industries, or the public.
2. Should PHMSA engage IBR organizations through a semi-annual public meeting to discuss changes to the IBR standards, codes, or best practices?
a. Should PHMSA consider individual, modal specific meetings to address individual transportation modes, IBR standards, codes, or best practices?
3. Please provide any comments related to the development of consensus standards, including the ability of the public to participate during the technical development process and barriers to accessing standards (
The HMR require all new explosives to be approved by PHMSA or other authorized government agency before they can be transported to, from, or within the United States (see § 173.56 for further details). An approved explosive is assigned an explosives approval number, commonly referred to as an “EX number.” Consumer fireworks certified under the provisions of § 173.65 are assigned a fireworks certification number, commonly referred to as an “FC number,” which is treated equivalently to an EX number for hazard communication purposes. Any interested party can search an EX or FC number using the PHMSA website's approvals search tool
PHMSA requires that the EX or FC number be displayed on the package used to transport the explosive or on the hazardous material shipping paper (see § 172.320). PHMSA received a comment
To evaluate this revision to the HMR, PHMSA requests comment on the following questions:
1. From an emergency response perspective, how does allowing the transportation of fireworks with FC numbers entered on a document other than a hazmat shipping paper, or on the explosive item rather than the outside packaging, impact the risks of hazardous materials in transportation?
a. Would this change impact the ability to respond in accident situations or create confusion during customs examination for import shipments?
b. How will shippers and carriers ensure that the document remains associated with the package at all times and available to inspectors and emergency responders?
2. How much time would a fireworks shipper save per shipment if these additional options were allowed?
3. What labor category (use Bureau of Labor Statistics labor categories, if possible) of employee would save time per shipment? Alternatively, please provide an hourly wage of the type of employee responsible for complying.
4. How many UN0336, UN0335, and UN0431 fireworks shipments would likely take advantage of this option per year? Approximations and “ballpark” estimates are acceptable.
a. Do manufacturers or shippers print/apply the packing slips or display on the device at the same time as they print/apply the packaging/shipping paper? Will these different processes/exceptions for different firework categories be more costly?
5. What is the approximate breakdown of the modes of transportation used for UN0336, UN0335, and UN0431 fireworks shipments (
a. Would adoption of the marking method discussed in this section create harmonization issues with relevant international transport regulations? Please explain your reasoning.
6. Should recordkeeping requirements apply to the accompanying document displaying the FC numbers (
Section 173.150(g) provides exceptions from the packaging and shipment requirements of the HMR for limited quantities of beverages, food, cosmetics and medicines, medical screening solutions, and concentrates containing ethyl alcohol (commonly referred to as ethanol or alcohol). Currently, the applicability of the exception in § 173.150(g) is limited to these items when they are “sold as retail products.” PHMSA received a comment
AHS believes that limiting applicability of § 173.150(g) to items “sold as retail products” unnecessarily limits the use of the exception and creates undue burden on shippers of other consumer type products that contain ethyl alcohol. To evaluate this request, PHMSA requests comment on the following questions:
1. How many shipments are offered under the § 173.150(g) exception today on an annual basis? Approximation is acceptable.
a. What is the average volume of ethyl alcohol solution contained in a completed package transported in accordance with § 173.150(g)?
b. What is the average volume of ethyl alcohol solution per inner package transported in accordance with § 173.150(g)?
2. How many more shipments would be offered annually under the provisions of § 173.150(g) if the applicability language was changed to state, “suitable for retail sale” rather than “sold as retail products?”
a. What amount of cost savings would shippers achieve if the applicability of § 173.150(g) was changed to products “suitable for retail sale?” Describe this savings amount in any way you can, whether that involves an individual shipper or a collection of shippers that constitute the distribution channel.
b. What form would these savings take? Specifically, § 173.150(g) is a broad exception from the HMR, so it may include exceptions from specification packaging, labeling, marking, shipping papers, and others. Which exceptions would provide the most savings and be most valuable? How much do each of the exceptions contribute to reducing costs for shippers? You may describe the cost reductions in terms of an example shipment.
c. How many U.S. shippers use this ethyl alcohol exception? What proportion are likely to be small businesses? Approximation is acceptable.
3. Describe scenarios in which a material is not “sold” as a retail product but is considered “suitable for retail sale.” In other words, how does the change in wording from “sold” to “suitable” make an impact on the eligibility for the exception?
a. What types of shipments would now be eligible? Do these shipments occur at different points in the supply chain? Do they involve different clients or consumers that are not the end users (
b. Might cost savings be passed on generally to consumers (
c. Are materials that are “suitable for retail sale,” but not actually sold as retail products, packaged in packagings equivalent to those sold as retail products?
d. Are there additional types of commodities or products that would now be eligible? Would new products be introduced into the market due to modifying this exception?
e. In these scenarios, what types of packages could be used when these materials are not shipped “suitable for retail sale?”
f. What are the costs, additional risks, and impacts associated with adding “suitable for retail sale” to § 173.150(g) to first responders, shippers, and others in the transport chain?
4. Regardless of any change to the applicability of the § 173.150(g) exception, have more shipments of consumer products containing ethyl alcohol been offered based on § 173.150(g)
5. Would shippers of different modes be differentially affected by this exception? Are there different costs or benefits for shipments by rail, air, highway, or vessel?
6. Have increased shipments of ethyl alcohol-based hand sanitizers during the COVID-19 public health emergency changed the risk profile and usage of this exception? If so, how?
The HMR require hazmat employers to properly train and test all hazmat employees (§ 172.702). Hazmat employees are those who directly affect hazardous materials transportation safety by performing hazmat functions, including those who prepare shipments, manufacture packagings represented as qualified for use with hazardous materials, and transport the material (see § 171.8 for the full definition of “hazmat employee”). The HMR training requirements are intended to ensure that each hazmat employee has familiarity with the general provisions of the HMR, can recognize and identify hazardous materials, has knowledge of specific requirements of the HMR applicable to functions performed by the employee, and has knowledge of emergency response information, self-protection measures, and accident prevention methods and procedures. The requirements for hazmat employee training are found in part 172, subpart H (§§ 172.700-172.704) and include general awareness, function specific, safety, security, and in-depth security training. Part 172 subpart H also requires that the employer maintain records of the employee's hazmat training, including the employee's training certificate, training materials, and instructor information for at least three years (see § 172.704(d)). Hazmat employees must receive recurrent training at least once every three years under § 172.704(c).
While part 172, subpart H training is generally a basic requirement for all hazmat employees, the HMR provide exceptions to Part 172's training and recordkeeping requirements, including but not limited to exceptions for small, excepted, and de minimis quantities (see §§ 173.4, 173.4a and 173.4b, respectively), materials of trade (see § 173.6), combustible liquids (see § 173.150(f)), and small lithium cells and batteries (see § 173.185(c)).
The AHS submitted a comment
1. How many hazmat shippers have employees who
a. How many hazmat employees in the United States are
b. Approximately, what are employee turnover rates in the hazardous materials shipping industry? Do the costs of training contribute to the overall costs of turnover for these employees?
c. Is hazmat training typically included with other trainings or conducted separately?
2. How many hazardous material carriers have employees who
a. How many hazmat employees in the United States are
b. If these carrier employees, who only transport LTD QTY material, were eligible for a training exception, would a carrier reduce the fees that they charge to hazmat shippers? Our understanding is that some carriers may charge a premium on hazmat shipments in the form of fees or higher rates, which may—or may not—apply to LTD QTY shipments.
c. Is hazmat training typically included with other trainings or conducted separately?
3. How would an LTD QTY-only shipper ensure that LTD QTY requirements are met, including quantity limitations and restrictions from air transportation, if part 172, subpart H training is not required?
4. How would an LTD QTY-only carrier ensure that LTD QTY requirements are met if part 172, subpart H training is not required?
5. For shippers, how much time would be saved annually per LTD QTY-only employee if part 172, subpart H training was not required for employees who solely prepare LTD QTY shipments?
a. What categories of employees would save time? (Use Bureau of Labor Statistics labor categories, if possible.)
b. Specifically, how much time is devoted to recordkeeping for hazmat training on a per employee basis? We assume this is a proportion of the overall amount of training time specified in this question.
6. How much time would be saved annually for a carrier if part 172, subpart H training was not required for drivers who only transport LTD QTY material?
a. What categories of employees would save time? (Use Bureau of Labor Statistics labor categories, if possible.)
7. What is the estimated cost for a shipper to provide LTD QTY-only training for an employee?
8. What is the estimated cost for a carrier to provide LTD QTY-only training for an employee? Is hazmat training typically included with other trainings or conducted separately?
9. Would the creation of a training exception for LTD QTY material increase the number of hazmat incidents and accidents involving LTD QTY material?
a. Would a training exception for LTD QTY material increase the probability that a shipment fails to use the LTD QTY mark/marking? Explain.
b. Please provide the risk analysis conducted to support answers to these questions.
10. The IMDG Code does not provide a training exception for LTD QTY material.
a. Would creating an exception from part 172, subpart H training requirements for LTD QTY shippers and carriers conflict with the IMDG Code and create barriers to international vessel commerce?
b. How will shippers and carriers ensure that employees who prepare LTD QTY shipments transported in accordance with the IMDG Code for vessel transportation meet IMDG Code training requirements?
11. Do hazmat shippers and carriers tend to use consultants or contractors to deliver hazmat training for hazmat employees? Or alternatively, do they tend to conduct their own training “in-house?” What is the difference in cost between hiring an outside trainer and conducting in-house training? Are there ways to reduce the cost of training when the required training is limited to LTD QTY shipments?
12. Rather than a training exception for all LTD QTY, should PHMSA limit a training exception to only certain LTD QTY materials,
13. For shippers and carriers who operate in Canada, please provide any information available to you relevant to your experiences utilizing this exception in Canada.
Division 4.3 dangerous when wet materials react, sometimes violently, with water. Communication of a material's dangerous when wet characteristics is therefore crucial to preventing inappropriate emergency response (
However, PHMSA recognizes that some Division 4.3, PG I materials are packaged in such a way and transported in such small quantities that they present limited risk in transportation. Accordingly, PHMSA issued a Competent Authority (CA) approval CA1996100010
USWAG additionally requested that PHMSA modify the security plan requirements for Division 4.3 materials. Currently, the HMR security plan requirements found in part 172, subpart I (§§ 172.800-172.822) require that a shipper or carrier who offers or transports an amount of Division 4.3 material that requires placarding must develop a security plan. As discussed above, any quantity of a Division 4.3, PG I material requires placarding and therefore a security plan (see § 172.800(b)(9)). USWAG describes this as unduly burdensome for electrical utilities who may transport very small quantities of Division 4.3, PG I material in test kits that no longer fall under CA1996100010 due to re-packaging. USWAG requests that PHMSA create a threshold amount of Division 4.3 offered or transported at one time for the security plan requirements to apply and suggests one (1) pound as a starting point for discussion. To evaluate USWAG's requests, PHMSA requests comment on the following questions:
1. How many shipments of Division 4.3, PG I material are transported under the provisions of CA1996100010 annually?
2. How many companies transport Division 4.3, PG I material under the provisions of CA1996100010 annually?
3. Do you support adoption of the provisions of CA1996100010 into the HMR? Explain.
a. What specific provisions in CA1996 (inner package quantity, completed package quantity, packaging type, etc.) are appropriate for inclusion in the HMR? What specific provisions are not?
b. What specific safety concerns exist for transporting Division 4.3 PG I material in accordance with the small quantity exception?
4. Do you support a modification of the HMR to transport Division 4.3 PG I material in accordance with the § 173.4 small quantity exception without a Competent Authority Approval?
a. If yes, please provide justification based on relevant technical and scientific data known to you.
b. If yes, please provide any available information related to the costs and benefits of your proposed action in general, and identifiable groups that are impacted in particular.
c. If yes, please describe the effect of your proposed action on the quality of the natural and social environments.
d. If no, please tell us why you are against expanding this small quantity exception.
5. In general, how much does it cost to create a security plan for highway carriers of Division 4.3 materials? What would be a low-end estimate and a high-end estimate?
a. We understand the cost may depend on a variety of factors—what are the factors that drive the cost?
b. If your knowledge is limited to your company's experience, provide a general estimate relevant to your company's experience.
c. What type of recurring costs do firms incur to maintain, store, or update security plans?
d. Do security plan costs differ by transport mode or by individual material?
6. How many companies are required to create security plans
a. Of these companies, how many only transport Division 4.3 material in quantities less than 1 lb. per vehicle?
i. Of these companies, how much time is spent developing and updating a security plan for the <1 lb. of Division 4.3 material?
ii. What type of employees spend time developing and updating security plans? (Use Bureau of Labor Statistics labor categories, if possible.)
iii. Do these companies generally contract for a security plan developed by third party consultants? Is the decision to contract for the security plan due to limited security expertise within these companies?
7. Is 1 lb. a reasonable threshold for security concerns that should be addressed through a security plan for Division 4.3 material?
a. Please provide justification for your support or opposition to a 1 lb. threshold, including a risk analysis that describes the relative hazards presented by 1 lb. of different Division 4.3 materials, including those that generate a flammable gas and those that generate a poisonous gas.
b. If you oppose the creation of a 1 lb. threshold for security plans for Division 4.3 material, provide an alternative and justification for the alternative threshold.
8. How many kits are typically transported in a utility vehicle during day-to-day operations? Rather than a weight threshold, would it be reasonable for PHMSA to develop a security plan threshold based on a specific number of kits?
a. Please provide justification for your support or opposition to a threshold based on number of kits, including a risk analysis that describes the relative hazards presented by your suggested number of kits that would trigger a security plan, including those that generate a flammable gas and those that generate a poisonous gas.
Section 173.166(c) requires that the EX-number assigned to a Division 1.4G safety device (
In 2014, PHMSA published Letter of Interpretation 13-0189
The intent of the change requested by P-1708 would be to limit the exception provided in § 173.166(d)(4) to shipments related to reuse of the metal components, rather than reuse or refurbishment of the entire safety device. COSTHA and NAAHAC believe that allowing transportation of safety devices for reuse without EX numbers entered on the shipping paper will cause several issues. These include breakdowns in automotive manufacturer's traceability databases used during automotive recalls, increase in consumer safety risks, and violations of the Federal Motor Vehicle Safety Standards (FMVSS) if inappropriate or counterfeit safety devices are installed in a vehicle.
Additionally, COSTHA submitted a comment
1. Are materials
2. How many salvaged, serviceable 1.4G safety devices are shipped each year? How many are for metal recycling, and how many are for reuse?
3. Is it possible to determine the hazard classification (Class 9 vs Division 1.4G) and EX number, if applicable, of a serviceable safety device pulled out of a vehicle?
a. Are there identifying markings on the safety device or module itself (
b. How much time does it take to determine the hazard classification and EX number, if applicable, of serviceable safety device removed of a vehicle? Qualitatively, is this process of determining the hazard classification and EX number, if applicable, burdensome or is it relatively easy?
4. Would a salvage yard or other such business stop transporting or shipping serviceable 1.4G safety devices to consumers for reuse if they were required to determine and enter the EX number on a shipping paper? What percentage of such businesses would continue selling reused serviceable safety devices despite the additional expense of determining and entering the EX number?
5. The FMVSS generally permit serviceable safety devices to be (re-)installed into a motor vehicle, provided the safety device is (re-)installed into a vehicle of the correct make/model and is not subject to any recalls. How will requiring entry of the EX number on a shipping paper for serviceable airbags being shipped for reuse address concerns related to the National Highway Traffic Safety Administration's FMVSS?
6. Are there any technical standards describing best practices or requirements that ensure the safety of reused safety devices?
7. How will consumers be affected by the proposed change to add the word “metal?” Is there the potential for higher costs to consumers (
8. What is the extent of possible impacts on consumer safety? For example, to what extent are consumers currently exposed to purchasing incompatible, damaged, or counterfeit safety devices?
9. Are you aware of any academic or other research that approaches these issues from a cost/benefit perspective? Avoided damages from car accidents are accounted for as “benefits,” whereas “costs” would include the differential between newly manufactured safety devices and salvaged safety devices. Is it possible to quantify and/or monetize these potential impacts?
10. Are there alternative ways to address the issues raised in P-1708 and associated comment? What additional agencies or organizations should be involved in decision-making? What efforts must be coordinated?
11. What impacts would adoption of the COSTHA proposal have on other federal regulation, or state or local regulations?
12. Are EX-numbers used for tracking and tracing these devices through the supply chain?
The HMR contain detailed instructions for the information required to appear on a hazardous material shipping paper in part 172, subpart C (§§ 172.200-205). The core requirement of a hazardous material shipping paper is the information referred to as the “basic description” (see §§ 172.202(a)(1)-(4) and 172.202(b)). The four elements of the basic description are the UN identification number (UN ID number), proper shipping name, hazard class, and packing group. This information must be entered in this specific order, and no additional information is permitted to be interspersed in between these four elements unless specifically authorized. Although § 172.202(b) describes the information required by § 172.202(a)(1)-(4) as the “basic description,” there is no definition for the term “basic description” in § 171.8, the main definition section of the HMR.
Beyond the basic description, additional information is required to complete the full shipping paper entry for a hazardous material. This additional information includes the number and type of packages, quantity of material, and special information required by § 172.203, including the “RQ” notation for hazardous substances, and identity of radionuclides for Class 7 material, among others.
In 2015, the Dangerous Goods Trainers Association (DGTA) submitted a petition
1. Would the creation of definitions for “basic description” and “shipping description” in § 171.8 as described above increase the clarity of the HMR? Why or why not?
a. Is there uncertainty or confusion among regulated entities or enforcement officials related to the information required to appear on a hazardous material shipping paper?
b. To what degree would the creation of definitions for these terms
c. Should the definitions of “basic description” and “shipping description” be different that those presented above?
d. Would the creation of the definitions as discussed improve the international harmonization process?
2. Does any identified uncertainty or confusion related to the information required to appear on a hazardous material shipping paper result in “frustrated” shipments and delay?
a. Is there an estimate of the costs of delay to the shipper, carrier, freight forwarder, or customer? This may include estimates of the freight value of time, as well as any fees or surcharges related to resolving alleged non-compliance.
3. Should these definitions be added to § 171.8? If not, what section should they be added to?
PHMSA issues renewals of special permits and approvals in accordance with the provisions of §§ 107.109 and 107.705, respectively. Sections 107.109(b) and 107.705(c) authorize the continued use of the special permit or approval until final administrative action is taken on the renewal application, provided that the applicant requests renewal at least 60 days before the special permit or approval expires. PHMSA understands that some stakeholders believe that the requirement to apply for renewal at least 60 days before expiration may be too burdensome on the regulated community. PHMSA is considering changing the requirement to authorize continued use of the special permit or approval until final administrative action is taken on the renewal application, provided the applicant applies for renewal before the special permit or approval expires.
1. Do you support authorizing continued use of special permits and approvals until final administrative action is taken on the renewal application, provided the applicant requests renewal prior to the expiration date? Explain.
2. Would this regulatory flexibility provide any quantifiable monetary or other benefits for a holder of a special permit or approval? If so, please provide information related to any known benefits or decreased costs.
3. What safety concerns are there for allowing continued use of a special permit or approval beyond its expiration while a renewal application is being processed?
4. Would such continued use of a special permit or approval cause any potential complications for the enforcement of HMR requirements by state and local partners?
Design Certifying Engineers (DCEs) are required to review and approve the design of specification cargo tanks and PHMSA is considering whether to require that a DCE perform a similar role for tank cars. DCEs, as defined in § 171.8, are required to register with the Department and meet education and experience requirements. Specifically, for cargo tanks, a DCE is required to meet one of the following conditions:
(1) Has an engineering degree and one year of work experience in cargo tank structural or mechanical design;
(2) Is currently registered as a professional engineer by appropriate authority of a state of the United States or a province of Canada; or
(3) Has at least three years' experience in performing the duties of a DCE prior to September 1, 1991.
PHMSA would consider an alternate definition for tank car DCEs that mirrors the existing cargo tank definition, except we would not include the clause in (3) that permits individuals who do not meet the criteria in (1) and (2) to work as DCEs based on their historical status.
The current definition of DCE allows professional engineers with no experience in structural or mechanical design to register as a DCE and certify the design of a cargo tank, and PHMSA is considering the same for tank cars to maintain consistency for the definition. PHMSA, FMCSA, and FRA request comment on the following questions to evaluate the current state of the DCE community:
1. Are there any professional engineers who had no previous experience in cargo tank structural or mechanical design currently registered with the Department as a DCE for cargo tanks? Explain.
2. Is a professional engineer with no experience in cargo tank structural or mechanical design capable of adequately reviewing and certifying a cargo tank design?
3. Is a professional engineer with no experience in tank car structural or mechanical design capable of adequately reviewing and certifying a tank car design?
4. Do you support adding a one-year experience requirement for professional engineers seeking to become DCEs? Explain. For example, “Is currently registered as a professional engineer by appropriate authority of a state of the United States or a province of Canada and has at least one year of work experience in cargo tank/tank car structural or mechanical design.” Why or why not?
In 2007, PHMSA modified the requirements for the transportation of compressed oxygen and other oxidizing gases by aircraft in rulemaking HM-224B
A4A submitted a comment
A4A requests that PHMSA either remove the requirement to use DOT31FP packaging for shipments of oxidizing gas and replace it with an option to use either the DOT31FP package or the ATA 300 packaging for domestic flights within the United States, or flights that are always within one hour of a divert airfield; or remove the requirement to use DOT31FP packaging and replace it with an option to use the DOT31FP package for ATA 300 packaging for all flights. A4A states that the ATA 300 packaging provides an acceptable level of safety while significantly reducing the cost of transporting oxidizing gases on aircraft. PHMSA requests comment on the following questions to evaluate A4A's request:
1. If PHMSA adopted A4A's request to remove the DOT31FP packaging requirements as the only packaging for transporting oxidizing gases on domestic flights or flights with short diversion times, how would airlines prevent oxidizing gas packages from being placed on international/long diversion time flights?
a. What is the likelihood that an ATA 300 packaging would be used unintentionally on international/long division time flights?
b. What actions would an operator take if ATA 300 packaging were used unintentionally on international/long diversion time flights?
2. If PHMSA adopted A4A's request to remove the DOT31FP packaging requirements as the only packaging on transporting oxidizing gases for domestic flights or flights with short diversion times, how many ATA 300 packages containing oxidizing gases would be shipped per year?
3. How many packages containing oxidizing gases have been shipped on aircraft per year since the use of DOT 31FP packaging was required?
4. How many packages containing oxidizing gas were shipped on aircraft from 1996 to 2007?
5. Are commenters aware of any incidents, in the United States or elsewhere in the world, where DOT31FP packages containing cylinders of oxidizing gases were exposed to fire conditions?
6. If PHMSA adopted A4A's request to remove the DOT31FP packaging requirements as the only packaging for transporting oxidizing gases on domestic flights or flights with short diversion times, please provide quantified economic savings and identify which parties would benefit. This estimation should detail the differential in costs between DOT31FP and ATA 300 packaging, as well as the number of packagings that currently are in use and expected to be used in the future.
7. Based on the hour-long resistance of the ATA 300 packaging to fire, how long of a diversion time would be acceptable to ensure a safe landing in event of a cargo fire?
8. PHMSA and FAA are aware that checked passenger baggage often contains hazardous materials for personal use authorized in § 175.10, and potentially may contain hazardous material not authorized for transportation in passenger baggage (
a. If PHMSA adopted A4A's request to remove the DOT31FP packaging requirements as the only packaging for transporting oxidizing gases on domestic flights or flights with short diversion times, should these packages be segregated from passenger baggage?
b. Should there be other segregation requirements?
c. Would a requirement to segregate an ATA 300 package containing an oxidizing gas from passenger baggage significantly impact the projected economic benefit gained by authorizing ATA 300 packages?
9. Have any air carriers conducted safety management system (SMS) risk assessments related to accepting oxidizing gases in ATA 300 packagings rather than DOT31FP packagings? If so, please provide the completed SMS risk assessment to PHMSA for review.
10. Do airframe manufacturers support A4A's contention that replacing DOT31FP packaging with ATA 300 packaging is equivalent when considering a cargo fire involving a compressed oxygen cylinder?
11. Have any interested parties conducted a package performance technical analysis that compares the ATA 300 packaging design type with the DOT31FP packaging design type in an operations environment? If so, please provide this analysis to PHMSA for review.
a. Would authorization of ATA 300 packaging increase safety risks?
b. Would it increase the probability of a catastrophic event?
c. Can this change in risk be quantified?
d. Are there limitations or operational safeguards that can be implemented to achieve an equivalent level of safety when compared to the DOT31FP standard?
12. What percent of cargo compartments in domestic flights or flights with short diversion times have active fire suppression systems installed?
Part 176 of the HMR contain instructions and requirements for the safe transportation of hazardous materials by vessel. PHMSA received a comment
1. What specific changes should be made to part 176? Include suggested revised regulatory text and a detailed explanation for each requested change.
a. Include information and arguments that support your proposed action, including relevant technical and scientific data.
b. Include any specific cases that support or demonstrate the need for your proposed action.
2. Please provide information about the following:
a. The costs, savings, and safety or environmental benefits of your proposed action to society in general
b. The regulatory burden of your proposed action on small businesses, small organizations, small governmental jurisdictions, and Indian tribes.
c. The recordkeeping and reporting burdens of your proposed action and whom they would affect.
d. The direct effects, including preemption effects under 49 U.S.C. 5125 of Federal Hazardous Materials Transportation law, of your proposed action on states, on the relationship between the Federal Government and the states, and on the distribution of power and responsibilities among the various levels of government. (See 49 CFR part 107, subpart C, regarding preemption.)
e. The effect of your proposed action on the quality of the natural and social environments.
Limited quantity (LTD QTY) materials are subject to hazardous material shipping paper requirements when transported by vessel. In 2011, PHMSA issued final rule HM-215K (76 FR 3307) that initiated a phase-out of the ORM-D exception in order to harmonize the HMR with international transport standards. The ORM-D classification and exceptions are not accepted internationally. The ORM-D exception has been phased out and after December 31, 2020, is no longer valid for transportation (see § 172.316). “ORM-D material” meant a material such as a consumer commodity; cartridges, small arms; cartridges, power devices (used to project fastening devices); cartridges for tools, blank; and cases; and cartridge, empty with primer, which, although otherwise subject to the regulations of the HMR, presented a limited hazard during transportation due to its form, quantity and packaging.
The ORM-D exception had very similar quantity limits and applicability to the LTD QTY exception, except that LTD QTY can encompass materials not in a form intended or suitable for sale through retail sales agencies or instrumentalities for consumption by individuals for purposes of personal care or household use (
1. How many ORM-D shipments are offered for domestic vessel transportation annually?
2. How many LTD QTY shipments are offered for domestic vessel transportation annually?
3. How much time would be saved by offerors and carriers per shipment if the HMR no longer required shipping papers for domestic vessel transportation of LTD QTY material? What categories of employees would save time? (Use Bureau of Labor Statistics labor categories, if possible.)
4. The IMDG Code does not offer a shipping paper exception for LTD QTY material. Would the creation of a shipping paper exception in the HMR for LTD QTY shipments via vessel create additional confusion and frustration because of a lack of alignment with international standards?
5. Please describe the number of packages, hazardous materials involved, number of shipments per year, and origin/destination pairs for domestic vessel shipments projected to use this exception.
6. Do LTD QTY shipments that are offered for domestic vessel transportation differ significantly by vessel type? Is this relevant for the transmission of shipping papers?
7. Do the recipients of LTD QTY shipments rely on shipping papers for tracking and tracing purposes?
The USCG requires safety approvals, periodic inspections, and markings for shipping containers used in international commerce (see 49 CFR parts 450-453). Compliance with these requirements is indicated by the presence of a Convention for Safe Containers (CSC) safety approval data plate on the freight container.
Shipping containers used exclusively in domestic commerce are not subject to this requirement. USCG has identified this as a potential safety issue for hazardous materials transported domestically. Hazardous materials carried in structurally deficient shipping containers increase the risk of unintentional release of the material to the environment during all modes of transportation. The HMR currently require that all shipping containers used to transport Class 1 (except Division 1.4) explosive material by vessel must be structurally serviceable and bear a current CSC safety approval data plate (see § 176.172). To address USCG's concern regarding structurally deficient shipping containers used in domestic commerce, PHMSA is considering expanding the requirement in § 176.172 to all hazardous materials transported by vessel. Although this requirement is applicable specifically to vessel transportation, freight containers are commonly transported by highway and rail as well, so an improvement in container integrity will benefit multiple modes of transportation. In order to evaluate this potential revision to the HMR, PHMSA requests comment on the following questions:
1. How many shipping containers are in use in domestic-only transportation?
2. How many domestic-only shipping containers do not have a current CSC safety approval data plate?
3. Do you support requiring all domestic-only shipping containers used to transport hazardous materials to maintain a current CSC safety approval data plate? Explain. If this should not apply to all hazardous materials, which materials should be covered by expanded applicability of the data plate requirement for shipping containers?
4. What is the annual cost for an inspection and certification of a container for safety approval and display of a CSC data plate?
5. What are the most frequented domestic-only commerce routes where shipping containers without current CSC safety data plates are used to transport hazardous materials? Are any of these routes in close proximity to vulnerable communities where release or incidents would have potentially disproportionate impacts?
6. Are shipping containers swapped between domestic-only and international shipping? If so, how do shippers prepare these containers for inspection and marking differently than containers used only for international shipping?
7. Is the shipper or transporter responsible for affixing the CSC safety approval data plate on the container?
Proper emergency response to a hazardous materials incident begins with identification of the types and quantities of the hazardous material
Rail transportation presents unique challenges for emergency response based on the length of a train and the potential for chaotic accident scenes after a derailment or collision. Emergency response efforts for rail incidents typically involve the Notice to Train Crew, also known as a train consist, a document carried by the train crew (see § 174.26). This document identifies the current position in the train of each rail car containing a hazardous material and provides the hazardous material shipping paper information and emergency response information required under part 172 of the HMR. Emergency responders can use this train consist information to identify the contents of a rail car based on its position in the train and unique identifier markings on the rail car, even if the placards and UN ID markings are obscured or destroyed during the accident.
Use of train consist information in this way depends on the ability of the emergency responder to accurately identify rail cars after an accident, which may involve the scattering of the rail cars and the freight containers carried by flatcars over a wide geographical area. It is PHMSA and FRA's understanding that current industry practice is to mark each freight container with a unique identification number to track the freight container through the shipping process. The HMR require that this unique identification number be entered on the hazmat shipping paper when such a mark is present on a freight container (see § 172.203(g)(1)). However, the HMR do not require that this marking appear on the freight container in a specific location, nor does the HMR prescribe any requirements for the durability, legibility, or size of this freight car identification marking. This can hinder emergency response efforts in an accident, as emergency responders lack a consistent way to identify freight containers that have been thrown free of the rail cars that carried them. PHMSA requests comment on the following questions related to marking a unique identifier on freight containers transported by rail:
1. Do you support creating requirements for the specific location, size, durability, and legibility of a freight container's unique identifier markings in rail transportation? Why or why not?
a. In what location(s) should freight container identification marks be required to appear to maximize visibility and awareness in accident and inspection scenarios?
b. What minimum size should the markings be?
c. Are the durability requirements in § 172.304 adequate for this marking?
d. Should there be requirements for a specific background color for the marking or a requirement to have the marking clearly contrast from the background?
2. Do you support adoption of the IMO Convention on Safe Containers (CSC) marking requirements for freight containers transported by rail?
a. Would these IMO requirements, if applied to rail transport, allow adequate visibility and consistency in accident and inspection scenarios?
3. Would adoption of requirements for location, size, durability, and legibility for unique identifier markings on freight containers impose costs on the regulated community?
a. Please identify any costs and additional time burdens that would be created by such a requirement. If this requirement creates additional time burdens on employees, please identify the labor category (use Bureau of Labor Statistics labor categories, if possible) of the employees involved and the amount of time spent complying with the new requirement would take.
4. Would this adoption produce quantifiable or monetizable safety benefits for communities? Would it produce quantifiable or monetizable environmental benefits? Explain.
5. Would this adoption reduce the number of needed “response hours” and the associated public burden and costs of response for local police, firefighters, or hazmat response units? Explain.
6. What is the paperwork burden to include unique identifiers for freight containers on shipping papers? To what degree are freight containers used in rail transportation already marked with these unique identifiers?
7. How consistent are existing marking standards? How significant of a change in marking standards would it be for all offerors and carriers to adopt more rigorous identification marking requirements?
8. Describe the record-keeping technology and protocols rail carriers use currently to track and trace the identifier markings they currently use and place on rail cars.
The HMR provide exceptions for the transportation of lithium cells and batteries to recycling and disposal facilities in § 173.185(d). To date, the exceptions for transport of lithium cells and batteries for purposes of recycling or disposal have been limited to motor vehicle transport. The exceptions in § 173.185(d) provide relief from the testing and recordkeeping requirements in § 173.185(a), and the UN POP packaging requirements in § 173.185(b). Cells and batteries transported in accordance with § 173.185(d) must be placed in packages meeting the general packaging requirements of §§ 173.24 and 173.24a, and the cells and batteries must be protected from shifting, damage, and short circuits in accordance with §§ 173.185(b)(2) and 173.185(b)(3)(i). Damaged, defective, or recalled (DDR) cells and batteries are not eligible for this exception. Currently, lithium batteries shipped for the purposes of recycling or disposal may be transported by any mode when fully regulated; however, exceptions found in § 173.185(d) are only allowed for highway transportation.
The Rechargeable Battery Association (PRBA) submitted a comment
1. How many shipments of lithium batteries destined for recycling or disposal are made by rail annually?
2. How many shipments of lithium batteries for recycling or disposal would be made by rail annually if we expanded the exception in § 173.185(d) to include rail transportation?
3. Would more lithium batteries be shipped by rail if the exception was expanded to include rail transportation? Or would modifying the exception mainly result in existing rail shipments of lithium batteries for recycling or disposal shifting to non-UN POP packaging?
4. What are the cost savings, if any, of a rail shipment of lithium batteries for recycling or disposal compared to a motor vehicle shipment?
5. Do existing lithium battery hazard communication requirements (including for batteries granted exceptions in § 173.185(c)) adequately convey the risk inherent to the transportation of container loads of used lithium batteries?
6. Should a packaging size limit or shipment weight limit be implemented for transportation of lithium batteries in accordance with § 173.185(d)? If so, what should the limit be?
7. Are safety risks to the public and railroad employees elevated when shipping large volumes of used lithium batteries in containers by rail in accordance with this exception? If so, to what extent/magnitude?
8. Are there unique risks associated with shipping large volumes of lithium batteries by rail, including in containers that are not well ventilated? If so, should PHMSA consider additional safety measures and hazard communication requirements to reflect those risks, even when moving under packaging exceptions in § 173.185?
9. Would an exception to the provision on specification packaging requirements—but not testing and recordkeeping requirements—in § 173.185(a) enhance the transportation of larger volumes of lithium batteries for disposal and recycling while maintaining safety protocols? Please explain.
10. What are the safety benefits, if any, of shipping damaged, defective, and recalled (DDR) batteries by rail rather than by motor vehicle? Would there be a material impact on the number of incidents or the severity of incidents?
11. What steps do shippers take to screen devices and batteries collected at a retail store or other collection point for DDR batteries?
12. What steps are retailers and device/battery manufacturers taking to inform customers about the dangers of DDR batteries?
Tank cars designed for the transportation of hazardous liquids are constructed with an opening large enough to permit the access of a person to the inside of the tank, known as a manway. Such openings are necessary to permit the entry of a person inside the tank car to conduct periodic inspections, repairs, and other operations requiring access to the inside of the tank. The manway opening is closed with a manway cover, and a gasket is placed between the manway nozzle and the manway cover to create a seal that prevents the release of the hazardous contents of the tank either in liquid or gaseous form and prevents the entry of air or moisture into the tank during transportation. Manways are often used (
The HMR require the person who offers the tank car into transportation (
. . . without opening a hinged and bolted manway and observing the condition of the manway's gasket, there is no way an offeror can reasonably perform a visual inspection of the gasket to meet the minimum inspection requirement of § 173.31(d)(1)(ii) or know that the gasket meets the performance requirements of either §§ 173.31(d)(2) or 173.24. This rationale applies generally to other tank car fittings designed to be opened/removed for the purposes of loading or unloading and serve as primary or secondary closures (including, for example, plugs or caps on top valves, etc.). In order to ensure compliance with these requirements, an offeror must remove the bottom outlet cap and open the manway cover and inspect the condition of the gasket, regardless of whether the offeror used the fitting during a particular loading/unloading event.
Dow Chemical
PHMSA, in consultation with FRA, does not plan to rescind Letter of Interpretation Ref. No. 15-0031R at this time. Our position remains that a direct external visual inspection of the gasket is the only way for an offeror to meet the inspection requirements as written in § 173.31(d)(1)(ii) to ensure the tank car is safe for transportation. However, we also recognize that new technologies and development of new practices may allow for more passive means of inspection such that opening of the manway to allow for visual inspection of the gasket may not be necessary to ensure that the tank car is safe for transportation. Since 2017, PHMSA has issued several special permits related to the issue of a tank manway gasket inspection to several entities, specifically, Phillips 66, Dow Chemical, and Kraton.
PHMSA believes that it is likely that additional companies besides Phillips 66, Dow Chemical, and Kraton are capable of loading and unloading tank cars without opening the manway, and therefore may be interested in seeking similar special permits or party status to existing special permits. PHMSA anticipates evaluating future special permit requests and potential regulatory changes to § 173.31(d)(1) that would authorize pre-trip inspections of manway gaskets via a method other than external visual inspection. We seek a greater understanding of the state of the art tank car loading and unloading to evaluate options to replace visual tank car manway gasket inspections.
Based on data collected by FRA, from 2018-2020, 29 percent
PHMSA requests comment on the following questions to assist our evaluation of special permit requests and potential regulatory revisions. PHMSA plans to use this information to better inform its evaluation of requests for Special Permits on this topic and, as appropriate and in keeping with its standard procedures, in its future review of special permits for suitability of their potential inclusion in the HMR:
1. Please present specific alternative methods for verifying the manway gasket condition, besides an external visual examination of the manway gasket during the pre-trip inspection.
a. For each method provided, how much does it cost to implement per shipment relative to the current method of visual inspection?
b. Provide any information available to you indicating how this method for verifying the manway gasket condition would maintain a level of safety at least equivalent to a visual inspection of the gasket during the pre-trip inspection.
c. Are there gasket materials known to remain leak tight over multiple trips for specific ladings? If so, describe the gasket material/hazardous material lading combination, and the method by which multi-trip leak tightness has been validated.
d. Are there gasket materials known not to remain leak tight over multiple trips with specific ladings? If so, describe the gasket material/hazardous material lading combination and how usage of such gaskets could be eliminated from service in tank cars used in an alternate leak tight inspection program.
2. Are you aware of any accidents or near-miss incidents that could have led to fire, explosion, or other hazardous incidents related to opening the manway cover as part of the pre-trip inspection? If so, please provide all available information relating to the incidents to PHMSA.
3. Please quantify the cost burden associated with product degradation caused by introduction of ambient air or moisture into the tank during the manway gasket inspection.
4. How many tank car shipments are made annually that require opening the manway
5. How much time is spent, per shipment, opening a manway and visually inspecting the gasket? What labor category of employee conducts this inspection? (Use Bureau of Labor Statistics labor categories, if possible.)
6. What additional costs are associated with a visual inspection of a manway gasket besides the employee's time (
a. For example, does the manway gasket inspection requirement contribute to wear and tear on the tank car components? If yes, please describe to what extent this has a material impact.
b. Does the manway gasket inspection requirement adversely affect the quality of the hazardous material commodity (
7. Given the reliability issues that arise with hinged and bolted manway covers, should PHMSA consider phasing out hinged and bolted manway covers altogether?
a. If hinged and bolted manways were no longer authorized on general purpose tank cars, how would loading operations need to be altered? What would be the costs of altering those loading operations?
b. Several hazardous materials authorized in general purpose tank cars are loaded through the hinged and bolted manway cover. Are there materials that can only be loaded using the hinged and bolted manway cover?
c. A fittings plate is an option for loading a tank car without operating the hinged and bolted manway cover. Is there other technology that would be utilized in place of hinged and bolted manway covers? If yes, please describe.
d. What would be the associated costs of replacing hinged and bolted manway covers with a fittings plate or an alternative closure?
e. What length of transition time would be needed to completely remove all hinged and bolted manway covers from tank cars?
8. A tank car requires a qualification and maintenance program per part 180, subpart F. With respect to questions presented in item #7, what would be the impact on the tank car's qualification and maintenance program if implemented?
9. How many hazardous material non-accident releases would likely be prevented if hinged and bolted manway covers were replaced by a more permanent closure?
10. Could eliminating hinged and bolted manway cover designs remove the need to open manways and inspect the gaskets? What are the cost savings in terms of time and equipment reliability that might be recognized by tank car offerors?
Section 179.201-6(b) requires that the top, bottom, and edge of a manway cover for a DOT-111A100W5 tank car must be covered by an acid resistant material, unless the metal manway cover is made from material that is not affected by the lading. In the time since this requirement was created, DOT-111A100W5 tank cars have entered service for non-acidic materials, including sodium hypochlorite. PHMSA received a comment
1. Do companies besides Olin Corporation use DOT-111A100W5 tank cars to transport materials other than acids? How many other companies?
2. How many DOT-111A100W5 tank cars are impacted by this issue?
3. If this proposal is adopted, what methods could the owner of a DOT-111A100W5 tank car use to inform potential future owners and users that the manway lining is not resistant to acids as outlined in § 179.201-6(b)? Should a new marking or delimiter be adopted to account for tank cars with manways that are not made of acid resistant material?
4. What benefits would adopting this proposal provide to DOT-111A100W5 owners and users? Would this provide a safety benefit by requiring the manway lining be resistant to the lading carried in the tank car?
5. Would there be cost savings for manufacturers or purchasers of these tank cars due to using less expensive materials for the manway covers?
6. Would it be best to specify the requirements for non-acidic DOT-111A100W5 tank cars in a special permit rather than the HMR? Explain.
7. Should a new specification delimiter be created to segregate these tank cars from original DOT-111A100W5?
8. How frequently are these tank cars used for acidic materials? For non-acidic materials?
9. Are these tank cars used for both? Do the manway covers need to be re-covered prior to each use, appropriate for the commodity or product?
DOT-117 tank cars used to transport flammable liquids, including crude oil and ethanol, must be constructed with thermal protection systems designed to protect the tank car from fire and heat (see §§ 179.18 and 179.202-6). The thermal protection standard establishes the performance requirement of a tank car and thermal protection system when exposed to a 1,600 °F pool fire for 100 minutes, and a 2,200 °F torch fire for 30 minutes (see Appendix B to part 179—Procedures for Simulated Pool and Torch-Fire Testing). To pass the Part 179, Appendix B tests, the thermal protection systems must prevent a rise in temperature above 800 °F on the non-exposed side of the test plate. This standard is designed to reduce the potential harm to human health and the environment caused from exposure to a fire resulting from an accident.
Norfolk Southern Railway Company (Norfolk Southern) submitted a comment
1. What specific change to the HMR is requested to address the issue identified by Norfolk Southern?
2. Task Force Activities
a. Has the Thermal Blanket Task Force developed a new consensus standard for thermal protection? If so, please provide a copy of the standard if possible.
b. Has the Task Force addressed DOT-113 tank cars carrying flammable cryogenic material (
c. What is the status of any proposed standard currently? What is the timeline for finalization?
3. In general, should PHMSA consider increasing the minimum 100-minute pool fire standard to 200-minutes or longer in § 179.18(a)? Explain.
a. Should the new standard apply only to new manufacture? Explain. If yes, what would be the appropriate timeframe to mandate compliance with the 200-minute standard for new manufacture?
b. Should it apply retroactively? Explain. If yes, what would be the appropriate timeframe to retrofit existing tank cars that do not meet 200-minute standard?
c. How does the implementation of the HM-251C “FAST Act Requirements for Flammable Liquids and Rail Tank Cars” final rule (81 FR 53935, August 15, 2016)
4. Should PHMSA consider reducing the part 179, Appendix B back-plate temperature acceptance criteria from 800 °F to a new lower temperature? Explain.
a. If so, what should the temperature be? What scientific data supports the new acceptance criteria? Please provide the data supporting any new acceptance criteria.
5. Newly constructed DOT-117 tank cars require a
a. How many DOT-117 tank cars have been or are being equipped with this allegedly insufficient thermal protection material?
b. What is the insufficient thermal protection material and what makes it insufficient or underperform relative to the 200-minute standard?
6. If Norfolk Southern is proposing a new performance standard of 200 minutes for all tank cars carrying flammable liquid commodities that require a § 179.18-compliant thermal protection system, are all existing thermally-protected tank cars (
a. Should the new thermal protection performance standard apply to all tank cars requiring thermal protection? Explain.
b. Is there a subset of higher-risk flammable liquid tank cars for which the 200-minute standard would be most appropriate?
7. Norfolk Southern references a “recently published AFFTAC” model showing the thermal protection performance can be doubled with currently available materials. PHMSA requests the AFFTAC study referenced in this comment as well as a summary of the underlying assumptions/inputs to those models. PHMSA also requests any additional information that will support the Norfolk Southern proposal and the AFFTAC study.
a. Does the thermal model address every currently authorized thermal protection material?
b. Does the thermal model address the various types of steel/thickness that is authorized by the HMR?
c. Were Class 2 flammable gases modeled in addition to Class 3 flammable liquids?
8. How many tank cars would need to be retrofitted if PHMSA and FRA implemented a new thermal protection standard that applied retroactively? Please provide separate estimates for flammable liquids and other commodities.
a. How many existing DOT-105, DOT-112, and DOT-117 tank cars
9. What is the cost of a thermal blanket that meets the proposed standard, compared to thermal blankets that meet the current standard? In other words, please express the unit cost of each technology and the resulting cost differential.
10. How much would it cost to manufacture a new tank car to the new standard? How much would it cost to retrofit a tank car to meet the new standard? Please consider additional labor costs in the case of new manufacture vs. retrofit. Please also describe other categories of costs and the amount that may be relevant.
11. If the new 200-minute standard were adopted, what additional amount of incident damages could be avoided relative to the current 100-minute standard? If possible, please express this in qualitative as well as quantitative terms, including estimates of the monetary value of avoided damages. Please note, avoided damages may include avoided damages to property (both public and private), the environment, and human health and safety. Related, it could include avoided costs to society on the basis that incidents may be more severe, and the emergency response more difficult or dangerous, with the baseline standard (100 minutes) versus the proposed standard (200 minutes).
12. Are there specific rail incidents that would have been less severe if the 200-minute proposed standard were already achieved? Is there a documentation of challenges and impacts to the emergency response that resulted from the current 100-minute standard?
13. Is the proposed 200-minute standard appropriate for all hazardous materials that require thermal protection systems, or is there a specific reason to apply this standard only to flammable liquids?
The HMR require separation between locomotives, occupied cabooses, and placarded rail cars (including tank cars) containing hazardous materials (see § 174.85) in rail transportation. This separation is accomplished by placing non-placarded rail cars, known as “buffer cars,” between the placarded rail car and the locomotive (also known as the engine or power unit) or occupied caboose. The intent of this requirement is used to protect the train crew in the engine or caboose from hazardous materials released during an accident.
On January 29, 2020, PHMSA received a petition for rulemaking from the Association of American Railroads (AAR), requesting that PHMSA amend the requirements in § 174.85.
In order to evaluate AAR's request, PHMSA seeks comment on the following questions:
1. Do railroads use distributed power units to transport employees? If so, how will railroads ensure that an occupied distributed power unit is provided the required buffer cars?
2. Do you support the creation of operational controls beyond the requested revision in P-1741? Why or why not?
a. Should a distinction for buffer car requirements be drawn between unoccupied head-end locomotives, distributed power units, and dead-in-tow locomotives?
b. What operational controls (
c. Are there any hazard class or divisions that should still require compliance with buffer car requirements, even from unoccupied distributed power units? If so, how many buffer cars?
d. If operational controls (
3. Does removing the requirement for buffer cars around distributed power units create any additional risks to railroad employees or the general public? Explain.
4. Across all railroads, how many switching moves occur annually?
a. If unoccupied locomotives are no longer required to be separated from placarded rail cars, how many fewer switching moves would be required across all railroads?
b. If unoccupied locomotives are no longer required to be separated from placarded rail cars, how many fewer switching moves would be required for Class I, II, and III railroads?
5. Would other benefits (
6. Is the estimate of annual savings of $180,000-$450,000 per railroad accurate for Class I railroads? Explain.
a. What are the estimated savings for Class II and Class III railroads?
b. What other costs, if any, are associated with this requirement, or is the only quantifiable financial impact the cost savings described above? Please describe all other sources of cost savings or costs.
7. How do railroads acquire buffer cars?
a. What commodities or materials do buffer cars typically contain? Would eliminating the buffer car requirement disproportionally affect customers/related entities?
b. How can the market for buffer cars be described? Who would be most affected by eliminating the demand for buffer cars?
The HMR require that tank cars used to transport hazardous material by rail must be qualified to remain in hazardous material in accordance with part 180, subpart F. The maximum intervals for the required inspections and tests are listed in § 180.509(c)(3); however, a tank car owner may specify shorter test and inspection intervals in their tank car test and inspection plan. FRA, based on a high volume of requests for guidance, is aware of confusion among the tank car community about whether a tank car filled with a hazardous material before the expiration of a test or inspection can be offered into transportation after the test or inspection's expiration date.
Section 173.31(a)(3) states: “No person may fill a tank car overdue for periodic inspection with a hazardous material and then offer it for transportation.” This language is similar to that used for other packages that require periodic requalification, including cylinders (see § 180.205(c)), cargo tanks (see §§ 173.33(a)(3) and 180.407(a)(1)), portable tanks (see § 173.32(a)(2)), and IBCs (see § 173.35(a)).
Based on § 173.31(a)(3), PHMSA and FRA have provided the guidance that a tank car may be filled prior to expiration of its qualification and offered after the qualification interval has expired. Historically, FRA has only cited violations of the HMR if an offeror loaded a car after its test date has passed and then offered that car into
We are seeking comments on whether the language in this paragraph should be amended to further clarify how it applies to the scenario where tank cars are loaded prior to their requalification date and offered after the requalification date has expired. Therefore, PHMSA, in consultation with FRA, seeks comment on the following questions:
1. Is the current language in § 173.31(a)(3) sufficient to address the scenario of loading a tank car prior to the next required requalification date and offering it after it is overdue for requalification?
2. Should § 173.31(a)(3) be clarified so that it more clearly permits the movement of a car that was loaded prior to its required requalification date but is now overdue for requalification?
3. Permitting cars to be loaded prior to expiration of the requalification interval and offered after could allow an indefinite period of time to pass before the expired car is actually offered into transportation, particularly if it was stored on private track for months or years. Does this create a potential safety issue?
4. Should PHMSA consider placing a deadline on the amount of time an offeror has to transport a loaded hazmat tank car that is overdue for qualification? If so, what should that time limit be? Potential time limits to consider are three months, six months, one year, or two years. Please provide any safety data or reliability information to support the proposed deadline.
5. Should PHMSA forbid the offering of any loaded tank car that is overdue for requalification, regardless of when it was loaded?
6. Is the practice of filling tank cars prior to expiration of the qualification date and then offering the tank car after expiration of the qualification date more prevalent in certain industries? If so, please describe.
Non-destructive examination (NDE), also known as non-destructive testing (NDT), of hazardous materials packaging is a core requirement of the HMR for the manufacture and continuing qualification of many hazmat packagings, including non-bulk Performance Oriented Packagings, compressed gas cylinders, IBCs, cargo tanks, tank cars, and portable tanks. However, the HMR does not define the term “non-destructive examination” and does not have consistent standards for the development of NDE plans or qualification for NDE practitioners across all packaging types. For example, PHMSA and FRA are aware of confusion related to NDE plan development, training, and certification requirements for NDE conducted in accordance with the tank car qualification requirements found in § 180.509. In order to evaluate the creation of a standardized definition and requirements for NDE, PHMSA requests comment on the following questions:
1. Should PHMSA create a definition for non-destructive examination? Explain why you support or oppose the creation of a definition for NDE.
2. If you support the creation of a definition for NDE, please provide a suggested definition.
a. What tests should be included in the definition?
b. Are there commonly accepted definitions for NDE contained in widely recognized industry standards? Are there differences between NDE definitions in different industries?
c. Should the definition be package or mode-specific,
3. Do you support the creation of a standardized system of NDE plan development, employee training, and qualification that would apply to all NDE conducted in accordance with the HMR? Why or why not?
a. Are there existing industry standards and publications that could be incorporated by reference into the HMR to create a standardized NDE system?
b. Do you support the incorporation of a particular industry standard over others? If so, why?
PHMSA is considering updating the requirements of the HMR related to transportation of hazardous materials on board commercial passenger-carrying motor vehicles (
1. What provisions in § 177.870 should be updated or revised for clarity? What provisions need to be added? What provisions can be removed?
2. In some cases, transport of hazardous material on passenger-carrying motor vehicles may be prohibited or regulated by state or local governments, or as a matter of corporate policy. Is there a need for additional regulation in this area specifically at the federal level? Why or why not?
3. What types and quantities of hazardous materials should be authorized for transportation on board passenger-carrying motor vehicles?
4. What types and quantities of hazardous materials should not be authorized for transportation on board passenger-carrying vehicles? Should PHMSA develop restrictions based on types of packaging, in addition to or instead of classification-based restrictions?
5. Do current hazard communication requirements (marking, labeling, placarding, etc.) meet the needs of emergency responders and carriers in scenarios where hazardous materials are transported on board passenger-carrying vehicles?
6. What locations on the vehicles should the hazardous material be stowed? Options for consideration are on one's person; carried on and placed on or near a seat; on the floor; and/or in a storage bin or area. Other options for consideration include the distinction between the stowage of hazardous materials being transported as cargo and hazardous materials being brought on board by passengers or carrier employees.
7. Incidents involving hazardous material on board passenger-carrying motor vehicles may be underreported. Please share examples of incidents fitting this description.
a. What sort of requirement or regulation would have most likely prevented these incidents?
8. What are appropriate training requirements for drivers of passenger-carrying vehicles that transport hazardous materials? What would this training cost to implement? How many drivers are likely to be affected and need training? In what manner are drivers already being trained on awareness and
9. Are hazardous materials, other than those carried by passengers for their personal (non-commercial) use, currently transported on board passenger-carrying vehicles?
a. If so, what are some common scenarios? What types and quantities of hazmat?
10. Should there be exceptions applicable to certain types and quantities of hazardous materials being carried by passengers or carrier employees (
11. Do you support adoption of provisions similar to the air transportation requirements in § 175.10 to address hazardous materials carried on board by passengers for their personal use separate from those carried as cargo on board passenger-carrying vehicles?
12. What are the appropriate training requirements for employees, other than the driver, of passenger-carrying vehicles that transport hazardous materials?
13. Are passenger-carrying motor vehicle drivers and/or other employees trained to recognize hazardous materials that may be transported by passengers?
14. Should the number of people transported on board a motor vehicle be considered when determining the types and quantities of hazardous materials that are allowed to be carried on board? Explain.
The HMR require annual leakage tests for all MC and DOT specification cargo tanks (see § 180.407(c)). The leakage test is generally conducted at 80 percent of the tank's maximum authorized working pressure (MAWP) (see § 180.407(h)). Section 180.407(h)(2) provides an exception to this normal leak test regime for cargo tanks used to transport petroleum distillate fuels that are equipped with vapor collection equipment. These cargo tanks may be tested in accordance with the Environmental Protection Agency's Test Method 27—Determination of Vapor Tightness of Gasoline Delivery Tank Using Pressure-Vacuum Test (EPA Test Method 27). EPA Test Method 27 is conducted at a significantly lower pressure (0.6 psig) than would normally be required to leak test a DOT 406 cargo tank (2.1-3.2 psig), the type of cargo tank most commonly used in gasoline service.
In 2016, PHMSA issued Letter of Interpretation 16-0048
National Tank Truck Carriers (NTTC) submitted a comment to the 2017 Regulatory Reform Notice requesting that PHMSA and FMCSA rescind this guidance and allow cargo tanks equipped with vapor collection equipment and transporting any petroleum distillate fuel, regardless of the fuel's RVP, to utilize EPA Test Method 27. PHMSA believes the interpretation provided in 2016 is correct based on the requirements in the HMR; however, we are willing to consider revisions to the applicability of EPA Test Method 27. To evaluate this topic, PHMSA requests comment on the following questions:
1. Is a test pressure of 0.6 psig, when conducted in accordance with EPA Test Method 27, sufficient to detect any leak(s) in a cargo tank? Please provide all information available to you that supports your position.
2. Prior to the publication of PHMSA's 2016 interpretation and related FMCSA safety advisory, what commodities other than gasoline were carried in DOT or MC specification cargo tanks that were tested via the EPA Test Method 27, rather than the standard § 180.407(h) leak test? What percentage of cargo tanks in petroleum distillate fuel service are not utilizing § 180.407(h)(2) based on the PHMSA interpretation and FMCSA guidance?
3. What are the cost savings for a cargo tank operator in conducting the EPA Test Method 27 instead of a standard § 180.407(h) leakage test? Please describe all sources of cost savings (time savings, tank wear, etc.).
4. How many DOT or MC specification cargo tanks equipped with vapor collection equipment are in use?
a. Are these tanks used in any service other than dedicated gasoline transportation? If yes, what materials are commonly transported in these low-pressure cargo tanks?
b. How many cargo tanks in dedicated gasoline service are in use?
5. Based on your experience as a Registered Inspector and the number of cargo tanks that have undergone the EPA Test Method 27 test per calendar year, what is the failure rate for EPA Test Method 27?
a. What, if any, problems have you observed with the EPA Test Method 27? Please explain.
b. Should a leakage test be performed in accordance with 49 CFR 180.407(h) in conjunction with EPA Test Method 27? Explain why or why not. Please provide information related to increased cost and employee time burdens created if a § 180.407(h)(1) leakage test was required in addition to the EPA Test Method 27 test.
c. Does your facility experience any issues of temperature stabilization when performing EPA Test Method 27? If yes, please explain the nature of the problems observed.
6. Should the U.S. Department of Transportation formally define “petroleum distillate fuels” for the purpose of determining the applicability of the exception in § 180.407(h)? If so, what definition should be used?
DOT and MC specification cargo tank motor vehicles are required to be manufactured with accident damage protection devices that are intended to protect valves, piping, and other vulnerable areas of the tank from damage in accidents (see §§ 178.337-10, 178.338-10 and 178.345-8). Accident damage protection devices meet the definition of “appurtenance” (see § 178.320) when applied directly to the cargo tank wall because when attached to the cargo tank wall, they have no lading retention or containment function and provide no structural support to the cargo tank. Appurtenances are required to be attached to the cargo tank wall in a specific manner to protect the integrity of the tank.
In 2015, PHMSA issued Letter of Interpretation 15-0049
TTMA submitted a comment
PHMSA received a related comment
1. If accident damage protection devices should not be considered under the definition of “appurtenance” (see § 178.320), how should they be characterized? Please provide justification for your response.
2. How would the cargo tank manufacturing and design industry account for the stresses imposed on the cargo tank wall if the accident damage protection devices are allowed to be mounted directly to the cargo tank wall?
3. What data is available in support of the practice of attaching accident damage protection devices to the cargo tank wall without the use of pads? Does this data show that it offers an equivalent level of safety to using pads?
4. What performance standard should apply to the size of attachment pads for appurtenances and structural support members for cargo tank motor vehicles?
a. Please supply all structural analysis and scientific data available to support a new performance standard.
5. For a single cargo tank, what is the cost of ensuring that the cargo tank attachment pads meet the 2-inch setback requirement? You may describe these costs in terms of the needed labor and equipment.
6. Aggregated to all affected cargo tanks, what is the cost to the industry to comply with the 2-inch setback requirement?
7. Does complying with the 2-inch setback requirement require any other design or manufacturing changes to the cargo tanks or mounting pads?
8. What data is available in support of the practice of attaching appurtenances, including accident damage protection devices to the cargo tank wall without a 2-inch setback? Does this data show that it offers an equivalent level of safety to using 2-inch setback?
When hydrostatic pressure tests for cargo tanks are required in part 180, subpart H, the HMR require that water or other similar viscosity liquid be used as the test medium (see § 180.407(g)(viii)). PHMSA understands that some stakeholders believe that the requirement to use water—or other similar viscosity liquid—may be unduly restrictive. PHMSA has authorized the use of alternate test mediums for portable tank testing (
1. Are there other liquids that may be safely and effectively used to hydrostatically test cargo tanks? Explain.
2. For any liquid(s) identified, what advantages does the material provide compared to water or a similar viscosity liquid? Discuss at least the economic, environmental, and safety advantages of the alternative material.
3. Do you support authorization to use a material other than water or a similar viscosity liquid for cargo tank hydrostatic tests? Explain.
4. Are there situations where the use of water was not suitable for a CTMV pressure test? If so, why?
5. Is it cost effective or beneficial to authorize alternative liquids to be used in limited applications for testing and inspecting of DOT specification cargo tanks used to transport specific types of hazardous material?
Section 180.407(d)(2)(viii) requires all major appurtenances and structural attachments on a cargo tank motor vehicle—and those elements of the upper coupler assembly that can be inspected without dismantling the upper coupler—must be inspected for any corrosion or damage that might prevent safe operation. There are currently no standards in the HMR to guide this determination for evaluating corrosion or damage to major appurtenances, structural attachments, and visible upper coupler elements.
PHMSA and FMCSA request comment on the following questions to evaluate the requirements in § 180.407(d)(2)(viii):
1. Do you support the creation of corrosion standards for visual examination, for example: “The thickness in the corroded areas must not be less than 10 percent below the calculated thickness, if available, or 10 percent of the nominal thickness of the structural attachment, whichever is less, but in no case less than 0.177 inches. In addition, the corroded area can be no greater than 10 percent of the area of the item being evaluated. King pin wear must be inspected in accordance with the manufacturer's inspection procedures.” Explain.
a. How frequently would a deficiency or failure be found at the 10 percent standard mentioned above?
b. Are the above criteria stricter or less strict than common visual inspection practices today? Explain.
2. When repair is necessary, how long is the cargo tank motor vehicle out of use?
3. How much time does a visual inspection take?
a. If an inspection is done to a quantified standard, what would be the difference in time needed to perform it?
b. Would additional diagnostic tools or methods be necessary? Please describe.
Sections 180.409(b)-(d) provide exceptions from the Registered
1. How many cargo tank inspections are conducted annually by persons not registered with the Department or not meeting the education and/or experience requirements of a “Registered Inspector” under the provisions of § 180.409(b)-(d)?
2. Would the removal of the exceptions in § 180.409(b)-(d) from the HMR impose any additional costs on cargo tank motor vehicle users? Please identify any costs and additional time burdens that would be created by such a requirement. If this requirement creates additional time burdens on employees, please identify the labor category (use Bureau of Labor Statistics labor categories, if possible) of the employees involved and the amount of time spent complying with the new requirement would take.
3. Are inspections conducted by those not registered more common for cargo tank users/owners in particular geographic or rural areas? More common for smaller carriers or firms? If so, please explain.
In the HMR, explosives are required to be segregated from each other based on the hazards and likelihood of initiation of different explosive types. The intention of these segregation requirements is to reduce the overall risk in transportation. The risk factors are encoded in the hazard classification of each explosive in the hazard division (Division 1.1, 1.2, etc.), and compatibility group (A, B, C, etc.), which are assigned to each explosive in its EX-approval. See §§ 173.50 and 173.52 for the definition of each explosive hazard class and compatibility group.
While the HMR's segregation requirements for explosives are usually based on hazard class and compatibility group, initiating or primary explosives present a particular hazard in transportation due to the risk of unintended initiation and must be further segregated from less sensitive explosives to avoid accidental explosive propagation in transportation. The general segregation requirements for explosives in highway transportation are found in the Compatibility Table for Class 1 (Explosive) Materials under § 177.848(f), and additional segregation requirements specific for detonator assemblies, boosters with detonators, and detonators are found in § 177.835(g). In § 177.835(g), the HMR has more conservative, separate requirements for detonator assemblies and boosters with detonators compared to the requirements for detonators.
Prior to harmonization with the UN Model Regulations in final rule HM-181
Detonator assemblies and boosters with detonators are prohibited from transportation in the same motor vehicle with Division 1.1, 1.2, or 1.3 explosive material (except other detonator assemblies, boosters with detonators or detonators), Division 1.4 detonating cord material, or Division 1.5 material. Detonators are prohibited from transportation in the same motor vehicle with Division 1.1, 1.2, or 1.3 material (except other detonators, detonator assemblies or boosters with detonators), and Division 1.4 detonating cord material, or Division 1.5 material, unless the detonators are packed in accordance with one of the exceptions in § 177.835(g)(1)-(3).
PHMSA is considering revising the segregation requirements for detonator assemblies to bring them in line with the additional flexibility offered to detonators in § 177.835(g)(1)-(3). Additionally, PHMSA is considering amending segregation requirements for Division 1.4S detonators and developing segregation requirements commensurate with the risk presented by articles similar to detonators, including “fuzes, detonating.” As stated in Letter of Interpretation 10-0107,
PHMSA requests comment on the following questions to gather information related to potential amendments of segregation requirements for primary initiating explosives:
1. Should detonator assemblies be eligible for the same segregation relief as detonators when transported by highway (
a. Why or why not?
b. Should distinctions be drawn between detonator assemblies based upon the hazard division (
c. Do you have any specific safety concerns with allowing detonator assemblies to be transported on the same motor vehicle with Division 1.1, 1.2, or 1.3 material detonating cord Division 1.4 material or Division 1.5 material if they are packaged in accordance with the requirements in § 177.835(g)(1)-(3)?
2. Are the packaging options in § 177.835(g)(1)-(3) appropriate for detonator assemblies? Explain.
3. If detonator assemblies were eligible for the same segregation relief as detonators, how many shipments of detonator assemblies per year would be conducted in motor vehicles containing Division 1.1, 1.2, or 1.3 explosive material (except other detonator assemblies, boosters with detonators, or detonators), detonating cord Division 1.4 material, or Division 1.5 material?
4. If detonator assemblies were eligible for the same segregation relief as detonators, would this create quantifiable cost savings or other benefits? If yes, please describe the cost savings or other benefits in detail.
5. Should PHMSA develop specific segregation requirements for articles that are similar to detonators, such as “fuzes, detonating,” including both those that do and do not incorporate protective features (
a. Approximately how many shipments of “fuzes, detonating” are transported by highway annually in the United States?
b. If PHMSA developed a less restrictive segregation requirement for “fuzes, detonating,” would it create cost savings or other benefits to explosives shippers or carriers? If so, please describe the cost savings or benefits in detail.
6. PHMSA is considering whether the risks associated with primary detonating explosives, when meeting UN 6(d) unconfined single package test criteria and classed as Division 1.4S, justifies further relief from segregation requirements.
a. Do you support creating segregation exceptions for primary detonating explosives classified as Division 1.4S? Explain.
b. If PHMSA developed a less restrictive segregation requirement for Division 1.4S detonating explosives, would it create cost savings or other benefits to explosives shippers or carriers? If so, please describe the cost savings or benefits in detail.
7. Are the manufacturers and shippers of both non-detonating/initiating explosives and detonators/initiating explosives typically the same firms?
MC-331 cargo tank motor vehicles, typically used to transport compressed gases, are required to be painted a white, aluminum, or similar reflecting color on the upper two-thirds of the area of the cargo tank, unless insulated or covered by a jacket made of aluminum, stainless steel, or other bright non-tarnishing metal (see § 178.337-1(d)). This requirement has been in place since the creation of the MC-331 specification in final rule Order 59-B
PHMSA is considering revising the requirement that the tank must be “painted,” and also whether a reflective covering could be used instead of paint. PHMSA and FMCSA are also aware, based on the volume of requests for letters of interpretations on this topic received in recent years, that there is significant confusion in the industry related to determining whether a particular color of wrap or paint meets the reflectivity requirement of this section. However, PHMSA and FMCSA have not received enough data to propose a specific reflectivity requirement to replace the current “white, aluminum, or similar reflecting color” standard. To address this issue, PHMSA seeks comment on the following questions:
1. Do you support the creation of a reflectivity performance standard for wrapped or painted MC-331 cargo tank motor vehicles to replace or in addition to the current requirement for the tank to be a “white, aluminum, or similar reflecting color?” Explain.
2. Please provide any relevant technical and scientific data or other information available to you to support the creation of a reflectivity performance standard for wraps or paint other than the existing regulatory requirement.
a. How often do cargo tank owner/operators repaint or recoat the tank motor vehicles to meet the specification requirements? Would this performance standard require re-painting or re-coating more or less often?
DOT and MC specification cargo tanks must be tested and inspected in accordance with the requirements of part 180, subpart E. Unless excepted in § 180.409, tests and inspections required to continue to operate a specification cargo tank in hazardous materials service must be conducted by an inspector who meets the following requirements:
• Is registered with the FMCSA in accordance with part 107, subpart F of the HMR;
• Is familiar with DOT-specification cargo tanks, and trained and experienced in use of the inspection and testing equipment needed; and
• Has the training and experience required to meet the definition of “Registered Inspector” in § 171.8 of the HMR.
PHMSA received a comment
PHMSA and FMCSA have received several safety recommendations from the National Transportation Safety Board (NTSB) related to the training and qualification of cargo tank Registered Inspectors. The NTSB issued Recommendations H-18-001 through H-18-006
1. The NTSB has recommended that PHMSA and FMCSA incorporate by reference the training and qualification requirements of the NBIC into the HMR for cargo tank inspectors (see Accident Summary Report NTSB/HAR-18/01/SUM PB2018-100361 and NTSB Safety Recommendation H-18-004). Do you support the incorporation of these training and qualification requirements for cargo tank Registered Inspectors into the HMR? Explain.
a. Will incorporation of the NBIC impose any additional costs on the cargo tank inspection community? If so, please identify specific provisions in the NBIC that will create additional cost burdens.
2. Are there other generally accepted industry standards that describe training requirements, recommendations, and best practices for cargo tank Registered Inspectors?
a. If yes, what are the alternative standards?
i. What is their cost to purchase (if any)?
ii. Are they available in electronic format?
iii. Are they primarily used in an international or domestic context?
b. How would you describe the equivalency of these alternative standards to the existing Registered Inspector requirements? Explain why you believe the alternative standards are equivalent to or superior to the existing Registered Inspector requirements.
3. Will the IBR of the NBIC or similar industry publications for the training and qualification of cargo tank Registered Inspectors ensure that all persons certified to inspect cargo tanks have the necessary knowledge, skills, and abilities to adequately perform inspections of cargo tanks to verify their safety?
a. If you support methods other than IBR of the NBIC to ensure that all persons certified to inspect cargo tanks have the necessary knowledge, skills, and abilities to adequately perform, please describe them, along with detailed justifications and descriptions of any additional cost burdens for the industry.
4. Should PHMSA revise the current education and experience requirements in the definition of “Registered Inspector” in § 171.8? Why or why not? If a new qualification or experience is suggested, please explain the reasoning behind your proposal. Current qualifications are listed below:
(1) Has an engineering degree and one year of work experience relating to the testing and inspection of cargo tanks;
(2) Has an associate degree in engineering and two years of work experience relating to the testing and inspection of cargo tanks;
(3) Has a high school diploma (or General Equivalency Diploma) and three years of work experience relating to the testing and inspection of cargo tanks; or
(4) Has at least three years' experience performing the duties of a Registered Inspector prior to September 1, 1991.
5. Do you support the creation of an additional option to meet the § 171.8 definition of “Registered Inspector” based on attending a training course on the test and inspection or assembly of cargo tank motor vehicles? Why or why not? For example, the proposed language would be as follows:
“Registered Inspector means a person registered with the Department in accordance with subpart F of part 107 of this chapter who has the knowledge and ability to determine whether a cargo tank motor vehicle conforms to the applicable observable and verifiable DOT specification and to perform the tests and inspections and/or perform assembly as prescribed in part 180, subpart E. A Registered Inspector meets the knowledge and ability requirements of this section by meeting any one of the following requirements:
(1-4) * * *; or
(5) Has successfully completed a course in the testing and inspection or assembly of cargo tank motor vehicles specific to part 180, subpart E, and the applicable sections of parts 171, 172, 173, and 178, including:
(A) The course must include written and performance evaluations, including actual inspection and testing or assembly of cargo tank motor vehicles specific to the person's certification;
(B) The training certification must document the specific tests and inspections; the cargo tank motor vehicle specifications; non-specification cargo tank motor vehicles requiring testing; and/or cargo tank motor vehicle special permits the person has been certified to inspect and test; and
(C) The certificate, a copy of the course training materials, and inspection documentation must be retained as long as the person performs Registered Inspector functions, and for one year thereafter.”
6. Do you support a provision that would indicate that a person may only gain the requisite experience to operate as a Registered Inspector by working under the direct supervision of another qualified Registered Inspector? Why or why not?
7. Do you support adding a specific requirement that Registered Inspectors must receive and document additional function-specific training (see § 172.704) prior to testing a different tank specification (
8. Should PHMSA create a requirement for initial certification of Registered Inspectors by a separate, 3rd party organization?
a. Who should assume the responsibility of ensuring that a Registered Inspectors has mastered the ability to perform the tasks outlined in the HM regulations?
b. What training/experience/qualifications/credentials would be needed for the person(s) who assume(s) the responsibility of ensuring that a Registered Inspectors is fully trained and qualified?
c. What should be the qualification standards for the 3rd party organization to create an initial certification of Registered Inspectors?
d. Please estimate any costs likely to be created by the adoption of a 3rd party certification system for Registered Inspectors.
PHMSA and FMCSA believe that the training and qualification of persons meeting the definition of a “Design Certifying Engineer” in § 171.8 needs to be updated to address issues that have been identified by FMCSA among DCE personnel. An individual must meet the definition of a DCE, and be registered with FMCSA (see part 107, subpart F), in order to approve the design of a DOT or MC specification cargo tank as specified in part 178, subpart J. Generally, a combination of work experience and education is necessary to ensure the person performing the function of the DCE can perform the tasks outlined in the HMR. PHMSA and FMCSA request comment on the following questions to evaluate the training and qualification of cargo tank DCEs:
1. Should PHMSA revise the current education and experience requirements in the definition of DCE in § 171.8 (current qualifications are listed below):
(1) Has an engineering degree and one year of work experience in cargo tank structural or mechanical design;
(2) Is currently registered as a professional engineer by appropriate authority of a state of the United States or a province of Canada; or
(3) Has at least three years' experience in performing the duties of a Design Certifying Engineer prior to September 1, 1991.
Why or why not? If a new qualification or experience is suggested, please explain the reasoning behind your proposal.
2. Should PHMSA create a requirement for initial certification of DCEs by a separate, 3rd party organization?
a. Who should assume the responsibility of ensuring that a DCE has mastered the ability to perform the tasks outlined in the HMR?
b. What training/experience/qualifications/credentials would be
c. What should be the qualification standards for the 3rd party organization to create an initial certification of DCEs?
PHMSA and FMCSA have encountered issues in verifying that cargo tank Registered Inspectors meet the required education and experience requirements, as defined in § 171.8. Lack of, or improper, documentation can indicate that the Registered Inspector lacks the experience and education to properly perform the functions of a Registered Inspector. PHMSA, in conjunction with FMCSA, request comment on the following questions to evaluate creating record retention requirements for Registered Inspectors:
1. Do you support requiring that Registered Inspectors and their employers be required to maintain documentation proving that the Registered Inspector meets the education and experience requirements of the § 171.8 definition for as long as they are employed as a Registered Inspector and for one year thereafter? Why or why not?
2. What additional burdens would the creation of this requirement impose on Registered Inspectors and their employers?
a. Please estimate the number of records (physical or digital) that would be created and maintained by Registered Inspectors and their employers, and the number of hours required to generate and maintain each record.
b. What categories of employees would be responsible for creating and maintaining these records? (Use Bureau of Labor Statistics labor categories, if possible.)
3. Who are the typical employers of Registered Inspectors? Self-employed or inspection firms?
PHMSA and FMCSA have encountered difficulties in verifying that cargo tank Design Certifying Engineers meet the required education and experience requirements, as defined in § 171.8. Lack of or improper documentation can indicate that the DCE lacks the experience and education to properly perform the functions that are required of a DCE. PHMSA, in conjunction with FMCSA, requests comment on the following questions to evaluate creating record retention requirements for DCEs:
1. Do you support requiring that DCEs and their employers be required to maintain documentation proving that the DCE meets the education and experience requirements of the § 171.8 definition for as long as they are employed as a DCE and for one year thereafter? Why or why not?
2. What additional burdens would the creation of this requirement impose on DCEs and their employers?
a. Please estimate the type and number of records (physical or digital) that would be created and maintained by DCEs and their employers, and the number of hours required to generate and maintain each record.
b. What categories of employees would be responsible for creating and maintaining these records? (Use Bureau of Labor Statistics labor categories, if possible.)
3. Who are the typical employers of Design Certifying Engineers? Self-employed or engineering firms?
PHMSA and FMCSA believe that the definition of “Registered Inspector” in § 171.8 needs to be updated to address issues that have been identified by FMCSA. An individual must meet the definition of Registered Inspector, with some exceptions provided in § 180.409, in order to conduct the tests and inspections required for continued service of cargo tank motor vehicles in part 180, subpart E. PHMSA and FMCSA are concerned that the current definition of “Registered Inspector” is insufficiently clear, creates confusion for new inspectors entering the field related to the type of experience required before beginning work as a Registered Inspector, and can also allow unqualified inspectors to continue to test and inspect cargo tanks. In particular, the phrase, “work experience relating to the testing and inspection of cargo tanks” has generated numerous questions and is insufficiently clear.
PHMSA, in conjunction with FMCSA, request comment on the following questions to evaluate potential modifications to the definition of “Registered Inspector:”
1. Should the phrase “relating to the testing and inspection of cargo tanks” be replaced with a phrase that more clearly communicates our expectation that the Registered Inspector's work experience directly relates to the continuing qualification of cargo tanks? Why or why not?
a. For example, “A Registered Inspector meets the knowledge and ability requirements of this section by meeting any one of the following requirements: (1) Has an engineering degree and at least one year of work experience
b. If you do not agree with the above example, please provide a suggested definition and explain the intended application of your revised definition.
2. Would this proposed revised definition have any impact on third-party groups that offer training courses for Registered Inspectors?
3. Does this proposed revised definition align with any industry standard definitions?
PHMSA and FMCSA believe that the definition of “Design Certifying Engineer” in § 171.8 needs to be updated to address issues that have been identified by FMCSA in cargo tank DCE personnel. An individual must meet the definition of DCE in order to approve the design of a DOT or MC specification cargo tank as specified in part 178, subpart J. PHMSA and FMCSA are concerned that the current definition of “Design Certifying Engineer” is insufficiently clear, creates unnecessary confusion for new engineers entering the field related to the type of experience required before beginning work as a DCE, and can also allow unqualified engineers to approve the design of cargo tanks. In particular, the phrase, “work experience in cargo tank structural or mechanical design” has generated numerous questions and is insufficiently clear.
PHMSA, in conjunction with FMCSA, request comment on the following questions to evaluate potential modifications to the definition of “Design Certifying Engineer:”
1. Should the phrase “in cargo tank structural or mechanical design” be replaced with a phrase that more clearly communicates our expectation that the DCE's work experience directly relates to the design of cargo tanks?
a. For example, “A Design Certifying Engineer meets the knowledge and ability requirements of this section by meeting any one of the following requirements: (1) Has an engineering degree and at least one year of work
b. If you do not agree with the above example, please provide a suggested definition and explain the intended application of your revised definition.
2. Would this proposed revised definition have any impact on 3rd party groups that offer training courses for Design Certifying Engineers?
3. Does this proposed revised definition align with any industry standard definitions?
On February 14, 2020, the National Transportation Safety Board (NTSB) issued four related safety recommendations to PHMSA and FRA.
• R-20-1—Work together to develop maximum coupling speed thresholds and impact mass limits for hazardous materials railcars.
• R-20-2—Require that tank cars involved in high-energy coupling-force events undergo a structural integrity inspection by a qualified technician before returning to service.
• R-20-3—Develop methods to identify tank cars that have sustained overspeed and high-energy coupling force events.
• R-20-4—After the successful development of methods to identify tank cars that have sustained overspeed and high-energy coupling force events, require that rail carriers have monitoring processes in place to promptly remove damaged tank cars from hazardous materials service.
The intent of this collection of safety recommendations is to prevent releases of hazardous materials from occurring due to damage to cars from overspeed or high-energy coupling events by: (1) minimizing the opportunity for these events; and (2) discovering damage in a timely manner so that corrective measures can be taken. PHMSA and FRA concur with the NTSB's conclusion that reducing overspeed and high-energy coupling-force events, inspecting the structural integrity of tank cars that have experienced these events, and identifying and removing tank cars damaged by these events is in the interest of improving tank car safety. In this ANPRM, we describe existing regulatory standards designed to address overspeed coupling, and seek comment from railroads, tank car shippers, tank car manufacturers, tank car owners, and any other interested parties on the best means to address this issue.
The HMR address tank car coupling speed in § 174.83(b) for certain materials:
• Division 1.1 and 1.2 explosives;
• Division 2.3 Hazard Zone A gas;
• Division 6.1 PG I Hazard Zone A material;
• Class DOT 113 tank car displaying a Division 2.1 (flammable gas) placard, including a Class DOT 113 tank car containing only a residue of a Division 2.1 material.
Section 174.83(b) requires that tank cars containing these materials may not be cut off while in motion, coupled into with more force than is necessary to complete the coupling, or struck by any car moving under its own momentum. Section 174.83(e) addresses flatcar coupling as follows: “No placarded flatcar or any flatcar carrying a placarded transport vehicle, freight container, or bulk packaging may be coupled into with more force than is necessary to complete the coupling.”
Voluntary rail industry standards also address tank car coupling speeds. AAR Circular OT-55-Q states, “Maximum reasonable efforts will be made to achieve coupling of loaded placarded tank cars at speeds not to exceed 4 mph.”
Transport Canada has implemented coupling speed standards and inspection requirements for tank cars that experience overspeed coupling events in Section 10.7 of the Transportation of Dangerous Goods (TDG) Regulations.
Additionally, the person in possession of the tank car when the overspeed coupling event occurs must submit a written report to the tank car's owner within 10 days, informing the owner of the overspeed coupling event. The tank car owner must then ensure the tank car is not used in hazardous materials service, other than the lading
FRA and PHMSA note that the standards adopted by Transport Canada in the TDG Regulations align with the intent of NTSB Safety Recommendations R-20-1 and R-20-2, in that they address coupling speed thresholds and impact mass limits, as well as require a detailed structural integrity inspection for tank cars that experience coupling events beyond the coupling speed and mass thresholds. However, Safety Recommendations R-20-3 and R-20-4, for identification of cars that experience overspeed coupling events, and rail carrier monitoring procedures to remove a tank car damaged in an overspeed coupling event from service, do not currently have a direct precedent in American, Canadian, or voluntary industry standards. While there are technologies in use to monitor coupling speeds, neither PHMSA nor FRA believe that a systematic, industry-wide process has been implemented to monitor overspeed coupling. Since no systematic overspeed coupling monitoring system exists, a system for carrier identification of tank cars that have experienced overspeed coupling events would also need to be developed. With consideration of the existing coupling speed standards, and recognition of the need to gather more information to develop monitoring system standards, PHMSA and FRA request comment on the following questions:
1. Do you support adoption of the Transport Canada coupling speed and impact mass standards, described above, into the HMR? Why or why not? Please support your position with any data or information available to you.
2. Do you support requiring a visual inspection of the tank car underframe, and coupling and cushioning components immediately (within 2 km, or 1.25 miles) after an overspeed coupling event that exceeds certain speed and impact mass standards? Why or why not? Please support your position with any data or information available to you.
a. Is requiring an immediate visual inspection of the tank car before the train moves 2 km (1.25 miles) miles a reasonable standard? What alternatives should be considered? Explain.
b. If this requirement was adopted, who would/should conduct the inspection? Are railroad personnel trained/qualified to perform the inspection?
c. How much time would each visual inspection require?
d. What costs would be associated with the adoption of this requirement? Provide a quantified estimate, if possible.
3. Do you support requiring a detailed structural integrity inspection, conducted at a certified tank car facility, for a tank car subjected to a coupling that exceeds certain speed and impact mass standards? Why or why not? Please support your position with any data or information available to you.
a. If this requirement was adopted, how much would inspection services cost a tank car owner? Please include estimates for time out of service, inspection labor, recordkeeping, and all other costs associated with a structural integrity inspection.
4. What methods or procedures are currently in use to measure tank car coupling speeds and avoid high-energy, overspeed coupling events?
5. What methods or procedures are currently in use to identify tank cars that have experienced high-energy, overspeed coupling events?
6. Describe a system that could be used to measure all tank car coupling events and identify tank cars that have experienced a high-energy, overspeed coupling event. The system should use existing methods, procedures, and available technologies to the extent practical.
a. How much would it cost to develop and implement such a system? Estimates are acceptable. Please provide as detailed a cost breakdown as possible addressing research and development (if required), capital expenditures, employee wages, etc. associated with your estimate.
b. How much would it cost to maintain such a system? Estimates are acceptable. Please provide as detailed a cost breakdown as possible addressing capital expenditures, employee wages, etc. associated with your estimate.
c. Who would bear the costs for the development, implementation, and maintenance of the system you describe?
d. If such a system was implemented, would you support a requirement that the person in possession of a tank car that experiences a high-energy, overspeed coupling event must report all such events to the tank car owner and/or the Department of Transportation, regardless of whether the event results in the release of hazardous materials? Why or why not? In your estimation, how many such reports would be filed nationwide annually, if such a requirement was adopted?
7. Please provide any information available to you on the rate of high-energy or overspeed coupling events that occur without causing an immediate release of hazardous materials. How often do high-energy or overspeed coupling events occur with no immediate release of hazardous materials?
8. In consideration of the intent of the safety recommendations, rather than imposing a speed or impact mass standard and associated procedures, what alternative measures could be implemented to arrive at the same goal of preventing incidents that result in the release of a hazardous material because of damage to a tank car from overspeed and high energy coupling events?
Section 172.516 details the visibility and display of placards. Paragraph (a) specifies that each placard on a motor vehicle or rail car must be “clearly visible from the direction it faces, except from the direction of another transport vehicle or rail car to which the motor vehicle or rail car is coupled.” Furthermore, this paragraph indicates that placards displayed on a freight container or portable tank can be used to meet this visibility requirement.
PHMSA has received several requests for letters of interpretation on whether placards displayed on IBCs or shrink-wrapped pallets containing multiple non-bulk packages of hazardous materials may be used to meet the § 172.516 visibility requirement, in addition to those placards displayed on a freight container or portable tank. Examples of these letters include 20-0025
To evaluate the feasibility revising the placard visibility requirements in the HMR to allow motor vehicle placard display to be accomplished by displaying placards on IBCs, shrink-wrapped pallets, or other arrangements besides freight containers or portable
1. In your opinion, should PHMSA revise § 172.516 to clearly authorize motor vehicle placard display on IBCs, shrink-wrapped pallets containing non-bulk packages, or other arrangements that permit adequate visibility of placards for each direction they face? Why or why not?
2. Would placards displayed on IBCs or shrink-wrapped pallets containing non-bulk packages be as visible and recognizable in normal transportation scenarios and accident scenarios compared to placards displayed on a freight container or portable tank?
3. Would a revision to § 172.516 to clearly authorize motor vehicle placard display on IBCs, shrink-wrapped pallets containing non-bulk packages, or other arrangements that permit adequate visibility of placards for each direction they face create any cost savings for hazardous material shippers or transporters? Please provide a cost-savings estimate per shipment, including time savings, if applicable.
Emerging energy storage, transportation, and carbon sequestration technologies are at the forefront of efforts to meet Executive Order 14008 (“Tackling the Climate Crisis at Home and Abroad”).
1. Please identify any revisions in the HMR required to facilitate the adoption of new and emerging technologies.
a. Include information and arguments that support your proposed action, including relevant technical and scientific data.
b. Include any specific cases that support or demonstrate the need for your proposed action.
2. Please provide information about the following:
a. The costs, savings, and safety or environmental benefits of your proposed action to society in general and to identifiable groups such as specific companies or industries affected by your proposal.
b. The regulatory burden of your proposed action on small businesses, small organizations, small governmental jurisdictions, and Indian tribes.
c. The recordkeeping and reporting burdens of your proposed action and whom they would affect.
d. The direct effects, including preemption effects under 49 U.S.C. 5125 of federal hazardous materials transportation law, of your proposed action on states, on the relationship between the Federal Government and the states, and on the distribution of power and responsibilities among the various levels of government. (See 49 CFR part 107, subpart C, regarding preemption.)
e. The effect of your proposed action on the quality of the natural and social environments.