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Postal Service
Final rule.
The United States Postal Service (Postal Service), with the concurrence of the United States Office of Government Ethics (OGE), amends the Supplemental Standards of Ethical Conduct for Employees of the United States Postal Service by updating and refining outside employment and activity provisions (including prior approval requirements and prohibitions), by adding new requirements applicable to Postal Service Office of Inspector General (OIG) employees, Postal Service Governors, the Postmaster General, and the Deputy Postmaster General, and by making limited technical and ministerial changes. In response to the proposed rule, the Postal Service received two sets of comments, which it addresses here.
This rule is effective as of September 7, 2023.
Jessica Brewster-Johnson, Senior Ethics Counsel, United States Postal Service, 475 L'Enfant Plaza SW, Washington, DC 20260-1101, 202-268-6936.
In March 2022, the Postal Service proposed to amend the Supplemental Standards of Ethical Conduct for Employees of the United States Postal Service (Supplemental Standards), which are codified in 5 CFR part 7001. 87 FR 12888 (March 8, 2022). The proposed rule provided a 60 day comment period, which ended on May 9, 2022. The Postal Service received two timely and responsive comments in reply, which were submitted by one trade association and one private organization. The Postal Service now responds.
Commenter A, a private organization, contributed seven (7) suggested changes to the proposed rule. The Postal Service reviews and responds to each responsive comment in turn.
Commenter A “strongly supports the Postal Service's efforts to establish firm prohibitions that bar the Board of Governors, their spouses, and their minor children from directly or indirectly acquiring or holding financial interests in postal competitors . . . [or] investments in publicly-traded companies that lease real estate to the Postal Service.” However, Commenter A recommended that the Postal Service broaden the prohibitions proposed at 5 CFR 7001.104(a)(1)(i) and (ii) (on acquiring or holding, directly or indirectly, “any financial interest in a person engaged in the delivery outside the mails of any type of mailable matter, except daily newspapers” or “any financial interest in a publicly-traded entity engaged primarily in the business of leasing real property to the Postal Service”) to apply also to the Postmaster General and the Deputy Postmaster General.
The Postal Service notes that the holdings of the Postmaster General and Deputy Postmaster General are carefully vetted, with recusals in place when necessary, for the purpose of ensuring that neither individual participates in any particular matter in a manner that violates any ethics statute or regulation or even in a manner that raises the mere appearance of a violation of these statutes and regulations. Nevertheless, for the reasons stated below, the Postal Service has determined that it is appropriate to extend the prohibitions proposed at 5 CFR 7001.104 to the Postmaster General and the Deputy Postmaster General, in addition to the Governors. Accordingly, the Postal Service has updated the language of § 7001.104 to require that the Postmaster General and the Deputy Postmaster General, in addition to the Governors, abstain from holding financial interests in Postal Service competitors or publicly-traded companies that lease real estate to the Postal Service.
The nine Governors, the Postmaster General, and the Deputy Postmaster General—who together constitute a complete Board of Governors—should all be subject to the same restrictions on holdings of postal competitors and publicly-traded lessors because they together constitute the highest echelons of the Postal Service.
Commenter A recommends that the Postal Service broaden the proposed restrictions of 5 CFR 7001.104 to “prohibit the Postmaster General, the Deputy Postmaster General and the . . . Governors from holding any financial interest, directly or indirectly, in a Postal Service contractor or subcontractor.” The Postal Service has
First, all Postal Service employees—including the Postmaster General and the Deputy Postmaster General—must recuse themselves from “participating personally and substantially in an official capacity in any particular matter in which, to [their] knowledge, [they] or any person whose interests are imputed to [them] . . . has a financial interest, if the particular matter will have a direct and predictable effect on that interest.” 18 U.S.C. 208(a)(“section 208”). In other words, no Postal Service employee—including those in leadership—may work personally and substantially on any particular matter that could have a direct and predictable effect on his or her financial interests (or the financial interests of those whose interests are imputed to him or her—
Financial interests in postal contractors and subcontractors also do not raise appearance concerns in the same way as financial interests in competitors and publicly traded lessors, which are covered by § 7001.104. While there are only a handful of postal competitors and only one publicly traded lessor to the Postal Service, there are thousands of postal contractors and subcontractors. Therefore, the primary concern addressed by proposed § 7001.104—that there is an appearance concern for the Governors, the Postmaster General or the Deputy Postmaster General to hold a financial interest in one of a handful of Postal Service competitors or in the one publicly traded lessor of the Postal Service, because of the highly visible nature of these entities—is not present with regard to the over 11,000 contractors and the multitude of subcontractors, many of whom are not publicly traded entities, or with regard to those entities with whom the Postal Service enters into local buy contracts. For example, if a Governor were to hold a financial interest in a small private company that has one contract with the Postal Service, so long as that Governor does not work on postal matters affecting that company, there is no conflicts concern and the level of appearance concerns is greatly reduced as compared to if that Governor owned a financial holding in one of the Postal Service's competitors or the sole publicly-traded lessor, whose visibility is pronounced. In other words, holding a financial interest in one of thousands of postal contractors or subcontractor presents negligible, if any, appearance issues.
The Governors, Postmaster General, and Deputy Postmaster General already must track, for conflicts of interest purposes, whether they hold financial interests in any entity that they may affect as part of their postal duties, and it would be overly burdensome, impractical, and unnecessary for them to have to track the entire universe of postal contractors and subcontractors for the purposes of avoiding minimal appearance concerns. For these reasons, the Postal Service declines to broaden 5 CFR 7001.104(a)(1) to include a broad blanket prohibition on holding financial interests in any of the wide universe of contractors and subcontractors.
Third, Commenter A recommends that 5 CFR 7001.104(a)(1)(ii) “should not only prohibit holdings in publicly-traded entities engaged primarily in the business of leasing real property to the Postal Service, but also prohibit holdings in privately-held entities engaged primarily in the business of leasing real property to the Postal Service.” The Postal Service declines this expansion of the entities covered by § 7001.104(a)(1)(ii), as such a prohibition is not necessary to prevent either an actual or apparent conflict of interest.
The Postal Service contracts with numerous privately-owned lessors (including many sole proprietors). These private lessors change frequently, are often relatively small, and are too numerous for covered individuals to effectively track (though of course the individuals must continue to track those outside entities who could be financially impacted as they perform their postal duties for conflicts analyses). This is in contrast to publicly-traded lessors, of which there is only one. Commenter A's suggestion is overbroad because it would require covered individuals to abstain from holding a financial interest in a private entity even if there is no overlap with the financial interests of that entity and his or her official postal duties. If a covered employee holds a financial interest in a private entity, he or she would already be prohibited from working on a matter affecting that entity under applicable conflicts rules. That will continue to be the case—though the Postal Service notes that an actual conflict is unlikely because the Board of Governors rarely would be called to address leasing matters.
What the Postal Service intends to address with 5 CFR 7001.104(a)(1)(ii), by prohibiting the covered individuals from holding a financial interest in the Postal Service's sole publicly traded lessor, is even the appearance of a conflict. The appearance of holding a financial interest in that sole, massive lessor is far greater than the potential appearance of a conflict when holding a financial interest in an entity that few know exists, such as for example a small, private, lessor that may potentially be a sole proprietorship, or have operations in just one small town. By contrast, the public lessor's sole business is to buy postal properties and sell those properties back to the Postal Service at a profit. If a covered individual were to hold a financial interest in that publicly traded lessor, there could be the appearance that the covered individual has divided loyalties—in other words, there could be the appearance of a conflict, even if there was not an actual conflict because the conflicts rule served its purpose to prevent one. The appearance of a conflict is what § 7001.104(a)(1)(ii) is designed to prevent. Holding a financial interest in a private lessor simply does not raise the same level of appearance concerns or questions regarding divided loyalties, and thus the Postal Service declines to include such lessors in the coverage of § 7001.104.
Fourth, Commenter A is concerned that the Designated Agency Ethics Official (DAEO) will not be required to consult with the Office of Government Ethics (OGE) before issuing waivers of prohibited financial interests pursuant to § 7001.104(d), which provides that the Postal Service's DAEO may, for good cause shown, grant a waiver “of any prohibited financial interest described in paragraph (a) or (c)(2) or (3) of this section.”
Although the Postal Service is required to—and does—consult with OGE when practicable prior to issuing waivers under section 208 (under 5 CFR 2640.303), the Postal Service need not
Fifth, Commenter A makes recommendations regarding how the Postal Service should apply certain of the prohibited holding provisions in § 7001.104(a). As discussed above, § 7001.104(a)(1) sets forth the financial interests that are restricted for the Governors (and, as expanded in this final rule, to the Postmaster General and Deputy Postmaster General); § 7001.104(a)(2) builds upon that restriction by noting that such individuals similarly should not “actively control the acquisition of or the holding of any financial interest described in paragraph (a)(1)(i) or (ii) of this section on behalf of any entity whose financial interests are imputed . . . under 18 U.S.C. 208.” The provision goes on to explain that the Postal Service does not deem an individual to “actively control” the financial interests of an entity for purposes of this provision if he or she merely directs the investment strategy, hires the entity's financial manager who selects the investments, or designates another employee to select the investments. Commenter A seems to suggest that the Postmaster General and Deputy Postmaster General—to whom the final rule applies restrictions of § 7001.104(a)(1), as suggested by Commenter A—should have a different standard than the Governors for evaluating when they “do[ ] not actively control the financial interests of an entity” relating to the § 7001.104(a)(2) restriction. Specifically, Commenter A suggests that the standards for determining whether the Postmaster General and Deputy Postmaster General “actively control” the financial interests of an entity “should be consistent with 5 CFR 2640.202(e).”
The Postal Service disagrees that the concept of “active[ ] control” in this restriction should be different for the Postmaster General and Deputy Postmaster General than for the Governors. As updated consistent with the discussions in this preamble, § 7001.104(a) will place requirements on Governors, the Postmaster General, and the Deputy Postmaster General to address appearance concerns. These requirements are above and beyond—and in addition to—the requirements that all Federal employees are subject to, under section 208 and the Standards of Ethical Conduct for Employees of the Executive Branch. Section 208 will continue to control when any real conflicts of interest are present. Therefore, the restrictions, which mirror the exemption to section 208 found in 5 CFR 2640.202(e), will apply to the Postmaster General and Deputy Postmaster General should an actual conflict arise.
Conversely, § 7001.104(a) is meant to address appearance concerns, as stated above. A reasonable person with the knowledge that a Governor, the Postmaster General or the Deputy Postmaster General actively controls the holdings of entity would have reason to question the loyalty of that individual when the entity invests in a competitor or the publicly held lessor. The same cannot be said when the entity invests in a competitor or the publicly held lessor, but the Governor, Postmaster General or Deputy Postmaster General does not actively control the acquisition of or holding of those financial interests, as described in § 7001.014(a)(2). As such, the standard that Commenter A suggests should be applied to PG and DPG is simply not necessary because we do not believe that there are any appearance concerns if the Postmaster General or the Deputy Postmaster is merely directing the investment strategy of the entity and hiring the entity's financial manager, who in turn selects the entity's investment, or designating another employee of the entity to select the entity's investments. Because the Postal Service is focused on the appearance of a conflict as opposed to an actual conflict, the Postal Service will apply § 7001.104(a)(2) in the same manner to the Postmaster General and the Deputy Postmaster General as it does to the Governors.
Sixth, Commenter A asks that the ethics review process for the position of Postmaster General be “strengthened and enhanced”—specifically through an accelerated process similar to that used for Presidential appointees subject to Senate confirmation (“PAS” nominees), which would require a new Postmaster General to enter into a written ethics agreement with the DAEO within 30 days of taking office and adhere to a 90-day time limit for divestiture.
The Postal Service notes that the vetting process for potential future Postmasters General is outside of the scope of this rulemaking. Regarding the substance of the commenter's suggestion, the Postal Service has every confidence in its current protocols for reviewing the financial interests of incoming Postmasters General, but does note that it is currently considering an enhanced framework under which prospective Postmasters General would be reviewed.
Last, Commenter A asks that the Postmaster General's ethics agreements, and any amendments thereto, be subject to review and approval by the Director of OGE and made publicly available on OGE's website, along with the Postmaster General's public financial disclosure reports and any waivers issued pursuant to 18 U.S.C. 208(b)(1) or by supplemental regulation.
First, with regard generally to what materials are publicly available on OGE's website, the Postal Service notes that it is not empowered to make that determination. OGE solely determines what materials it includes or excludes on its own website, pursuant to applicable law.
Second, as to the Postmaster General's public financial disclosure reports, they are already publicly available on OGE's website. While PAS officials' ethics agreements are available on OGE's website, the Postmaster General is not a PAS government official. As such, the Postal Service is not required to have OGE involved in developing an ethics agreement for the Postmaster General, as OGE is involved for PAS officials. Moreover, even if the Postmaster General were a PAS official, the Postal Service is not in the position to choose or determine what is posted on OGE's website and the question of whether the Postmaster General should be a PAS official, with all the requirements those positions entail, is far afield and outside of the scope of the Postal Service's authority and this rulemaking. Finally, no other PAS government official's waivers issued pursuant to 18 U.S.C. 208(b)(1) are published on OGE website and the Postal Service declines to treat the Postmaster General differently by requesting that his or her waivers be posted to OGE website or, in the case of waivers issued pursuant to Supplemental Standards, posted on the Postal Service's website. Notwithstanding the foregoing, the Postal Service notes that any waiver
Commenter B is a trade association. Commenter B's correspondence overall expressed optimism. In particular, Commenter B articulated the hope that the Postal Service's proposed changes to 5 CFR 7001.102 would positively affect the labor shortage currently faced by highway contract route (“HCR”) suppliers. Commenter B described the HCR driver shortage as part of a larger problem faced by the greater surface transportation industry that uniquely challenges HCR suppliers. Commenter B identified multiple factors causing the available labor pool to shrink, including matters both outside of the scope of this rulemaking and factors within the scope of this rulemaking, addressed here.
As stated above, Commenter B broadly supported the proposed change to 5 CFR 7001.102, which would permit a Postal Service employee to seek concurrent supplemental employment with HCR contractors if the employee obtained permission from the Ethics Office. Commenter B acknowledged that removing the outright prohibition on concurrent employment with the Postal Service and HCR suppliers and instituting a “case-by-case” analysis would permit HCR suppliers to hire some Postal Service employees—those whom the Ethics Office clears for part-time positions—as opposed to the prior situation, in which HCR suppliers were prohibited outright from hiring Postal Service employees. Commenter B hopes that this change would result in a larger pool of applicants for open HCR driver positions. If finalized, this Commenter opined, “the proposed rule would create a more flexible, dynamic workforce benefitting the transportation of mail throughout the nation.”
Nevertheless, Commenter B was apprehensive about whether the proposed approval process would result in delays. Specifically, it expressed concerns about potential delays caused by (1) the requirement that a Postal Service employee obtain a statement from the employee's supervisor for the Ethics Office to consider and (2) the requirement that the Ethics Office review the Postal Service employee's request and his or her manager's statement. Essentially, Commenter B opined that these two requirements would cause undue delay between when the employee decides to apply for an open supplier position and when he or she is able to obtain clearance from the Ethics Office to apply. Commenter B is concerned that these requirements, which would take time, could jeopardize the Postal Service employee's opportunity for employment with an HCR contractor because the HCR application process moves swiftly.
The Postal Service respectfully disagrees with Commenter B's characterization of the review requirements as delays, which connotes that the time taken to review is unnecessary. Rather, the Postal Service posits that the time needed to complete these requirements will be relatively short and that the perceived negatives of the approval process are outweighed by its benefits. Specifically, both requirements are essential for the Ethics Office to determine whether a Postal Service employee would run afoul of the criminal conflict of interest statute or other Federal ethics rules if he or she were hired by an HCR supplier. As to a timeframe for review, the Ethics Office will endeavor to review these requests within its already established practice of reviewing all ethics advice matters as quickly as possible and in a timely manner.
The Postal Service is cognizant of, and wishes to be attentive to, the needs of the supplier community and the time-sensitive nature of the application process, and understands that the requirement to obtain a statement from the employee's manager and approval from the Ethics Office will lengthen the time that it takes an employee to apply for a position with a supplier. However, the Ethics Office requires the information contained in the statement from the employee's manager, and time to review that information, in order to make a determination about whether the employee's application would be consistent with the ethics rules and statutes. And, as stated above, the Ethics Office will continue to respond as quickly as possible to all requests for review under this new provision.
In changing the rule from an outright prohibition on supplemental employment with an HCR to a case-by-case analysis via an approval process, the Postal Service will permit some Postal Service employees, as appropriate, to apply for concurrent employment with HCR suppliers—thus helping to alleviate the HCR driver shortage—while assisting Postal Service employees with remaining in compliance with the ethics rules and regulations.
As a final point, Commenter B raised a question regarding 5 CFR 7001.102, about which the Postal Service would like to offer clarification. Commenter B expressed concern that an employee who is a prospective applicant with an HCR may have to submit unnecessarily duplicative applications to the Ethics Office if he or she wished to work for more than one HCR supplier. In other words, it appears that Commenter B saw the proposed rule as requiring a Postal Service employee to submit one request per supplier. However, this is not the intention of the proposed rule. Postal Service employees seeking clearance to work for more than one HCR supplier may submit a single request to the Ethics Office and may obtain a single statement from their managers in support of that request.
The Postal Service did not receive any other comments other than those discussed above. For the reasons detailed in the preamble of the previously-issued Notice of Proposed Rulemaking, the Postal Service is, with the concurrence of the Office of Government Ethics, issuing the rule in final with only one change, to expand the coverage of 5 CFR 7001.104(a) to apply to the Postmaster General and the Deputy Postmaster General.
Conflict of interests, Ethical standards, Executive branch standards of conduct, Government employees.
For the reasons set forth in the preamble, the United States Postal Service, with the concurrence of the United States Office of Government Ethics, amends 5 CFR part 7001 as follows:
5 U.S.C. 7301; 5 U.S.C. Chapter 131; 39 U.S.C. 401; E.O. 12674, 54 FR 15159; 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547; 3 CFR 1990 Comp., p. 306; 5 CFR 2635.105, 2635.802, and 2635.803.
(a)
(1) Engage in outside employment or business activities that involve providing consultation, advice, or any subcontracting service, with respect to the operations, programs, or procedures of the Postal Service, to any person who
(2) Except as permitted by paragraph (b)(2) of this section, engage in outside employment or business activities with, for, or as a person engaged in:
(i) The operation of a commercial mail receiving agency registered with the Postal Service; or
(ii) The delivery outside the mails of any type of mailable matter, except daily newspapers.
(3) Engage in any fundraising (as defined in 5 CFR 2635.808(a)(1)), for-profit business activity, or sales activity, including the solicitation of business or the receipt of orders, for oneself or any other person, while on duty or in uniform, at any postal facility, or using any postal equipment. This paragraph does not prohibit an employee from engaging in fundraising at a postal facility as permitted in connection with the Combined Federal Campaign (CFC) under 5 CFR part 950.
(b)
(i) Engaging in outside employment or business activities with or for any person with whom the employee has official dealings on behalf of the Postal Service;
(ii) Engaging in outside employment or business activities with, for, or as a person who has interests that are:
(A) Substantially dependent upon, or potentially affected to a significant degree by, postal rates, fees, or classifications; or
(B) Substantially dependent upon providing goods or services to, or for use in connection with, the Postal Service; or
(iii) Engaging in outside employment or business activities with or for any Highway Contract Route (HCR) contractor.
(2)
(3)
(i) A brief description of the employee's official duties;
(ii) The name of the outside employer, or a statement that the employee will be engaging in employment or business activities on his or her own behalf;
(iii) The type of employment or business activities in which the outside employer, if any, is engaged;
(iv) The type of services to be performed by the employee in connection with the outside employment or business activities;
(v) A description of the employee's official dealings, if any, with the outside employer on behalf of the Postal Service; and
(vi) Any additional information requested by the Postal Service's Ethics Office that is needed to determine whether approval should be granted.
(4)
(c)
(i) Any knowing sale or lease of real estate to the Postal Service or to a Postal Service employee or contractor, regardless of the frequency of such sales or leases or whether the sale or lease is at fair market value;
(ii) Any ownership or control of a publicly-accessible online or physical storefront; and
(iii) Volunteer activities, if they regularly exceed 20 hours per week or when the employee holds an officer position in the organization.
(2)
(3)
(d)
(1)
(2)
(3) A
(4) A
(i) Primarily engaged in the business of publishing or distributing a publication mailed at Periodicals rates of postage;
(ii) Primarily engaged in the business of sending advertising, promotional, or other material on behalf of other persons through the mails;
(iii) Engaged in a commercial business that:
(A) Primarily utilizes the mails for the solicitation or receipt of orders for, or the delivery of, goods or services; and
(B) Can be expected to earn gross revenue exceeding $10,000 from utilizing the mails during the business's current fiscal year; or
(iv) Who is, or within the past 4 years has been, a party to a proceeding before the Postal Regulatory Commission.
(5)
(i) Providing goods or services under contract(s) with the Postal Service that in total can be expected to provide revenue exceeding $100,000 over the term(s) of the contract(s); or
(ii) Substantially engaged in the business of preparing items for others for mailing through the Postal Service.
(a)
(i) Any financial interest in a person engaged in the delivery outside the mails of any type of mailable matter, except daily newspapers; or
(ii) Any financial interest in a publicly-traded entity engaged primarily in the business of leasing real property to the Postal Service.
(2) No member of the Board of Governors shall actively control the acquisition of, or the holding of, any financial interest described in paragraph (a)(1)(i) or (ii) of this section, on behalf of any entity whose financial interests are imputed to them under 18 U.S.C. 208. A member of the Board of Governors actively controls the financial interests of an entity if he or she selects or dictates the entity's investments, such as stocks, bonds, commodities, or funds. A member of the Board of Governors does not actively control the financial interests of an entity if he or she merely directs the investment strategy of the entity, hires the entity's financial manager(s) who selects the
(b)
(1) Neither the member of the Board of Governors nor his or her spouse exercises active control over the financial interests held by the fund; and
(2) The fund does not have a stated policy of concentrating its investments in, as applicable, persons engaged in the delivery outside the mails of mailable matter, except daily newspapers, or persons engaged primarily in the business of leasing real property to the Postal Service.
(c)
(2)
(i) The member of the Board of Governors shall report the prohibited financial interest to the Postal Service's Designated Agency Ethics Official (DAEO) within 30 calendar days of the DAEO informing the member of the Board of Governors that such financial interests have become prohibited; and
(ii) The prohibited financial interest shall be divested within 90 calendar days of the DAEO informing the member of the Board of Governors that such financial interests have become prohibited, or as soon as possible thereafter if there are restrictions on divestiture.
(3)
(A) The member of the Board of Governors shall report the prohibited financial interest to the Postal Service's DAEO within 30 calendar days of its acquisition; and
(B) The prohibited financial interest shall be divested within 90 calendar days of its acquisition, or as soon as possible thereafter if there are restrictions on divestiture.
(ii) If an entity whose financial interests are actively controlled by a member of the Board of Governors acquires a financial interest described in paragraph (a)(1)(i) or (ii) of this section without specific intent to acquire it (such as through a gift) subsequent to a Governor's confirmation or the appointment of a Postmaster General or Deputy Postmaster General:
(A) The member of the Board of Governors shall report the prohibited financial interest to the Postal Service's DAEO within 30 calendar days of its acquisition; and
(B) The prohibited financial interest shall be divested within 90 calendar days of its acquisition, or as soon as possible thereafter if there are restrictions on divestiture.
(4)
(d)
(e)
U.S. Immigration and Customs Enforcement (ICE), Department of Homeland Security (DHS).
Interim final rule (IFR); request for comment.
DHS is revising its regulations governing service of bond notifications. Current regulations authorize ICE to serve documents in-person, or by certified, registered, or first-class (regular) mail. This IFR authorizes ICE to electronically serve bond-related notifications to obligors for immigration bonds. The ICE transition to electronic notifications for bond-related documents is part of an electronic bonds system ICE developed to simplify the posting of bonds.
This rule is effective as of September 7, 2023; comments must be received by September 7, 2023.
You may submit comments on this IFR, identified by DHS Docket No. ICEB-2021-0015, through the Federal eRulemaking Portal at
Comments submitted in a manner other than the one listed here, including emails or letters sent to DHS officials, will not be considered comments on the IFR and may not receive a response from DHS. Please note that DHS cannot accept any comments that are mailed, hand delivered, or couriered. In addition, DHS cannot accept mailed comments contained on any form of digital media storage devices, such as CDs/DVDs and USB drives. If you cannot submit your material using
Sharon Hageman, Deputy Assistant Director, Office of Regulatory Affairs and Policy, U.S. Immigration and Customs Enforcement, Department of Homeland Security, 500 12th Street SW, Mail Stop 5006, Washington, DC 20536. Telephone 202-732-6960 (not a toll-free number).
DHS encourages all interested parties to participate in this rulemaking by submitting written data, views, comments and arguments on all aspects of this IFR. Comments providing the most assistance to DHS will reference a specific portion of the IFR, explain the reason for any recommended change, and include the data, information, or authority that supports the recommended change. Under the guidelines of the Office of the Federal Register, all comments received will be posted to
To submit your comments online, go to
DHS will post comments to the Federal eRulemaking Portal at
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
You may consider limiting the amount of personal information that you provide in your voluntary public comment submission because anyone can electronically search comments received in any of DHS's dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For additional information, please read the Privacy and Security Notice posted on
The Homeland Security Act of 2002, Public Law 107-296, section 102, 116 Stat. 2135 (Nov. 25, 2002), 6 U.S.C. 112, and the Immigration and Nationality Act of 1952 (INA), as amended, section 103(a)(1), 8 U.S.C. 1103(a)(1), charge the Secretary of the Department of Homeland Security (DHS) (the Secretary) with administration and enforcement of the immigration and naturalization laws. The Secretary promulgates this interim final rule (IFR) under the broad authority to administer DHS, and the authorities provided under the Homeland Security Act of 2002, the immigration and nationality laws, and other delegated authority.
Over the past twenty years, Congress and the Executive Branch have promoted the use of electronic transactions and electronic records when feasible instead of relying solely upon in-person or paper transactions. Under the Government Paperwork Elimination Act (GPEA), Public Law 105-277, tit. XVII, section 1703, 112 Stat. 2681, 2681-749 (Oct. 21, 1998), 44
The Electronic Signatures in Global and National Commerce Act (E-SIGN Act), 15 U.S.C. 7001-7031, effective for most purposes on October 1, 2000, allows electronic records and signatures to be given the same effect as paper and ink documents.
The Secretary is charged with the administration and enforcement of laws relating to the immigration and naturalization of noncitizens and “shall [. . .] prescribe such forms of bond” as deemed necessary for carrying out the authority under the INA.
With respect to cash bonds, the Secretary delegated to the ICE Director the authority to “issue and execute detainers and warrants of arrest or removal, detain aliens, release aliens on bond and other appropriate conditions as provided by law . . .”
ICE's mission is to protect America from cross-border crime and illegal immigration that threaten national security and public safety.
Personal service is required in any proceeding initiated by DHS that has a proposed adverse effect on the recipient, if the recipient is confined to a penal or mental institution, or if the recipient is a minor under the age of 14 or mentally incompetent.
Routine service is not required by regulations but may be used when personal service is not required. Routine service includes mailing a notice by `ordinary' mail (first-class mail) addressed to the affected party or the party's attorney/representative at his or her last known address or notifying the party by electronic mail and posting the decision to the party's USCIS account if so requested by the party.
An immigration bond is a formal written guarantee by an obligor (an individual, entity, or surety company) posted as security for the amount noted on the face of the immigration bond. The bond assures ICE that the obligor will perform the obligations for the type of bond indicated on the Immigration Bond, Form I-352. The posting of immigration bonds can occur with the deposit of cash in the full principal amount of the bond, known as “cash bonds;”
An immigration bond may be posted by a surety company or a cash bond obligor (provided that the bond is approved by ICE). Surety bonds are bonds underwritten by a surety company certified to issue bonds on behalf of the Federal Government.
ICE approves and issues three different types of bonds.
•
•
•
Out of the 33,237 immigration bonds that ICE issued in 2020,
To trigger an obligor's performance, ICE issues a demand notice on Form I-340,
After an immigration bond is issued, depending on the type of, and action needed on the, bond, ICE may issue the following notification(s) to the bond obligor.
1.
2.
3.
4.
For surety bonds that have been breached, ICE issues an invoice with information about the government's collection processes to satisfy the requirement to notify the co-obligors of the demand for payment under 31 CFR 901.2. ICE may issue a demand letter to the co-obligors summarizing the facts supporting the breach determination and attaching documents that support the determination that a debt is owed.
DHS is amending its regulations to permit ICE to transition to a more modern, secure, and electronic environment. Initially, ICE's Enforcement and Removal Operations (ERO) Bond Management Unit will utilize electronic service in the immigration bonds context. Specifically, this IFR permits ICE to issue bond-related notifications to obligors electronically when enrolling in ICE's electronic bond systems: (1) Electronic Bonds Online System (eBONDS) and (2) Cash Electronic Bonds Online System (CeBONDS). This capability will improve security and transparency in the bond process and facilitate quicker information and communication to both the public and the government with minimal burden. ICE ERO is currently developing CeBONDS, a system that allows obligors to conveniently post ICE immigration cash bonds online without visiting an ICE office in-person.
ICE's CeBONDS system will permit the general public to post and pay bonds online. However, due to current regulations, ICE only permits
In 2010, ICE deployed the Electronic Bonds Online System (eBONDS), a web-based system designed to automate the issuance of ICE immigration bonds underwritten by surety companies and their agents.
The eBONDS system streamlined the processing and issuing of surety bonds and allowed a surety company and its agent to initiate and process an immigration bond online rather than appearing in person at an ICE office to request a bond be issued and approved. The eBONDS system enabled ICE offices to prepare and issue demand, breach, and cancellation notices directly to surety companies and their agents electronically. However, due to current regulations, eBONDS could not be fully implemented, in that ICE cannot electronically serve the bond-related notifications it generates unless the surety company agrees otherwise.
ICE is currently developing the CeBONDS system to allow cash bonds to be posted online. CeBONDS will incorporate the functionality of eBONDS to allow ICE to issue and serve all bond notices electronically to any cash bond obligor who registers with the CeBONDS system. This alternative method for issuing and serving cash bond notices will increase security, efficiency, and accessibility for both obligors and ICE. As stated above, no regulatory changes are needed to allow cash bond obligors to post bonds online. However, current regulations do not permit ICE to serve notifications electronically as they limit the available methods of service to those listed in 8 CFR 103.8(a)(1) and (2) (routine service and personal service). Without this rule, ICE cannot send electronic bond notifications using CeBONDS and eBONDS.
ICE currently prepares and serves paper bond notices for sureties and their agents who post bonds electronically in eBONDS but ICE prefers to shift to an entirely electronic process with the release of CeBONDS. Of the 33,237 approved immigration bonds that ICE issued in 2020, 25,751 were cash bonds.
The definition of means of “service” in 8 CFR part 103 will be amended to provide flexibility and promote the Federal Government's goal of building better digital service transformation.
DHS is adding two paragraphs to § 103.6, Immigration bonds, to specifically authorize ICE to send all bond-related notifications electronically to cash bond obligors and surety companies and their agents who post an immigration bond using the eBONDS or CeBONDS. Because an obligor must login to eBONDS or CeBONDS with a unique password, an electronic record from the ICE bonds system indicating that the obligor opened a particular notification will serve as valid proof of receipt service of the notice.
Proof of service functions as a receipt confirming the delivery of documents from one party to another. ICE will verify that the email provided by the noncitizen or the person authorized to accept service on behalf of the noncitizen is valid users cannot create an online account if their email is not validated. ICE will generally perform a validity check as part of the sign-up process for receiving electronic bond-related notices which is common practice with establishing online accounts and notifications.
ICE's eBONDS system allows surety companies or their agents to initiate and process immigration bonds online rather than appear in person at an ICE office to request a bond be issued and approved. eBONDS also enables ICE to generate electronic bond-related notifications to surety companies and their agents, although those notifications cannot be served electronically under current regulations.
ICE's CeBONDS system will use the same processes and procedures for cash bonds. Within CeBONDS the cash bond obligor is responsible for ensuring that the email address provided is current and that email settings (such as spam and other filters) will allow ICE electronic bond-related notifications to be received. It is the responsibility of the cash bond obligor to ensure that electronic bond-related notifications can be received.
When developed and fully implemented, CeBONDS will notify the cash bond obligor by generating an email notification that a document is in their account so the obligor can log into the system to view the “queue” organized by a unique identifier for each bond (coinciding with each notification issued). To view the bond-related notification, the cash bond obligor clicks on an attachment. Obligors will be able to view, download, and print the bond form and any bond-related notification issued by ICE. Similar to eBONDS, CeBONDS will electronically record the date and time the obligor opened the document, so ICE has proof of receipt of the electronic bond-related notification.
ICE built safeguards into eBONDS and CeBONDS to ensure both surety companies and individuals posting bonds actually receive their electronic bond-related notifications. The systems will confirm that obligors and surety companies (or their agents) that post bonds electronically have the ability to send and receive emails and are aware that bond-related notifications will be sent by email.
For surety companies, their agents, and cash bond obligors posting multiple bonds, ICE will allow the obligors to post a new bond when all notifications are opened within seven calendar days of being sent. eBONDS tracks, and when fully developed in the future CeBONDS will track, “unopened” notifications. Obligors who are not in compliance with this requirement will be placed in a “deficient electronic recipient” category and be prevented from posting new bonds in the electronic systems. This safeguard ensures that bond obligors open electronically served bond-related notifications in a timely fashion and are aware of any significant actions taken on the bond. For obligors in the “deficient electronic recipient” category, ICE will reissue bond-related demand notifications by mailing them using a tracking method, such as certified or registered mail with a return receipt requested and will reissue all other bond-related notifications by first-class mail to the obligor's last known address. ICE's eBONDS and CeBONDS systems default to electronic service of bond-related notifications, but if there is a problem with that electronic service ICE reverts to another permitted form of paper-based service. Once the system shows that the obligor complies with opening all electronic bond-related notifications within seven calendar days of being sent, the obligor may once again post new bonds electronically in eBONDS and CeBONDS.
An important goal of this IFR is to reduce situations where surety and cash bond notifications are sent by certified, registered, or regular mail but are not delivered to obligors who have moved after posting the bond. By authorizing electronic service, bond-related notifications are received quicker, electronic service can be verified in moments, and the number of bond-related notifications that are returned as undeliverable will be reduced. While these are all efficiencies gained for ICE, they are also benefits for surety companies, agents, and for individuals posting cash bonds for noncitizens or family members.
ICE does not intend to refuse surety companies or individuals from posting a bond in-person at the appropriate ICE office. Cash bond obligors and surety companies and their agents (on behalf of a noncitizen) still have the option to appear in person at an ICE office to request a bond be issued and approved. However, ICE intends to largely transition to an electronic environment for the posting of immigration bonds. ICE has developed eBONDS and CeBONDS, building in numerous safeguards and conveniences for the obligors. ICE anticipates high adoption of CeBONDS because it will be more convenient posting an immigration bond online rather than physically traveling to the appropriate ICE office. However, ICE recognizes that there will be instances where non-electronic bond-related notifications will have to be served by another authorized form of paper-based service (
A bond is a contract with obligations on both ICE and the obligor. When ICE approves an immigration bond, ICE engages in a governmental function pursuant to its statutory and regulatory authority.
Requiring obligors using eBONDS and CeBONDS to accept electronic notifications is permissible under the E-SIGN Act.
Further, because participation in eBONDS currently requires consent to receive electronic bond-related notifications, and participation in CeBONDS will require the same consent when that system is developed and fully implemented, ICE is not required to obtain separate or additional consent before issuing electronic bond-related notifications to obligors using CeBONDS or eBONDS for the changes made by this rule. All obligors posting bonds in eBONDS or CeBONDS must consent to receive electronic bond-related notifications as a pre-condition of enrolling in and using the systems. As such, any consent requirements of the E-SIGN Act will be satisfied.
DHS developed this rule after considering numerous statutes and Executive orders related to rulemaking. The sections below summarize the analyses based on a number of these statutes or Executive orders.
The APA requires agencies to provide public notice and seek public comment on substantive regulations.
Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
This IFR has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094. Accordingly, the rule has not been reviewed by the Office of Management and Budget. The analysis period of this rule covers 10 years to ensure it captures impacts that accrue over time. DHS expresses quantified impacts in 2021 dollars and uses discount rates of 3 and 7 percent, pursuant to Circular A-4.
DHS estimates that the IFR will have public costs and unquantified benefits, and result in cost-savings and unquantified benefits to the Government. The overall quantified impact of this rule is a net savings of $1,062,712 discounted at 3 percent and $655,278 discounted at 7 percent, with unquantified benefits expected to outweigh the unquantified costs. The rule is expected to expedite delivery and improve the reliability of service of bond-related notifications. In accounting for the costs and cost-savings of this IFR, ICE has assumed that all current obligors will transition to electronic notification within the first year of the publishing of this IFR. New bond obligors enrolling in CeBONDS or eBONDS will de facto agree to the use of electronic notifications as a feature of using these systems, though they will have the option to utilize physical notification under certain circumstances, such as an obligor lacking the means to access the internet. Lastly, while the analysis assumes that bond obligors will enroll in these services sooner rather than later, full adoption may ultimately depend on several factors, such as obligors being made aware of these changes, understanding the benefits of these provisions, and possessing the means to access the internet. Table 1 summarizes the findings of this regulatory impact analysis (RIA).
As part of its mission to enforce U.S. immigration laws, ICE currently issues a wide range of notices, decisions, and other documents to entities such as, but not limited to, universities, businesses, noncitizens, courts, and employees. Current regulations authorize ICE to serve documents in-person or by certified, registered, or regular mail. However, serving documents in this manner can take time and be more costly, compared to electronic methods of service. The IFR authorizes ICE to serve electronic bond-related notifications to obligors who enroll in CeBONDS and eBONDS.
Currently, ICE uses certified mail for the service of demand notices issued on delivery bonds so that ICE can confirm the date upon which an obligor receives the demand notice. Since 2010, ICE has employed eBONDS, which is a web-based system used primarily by surety agents and ICE to facilitate the ICE immigration bond management process. This system was implemented to allow surety agents the option to post surety bonds electronically for noncitizens determined by ICE to be eligible for release on bond. Additionally, eBONDS was built with functionality that included the ability to serve electronic bond-related notifications to surety companies and their agents within eBONDS for those companies who opted-in to electronic service, but due to current regulatory requirements for personal and routine service, that capability has not been implemented in eBONDS.
ICE estimates the economic effects of this IFR will be sustained indefinitely. ICE assumes a 10-year timeframe to outline, quantify, and monetize the costs and benefits of the rule, and to demonstrate its net effects.
With regard to bond-related notifications, ICE derived quantitative estimates of the costs that will be saved in ICE's operations, attributable to ICE serving the notifications electronically rather than through a non-electronic method. In order to calculate these estimates, this analysis assumes that full use of eBONDS and CeBONDS will require that current obligors transition from physical notifications to that of electronic notifications as they become familiar with the changes presented in this IFR. Based on input from ICE subject matter experts, this analysis also assumes that the majority of current bond obligors will adopt these services within the first year of publishing this rule to realize the benefits of electronic bond-related notifications, and will elect to use these services sooner rather than later. However, while the analysis assumes that the majority of bond obligors will utilize these systems, full adoption may ultimately depend on several factors, such as obligors being made aware of these changes, understanding the benefits of these provisions, and possessing the means to access the internet. Lastly, this estimate does not account for any change in the total number of notices that will occur in the future, or under circumstances when ICE needs to send paper notices
The IFR will affect ICE officers and all bond obligors who post immigration bonds online using CeBONDS or eBONDS. Once ICE has the ability to serve electronic notifications to bond obligors, ICE will begin to serve all bond-related notifications electronically to any obligor who chooses to post a bond electronically.
To account for these populations, ICE utilized its Bond Management Information System to collect and analyze data on surety companies and their agents that post bonds and data on individual obligors who post cash bonds. Using this information, ICE found that an average of 41,820 cash bonds were posted annually by obligors between fiscal years 2018 and 2020. Additionally, ICE found that between fiscal years 2018 and 2020, a total of 15 agents and 11 surety companies posted ICE immigration bonds on behalf of surety bond obligors. Combined, these representatives posted bonds for an average 8,190 obligors. Table 2 displays this information below by fiscal year and category of bonds.
This section details the regulatory baseline for this IFR. The table below provides a summary of the anticipated changes to baseline conditions due to this IFR.
Currently, ICE uses routine service as defined by 8 CFR 103.8(a)(1) to serve breach notices, cancellation notices, and notices of bond breach reconsideration decisions. ICE performs the routine service by sending first-class mail to the obligor's last known address. ICE also uses routine service to serve invoices and demand letters to surety companies and their agents, sending them either by regular mail, an alternative mailing method that allows ICE to track and confirm delivery, or email (with the co-obligors' consent).
Additionally, ICE uses personal service as defined by 8 CFR 103.8(a)(2)
To establish a baseline analysis for all bond-related notices, ICE calculated the average number of notifications served by mail per year, of each type of immigration bond, based on data from 2018 to 2020 (Table 4). ICE found the average number of all types of notifications per year to be 45,358.
ICE anticipates that, in the absence of this rulemaking, the agency would continue to serve all bond-related notifications using personal or routine service, at a cost to both the Federal Government and the recipients. ICE would still be required to process and serve notifications manually, and bond obligors would continue to receive physical notifications via an authorized form of paper-based service.
This alternative electronic method of ICE's process for serving bond notices has the potential to introduce familiarization, technology, and opportunity costs to the affected population.
In addition to those being directly regulated by the rule, a wide variety of other entities would likely choose to read the rule and incur familiarization costs. For example, surety companies and noncitizens may want to become familiar with the provisions of this rule. At approximately 16,800 words, ICE estimates the time that would be necessary to read the IFR would be approximately 56 to 67.2 minutes per person, resulting in opportunity costs of time. Congruent with other DHS impact analyses, ICE assumes the average professional reads technical documents at a rate of 250 to 300 words per minute.
While the analysis assumes the majority of bond obligors will utilize these systems, there are many factors which may impact the adoption of CeBONDS, such as awareness of the system and internet access. Given this, ICE can provide a estimate for the number of people that would familiarize themselves with this rule based on expected users. To estimate this population, ICE utilized counts of bond obligors
Lastly, in order to determine the cost of new obligors entering the pool and creating new accounts over the time horizon, ICE utilized prior cash bond obligor population data from fiscal years 2018 to 2020 to project that an average of 41,820 new cash bond obligors would create accounts each year. This would equate to a total cost to the public of $2,639,006 over 10 years.
ICE also identified additional unquantified costs that could result from this IFR.
Table 5 summarizes the quantified impact of this IFR. The total monetized costs of the rule do not include the development and annual maintenance costs required to operate the CeBONDS system given that they are not tied to this this IFR, as discussed above. The 10-year costs of the IFR are approximately $3.83 million and $3.37 million (in 2021 dollars) at 3 and 7 percent discount rates, respectively, and include the opportunity costs of familiarization and setting up an online account.
This alternative method of ICE's process for issuing electronic bond-related notifications is expected to reduce labor costs for the government by reducing the time needed to process these notices, and it will eventually significantly reduce, if not eliminate, the costs of material items such as postage and paper that would otherwise be incurred for notices that are physically mailed. As mentioned above, ICE calculates quantitative benefits based on the assumption that new obligors are incentivized toward adoption into the eBONDS and CeBONDS systems within the first year of publishing this IFR.
Table 7 summarizes the quantified cost savings of this interim final rule. The total monetized savings of the rule includes the average cost savings for ICE of replacing physically mailed notices (by certified, registered, or regular mail) with electronic bond-related notifications. In order to capture these cost savings over the time horizon of the analysis, ICE assumed a constant average rate of notices over a ten-year period. Thus, this estimate does not account for any change in the total number of notices that may occur in the future, or circumstances under which ICE needs to send paper notices by mail if emails fail, or the possibility of less than full adoption by the public. The 10-year cost-savings of the interim final rule in 2021 dollars are $4.9 million and $4.0 million at 3 and 7 percent discount rates, respectively.
This alternative method of ICE's process for issuing electronic bond-related notifications is expected to increase efficiency, accessibility, expedited delivery, and reliability of bond notices to the obligor. These benefits are described in more detail below.
ICE also intends to expedite delivery of notifications. For example, when an obligor chooses to post a bond online and receive bond-related notifications electronically, the system is designed to notify the obligor immediately by email when a notification has been issued. ICE, in turn, would also be able to confirm immediately the date that the cash bond obligor opens and
Before proposing service of electronic bond-related notifications, ICE evaluated one alternative option that would affect the entities subject to the rule requirements, namely the no action alternative. The details of this option are described below, and Table 8 presents the unquantified costs and benefits for this alternative.
ICE considered a “no action” alternative under which ICE would continue to serve bond-related notifications to obligors for immigration bonds using personal or routine service, at a cost to both the Federal Government and the recipients.
The opportunity costs associated with electing a “no action” alternative would be equivalent to the current average cost to ICE of sending physical notices by certified or first-class mail, which ICE estimated to be $573,470 per year. ICE would still be required to process and mail notifications by hand, and bond obligors would continue to receive physical notifications. This alternative also means that ICE would not be acting in alignment with government-wide efforts to transition agencies' business processes and recordkeeping to a fully electronic environment as encouraged by statutes like the Government Paperwork Elimination Act,
The cost savings and benefits associated with this action involve the development, familiarization, technology, and opportunity costs associated with implementing this IFR. Absent the requirement to use the CeBONDS system, bond obligors would not face the potential costs associated with learning about the IFR, acquiring the necessary technological means to access the internet, or the expended time in creating an eBONDS or CeBONDS account.
Additionally, any preference by obligors either to maintain physical records or to receive nonelectronic mail notices has already been considered in the development of IFR. As part of the process of deciding to post a bond electronically with ICE, the obligor will be informed that bond notifications will be served electronically, and the obligor must agree to receive them electronically. If the obligor does not wish to post a bond electronically or receive bond notifications electronically, the obligor may post the bond in-person at an ICE office and receive notifications via another form of authorized paper-based service.
The Regulatory Flexibility Act at 5 U.S.C. 603 requires agencies to consider the economic impact its rules will have on small entities. The term “small entities” comprises small business, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. However, a regulatory flexibility analysis is not required when a rule is exempt from notice and comment rulemaking. This IFR is exempt from the notice and comment rulemaking, as stated in the APA, 5 U.S.C. 551
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, DHS wants to assist small entities in understanding this rule so that they can better evaluate the effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction, and you have questions concerning the provisions or options for compliance; please consult ICE using the contact information provided in the
This rule is not a major rule as defined by 5 U.S.C. 804, also known as the “Congressional Review Act,” as enacted in section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, 110 Stat. 847, 868
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Unfunded Mandates Reform Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any year. Though this rule would not result in such an expenditure, DHS does discuss the effects of this rule elsewhere in this preamble.
All Departments are required to submit to OMB for review and approval any reporting or recordkeeping requirements inherent in a rule under the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, 109 Stat. 163 (codified at 44 U.S.C. 3501
With respect to immigration bonds, regardless of using either eBONDS today or CeBONDS in the future when fully implemented, there would be no changes to the reporting burden for the existing collection of information associated with Form I-352,
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. DHS has analyzed this rule under Executive Order 13132 and determined that it does not have implications for federalism.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988,
DHS analyzed this rule under Executive Order 13211,
The U.S. Department of Homeland Security Management Directive (MD) 023-01, Rev. 01 establish procedures that DHS and its Components use to comply with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4375, and the Council on Environmental Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500 through 1508.
CEQ regulations allow Federal agencies to establish categories of actions, which do not individually or cumulatively have a significant effect on the human environment and, therefore, do not require an Environmental Assessment or Environmental Impact Statement. 40 CFR 1508.4. The DHS Categorical Exclusions are listed in IM 023-01-001-01 Rev. 01, Appendix A, Table 1.
For an action to be categorically excluded, MD 023-01 requires the action to satisfy each of the following three conditions:
(1) The entire action clearly fits within one or more of the Categorical Exclusions;
(2) The action is not a piece of a larger action; and
(3) No extraordinary circumstances exist that create the potential for a significant environmental effect. IM 023-01-001-01 Rev. 01, sec. V(B)(2)(a)-(c). If the action does not clearly meet all three conditions, DHS or the Component prepares an Environmental Assessment or Environmental Impact Statement, according to CEQ requirements, MD 023-01, and IM 023-01-001-01 Rev. 01.
ICE has analyzed this rule under MD 023-01 Rev. 01 and IM 023-01-001-01 Rev.01. ICE has made the determination that this rulemaking action is one of a category of actions, which does not individually or cumulatively have a significant effect on the human environment. This IFR clearly fits within the Categorical Exclusion found in IM 023-01-001-01 Rev. 01, Appendix A, Table 1, number A3(d): “Promulgation of rules . . . that interpret or amend an existing regulation without changing its environmental effect.” This rule is not part of a larger action. This rule presents no extraordinary circumstances creating the potential for significant environmental effects. Therefore, this rule is categorically excluded from further NEPA review.
ICE seeks any comments or information that may lead to the discovery of any significant environmental effects from this IFR.
This rule does not have tribal implications under Executive Order 13175,
This rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630,
Executive Order 13045 requires agencies to consider the impacts of environmental health risk or safety risk that may disproportionately affect children. DHS has reviewed this rule and determined that this rule is not an economically significant rule and would not create an environmental risk to
The National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impracticable. Voluntary consensus standards are technical standards (
DHS has determined that this rule action will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat. 2681).
Administrative practice and procedures, Authority delegations (government agencies), Freedom of information, Privacy, Reporting and recordkeeping requirements, Surety bonds.
Accordingly, DHS amends chapter I of title 8 of the Code of Federal Regulations as follows:
5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304, 1356, 1365b; 31 U.S.C. 9701; Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1
(g)
(h)
In rule document 2023-03987, appearing on pages 14014 through 14045 in the issue of Monday, March 6, 2023, on page 14045, in the middle column, make the following correction to paragraph 5.1.2.:
5.1.2. PM
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Final rule; technical amendments.
On May 1, 2023, the U.S. Department of Energy (“DOE”) published a final rule adopting procedures for fans and blowers (hereafter the “May 2023 Final Rule”). This document corrects editorial and typographical errors in the May 2023 Final Rule. Neither the errors nor the corrections in this document affect the
Effective August 8, 2023.
Mr. Jeremy Dommu, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-9879. Email:
Ms. Amelia Whiting, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-2588. Email:
The May 2023 final rule established: (1) test procedures for fans and blowers and incorporated the relevant industry test standards for measuring the fan electrical power and determining the fan energy index (“FEI”) of fans and blowers other than air-circulating fans; (2) test procedure for air circulating fans measuring the fan airflow in cubic feet per minute per watt of electric power input (“CFM/Watt”); (3) supporting definitions; (4) requirements for alternative efficiency determination methods; and (5) sampling requirements. 88 FR 27312 (May 1, 2023).
Since the publication of the May 2023 Final Rule, DOE identified several typographical and editorial errors that could create confusion when conducting the DOE test procedure.
In the May 2023 Final Rule, in § 431.172, DOE introduced almost all definitions using “means the” or “means a” to describe each defined term. 88 FR 27312, 27389-27390. However, the definition of “air circulating fan discharge area” in § 431.172 of the regulatory text used a colon “:” rather than “means the” to introduce the definition. DOE replaces the colon “:” by “means the” to add consistency with how other definitions are presented. DOE notes that the meaning of the definition for “air circulating fan discharge area” is unchanged with this correction.
In the May 2023 Final Rule, DOE incorporated by reference AMCA 214-21, including the definitions of “fan static pressure” and “fan total pressure” in sections 3.41 and 3.43 of AMCA 214-21. 88 FR 27312, 27392. However, in the definition of “fan static air power” in § 431.172 of the regulatory text, the terms “static pressure” and “total pressure” are used without referencing the term “fan”. DOE is concerned that this may cause confusion as DOE incorporated the definitions of “fan static pressure” and “fan total pressure”,
DOE identified a missing hyphen in § 431.173, where the text reads as “ANSI/AMCA Standard 21016 (“AMCA 210-16”), rather than ANSI/AMCA Standard 210-16 (“AMCA 210-16”). 88 FR 27312, 27390. The reference should match the description in the preamble, which includes the hyphen. DOE corrects this to add the hyphen between 210 and 16.
Additionally, in the May 2023 Final Rule, the test procedure established for fans and blowers other than air circulating fans specifies that the applicable rating metric of FEI must be calculated using the electrical input power required to operate a fan in kilowatts (kW), abbreviated as “FEP”. 88 FR 27312, 27365. The May 2023 Final Rule generally uses the term “fan electrical input power” to designate the FEP throughout the preamble. 88 FR 27312, 27312, 27319, 27363, 27365, 27371. The preamble of the May 2023 Final Rule also uses the term “fan electrical power” to designate the FEP in one instance. 88 FR 27312, 27355. Further, in a number of places in the regulatory text, the term “fan electrical input power” and “fan electrical power” are used to describe the electrical input power to the fan in kilowatts (kW), abbreviated as “FEP”. 88 FR 27312, 27387, 27388, 27391, 27392, 27393. The May 2023 Final Rule also incorporates by reference AMCA 241-21 as the industry standards used to determine and define the FEP. In AMCA 214-21, the term “fan electrical power” is used to designate the FEP and defined in section 3 “Definitions” of AMCA 214-21, incorporated by reference. DOE believes that the use of “fan electrical input power” and “fan electrical power” to both designate the FEP may create confusion because only “fan electrical power” is the defined term. As such, DOE is correcting the regulatory text to only use “fan electrical power”, consistent with the definition in section 3 of AMCA 214-22, incorporated by reference, and replaces all instances of “fan electrical input power” with “fan electrical power”.
The preamble of the May 2023 Final Rule states that DOE is adopting the validation classes (1) through (9) and lists them as follows: (1) centrifugal housed; (2) radial housed; (3) centrifugal inline; (4) centrifugal unhoused; (5) centrifugal PRV exhaust; (6) centrifugal power roof ventilator (“PRV”) supply; (7) axial inline; (8) axial panel; (9) axial PRV. 88 FR 27312, 27373. The categories of PRVs are correctly listed in the preamble of the May 2023 Final Rule in footnote 20 where DOE specifies that PRVs include: Centrifugal PRV exhaust fans; Centrifugal PRV supply fans; and Axial PRVs, as defined in AMCA 214-21. 88 FR 27312, 27318. However, in the regulatory text, in § 429.70(n), DOE lists the following validation classes: centrifugal housed fan; radial housed fan; centrifugal inline fan; centrifugal unhoused fan; centrifugal power roof ventilator exhaust fan; centrifugal power roof ventilator supply fan; axial inline fan; axial panel fan; axial centrifugal power roof ventilator fan.” 88 FR 27312, 27388. DOE included the term “axial centrifugal power roof ventilator fan” as one of the validation classes instead of the correct term “axial power roof ventilator”. Similarly, the same error is included in § 431.174(a)(1), where DOE also used the term “axial centrifugal power roof ventilator fan” instead of “axial power roof ventilator” when listing the categories of fans in scope. 88 FR 27312, 27391. Therefore, DOE corrects this error and replaces the term “axial centrifugal power roof ventilator fan” by “axial power roof ventilator”.
In the May 2023 Final Rule, DOE established the metric for fans other than air circulating fans as the FEI, which is the fan energy index and represents the ratio of the electrical power of a reference fan to the electrical input power of the actual fan for which the FEI is calculated, both established at the same duty point. 88 FR 27312,
In the test procedure NOPR published on July 25, 2022, DOE proposed to incorporate by reference AMCA 214-21 for air circulating fans, which relies on the FEP and FEI metrics (“wire-to-air metrics”) for air circulating fans. 87 FR 44194, 44236-44237. In the May 2023 Final Rule, DOE established the metric for air circulating fans in terms of efficacy in cubic feet per minute per watt (“CFM/W”) for air circulating fans at maximum speed. 88 FR 27312, 27371. This is also reflected in the regulatory text in section 2.2.1 of appendix B to subpart J of part 431 where DOE states that “The air circulating fan efficacy (Eƒƒcirc) in cubic feet per minute (“CFM”) per watt (“W”) (“CFM/W”) at maximum speed must be determined in accordance with the applicable sections of AMCA 230-23 as listed in section 2.2.2 of this appendix”. 88 FR 27312, 27393. However, in the May 2023 Final Rule, in the regulatory text in § 431.174, the text was not updated to reflect the adopted metric and incorrectly references the FEI and FEP metrics as proposed in the July 2022 NOPR, as follows: “Determine the FEI and the fan electrical input power (“FEP”) or the weighted-average FEI and weighted-average FEP as applicable, using the test procedure set forth in appendix B of this subpart”. 88 FR 27312, 27391. DOE corrects this error such that the text reflects the correct efficacy metric in CFM/W adopted for air circulating fans in the May 2023 Final Rule, such that it reads: “Determine the air circulating fan efficacy in cubic feet per minute per watt at maximum speed using the test procedure set forth in appendix B of this subpart.”
In the May 2023 Final Rule, DOE stated that, although it incorporated by reference AMCA 214-21, it does not include section 6.5 of AMCA 214.21 in its test procedure. 88 FR 27312, 27350. Similarly, in the regulatory text, when listing the applicable section of AMCA 214-21 in section 0 of appendix A to subpart J of part 431, DOE did not list section 6.5 of AMCA 214-21. 88 FR 27312, 27392. DOE also did not list section 6.5 of AMCA 214-21 as an applicable section in Table 1 appendix A to subpart J of part 431.
In the May 2023 Final Rule, DOE adopted provisions to replace the motor efficiency values in Annex A of AMCA 214-21 with the values in Table 5 of 10 CFR 431.25. DOE stated that while the values are currently identical, referencing the CFR would ensure that the values of polyphase regulated motor efficiencies remain up to date with any potential future updates established by DOE. 88 FR 27312, 27349. In the regulatory text in § 429.69, to reflect this intent, DOE also states: “Manufacturers must update represented values to account for any change in the applicable motor standards in Table 5 of part 431 of this chapter”. In the regulatory text, DOE also included this provision in section 2.1 of appendix A to subpart J of part 431 as follows: “Where AMCA 214-21 refers to Annex A, “Polyphase Regulated Motor Efficiencies (Normative),” of AMCA 214-21, Table 5 of § 431.25 must be used instead.” However, because any potential future updates to electric motor energy conservation updates could appear in tables other than Table 5 of 10 CFR 431.25, DOE makes the following correction to reflect the intent of the preamble which is to remain up to date with any potential future updates established by DOE: “Polyphase Regulated Motor Efficiencies (Normative),” of AMCA 214-21, Table 5 of § 431.25 or the currently applicable standards in § 431.25 must be used instead.”
In the May 2023 Final Rule, DOE established stability criteria for testing both air circulating fans and fan and blowers other than air circulating fans. As part of the stability requirements for fans and blowers other than air circulating fans, DOE stated that it was adopting provisions to require that the stability will be evaluated and confirmed over at least three 60-second data collection intervals, and that the fan input power shall be monitored at least every 5 seconds over the 60-second data collection intervals. 88 FR 27312, 27360. In addition, DOE specified that the average fan speed from one data collection interval to the next must be within ±1 percent or 1 rpm, whichever is greater; and the average input power by reaction dynamometer, torque meter or calibrated motor must be within ±4 percent, or the average input power by electrical meter must be within ±2 percent of the mean or 1 watt, whichever is greater.
In addition, for the stability conditions for fans and blowers other than air circulating fans in section 2.4(b) of appendix A to subpart J of part 431, DOE identified that the units for recording input power are listed as “pound-force, pound-force-in, or watts.” 88 FR 27312, 27393. but the units should be “horsepower or watts.” The pound-force and pound-force-in were listed incorrectly and the horsepower or watts are the correct units, consistent with AMCA 214-21, incorporated by reference. Therefore, DOE is correcting this error and replacing the units for input power in section 2.4(b) in appendix A to subpart J of part 431with “horsepower or watts.”
DOE identified that in the description of the stability conditions for air circulating fans in section 2.5(b)(3) of appendix B to subpart J of part 431, DOE defines the stable load differential as
DOE identified inconsistencies in the rounding requirements for FEP for fans and blowers other than air circulating fans. Section 2.6 of appendix A to subpart J of part 431 specifies that FEP must be rounded to three significant figures, but § 429.69(a)(1)(ii) and (iv) specifies that any represented value of FEP, fan shaft input power, or other measure of energy consumption of a basic model for which consumers would favor a lower value must be rounded to the nearest hundredth. 88 FR 27312, 27387-27388, 27393. In the May 2023 Final Rule, DOE noted that it was adopting requirements that FEP (in kilowatts) shall be rounded to three significant figures. 88 FR 27312, 27364. DOE acknowledges that § 429.69(a)(1)(ii) and (iv) contains the incorrect rounding requirements and DOE is revising these sections to specify that FEP be rounded to three significant figures. Fan shaft input power and other measures of energy consumption of a basic model for which consumers would favor a lower value must still be rounded to the nearest hundredth.
Also, as part of the stability condition requirements for both air circulating fans and fans and blowers other than air circulating fans, in the May 2023 Final Rule, DOE adopted provisions in section 2.4(b)(3) of appendix A to subpart J of part 431 and section 2.5(b)(4) of appendix B to subpart J of part 431 that slope of the fan speed, input power, and load differential
In the May 2023 Final Rule, DOE incorporated by reference AMCA 230-23 and adopted by reference the equations for calculating ambient air density, as defined in Equations 8.5 and section 8.6 of AMCA 230-23. 88 FR 27312, 27393. However, DOE identified a typographical error in Equations 8.5 and section 8.6 of AMCA 230-23. The equations are given as:
As published, the regulatory text in the May 2023 Final Rule may result in confusion due to the errors discussed in section I of this document. Because this final rule would simply correct errors in the text without making substantive changes in the May 2023 Final Rule, the changes addressed in this document are technical in nature.
DOE has concluded that the determinations made pursuant to the various procedural requirements applicable to the May 2023 Final Rule remain unchanged for this final rule technical correction. These determinations are set forth in the May 2023 Final Rule. 88 FR 27312, 27383-27387.
Pursuant to the Administrative Procedure Act, 5 U.S.C. 553(b), DOE finds that there is good cause to not issue a separate notice to solicit public
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Intergovernmental relations, Reporting and recordkeeping requirements, Small businesses.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Incorporation by reference, Intergovernmental relations, Laboratories, Reporting and recordkeeping requirements, Small businesses.
This document of the Department of Energy was signed on July 19, 2023, by Francisco Alejandro Moreno Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
For the reasons stated in the preamble, DOE corrects parts 429 and 431 of chapter II, subchapter D, of title 10 of the Code of Federal Regulations by making the following correcting amendments:
42 U.S.C. 6291-6317; 28 U.S.C. 2461 note.
42 U.S.C. 6291-6317; 28 U.S.C. 2461 note.
(b) * * *
(1) ANSI/AMCA Standard 210-16 (“AMCA 210-16”), Laboratory Methods of Testing Fans for Certified Aerodynamic Performance Rating, ANSI-approved August 26, 2016; IBR approved for § 431.172; appendix A to this subpart. (Co-published as ASHRAE 51-16).
The revision read as follows:
(d)
2.1.
This section describes the test procedure for fans and blowers other than air circulating fans. In cases where there is a conflict, the provisions in this appendix take precedence over AMCA 214-21. Where AMCA 214-21 refers to Annex A, “Polyphase Regulated Motor Efficiencies (Normative),” of AMCA 214-21, Table 5 of § 431.25 or the currently applicable standards in § 431.25 must be used instead.
2.2.1.
The fan electrical power (FEPact) in kilowatts must be determined at every duty point specified by the manufacturer in accordance with one of the test methods listed in table 1, and the following sections of AMCA 214-21: Section 2, “References (Normative)”; Section 7, “Testing,” including the provisions of AMCA 210-16 and ISO 5801:2017 as referenced by Section 7 and
Testing must be performed in accordance with the required test configuration listed in Table 7.1 of AMCA 214-21. The following values must be determined in accordance with this appendix at each duty point specified by the manufacturer: fan airflow in cubic feet per minute; fan air density; fan total pressure in inches of water gauge for fans using a total pressure basis FEI in accordance with Table 7.1 of AMCA 214-21; fan static pressure in inches of water gauge for fans using a static pressure basis FEI in accordance with Table 7.1 of AMCA 214-21; fan speed in revolutions per minute; and fan shaft input power in horsepower for fans tested in accordance with sections 6.3 or 6.4 of AMCA 214-21.
In addition, if applying the equations in Section E.2 of Annex E of AMCA 214-21 for compressible flows, the compressibility coefficients must be included in the equations as applicable.
All measurements must be recorded at the resolution of the test instrumentation and calculations must be rounded to the number of significant digits present at the resolution of the test instrumentation.
In cases where there is a conflict, the provisions in AMCA 214-21 take precedence over AMCA 210-16 and ISO 5801:2017. In addition, the provisions in this appendix apply.
(b) After the fan has been run-in, record the fan speed in rpm and the input power (in horsepower or watts) at least every 5 seconds for at least three 60-second intervals. Readings shall be made simultaneously. Repeat these measurements over 60-second intervals until:
(2) The average input power from the last 60-second interval by reaction dynamometer, torque meter or calibrated motor must be ±4 percent, or the average input power by electrical meter must be ±2 percent of the mean or 1 watt, whichever is greater, compared to the average input power measured during the previous 60-second test interval; and
(3) The slopes of a linear fit trendline calculated from the individual data collected for fan speed and input power during at least three 60-second sampling intervals include both positive and negative values (
The revisions and addition read as follows:
0.1 AMCA 230-23:
(a) Section 4, “Definitions/Units of Measurement/Symbols,”;
(b) Section 5, “Instruments and Methods of Measurement,”;
(c) Section 6, “Equipment and Setup,”;
(d) Section 7, “Observations and Conduct of Test,”;
(e) Section 8, “Calculations,” excluding equations 8.5 and 8.6; and
(f) Section 9, “Report and Results of Test,”.
(b) * * *
(3) The average load differential of the last 120-second interval varies by less than the absolute value of 1 percent compared to the average load differential during the previous 120-second test interval; and
(4) The slopes of a linear fit trendline calculated from the individual data collected for fan speed, input power, and load differential during at least three 120-second intervals include both positive and negative values (e.g., two positive and one negative slope value or one positive and two negative slope values). If three positive or three negative slopes are determined in succession, additional sampling intervals are required until slopes from three successive 120-second intervals include both positive and negative values.
For any references to ambient air density, ρ0, in AMCA 230-23, calculate ρ0, expressed in kg/m3 when using SI units or lbm/ft3 when using I-P units, as follows:
Drug Enforcement Administration, Department of Justice.
Final rule.
The Drug Enforcement Administration (DEA) is revising existing regulations to expand access to medications for the treatment of opioid use disorder pursuant to the Easy Medication Access and Treatment for Opioid Addiction Act (the Act). The Act directed DEA to revise its regulation to allow practitioners to dispense not more than a three-day supply of narcotic drugs to one person or for one person's use at one time for the purpose of initiating maintenance treatment or detoxification treatment (or both).
This final rule is effective on August 8, 2023.
Scott A. Brinks, Regulatory Drafting and Policy Support Section, Diversion Control Division, Drug Enforcement Administration; Telephone: (571) 776-2265.
DEA implements and enforces the Comprehensive Drug Abuse Prevention and Control Act of 1970, often referred to as the Controlled Substances Act (CSA), and the Controlled Substances Import and Export Act (CSIEA), as amended.
As mandated by the CSA, DEA establishes and maintains a closed system of control for the manufacturing, distribution, and dispensing of controlled substances, and requires any person who manufactures, distributes, dispenses, imports, exports, or conducts research or chemical analysis with controlled substances to register with DEA.
To combat substance use disorders and assist individuals in receiving proper treatment, DEA published regulations in October 1974 to implement the Narcotic Addict Treatment Act of 1974 (NATA), allowing for practitioners to administer and dispense certain narcotic medications for detoxification or maintenance treatment as long as they were separately registered as a narcotic treatment program (NTP).
On December 11, 2020, the President signed the Easy Medication Access and Treatment for Opioid Addiction Act (the Act) into law as Public Law 116-215. One of the provisions of the Act directed DEA to revise 21 CFR 1306.07(b) “so that practitioners . . . are allowed to dispense not more than a three-day supply of narcotic drugs to one person or for one person's use at one time for the purpose of initiating
Allowing a practitioner to supply three days' worth of narcotic drugs at one time may help reduce these deaths by providing a short-term maintenance level of medications while arrangements are made for further, more permanent treatment. Therefore, DEA amends the regulatory language in 21 CFR 1306.07(b) as directed by Congress.
An agency may find good cause to exempt a rule from certain provisions of the Administrative Procedure Act (APA), including those requiring the publication of a prior notice of proposed rulemaking and the pre-promulgation opportunity for public comment, if such actions are determined to be unnecessary, impracticable, or contrary to the public interest.
The Centers for Disease Control and Prevention's (CDC) National Center for Health Statistics estimates 108,642 drug overdose deaths occurred in the U.S. during the 12-month period ending in February 2022, an increase of approximately 11,500 more people or nearly 12 percent more deaths than the previous year.
Additionally, under the APA, agencies must generally provide a 30-day delayed effective date for final rules.
This final rule was developed in accordance with the principles of Executive Orders (E.O.) 12866 and 13563. E.O. 12866 directs 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 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review as established in E.O. 12866.
After consideration of the economic, interagency, budgetary, legal, and policy implications of this final rule, DEA has determined that this rule is not a significant regulatory action under E.O. 12866, and accordingly it has not been reviewed by the Office of Management and Budget. While DEA is unable to quantify the benefits of this final rule, the potential benefits are anticipated to be disproportionally large compared to any cost associated with this rule.
This final rule amends DEA regulations to incorporate the Easy Medication Access and Treatment for Opioid Addiction Act (the Act). One of the provisions of the Act directed DEA to revise 21 CFR 1306.07(b) “so that practitioners . . . are allowed to dispense not more than a three-day supply of narcotic drugs to one person or for one person's use at one time for the purpose of initiating maintenance treatment or detoxification treatment (or both).” Below is the analysis of the revision to 21 CFR 1306.07(b).
DEA has examined the benefits and costs of this final rule and believes it is of net economic benefit. DEA does not have a good measure of the number of impacted patients or the number of patient-practitioner emergency treatment events pursuant to 21 CFR 1306.07(b). However, the analysis shows that, even on a per-patient basis, the rule will be of net benefit. DEA welcomes any comment on the number of affected patients and patient-provider encounters along with references and sources for information and data.
DEA examined two baseline scenarios based on types of patients impacted by the final rule. These two types form the two baselines from which the impact of the final rule is analyzed. While emergency treatment of acute withdrawal symptoms is not restricted to the emergency department (ED) of a hospital, DEA believes that the vast majority of the treatment is and will be performed at hospital EDs. Therefore, for the purposes of this analysis, DEA refers to “ED” as the location of emergency treatment.
DEA does not currently have a basis to estimate the number of each patient type. The analysis evaluates the impact of the final rule for a single emergency treatment event for both baseline scenarios. Additionally, there is a third possible patient type, where the patient returns for the second but not the third day of medication. However, this third type is not analyzed because the analysis of the two baseline scenarios described above is expected to provide the low and high estimates, and the impact of the third possible patient type is expected to be somewhere between the two baseline scenarios described above.
The analysis below examines the impact of the final rule in three general areas:
(1) Impact on treatment providers.
(2) Impact on patients.
(3) Cost and benefit of treatment.
Bureau of Labor Statistics (BLS) occupational wage data is used to calculate labor cost and cost savings for treatment providers and patients.
• 29-1228 Physicians, All Other; and Ophthalmologists, Except Pediatric, $85.70.
The occupation code that best represents the patient and the corresponding mean hourly wage is:
• 00-0000 All Occupations, $27.07.
Additionally, BLS reports that average benefits for private industry is 29.2 percent of total compensation. The 29.2 percent of total compensation equates to 41.2 percent (29.2 percent/70.8 percent) load on wages and salaries.
Table 1 lists the hourly wage, load, and loaded hourly wage for physicians ($85.70 + 35.31 = $121.01) and patients ($27.07 + $11.15 = $38.22) for each of the occupations.
Under current regulations, the patient returns for two additional visits, where the physician is estimated to spend time to examine and administer the narcotic drug for each of the visits. Additionally, the patient is expected to incur cost of travel to the ED.
Under the final rule, the patient is assumed to receive one day's dose during the emergency treatment and leave the treatment facility with dosages for the second and third days and would not need to return to the provider, saving costs for both provider and patient.
Additionally, DEA anticipates the ED will also save administrative cost from not needing to check-in and check-out a patient. However, DEA does not have a basis to quantify the administrative cost.
The economic impact for Returning Patients is detailed below:
(1)
(2)
(3)
(4)
(5)
In summary, for scenario 1, where the patients would have returned to the ED for the second- and third-days' medication, the final rule will allow for a considerable cost savings for both the patient and provider. The reduction in time in the ED for the patient represents the bulk of the benefit, or $229.32. Including cost savings for travel time and travel cost, the total cost savings per patient is $272.74. The provider is expected to have a time savings of $80.67 per patient.
Therefore, the combined net cost savings is $353.41 ($80.67 + $272.74) for each patient under baseline scenario 1.
Under current regulations, if the patient does not return, the patient will only receive one day of medication. The practitioner will have examined the patient and dispensed only one day of medication.
Under the final rule, the patient will be able to receive three days of medication with just one visit to the ED. The increased medication may lead to an improved patient outcome, resulting in benefits associated with lower societal cost of opioid use disorder, discussed below. Furthermore, additional physician's time will not be needed to dispense medication, resulting in time and cost savings to the ED.
The economic impact for One-time Patients is detailed below:
(1)
(2)
(3)
(4)
In the short term, the benefit is from a lower chance of an overdose or death following discharge from an ED. While not everyone seeking emergency treatment is an overdose patient, according to a 2020 study, “. . . emergency department patients with nonfatal opioid or sedative/hypnotic drug overdose have exceptionally high risks of death from unintentional overdose, suicide, and other causes. ED-based interventions offer potential for reducing these patients' overdose and other mortality risks.”
In the long term, initiating opioid treatment by dispensing up to three days' supply may increase the odds for a successful treatment of opioid use disorder. In a 2015 study of the efficacy of various interventions for opioid dependence, the study concludes that among opioid-dependent patients, ED-initiated buprenorphine treatment “significantly increased engagement in addiction treatment, reduced self-reported illicit opioid use, and decreased use of inpatient addiction treatment services.”
A study published in 2021 of the societal costs for OUD found that the “[C]osts for opioid use disorder and fatal opioid overdose in 2017 were estimated to be $1.02 trillion. The majority of the economic burden is due to reduced quality of life from opioid use disorder and the value of life lost due to fatal opioid overdose.”
In summary, for scenario 2, where patients would not have returned to the ED for second- and third-days' medication, the primary economic impact of this final rule is from improved patient outcomes. In the short
As discussed above, in order to obtain the patient outcome benefit, the only increased cost will be an increase in medication dispensed that will cost the patient an additional $32.86.
DEA examined the economic impact of the final rule for two baseline scenarios based on anticipated patient actions: (1) Returning Patients and (2) One-time Patients. As discussed above, this final rule is expected to have net positive benefits and costs.
For scenario 1, where the patients would have returned to the ED for second- and third-days' medication, the final rule is estimated to generate a total cost savings of $272.74 to each patient and a net cost savings to a provider of $80.67, for a combined net cost savings of $353.41 for each patient treated under baseline scenario 1.
For scenario 2, where patients would not have returned to the ED for second- and third-days' medication, the primary economic impact is from improved patient outcomes. In the short term, the benefit is a lower chance of an overdose or death following discharge from an ED. In the long term, initiating opioid treatment by dispensing up to three days' supply may increase the odds for a successful treatment of opioid use disorder, reducing the societal cost of opioid use disorder. As discussed above, the societal cost of non-fatal cost of OUD is approximately $224,000 per person per year, while the cost of this rule under scenario 2 is $32.86 per patient.
While DEA is unable to estimate the number of patients under scenario 1 or 2, DEA estimates that there is a net benefit for both scenarios, and therefore, the economic impact of this final rule will be a net benefit.
This final rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of E.O. 12988 to eliminate drafting errors and ambiguity, minimize litigation, provide a clear legal standard for affected conduct, and promote simplification and burden reduction.
This final rule does not have federalism implications warranting the application of E.O. 13132. The final rule does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
This final rule does not have tribal implications warranting the application of E.O. 13175. It does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) applies to rules that are subject to notice and comment under section 553(b) of the APA. As explained above, DEA has determined that there is good cause to exempt this final rule from pre-publication notice and comment. Consequently, the RFA does not apply to this final rule.
In accordance with the Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C. 1501
This final rule does not impose a new collection requirement under the Paperwork Reduction Act of 1995 (PRA).
This rulemaking is not a “major rule” under the Congressional Review Act.
This document of the Drug Enforcement Administration was signed on August 2, 2023, by Administrator Anne Milgram. That document with the original signature and date is maintained by DEA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DEA Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of DEA. This administrative process in no way alters the legal effect of this document upon publication in the
Drug traffic control, Prescription drugs.
For the reasons stated in the preamble, the Drug Enforcement Administration amends 21 CFR part 1306 as follows:
21 U.S.C. 821, 823, 829, 829a, 831, 871(b) unless otherwise noted.
(b) Nothing in this section shall prohibit a practitioner, who is not specifically registered to conduct a narcotic treatment program, from dispensing (but not prescribing) narcotic drugs, in accordance with applicable Federal, State, and local laws relating to controlled substances, to one person or for one person's use at one time for the purpose of initiating maintenance treatment or detoxification treatment (or both). Not more than a three-day supply of such medication may be dispensed to the person or for the person's use at one time while arrangements are being made for referral for treatment. Such
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS announces closure of the Pacific halibut recreational fishery in the California Coast subarea of the International Pacific Halibut Commission's regulatory Area 2A. The California Coast subarea will close on August 4, 2023 at 11:59 p.m. This action is intended to conserve Pacific halibut.
Effective August 4, 2023, at 11:59 p.m., through November 15, 2023.
Heather Fitch, 360-320-6549,
On April 11, 2023, NMFS published a final rule approving changes to the Pacific halibut Area 2A Catch Sharing Plan and implementing recreational (sport) management measures for the 2023 Area 2A recreational fisheries (88 FR 21503), as authorized by the Northern Pacific Halibut Act of 1982 (16 U.S.C. 773-773(k)). The Pacific Fishery Management Council (Council) 2023 Catch Sharing Plan provides a recommended framework for NMFS' annual management measures and subarea allocations based on the 2023 Area 2A Pacific halibut catch limit of 1,520,000 pounds (lb) (689 metric tons (mt)) set by the International Pacific Halibut Commission (IPHC). The Area 2A catch limit and recreational fishery allocations were adopted by the IPHC and were published in the
The final rule (88 FR 21503, April 11, 2023) opened the California Coast subarea May 1 through November 15, or until the subarea allocation is estimated to have been taken and the season is therefore closed, whichever is earlier. The California Coast subarea allocation is projected to be attained on August 4, 2023; therefore, the subarea will close on that date. Notice of the subarea closure will also be announced on the NMFS hotline at 206-526-6667 or 800-662-9825.
Weekly catch monitoring reports for the recreational fisheries in Washington, Oregon, and California are available on their respective state Fish and Wildlife agency websites. NMFS and the IPHC will continue to monitor recreational catches in open subareas via state sampling procedures until NMFS has determined there is not sufficient allocation for another full day of fishing, and the area is closed by the IPHC, or the season closes on September 30 in Washington and the Columbia River subarea or October 31 in Oregon, whichever is earlier.
NMFS issues this action pursuant to the Northern Pacific Halibut Act of 1982. This action is taken under the regulatory authority at 50 CFR 300.63(c)(3), and is exempt from review under Executive Order 12866.
Pursuant to 5 U.S.C. 553(b)(3)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest. The California Department of Fish and Wildlife provided updated landings data to NMFS on July 31, 2023, showing that through this date, fishery participants in the recreational fishery off of California had caught 95 percent of the California Coast subarea allocation. NMFS uses weekly catch rates to project when subarea allocations will be attained. This action should be implemented as soon as possible to provide sufficient notice to fishery participants of the subarea closure date. As this action closes the subarea on August 4, 2023, implementing this action through proposed and final rulemaking would risk exceeding the subarea allocation. Implementation of this rulemaking in a timely manner is necessary so that planning for the subarea closure can take place, and for business and personal decision making by the regulated public impacted by this action, which includes recreational charter fishing operations, associated port businesses, and private anglers who do not live near the coastal access points for this fishery, among others. To ensure the regulated public is fully aware of this action, notice of this regulatory action will also be provided to anglers through a telephone hotline, news release, and by the relevant state fish and wildlife agencies. No aspect of this action is controversial, and actions of this nature were anticipated in regulations at 50 CFR 300.63(c)(3).
For the reasons discussed above, there is also good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date and make this action effective August 4, 2023, as a delay in effectiveness of this action would risk exceeding the subarea allocation.
16 U.S.C. 773-773k.
Nuclear Regulatory Commission.
Proposed rule.
The U.S. Nuclear Regulatory Commission (NRC) is proposing to amend its regulations to incorporate by reference the 2021 Edition of the American Society of Mechanical Engineers Boiler and Pressure Vessel Code and the 2022 Edition of the American Society of Mechanical Engineers Operation and Maintenance of Nuclear Power Plants, Division 1: OM Code: Section IST, for nuclear power plants. This action is in accordance with the NRC's policy to periodically update the regulations to incorporate by reference new editions of the American Society of Mechanical Engineers Codes and is intended to maintain the safety of nuclear power plants and to make NRC activities more effective and efficient. This amendment also incorporates editorial changes that do not change the technical information.
Submit comments by October 23, 2023. Comments received after this date will be considered if it is practical to do so, but the NRC is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject); however, the NRC encourages electronic comment submission through the Federal rulemaking website:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Tyler Hammock, Office of Nuclear Material Safety and Safeguards, telephone: 301-415-1381, email:
The NRC is proposing to amend its regulations to incorporate by reference the 2021 Edition of the American Society of Mechanical Engineers (ASME)
The ASME periodically revises and updates its Codes for nuclear power plants by issuing new editions; this proposed rule is in accordance with the NRC's practice to incorporate those new editions into the NRC's regulations. This proposed rule maintains the safety of nuclear power plants, makes NRC activities more effective and efficient, and allows nuclear power plant licensees and applicants to take advantage of the latest ASME BPV and OM Codes (ASME Codes). The ASME is a voluntary consensus standards organization, and the ASME Codes are voluntary consensus standards. The NRC's use of the ASME Codes is consistent with applicable requirements of the National Technology Transfer and Advancement Act (NTTAA). See also Section XIII of this document, “Voluntary Consensus Standards.”
Major provisions of this proposed rule include the incorporation by reference with conditions of the following ASME Codes into NRC regulations and delineation of NRC requirements for the use of these Codes:
The NRC prepared a draft regulatory analysis to determine the expected costs and benefits of this proposed rule. The regulatory analysis identifies costs and benefits in both a quantitative fashion as well as in a qualitative fashion.
The analysis concludes that this proposed rule would result in a net quantitative averted cost to the industry and a net cost to the NRC. This proposed rule, relative to the regulatory baseline, would result in a net averted cost for industry of $0.65 million based on a 7-percent net present value (NPV) and $0.72 million based on a 3-percent NPV. This proposed rule, relative to the regulatory baseline, would result in a net cost to the NRC of $44 thousand based on a 7-percent NPV to $10 thousand based on a 3-percent NPV. Qualitative factors that were considered include regulatory stability and predictability, regulatory efficiency, and consistency with the NTTAA. The regulatory analysis shows that the rulemaking is justified because the total quantified benefits of the proposed regulatory action exceed the costs of the proposed action. When the qualitative benefits (including the safety benefit and improvement in knowledge) are considered together with the quantified benefits, the benefits outweigh the identified quantitative and qualitative costs.
The NRC has had a decades-long practice of approving and/or mandating the use of certain parts of editions and addenda of these ASME Codes in § 50.55a. Continuing this practice in this proposed rule ensures regulatory stability and predictability. This practice also provides consistency across the industry and provides assurance to the industry and the public that the NRC will continue to support the use of the most updated and technically sound techniques developed by the ASME to provide adequate protection to the public. In this regard, the ASME Codes are voluntary consensus standards developed by technical committees composed of mechanical engineers and others who represent the broad and varied interests of their industries, from manufacturers and installers to insurers, inspectors, distributors, regulatory agencies, and end users. The standards undergo extensive external review before the NRC considers whether to incorporate them by reference. Finally, the NRC's use of the ASME Codes is consistent with the NTTAA, which directs Federal agencies to adopt voluntary consensus standards instead of developing “government-unique” (
For more information, please see the draft regulatory analysis (Accession No. ML23032A316 in the NRC's Agencywide Documents Access and Management System (ADAMS)).
Please refer to Docket ID NRC-2018-0289 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:
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The NRC encourages electronic comment submission through the Federal rulemaking website (
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
The American Society of Mechanical Engineers develops and publishes the ASME BPV Code, which contains requirements for the design, construction, and inservice inspection (ISI) of nuclear power plant components, and the ASME OM Code,
The NRC's practice is to establish requirements for the design, construction, operation, ISI (examination), and IST of nuclear power plants by approving the use of editions of the ASME BPV and OM Codes (ASME Codes) in § 50.55a of title 10 of the
The ASME Codes are consensus standards developed by participants, including the NRC and licensees of nuclear power plants, who have broad and varied interests. The ASME's adoption of new editions of the ASME Codes does not mean that there is unanimity on every provision in the ASME Codes. There may be disagreement among the technical experts, including the NRC's representatives on the ASME Code committees and subcommittees, regarding the acceptability or desirability of a particular code provision included in an ASME-approved Code edition. If the NRC believes that there is a significant technical or regulatory concern with a provision in an ASME-approved Code edition being considered for incorporation by reference, then the NRC conditions the use of that provision when it incorporates by reference that ASME Code edition into its regulations. In some instances, the condition increases the level of safety afforded by the ASME Code provision, or addresses a regulatory issue not considered by the ASME. In other instances, where research data or experience has shown that certain code provisions are unnecessarily conservative, the condition may provide that the code provision need not be complied with in some or all respects. The NRC's conditions are included in § 50.55a, typically in paragraph (b) of that section. In a Staff Requirements Memorandum dated September 10, 1999 (ML003755050), the Commission indicated that NRC rulemakings adopting (incorporating by reference) a voluntary consensus standard must identify and justify each part of the standard that is not adopted. For this proposed rule, the provisions of the 2021 Edition of Section III, Division 1; the 2021 Edition of Section XI, Division 1, of the ASME BPV Code; and the 2022 Edition of the ASME OM Code that the NRC are not adopting, or are only partially adopting, are identified in the “Discussion,” “Regulatory Analysis,” and “Backfitting and Issue Finality” sections of this document. The provisions of those specific editions and Code Cases that are the subject of this proposed rule that the NRC finds to be conditionally acceptable, together with the applicable conditions, are also identified in the “Discussion,” “Regulatory Analysis,” and “Backfitting and Issue Finality” sections of this document.
The ASME Codes are voluntary consensus standards, and the NRC's incorporation by reference of these Codes is consistent with applicable requirements of the NTTAA. Additional discussion on the NRC's compliance with the NTTAA is set forth in Section XIII of this document, “Voluntary Consensus Standards.”
The NRC regulations incorporate by reference ASME Codes for nuclear power plants. This proposed rule is the latest in a series of rulemakings to amend the NRC's regulations to incorporate by reference revised and updated ASME Codes for nuclear power plants. This proposed rule is intended to maintain the safety of nuclear power plants and make NRC activities more effective and efficient.
The NRC follows a three-step process to determine acceptability of new provisions in new editions of the Codes and the need for conditions on the uses of these Codes. This process was employed in the review of the Codes that are the subjects of this proposed rule. First, the NRC actively participates with other ASME committee members with full involvement in discussions and technical debates in the development of new and revised Codes. This includes a technical justification of each new or revised Code. Second, the NRC's committee representatives discuss the Codes and technical justifications with other cognizant staff to ensure an adequate technical review. Third, the NRC position on each Code is reviewed and approved by NRC management as part of this proposed rule amending § 50.55a to incorporate by reference new editions of the ASME Codes and conditions on their use. This regulatory process, when considered together with the ASME's own process for developing and approving the ASME Codes, assures that the NRC approves for use only those new and revised code editions, with conditions as necessary, that provide reasonable assurance of adequate protection to the public health and safety, and that do not have significant adverse impacts on the environment.
The NRC reviewed changes to the Codes in the editions identified in this proposed rule. The NRC concluded, in accordance with the process for review of changes to the Codes, that these editions of the Codes are technically adequate, consistent with current NRC regulations, and approved for use with the specified conditions upon the conclusion of the rulemaking process.
The NRC is proposing to amend its regulations to incorporate by reference:
• The 2021 Editions of the ASME BPV Code, Section III, Division 1 and Section XI, Division 1, with conditions on their use.
• The 2022 Edition of Division 1 of the ASME OM Code, with conditions on its use.
The current regulations in § 50.55a(a)(1)(i) incorporate by reference ASME BPV Code, Section III, 1963 Edition through the 1970 Winter Addenda; and the 1971 Edition (Division 1) through the 2019 Edition (Division 1), subject to the conditions identified in current § 50.55a(b)(1)(i) through (xiii). This proposed rule would revise § 50.55a(a)(1)(i) to incorporate by reference the 2021 Edition (Division 1) of the ASME BPV Code, Section III.
The current regulations in § 50.55a(a)(1)(ii) incorporate by reference ASME BPV Code, Section XI, 1974 Edition through the 1975 Summer Addenda, the 1995 Edition (Division 1) through the 1997 Addenda (Division 1), and the 2001 Edition (Division 1) through the 2019 Edition (Division 1), subject to the conditions identified in current § 50.55a(b)(2)(i) through (xliii). This proposed rule would revise § 50.55a(a)(1)(ii) to incorporate by reference the 2021 Edition (Division 1) of the ASME BPV Code, Section XI. It would also clarify the wording and add, remove, or revise some of the conditions as explained in this proposed rule.
The current regulations in § 50.55a(a)(1)(iv) incorporate by reference ASME OM Code, 1995 Edition through the 2020 Edition (with some omissions of specific editions and addenda), subject to the conditions currently identified in § 50.55a(b)(3)(i) through (xi). This proposed rule would revise § 50.55a(a)(1)(iv) to incorporate by reference the 2022 Edition of Division 1 of the ASME OM Code.
In the introductory discussion of its Codes, ASME specifies that errata to those Codes may be posted on the ASME website under the Committee Pages to provide corrections to incorrectly published items, or to correct typographical or grammatical errors in those Codes. Users of the ASME BPV Code and ASME OM Code should be aware of errata when implementing the specific provisions of those Codes. Applicants and licensees should monitor errata to determine when they might need to submit a request for an alternative under § 50.55a(z) to implement provisions specified in an errata to their ASME Code of record. Each of the proposed NRC conditions and the reasons for each are discussed in the following sections
The NRC prepared an unofficial redline strikeout version of the proposed changes to regulatory text that is intended to help the reader identify the proposed changes. The unofficial redline strikeout version of the proposed rule is publicly available and is listed in the “Availability of Documents” section.
The NRC proposes to revise § 50.55a(a)(1)(i)(E) to incorporate by reference the 2021 Edition of the ASME BPV Code, Section III, including Subsection NCA and Division 1 Subsections NB through NG and Appendices. As stated in § 50.55a(a)(1)(i), the Nonmandatory Appendices are excluded and not incorporated by reference. The Mandatory Appendices are incorporated by reference because they include information necessary for Division 1. However, the Mandatory Appendices also include material that pertains to other Divisions that have not been reviewed and approved by the NRC. Although this information is included in the sections and appendices being incorporated by reference, the NRC notes that the use of Divisions other than Division 1 has not been approved, nor are they required by NRC regulations and, therefore, such information is not relevant to NRC applicants and licensees. The NRC is not taking a position on the non-Division 1 information in the appendices and is including it in the incorporation by reference only for convenience. Therefore, this proposed rule would revise the introductory text to § 50.55a(a)(1)(i)(E) to reference the 2021 Edition of the ASME BPV Code, Section III, including Subsection NCA and Division 1 Subsections NB through NG and Appendices.
The NRC proposes to incorporate by reference Subsection NCA of 2021 Edition BPV Code, ASME Section III with the exception that Subpart 2.19 in NQA-1-2017, NQA-1-2019 and NQA-1-2022 is not approved for use.
With regards to the implementation of NCA-3126, NCA-3127, NCA-4255.3, and NCA-4254.3 for the procurement of calibration and testing services, the NRC reminds the users of the ASME Code that the procurement of commercial grade calibration and testing services remains subject to NRC requirements in 10 CFR part 21 and in appendix B to 10 CFR part 50.
For implementation of procurement of calibration and testing services, the NRC recently proposed a draft regulatory guide (DG), DG-1403, “Quality Assurance Program Criteria (Design and Construction)” (ML22304A054) that would, among other things, endorse Nuclear Energy Institute (NEI) 14-05A, “Guidelines for the Use of Accreditation in Lieu of Commercial Grade Surveys for Procurement of Laboratory Calibration and Test Services,” Revision 1, issued November 2020 (88 FR 27713). As described in the DG licensees and suppliers of basic components can take credit for the ILAC accreditation process as described in NEI 14-05A Revision 1 in lieu of performing on-site commercial-grade surveys as part of the commercial-grade dedication of calibration and testing services. The NRC's proposed endorsement would be for use of NEI 14-05A Revision 1 in lieu of Subpart 2.19 in NQA-1-2017, NQA-1-2019 and NQA-1-2022, which DG-1403 found to not incorporate the controls and conditions necessary for use. Specifically, Subpart 2.19 allows the laboratory accreditation to be performed remotely, which the NRC has determined is not adequate to meet the requirements of appendix B to 10 CFR part 50. Therefore, the NRC is proposing a condition to prohibit the use of Subpart 2.19 in NQA-1-2017.
The NRC proposes to revise this condition to change the word “sleeves” to “sheaths” and to note that this condition is not applicable to the 2015 Edition and later editions as Subsection NH has been deleted from Section III Division 1.
The NRC proposes to revise this condition. When applying the 2015 and 2017 Editions of Section III, Mandatory Appendix XXVI, “Rules for Construction of Class 3 Buried Polyethylene Pressure Piping,” applicants or licensees must meet the first provision, as noted in 50.55a(b)(1)(xi)(A). When applying the 2015 through 2021 Editions of Section III, Mandatory Appendix XXVI, “Rules for Construction of Class 3 Buried Polyethylene Pressure Piping,” applicants or licensees must meet the second provision, as noted in 50.55a(b)(1)(xi)(B). When applying the 2017 Edition of Section III, Mandatory Appendix XXVI, “Rules for Construction of Class 3 Buried Polyethylene Pressure Piping,” applicants or licensees must meet the third provision, as noted in 50.55a(b)(1)(xi)(C).
The NRC proposes to revise § 50.55a(b)(1)(xiii) including the first provision, § 50.55a(b)(1)(xiii)(A), and second provision, § 50.55a(b)(1)(xiii)(B), to extend the applicability of the conditions through the latest edition of the ASME BPV Code, Section III incorporated by reference in paragraph (a)(1)(i). The 2021 Edition of Section III was not updated to include the provisions of this condition. Therefore, the NRC is proposing to revise this condition to apply to the latest edition incorporated by reference.
The NRC is proposing to add a condition that if Nonmandatory Appendix NN is used for the elimination of surface defects and repairs of stamped components prior to the completion of Form N-3 Data Report, all applicable requirements of Nonmandatory Appendix NN shall be met. The 2021 Edition included Nonmandatory Appendix NN and stated in the provisions of NCA-8151 and NCA-8500 in the 2021 Edition of Section III that guidance for the elimination of surface defects and repairs of stamped components prior to the completion of Form N-3 Data Report is contained within Nonmandatory Appendix NN.
The section titled “Organization of Section III” within Section III and the “Introduction” to Section III Appendices state that “Mandatory Appendices are referred to in the Section III rules and contain requirements that must be followed in construction. Nonmandatory Appendices provide additional information or guidance when using Section III.” In addition, Nonmandatory Appendix NN states, “This Appendix provides guidance for the removal of external surface defects from piping, pumps, and valves and performing repairs to stamped components after certification and prior to completion of the N-3 Data Report.” It should also be noted that the NRC only endorses Mandatory Appendices of Section III to the ASME Code in the regulations (§ 50.55a).
Since this Nonmandatory Appendix is not required to be followed by the ASME Code, all or none of the requirements proposed in the appendix may be performed and the certificate holder or owner potentially could make repairs that do not meet the code requirements, introduce flaws or retain defects, or not disposition defects that can compromise the structural integrity of the component and not properly document the repair. It should be noted that Nonmandatory Appendix NN was developed by combining Code Cases N-801-3 and N-870-1 into the Nonmandatory Appendix NN. NRC approved Code Cases N-801-3 and N-870-1 in RG 1.84, Revision 39. Licensees that used Code Cases N-801-3 and N-870-1 were required to meet all the requirements in the applicable Code Cases. The NRC considers the information in Nonmandatory Appendix NN as requirements, consistent with the Code Cases, that are necessary to ensure certificate holders make satisfactory repairs to stamped ASME Code, Section III components. Therefore, the NRC is adding § 50.55a(b)(1)(xiv) to condition the provision of NCA-8151, NCA-8500, and Nonmandatory Appendix NN to require that all the requirements in Nonmandatory Appendix NN shall be met when used.
The NRC proposes to amend the regulations in § 50.55a(a)(1)(ii)(C) to incorporate by reference the 2021 Edition (Division 1) of the ASME BPV Code, Section XI. The current regulations in § 50.55a(a)(1)(ii)(C) incorporate by reference ASME BPV Code, Section XI, the 1974 Edition through the 1975 Summer Addenda, the 1995 Edition (Division 1) through the 1997 Edition (Division 1), and the 2001 Edition (Division 1) through the 2019 Edition (Division 1), subject to the conditions identified in current § 50.55a(b)(2)(i) through (xliii).
The NRC proposes to revise the definition of Section XI in § 50.55a(b)(2) to refer to the editions of the ASME BPV Code, Section XI incorporated by reference in paragraph (a)(1)(ii).
The NRC proposes not to apply the existing conditions in § 50.55a(b)(2)(viii)(H) and § 50.55a(b)(2)(viii)(I), the eighth and ninth provisions for concrete containment examinations, to the 2021 Edition of the ASME Code. Revisions to IWA-6230 require the information described in the existing § 50.55a(b)(2)(viii)(H) condition be included in the required Owner's Activity Report (OAR). These new Section XI provisions address the requirement in the existing NRC condition. Revisions to IWL-2512 require the technical evaluation discussed in IWL-2512(b) be completed every five years. This new Section XI provision addresses the requirement in existing NRC condition § 50.55a(b)(2)(viii)(I).
The NRC proposes not to apply the existing condition in § 50.55a(b)(2)(ix)(A)(2), the first provision for metal containment examinations, to the 2021 Edition of the ASME Code. Revisions to IWA6230 require the information described in the existing § 50.55a(b)(2)(ix) condition be included in the required OAR. This new Section XI provision addresses the requirement in the existing NRC condition.
The NRC proposes to eliminate this condition as it is no longer applicable to any licensee. This condition only applies to the use of the 1995 through the 2001 Editions of ASME Code Section XI, Appendix VIII. Additionally, § 50.55a(b)(2)(xv) requires licensees using ASME Code Section XI Editions later than the 2001 Edition through the 2006 Addenda to use the 2001 Edition of Appendix VIII. This condition therefore only applies to licensees using the 1995 to the 2006 Addenda of ASME Code Section XI.
The 2007 edition of ASME Code Section XI was incorporated by reference in § 50.55a in the rulemaking dated June 21, 2011 (76 FR 36231). Given the requirement to update ISI programs every 120 Months, no licensee is still using the 2001 Edition of Appendix VIII. This condition is therefore unnecessary.
The NRC proposes to amend § 50.55a(b)(2)(xxxiv) to prohibit the use of Nonmandatory Appendix U, Supplement U-S1 in the 2021 Edition of Section XI. Nonmandatory Appendix U, Supplement U-S1 provides licensees with a methodology for temporary acceptance of flaws in moderate energy Class 2 and 3 piping. However, Code Case N-513 provides the same rules. The NRC position is that licensees use the more frequently updated Code Case N-513 when seeking to temporarily accept flaws in moderate energy Class 2 and 3 piping. As the ASME continues to update Code Case N-513, there can be different requirements between the version allowed by Nonmandatory Appendix U and the NRC approved version of the Code Case. Furthermore, duplicative rules may create regulatory confusion both for licensees and NRC inspection staff, as well as pose a burden on the NRC to review and compare the two documents to ensure reasonable assurance of safety under all potential combinations of alternatives. Therefore, this proposed condition clarifies that the appropriate reference for temporary acceptance of flaws in moderate energy Class 2 and 3 piping is Code Case N-513, as dispositioned in the latest version of Regulatory Guide (RG) 1.147 incorporated by reference in § 50.55a(a)(3)(ii).
The NRC proposes to modify the existing condition in § 50.55a(b)(2)(xxxiv) to update the version of ASME BPV Code Case N-513 to the latest version currently approved in RG 1.147. The NRC proposes to renumber this existing condition to § 50.55a(b)(2)(xxxiv)(A)(2) and revise § 50.55a(b)(2)(xxxiv)(B) to reflect the added condition on Nonmandatory Appendix U, Supplement U-S1. The purpose of this change is for regulatory efficiency to minimize changes to this condition in future rulemakings and maintain the requirement consistent with the latest NRC approved version of Code Case N-513.
The NRC proposes to add § 50.55a(b)(2)(xliv) to prohibit the use of Y-2200, Y-2420, and Y-3200 in the 2021 Edition of Section XI. These articles provide three crack growth laws for use in Section XI flaw evaluations. However, Code Cases N-809, N-889, and N-643 respectively provide the same crack growth laws. The NRC position is that licensees use the more frequently updated Code Cases when seeking to use these crack growth laws in Section XI flaw evaluations. Furthermore, duplicative rules may create regulatory confusion for licensees and additional burden on the NRC to review and compare the two documents to provide reasonable assurance of
The NRC proposes to add § 50.55a(b)(2)(xlv) to require that when applying the provisions of IWA-4540(a) and (e) of the 2021 Edition of the ASME Code, Section XI, a VT-2 examination of the area affected by the repair/replacement activity shall be conducted during the Type C test in appendix J to 10 CFR part 50. The 2021 Edition of the ASME Code, Section XI, revised IWA-4540(a) and (e) by incorporating the requirements of Code Case N-751. The NRC conditioned Code Case N-751 in RG 1.147, Revision 19, to require that nondestructive examination must be performed in accordance with IWA-4540(a)(2) of the 2002 Addenda of Section XI. This includes a VT-2 (visual examination during system walkdown) in accordance with IWA-5211.
Upon incorporating Code Case N-751 and the NRC condition in RG 1.147, the revised IWA-4540(a) and (e) did not fully address the NRC condition in RG 1.147 concerning performing the VT-2 (visual examination). The revised IWA-4540(a) moved the pressure testing requirements for “[R]epair/replacement activities performed by welding or brazing on piping, including isolation valves, designated Class 2, that penetrates a containment vessel and where the balance of the piping system inside and outside the containment is not within the scope of Section XI” to IWA-4540(e). Therefore, the specific requirement in IWA-4540(a) to require a VT-2 visual examination during pressure testing is not required. In addition, IWA-4540(e) in the 2021 Edition of ASME Code, Section XI states that for pressure testing of these locations, a Type C test in appendix J to 10 CFR part 50, system leakage test in accordance with IWA-5211(a), or pneumatic test in accordance with IWA-5211(c), shall be performed. The NRC notes that IWA-5211 requires the VT-2, while neither IWA-5211(a) or (c) require a VT-2 (visual examination during walkdown). IWA-4540(e) also states that if “there is detectable leakage during the Type C test in appendix J to 10 CFR part 50, the brazed joints or welds shall be tested to confirm there is no leakage through the brazed joints or welds.” The NRC notes that the Type C test in appendix J to 10 CFR part 50 does not require a VT-2 (visual system walkdown) of the piping to verify the leakage or absence thereof, but only a decrease in pressure.
Therefore, the NRC is adding § 50.55a(b)(2)(xlv) to condition provisions IWA-4540(a) and (e) of the 2021 Edition of the ASME Code, Section XI, to require that a VT-2 examination of the area affected by the repair/replacement activity be conducted during the Type C test in appendix J to 10 CFR part 50 to be consistent with the previous NRC condition for Code Case N-751.
The NRC proposes to add § 50.55a(b)(2)(xlvi) to prohibit a contracted Repair/Replacement Organization, when applying the provisions of IWA-4143 in the 2021 Edition of the ASME Code, Section XI, from fabricating an item off-site of the Owner's facility (
IWA-4143 in the 2021 Edition of the ASME Code, Section XI, allows an owner to procure ASME Code, Section III parts, appurtenances, piping subassemblies, and supports (hereinafter referred to as items) with no ASME Stamp/Certification Mark from a Repair/Replacement Organization that does not have an ASME Certificate of Authorization and conducts fabrication activities off-site of the Owner's facility. Therefore, a contracted Repair/Replacement Organization would be able to fabricate an item off-site (at a vendor facility) without an ASME Certificate of Authorization and not apply a Stamp/Certification Mark on the item. This contradicts NCA-8330 in ASME Code, Section III, which only allows an item with no ASME Stamp/Certification Mark applied to the item for an organization with an ASME Certificate of Authorization, since the organization with an ASME Certificate of Authorization is required to follow additional controls of the part in NCA-8330(a)(1) through (3). IWA-4131 in the 2021 Edition of the ASME Code, Section XI, does not provide controls of these items through completion of installation for an organization that does not have an ASME Certificate of Authorization. IWA-4131 in the 2019 Edition of the ASME Code, Section XI, has a restriction that fabrication (of parts) by the Owner or owner's contracted Repair/Replacement Organization (not possessing an ASME Certificate of Authorization) may occur only at the Owner's facility. The proposed condition would be consistent with IWA-4143 of the 2019 Edition of the ASME Code, Section XI, which allowed a Repair/Replacement Organization with a quality assurance program that complies with IWA-4142 to fabricate parts, appurtenances, piping assemblies, and supports at the Owner's facilities without application of an ASME Stamp/Certification Mark.
Therefore, the NRC is adding § 50.55a(b)(2)(xlvi) to condition the provision of IWA-4143 of the 2021 Edition of the ASME Code, Section XI, by prohibiting a contracted Repair/Replacement Organization from fabricating a part off-site of the Owner's facility (
The NRC proposes to add § 50.55a(b)(2)(xlvii) to require stress corrosion crack growth analysis of the weld overlay material in Nonmandatory Appendix Q of ASME Code, Section XI. In the 2021 Edition, a change was made to Subparagraph Q-3000(a) to specifically note that stress corrosion crack growth analysis is not required within the weld overlay material. While these overlay materials are expected to be more stress corrosion crack resistant, Article Q-2000 does not require all overlay materials to be impervious to potential cracking. If the licensee can justify that the material would not experience stress corrosion cracking growth expected over design life of the overlay, the licensee should document this conclusion in the design. The NRC therefore proposes this condition to require the analysis of a hypothetical flaw in determining the design and design life of a weld overlay under Nonmandatory Appendix Q.
The NRC proposes to add § 50.55a(b)(2)(xlviii) to require that analytical evaluations performed in accordance with IWB-3132.3 and IWC-3132.3 be submitted to the NRC. The 2019 Edition of the ASME BPV Code, Section XI, IWB-3134,
The NRC proposes to add § 50.55a(b)(2)(xlix) to prohibit the use of IWB-3600(b)(1) in the 2021 Edition of ASME BPV Code, Section XI (Division 1), for the inlay and onlay that are subject to the augmented inspection requirements in paragraph (g)(6)(ii)(F) of this section.
IWB-3600(b)(1) in the 2021 Edition of the Code addresses the provision that a flaw, which lies entirely in the cladding of Class 1 components, need not be analytically evaluated. In the 2021 Edition of the Code, this provision has been relocated from IWB-3610 to IWB-3600. In the code editions and addenda prior to the 2021 Edition since the 1988 Addenda, this provision in IWB-3610 for Class 1 vessels has not been applicable to the analytical evaluation for piping that is separately addressed in IWB-3640. Based on the relocation of the provision to IWB-3600, the 2021 Edition of the Code without a condition would allow that a flaw, which lies entirely in the cladding of piping, need not be analytically evaluated.
In comparison, paragraph (g)(6)(ii)(F) of this section addresses the augmented inspection requirements for Class 1 pressurized water reactor (PWR) piping and vessel nozzle butt welds. As part of the requirements, paragraph (g)(6)(ii)(F)(7) of this section describes the examination evaluation and acceptance standards for the inlay and onlay of the butt welds. Specifically, the condition in the paragraph requires that, for Inspection Items G, H, J, and K of Code Case N-770, when applying the acceptance standards of IWB-3514 for planar flaws contained within the inlay or onlay, the thickness “t” in IWB-3514 be the thickness of the inlay or onlay.
Accordingly, when a flaw lies entirely in the inlay or onlay subject to the augmented inspections in paragraph (g)(6)(ii)(F)(7) of this section, the flaw is required to be evaluated in accordance with IWB-3514 by using the thickness of the inlay or onlay as the thickness “t” in IWB-3514. Based on paragraph (g)(6)(ii)(F)(7) of this section, if a flaw in the inlay or onlay is not acceptable in accordance with IWB-3514 as conditioned by the paragraph, analytical evaluation of the flaw must be performed in accordance with IWB-3600 or repair/replacement activities must be performed in accordance with IWA-4000.
As discussed above, the use of IWB-3600(b)(1) in the 2021 Edition of ASME BPV Code, Section XI (Division 1) for the inlay and onlay is not consistent with paragraph (g)(6)(ii)(F)(7) of this section and the related provisions of analytical evaluation that are specified in IWB-3600 in the code editions and addenda prior to the 2021 Edition. Therefore, the NRC proposes to add a condition to prohibit the use of IWB-3600(b)(1) in the 2021 Edition of the Code for the inlay and onlay that are subject to the augmented inservice inspection requirements for Class 1 piping and nozzle dissimilar-metal butt welds in paragraph (g)(6)(ii)(F) of this section.
The NRC proposes to add § 50.55a(g)(6)(ii)(D)(9) to allow licensees the option to utilize Supplement 15 of Mandatory Appendix VIII in the 2021 Edition or later of Section XI, incorporated by reference in § 50.55a, for volumetric qualification of examinations required by Table 1 of ASME Code Case N-729-6. The ASME Code in combination with the Electric Power Research Institute Nondestructive Evaluation Center developed expanded qualifications similar to other volumetric qualification requirements in Mandatory Appendix VIII to replace the requirements described in ASME Code Case N-729-6. The NRC found these qualification requirements acceptable, in addition to the current requirements of ASME Code Case N-729-6. Therefore, to reduce the burden of requiring an update to all programs immediately, the NRC is proposing a condition to allow either qualification program to be used. In future § 50.55a rulemakings, in which N-729 is further revised or incorporated into the ASME Code, the NRC expects that the Supplement 15 requirements of Mandatory Appendix VIII will be required. Additionally, as licensees adopt the 2021 Edition or later as an ISI Code of Record for their ISI Interval, Supplement 15 of Mandatory Appendix VIII will be a requirement. The NRC expects that with this proposed transitional time, that has no immediate impact or burden, licensees will be able to update their programs as necessary in as efficient manner as possible.
The NRC proposes to update the requirements for the augmented inspection of dissimilar-metal butt welds in U.S. PWRs from ASME Code Case N-770-5 to N-770-7. This change will require condition § 50.55a(g)(6)(ii)(F)(1) to be updated, and condition § 50.55a(g)(6)(ii)(F)(8) to be modified to retain an inspection frequency for optimized butt welds consistent with ASME Code Case N-770-5.
The NRC proposes to update NRC condition § 50.55a(g)(6)(ii)(F)(1) Implementation, by changing the reference of ASME Code Case N-770-5 to N-770-7. Additionally, the implementation requirement will be changed from no later than one year after June 3, 2020, to no later than one year after the rule effective date.
The NRC proposes to modify the existing condition § 50.55a(g)(6)(ii)(F)(8) to retain, in part, the volumetric examination frequency of ASME Code Case N-770-5, which was changed in N-770-6. In N-770-5, the Frequency of Examination for Inspection Item C-2 welds (uncracked butt welds reinforced by optimized weld overlay of Alloy 52/152 material) is “100% of these welds shall be examined once each inspection interval. For any overlays that have an analyzed life of less than 10 [years], the inspection interval shall be less than or equal to the analyzed life.”
In N-770-5, the Frequency of Examination for Inspection Item F-2
The current NRC condition § 50.55a(g)(6)(ii)(F)(8) states, “[i]nitial inservice examination of Inspection Item C-2 welds shall be performed between the third refueling outage and no later than 10 years after application of the overlay.” In N-770-7, the Frequency of Examination for Inspection Item C-2 welds is—
In N-770-7, the Frequency of Examination for Inspection Item F-2 welds is—
The NRC continues to find that the long-term frequency for examination of optimized weld overlays shall be 100 percent of the welds each inspection interval, consistent with N-770-5 and the current regulation. Optimized weld overlays still structurally rely upon 25 percent of the primary water stress corrosion cracking material of the original butt weld to provide structural integrity for the weld. Further, the deposition of a more crack-resistant material such as Alloy 52/152 acts as a crack growth restriction, allowing growth along the susceptible original weld material rather than through the more crack resistant material that would provide leakage as a defense-in-depth measure to identify cracking. A 25-percent sample inspection could allow optimized weld overlayed welds to have cracks develop into the structural retaining material of an ASME Class 1 butt weld in the reactor coolant system. This condition is not true of full structural weld overlays, which the NRC has found can utilize a long-term examination frequency of a 25-percent sample. Because the design of the optimized weld overlay reduces the effectiveness of the defense-in-depth leak initiation method of identifying potential cracking, a volumetric examination of each weld is required to provide reasonable assurance of structural integrity for these optimized weld overlays. Therefore, the NRC is modifying the condition to state that after initial examination for Inspection Items C-2 and F-2 welds, optimized weld overlay examination volumes that show no indication of crack growth or new cracking shall be examined once each inspection interval.
ASME Code Case N-770-7 also creates a new Inspection Item category for auxiliary head adapter (AHA) butt welds, B-3. Some Westinghouse 4-loop plants have AHA butt welds connected to the upper reactor vessel closure head. The new Inspection Item B-3 caries the same inspection requirements of B-1, which the AHA butt welds fall under currently. The update to a new Inspection Item category was made to facilitate a change to the scope expansion requirements in the event that a crack was found in an AHA butt weld.
The purpose of a scope expansion examination is if a crack is found in one weld, examinations of similar welds should be performed to ensure no generic issues are identified with that type of location or operating condition. The Inspection Item category that AHA butt welds currently fall under, B-1, could trigger scope expansion examinations in any, and potentially all, unmitigated reactor coolant system welds. The AHA butt welds are approximately 6-inches in diameter and are located on top of the reactor pressure vessel head in a low or no flow area. This location, while being of the same weld material, is not generally operating under the same conditions as the rest of the reactor coolant butt welds in the primary system of a Westinghouse PWR. Therefore, the ASME Code revised Code Case N-770 in revision 7 to include the new category and modify the scope expansion rules to reflect this change. The NRC agrees with the change to address the intent of scope expansion if a flaw were to be identified in an AHA butt weld. Therefore, the NRC is proposing to update the augmented inservice inspection requirements of § 50.55a(g)(6)(ii)(F)(1) to mandate the use of N-770-7 in lieu of N-770-5.
The NRC proposes to amend the regulations in § 50.55a(a)(1)(iv)(C) to incorporate by reference the 2022 Edition of the ASME OM Code for nuclear power plants. The NRC is streamlining § 50.55a wherever possible to provide clearer IST regulatory requirements for nuclear power plant licensees and applicants. In the following paragraphs, the NRC includes certain proposed changes that are part of the § 50.55a streamlining efforts.
The NRC proposes to modify § 50.55a(b)(3)(ii) by removing conditions (A), (B), and (C) where licensees are implementing the 2022 Edition of the ASME OM Code as incorporated by reference in § 50.55a, because Appendix III, “Preservice and Inservice Testing of Active Electric MOV Assemblies in Water-Cooled Reactor Nuclear Power Plants,” to the 2022 Edition of the ASME OM Code appropriately incorporates the requirements specified in those conditions. Condition (D) has not been incorporated into the 2022 Edition of the ASME OM Code. Therefore, condition (D) in § 50.55a(b)(3)(ii) will continue to apply to all editions and addenda of the ASME OM Code incorporated by reference in § 50.55a.
The NRC proposes to revise § 50.55a(b)(3)(iii) by removing condition (B), “Check valves,” which states that licensees must perform bi-directional testing of check valves within the IST program where practicable. New reactors are applying more recent editions of the ASME OM Code that require bi-directional testing of check valves. Therefore, condition (B) is not needed in § 50.55a(b)(3)(iii). The NRC proposes to reserve condition (B) in § 50.55a(b)(3)(iii) for possible future use.
The NRC proposes to revise § 50.55a(b)(3)(iii) by removing condition (C), “Flow-induced vibration,” which states that licensees shall monitor flow-induced vibration from hydrodynamic loads and acoustic resonance during preservice testing or inservice testing to
The NRC proposes to add § 50.55a(b)(3)(vii) to clarify use of ASME OM Code, Subsection ISTD, “Preservice and Inservice Requirements for Dynamic Restraints (Snubbers) in Water-Cooled Reactor Nuclear Power Plants,” paragraph ISTD-4253, “Additional Requirements for 10-year Interval,” and Note 7 of the Table ISTD-4252-1, “Visual Examination Table,” with ASME OM Code Case OMN-15, Revision 2, “Performance-Based Requirements for Extending the Snubber Operational Readiness Testing Interval at LWR Power Plants.” OM Code Case OMN-15, Revision 2, Section 3.4, “Code Case OMN-13,” states that “this Code Case [OMN-15] shall not be used in conjunction with Code Case OMN-13, `Performance-Based Requirements for Extending Snubber Inservice Visual Examination Interval at LWR Power Plants.' ” OM Code Case OMN-13 is incorporated in paragraph ISTD-4253 and Note 7 of Table ISTD-4252-1 of the 2022 Edition of the ASME OM Code. The use of OM Code Case OMN-13 is prohibited in conjunction with the use of OM Code Case OMN-15. However, the specific language of paragraph ISTD-4253 and Note 7 of Table ISTD-4252-1 does not clarify that the use of paragraph ISTD-4253 and Note 7 of Table ISTD-4252-1 is optional. The NRC proposes to clarify the language in the ASME OM Code by stating that when implementing Subsection ISTD, paragraph ISTD-4253, and Note 7 of Table ISTD-4252-1, in the 2022 Edition of the ASME OM Code, incorporated by reference in paragraph (a)(1)(iv) of this section, to extend snubber visual examination beyond two refueling cycles (48 months), the licensee is prohibited from applying OM Code Case OMN-15, Revision 2.
The NRC proposes to add § 50.55a(b)(3)(x) to clarify subparagraph
The NRC proposes to make an editorial correction to § 50.55a(d), “Quality Group B components,” by replacing the colon at the end of the second sentence of the introductory paragraph with a period. When the introductory paragraph of § 50.55a(d) was expanded to include a reference to 10 CFR part 52, the new second sentence of the introductory paragraph incorrectly placed a colon at the end of the sentence rather than a period. The use of a colon implies that items (1) and (2) in § 50.55a(d) only apply to 10 CFR part 52 plants. However, item (1) of § 50.55a(d) specifies a requirement for applicants under 10 CFR part 50.
In the 2021 Edition of the ASME Code, Section XI, ASME removed the IWB-3134 and IWC-3125 requirements for nuclear plant owners to submit analytical evaluations to the regulatory authority having jurisdiction at the plant site. The NRC proposes to condition the 2021 Edition of the ASME Code, Section XI to require that such evaluations be submitted to the NRC, maintaining the status quo for U.S. plants. The analytical evaluation reports provide the NRC with a tool to efficiently inspect and validate flaws identified by a licensee and the activities to address them (
(1) What alternative means are there for the NRC to accomplish the goal of monitoring degradation trends such that the NRC could remove the condition?
(2) How can the NRC effectively leverage the information provided in flaw evaluations and associated component degradation in a way that is transparent to stakeholders and ensures structural integrity of nuclear components without incurring excessive administrative burden for plant owners?
This proposed rule would revise paragraphs (a)(1)(i)
This proposed rule would revise paragraphs (a)(1)(ii)
This proposed rule would revise paragraph (a)(1)(iii)
This proposed rule would revise paragraph (a)(1)(iv)
This proposed rule would revise and redesignate existing paragraph (b)(1)(iv) as paragraph (b)(1)(iv) introductory text, add new paragraphs (b)(1)(iv)(A) and (B), and remove and reserve paragraph (b)(1)(iv)(B).
This proposed rule would revise paragraph (b)(1)(vi) to revise “sleeves” to “sheaths” and add a new sentence that this condition is not applicable to 2015 and later Editions.
This proposed rule would revise the introductory text to paragraph (b)(1)(xi) to clarify the applicable conditions and add two new conditions specific to polyethylene pressure piping when applying the 2015 through 2021 Editions. The proposed rule also would revise paragraph (b)(1)(xi)
This proposed rule would revise the introductory text to paragraph (b)(1)(xiii) and paragraphs (b)(1)(xiii)
This proposed rule would add new paragraph (b)(1)(xiv) to require that Nonmandatory Appendix NN be used in its entirety.
This proposed rule would revise the introductory text of paragraph (b)(2) to refer the applicability to users of the editions incorporated by reference in paragraph (a)(1)(ii).
This proposed rule would revise paragraph (b)(2)(viii) to update the applicability of paragraphs (b)(2)(viii)
This proposed rule would revise paragraph (b)(2)(ix) to update the applicability of paragraph (b)(2)(ix)(A)(2).
This proposed rule would eliminate this condition at paragraph (b)(2)(xv).
This proposed rule would revise the introductory text to paragraph (b)(2)(xxxiv), leaving only the heading; revise paragraph (b)(2)(xxxiv)
This proposed rule would add new paragraph (b)(2)(xliv) to prohibit the use of Y-2200, Y-2440, and Y-3200 in the 2021 Edition of Section XI.
This proposed rule would add new paragraph (b)(2)(xlv) to condition the provision of IWA-4540(a) and (e) of the 2021 Edition of the ASME Code, Section XI, to require that a VT-2 examination of the area affected by the repair/replacement activity be conducted during the Type C test in appendix J to this part.
This proposed rule would add new paragraph (b)(2)(xlvi) to prohibit a contracted Repair/Replacement Organization without an ASME Certificate of Authorization that does not apply an ASME Stamp/Certification Mark from fabricating ASME Code, Section III parts, appurtenances, piping subassemblies, and supports offsite of the Owner's facility (
This proposed rule would add new paragraph (b)(2)(xlvii) to require stress corrosion crack growth analysis of the weld overlay material under subparagraph Q-3000(a) of Nonmandatory Appendix Q in the 2021 Edition of the ASME Code, Section XI.
This proposed rule would add new paragraph (b)(2)(xlviii) to require that analytical evaluations performed in accordance with IWB-3132.3 and IWC-3132.3 be submitted to the NRC.
This proposed rule would add paragraph (b)(2)(xlix) to prohibit the use of IWB-3600(b)(1) in the 2021 Edition of ASME BPV Code, Section XI (Division 1) for the inlay and onlay that are subject to the augmented inspection requirements in paragraph (g)(6)(ii)(F).
This proposed rule would revise the introductory text to paragraph (b)(3)(ii) to exclude conditions (A), (B) and (C) from being applicable to the 2022 Edition of the ASME OM Code because those conditions have been incorporated into that edition of the ASME OM Code.
This proposed rule would revise paragraph (b)(3)(iii) to remove and reserve for future use the conditions in paragraphs (b)(3)(iii)(B) and (C) because those conditions are required by other regulations for new reactors.
This proposed rule would replace reserved paragraph (b)(3)(vii) with a new condition on ASME OM Code, Subsection ISTD, paragraph ISTD-4253, and Note 7 of the Table ISTD-4252-1 related to snubbers to be consistent with the accepted provisions in OM Code Case OMN-15.
This proposed rule would create a new paragraph (b)(3)(x) to clarify the requirement for expanding the test sample for Class 1 Pressure Relief Valves specified in ASME OM Code, Appendix I, paragraph I-1320
This proposed rule would revise the introductory text of paragraph (d) by correcting an editorial error. The colon would be replaced with a period, at the end of the second sentence.
This proposed rule would add new paragraph (g)(6)(ii)(D)(9) to allow licensees the option to utilize Supplement 15 of Mandatory Appendix VIII, in the 2021 Edition or later of Section XI incorporated by reference in § 50.55a, for volumetric qualification of examinations required by Table 1 of ASME Code Case N-729-6.
This proposed rule would revise paragraph (g)(6)(ii)(F)(1) to update the requirements for the augmented inspection of dissimilar-metal butt welds in U.S. PWRs from ASME Code Case N-770-5 to N-770-7 and to update the dates to conform with this proposed rule.
This proposed rule would modify the existing condition in paragraph (g)(6)(ii)(F)(8) to retain, in part, the volumetric examination frequency of ASME Code Case N-770-5, which was changed in N-770-6.
As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the NRC certifies that this rule, if adopted, will not have a significant economic impact on a substantial number of small entities. This proposed rule affects only the licensing and operation of nuclear power plants. The companies that own these plants do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).
The NRC has prepared a draft regulatory analysis on this proposed regulation. The analysis examines the costs and benefits of the alternatives considered by the NRC. The NRC requests public comment on the draft regulatory analysis. The regulatory analysis is available as indicated in the “Availability of Documents” section of this document. Comments on the draft analysis may be submitted to the NRC as indicated under the
The NRC's Backfit Rule in § 50.109 states that the NRC shall require the backfitting of a facility only when it finds the action to be justified under specific standards stated in the rule. Section 50.109(a)(1) defines backfitting as the modification of or addition to systems, structures, components, or design of a facility; the design approval or manufacturing license for a facility; or the procedures or organization required to design, construct, or operate a facility. Any of these modifications or additions may result from a new or amended provision in the NRC's rules or the imposition of a regulatory position interpreting the NRC's rules that is either new or different from a previously applicable NRC position after issuance of the construction permit or the operating license or the design approval.
Section 50.55a requires nuclear power plant licensees to:
• Construct ASME BPV Code Class 1, 2, and 3 components in accordance with the rules provided in Section III, Division 1, of the ASME BPV Code (“Section III”).
• Inspect, examine, and repair or replace Class 1, 2, 3, Class MC, and Class CC components in accordance with the rules provided in Section XI, Division 1, of the ASME BPV Code (“Section XI”).
• Test Class 1, 2, and 3 pumps and valves in accordance with the rules provided in the ASME OM Code.
• Inspect, examine, repair or replace, and test Class 1, 2, and 3 dynamic restraints (snubbers) in accordance with the rules provided in either the ASME OM Code or Section XI, depending on the Code Edition.
This rulemaking proposes to incorporate by reference the 2021 Edition of the ASME BPV Code, Section III, Division 1, and ASME BPV Code, Section XI, Division 1, as well as the 2022 Edition of the ASME OM Code.
The ASME BPV and OM Codes are national consensus standards developed by participants with broad and varied interests, in which all interested parties (including the NRC and utilities) participate. A consensus process involving a wide range of stakeholders is consistent with the NTTAA, inasmuch as the NRC has determined that there are sound regulatory reasons for establishing regulatory requirements for design, maintenance, ISI, and IST by rulemaking. The process also facilitates early stakeholder consideration of backfitting issues. Therefore, the NRC finds that the NRC need not address backfitting with respect to the NRC's general practice of incorporating by reference updated ASME Codes.
Incorporation by reference of more recent editions and addenda of Section III of the ASME BPV Code does not affect a plant that has received a construction permit or an operating license or a design that has been approved. This is because the edition and addenda to be used in constructing a plant are, under § 50.55a, determined based on the date of the construction permit or combined license, and are not changed thereafter, except voluntarily by the licensee. The incorporation by reference of more recent editions and addenda of Section III ordinarily applies only to applicants after the effective date of the final rule incorporating these new editions and addenda. Therefore, incorporation by reference of a more recent edition and addenda of Section III does not constitute “backfitting” as defined in § 50.109(a)(1).
Incorporation by reference of more recent editions and addenda of Section XI of the ASME BPV Code and the ASME OM Code affects the ISI and IST programs of operating reactors. However, the Backfit Rule generally does not apply to incorporation by reference of later editions of the ASME BPV Code (Section XI) and OM Code. As previously mentioned, the NRC's longstanding regulatory practice has been to incorporate later versions of the ASME Codes into § 50.55a. Under § 50.55a, licensees must periodically update their ISI and IST programs to the latest edition of Section XI of the ASME BPV Code and the ASME OM Code incorporated by reference into § 50.55a 18 months before the start of a new code of record interval. Therefore, when the NRC approves and requires the use of a later version of the Code for ISI and IST, it is implementing this longstanding regulatory practice and requirement.
Other circumstances where the NRC does not apply the Backfit Rule to the approval and requirement to use later Code editions are as follows:
1. When the NRC takes exception to a later ASME BPV Code or OM Code provision but merely retains the current existing requirement, prohibits the use of the later Code provision, limits the use of the later Code provision, or supplements the provisions in a later Code, the Backfit Rule does not apply because the NRC is not imposing new
2. When an NRC exception relaxes an existing ASME BPV Code or OM Code provision but does not prohibit a licensee from using the existing Code provision, the Backfit Rule does not apply because the NRC is not imposing new requirements.
3. Modifications and limitations imposed during previous routine updates of § 50.55a have established a precedent for determining which modifications or limitations are backfits, or require a backfit analysis (
The incorporation by reference and adoption of a requirement mandating the use of a later ASME BPV Code or OM Code may constitute backfitting in some circumstances. In these cases, the NRC would perform a backfit analysis or documented evaluation in accordance with § 50.109. These include the following:
1. When the NRC endorses a later provision of the ASME BPV Code or OM Code that takes a substantially different direction from the existing requirements, the action is treated as a backfit (
2. When the NRC requires implementation of a later ASME BPV Code or OM Code provision on an expedited basis, the action is treated as a backfit. This applies when implementation is required sooner than it would be required if the NRC simply endorsed the Code without any expedited language (
3. When the NRC takes an exception to an ASME BPV Code or OM Code provision and imposes a requirement that is substantially different from the existing requirement as well as substantially different from the later Code (
This section discusses the backfitting considerations for all the proposed changes to § 50.55a that go beyond the minimum changes necessary and required to adopt the new ASME Code edition into § 50.55a.
1. Revise § 50.55a(b)(1)(iv) to not approve Subpart 2.19 in NQA-1-17, NQA-1-19 and NQA-1-22 for use. This proposed revision clarifies current requirements and is considered to be consistent with the meaning and intent of current requirements. The proposed condition does not constitute a new or changed NRC position. Therefore, this proposed condition is not a backfit.
2. Revise § 50.55a(b)(1)(vi) to change the word sleeves to sheaths and to note that this condition is not applicable to 2015 and later Editions. This condition is not applicable to 2015 and later Editions as Subsection NH is deleted from Section III Division 1. The revisions to clarify a word and clarification of Code Edition applicability do not constitute a change in NRC position. Therefore, this is not a backfit.
3. Revise § 50.55a(b)(1)(xi) to revise this condition regarding the applicability to specific Code editions. When applying the 2015 and 2017 Editions of Section III, Mandatory Appendix XXVI, “Rules for Construction of Class 3 Buried Polyethylene Pressure Piping,” applicants or licensees must meet the first provision, as noted in 50.55a(b)(1)(xi)(A). When applying the 2015 through 2021 Editions of Section III, Mandatory Appendix XXVI, “Rules for Construction of Class 3 Buried Polyethylene Pressure Piping,” applicants or licensees must meet the second provision, as noted in 50.55a(b)(1)(xi)(B). When applying the 2017 Edition of Section III, Mandatory Appendix XXVI, “Rules for Construction of Class 3 Buried Polyethylene Pressure Piping,” applicants or licensees must meet the third provision, as noted in 50.55a(b)(1)(xi)(C). The revision is only for Code editions applicability and does not constitute a new or changed NRC position. Therefore, this change is not a backfit.
4. Revise § 50.55a(b)(1)(xiii) including the first provision, § 50.55a(b)(1)(xiii)(A), and second provision, § 50.55a(b)(1)(xiii)(B), to extend the applicability of the conditions through the latest edition of the ASME BPV Code, Section III incorporated by reference in paragraph (a)(1)(i). The NRC is proposing to revise this condition to apply to the latest edition incorporated by reference, which is not a change to NRC position and, therefore, is not a backfit.
5. Add § 50.55a(b)(1)(xiv) to condition the use of the provisions of NCA-8151, NCA-8500, and Nonmandatory Appendix NN in the 2021 Edition of Section III, to require that when Nonmandatory Appendix NN is used for the elimination of surface defects and repairs of stamped components prior to the completion of Form N-3 Data Report, all applicable requirements of Nonmandatory Appendix NN shall be met. The proposed condition on Nonmandatory Appendix NN does not constitute a new or changed NRC position. Therefore, the addition of this proposed condition is not a backfit.
1. Revise § 50.55a(b)(2)(viii), to remove the applicability of § 50.55a(b)(2)(viii)(H) and (I) from the 2021 Edition. These changes to § 50.55a(b)(2)(viii) remove conditions that were incorporated in the 2021 Edition. Therefore, this change is not a backfit.
2. Revise § 50.55a(b)(2)(ix), to remove the applicability of § 50.55a(b)(2)(ix)(A)(2) from the 2021 Edition. This change to § 50.55a(b)(2)(ix) removes a condition that was incorporated into the 2021 Edition. Therefore, this change is not a backfit.
3. Remove and reserve § 50.55a(b)(2)(xv). This condition is applicable to older Editions of Section XI that are no longer in use by licensees. Removing this condition does not modify current licensee inservice inspection requirements and, therefore, is not a backfit.
4. Revise § 50.55a(b)(2)(xxxiv)(A) to modify the cited version of ASME Code Case N-513 to the latest version approved in RG 1.147. The revised condition is renumbered § 50.55a(b)(2)(xxxiv)(A)(2). There is no change to the requirements and therefore, this revision is not a backfit.
5. Add § 50.55a(b)(2)(xxxiv)(B) to prohibit the use of Nonmandatory Appendix U, Supplement U-S1. Supplement U-S1 of Nonmandatory Appendix U is obsolete relative to Code Case N-513, as included in the latest revision of RG 1.147 incorporated by reference in § 50.55a(a)(3)(ii). Licensees have adopted the updated rules in Code Case N-513 for temporary acceptance of flaws in moderate energy Class 2 and 3 piping. This revision does not modify the current inservice inspection regulatory requirements and, therefore, is not a backfit.
6. Add § 50.55a(b)(2)(xliv) to prohibit the use of Article Y-2200, Subarticle Y-2440, and Article Y-3200 in Nonmandatory Appendix Y. These articles have corresponding Code Cases,
7. Add § 50.55a(b)(2)(xlv) to condition the provision of IWA-4540(a) and (e) of the 2021 Edition of the ASME Code, Section XI, to require that a VT-2 examination be performed of the area affected by the repair/replacement activity during the Type C test in appendix J to 10 CFR part 50. The proposed condition on IWA-4540(a) and (e) does not constitute a new or changed NRC position. Therefore, the addition of this proposed condition is not a backfit.
8. Add § 50.55a(b)(2)(xlvi) to condition the provision of IWA-4143 of the 2021 Edition of the ASME Code, Section XI, by prohibiting a contracted Repair/Replacement Organization from fabricating a part offsite of the Owner's facility (
9. Add § 50.55a(b)(2)(xlvii) to prevent a new exemption in the 2021 Edition of subparagraph Q-3000(a) of the requirement to remove stress corrosion crack growth analysis of the overlay material. This is a new condition that retains the previous requirements and allowances of the previous approved version of Nonmandatory Appendix Q, and accordingly, is not a new or changed position. Therefore, the addition of this proposed condition is not a backfit.
10. Add § 50.55a(b)(2)(xlviii) to require submission of analytical evaluations performed under IWB-3132.3 and IWC-3122.3 to the NRC. This is a new condition that retains the requirements of the previous approved version of Section XI, and accordingly, is not a new or changed position. Therefore, the addition of this proposed condition is not a backfit.
11. Add 10 CFR 50.55a(b)(2)(xlix) to prohibit the use of IWB-3600(b)(1) in the 2021 Edition of the Code for the inlay and onlay that are subject to the augmented inspections specified in paragraph (g)(6)(ii)(F) of this section. The proposed condition on the analytical evaluation of a flaw in the inlay or onlay does not constitute a new or changed NRC position. Therefore, the addition of this proposed condition is not a backfit.
12. Add § 50.55a(g)(6)(ii)(D)(9) to allow licensees the option to utilize Supplement 15 of Mandatory Appendix VIII in the 2021 Edition or later of Section XI, incorporated by reference in § 50.55a, for volumetric qualification of examinations required by Table 1 of ASME Code Case N-729-6. Providing licensees the option of using either the qualification program in ASME Code Case N-729-6 or Supplement 15 of Mandatory Appendix VIII does not constitute a new or changed NRC position. No backfit is implied with the option to allow a new volumetric qualification option for licensees to utilize. No increase in requirements is expected.
13. Modify 50.55a(a)(1)(iii)(D) and 50.55a(g)(6)(ii)(F) to update the requirements for the augmented inspection of dissimilar-metal butt welds in U.S. PWRs from ASME Code Case N-770-5 to N-770-7. This change will require one condition to be updated, § 50.55a(g)(6)(ii)(F)(
1. Revise § 50.55a(b)(3)(ii) by removing conditions (A), (B), and (C) where licensees are implementing the 2022 Edition of the ASME OM Code as incorporated by reference in § 50.55a, because Appendix III to the 2022 Edition of the ASME OM Code appropriately incorporates the requirements specified in those conditions. The revisions do not modify the current IST regulatory requirements and, therefore, are not backfits.
2. Delete condition (B) in § 50.55a(b)(3)(iii), which states that licensees of new reactors must perform bi-directional testing of check valves within the IST program where practicable. The licensees of new reactors are required to apply more recent editions of the ASME OM Code that require bi-directional testing of check valves. Therefore, condition (B) is not needed in § 50.55a(b)(3)(iii). This change does not modify the current IST regulatory requirements and, therefore, is not a backfit.
3. Delete condition (C) in § 50.55a(b)(3)(iii), which states that licensees of new reactors shall monitor flow-induced vibration from hydrodynamic loads and acoustic resonance during preservice testing or inservice testing to identify potential adverse flow effects on components within the scope of the IST program. Based on regulatory experience with new reactor licensing, the NRC considers that flow-induced vibration is appropriately addressed during the licensing phase and initial testing program at each new reactor nuclear power plant. Therefore, condition (C) is not needed in § 50.55a(b)(3)(iii). This change does not modify the current IST regulatory requirements and, therefore, is not a backfit.
4. Create a new § 50.55a(b)(3)(vii) to clarify use of ASME OM Code, Subsection ISTD, paragraph ISTD-4253, and Note 7 of the Table ISTD-4252-1, with the ASME OM Code Case OMN-15, Revision 2. This modification reflects a clarification of ASME OM Code, Subsection ISTD, paragraph ISTD-4253 and Table ISTD-4252-1, is not a new or changed NRC position, and therefore, is not a backfit.
5. Create a new § 50.55a(b)(3)(x) to clarify ASME OM Code, Appendix I, paragraph I-1320(c)
1. Replace the colon at the end of the second sentence of the introductory paragraph of § 50.55a(d) with a period. This is an editorial correction and, therefore, not a backfit.
The NRC finds that incorporation by reference into § 50.55a of the 2021 Edition of Section III, Division 1, of the ASME BPV Code subject to the identified conditions; the 2021 Edition of Section XI, Division 1, of the ASME BPV Code, subject to the identified conditions; and the 2022 Edition of the ASME OM Code subject to the identified conditions, does not constitute backfitting or represent an inconsistency with any issue finality provisions in 10 CFR part 52.
In December 2010, the NRC issued “Generic Aging Lessons Learned (GALL) Report,” NUREG-1801, Revision 2 (ML103490041), for applicants to use in preparing license renewal applications. The GALL Report provides aging management programs (AMPs) that the NRC has concluded are sufficient for aging management in accordance with the license renewal rule, as required in § 54.21(a)(3). In addition, “Standard Review Plan for Review of License Renewal Applications for Nuclear Power Plants,” NUREG-1800, Revision 2 (ML103490036), was issued in December 2010, to ensure the quality and uniformity of NRC reviews of license renewal applications and to present a well-defined basis on which the NRC evaluates the applicant's AMPs and activities. In April 2011, the NRC also issued “Disposition of Public Comments and Technical Bases for Changes in the License Renewal Guidance Documents NUREG-1801 and NUREG-1800,” NUREG-1950 (ML11116A062), which describes the technical bases for the changes in Revision 2 of the GALL Report and Revision 2 of the standard review plan (SRP) for review of license renewal applications.
Revision 2 of the GALL Report, in Sections XI.M1, XI.S1, XI.S2, XI.M3, XI.M5, XI.M6, XI.M11B, and XI.S3, describes the evaluation and technical bases for determining the sufficiency of ASME BPV Code Subsections IWB, IWC, IWD, IWE, IWF, or IWL for managing aging during the period of extended operation (
In July 2017, the NRC issued “Generic Aging Lessons Learned for Subsequent License Renewal (GALL-SLR) Report,” NUREG-2191 (ML17187A031 and ML17187A204), for applicants to use in preparing applications for subsequent license renewal. The GALL-SLR Report provides AMPs that are sufficient for aging management for the subsequent period of extended operation (
As part of this proposed rule, the NRC evaluated whether those AMPs in the GALL Report and GALL-SLR Report that rely upon Subsections IWB, IWC, IWD, IWE, IWF, or IWL of Section XI in the editions and addenda of the ASME BPV Code incorporated by reference into § 50.55a, in general continue to be acceptable if the AMP relies upon these Subsections in the 2021 Edition. The NRC finds that the 2021 Edition of Section XI of the ASME BPV Code, Subsections IWB, IWC, IWD, IWE, IWF, or IWL, as subject to the conditions of this proposed rule, are acceptable for the AMPs in the GALL Report and GALL-SLR Report with the exception of augmentation, as specifically noted in those reports, and the NRC finds that the conclusions of the GALL Report and GALL-SLR Report remain valid. Accordingly, an applicant for license renewal (including subsequent license renewal) may use, in its plant-specific license renewal application, Subsections IWB, IWC, IWD, IWE, IWF, or IWL of Section XI of the 2021 Edition of the ASME BPV Code, as subject to the conditions in this proposed rule, without additional justification. Similarly, a licensee approved for license renewal that relied on the AMPs may use Subsections IWB, IWC, IWD, IWE, IWF, or IWL of Section XI of the 2021 Edition of the ASME BPV Code. However, applicants must assess and follow applicable NRC requirements with regard to licensing basis changes and evaluate the possible impact on the elements of existing AMPs.
Some of the AMPs in the GALL Report and GALL-SLR Report recommend augmentation of certain Code requirements in order to ensure adequate aging management for license renewal. The technical and regulatory aspects of the AMPs for which augmentations are recommended also apply if the 2021 Edition of Section XI of the ASME BPV Code is used to meet the requirements of § 54.21(a)(3). The NRC evaluated the changes in the 2021 Edition of Section XI of the ASME BPV Code to determine if the augmentations described in the GALL Report and GALL-SLR Report remain necessary; the NRC's evaluation has concluded that the augmentations described in the GALL and GALL-SLR Reports are necessary to ensure adequate aging management.
For example, GALL-SLR Report AMP XI.S3, “ASME Section XI, Subsection IWF,” recommends that volumetric examination consistent with that of the ASME BPV Code, Section XI, Table IWB-2500-1, Examination Category B-G-1 should be performed to detect cracking for high strength structural bolting (actual measured yield strength greater than or equal to 150 kilopound per square inch (ksi)) in sizes greater than 1 inch nominal diameter. The GALL-SLR Report also indicates that this volumetric examination may be waived with adequate plant-specific justification. This guidance for aging management in the GALL-SLR Report is the augmentation of the visual examination specified in Subsection IWF of the 2021 Edition of the ASME BPV Code, Section XI.
A license renewal applicant may either augment its AMPs as described in the GALL Report and GALL-SLR Report (for operation up to 60 and 80 years respectively) or propose alternatives for the NRC to review as part of the applicant's plant-specific justification for its AMPs.
The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883). The NRC requests comment on this document with respect to the clarity and effectiveness of the language used.
The NRC has determined under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in subpart A of 10 CFR part 51, that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required.
This proposed rule is in accordance with the NRC's policy to incorporate by reference in § 50.55a new editions of the ASME BPV and OM Codes to provide updated rules for construction and inspecting components and testing pumps, valves, and dynamic restraints (snubbers) in light-water nuclear power plants. The ASME Codes are national voluntary consensus standards and are required by the NTTAA to be used by Government agencies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. The proposed rule does not significantly increase the probability or consequences of accidents, no changes are being made in the types of effluents that may be released off-site, and there is no significant increase in public radiation exposure. This proposed rule does not involve non-radiological plant effluents and has no other environmental impact. Therefore, no significant non-radiological impacts are associated with this action.
The determination of this environmental assessment is that there will be no significant effect on the quality of the human environment from this action. Public stakeholders should note, however, that comments on any aspect of this environmental assessment may be submitted to the NRC as indicated under the
This proposed rule does not contain any new or amended collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the document requesting or requiring the collection displays a currently valid OMB control number.
The National Technology Transfer and Advancement Act of 1995, Public Law 104-113, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless using such a standard is inconsistent with applicable law or is otherwise impractical. In this proposed rule, the NRC is continuing to use the ASME BPV and OM Codes by incorporating by reference the 2021 Edition of the BPV Code and the 2022 Edition of the OM Code. The ASME Code editions constitute voluntary consensus standards, in which all interested parties (including the NRC and licensees of nuclear power plants) participate. The NRC invites comment on the applicability and use of other standards.
The NRC will conduct a public meeting on the proposed rule for the purpose of describing the updates to the Code editions. The NRC staff will be available to answer questions from the public regarding this proposed rule.
The NRC will publish a notice of the location, time, and agenda of the meeting in the
The NRC proposes to incorporate by reference two recent editions to the ASME Codes for nuclear power plants. As described in the “Background” and “Discussion” sections of this document, these materials contain standards for the design, fabrication, and inspection of nuclear power plant components.
The NRC is required by law to obtain approval for incorporation by reference from the Office of the Federal Register (OFR). The OFR's requirements for incorporation by reference are set forth in 1 CFR part 51. On November 7, 2014, the OFR adopted changes to its regulations governing incorporation by reference (79 FR 66267). The OFR regulations require an agency to include in a proposed rule a discussion of the ways that the materials the agency proposes to incorporate by reference are reasonably available to interested parties or how it worked to make those
The NRC considers “interested parties” to include all potential NRC stakeholders, not only the individuals and entities regulated or otherwise subject to the NRC's regulatory oversight. These NRC stakeholders are not a homogenous group but vary with respect to the considerations for determining reasonable availability. Therefore, the NRC distinguishes between different classes of interested parties for the purposes of determining whether the material is “reasonably available.” The NRC considers the following to be classes of interested parties in NRC rulemakings with regard to the material to be incorporated by reference:
• Individuals and small entities regulated or otherwise subject to the NRC's regulatory oversight (this class also includes applicants and potential applicants for licenses and other NRC regulatory approvals) and who are subject to the material to be incorporated by reference by rulemaking. In this context, “small entities” has the same meaning as a “small entity” under § 2.810.
• Large entities otherwise subject to the NRC's regulatory oversight (this class also includes applicants and potential applicants for licenses and other NRC regulatory approvals) and who are subject to the material to be incorporated by reference by rulemaking. In this context, “large entities” are those that do not qualify as a “small entity” under § 2.810.
• Non-governmental organizations with institutional interests in the matters regulated by the NRC.
• Other Federal agencies, States, local governmental bodies (within the meaning of § 2.315(c)).
• Federally-recognized and State-recognized
• Members of the public (
The 2021 Edition of the ASME BPV Code and the 2022 Edition of the ASME OM Code may be viewed, by appointment, at the Technical Library, which is located at Two White Flint, 11545 Rockville Pike, Rockville, Maryland 20852. You may submit your request to the Technical Library via email at
Interested parties may purchase a copy of the ASME materials from ASME at Three Park Avenue, New York, NY 10016, or at the ASME website
For the class of interested parties constituting members of the public who wish to gain access to the materials to be incorporated by reference in order to participate in the rulemaking, the NRC recognizes that the $9,000 cost may be so high that the materials could be regarded as not reasonably available for purposes of commenting on this proposed rule, despite the NRC's actions to make the materials available at the NRC's PDR. Accordingly, the NRC requested that ASME consider enhancing public access to these materials during the public comment period. On March 2, 2023, the ASME agreed to make the materials available online in a read-only electronic access format during the public comment period (ML23068A033). Therefore, the two editions of the ASME Codes for nuclear power plants that the NRC proposes to incorporate by reference in this rulemaking are available in read-only format at the ASME website
The materials are available to all interested parties in multiple ways and in a manner consistent with their interest in this proposed rule. Therefore, the NRC concludes that the materials the NRC proposes to incorporate by reference in this proposed rule are reasonably available to all interested parties.
The NRC is making the documents identified in Table 1 available to interested persons through one or more of the following methods, as indicated. To access documents related to this action, see the
Throughout the development of this rulemaking, the NRC may post documents related to this proposed rule, including public comments, on the Federal rulemaking website at
Administrative practice and procedure, Antitrust, Backfitting, Classified information, Criminal penalties, Education, Emergency planning, Fire prevention, Fire protection, Incorporation by reference, Intergovernmental relations, Nuclear power plants and reactors, Penalties, Radiation protection, Reactor siting criteria, Reporting and recordkeeping requirements, Whistleblowing.
For the reasons set forth in the preamble, and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 553, the NRC proposes to adopt the following amendments to 10 CFR part 50:
Atomic Energy Act of 1954, secs. 11, 101, 102, 103, 104, 105, 108, 122, 147, 149, 161, 181, 182, 183, 184, 185, 186, 187, 189, 223, 234 (42 U.S.C. 2014, 2131, 2132, 2133, 2134, 2135, 2138, 2152, 2167, 2169, 2201, 2231, 2232, 2233, 2234, 2235, 2236, 2237, 2239, 2273, 2282); Energy Reorganization Act of 1974, secs. 201, 202, 206, 211 (42 U.S.C. 5841, 5842, 5846, 5851); Nuclear Waste Policy Act of 1982, sec. 306 (42 U.S.C. 10226); National Environmental Policy Act of 1969 (42 U.S.C. 4332); 44 U.S.C. 3504 note; Sec. 109, Pub. L. 96-295, 94 Stat. 783.
The revisions and additions read as follows:
(a) * * *
(1) * * *
(i) * * *
(E) * * *
(
(
(ii) * * *
(C) * * *
(
(
(iii) * * *
(D)
(iv) * * *
(C) Operation and Maintenance of Nuclear Power Plants, “Division 1: OM Code: Section IST”:
(
(
(
(
(b) * * *
(1) * * *
(iv)
(A) Subpart 2.19 in NQA-1-2017, NQA-1-2019 and NQA-1-2022 is not approved for use
(B) [Reserved]
(vi)
(xi)
(B)
(xiii)
(A)
(B)
(xiv)
(2)
(viii)
(ix)
(xxxiv)
(A) When using Nonmandatory Appendix U of the ASME BPV Code, Section XI, 2013 Edition through the 2019 Edition, the following conditions apply:
(
(
(B) Use of Nonmandatory Appendix U, Supplement U-S1 of the ASME BPV Code, Section XI, 2021 Edition is prohibited.
(xliv)
(A) Use of Nonmandatory Appendix Y, Article Y-2200 is prohibited.
(B) Use of Nonmandatory Appendix Y, Subarticle Y-2440 is prohibited.
(C) Use of Nonmandatory Appendix Y, Article Y-3200 is prohibited.
(xlv)
(xlvi)
(xlvii)
(xlviii)
(xlix)
(3) * * *
(ii)
(vii)
(x)
(g) * * *
(6) * * *
(ii) * * *
(D) * * *
(
(F) * * *
(
(
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for all MHI RJ Aviation ULC (Type Certificate Previously Held by Bombardier, Inc.) Model CL-600-2C10 (Regional Jet Series 700, 701 & 702), CL-600-2C11 (Regional Jet Series 550), CL-600-2D15 (Regional Jet Series 705), CL-600-2D24 (Regional Jet Series 900), and CL-600-2E25 (Regional Jet Series 1000) airplanes. This proposed AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. This proposed AD would require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by September 22, 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 MHI RJ Aviation Group, Customer Response Center, 3655 Ave. des Grandes-Tourelles, Suite 110, Boisbriand, Québec J7H 0E2 Canada; North America toll-free telephone 833-990-7272 or direct-dial telephone 450-990-7272; fax 514-855-8501; 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-2022-35, dated June 29, 2022 (Transport Canada AD CF-2022-35) (also referred to after this as the MCAI), to correct an unsafe condition for all MHI RJ Aviation ULC Model CL-600-2C10 (Regional Jet Series 700, 701 & 702), CL-600-2C11 (Regional Jet Series 550), CL-600-2D15 (Regional Jet Series 705), CL-600-2D24 (Regional Jet Series 900), and CL-600-2E25 (Regional Jet Series 1000) airplanes. The MCAI states that new or more restrictive airworthiness limitations have been developed.
The FAA is proposing this AD to address cracks in the principal structural elements of the fuselage and wings. The unsafe condition, if not addressed, could result in reduced the structural integrity of the airplane. You may examine the MCAI in the AD docket at
The FAA reviewed MHI RJ Aviation CRJ550/700/705/900/1000 Maintenance Requirements Manual (MRM) Part 2, CSP B-053, Revision 26, dated March 25, 2022. This service information manual specifies new or revised tasks to detect cracks in the principal structural elements of the fuselage and wings.
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 the 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 revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations.
This proposed AD would require revisions to certain operator maintenance documents to include new
The FAA estimates that this AD, if adopted as proposed, would affect 601 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
The FAA has determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the agency estimates the average total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).
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 September 22, 2023.
None.
This AD applies to all MHI RJ Aviation ULC (Type Certificate Previously Held by Bombardier, Inc.) Model CL-600-2C10 (Regional Jet Series 700, 701 & 702), CL-600-2C11 (Regional Jet Series 550), CL-600-2D15 (Regional Jet Series 705), CL-600-2D24 (Regional Jet Series 900), and CL-600-2E25 (Regional Jet Series 1000) airplanes, certificated in any category.
Air Transport Association (ATA) of America Code: 05, Time Limits/Maintenance Checks.
This AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The FAA is issuing this AD to address cracks in the principal structural elements of the fuselage and wings. The unsafe condition, if not addressed, could result in reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 60 days after the effective date of this AD, revise the existing maintenance or inspection program, as applicable, to incorporate the tasks identified in figure 1 to paragraph (g) of this AD as specified in MHI RJ Aviation CRJ550/700/705/900/1000 Maintenance Requirements Manual (MRM) Part 2, CSP B-053, Revision 26, dated March 25, 2022. The initial compliance time for doing the tasks is at the applicable times specified in MHI RJ Aviation CRJ550/700/705/900/1000 Maintenance Requirements Manual (MRM) Part 2, CSP B-053, Revision 26, dated March 25, 2022, or within 60 days after the effective date of this AD, whichever occurs later.
After the existing maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Transport Canada AD CF-2022-35, dated June 29, 2022, for related information. This Transport Canada AD may be found in the AD docket at
(2) For more information about this AD, contact Yaser Osman, 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) MHI RJ Aviation CRJ550/700/705/900/1000 Maintenance Requirements Manual (MRM) Part 2, CSP B-053, Revision 26, dated March 25, 2022.
(ii) [Reserved]
(3) For service information identified in this AD, contact MHI RJ Aviation Group, Customer Response Center, 3655 Ave. des Grandes-Tourelles, Suite 110, Boisbriand, Québec J7H 0E2 Canada; North America toll-free telephone 833-990-7272 or direct-dial telephone 450-990-7272; fax 514-855-8501; 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 supersede Airworthiness Directive (AD) 2018-02-10, which applies to certain Pratt & Whitney Division (PW) Model PW4074, PW4074D, PW4077, PW4077D, PW4084D, PW4090, and PW4090-3 engines. AD 2018-02-10 requires performing repetitive fluorescent penetrant inspections (FPIs) to detect cracks in the outer diffuser case (ODC), removal of any ODC that fails inspection, and requires updating the mandatory inspections in the Airworthiness Limitations Section (ALS) of the Instructions for Continued Airworthiness (ICA). Since the FAA issued AD 2018-02-10, PW developed a modification to reduce the susceptibility of ODC cracking. This proposed AD would retain the ALS update requirement from AD 2018-02-10, would require replacing certain ODC part numbers with parts eligible for installation, would expand the applicability to all ODC part numbers, and would adjust the compliance threshold of the FPIs of the ODC. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by September 22, 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 Pratt & Whitney Division, 400 Main Street, East Hartford, CT 06118; phone: (860) 565-0140; email:
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call (817) 222-5110.
Carol Nguyen, Aviation Safety Engineer, FAA, 2200 South 216th Street, Des Moines, WA 98198; phone: (781) 238-7655; 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 Carol Nguyen, Aviation Safety Engineer, FAA, 2200 South 216th Street, Des Moines, WA 98198. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.
The FAA issued AD 2018-02-10, Amendment 39-19163 (83 FR 2896, January 22, 2018), (AD 2018-02-10), for PW Model PW4074, PW4074D, PW4077, PW4077D, PW4084D, PW4090, and PW4090-3 engines with ODC part number (P/N) 50J775 or P/N 50J930, installed. AD 2018-02-10 was prompted by the discovery of multiple cracked ODCs. AD 2018-02-10 requires initial and repetitive FPIs of the ODC to detect cracks, and depending on the results of the FPI, replacement of any ODC that fails inspection. Also, AD 2018-02-10 requires updating the
Since the FAA issued AD 2018-02-10, PW determined that cracks on the ODC originated due to high stress in the area between Tt3 boss and thermocouple bracket boss. PW developed a modification to improve the surface area between Tt3 boss and thermocouple bracket boss to reduce the ODC's susceptibility to cracking.
Consequently, the FAA determined that it is necessary to expand the applicability to all ODC P/Ns, adjust the initial FPI threshold for the ODC to improve the inspection program, and to require certain ODCs to be replaced with an ODC that has been modified to lower the stresses in the area between Tt3 boss and thermocouple bracket boss. This condition, if not addressed, could result in failure of the ODC, uncontained ODC release, damage to the engine, and damage to the airplane.
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.
The FAA reviewed PW Alert Service Bulletin (ASB) PW4G-112-A72-347, Revision 4, dated September 1, 2022. This ASB provides guidance on performing FPIs on certain bosses of the ODC. 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 FAA reviewed PW Service Bulletin (SB) PW4G-112-72-357, dated February 25, 2019. This SB provides procedures to modify and re-identify ODC assemblies to lower the stresses in the area between the Tt3 boss and the thermocouple bracket boss.
This proposed AD would retain certain requirements of AD 2018-02-10. This proposed AD would require revising the ALS of the existing airplane maintenance manual or ICA and your existing approved maintenance program, as applicable, to include piece-part inspections of the ODC, would expand the applicability to include all engines, would require initial and repetitive FPIs, and depending on the results of the FPI, would require removal or re-inspection of the ODC. This proposed AD would also require replacement of certain ODCs with a part eligible for installation at next piece-part exposure.
The FAA estimates that this AD, if adopted as proposed, would affect 108 engines installed on airplanes of U.S. registry. The FAA has no way to determine the number of operators that will replace the ODC with a modified ODC or a zero-time ODC. As a result, the total cost on U.S. operators for these actions is not estimated.
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 that the 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) action by September 22, 2023.
This AD replaces AD 2018-02-10, Amendment 39-19163 (83 FR 2896, January 22, 2018).
This AD applies to Pratt & Whitney Division (PW) Model PW4074, PW4074D, PW4077, PW4077D, PW4084D, PW4090, and PW4090-3 engines.
Joint Aircraft System Component (JASC) Code 7240, Turbine Engine Combustion Section.
This AD was prompted by the discovery of multiple cracked outer diffuser cases (ODCs). We are issuing this AD to prevent failure of the ODC. This condition, if not addressed, could result in failure of the ODC, damage to the engine, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Within the compliance times specified in paragraphs (g)(1)(i) though (iii) of this AD, perform an initial high sensitivity fluorescent penetrant inspection (FPI) of the ODC T3 thermocouple probe boss (Tt3 boss) for crack indications in accordance with the Accomplishment Instructions, paragraph 1.F. of Part A or paragraph 1.B. of Part B, as applicable, of PW Alert Service Bulletin PW4G-112-A72-347, Revision 4, dated September 1, 2022 (ASB PW4G-112-A72-347, Rev 4).
(i) For an ODC that has accumulated less than 12,000 cycles since new (CSN) with no prior high sensitivity FPI of the ODC Tt3 boss, perform the high sensitivity FPI before accumulating 9,200 CSN or within 1,000 flight cycles (FCs), after the effective date of this AD, whichever occurs later.
(ii) For an ODC with unknown CSN or an ODC that has accumulated 12,000 CSN or more with no prior high sensitivity FPI of the ODC Tt3 boss, perform the high sensitivity FPI before accumulating 13,000 CSN or within 1,000 FCs, after February 26, 2018 (the effective date of AD 2018-02-10), whichever occurs later.
(iii) For an ODC that has undergone a high sensitivity FPI of the ODC Tt3 boss prior to the effective date of this AD that resulted in no crack indication, perform the high sensitivity FPI before accumulating 2,000 FCs since performance of the last FPI or during the next engine shop visit, whichever occurs first.
(iv) For an ODC that has undergone a high sensitivity FPI of the ODC Tt3 boss prior to the effective date of this AD that resulted in an indication of a crack, perform the actions required by paragraphs (g)(3)(i) through (iii) of this AD, as applicable.
(2) Thereafter, repeat the high sensitivity FPI of the ODC Tt3 boss at each engine shop visit or before exceeding 2,000 FCs from the last high sensitivity FPI of the ODC Tt3 boss, whichever occurs first, in accordance with the Accomplishment Instructions, paragraphs 1.F. of Part A or paragraph 1.B. of Part B, as applicable, of ASB PW4G-112-A72-347, Rev 4.
(3) If, during any inspection required by paragraphs (g)(1) or (2) of this AD, there is any crack indication, perform the actions specified in paragraphs (g)(3)(i) through (iii) of this AD.
(i) For engines installed on an aircraft, repeat the high sensitivity FPI or remove the ODC from service in accordance with the actions and compliance times specified in the Accomplishment Instructions, Part A, paragraphs 1.G. and 1.H., of ASB PW4G-112-A72-347, Rev 4.
(ii) For engines not installed on an aircraft, repeat the high sensitivity FPI or remove the ODC from service in accordance with the actions and compliance times specified in the Accomplishment Instructions, Part B, paragraphs 1.C. and 1.D., of PW ASB PW4G-112-A72-347, Rev 4.
(iii) For engines at an engine shop visit, before further flight, remove the ODC from service.
(4) Within 30 days after the effective date of this AD, revise the Airworthiness Limitations Section (ALS) of the existing engine maintenance manual or Instructions for Continued Airworthiness and the existing approved maintenance program, as applicable, to include the piece-part inspections of the ODC as defined in Table 1 to paragraph (g)(4) of this AD.
(5) For engines with ODC part number (P/N) 50J775 or 50J930 installed, at the next piece-part exposure after the effective date of this AD, replace the ODC with a part eligible for installation.
(1) For the purpose of this AD, an “engine shop visit” is any time the “M” flange is separated.
(2) For the purpose of this AD, a “piece-part exposure” is when the ODC is removed from the engine and fully disassembled.
(3) For the purpose of this AD, a “part eligible for installation” is an ODC with P/N 50J775-001, 50J775-002, 50J930-001, or 50J930-002.
(1) The Manager, AIR-520 Continued Operational Safety Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (j) of this AD and email to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Carol Nguyen, Aviation Safety Engineer, FAA, 2200 South 216th Street, Des Moines, WA 98198; phone: (781) 238-7655; 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 the AD specifies otherwise.
(i) Pratt & Whitney Alert Service Bulletin PW4G-112-A72-347, Revision 4, dated September 1, 2022.
(ii) [Reserved]
(3) For service information identified in this AD, contact Pratt & Whitney Division, 400 Main Street, East Hartford, CT 06118; phone: (800) 565-0140; email:
(4) You may view this service information at FAA, Airworthiness Products Section, Operational Safety Branch, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call (781) 238-7759.
(5) You may view this service information that is incorporated by reference at the
Commodity Futures Trading Commission
Notice of proposed rulemaking.
The Commodity Futures Trading Commission (“Commission” or “CFTC”) is proposing to amend the margin requirements for uncleared swaps applicable to swap dealers (“SDs”) and major swap participants (“MSPs”) for which there is no prudential regulator. The proposed amendment would revise the definition of “margin affiliate” to provide that certain collective investment vehicles (“investment funds” or “funds”) that receive all of their start-up capital, or a portion thereof, from a sponsor entity (“seeded funds”) would be deemed not to have any margin affiliates for the purposes of calculating certain thresholds that trigger the requirement to exchange initial margin (“IM”) for uncleared swaps. This proposed amendment (“Seeded Funds Proposal”) would effectively relieve SDs and MSPs from the requirement to post and collect IM with certain eligible seeded funds for their uncleared swaps for a period of three years from the date on which the eligible seeded fund's asset manager first begins making investments on behalf of the fund (“trading inception date”). The Commission is also proposing to eliminate a provision disqualifying the securities issued by certain pooled investment funds (“money market and similar funds”) that transfer their assets through securities lending, securities borrowing, repurchase agreements, reverse repurchase agreements, and similar arrangements from being used as eligible IM collateral, thereby expanding the scope of assets that qualify as eligible collateral (“Money Market Funds Proposal”). Additionally, the Commission is proposing an amendment to the haircut schedule set forth in a Commission Regulation to add a footnote that was inadvertently omitted when the rule was originally promulgated.
With respect to the proposed amendments, comments must be received on or before October 10, 2023.
You may submit comments, identified by RIN 3038-AF36, by any of the following methods:
•
•
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Please submit your comments using only one of these methods. Submissions through the CFTC Comments Portal are encouraged.
All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from
Amanda L. Olear, Director, 202-418-5283,
Section 4s(e) of the Commodity Exchange Act (“CEA” or “Act”)
The CFTC Margin Rule imposes IM requirements on uncleared swaps entered into by CSEs and certain specified counterparties. More specifically, Commission Regulation 23.152 requires CSEs to collect and post IM
Commission Regulation 23.161 sets forth a phase-in schedule for compliance with the CFTC Margin Rule.
Under this phase-in approach, a fund with MSE will come within the scope of the IM requirements if it undertakes an uncleared swap with a CSE. The CSE and the fund will not be required to post and collect IM for their uncleared swaps until the IM threshold amount of $50 million has been exceeded. The IM threshold amount will be calculated based on the credit exposure from uncleared swaps between the CSE and its margin affiliates on the one hand, and the fund and its margin affiliates on the other.
The CFTC Margin Rule provides that the IM requirements may be satisfied with only certain types of collateral. Commission Regulation 23.156(a)(1) sets forth the types of collateral that CSEs can post or collect as IM with covered counterparties, including cash funds, certain securities issued by the U.S. government or other sovereign entities, certain publicly traded debt or equity securities, securities issued by money market and similar funds, and gold.
Under Commission Regulation 23.156(a)(1)(ix), the securities of money market and similar funds
In January 2020, the CFTC's Global Markets Advisory Committee (“GMAC”) established a subcommittee of market participants to consider issues raised by
Among other things, the Margin Subcommittee Report asserted that the current criteria for determining whether a counterparty comes within the scope of the IM requirements unduly penalizes certain funds. Because, under accounting consolidation principles, a fund will generally be consolidated with its sponsor entity during the period in which the start-up capital provided by the sponsor entity exceeds that of third-party investors and represents up to 100 percent of the ownership interest in the fund (“seeding period”), such fund, referred to as a seeded fund, will be considered a margin affiliate of the sponsor entity.
The Report noted that regulators in other major financial markets, including Australia, Canada, the European Union (“EU”), and Japan, have adopted the Basel Committee on Banking Supervision and Board of the International Organization of Securities Commissions' (“BCBS/IOSCO”) Framework for margin requirements for non-centrally cleared derivatives (“BCBS/IOSCO Framework”)
The Margin Subcommittee Report also recommended that the Commission eliminate the asset transfer restriction in paragraph (C) of Commission Regulation 23.156(a)(1)(ix). The Report stated that “the ability to use redeemable securities in a pooled investment fund, more typically referred to as a money market fund (“MMF”), as eligible collateral in the U.S. has been severely restricted by [such] condition.”
The Report noted that MMFs use repurchase and similar arrangements to earn returns on cash and other high quality assets, to avoid any cash drag on performance, to diversify their investments, and to mitigate their potential exposure to their custodian's insolvency and any consolidation issues with respect to any cash held at the custodian.
Having considered the GMAC Subcommittee's arguments and based on its experience administering the CFTC Margin Rule for several years, the Commission preliminarily believes that, for the purpose of determining whether a CSE should exchange IM with a seeded fund for their uncleared swaps, the seeded fund should be treated as a separate legal entity, not affiliated with the sponsor entity, for a period of three years and subject to certain limitations. Similarly, the Commission preliminarily believes that the current restriction on the use of securities of money market and similar funds that transfer their assets through repurchase and similar arrangements should be removed.
The Commission is proposing to revise the definition of “margin affiliate” to provide that a seeded fund that meets certain requirements (described in further detail below) (“eligible seeded fund”), would be deemed not to have any margin affiliates for the purpose of calculating the fund's MSE and the IM threshold amount, for a period of three years from the fund's trading inception date (“eligible seeded fund exception”). The Commission is also proposing to define the term “eligible seeded fund” to set forth the conditions that investment funds must meet to qualify for the eligible seeded fund exception.
Under the CFTC Margin Rule, a company is a “margin affiliate” of another company if, based on accounting principles, either company consolidates the other, or both companies are consolidated with a third company, on a financial statement.
This proposed eligible seeded fund exception would effectively relieve CSEs that enter into uncleared swaps with an eligible seeded fund from the requirement to exchange IM with such fund for three years after the fund's trading inception date. In addition, uncleared swaps entered into between a CSE and an eligible seeded fund during the three-year period would continue to
The proposed eligible seeded fund exception is intended to address challenges confronted by seeded funds that have limited individual swaps exposure, but, due to their affiliation with an entity or group of entities, have on a collective basis sufficient AANA to meet the MSE threshold, therefore requiring CSEs undertaking uncleared swaps with the funds to post and collect IM with such funds. To limit the relief to only such funds, the proposed treatment would be applicable only to funds that have one or more margin affiliates that are already subject to the IM requirements and post and collect IM pursuant to Commission Regulation 23.152. Also, the Commission notes that notwithstanding the proposed eligible seeded fund exception, CSEs would still be required to count the uncleared swaps that they undertake with eligible seeded funds for purposes of calculating their own AANA.
Market participants, including the members of the GMAC Margin Subcommittee, have argued that absent relief, seeded funds would experience a performance drag given that a portion of their investment would be committed to, and segregated as, IM and would also incur operational costs that are not commensurate with the size of their uncleared swaps activity and the risks of their swaps. In addition, the overall ability of start-up funds to attract new investors may be compromised as a result.
In its Report, the GMAC Margin Subcommittee discussed the costs that seeded funds would incur if the funds were consolidated with their sponsor entities and were treated as margin affiliates of their sponsor entities, including the cost of setting up and maintaining margin accounts and establishing custodial arrangements to segregate IM collateral under Commission Regulation 23.157.
The Margin Subcommittee Report stated that although seeded funds may be consolidated with other entities on a financial statement, they are legally and operationally distinct and, as a result, may not be able to share information about their exposure for purposes of managing the $50 million IM threshold amount above which IM for uncleared swaps must be exchanged. In addition to operational challenges, the Report indicated that potential confidentiality obligations may prevent the different affiliates within the seeded fund's consolidated group from sharing uncleared swaps exposure information. As an example, the Report noted that because of regulatory restrictions, an insurance company that sponsors a seeded fund would not be permitted to share information about the fund's trading activity with an affiliate engaging in swap transactions for purposes of hedging general insurance risk.
Finally, the Report stated that seeded funds that do not otherwise hold assets qualifying as eligible IM collateral under Commission Regulation 23.156
The Commission notes that the proposed eligible seeded fund exception is consistent with the approach in other countries. Jurisdictions such as Australia, Canada and the EU have adopted provisions that permit investment funds to be treated as distinct, separate entities for purposes of calculating the relevant IM thresholds, subject to conditions similar to those that the Commission intends to adopt through the proposed definition of “eligible seeded fund” discussed below.
The proposed approach is also consistent with the BCBS-IOSCO Framework, which provides that investment funds should be treated as separate legal entities when applying the IM threshold amount provided that they are distinct legal entities that are not collateralized or otherwise guaranteed or supported by other investment funds or the investment advisor in the event of fund insolvency or bankruptcy.
The Commission recognizes, however, that the proposed amendments would be a departure from the prudential regulators' approach, whose margin requirements for uncleared swaps include a definition of “margin affiliate” that is equivalent to the current definition in the CFTC Margin Rule. Furthermore, the prudential regulators have reserved the right to include any entity as an affiliate or a subsidiary based on the conclusion that an entity may provide significant support to, or may be materially subject to the risks of losses of, another entity.
The Commission preliminarily believes that the proposed approach supports the CFTC Margin Rule's objective of imposing margin requirements that are commensurate with the risk of uncleared swaps entered into by CSEs.
The Commission also preliminarily believes that safeguards already present in the CEA and CFTC regulations would mitigate the increase in uncollateralized credit risk resulting from swap transactions between CSEs and seeded funds that would be relieved from the IM requirements given the disaggregation of eligible seeded funds from their sponsor entities and other affiliated entities for purposes of calculating the funds' MSE and the IM threshold amount. The Commission notes that notwithstanding the relief, uncleared swap transactions between CSEs and eligible seeded funds would still be subject to the VM requirements.
As an additional safeguard, the proposed eligible seeded fund exception would be applicable only for a period of three years from an eligible seeded fund's trading inception date. The three-year term is designed to cover the period during which the fund would work towards establishing a performance track record and towards attracting unaffiliated investors.
In adopting the CFTC Margin Rule, the Commission stated that the requirement to calculate MSE and the IM threshold amount on a consolidated basis was intended to prevent CSEs and their counterparties from creating legal entities and netting sets that have no economic basis and are constructed solely for the purpose of applying additional thresholds to evade margin requirements.
In addition, the Commission proposes to make the eligible seeded fund exception available only with respect to funds that have a bona fide business and economic purpose, meaning that the funds are not created for the sole purpose of evading the IM compliance thresholds. Rather, the exception is intended for funds that engage in genuine efforts to test their investment strategy and distribute the funds' shares to third-party investors.
The Commission proposes to amend Commission Regulation 23.151 by adding a definition for the term “eligible seeded fund.” “Eligible seeded fund” would be defined as a collective investment vehicle that has received a part or all of its start-up capital from a parent and/or affiliate (each, a sponsor entity) and that meets certain specified conditions.
A seeded fund would meet the proposed definition of eligible seeded fund if, among other conditions: (i) the fund is a distinct legal entity from each sponsor entity; (ii) the fund is managed by an asset manager pursuant to an agreement that requires the fund's assets to be managed in accordance with a specified written investment strategy; (iii) the fund's asset manager has independence in carrying out its management responsibilities and exercising its investment discretion, and to the extent applicable, has independent fiduciary duties to other investors of the fund; and (iv) the fund's written investment strategy includes a written plan for reducing each sponsor entity's ownership interests in the fund that stipulates divestiture targets over the three-year period after the seeded fund's trading inception date. Additionally, to meet the “eligible seeded fund” definition, in respect of any of the seeded fund's obligations, a fund must not be collateralized, guaranteed, or otherwise supported, directly or indirectly, by any sponsor entity, any margin affiliate of any sponsor entity, other collective investment vehicles, or the fund's asset manager. These conditions are designed to ensure that the sponsor entity would not retain a level of influence or exposure that is materially above that of other minority or passive investors and that the fund would follow a genuine plan to emerge from the seeding phase by attracting unaffiliated investors.
To ensure that the three-year period contemplated by the eligible seeded fund exception is not reinstated, due to rollovers of fund assets or similar activities, the proposed definition would require that the seeded fund has not received any of its assets, directly or indirectly, from an eligible seeded fund that has relied on the proposed exception.
Furthermore, the Seeded Funds Proposal is intended to be limited to those seeded funds that, absent amendments to the CFTC Margin Rule, would have to exchange IM due to their consolidation with a group that collectively exceeds the thresholds triggering compliance with the IM requirements. That is, the Seeded Funds Proposal, consistent with the Margin Subcommittee Report, is intended to address seeded funds that are “seeded” by parent entities that have MSE and thus cause the seeded funds to come within the scope of the IM requirements. For purposes of targeting these seeded funds, the proposed definition of “eligible seeded fund” would require as a condition for qualification that at least one of the seeded fund's margin affiliates must be subject to the IM requirements and must be required to post and collect IM pursuant to Commission Regulation 23.152.
Finally, the proposed definition of “eligible seeded fund” would provide that the seeded fund must not be a securitization vehicle. This condition is designed to further limit the proposed treatment of seeded funds only to funds subject to the Margin Subcommittee Report's recommendation. The Commission notes that in adopting the CFTC Margin Rule, despite receiving multiple comments from industry representatives to exclude securitization vehicles from the definition of FEU, and recommendations subsequent to the adoption of the rule, the Commission has maintained the position that there are sufficient reasons to keep these entities within the scope of the IM requirements. The Commission stated in the preamble to the final CFTC Margin Rule that the relevant IM compliance thresholds would address concerns related to the applicability of the IM requirements to these entities.
In adopting the CFTC Margin Rule, the Commission modified the proposed definition of “margin affiliate,” which relied on the concept of legal control as a criterion for affiliation, to the current definition based on accounting consolidation, in consideration of a concern that the proposed definition may have been over-inclusive. The Commission noted that the accounting consolidation analysis typically results in a positive outcome (consolidation) at a higher level of an affiliation relationship than the 25 percent voting interest standard of the legal control test.
The Commission recognized, however, that consolidation between a seeded fund and the sponsor may occur during the seeding period or other periods in which the sponsor may hold an outsized portion of the fund's interest. The Commission stated that during those periods, when an entity may hold up to 100 percent of the ownership interests of an investment fund, it was appropriate to treat the investment fund as an affiliate.
The Commission notes that subsequently, in letters to the CFTC, SIFMA AMG (on behalf of its asset manager members) requested relief from the treatment as margin affiliate for seeded funds, consistent with the arguments made in the Margin Subcommittee Report described above. While acknowledging that a sponsor of a seeded investment fund has influence beyond that of a passive, unaffiliated investor, SIFMA AMG urged that seeded funds not be consolidated with their sponsors in applying the CFTC's margin requirements because there are structural and contractual safeguards that limit the sponsor's influence and exposure with respect to the seeded fund.
Further, the Margin Subcommittee Report noted that neither the sponsor nor its commonly consolidated entities controls or has transparency into the management or trading of the seeded fund.
These arguments highlight the safeguards generally exhibited in seeded funds. As previously noted, the Commission is proposing to incorporate these safeguards, among other conditions, in the proposed definition of “eligible seeded fund” as requirements to be met by a fund in order to benefit from the proposed treatment for eligible seeded funds, discussed in more detail above. In proposing these conditions, the Commission seeks to ensure that eligible seeded funds are sufficiently independent and risk-remote from other entities in their group such that treating them separately for purposes of determining whether the thresholds for compliance with the IM requirements have been met would be justified.
In particular, the proposed requirements that the fund is managed in accordance with a written investment strategy, by an asset manager that maintains independence in carrying out its management responsibilities and exercising its investment discretion, and that, to the extent applicable, has independent fiduciary duties to other investors in the fund, seek to ensure that no sponsor entity or an affiliate of a sponsor entity has control or transparency into the management or trading of the seeded fund. Furthermore, the proposed condition that the fund's investment strategy follows a written plan for reducing each sponsor entity's ownership interest in the fund aims to reserve the benefit of the proposed approach to seeded funds that have a genuine economic purpose and intentions to emerge from the seeding phase.
In addition, the proposed definition of “eligible seeded fund” would prohibit a fund sponsor entity, entities affiliated with a sponsor entity, other collective investment vehicles, or the fund's asset manager from collateralizing, guaranteeing or otherwise directly or indirectly providing support in respect of any of the fund's obligations. The Commission proposes this condition in recognition that the sponsor of a seeded fund or its asset manager may be motivated to provide financial assistance to the seeded fund whose uncleared swaps may be uncollateralized as a result of the Seeded Funds Proposal, which might heighten the risk of the fund's swap positions and weaken the fund's financial condition. The sponsor entity or the asset manager may also be inclined to provide financial assistance to the fund because of reputational or other concerns even in the absence of a guarantee or formal commitment, and at the risk of exhausting its own resources, raising the risk of contagion and systemic risk, in particular during times of widespread financial stress. The Commission preliminarily believes that the requirements in the proposed definition of “eligible seeded fund,” which seek to ensure the fund's genuine independence, would serve as effective safeguards against financial contagion.
The Commission also intends to rely on tools that already exist under the CEA and the Commission regulations to address evasion concerns. In particular, the Commission notes that Commission Regulation 23.402(a)(ii) requires CSEs to have written policies and procedures to prevent the evasion, or participation in or facilitation of an evasion, of any provision of the CEA or the Commission regulations.
1. Under the Seeded Funds Proposal, eligible seeded funds would be deemed not to have margin affiliates for purposes of calculating the fund's MSE and the IM threshold amount during a period of three years from the fund's trading inception date. As such, CSEs that undertake uncleared swaps with such funds and would otherwise be required to exchange IM with the funds, may be relieved from such obligation, as only each fund's individual exposure would be considered in determining whether the IM requirements apply to uncleared swaps between CSEs and the fund. As a result, less margin may be collected and posted for uncleared swaps than would be otherwise required under the current requirements. Is the Seeded Funds Proposal appropriate in light of the resulting potential uncollateralized swap risk?
2. The Commission recognizes that the proposed eligible seeded fund exception would not only benefit the eligible seeded funds but would also relieve CSEs from their obligation to post IM with seeded funds that would otherwise come within the scope of the CFTC IM requirements. Should only the eligible seeded fund, and not its CSE counterparty, be relieved of the IM obligation?
3. Should the Commission impose any additional limits or conditions to the proposed eligible seeded fund exception such as: (i) imposing a separate MSE and/or IM threshold amount, calculated on the basis of the eligible seeded fund's individual exposure and proportionate to the perceived risks associated with funds' swap activities, (ii) imposing a limit on the total number of eligible seeded funds to which a sponsor entity provides start-up capital that may rely on the eligible seeded fund exception, or (iii) requiring that all eligible seeded funds, consolidated within the same group on the basis of accounting principles, aggregate their exposures for purposes of calculating the MSE and IM threshold amounts that apply to such funds?
4. What are the costs associated with a seeded fund calculating IM and establishing a relationship with a custodian to transfer IM?
5. The proposed amendments to Commission Regulation 23.151, in particular the requirements in the proposed definition of “eligible seeded fund,” aim to ensure that the relevant funds are genuinely and practically independent and risk-remote from their sponsor entities and other affiliates. Do the proposed amendments incorporate sufficient safeguards to achieve this goal? Given that other entities such as sponsor entities or the asset manager may be incentivized to provide resources to a seeded fund in financial distress even in the absence of an
6. The Commission proposes to include, among other conditions, a requirement providing that a fund would qualify as an eligible seeded fund only if one or more of the seeded fund's margin affiliates is required to post and collect IM pursuant to Commission Regulation 23.152. This condition is intended to limit the availability of the proposed eligible seeded fund exception only to funds that, for reasons described in the Margin Subcommittee Report, are disadvantaged domestically and globally due to their affiliation with a group that has MSE. Is this condition appropriate? Should the condition be amended to ensure that the Commission is appropriately circumscribing the proposed treatment of eligible seeded funds?
7. The Commission also proposes to include, among other conditions, a requirement providing that to qualify as an eligible seeded fund, the seeded fund's investment strategy must follow a written plan for reducing each sponsor entity's ownership interest in the seeded fund that stipulates divestiture targets over the three-year period after the seeded fund's trading inception date. Should the Commission include more specific requirements in connection with the written plan?
8. The Prudential Regulators Margin Rule contains a definition of “margin affiliate” that is equivalent to the current definition under the CFTC Margin Rule. Furthermore, the prudential regulators have reserved the right to include any entity as an affiliate or a subsidiary based on the conclusion that an entity may provide significant support to, or may be materially subject to the risks or losses of, another entity. If the Commission amends Commission Regulation 23.151, counterparties that trade with both prudentially regulated SDs and CFTC-regulated SDs may need to adjust their swap-related documentation and collateral management systems to reflect the different margin requirements that may apply under the CFTC's and the prudential regulators' rules. In that regard, the Commission requests information on the potential additional costs associated with maintaining two separate and distinct documentation and collateral management processes. How much weight should the Commission give with respect to the possible challenge that counterparties may need to maintain two separate and distinct documentation and collateral management systems? Should the Commission proceed to adopt the proposed amendments to Commission Regulation 23.151 if the prudential regulators do not adopt similar regulatory changes?
9. The Commission intends that the final rule will become effective 30 days after its publication in the
The Commission proposes to amend Commission Regulation 23.156(a)(1)(ix) to eliminate the restriction on the use of securities of money market and similar funds that transfer their assets through repurchase or similar arrangement (the asset transfer restriction). The Commission is also proposing an amendment to the haircut schedule set forth in Commission Regulation 23.156(a)(3)(i)(B) to add a footnote that was inadvertently omitted when the rule was originally promulgated.
In adopting the CFTC Margin Rule, the Commission added redeemable securities in money market and similar funds to the list of eligible collateral in response to comments arguing for the inclusion of MMF securities as eligible collateral for IM.
As discussed above, market participants, and the GMAC Margin Subcommittee, have urged the Commission to eliminate the asset transfer restriction in paragraph (C), noting that it disqualifies the securities of most MMFs and significantly restricts the ability of swap counterparties to use such form of collateral.
MMFs are regulated, short-term investment vehicles that are subject to liquidity and diversification requirements under U.S. regulations, such as SEC Rule 2a-7.
The elimination of the asset transfer restriction in paragraph (C) of Commission Regulation 23.156(a)(1)(ix) would allow for a broader range of money market and similar fund securities to qualify as eligible IM collateral.
The Commission preliminarily believes that expanding the scope of eligible money market and similar fund securities may lead to more efficient collateral management practices. In particular with respect to the use of MMF securities as IM collateral, the Margin Subcommittee Report noted that many custodians offer money market sweep programs, which facilitate buy-side market participants' timely meeting margin calls in cash that is subsequently used to purchase MMF securities, thereby avoiding the settlement delays or additional costs associated with the purchase and posting of non-cash assets.
Moreover, the Report stated that the use of MMF securities as collateral may enable market participants to avoid potential negative interest rate charges that may be applied by custodian banks on cash collateral.
Allowing a broader selection of money market and similar fund securities to serve as collateral may address the potential concentration of margin collateral in the securities of a few MMFs.
The Commission explained in the preamble to the CFTC Margin Rule that the asset transfer restriction in paragraph (C) of Commission Regulation 23.156(a)(1)(ix) was included to ensure consistency with the prohibition against rehypothecation of IM collateral under Commission Regulation 23.157(c)(1). After further consideration and based on its experience implementing the margin requirements for several years, the Commission now preliminarily believes that although these rules are similar in that they aim to mitigate loss, the objectives of these rules are distinguishable as further discussed below.
Commission Regulation 23.157 provides for the segregation of IM collateral with a third-party custodian to ensure that: (i) the IM is available to a counterparty when its counterparty defaults and a loss is realized that exceeds the amount of VM that has been collected as of the time of default; and (ii) the IM is returned to the posting party after its swap obligations have been fully discharged.
In contrast, Commission Regulation 23.156(a) aims to identify assets as eligible collateral that are liquid, and, with haircuts, will hold their value in times of financial stress.
For example, if the counterparty to a money market and similar fund in a repurchase or similar arrangement does not fulfill its obligation under the
As discussed above, the asset transfer restriction was included in the CFTC Margin Rule to provide consistency with the prohibition against rehypothecation of IM collateral, given the possibility that assets exchanged by parties in a repurchase or similar arrangement might be lost in a chain of transactions similar to the chain of hypothecations that the Commission intended to avert by prohibiting the rehypothecation of IM collateral by custodians under Commission Regulation 23.157(c)(1). However, unlike in the rehypothecation situation, where collateral might be lost at any link of the chain with the posting counterparty in the uncleared swap transaction potentially losing its collateral without any recourse, in the repurchase or similar arrangement context, each party to the arrangement would be partially secured because the parties would exchange assets with each other under the arrangement. Hence, the risk of loss would be mitigated. If a party to the repurchase arrangement defaults by failing to return assets tendered by its counterparty, the counterparty would not lose the entire value of its assets as it would hold the assets committed by the other party under the arrangement.
While acknowledging the concerns associated with repurchase and similar arrangements, the Commission preliminarily believes that the flexibility and safety that it aimed to achieve by specifically identifying assets as eligible collateral, including certain money market and similar fund securities, may be advanced even if repurchase and similar arrangements are not restricted for the purpose of qualifying money market and similar fund securities as eligible collateral. In that regard, based on its experience administering the CFTC Margin Rule, the Commission preliminarily believes that risks associated with repurchase and similar arrangements would be adequately addressed even in the absence of the asset transfer restriction by safeguards already present in the CFTC regulations, as further discussed below, which, in the Commission's view, can achieve the desired level of safety with respect to fund securities without restricting a fund's ability to undertake repurchase or similar transactions.
First, Commission Regulation 23.156(a)(1)(ix)(A) and (B) qualify as eligible collateral the securities of money market and similar funds that invest only in securities issued or unconditionally guaranteed by the U.S. Department of the Treasury, the European Central Bank or certain other sovereign entities, and cash. The Commission preliminarily believes that these provisions ensure that money market and similar fund securities present the fundamental characteristics of liquidity and value stability contemplated by the CFTC Margin Rule.
Second, Commission Regulation 23.156(c) requires that CSEs monitor the market value and eligibility of all collateral and, to the extent that the market value has declined, promptly collect or post additional eligible collateral to maintain compliance with Commission Regulations 23.150 through 23.161.
In addition, section 4s(j)(2) of the CEA requires CSEs to adopt a robust and professional risk management system that is adequate for the management of their swap activities,
Given these safeguards and the recognition that the asset transfer restriction is severely limiting the use of money market and similar fund securities as eligible collateral, the Commission preliminary believes that it is appropriate to eliminate the asset transfer restriction. The Commission also notes that the elimination of the restriction would bring the CFTC's eligible collateral framework more in line with the SEC approach, which does not impose asset transfer restrictions on funds whose securities are used as collateral for margining purposes and expressly permits the use of government money market fund securities as collateral, thereby potentially leading to a reduction in costs for those market participants that dually register as SDs and security-based swap SDs with the CFTC and the SEC, respectively.
Commission Regulation 23.156(a)(3) sets forth percentage discounts to be applied to the value of eligible collateral collected or posted to satisfy IM requirements, varying according to asset class (“haircut requirements”).
Although the Commission intended to align its margin rule for uncleared swaps with the Prudential Regulators Margin Rule, in adopting its rule, the Commission inadvertently omitted a footnote to the haircut schedule included in the Prudential Regulators Margin Rule.
10. Does the existing asset transfer restriction significantly limit the use of money market and similar fund securities as eligible collateral under the CFTC Margin Rule?
11. Under the Money Market Funds Proposal, the securities of certain money market and similar funds that engage in repurchase or similar arrangements would qualify as eligible collateral. A money market and similar fund that engages in asset transfer transactions under a repurchase or similar arrangement may be exposed to increased risks, which may affect the liquidity and value of the fund's securities pledged as collateral under the CFTC Margin Rule. In light of the potential increased risk, should the Commission consider an alternative to the proposed rule amendment, such as allowing the securities of money market and similar funds to qualify as eligible collateral only if a fund's repurchase or similar arrangements are cleared? Should the Commission impose any additional limits or conditions, such as restrictions on the type and terms of the repurchase or similar arrangements permitted for money market and similar funds for their shares to qualify as eligible collateral?
12. If the Commission eliminates the asset transfer restriction, should the Commission impose an additional haircut beyond that required by the haircut schedule in Commission Regulation 23.156(a)(3), as revised by the proposed amendment? If an additional haircut were to be adopted, what should the haircut be and how should the haircut be calculated? Should such an additional haircut be proportionate to the net asset value of the assets of a money market and similar fund that are subject to repurchase or similar arrangements? Or instead, should the additional haircut be a fixed percentage similar to the percentages applicable to other assets that qualify as eligible collateral under the haircut schedule, as it may be less complex to administer? Should such additional fixed haircut apply to all securities of money market and similar funds that are used as eligible collateral, or be applicable only to such securities of money market and similar funds that engage in repurchase or similar arrangements?
13. Given the potential impact that repurchase or similar agreements may have on the liquidity and value of securities of money market and similar funds that may be used as eligible collateral, should there be a percentage cap on the amount of assets that a fund can use for repurchase or similar arrangements, such as 10 percent of the total net asset value of the fund?
14. To gain a better understanding of the risks posed by repurchase and similar arrangements, the Commission requests information concerning the types of counterparties that typically face money market and similar funds in repurchase or similar agreements; the extent to which repurchase and similar arrangements are used by money market and similar funds; and whether the market treats differently money market and similar funds according to the types of repurchase and similar arrangements the funds enter into and the extent of repurchase agreements or arrangements the funds engage in. Further, the Commission requests comment with respect to the manner in which, and the extent to which, CSEs will meet their obligation to monitor the value and suitability of securities of money market and similar funds pledged as margin collateral where the funds engage in repurchase or similar arrangements.
15. Are the regulatory safeguards referenced in the Money Market Funds Proposal adequate to address the potential risks that may arise from the proposal? Are there other regulatory safeguards that the Commission should consider?
16. Are there any risks associated with the Money Market Funds Proposal that the Commission has not considered? In addition to the possible measures discussed above, including a possible additive haircut, or a percentage cap on the amount of assets that funds could use in repurchase and similar agreements, are there other measures that the Commission could take to mitigate such risks?
17. The Prudential Regulators Margin Rule contains an equivalent asset transfer restriction. If the Commission amends Commission Regulation 23.156, counterparties that trade with both prudentially regulated SDs and CFTC-regulated SDs may need to adjust their swap-related documentation and collateral management systems to reflect the different treatments for fund securities under the CFTC's and the prudential regulators' rules. In that regard, the Commission requests information on the potential additional costs associated with maintaining two separate and distinct documentation and collateral management processes. How much weight should the Commission give with respect to the possible challenge that counterparties may need to maintain two separate and distinct documentation and collateral management systems? Should the Commission proceed to adopt the proposed amendments to Commission Regulation 23.156 if the prudential regulators do not adopt similar regulatory changes?
18. The Commission intends that the final rule will become effective 30 days after its publication in the
The Regulatory Flexibility Act (“RFA”) requires Federal agencies to consider whether the rules they propose pursuant to the notice-and-comment provisions of the Administrative Procedure Act, or any other law, will have a significant economic impact on a substantial number of small entities and provide a regulatory flexibility analysis respecting the impact or issue a certification that the rule does not have such impact.
Accordingly, the Chairman, on behalf of the Commission, hereby certifies pursuant to 5 U.S.C. 605(b) that the proposed amendments will not have a significant economic impact on a substantial number of small entities.
The Paperwork Reduction Act of 1995 (“PRA”)
Section 15(a) of the CEA requires the Commission to consider the costs and benefits of its actions before promulgating a regulation under the CEA.
As described in more detail above, under the Seeded Funds Proposal, the Commission is proposing to amend the definition of “margin affiliate” to provide for a limited eligible seeded fund exception, pursuant to which, during a period of three years after the fund's trading inception date, a seeded fund meeting certain specified requirements would be deemed to not have margin affiliates for purposes of calculating the fund's MSE and the IM threshold. This proposed treatment for eligible seeded funds would effectively relieve CSEs that enter into uncleared swaps with certain seeded funds from the requirement to exchange IM with the seeded funds during the three-year period after the funds' trading inception date. The Seeded Funds Proposal would make the proposed treatment available only with respect to eligible seeded funds that, among other requirements: (i) are distinct legal entities from each sponsor entity; (ii) have one or more margin affiliates that are required to post and collect IM; (iii) are managed by an asset manager pursuant to an agreement that requires the assets of the fund to be managed in accordance with a specified written investment strategy; (iv) have an asset manager who maintains independence in carrying out its management responsibilities and exercising its investment discretion, and has independent fiduciary duties to other investors in the fund (if any), such that no sponsor entity or any margin affiliate of a sponsor entity controls or has transparency into the management or trading of the seeded fund; (v) follow a written plan for the reduction of the sponsor entity's ownership interest in the fund that stipulates divestiture targets over the three-year period after the seeded fund's trading inception date; (vi) are not collateralized, guaranteed or otherwise supported, directly or indirectly by any sponsor entity, any margin affiliate of a sponsor entity, other collective investment vehicles, or the seeded fund's asset manager, in respect of any of the fund's obligations; (vii) have not received any of their assets, directly or indirectly, from an eligible seeded fund that has relied on the proposed eligible seeded fund exception; and (viii) are not securitization vehicles.
Under the Money Market Funds Proposal, the Commission is proposing to eliminate the asset transfer restriction in paragraph (C) of Commission Regulation 23.156(a)(1)(ix), which has the effect of disqualifying as eligible collateral the securities of money market and similar funds that transfer their assets through repurchase or similar arrangements. The Margin Subcommittee Report indicated that the asset transfer restriction significantly limits the money market fund securities that are available for use as collateral under the CFTC Margin Rule.
The baseline against which the benefits and costs associated with the proposed rule amendments are compared is the uncleared swaps markets as they exist today, including the treatment of seeded funds and the securities of money market and similar funds under the current CFTC Margin Rule.
The Commission notes that the consideration of costs and benefits below is based on the understanding that the markets function internationally, with many transactions involving U.S. firms taking place across international boundaries; with some Commission registrants being organized outside of the United States; with leading industry members typically conducting operations both within and outside the United States; and with industry members commonly following substantially similar business practices wherever located. Where the Commission does not specifically refer to matters of location, the below discussion of costs and benefits refers to the effects of these proposed amendments on all activity subject to the proposed amended regulations, whether by virtue of the activity's physical location in the United States or by virtue of the activity's connection with activities in, or effect on, U.S.
The Commission recognizes that the proposed rules may impose additional costs on market participants, including CSEs. Although the Commission has endeavored to assess the expected costs and benefits of the proposed rulemaking in quantitative terms, due to the lack of data and information to estimate those costs, the Commission has identified and considered the costs and benefits of the proposal in qualitative terms. The lack of data and information to estimate costs is attributable to the nature of the proposal and uncertainty relating to how particular market participants would implement the proposed rules. The Commission specifically requests data and information from market participants and other commenters to allow it to better estimate the costs of the proposal.
The Seeded Funds Proposal would effectively relieve CSEs entering into uncleared swaps with eligible seeded funds from the requirement to collect IM from the funds, subject to specified conditions. Absent the Seeded Funds Proposal, seeded funds would be disadvantaged domestically and globally in comparison to similar investment funds that are not margin affiliates of an entity required to exchange IM or are subject to the rules of jurisdictions such as Australia, Canada and the EU that treat certain investment funds as separate legal entities, consistent with the international standards established by the BCBS-IOSCO Framework.
The Commission preliminarily believes that the Seeded Funds Proposal would tend to benefit seeded funds whose AANA falls below the $8 billion MSE threshold and that, given their level of swap activity, such seeded funds would pose relatively low risk to the uncleared swaps market and the U.S financial system in general. In that regard, the Margin Subcommittee Report stated that seeded funds have limited notional exposure and their capitalization typically does not exceed $50-100 million.
As a result, in the Commission's preliminary view, the Seeded Funds Proposal, if adopted, would address seeded funds that tend to engage in less uncleared swap trading activity and, in the aggregate, pose less systemic risk than entities that meet the MSE threshold. The impacted eligible seeded funds, which would be in an initial stage of development, would presumably have fewer resources to devote to IM compliance and hence would benefit from being discharged from posting IM during their seeding period without contributing significantly to systemic risk. The eligible seeded fund's sponsor entities and their margin affiliates that do not independently qualify for the proposed eligible seeded fund exception would continue to include the eligible seeded funds' exposure in their calculation of the MSE and IM threshold amount. The CSE counterparty to the eligible seeded fund would also still be required to count the uncleared swaps that it undertakes with the eligible seeded fund for purposes of calculating its own AANA. The Commission preliminarily believes that the flexibility provided by the eligible seeded fund exception would be instrumental for investment funds during the seeding period when funds typically use all their resources to establish a performance track record to attract unaffiliated investors.
In addition, the Commission believes that the Seeded Funds Proposal would be beneficial for CSEs that enter into swap transactions with investment funds. As a result of the proposed amendments, CSEs would apply a consistent approach in their swap dealing activities with U.S. and non-U.S. investment funds, which may lead to cost efficiencies. Also, as noted in the Margin Subcommittee Report, a consistent approach to seeded funds would reduce the incentive for non-U.S. funds to avoid business with CSEs given the perceived more onerous treatment of funds in the U.S.
The proposed eligible seeded fund exception may also incentivize some market participants to expand their swap business or enter into the swaps markets because, by counting their AANA and uncleared swaps credit exposure individually, seeded funds may not meet the thresholds that would bring them within the scope of the IM requirements. This would relieve CSEs entering into uncleared swaps with the funds from the requirement to exchange IM with the funds. In turn, the elimination of IM-related costs may encourage uncleared swaps trading between CSEs and investment funds and increase the pool of potential swap counterparties, enhancing competition and liquidity and facilitating price discovery in the uncleared swaps markets.
Amending the definition of “margin affiliate” to provide for a limited eligible seeded fund exception under which seeded funds would be deemed to not have margin affiliates for purposes of calculating the funds' MSE and the IM threshold amount, subject to specified conditions, may lead to the exchange of less margin between a CSE and a seeded fund. The Commission recognizes that the uncollateralized exposure that may result from the proposed change to the “margin affiliate” definition could increase credit risk associated with uncleared swaps. The Commission believes, however, that a number of safeguards exist to mitigate this risk. The Commission notes that seeded funds that would qualify for the eligible seeded fund exception would typically be smaller entities that have limited swaps activity.
As such, the eligible seeded fund exception under the Seeded Funds Proposal would primarily impact the exchange of IM between a CSE and investment funds that are in their seeding period. During that period, such investment funds would pose less risk to a CSE counterparty and the financial system as a whole given the small size of the funds and the scope of their derivatives activity. To ensure that
In certain circumstances, the increase in uncollateralized credit risk resulting from the Seeded Funds Proposal could also negatively impact the sponsor entity or the asset manager of a seeded fund. In particular, if a seeded fund is facing financial distress, a sponsor entity or the fund's asset manager may be incentivized to intervene, because of reputational risks or other concerns, and contribute additional resources even in the absence of an explicit business arrangement to provide financial support or a guarantee. Similarly, if the fund is suffering the consequences of a swap counterparty default, the sponsor entity or the asset manager may contribute financial resources to improve the fund's condition and increase its own exposure, potentially putting at risk its own financial position. Thus, the fund's uncollateralized exposure may lead the sponsor entity or the asset manager to incur risks, increasing the potential for contagion and systemic risk. To account for these risks, the Commission is proposing to define the term “eligible seeded fund” to incorporate requirements meant to ensure that seeded funds are genuinely independent and that the risks associated with their activities are not assumed by other entities such as their sponsor entities or asset managers. Specifically, among other conditions, the seeded fund would have to be a distinct legal entity from each sponsor entity that is not collateralized, guaranteed, or otherwise supported, directly or indirectly, by any sponsor entity, any margin affiliate of any sponsor entity, other collective investment vehicles, or the seeded fund's asset manager, in respect of any of the fund's obligations. This should mitigate the incentive for the sponsor's assets to be used if the seeded fund fails.
Treating seeded funds as separate unaffiliated legal entities for purposes of calculating the thresholds for determining whether compliance with the IM requirements is required could also incentivize swap counterparties to create legal entities that have no economic basis and are constructed solely for the purpose of applying additional thresholds to evade margin requirements. To address these concerns, the Commission proposes to limit the applicability of the eligible seeded fund exception by providing that eligible seeded funds would be deemed not to have margin affiliates solely for the purpose of calculating the fund's MSE and IM threshold amount. As such, under the Seeded Funds Proposal, the eligible seeded funds' sponsor entities and their margin affiliates would continue to include the eligible seeded funds' exposures in the calculation of the IM compliance thresholds applicable to such sponsor entities and margin affiliates. In addition, the Commission proposes to include, in the proposed definition of “eligible seeded fund,” conditions designed to ensure that funds that qualify as eligible seeded funds have a bona fide business purpose. In particular, the proposed definition provides that the eligible seeded fund must be managed by an asset manager pursuant to an agreement that requires that the assets of the fund be managed in accordance with a specified written investment strategy and that the asset manager has independence in carrying out its management responsibilities and exercising its investment discretion, and to the extent applicable, has independent fiduciary duties to other investors in the fund, such that no sponsor entity or a margin affiliate of a sponsor entity controls or has transparency into the management or trading of the seeded fund. Furthermore, the proposed definition of eligible seeded fund would require that the seeded fund's investment strategy must follow a written plan for reducing the sponsor entity's ownership interest in the fund.
The Commission, therefore, believes that the costs associated with the potential evasion of the IM requirements would be mitigated by the proposed rule amendment, which would be narrowly tailored to make available the proposed approach only for purposes of calculating the IM compliance thresholds applicable to seeded funds that meet specified requirements and only during the three years that follow the fund's trading inception date. In addition, the Commission intends to use its anti-evasion authority to prevent circumvention of the margin requirements.
Furthermore, given that the U.S. prudential regulators may not amend their margin requirements in line with the Seeded Funds Proposal, if the Commission finalizes the proposal described herein, the Commission acknowledges the possibility that its requirements with respect to the treatment of eligible seeded funds may diverge from that of the U.S. prudential regulators, requiring funds that engage in swaps transactions with both CSEs and prudentially-regulated SDs to adjust their swap-related documentation and IM processes to reflect such different treatments. Thus, market participants may incur additional costs by having to maintain two separate and distinct types of documentation and IM management processes. Similar costs may also be incurred by CSEs that already transact with seeded funds that are currently consolidated. Also, as discussed previously, given that the Seeded Funds Proposal would provide for an eligible seeded fund exception from the definition of “margin affiliate,” effectively providing for the funds' deconsolidation for purposes of calculating the funds' MSE and IM threshold amount, seeded funds may favor CSEs as counterparties over SDs or MSPs subject to the prudential regulators' margin rules, which might not be revised to provide for a similar eligible seeded fund exception.
As noted above, to better assess the impact of a potential divergence between the CFTC Margin Rule and the Prudential Regulators Margin Rule, the Commission is requesting information on the potential costs associated with maintaining distinct documentation and IM management processes.
The Money Market Funds Proposal would expand the scope of assets that
Also, the Money Market Funds Proposal, by increasing the number of MMFs whose securities qualify as eligible collateral, may promote more efficient collateral management practices. The Margin Subcommittee Report stated that custodians offer money market sweep programs that afford institutional clients of such custodians the ability to timely and efficiently meet margin calls without settlement delay, avoiding other transaction costs that would otherwise arise in the absence of the sweep programs. Such direct sweeps from cash into MMF securities mitigate the risk of insolvency by the custodian because non-cash collateral deposited with the custodian will not be consolidated in the custodian's balance sheet. The Margin Subcommittee Report also stated that the use of MMFs may avoid the risk of potential negative interest rate charges that may be applied by custodian banks on cash collateral.
By eliminating the asset transfer restriction, the Money Market Funds Proposal could also promote asset management policies that improve the performance of money market and similar funds. Without the restriction, the funds may undertake repurchase or similar arrangements that increase returns for investors, including the return for CSEs that post money market and similar fund securities as margin collateral for uncleared swaps, contributing to the fund securities' liquidity and retention of value even during periods of financial stress.
In summary, these benefits will accrue to CSEs and their counterparties that enter into uncleared swaps transactions. As discussed above, the potential concentration in certain types of collateral has been acknowledged previously by the Commission as a potential risk that CSEs should consider in managing their margin collateral. CSEs and their counterparties will also benefit from the more efficient use of their capital as discussed above and enhanced returns on securities posted as collateral. Furthermore, the proposal may lead to reduced costs for those market participants that dually register as SDs and security-based swap SDs with the CFTC and the SEC, respectively, as the proposed amendment would bring the CFTC's eligible collateral framework more in line with the SEC approach, which does not impose asset transfer restrictions on funds whose securities are used as collateral for margining purposes and expressly permits the use of government money market fund securities as collateral.
The elimination of the asset transfer restriction in paragraph (C) of Commission Regulation 23.156(a)(1)(ix) would remove a safeguard intended to ensure that money market and similar fund securities posted as margin collateral remain liquid and maintain their value in times of financial stress. More specifically, paragraph (C) prevents the transfer of money market and similar fund assets through repurchase or similar arrangements to mitigate the impact of such transfers on the liquidity or value of fund securities. For example, if a counterparty to a money market and similar fund in a repurchase or similar arrangement defaults, the fund may be left holding assets that, in times of financial stress, may not be easily resold and might not compensate for the value of assets tendered in the repurchase arrangement. Such a default would reduce the overall net asset value of the fund and the price of the fund's securities. Also, the inability to liquidate assets that a money market and similar fund might be left holding upon the failure of a repurchase or similar arrangement or the inability to extract assets originally tendered in the repurchase arrangement may impact the fund's ability to promptly respond to redemption requests, hindering the liquidity of the fund's securities, making them less suitable as margin collateral. The Commission, however, notes that subparagraphs (A) and (B) of Commission Regulation 23.156(a)(1)(ix), which are not being amended, limit the types of assets that a money market and similar fund can receive in repurchase or similar arrangements to those assets specifically identified in those paragraphs, alleviating in part the risks associated with repurchase or similar arrangements.
In light of the proposed elimination of the asset transfer restriction, the Commission is also seeking input on whether it would be appropriate to include an additional haircut beyond that required by the haircut schedule in Commission Regulation 23.156(a)(3), as corrected by the proposed amendment discussed herein.
The Commission further notes that Commission Regulation 23.156(c) requires that CSEs monitor the market value and eligibility of all collateral and, to the extent that the market value has declined, promptly collect or post additional eligible collateral to maintain compliance with Commission Regulations 23.150 through 23.161.
The elimination of the asset transfer restriction could give rise to other costs. Given that the U.S. prudential regulators may not amend their margin requirements in line with the proposed rule amendments, if the amendments proposed herein are adopted as final, the CFTC and U.S. prudential regulators' margin rules would diverge with respect to the treatment of securities of money market and similar funds as eligible collateral, requiring parties that trade with both prudentially-regulated SDs and CSEs to adjust their swap-related documentation and collateral management systems to reflect such different treatments. Thus, market participants may incur additional costs by having to maintain two separate and distinct types of documentation and collateral management systems. Also, the Money Market Funds Proposal may incentivize trading with CSEs over SDs or MSPs subject to the U.S. prudential regulators' margin rules given that the prudential regulators might not revise their rules in a manner consistent with the Money Market Funds Proposal and the prudential regulators' rules may continue to restrict the use of securities of money market and similar funds that transfer their assets through repurchase and similar agreements.
At the same time, the Commission notes that the removal of the asset transfer restriction would bring the CFTC's eligible collateral framework closer to the approach adopted by the Securities and Exchange Commission (“SEC”), which does not impose asset
In light of the foregoing, the CFTC has evaluated the costs and benefits of the proposals pursuant to the five considerations identified in section 15(a) of the CEA as follows:
As discussed, the Seeded Funds Proposal would provide that, during a period of three years from the fund's trading inception date, a seeded fund meeting specific requirements would be deemed not to have margin affiliates solely for purposes of calculating the fund's MSE and the IM threshold amount. As a result, only the seeded fund's individual AANA would be used to determine whether the fund has MSE, and only the individual credit exposure of the fund resulting from the fund's swaps with a CSE would be used to determine whether the posting and collection of IM is required, and not the exposures calculated on an aggregate basis with the fund's sponsor entities and other margin affiliates, as currently required under the CFTC Margin Rule.
The Seeded Funds Proposal is thus proposing an approach to eligible seeded funds that is consistent with the BCBS-IOSCO Framework and similar approaches adopted by jurisdictions such as Australia, Canada and the EU.
As a result of the Seeded Funds Proposal, less collateral may be collected by seeded funds given that individually they may not meet the threshold for exchanging IM. A seeded fund's uncollateralized swaps exposure may negatively impact the sponsor entities of the fund or its asset manager, given that, for reputational reasons, a sponsor entity or the asset manager may provide financial support to the seeded fund in times of financial distress, potentially putting at risk their own financial position.
The Seeded Funds Proposal may also have implications for CSEs entering into uncleared swap transactions with the fund's sponsor entity. Specifically, a CSE evaluating the creditworthiness of its counterparty—the fund's sponsor entity—may not be aware of the sponsor entity's potentially weakened financial position. As such, the Seeded Funds Proposal, by allowing seeded funds' exposures to not be consolidated with the exposures of their sponsor entities and other margin affiliates for purposes of determining the applicability of the IM requirements, may increase the risk of contagion.
The Commission, however, believes that such concerns are mitigated by the requirements incorporated in the proposed definition of eligible seeded fund, including the condition that the seeded fund is not collateralized, guaranteed or otherwise supported, directly or indirectly by any sponsor entity, any margin affiliate of any sponsor entity, other collective investment vehicles, or the fund's asset manager in respect of any of the fund's obligations. These conditions are intended to ensure that seeded funds are genuinely independent and risk remote from the sponsor entities.
The Seeded Funds Proposal would amend the definition of “margin affiliate” in Commission Regulation 23.151 to provide an exception for eligible seeded funds, which would effectively relieve CSEs from the requirement to exchange IM for uncleared swaps with such eligible seeded funds, subject to specified conditions. This eliminates a competitive disadvantage between seeded funds that are consolidated with their sponsor entities and margin affiliates, which collectively exceed the thresholds for compliance with the IM requirements on the one hand, from those investment funds whose sponsor entities and margin affiliates do not have collective exposures exceeding such thresholds on the other. This would potentially spur greater interest in seeded funds as potential counterparties. In addition, the proposed amendment to the “margin affiliate” definition would level the playing field between U.S. funds and non-U.S. investment funds from jurisdictions that do not require fund swaps exposures to be considered on a consolidated basis for purposes of determining whether compliance with the IM requirements is required.
The Seeded Funds Proposal would relieve CSEs entering into uncleared swaps with eligible seeded funds from the requirement to exchange IM with the funds if the funds meet specified requirements. This would reduce the operational costs associated with the exchange of IM for CSEs and their eligible seeded funds counterparties and would allow seeded funds to allocate their financial resources to testing their investment strategy and attracting unaffiliated investors. The cost reduction may also incentivize more market participants to enter into uncleared swaps. The Seeded Funds Proposal would thus promote efficiency in the uncleared swaps market by increasing the pool of swap counterparties and fostering competition.
Given that the Seeded Funds Proposal would relieve CSEs from the exchange of IM with certain eligible seeded funds for their uncleared swaps, the uncollateralized credit exposure for the uncleared swaps would increase and could undermine the integrity of the markets. The Commission, however, believes that the increased exposure would be limited given the relatively limited derivatives activity of seeded funds that would benefit from the eligible seeded fund exception. In
By amending the definition of “margin affiliate” in Commission Regulation 23.151, the Seeded Funds Proposal would relieve CSEs from the requirement to exchange IM when entering into uncleared swaps with an eligible seeded fund. As a counterparty to a CSE, an eligible seeded fund therefore would not have to incur operational costs associated with setting up and maintaining processes and documentation to exchange IM. The relief would permit eligible seeded funds to direct more resources to building a successful performance track record and attracting new investors. As a result, the overall cost of entering into an uncleared swap transaction may decrease, incentivizing increased participation in the uncleared swaps markets. In turn, the trading of uncleared swaps may increase, leading to increased liquidity and enhanced price discovery.
Because the Seeded Funds Proposal would relieve CSEs from the obligation to exchange IM with certain seeded funds, less margin may be collected and posted to offset the risk of uncleared swaps, which could increase the risk of default. Nevertheless, the Commission believes that the uncollateralized risk would be mitigated because during the seeding period, investment funds are typically small and the extent of uncleared swap activity a seeded fund may undertake with CSEs may be limited. In addition, CSEs are required to manage the risk associated with their uncleared swaps, including those swaps that might be uncollateralized, by maintaining a robust and professional risk management program that provides, among other things, for the implementation of internal parameters for the monitoring and management of swap risk, including credit risk.
The Commission also notes that the Seeded Funds Proposal, by relieving CSEs from the requirement to exchange IM with certain seeded funds, would reduce the operational costs of both CSEs and their eligible seeded fund counterparties, potentially encouraging more market participants to enter the uncleared swaps market. As such, by increasing the pool of swap counterparties, the Seeded Funds Proposal would encourage the careful consideration and selection of counterparties, promoting sound risk management.
By proposing a treatment of certain investment funds that is consistent with the BCBS/IOSCO Framework, the Seeded Funds Proposal would alleviate the potential disadvantage that U.S. seeded funds have compared to non-U.S. investment funds, which may be perceived to be subject to more favorable regulatory regimes than in the United States given the differing consolidation treatments applicable to funds.
However, given that the U.S. prudential regulators may not amend their margin requirements in line with the proposed amendments, the possibility exists that the CFTC and U.S. prudential regulators' differing rules may motivate certain investment funds to undertake swaps with particular SDs based on which U.S. regulatory agency is responsible for setting margin requirements for such SDs. In that sense, the change can lead to trades that do not reflect the relative merits of competing SDs. The divergence could also lead to additional costs for investment funds that trade with both CSEs and prudentially-regulated SDs because such funds would need to adjust their swap related documentation and collateral management systems to reflect the different margin requirements that may apply under the CFTC's and the prudential regulators' rules.
The Commission believes that the Money Market Funds Proposal would protect market participants and the public by eliminating the asset transfer restriction and allowing a broader range of money market and similar fund securities to serve as collateral, thus addressing the potential that margin collateral may be concentrated in the securities of a few money market and similar funds and leading to greater diversification by increasing the range of assets that may be used as collateral.
The elimination of the asset transfer restriction would also promote effective asset management policies for the benefit of fund investors and market participants in general. Without the restriction, money market and similar funds that otherwise would have refrained from undertaking repurchase or similar arrangements to avoid the disqualification of their securities as eligible collateral may enter into such arrangements. The arrangements might generate higher returns for investors, including for CSEs that use money market and similar fund securities as margin collateral for uncleared swaps, and enable funds to meet their commitments to investors concerning fund performance.
Nevertheless, market participants might be harmed by the rule change if a counterparty to the money market or similar fund in a repurchase or similar arrangement defaults, and the fund is unable to recover assets tendered to the counterparty in the arrangement and is left holding assets of lesser value. The fund's overall net asset value may decline, reducing the value and liquidity of the fund's securities. This potential outcome would make the securities less suitable as collateral for margining uncleared swaps.
By eliminating the asset transfer restriction, the Money Market Funds Proposal would allow a broader range of money market and similar fund securities to serve as collateral for margining uncleared swaps, increasing diversification in the assets that can be used as collateral, and fostering competition among the funds whose securities qualify as eligible collateral under the Proposal.
The elimination of the asset transfer restriction would also promote effective asset management policies for the benefit of fund investors and market participants in general. Without the restriction, money market or similar funds would be able to undertake repurchase and similar agreements, which may enable them to generate higher returns for investors, including for CSEs that use the funds' securities as collateral, and to meet commitments to investors concerning fund performance.
Notwithstanding these benefits, the proposed elimination of the asset transfer restriction might negatively impact market participants. If a money market and similar fund undertakes a repurchase or similar arrangement and the fund's counterparty in the arrangement defaults, the fund may be unable to recover assets it tendered in the arrangement and may be left holding assets of lesser value. The fund's overall net asset value may decrease, affecting the value and liquidity of the fund's
As previously discussed, with the removal of the asset transfer restriction, fund managers may have more flexibility in determining the type of investment and transactions that are in the best interest of their fund and investors, leading to higher returns for investors, including CSEs using money market and similar fund securities as margin collateral for uncleared swaps. With such increased returns, the overall costs of entering into an uncleared swap transaction may decrease, incentivizing increased participation in the uncleared swaps markets. In turn, trading in uncleared swaps may increase, leading to increased liquidity and enhanced price discovery.
The proposed amendment would eliminate the asset transfer restriction, allowing the use of securities of money market funds that undertake repurchase or similar arrangements as collateral for the margining of uncleared swaps. As such, even if the asset manager for a money market and similar fund, as a fiduciary, acts in the best interest of the fund and its investors, there is the risk that the fund may incur a loss if the fund's counterparty in a repurchase or similar arrangement defaults. Such a default would leave the fund holding assets that it may not be able to easily resell in times of financial stress, which might impact the value and liquidity of pledged fund securities and make them less suitable as margin collateral for uncleared swaps. The Commission, however, notes that any potential risk of such a repurchase or similar arrangement may be mitigated by the standard industry practice of applying haircuts to non-cash collateral in repurchase or similar arrangements to compensate for the risk that the value of collateral may decline over the term of the arrangement.
In addition, the Commission notes that Commission Regulation 23.156(c) requires that CSEs monitor the market value and eligibility of all collateral and, to the extent that the market value has declined, promptly collect or post additional eligible collateral to maintain compliance with Commission Regulations 23.150 through 23.161. Thus, even if the value or liquidity of pledged money market and similar fund securities may be affected by repurchase or similar arrangements undertaken by the fund, CSEs have the obligation to monitor the value and suitability of the fund securities as margin collateral and collect or post additional eligible collateral to compensate for collateral deficiencies, although the risk that a fund's repurchase or similar arrangements may fail remains. The Commission further notes, however, that subparagraphs (A) and (B) of Commission Regulation 23.156(a)(1)(ix), which are not being amended, limit the types of assets that a money market and similar fund can receive in repurchase or similar arrangements to those assets specifically identified in those paragraphs, alleviating in part the risks associated with repurchase or similar arrangements.
While the Money Market Funds Proposal could lead to more variability in the value of the assets used as IM, it can also promote sound risk management in that it increases the range of money market and similar fund securities available as collateral for the margining of uncleared swaps, reducing the chance of concentration in a few money market and similar funds and the risks associated with such concentration. As such, the removal of the restriction may incentivize the increased use of money market and similar fund securities as collateral. Consistent with Commission Regulation 23.156(c), which requires CSEs to monitor the market value and eligibility of collateral posted or collected as margin for uncleared swaps, the Commission notes that CSEs must take into account the potential concentration of collateral in particular assets and prudently manage margin collateral.
As is the case for the Seeded Funds Proposal, it is possible that the U.S. prudential regulators may not amend their margin rule in line with the Money Market Funds Proposal. As such, the prudential regulators and the Commission would diverge with respect to the treatment of money market and similar funds securities as eligible collateral for margining uncleared swaps. This divergence might lead to increased costs for market participants that trade both uncleared swaps subject to the CFTC's and the prudential regulators' margin rules, as they may need to adjust or even maintain separate documentation and collateral management systems to address the differing treatments for fund securities under the different rules.
On the other hand, the Money Market Funds Proposal may lead to reduced costs for those market participants that dually register as SDs and security-based swap SDs with the CFTC and the SEC, respectively, as the proposed amendment would bring the CFTC's eligible collateral framework more in line with the SEC approach, which does not impose asset transfer restrictions on funds whose securities are used as collateral for margining purposes and expressly permits the use of government money market fund securities as collateral.
The Commission invites public comment on its cost-benefit considerations, including the section 15(a) factors described above. Commenters are also invited to submit any data or other information they may have quantifying or qualifying the costs and benefits of the proposed amendments. In particular, the Commission seeks specific comment on the following:
1. Has the Commission accurately identified all the benefits of the proposed amendments? Are there other benefits to the Commission, market participants, and/or the public that may result from the adoption of the proposed amendments that the Commission should consider? Please provide specific examples and explanations of any such benefits.
2. Has the Commission accurately identified all the costs of the proposed amendments? Are there additional costs to the Commission, market participants and/or the public that may result from the adoption of the proposed amendments that the Commission should consider? Please provide specific examples and explanations of any such costs.
3. Do the proposed amendments impact the section 15(a) factors in any way that is not described above? Please provide specific examples and explanations of any such impact.
4. Does the existing asset transfer restriction significantly limit the use of money market and similar fund securities as eligible collateral under the CFTC Margin Rule?
Section 15(b) of the CEA requires the Commission to take into consideration the public interest to be protected by the antitrust laws and endeavor to take the least anticompetitive means of achieving the purposes of this Act, in issuing any order or adopting any Commission rule or regulation
The Commission believes that the public interest to be protected by the antitrust laws is generally to protect competition. The Commission requests comment on whether the proposed amendments implicate any other specific public interest to be protected by the antitrust laws.
The Commission has considered the proposed amendments to determine whether they are anticompetitive, and has preliminarily identified no anticompetitive effects. The Commission requests comment on whether the proposed amendments are anticompetitive and, if so, what the anticompetitive effects are.
Because the Commission has preliminarily determined that the proposed amendments are not anticompetitive and have no anticompetitive effects, the Commission has not identified any less competitive means of achieving the purposes of the Act. The Commission requests comment on whether there are less anticompetitive means of achieving the relevant purposes of the Act that would otherwise be served by adopting the proposed amendments.
Capital and margin requirements, Major Swap Participants, Swap Dealers, Swaps.
For the reasons stated in the preamble, the Commodity Futures Trading Commission proposes to amend 17 CFR part 23 as set forth below:
7 U.S.C. 1a, 2, 6, 6a, 6b, 6b-1, 6c, 6p, 6r, 6s, 6t, 9, 9a, 12, 12a, 13b, 13c, 16a, 18, 19, 21. Section 23.160 also issued under 7 U.S.C. 2(i); Sec. 721(b), Pub. L. 111-203, 124 Stat. 1641 (2010).
The addition and revision read as follows:
(1) The seeded fund is a distinct legal entity from each sponsor entity;
(2) One or more of the seeded fund's margin affiliates is required to post and collect initial margin pursuant to § 23.152;
(3) The seeded fund is managed by an asset manager pursuant to an agreement that requires the seeded fund's assets to be managed in accordance with a specified written investment strategy;
(4) The seeded fund's asset manager has independence in carrying out its management responsibilities and exercising its investment discretion, and, to the extent applicable, has independent fiduciary duties to other investors in the fund, such that no sponsor entity or any of the sponsor entity's margin affiliates controls or has transparency into the management or trading of the seeded fund;
(5) The seeded fund's investment strategy follows a written plan for reducing each sponsor entity's ownership interest in the seeded fund that stipulates divestiture targets over the three-year period after the date on which the seeded fund's asset manager first begins to make investments on behalf of the fund;
(6) In respect of any of the seeded fund's obligations, the seeded fund is not collateralized, guaranteed, or otherwise supported, directly or indirectly, by any sponsor entity, any margin affiliate of any sponsor entity, other collective investment vehicle, or the seeded fund's asset manager;
(7) The seeded fund has not received any of its assets, directly or indirectly, from an eligible seeded fund that has relied on the exception provided in paragraph 2 of the definition of margin affiliate in § 23.151; and
(8) The seeded fund is not a securitization vehicle.
(1) A company is a margin affiliate of another company if:
(i) Either company consolidates the other on a financial statement prepared in accordance with U.S. Generally Accepted Accounting Principles, the International Financial Reporting Standards, or other similar standards,
(ii) Both companies are consolidated with a third company on a financial statement prepared in accordance with such principles or standards, or
(iii) For a company that is not subject to such principles or standards, if consolidation as described in paragraph (i) or (ii) of this definition would have occurred if such principles or standards had applied.
(2)
The republications and revisions read as follows:
(a) * * * (1)
(ix) Securities in the form of redeemable securities in a pooled investment fund representing the security-holder's proportional interest in the fund's net assets and that are issued and redeemed only on the basis of the market value of the fund's net assets prepared each business day after the security-holder makes its investment commitment or redemption request to the fund, if the fund's investments are limited to the following:
(A) Securities that are issued by, or unconditionally guaranteed as to the timely payment of principal and interest by, the U.S. Department of the Treasury, and immediately-available cash funds denominated in U.S. dollars; or
(B) Securities denominated in a common currency and issued by, or fully guaranteed as to the payment of principal and interest by, the European Central Bank or a sovereign entity that is assigned no higher than a 20 percent risk weight under the capital rules applicable to swap dealers subject to regulation by a prudential regulator, and immediately-available cash funds denominated in the same currency; or
(3) * * *
(i) * * *
(B) The discounts set forth in the following table:
The following appendices will not appear in the Code of Federal Regulations.
On this matter, Chairman Behnam and Commissioners Mersinger and Pham voted in the affirmative. Commissioner Goldsmith Romero voted in the negative. Commissioner Johnson voted to concur.
Today the Commission considered an eligible seeded funds proposal and a money market funds proposal within a notice of proposed rulemaking on margin requirements for uncleared swaps for swap dealers (SDs) and major swap participants (MSPs) for which there is no prudential regulator. The proposal would amend the CFTC's margin rule for SDs and MSPs, as promulgated in 2016, to incorporate two recommendations in the 2020 report to the CFTC's Global Markets Advisory Committee (GMAC) by the Subcommittee on Margin Requirements for Non-Cleared Swaps (the “GMAC Subcommittee Report”).
The seeded funds proposal would revise the definition of “margin affiliate” in Commission Regulation 23.151 to provide that certain investment funds that receive all of their start-up capital, or a portion thereof, from a sponsor entity would be deemed not to have any margin affiliates for the purposes of calculating certain thresholds that trigger the requirement to exchange initial margin for uncleared swaps. This proposed amendment would effectively relieve SDs and MSPs from the requirement to post and collect initial margin with a limited number of eligible seeded funds for their uncleared swaps for a period of three years from the date on which the eligible seeded fund's asset manager first begins making investments on behalf of the fund. While today's proposal builds upon the GMAC Subcommittee Report's 2020 recommendation, the proposal today also sets forth eight carefully calibrated conditions to ensure that only the investment funds that were intended to be targeted by the GMAC Subcommittee Report's recommendations are eligible to qualify for the seeded funds exception.
I support today's seeded funds proposal as it is consistent with the CFTC's margin rule risk-based approach of imposing margin requirements that are commensurate with the risk of uncleared swaps entered into by SDs and MSPs; is appropriately calibrated to acknowledge the operational challenges for start-up funds; and supports international harmonization as the approach is consistent with the BCBS-IOSCO Framework.
The money market funds proposal would eliminate the current provision in Commission Regulation 23.156(a)(1)(ix)(C) that disqualifies certain securities issued by certain money market funds (MMFs) from being used as eligible initial margin collateral. This would expand the scope of assets that qualify as eligible collateral. I support today's MMF proposal as it would remove a restriction that has unintentionally and severely restricted the use of securities of MMF and similar assets that transfer their assets through repurchase and similar arrangements. According to the GMAC Subcommittee Report, the impact of the restriction was that only securities of four U.S. MMFs would meet the requirements to be used as eligible collateral.
Lastly, the proposal would also add a footnote that was inadvertently omitted for the haircut schedule in Regulation 23.156(a)(3)(i)(B), when the Commission originally promulgated the margin rule in 2016.
I look forward to receiving public comments on this proposal.
I cannot support the proposed rule.
I am concerned that the proposed exception to initial margin requirements for seeded funds rolls back Dodd-Frank Act reforms designed for financial stability. I cannot support the Commission changing our existing requirements—requirements that match U.S. banking regulator requirements. The proposed change would relieve initial margin requirements for uncleared swaps that are not prudentially regulated in certain affiliate transactions known as “seeded funds” for three years.
The buildup of uncleared swap positions during the crisis exposed swap entities to losses, putting the financial system at risk. Dodd-Frank Act reforms required
(A) Swap dealers and major swap participants that
(B) Swap dealers and major swap participants that
Dodd Frank Act reforms in the Commodity Exchange Act required that to offset the greater risk to the swap dealer or major swap participant and the financial system arising from the use of uncleared swaps, the Commission's margin requirements for uncleared swaps must (i) help ensure the safety and soundness of the swap dealer or major swap participant and (ii) be appropriate for the risk associated with the uncleared swaps held by the swap dealer or major swap participant.
I do not find that standard to be met in the proposed rule. Post Dodd-Frank, regulators recognized that derivatives transactions with affiliated parties can pose important risks that necessitate margin requirements. The Commission and banking regulators adopted the same definition of “margin affiliate” to cover both swaps that are, and are not, prudentially regulated. The proposed rule would depart from that definition where there is not a prudential regulator.
The proposed rule raises concerns about the prudence of the Commission having two different definitions of “margin affiliate” for swap dealers, particularly when the majority of swap dealers (55 of 106) are prudentially regulated, and they account for a substantial majority of swap activity. In a regulatory system where jurisdiction is shared with other U.S. market and banking regulators, it is important that the Commission maintain regulatory harmonization with U.S. regulators where we can. Otherwise, we risk a race to the bottom.
The proposed rule discusses the importance of harmonization with global regulation but not U.S. banking regulations. And this proposed rule came from recommendations by the Global Markets Advisory Committee in 2020 (during the last Administration). The majority of the nonbank swap dealers are U.S.-domiciled (27 of 51). Also, importantly, the GMAC public interest representative from Better Markets at that time did not vote for these recommendations.
I have serious concerns with potentially increasing risks related to uncleared swaps, including risks to financial stability by adopting a definition that harmonizes with global regulation, but not domestic banking regulation. U.S. banking regulators are aware of the Basel Committee on Banking Supervision and the International Organization for Securities Commission's “International Margin Framework,” but have chosen not to change their definition of “margin affiliate.”
Likewise, I do not support the Commission changing our existing definition. I appreciate that Commission staff have tried to put constraints on this initial margin exception.
Therefore, I must dissent.
I have concerns about the Commission's proposal to expand money market funds that could be used for eligible non-cash collateral for swap dealers for initial margin. The proposal contemplates eliminating the restriction on the money market fund's use of repurchase agreements or similar agreements.
In Dodd-Frank Act reforms contained in the Commodity Exchange Act section 4s(e)(3)(C), Congress provided that “[i]n prescribing margin requirements,” the Commission “shall permit the use of noncash collateral” as “determine[d] to be consistent with—preserving the financial integrity of markets trading” non-cleared derivatives and “preserving the stability of the United States financial system.” I have not seen an analysis that such standard is met. I am very interested in public comment about whether that standard is met.
We must not forget the lessons of the 2008 financial crises, including when the Reserve Primary Fund “broke the buck”, and the role it had in the 2008 crisis. Money market funds are designed to give retail customers and institutional investors a market-based instrument that is highly liquid with lower risk and limited volatility. For many Americans, money market funds often appear on their bank app, right next to checking and savings accounts, as they are financial vehicles often thought of as similar to a bank account. That's why it came as such a shock when the Reserve Primary Fund broke the buck.
I was counsel to the SEC Chairman when the Reserve Primary Fund broke the buck, which contributed to Lehman failing, and short-term lending drying up. Repurchase agreements also contributed to liquidity problems at financial institutions. In my role as the Special Inspector General for TARP, I reported to Congress about the interconnectedness of these events. These experiences show how interconnected money market funds and repurchase agreements are to the overall stability of our financial institutions and the broader financial system.
As a result, the SEC and other regulators implemented reforms to make money market funds more stable and repurchase agreements more transparent. Despite these reforms, in March 2020, during the Covid-19 pandemic, money market funds and the short-term funding markets experienced stress when institutional investors withdrew cash from money market funds to avoid liquidity fees and gates, safeguards that were part of post-crisis reforms.
With 2008 and 2020 as the backdrop, the Commission must be careful how it approaches changes to our regulations that impact money market funds and the short-term funding markets. These are highly interconnected markets. Changes in one can impact changes in the other markets. Before we take any action, it will be critical for the Commission to determine that the change is “consistent with preserving the financial integrity of markets trading” non-cleared derivatives and “preserving the stability of the United States financial system.” I look forward to public comment on whether the rule meets this standard.
I thank the staff for their work. I am also grateful to the former GMAC members. It must be remembered that advisory committees' role is to advise the Commission. While I may not agree with their recommendations, I am grateful for their service.
I support the notice of proposed rulemaking on margin requirements for uncleared swaps for swap dealers and major swap participants (Seeded Funds and MMFs Proposal) because it provides a solution for seeded funds, and it supports greater liquidity by providing more flexibility for money market and similar funds that use repos, among other things. I thank the team in the Market Participants Division for their dedication to ensuring the Commission's uncleared swaps rules do not unduly burden market participants, and for proposing workable solutions to challenges that arose during an implementation period. I specifically commend Amanda Olear, Tom Smith, Warren Gorlick, Rafael Martinez, and Liliya Bozhanova for their work on the proposal.
This Seeded Funds and MMFs Proposal, looking at the big picture, actually benefits
Simply put, less liquidity means higher costs and more risk. And risk to not only financial stability, but also systemic risk. In light of ongoing capital reforms, it is incumbent upon me to remind everyone that of course markets are interconnected, and that's why we need to take a holistic approach to market structure with a full understanding of the impact of various regulatory regimes, particularly the impact of prudential requirements on the ability of markets to function well, and especially the ability for market participants to access markets for the benefit of American savers.
As an advocate for good policy that enables growth, progress, and access to markets, I strongly support workable solutions to any problems with our rules. While regulations play a critical role in safeguarding our markets, we must acknowledge that issues—ranging from technical
The first step in evaluating our regulations is to conduct thorough assessments and identify areas for improvement. Collaboration and open dialogue are key to formulating well-rounded solutions that consider the interests of all impacted. That is why I am grateful for the efforts of former Commissioner Dawn Stump, who, as sponsor of the Global Markets Advisory Committee (GMAC), established the GMAC's Subcommittee on Margin Requirements for Non-Cleared Swaps to evaluate the CFTC's uncleared margin rules.
The adoption of margin requirements for uncleared swaps was a key pillar of the 2008 financial crisis reform.
Consistent with the G20 commitments, the Commodity Exchange Act (CEA or Act)
Currently, a fund with material swaps exposure will fall within the scope of the initial margin requirements if it undertakes an uncleared swap with a covered swap entity. The covered swap entity and the fund will not be required to post and collect initial margin for their uncleared swaps until the initial margin threshold amount of $50 million has been exceeded. The initial margin threshold amount will be calculated based on the credit exposure from uncleared swaps between the covered swap entity and its margin affiliates on the one hand, and the fund and its margin affiliates on the other.
Initial margin requirements may be satisfied with only certain types of collateral.
Of course, compliance with significant reforms necessarily entails significant resource expenditure by regulated entities. Because of the vast number of counterparties impacted by the uncleared margin rules, swap dealers and major swap participants have been forced to engage in significant operational and technological development to avoid disruptions which would limit their options for taking on and hedging risk.
I encourage commenters to comment on whether the Commission's proposal sufficiently addresses the practical and operational issues, and whether it gives sufficient time for firms to implement and comply with a final rule.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to promulgate a Federal Implementation Plan (FIP) under the Clean Air Act (CAA) that consists of contingency measures for the 1997, 2006, and 2012 fine particulate matter (PM
You may send comments, identified by Docket ID No. EPA-R09-OAR-2023-0352; via the Federal eRulemaking Portal:
For questions regarding this proposed rule, please contact Rory Mays, Planning and Analysis Branch (AIR-2), Air and Radiation Division, EPA Region IX, (415) 972-3227. For questions regarding the virtual public hearing, please contact Kobi Cook, Communities and Partnerships Branch (AIR-4), Air and Radiation Division, EPA Region IX, (415) 972-3989. Both can be reached by emailing
Throughout this document, “we,” “us,” and “our” refer to the EPA.
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2023-0352 at
The EPA will begin pre-registering speakers for the hearing no later than 1 business day after publication of this document in the
The virtual public hearing will be held via teleconference on August 23, 2023. The virtual public hearing will convene at 4 p.m. Pacific Time (PT) and will conclude at 7 p.m. PT. The EPA may close the session 15 minutes after the last pre-registered speaker has testified if there are no additional speakers. For information or questions about the public hearing, please contact Kobi Cook, per the
The EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearings to run either ahead of schedule or behind schedule. Each commenter will have 5 minutes to provide oral testimony. The EPA encourages commenters to provide the EPA with a copy of their oral testimony electronically (via email) by emailing it to
The EPA may ask clarifying questions during the oral presentations, but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral comments and supporting information presented at the public hearing.
Please note that any updates made to any aspect of the hearing will be posted online at
If you require the services of a translator or special accommodations such as audio description, please pre-register for the hearing and describe your needs by August 21, 2023. The EPA may not be able to arrange accommodations without advanced notice.
In the following sections, we describe the PM
Under section 109 of the Clean Air Act (CAA or “Act”), the EPA has established National Ambient Air Quality Standards (NAAQS or “standards”) for certain pervasive air pollutants (referred to as “criteria pollutants”) and conducts periodic reviews of the NAAQS to determine whether they should be revised or whether new NAAQS should be established. To date, the EPA has established NAAQS for particulate matter, ozone, carbon monoxide, nitrogen dioxide, sulfur dioxide and lead. Under CAA section 110, states have primary responsibility for meeting the NAAQS within the state, and must submit an implementation plan that specifies the manner in which the state will attain and maintain the NAAQS. These implementation plans are referred to as “state implementation plans” or “SIPs.” Periodically, states must make SIP submissions of different types to meet additional CAA requirements. For example, after the EPA promulgates a new or revised NAAQS, under CAA section 110(a)(1) and (2), states are required to adopt and submit to the EPA a state implementation plan that provides for implementation, maintenance, and enforcement of the NAAQS. Such plans are referred to as “infrastructure SIPs.” Similarly, after the EPA promulgates designations for a new or revised NAAQS, states with designated nonattainment areas must make SIP submissions that meet additional requirements for such nonattainment areas, under CAA section 172(c) and, in the case of the PM
In 1997, the EPA promulgated new NAAQS for fine particulate matter, using particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers (“PM
The EPA established each of these NAAQS after considering substantial evidence from numerous health studies demonstrating that serious health effects are associated with exposures to PM
Following promulgation of a new or revised NAAQS, the EPA is required under CAA section 107(d) to designate areas throughout the nation as attaining or not attaining the NAAQS. As noted previously, for areas the EPA has designated nonattainment, states are required under the CAA to submit attainment plan SIP submissions. These SIP submissions must provide for, among other elements, reasonable further progress (RFP) towards attainment of the NAAQS, attainment of the NAAQS no later than the applicable attainment date, and implementation of contingency measures to take effect if the state fails to meet RFP or to attain the NAAQS by the applicable attainment date.
The San Joaquin Valley is located in the southern half of California's Central Valley and includes all of San Joaquin, Stanislaus, Merced, Madera, Fresno, Tulare, and Kings counties, and the valley portion of Kern County.
The local air district with primary responsibility for developing attainment plan SIP submissions for the PM
Originally, the EPA designated areas for the 1997 annual and 24-hour PM
In 2016, the EPA determined that the San Joaquin Valley had failed to attain the 1997 annual and 24-hour PM
With respect to the 2006 24-hour PM
With respect to the 2012 annual PM
In the wake of these EPA actions, CARB and the District worked together to prepare a comprehensive SIP submission to address the nonattainment area requirements for the 1997, 2006, and 2012 PM
On May 10, 2019, CARB submitted two SIP submissions to address the nonattainment area requirements for all four of the relevant PM
In 2020, the EPA approved the portion of the SIP submissions related to the 2006 24-hour PM
The EPA's various actions in 2020 and 2021 on the SIP submissions for San Joaquin Valley for the 1997, 2006, and 2012 PM
The EPA first provided its views on the CAA's requirements for particulate matter plans under part D, title I of the Act in the following guidance documents: (1) “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” (“General Preamble”);
Under CAA section 172(c)(9), states required to make an attainment plan SIP submission must include contingency measures to be implemented if the area fails to meet RFP (“RFP contingency measures”) or fails to attain the NAAQS by the applicable attainment date (“attainment contingency measures”). Under the PM
The purpose of contingency measures is to continue progress in reducing emissions while a state revises its SIP to meet the missed RFP requirement or to correct ongoing nonattainment. Neither the CAA nor the EPA's implementing regulations establish a specific level of emission reductions that implementation of contingency measures must achieve, but the EPA recommends that contingency measures should provide for emission reductions equivalent to approximately one year of reductions needed for RFP in the nonattainment area. For PM
To satisfy the requirements of 40 CFR 51.1014, the contingency measures adopted as part of a PM
Contingency measures serve the purpose of providing additional emission reductions during the period after a failure to meet RFP or failure to attain as the state prepares a new SIP submission to rectify the problem. Accordingly, contingency measures must provide such additional emission reductions during an appropriate period of time and must specify the timeframe within which their requirements would become effective following any of the EPA determinations specified in 40 CFR 51.1014(a).
In addition, to comply with CAA section 172(c)(9), contingency measures must be both conditional and prospective, so that they will go into effect and achieve emission reductions only in the event of a future triggering event such as a failure to meet RFP or a failure to attain. In a 2016 decision called
In a recent decision on the EPA's approval of a SIP contingency measure element for the ozone NAAQS, the Ninth Circuit Court of Appeals held that, under the EPA's current guidance, the surplus emissions reductions from already-implemented measures cannot be relied upon to justify the approval of a contingency measure that would achieve far less than one year's worth of RFP as sufficient by itself to meet the contingency measure requirements of CAA sections 172(c)(9) and 182(c)(9) for the nonattainment area.
In March 2023, the EPA published notice of availability announcing a new draft guidance addressing the contingency measures requirement of section 172(c)(9), entitled: “
Under the draft revised guidance, the recommended level of emissions reductions that contingency measures should achieve would represent one year's worth of “progress” as opposed to one year's worth of RFP. One year's worth of “progress” is calculated by determining the average annual reductions between the base year emissions inventory and the projected attainment year emissions inventory, determining what percentage of the base year emissions inventory this amount represents, then applying that percentage to the projected attainment year emissions inventory to determine the amount of reductions needed to ensure ongoing progress if contingency measures are triggered.
With respect to the time period within which reductions from contingency measures should occur, the EPA previously recommended that contingency measures take effect within 60 days of being triggered, and that the resulting emission reductions generally occur within one year of the triggering event. Under the draft revised guidance, in instances where there are insufficient contingency measures available to achieve the recommended amount of emissions reductions within one year of the triggering event, the EPA believes that contingency measures that provide reductions within up to two years of the triggering event would be appropriate to consider towards achieving the recommended amount of emissions reductions. The draft revised guidance does not alter the 60-day recommendation for the contingency measures to take initial effect.
CAA section 110(c)(1) authorizes and obligates the EPA to promulgate a FIP
In promulgating regulations in a FIP, the EPA may rely on its authority under section 110(c) or under authority it has under other provisions of the CAA. Under CAA section 110(c), the EPA “stands in the shoes” of the state and may exercise all authority that the state may exercise under the CAA.
Congress has determined that the primary responsibility for air pollution prevention and control at its source rests with state and local governments. CAA section 101(a)(3). Accordingly, the EPA has attempted to design the FIP contingency measures to ensure that, wherever possible, state and local implementation is encouraged and facilitated by the proposed FIP's regulatory approach. Thus, for example, the FIP generally employs local California rule organization and terminology in the proposed measures.
With respect to enforcement of the FIP, we note that the EPA has a comprehensive enforcement program as specified in section 113(a) of the CAA. Under this program, the EPA is authorized to take enforcement actions to ensure compliance with the CAA and the rules and regulations promulgated under the CAA. Such actions include the issuance of an administrative order requiring compliance with the applicable implementation plan; the issuance of an administrative order requiring the payment of a civil penalty for past violations; and the commencement of a civil judicial action. Orders issued under CAA section 113(a) require subject entities to comply with the requirements set forth in the order as expeditiously as practicable, but in no event longer than one year after the date the order was issued. Issuance of any such order does not prohibit the EPA from assessing any penalties. Under CAA section 113(b), civil judicial enforcement may require assessment of penalties of up to $117,468 per day for each violation.
The EPA's December 6, 2018 finding of failure to submit relates, in relevant part, to an overdue Moderate area attainment plan SIP submission for San Joaquin Valley for the 2012 annual PM
The EPA does not interpret the requirement for contingency measures for failing to attain the NAAQS by the applicable attainment date to apply to a Moderate area that a state adequately demonstrates cannot practicably attain the NAAQS by the statutory attainment date. Because it is a given that the area at issue could not attain by the attainment date, it would be illogical to require contingency measures (
We note that the EPA will separately review SIP submission(s) for the Serious area contingency measure requirements for the 2012 annual PM
Under the CAA, states are required to regulate not only direct emissions of PM
Under the EPA's PM
For San Joaquin Valley, we have considered the State's precursor demonstrations with respect to the 1997 annual PM
For the 2006 24-hour PM
With respect to the San Joaquin Valley as a Moderate nonattainment area for the 2012 annual PM
As noted previously, neither the CAA nor the EPA's implementing regulations establish a specific level of emission reductions that implementation of contingency measures must achieve, but the EPA has recommended in existing guidance that contingency measures should provide for emission reductions equivalent to approximately one year of reductions needed for RFP in the nonattainment area. For PM
Using the longstanding approach, contingency measures should provide for emissions reductions of approximately one year's worth of RFP for each of the relevant PM
As shown in Table 1, for the San Joaquin Valley, one year's worth of RFP and the amount of emissions reductions that contingency measures should provide for is approximately 0.44 tons per day (tpd) for direct PM
Using the new approach described in the EPA's Draft Revised Contingency Measure Guidance, the EPA recommended that contingency measures should provide for emissions reductions of approximately one year's worth of progress for each of the relevant PM
As shown in Table 2, for the San Joaquin Valley, one year's worth of progress and the amount of emissions reductions that contingency measures should provide for is approximately 0.41 tpd for direct PM
To determine whether a set of contingency measures would be capable of achieving one year's worth of RFP or one year's worth of progress, excess emissions reductions of one precursor may be substituted for a shortfall in emissions reductions from another precursor or direct PM
Our longstanding guidance on contingency measures did not directly address this particular issue, but in our Draft Revised Contingency Measure Guidance, citing the PM
For San Joaquin Valley, modeling conducted by the State for the SIP submissions for the 1997 annual PM
Under CAA section 172(c)(9), SIPs must provide for the implementation of specific contingency measures if the area fails to meet RFP or to attain the NAAQS by the applicable attainment date. For PM
To meet the contingency measure requirement, states may adopt different measures for different triggering events but are not required to do so. If the state adopts the same set of contingency measures for all of the triggering events, however, then the contingency measures may all be implemented by earlier-occurring triggering events leaving no contingency measures for potential later-occuring events. In that case, if a state has no remaining approved contingency measures, then the EPA believes that states must adopt and submit additional contingency measures to be available for potential later-occuring triggering events.
The potential for states to have used all approved contingency measures, and thus to lack contingency measures for potential later-triggering events is compounded by the reliance on the same set of contingency measures for more than one iteration of the PM
The EPA has used several guiding principles in identifying candidate contingency measures for this FIP proposal. These include consideration of:
• Larger emission sources of direct PM
• Past recommendations of new control measures or improvements to existing control measures by the EPA and community and environmental groups (to leverage the considerable past efforts to identify potential additional emission reduction opportunities),
• Awareness of recent and ongoing emission reduction strategies by CARB and the District (whose adoption and submission to meet another SIP requirement, or whose status as an already implemented measure, would render the measure ineligible as a potential contingency measure),
• Timing limitations that prevent the measure from being implemented without significant further action by the state or the EPA as required for contingency measures, or that prevent the potential resulting emissions reductions from being achieved within one year of a triggering event for the contingency measure (such as the statutory four-year lead time for mobile source vehicle and engine standards),
• The potential for changing the EPA's FIP contingency measures into SIP contingency measures (
Furthermore, as necessary parts of the process for selecting measures for inclusion in the proposed contingency measure FIP, the EPA evaluated the measures for their emission reduction potential; technological and economic feasibility; and suitability as contingency measures (
We reviewed emissions inventories in the 2018 PM
Using the emission inventory information, we identified the existing controls for these sources in the EPA approved SIP for the San Joaquin Valley, and the planned future controls that apply (or will apply) to the source categories or subcategories present in the nonattainment area. Existing controls refer to the limits and requirements for different source categories set forth in the District, CARB, and EPA rules and regulations. Planned future controls refer to the commitments to develop and propose control measures found in District plans
For example, the District and CARB have adopted many measures from 2018 to the present that address top ten sources of direct PM
• Residential Fuel Combustion (2019 amendments to Rule 4901 (“Wood Burning Fireplaces and Wood Burning Heaters ”) and 2021 residential wood burning incentive measure),
• Managed Burning and Disposal (2021 agricultural burning phase-out measure),
• Farming Equipment (2019 agricultural equipment incentive measure),
• Heavy-Duty Diesel Trucks (2020 Advanced Clean Trucks Regulation and 2021 Heavy-Duty Inspection and Maintenance Regulation)
The District and CARB continue to workshop and evaluate control measures for other top ten source categories, including Farming Operations (
In addition, as examples of federal action, the EPA has finalized Heavy-Duty vehicle and engine standards for model year 2027 and beyond,
Regarding the fourth largest source of NO
The EPA also committed to engage with stakeholders including locomotive and locomotive engine manufacturers, technology suppliers, environmental justice communities, environmental and public health non-governmental organizations, other federal partners, state and local air quality agencies, railroad companies, and labor unions as the Agency develops options for how new locomotives can achieve the greatest degree of emission reduction achievable through the application of technology. That engagement, which is ongoing, has already highlighted that potential opportunities may exist to reduce emissions from locomotives through possible changes to the EPA's regulations to control unnecessary idling by new and remanufactured locomotives. Technologies that reduce the time that large high-emitting locomotive engines operate at idle have the potential to directly reduce PM and NO
With respect to the State's current and planned controls specifically for contingency measures in the San Joaquin Valley, on June 8, 2023, the State submitted the “PM
In addition, by letter dated June 23, 2023, CARB committed to bring to the CARB Board for consideration no later than February 28, 2024, and submit to the EPA no later than March 31, 2024, a contingency measure to implement a change to the exemptions for light-duty motor vehicles in the California vehicle emissions inspection and maintenance (I/M) program—the Smog Check Program—if triggered by an EPA determination under 40 CFR 51.1014(a).
The EPA is evaluating the June 2023 Contingency Measure SIP Submission and June 23, 2023 commitment and will propose action on the submission and commitment in a separate rulemaking.
When the EPA reviews individual District rules in SIP submissions for approval, the EPA routinely includes recommendations for changes to the rules to strengthen or clarify them, even if the particular change is not required for approval as meeting applicable stringency requirements. These recommendations are generally found in the EPA's technical support documents prepared for individual rulemakings. We have reviewed past recommendations in numerous technical support documents prepared in connection with past SIP actions to identify potential rule changes that might be suitable as contingency measures.
In 2021, a group of 18 environmental justice, environmental and community groups in the San Joaquin Valley sent the EPA a letter in which they attached a list of specific control measures that the group believes should be adopted or strengthened in the San Joaquin Valley area.
Residential wood burning includes wood-burning heaters (
Residential wood-burning is included within the “Residential Fuel Combustion” emissions inventory category within the 2018 PM
District Rule 4901 establishes requirements for the sale/transfer, operation, and installation of wood-burning devices and on the advertising of wood for sale intended for burning in a wood-burning fireplace, wood-burning heater, or outdoor wood-burning device within the San Joaquin Valley.
One of the most effective ways to reduce wintertime smoke is a curtailment program that restricts use of wood-burning heaters and fireplaces on days that are conducive to buildup of PM concentrations (
Rule 4901 includes a tiered mandatory curtailment program that establishes different curtailment thresholds based on the type of devices (
In order to implement the curtailment program under Rule 4901, the District develops daily air quality forecasts, based on EPA and CARB guidance, which include a projection of the maximum PM
In 2019, the District lowered the curtailment thresholds in Madera, Fresno, and Kern counties, which the District identified as “hot spot” counties, because they were “either new areas of gas utility or areas deemed to have persistently poor air quality.”
The 2019 revision by the District also added a provision to the rule to operate as a contingency measure, which would lower the curtailment levels for any county that failed to attain the applicable standards to levels consistent with current thresholds for hot spot counties. However, the EPA disapproved this provision because it did not meet all of the CAA requirements for contingency measures.
On May 18, 2023, the District adopted a new contingency measure in section 5.7.3 of Rule 4901, and CARB submitted this contingency measure as part of the June 2023 Contingency Measure SIP Submission. The contingency measure would be triggered by a final determination by the EPA that the District failed to meet one or more of the following triggering events of the applicable PM
(1) Any Reasonable Further Progress requirement;
(2) Any quantitative milestone;
(3) Submission of a quantitative milestone report; or
(4) Attainment of the applicable PM
Following the first such triggering event, the measure would lower the thresholds for the non-hot spot counties to the current thresholds for hot spot counties (
As described further in the EPA's Proposed Contingency Measures TSD, we considered various possible contingency measures that could apply to the wood-burning source category and concluded that strengthening the curtailment program would be the most effective means of providing meaningful emissions reductions from this source category within one to two years of the triggering event.
Specifically, the proposed contingency measure for this source category would strengthen the curtailment program in Rule 4901 by lowering the curtailment levels for the five non-hot-spot counties to the current thresholds for hot spot counties (
We estimate the annual average emissions reductions associated with this contingency measure would be 0.579 tpd of direct PM
In areas where there is open, uncovered land, a natural crust will form and minimize dust emissions. However, activities such as earthmoving activities, material dumping, weed abatement, and vehicle traffic will disturb otherwise naturally stable land and allow windblown fugitive dust emissions to occur. As a contingency measure, the EPA is proposing to add to an existing District measure to further reduce emissions from this category. The contingency measure would lower the applicability threshold of the District's Rule 8051 from 3.0 acres to 1.0 acres for rural open areas, thereby reducing windblown fugitive dust, including the direct PM
SJVUAPCD adopted Regulation VIII (containing the 8000 series rules) on November 15, 2001, to address RACM/RACT and BACM/BACT attainment plan requirements for the 1987 PM
The proposed contingency measure for this source category would lower the applicability threshold from 3.0 acres to 1.0 acres in rural areas. As a result, if triggered by a failure to meet RFP requirements or a failure to attain, Rule 8051 would then apply to any rural open area having 1.0 acre or more and containing at least 1,000 square feet of disturbed surface area.
This measure will require these additional areas to meet the existing requirements in Rule 8051. Specifically, Section 5 (Requirements) of Rule 8051 requires that:
Whenever open areas are disturbed or vehicles are used in open areas, an owner/operator shall implement one or a combination of control measures indicated in Table 8051-1 to comply with the conditions of a stabilized surface at all times and to limit VDE to 20% opacity. In addition to the requirements of this rule, a person shall comply with all other applicable requirements of Regulation VIII.
Table 8051-1 contains the following control measures for open areas:
A. Open Areas:
Implement, apply, maintain, and reapply if necessary, at least one or a combination of the following control measures to comply at all times with the conditions for a stabilized surface and limit VDE to 20% opacity as defined in Rule 8011:
A1. Apply and maintain water or dust suppressant(s) to all unvegetated areas; and/or
A2. Establish vegetation on all previously disturbed areas; and/or
A3. Pave, apply and maintain gravel, or apply and maintain chemical/organic stabilizers/suppressant(s).
B. Vehicle Use in Open Areas:
Upon evidence of trespass, prevent unauthorized vehicle access by:
Posting `No Trespassing' signs or installing physical barriers such as fences, gates, posts, and/or other appropriate barriers to effectively prevent access to the area.
The District makes available certain forms through the District's website that owners or operators may use to document compliance with the requirements of the rules under Regulation VIII.
Given the availability and variability of county-based parcel data, which inform the location, number, and size of open areas in the 1.0 acre to 3.0 acres size range, and the differences in emission factors for fugitive windblown dust by county, it is difficult to precisely quantify the emission reductions associated with lowering the applicability threshold for rural open area in Rule 8051 from 3.0 acres to 1.0 acre. Nonetheless, based on the information available, we estimate that lowering the applicability threshold in rural areas from 3.0 acres to 1.0 acre would result in direct PM
Table 5 summarizes the estimated emissions reductions from the proposed contingency measures.
Table 6 presents the estimated emissions reductions as percentages of one year's worth of RFP and one year's worth of progress both with and without trading between direct PM
Specifically, based on modeling conducted for the SIP submissions, we are proposing a ratio of 10.3 to 1 for the 1997 annual PM
As shown in Table 5, the sum of the emissions reductions from the two proposed FIP contingency measures is approximately 0.589 tpd direct PM
Taking into account the substitution principle, under which, in this case, excess direct PM
In the preamble to the PM
The justification is based on the EPA's determination that we are unable to identify and adopt feasible contingency
When promulgating a FIP, the EPA is “standing in the shoes” of the state to meet a SIP requirement that the state has thus far not fulfilled. Accordingly, the EPA considers it appropriate to interpret the requirements of section 172(c)(9) in the same fashion in the context of a FIP. Thus, when the EPA evaluates control measures for adoption as potential contingency measures, it is reasonable for the Agency to consider such factors as technological and economic feasibility. Even a control measure that may theoretically be available as a contingency measure, and otherwise meet other legal parameters for a contingency measure, may nonetheless be so technologically or economically infeasible as to render it unviable as a contingency measure. Thus, with a reasoned justification establishing that there are no additional feasible measures, it is appropriate for the Agency to promulgate a FIP for contingency measures that might result in less than the recommended amount of emission reductions.
To further explain the basis for the EPA's determination that it is unable to identify and adopt additional feasible contingency measures that would achieve one years' worth of RFP or progress reductions, we have prepared a detailed evaluation of source categories and measures that we considered as potential additional contingency measures but determined to be infeasible or otherwise unsuitable for contingency measures and therefore did not include in the proposed FIP. This evaluation is presented in the Reasoned Justification TSD (for measures not included in this proposed contingency measures FIP). See, for example, our evaluation for commercial charbroiling, almond harvesting, light-duty vehicles, and large boilers, steam generators, and process heaters.
Executive Order 12898 (59 FR 7629, February 16, 1994) requires that federal agencies, to the greatest extent practicable and permitted by law, identify and address disproportionately high and adverse human health or environmental effects of their actions on minority and low-income populations. Additionally, Executive Order 13985 (86 FR 7009, January 25, 2021) directs federal government agencies to assess whether, and to what extent, their programs and policies perpetuate systemic barriers to opportunities and benefits for people of color and other underserved groups, and Executive Order 14008 (86 FR 7619, February 1, 2021) directs federal agencies to develop programs, policies, and activities to address the disproportionate health, environmental, economic, and climate impacts on disadvantaged communities.
To identify environmental burdens and susceptible populations in underserved communities in the San Joaquin Valley nonattainment area and to better understand the context of our proposed FIP on these communities, we conducted a screening-level analysis for PM
Our screening-level analysis indicates that all eight counties in the San Joaquin Valley score above the national average for the EJSCREEN “Demographic Index” (
With respect to pollution, all eight counties score at or above the 97th percentile nationally for the PM
As discussed in the EPA's EJ technical guidance, people of color and low-income populations, such as those in the San Joaquin Valley, often experience greater exposure and disease burdens than the general population, which can increase their susceptibility to adverse health effects from environmental stressors.
Regarding the specific contingency measures proposed herein, we have considered the geographic scope of each proposed contingency measure on PM
For residential wood burning, our proposed contingency measure would lower the No Burn (
Where these direct PM
For open areas, the proposed contingency measure, if triggered, would lower the applicability threshold for the rural open area requirements of Rule 8051 (
Given that Rule 8051 for open areas was originally introduced as a PM
The EPA is proposing to promulgate a FIP under CAA section 110(c) intended to meet the CAA section 172(c)(9) requirements for contingency measures for purposes of the 1997 annual PM
We will accept comments from the public on these proposals for the next 45 days. The deadline and instructions for submission of comments are provided in the
Additional information about these statutes and Executive Orders can be found at
This 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).
The information collection activities in this proposed rule have been submitted to the Office of Management and Budget (OMB) for approval under the PRA. The Information Collection Request (ICR) document that the EPA has prepared has been assigned EPA ICR number 2782.01. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here.
This ICR covers information collection requirements in a CAA FIP for contingency measures for the 1997 annual, 2006 24-hour, and 2012 annual fine particulate matter (PM
The EPA's proposed FIP will include provisions to lower the existing applicability threshold of District Rule 8051 for rural areas from 3.0 acres or larger with at least 1,000 square feet of disturbed surface area to 1.0 acres or larger with the same square footage of disturbed surface area. If this FIP contingency measure is enacted and triggered, dust minimization control measures and recordkeeping and annual reporting would be required for the newly regulated parcels when owners or operators disturb the surface of the applicable rural open areas. In general, such owners or operators will be required to maintain records of rule compliance consistent with the requirements applicable to those owners or operators already subject to the rule, with two additional requirements. First, the EPA would add a requirement that owners and operators of rural open areas newly subject to the requirements of Rule 8051 pursuant to this FIP use two existing District forms for such recordkeeping, which the EPA intends to adapt for use in connection with this proposed FIP contingency measure. Second, while the EPA generally would apply the same record retention requirements found in the District rule to newly subject owners and operators—
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9.
Submit your comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden using the docket identified at the beginning of this rule. The EPA will respond to any ICR-related comments in the final rule. You may also send your ICR-related comments to OMB's Office of Information and Regulatory Affairs using the interface at
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This proposed rule includes two separate contingency measures: one applicable to residential wood burning heaters and fireplaces and one applicable to rural open areas. The proposed residential wood burning measure primarily applies to private residents, which do not qualify as small entities, but also applies to businesses, such as restaurants and hotels, some of which constitute “small entities.” However, the proposed measure is not expected to impose any additional costs because any increase in heating costs during additional curtailment days would be offset by savings on purchases of seasoned wood or pellets, which these entities would otherwise be allowed to burn.
The “small entities” subject to the requirements of the rural open areas measure are those that are owners/operators of residential and commercial lots in rural areas with open areas (
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments. To the extent that the contingency measures of this proposed rule, if triggered, would impose costs on the private sector, they would collectively be less than the $100 million expenditure threshold identified in 2 U.S.C. 1532(a).
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications, as specified in Executive Order 13175, because this proposed rule would not apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.
Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is determined to be economically significant as defined under Executive Order 12866; and (2) concerns an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children. The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it is not economically significant under Executive Order 12866 and because it implements specific standards established by Congress in statutes. However, to the extent this proposed rule will reduce emissions of direct PM
This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
Executive Order 12898 (59 FR 7629 (February 16, 1994)) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. The EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.” Consistent with the EPA's discretion under the CAA, the EPA has evaluated the environmental justice considerations of this action, as is described in section IV (“Environmental Justice Considerations”) of this proposed rule. The analysis was done for the purpose of providing additional context and information about this rulemaking to the public, not as a basis of the action. Due to the nature of the action being proposed, this proposed action is expected to have a neutral to positive impact on the air quality of the San Joaquin Valley. In addition, the information in the record is sufficient to support the stated goal of Executive Order 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.
Environmental protection, Air pollution control, Ammonia, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.
42 U.S.C. 7401
For the reasons stated in the preamble, part 52 of title 40 of the Code of Federal Regulations is proposed to be amended as follows:
42 U.S.C. 7401
(a) The requirements of section 172(c)(9) of the Clean Air Act and 40 CFR 51.1014 are not met in the San Joaquin Valley Air Basin for the 1997 Annual PM
(1)
(2)
(i) The episodic wood burning curtailment provisions of Paragraphs 5.7.1.2 and 5.7.2.2 shall apply throughout the entire jurisdiction of the San Joaquin Valley Unified Air Pollution Control District.
(ii) The episodic wood burning curtailment provisions in Paragraphs 5.7.1.1 and 5.7.2.1 are deleted.
(iii) The EPA shall notify the public of each episodic wood burning curtailment required pursuant to this paragraph (a)(2) of this section by any of the following methods:
(A) Provide notice to newspapers of general circulation within the San Joaquin Valley.
(B) Broadcast of messages presented by radio or television stations operating in the San Joaquin Valley.
(C) A recorded telephone message for which the telephone number is published.
(D) Messages posted on the EPA's website.
(E) Any other method as the EPA determines is appropriate.
(3)
(i) The Applicability provision in Paragraph 2.0 is revised to the following:
This rule applies to any open area having 0.5 acres or more within urban areas, or 1.0 acres or more within rural areas; and contains at least 1,000 square feet of disturbed surface area.
(ii) The Recordkeeping provision in Paragraph 6.2 is revised to the following:
An owner/operator shall comply with the recordkeeping requirements of § 52.220(c)(334)(i)(B)(
(iii) Records that are required to be submitted under this rule must be sent to: U.S. EPA Region IX, Rules Section Manager, Air and Radiation Division (Air-3-2), 75 Hawthorne Street, San Francisco, CA 94105.
(b) In the event that paragraphs (a)(2) and (3) of this section are triggered, and within one year of the triggering of paragraphs (a)(2) and (3) of this section, the Administrator shall undertake rulemaking to promulgate any contingency measures that are determined to be appropriate for the EPA and needed to meet the contingency measure requirement for the 1997 annual PM
(c) This section shall not apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction.
(d) The Administrator may delegate the authority to implement the measures in paragraph (a)(2) or (3) of this section to the San Joaquin Valley Unified Air Pollution Control District or to the California Air Resources Board. Nothing in this paragraph shall prevent the Administrator from implementing or enforcing the measures in paragraphs (a)(2) and (3) of this section.
Agricultural Marketing Service, USDA.
Notice to solicit nominees.
The United States Department of Agriculture's (USDA) Agricultural Marketing Service (AMS) is seeking nominations for individuals to serve on the Grain Inspection Advisory Committee (Advisory Committee). The Advisory Committee meets no less than once annually to advise AMS on the programs and services it delivers pursuant to the U.S. Grain Standards Act (USGSA) and in accordance with the Federal Advisory Committee Act (FACA), as amended. Recommendations by the Advisory Committee help AMS better meet the needs of its customers who operate in a dynamic and changing marketplace.
AMS will consider nominations received by September 22, 2023.
Submit nominations for the Advisory Committee by completing form AD-755 and send via email as an attachment to:
Kendra Kline, Designated Federal Officer, Telephone (202) 690- 2410 or Email
As required by section 21 of the USGSA (7 U.S.C. 87j), as amended, and pursuant to the Federal Advisory Committee Act (FACA), as amended, the Secretary of Agriculture (Secretary) established the Advisory Committee on September 29, 1981, to provide advice to the AMS Administrator on implementation of the USGSA. As specified in the USGSA, no member may serve, successively, for more than 2 terms.
The Advisory Committee consists of 15 members, who represent the interests of grain producers, processors, handlers, merchandisers, consumers, exporters, and scientists with expertise in research related to the policies in section 2 of the USGSA (7 U.S.C. 74). Members are appointed and serve at the pleasure of the Secretary of Agriculture. Members of the advisory committee serve without compensation, but may be allowed travel expenses, including per diem in lieu of subsistence, to the extent permitted by law for persons serving intermittently in the Government service (5 U.S.C. 5703), consistent with the availability of funds.
A list of current Advisory Committee members and other relevant information are available on the USDA website at:
The grain industry that utilizes Official Inspection and Weighing services for barley, canola, corn, flaxseed, oats, rye, soybeans, sorghum, sunflower seed, triticale, wheat, and mixed grain is diverse. AMS is seeking nominations for the Advisory Committee that will reflect the diversity of the grain industry, including, but not limited to, grain producers, processors, handlers, merchandisers, consumers, exporters, and scientists. Therefore, when making recommendations for appointments, the industry must consider the diversity of the population served and the knowledge, skills, and abilities of the members to serve a diverse population.
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 (
Equal opportunity practices in accordance with USDA's policies will be followed in all appointments to the Committee. To ensure that the recommendations of the Committee have taken in account the needs of the diverse groups served by USDA, membership shall include to the extent possible, individuals with demonstrated ability to represent minorities, women, and person with disabilities. USDA is an equal opportunity provider, employer, and lender.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding: whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological
Comments regarding this information collection received by September 7, 2023 will be considered. 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
An agency 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.
Census Bureau, Department of Commerce.
Notice of determination.
Notice is hereby given that the Bureau of the Census (Census Bureau) is conducting the Annual Integrated Economic Survey (AIES). We have determined that data to be collected in this survey are needed to aid the efficient performance of essential governmental functions and have significant application to the needs of businesses, organizations, and the public. The AIES will provide the only comprehensive national and subnational data on business revenues, expenses, and assets on an annual basis. The data derived from this survey are not publicly available from nongovernmental or other governmental sources.
The Census Bureau will make available the reporting instructions to the organizations included in the surveys. Additional copies are available upon written request to the Director, U.S. Census Bureau, 4600 Silver Hill Road, Washington, DC 20233-0101.
Nick Orsini, Associate Director for Economic Programs, Telephone: 301-763-1858; Email:
In an effort to improve measurements of the economy in the United States, the Census Bureau will conduct the Annual Integrated Economic Survey (AIES). The AIES is a new survey designed to combine several existing Census Bureau annual survey collections to reduce respondent burden and simultaneously increase data quality and operational efficiencies. The AIES integrates and replaces the following existing annual collections: the Annual Retail Trade Survey (ARTS) (Office of Management and Budget (OMB) control number 0607-0013), the Annual Wholesale Trade Survey (AWTS) (OMB control number 0607-0195), the Service Annual Survey (SAS) (OMB control number 0607-0422), the Annual Survey of Manufactures (ASM) (OMB control number 0607-0449), the Annual Capital Expenditures Survey (ACES) (OMB control number 0607-0782), the Manufacturer's Unfilled Orders Survey (M3UFO) (OMB control number 0607-0561), and the Report of Organization (OMB control number 0607-0444).
The Census Bureau plans to conduct the AIES on an annual basis, beginning with a preparatory 2022 AIES dress rehearsal (collected in calendar year 2023) and the full-scale AIES implementation beginning in survey year 2023 (collected in calendar year 2024). The 2022 AIES dress rehearsal will be a small-scale collection that will mimic the collection instrument and procedures planned for the full-scale 2023 AIES. The 2022 AIES dress rehearsal will allow the Census Bureau to examine patterns of response and to determine what additional support respondents will need in future collections. To minimize the burden imposed on companies already in one or more of the seven annual surveys that the AIES will replace, responses submitted for the 2022 AIES dress rehearsal will fulfill survey year 2022 reporting requirements for the
The AIES covers all domestic, private, non-farm employer businesses headquartered in the U.S. as defined by the 2017 North American Industry Classification System (NAICS). Exclusions are most foreign operations of U.S. businesses and most government operations (including the U.S. Postal Service), agricultural production companies, and private households. The AIES sample is selected from a frame of approximately 5.4 million companies constructed from the Business Register (BR), which is the Census Bureau's master business list. The 2022 AIES dress rehearsal will sample approximately 8,500 employer businesses and the full-scale AIES will sample approximately 385,000 employer businesses. Of the 385,000 employer businesses, the Census Bureau will select approximately 36,500 companies with 100% probability, based on the complexity of their operations. The remaining companies in the frame will be stratified within sector by geographic category within 3-digit industry NAICS classification. This is an unequal probability sample, with company inclusion probabilities accounting for contribution(s) to both national and subnational estimates of annual payroll.
The AIES estimates will include data on employment; revenue including sales; shipments; receipts; revenue by class of customer; sources of revenue; taxes, contributions; gifts and grants; products; e-commerce activity; operating expenses including purchased services; payroll; benefits; rental payments; utilities; interest; resales; equipment; materials and supplies; research and development; other detailed operating expenses; and assets which includes capital expenditures; inventories; depreciable assets; and robotics.
The AIES will provide continuous and timely national and subnational statistical data on the economy. Government program officials, industry organization leaders, economic and social analysts, business entrepreneurs, and domestic and foreign researchers in academia, business, and government will use statistics from AIES. More details on expected uses of the statistics from the AIES are found in the 30-Day Notice for the AIES (88 FR 19906; April 4, 2023).
Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a currently valid Office of Management and Budget (OMB) control number. In accordance with the PRA, 44 U.S.C., Chapter 45, OMB approved the AIES under the OMB control number 0607-1024.
Based upon the foregoing, I have directed that the Annual Integrated Economic Survey be conducted for the purpose of collecting these data.
Robert L. Santos, Director, Census Bureau, approved the publication of this Notice in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for comments on proposed authorization and possible renewal.
NMFS has received a request from the University of Texas at Austin (UT) for authorization to take marine mammals incidental to a marine geophysical survey in coastal waters off of Texas. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal
Comments and information must be received no later than September 7, 2023.
Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, NMFS and should be submitted via email to
Rachel Wachtendonk, Office of Protected Resources, NMFS, (301) 427-8401.
The MMPA prohibits the “take” of marine mammals, with certain exceptions. Section 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth. The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
On March 7, 2023, NMFS received a request from UT for an IHA to take marine mammals incidental to conducting a marine geophysical survey in coastal waters off of Texas. Following NMFS' review of the application, UT submitted a revised version on April 25, 2023. The application was deemed adequate and complete on April 27, 2023. UT's request is for take of bottlenose dolphins, Atlantic spotted dolphins, and rough-toothed dolphin by Level B harassment only. Neither UT nor NMFS expect serious injury or mortality to result from this activity and, therefore, an IHA is appropriate.
UT proposes to conduct a marine geophysical survey, specifically a low energy seismic survey, in coastal waters off of Texas during a 10 day period in the fall of 2023. The survey would take place in coastal waters off of Texas, in water depths of less than 20 meters (m). To complete this survey the vessel would tow one to two Generator-Injector (GI) airguns, each with a volume of 105 cubic inch (in
The purpose of the proposed survey is to validate novel dynamic positioning technology for improving the accuracy in time and space of high resolution 3-dimensional (HR3D) seismic datasets, in particular as it pertains to field technology of offshore carbon capture systems.
The proposed survey is planned to occur over a 10 day period during the fall of 2023 (the exact dates are uncertain). During that time, the airguns would operate continuously (
The proposed survey area is 222 km2 and would occur within the approximate area of 28.9-29.1° N latitude, 94.9-95.2° W longitude in the coastal waters off of Texas. This location is offshore San Luis Pass, which defines the southern tip of Galveston Island, Texas. The closest point of approach of the proposed survey area to the coast is approximately 3 kilometers (km). The proposed survey area is depicted in Figure 1, and the survey lines could occur anywhere within the survey area. The water depth of the proposed survey area ranges from 10 to 20 m. The survey vessel (the R/V Brooks McCall (McCall) or similar vessel operated by TDI-Brooks
The proposed survey would entail use of conventional seismic methodology. The survey would involve one source vessel, the McCall or similar, and would tow one or two 105 in
Proposed mitigation, monitoring, and reporting measures are described in detail later in this Notice (please see Proposed Mitigation and Proposed Monitoring and Reporting).
Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history of the potentially affected species. NMFS fully considered all of this information, and we refer the reader to these descriptions, instead of reprinting the information. Additional information regarding population trends and threats may be found in NMFS' Stock Assessment Reports (SARs;
Table 1 lists all species or stocks for which take is expected and proposed to be authorized for this activity and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS' SARs). While no serious injury or mortality is anticipated or proposed to be authorized here, PBR
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS' stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS' U.S. Atlantic and Gulf of Mexico SARs. All values presented in Table 1 are the most recent available at the time of publication (including from the draft 2022 SARs) and are available online at:
As indicated above, all 3 species (with 4 managed stocks) in Table 1 temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur. All species that could potentially occur in the proposed survey areas are included in Table 2 of the IHA application. While the additional 11 species listed in Table 2 of UT's application have been infrequently sighted in the survey area, the temporal and/or spatial occurrence of these species is such that take is not expected to occur, and they are not discussed further beyond the explanation provided here. Species or stocks that only occur in deep waters (>200 m) within the Gulf of Mexico are unlikely to be observed during this survey where the maximum water depth is 20 m, and thus, the following species or stocks will not be considered further: offshore stock of bottlenose dolphins, pantropical spotted dolphin, spinner dolphin, striped dolphin, Clymene dolphin, Fraser's dolphin, Risso's dolphin, melon-headed whale, pygmy killer whale, false killer whale, killer whale, and short-finned pilot whale.
Bottlenose dolphins are cosmopolitan, occurring in tropical, subtropical, and temperate waters around the world (Wells and Scott 2018). The bottlenose dolphin is the most widespread and common delphinid in coastal waters of the Gulf of Mexico (Würsig
There are 31 bay, sound, and estuary (BSE) stocks in the northern Gulf of Mexico, which are small, resident populations of bottlenose dolphins that live inshore or, occasionally, close to shore or in passes, and are genetically discrete. There are two of the BSE stocks that occur near the survey area, the West Bay stock and the Galveston Bay/East Bay/Trinity Bay stock. The West Bay stock occurs within roughly 20 km of the survey area, but individuals from this stock are only likely to occur in inshore waters or, occasionally, up to 1 km from shore off San Luis Pass (Hayes
Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Not all marine mammal species have equal hearing capabilities (
The pinniped functional hearing group was modified from Southall
For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information.
This section provides a discussion of the ways in which components of the specified activity may impact marine mammals and their habitat. The Estimated Take of Marine Mammals section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The Negligible Impact Analysis and Determination section considers the content of this section, the Estimated Take of Marine Mammals section, and the Proposed Mitigation section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and whether those impacts are reasonably expected to, or reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.
This section contains a brief technical background on sound, the characteristics of certain sound types, and on metrics used in this proposal inasmuch as the information is relevant to the specified activity and to a discussion of the potential effects of the specified activity on marine mammals found later in this document.
Sound travels in waves, the basic components of which are frequency, wavelength, velocity, and amplitude. Frequency is the number of pressure waves that pass by a reference point per unit of time and is measured in hertz (Hz) or cycles per second. Wavelength is the distance between two peaks or corresponding points of a sound wave (length of one cycle). Higher frequency sounds have shorter wavelengths than lower frequency sounds, and typically attenuate (decrease) more rapidly, except in certain cases in shallower water. Amplitude is the height of the sound pressure wave or the “loudness” of a sound and is typically described using the relative unit of the dB. A sound pressure level (SPL) in dB is described as the ratio between a measured pressure and a reference pressure (for underwater sound, this is 1 microPascal (μPa)) and is a logarithmic unit that accounts for large variations in amplitude; therefore, a relatively small change in dB corresponds to large changes in sound pressure. The source level (SL) represents the SPL referenced at a distance of 1 m from the source (referenced to 1 μPa) while the received level is the SPL at the listener's position (referenced to 1 μPa).
Root mean square (rms) is the quadratic mean sound pressure over the duration of an impulse. Root mean square is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick, 1983). Root mean square accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels (Hastings and Popper, 2005). This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units than by peak pressures.
Sound exposure level (SEL; represented as dB re 1 μPa
When underwater objects vibrate or activity occurs, sound-pressure waves are created. These waves alternately compress and decompress the water as the sound wave travels. Underwater sound waves radiate in a manner similar to ripples on the surface of a pond and may be either directed in a beam or beams or may radiate in all directions (omnidirectional sources), as is the case for pulses produced by the airgun arrays considered here. The compressions and decompressions associated with sound waves are detected as changes in
Even in the absence of sound from the specified activity, the underwater environment is typically loud due to ambient sound. Ambient sound is defined as environmental background sound levels lacking a single source or point (Richardson
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The sum of the various natural and anthropogenic sound sources at any given location and time—which comprise “ambient” or “background” sound—depends not only on the source levels (as determined by current weather conditions and levels of biological and human activity) but also on the ability of sound to propagate through the environment. In turn, sound propagation is dependent on the spatially and temporally varying properties of the water column and sea floor, and is frequency-dependent. As a result of this dependence on a large number of varying factors, ambient sound levels can be expected to vary widely over both coarse and fine spatial and temporal scales. Sound levels at a given frequency and location can vary by 10-20 dB from day to day (Richardson
Sounds are often considered to fall into one of two general types: Pulsed and non-pulsed (defined in the following). The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing (
Pulsed sound sources (
Non-pulsed sounds can be tonal, narrowband, or broadband, brief or prolonged, and may be either continuous or non-continuous (ANSI, 1995; NIOSH, 1998). Some of these non-pulsed sounds can be transient signals of short duration but without the essential properties of pulses (
Airgun arrays produce pulsed signals with energy in a frequency range from about 10-2,000 Hz, with most energy radiated at frequencies below 200 Hz. The amplitude of the acoustic wave emitted from the source is equal in all directions (
Here, we discuss the effects of active acoustic sources on marine mammals.
Richardson
We describe the more severe effects of certain non-auditory physical or physiological effects only briefly as we do not expect that use of airgun arrays are reasonably likely to result in such effects (see below for further discussion). Potential effects from impulsive sound sources can range in severity from effects such as behavioral disturbance or tactile perception to physical discomfort, slight injury of the internal organs and the auditory system, or mortality (Yelverton
When PTS occurs, there is physical damage to the sound receptors in the ear (
Relationships between TTS and PTS thresholds have not been studied in marine mammals. There is no PTS data for cetaceans, but such relationships are assumed to be similar to those in humans and other terrestrial mammals. PTS typically occurs at exposure levels at least several dBs above (a 40-dB threshold shift approximates PTS onset;
For mid-frequency cetaceans in particular, potential protective mechanisms may help limit onset of TTS or prevent onset of PTS. Such mechanisms include dampening of hearing, auditory adaptation, or behavioral amelioration (
TTS is the mildest form of hearing impairment that can occur during exposure to sound (Kryter, 1985). While experiencing TTS, the hearing threshold rises, and a sound must be at a higher level in order to be heard. In terrestrial and marine mammals, TTS can last from minutes or hours to days (in cases of strong TTS). In many cases, hearing sensitivity recovers rapidly after exposure to the sound ends. Few data on sound levels and durations necessary to elicit mild TTS have been obtained for marine mammals.
Marine mammal hearing plays a critical role in communication with other members of the species and interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (
Finneran
Currently, TTS data only exist for four species of cetaceans (bottlenose dolphin, beluga whale, harbor porpoise, and Yangtze finless porpoise) exposed to a limited number of sound sources (
Critical questions remain regarding the rate of TTS growth and recovery after exposure to intermittent noise and the effects of single and multiple pulses. Data at present are also insufficient to construct generalized models for recovery and determine the time necessary to treat subsequent exposures as independent events. More
Habituation can occur when an animal's response to a stimulus wanes with repeated exposure, usually in the absence of unpleasant associated events (Wartzok
Available studies show wide variation in response to underwater sound; therefore, it is difficult to predict specifically how any given sound in a particular instance might affect marine mammals perceiving the signal. If a marine mammal does react briefly to an underwater sound by changing its behavior or moving a small distance, the impacts of the change are unlikely to be significant to the individual, let alone the stock or population. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on individuals and populations could be significant (
Changes in dive behavior can vary widely, and may consist of increased or decreased dive times and surface intervals as well as changes in the rates of ascent and descent during a dive (
Disruption of feeding behavior can be difficult to correlate with anthropogenic sound exposure, so it is usually inferred by observed displacement from known foraging areas, the appearance of secondary indicators (
Variations in respiration naturally vary with different behaviors and alterations to breathing rate as a function of acoustic exposure can be expected to co-occur with other behavioral reactions, such as a flight response or an alteration in diving. However, respiration rates in and of themselves may be representative of annoyance or an acute stress response. Various studies have shown that respiration rates may either be unaffected or could increase, depending on the species and signal characteristics, again highlighting the importance in understanding species differences in the tolerance of underwater noise when determining the potential for impacts resulting from anthropogenic sound exposure (
Marine mammals vocalize for different purposes and across multiple modes, such as whistling, echolocation click production, calling, and singing. Changes in vocalization behavior in response to anthropogenic noise can occur for any of these modes and may result from a need to compete with an increase in background noise or may reflect increased vigilance or a startle response. In some cases, animals may cease sound production during production of aversive signals (Bowles
Avoidance is the displacement of an individual from an area or migration path as a result of the presence of sound or other stressors and is one of the most obvious manifestations of disturbance in marine mammals (Richardson
A flight response is a dramatic change in normal movement to a directed and rapid movement away from the perceived location of a sound source. The flight response differs from other avoidance responses in the intensity of the response (
Behavioral disturbance can also impact marine mammals in more subtle ways. Increased vigilance may result in costs related to diversion of focus and attention (
Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hour cycle). Disruption of such functions resulting from reactions to stressors, such as sound exposure, are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall
Stone (2015) reported data from at-sea observations during 1,196 seismic surveys from 1994 to 2010. When arrays of large airguns (considered to be 500 in
Neuroendocrine stress responses often involve the hypothalamus-pituitary-adrenal system. Virtually all neuroendocrine functions that are affected by stress—including immune competence, reproduction, metabolism, and behavior—are regulated by pituitary hormones. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction, altered metabolism, reduced immune competence, and behavioral disturbance (
The primary distinction between “stress” (which is adaptive and does not normally place an animal at risk) and “distress” is the cost of the response. During a stress response, an animal uses glycogen stores that can be quickly replenished once the stress is alleviated. In such circumstances, the cost of the stress response would not pose serious fitness consequences. However, when an animal does not have sufficient energy reserves to satisfy the energetic costs of a stress response, energy resources must be diverted from other functions. This state of distress will last until the animal replenishes its energetic reserves sufficiently to restore normal function.
Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses are well-studied through controlled experiments and for both laboratory and free-ranging animals (
Under certain circumstances, significant masking could disrupt behavioral patterns, which in turn could affect fitness for survival and reproduction. It is important to distinguish TTS and PTS, which persist after the sound exposure, from masking, which occurs during the sound exposure. Because masking (without resulting in TS) is not associated with abnormal physiological function, it is not considered a physiological effect but rather a potential behavioral effect.
The frequency range of the potentially masking sound is important in predicting any potential behavioral impacts. For example, low-frequency signals may have less effect on high-frequency echolocation sounds produced by odontocetes but are more likely to affect other potentially important natural sounds such as those produced by surf and some prey species. The masking of communication signals by anthropogenic noise may be considered as a reduction in the communication space of animals (
Masking affects both senders and receivers of acoustic signals and can potentially have long-term chronic effects on marine mammals at the population level as well as at the individual level. Low-frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of SPL) in the world's ocean from pre-industrial periods, with most of the increase from distant commercial shipping (Hildebrand, 2009). All anthropogenic sound sources, but especially chronic and lower-frequency signals (
Masking effects of pulsed sounds (even from large arrays of airguns) on marine mammal calls and other natural sounds are expected to be limited, although there are few specific data on this. Because of the intermittent nature and low duty cycle of seismic pulses, animals can emit and receive sounds in the relatively quiet intervals between pulses. However, in exceptional situations, reverberation occurs for much or all of the interval between pulses (
The sounds important to small odontocetes are predominantly at much higher frequencies than are the dominant components of airgun sounds, thus limiting the potential for masking. In general, masking effects of seismic pulses are expected to be minor, given the normally intermittent nature of seismic pulses.
Vessel noise from the McCall could affect marine animals in the proposed survey areas. Houghton
Vessel noise, through masking, can reduce the effective communication distance of a marine mammal if the frequency of the sound source is close to that used by the animal, and if the sound is present for a significant fraction of time (
Many odontocetes show considerable tolerance of vessel traffic, although they sometimes react at long distances if confined by ice or shallow water, if previously harassed by vessels, or have had little or no recent exposure to vessels (Richardson
Sounds emitted by the McCall are low frequency and continuous but would be widely dispersed in both space and time. Vessel traffic associated with the proposed survey is of low density compared to traffic associated with commercial shipping, industry support vessels, or commercial fishing vessels, and would therefore be expected to represent an insignificant incremental increase in the total amount of anthropogenic sound input to the marine environment, and the effects of vessel noise described above are not expected to occur as a result of this survey. In summary, project vessel sounds would not be at levels expected to cause anything more than possible localized and temporary behavioral changes in marine mammals, and would not be expected to result in significant negative effects on individuals or at the population level. In addition, in all oceans of the world, large vessel traffic is currently so prevalent that it is commonly considered a usual source of ambient sound (NSF-USGS 2011).
Vessel collisions with marine mammals, or vessel strikes, can result in death or serious injury of the animal. Wounds resulting from vessel strike may include massive trauma, hemorrhaging, broken bones, or propeller lacerations (Knowlton and Kraus, 2001). An animal at the surface may be struck directly by a vessel, a surfacing animal may hit the bottom of a vessel, or an animal just below the surface may be cut by a vessel's propeller. Superficial strikes may not kill or result in the death of the animal. These interactions are typically associated with large whales (
Pace and Silber (2005) also found that the probability of death or serious injury increased rapidly with increasing vessel speed. Specifically, the predicted probability of serious injury or death increased from 45 to 75 percent as vessel speed increased from 10 to 14 kn (25.9 kmh), and exceeded 90 percent at 17 kn (31.5 kmh). Higher speeds during collisions result in greater force of impact, but higher speeds also appear to increase the chance of severe injuries or death through increased likelihood of collision by pulling whales toward the vessel (Clyne 1999; Knowlton
The McCall will travel at a speed of 4-5 kn (7.4-9.3 kmh) while towing seismic survey gear. At this speed, both the possibility of striking a marine mammal and the possibility of a strike resulting in serious injury or mortality are discountable. At average transit speed, the probability of serious injury or mortality resulting from a strike is less than 50 percent. However, the likelihood of a strike actually happening is again discountable. Vessel strikes, as analyzed in the studies cited above, generally involve commercial shipping, which is much more common in both space and time than is geophysical survey activity. Jensen and Silber (2004) summarized vessel strikes of large whales worldwide from 1975-2003 and found that most collisions occurred in the open ocean and involved large vessels (
It is possible for vessel strikes to occur while traveling at slow speeds. For example, a hydrographic survey vessel traveling at low speed (5.5 kn; 10.2 kmh) while conducting mapping surveys off the central California coast struck and killed a blue whale in 2009. The State of California determined that the whale had suddenly and unexpectedly surfaced beneath the hull, with the result that the propeller severed the whale's vertebrae, and that this was an unavoidable event. This strike represents the only such incident in approximately 540,000 hours of similar coastal mapping activity (
Although the likelihood of the vessel striking a marine mammal is low, we propose a robust vessel strike avoidance protocol (see Proposed Mitigation), which we believe eliminates any foreseeable risk of vessel strike during transit. We anticipate that vessel collisions involving a seismic data acquisition vessel towing gear, while not impossible, represent unlikely, unpredictable events for which there are no preventive measures. Given the proposed mitigation measures, the relatively slow speed of the vessel towing gear, the presence of bridge crew watching for obstacles at all times (including marine mammals), and the presence of marine mammal observers, the possibility of vessel strike is discountable and, further, were a strike of a large whale to occur, it would be unlikely to result in serious injury or mortality. No incidental take resulting from vessel strike is anticipated, and this potential effect of the specified activity will not be discussed further in the following analysis.
Sound pressure levels of sufficient strength have been known to cause injury to fish and fish mortality and, in some studies, fish auditory systems have been damaged by airgun noise (McCauley
A recent comprehensive review (Carroll
A recent review article concluded that, while laboratory results provide scientific evidence for high-intensity and low-frequency sound-induced physical trauma and other negative effects on some fish and invertebrates, the sound exposure scenarios in some cases are not realistic to those encountered by marine organisms during routine seismic operations (Carroll
In summary, impacts of the specified activity on marine mammal prey species will likely be limited to behavioral responses, the majority of prey species will be capable of moving out of the area during the survey, a rapid return to normal recruitment, distribution, and behavior for prey species is anticipated, and, overall, impacts to prey species will be minor and temporary. Prey species exposed to sound might move away from the sound source, experience TTS, experience masking of biologically relevant sounds, or show no obvious direct effects. Mortality from decompression injuries is possible in close proximity to a sound, but only limited data on mortality in response to airgun noise exposure are available (Hawkins
Soundscapes are also defined by, and acoustic habitat influenced by, the total contribution of anthropogenic sound. This may include incidental emissions from sources such as vessel traffic, or may be intentionally introduced to the marine environment for data acquisition purposes (as in the use of airgun arrays). Anthropogenic noise varies widely in its frequency content, duration, and loudness and these characteristics greatly influence the potential habitat-mediated effects to marine mammals (please see also the previous discussion on masking under “Acoustic Effects”),
Problems arising from a failure to detect cues are more likely to occur when noise stimuli are chronic and overlap with biologically relevant cues used for communication, orientation, and predator/prey detection (Francis and Barber, 2013). Although the signals emitted by seismic airgun arrays are generally low frequency, they would also likely be of short duration and transient in any given area due to the nature of these surveys. As described previously, exploratory surveys such as these cover a large area but would be transient rather than focused in a given location over time and therefore would not be considered chronic in any given location.
Based on the information discussed herein, we conclude that impacts of the specified activity are not likely to have more than short-term adverse effects on any prey habitat or populations of prey species. Further, any impacts to marine mammal habitat are not expected to result in significant or long-term consequences for individual marine mammals, or to contribute to adverse impacts on their populations.
This section provides an estimate of the number of incidental takes proposed for authorization through the IHA, which will inform both NMFS' consideration of “small numbers,” and the negligible impact determinations.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance, which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes would be by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to sound from low energy seismic airguns. Based on the nature of the activity, Level A harassment is neither anticipated nor proposed to be authorized. As described previously, no serious injury or mortality is anticipated or proposed to be authorized for this activity. Below we describe how the proposed take numbers are estimated.
For acoustic impacts, generally speaking, we estimate take by considering: (1) acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) the number of days of activities. We note that while these factors can contribute to a basic calculation to provide an initial prediction of potential takes, additional information that can qualitatively inform take estimates is also sometimes available (
NMFS recommends the use of acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).
UT's proposed survey includes the use of impulsive seismic sources (
These thresholds are provided in the Table 3 and 4 below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS' 2018 Technical Guidance, which may be accessed at:
Here, we describe operational and environmental parameters of the activity that are used in estimating the area ensonified above the acoustic thresholds, including source levels and transmission loss coefficient.
The proposed survey would entail the use of up to two 105 in
The proposed surveys would acquire data with up to two 105-in
L-DEO's methodology is described in greater detail in UT's IHA application. The estimated distances to the Level B harassment isopleth for the proposed airgun configuration are shown in Table 3.
The ensonified area associated with Level A harassment is more technically challenging to predict due to the need to account for a duration component. Therefore, NMFS developed an optional user spreadsheet tool to accompany the Technical Guidance (2018) that can be used to relatively simply predict an isopleth distance for use in conjunction with marine mammal density or occurrence to help predict potential takes. We note that because of some of the assumptions included in the methods underlying this optional tool, we anticipate that the resulting isopleth estimates are typically going to be overestimates of some degree, which may result in an overestimate of potential take by Level A harassment. However, this optional tool offers the best way to estimate isopleth distances when more sophisticated modeling methods are not available or practical. Table 4 presents the modeled PTS isopleths for mid-frequency cetaceans, the only hearing group for which takes are expected, based on L-DEO modeling incorporated in the companion User Spreadsheet (NMFS 2018).
Predicted distances to Level A harassment isopleths, which vary based on marine mammal hearing groups, were calculated based on modeling performed by L-DEO using the Nucleus software program and the NMFS User Spreadsheet, described below. The acoustic thresholds for impulsive sounds (
The SEL
Auditory injury for all species is unlikely to occur given the small modeled zones of injury (estimated zone less than 2 m for mid-frequency cetaceans). Additionally, animals are expected to have aversive/compensatory
In this section we provide information about the occurrence of marine mammals, including density or other relevant information which will inform the take calculations.
For the proposed survey area in the northwest Gulf of Mexico, UT determined that the best source of density data for marine mammal species that might be encountered in the project area was habitat-based density modeling conducted by Garrison
Rough-toothed dolphins were not modeled by Garrison
Here, we describe how the information provided above is synthesized to produce a quantitative estimate of the take that is reasonably likely to occur and proposed for authorization. In order to estimate the number of marine mammals predicted to be exposed to sound levels that would result in Level B harassment, radial distances from the airgun array to the predicted isopleth corresponding to the Level B harassment threshold was calculated, as described above. Those radial distances were then used to calculate the area(s) around the airgun array predicted to be ensonified to sound levels that exceed the harassment thresholds. The area expected to be ensonified on 1 day was determined by multiplying the number of line km possible in 1 day by two times the 160-dB radius plus adding endcaps to the start and beginning of the line. The daily ensonified area was then multiplied by the number of survey days (10 days). The highest mean monthly density for each species was then multiplied by the total ensonified area to calculate the estimated takes of each species.
No takes by Level A harassment are expected or proposed for authorization. Estimated takes for the proposed survey are shown in Table 6.
In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting the activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, NMFS considers two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned), the likelihood of effective implementation (probability implemented as planned), and;
(2) The practicability of the measures for applicant implementation, which may consider such things as cost, and impact on operations.
Mitigation measures that would be adopted during the planned survey include, but are not limited to: (1) vessel speed or course alteration, provided that doing so would not compromise operation safety requirements; (2) monitoring a pre-start clearance zone; and (3) ramp-up procedures.
Visual monitoring requires the use of trained observers (herein referred to as visual protected species observers (PSOs)) to scan the ocean surface visually for the presence of marine mammals. PSOs shall establish and monitor a pre-start clearance zone and, to the extent practicable, a Level B harassment zone (Table 3). These zones shall be based upon the radial distance from the edges of the acoustic source (rather than being based on the center of the array or around the vessel itself). During pre-start clearance (
During survey operations (
PSOs shall establish and monitor a pre-start clearance zone and to the extent practicable, a Level B harassment zone. These zones shall be based upon the radial distance from the edges of the acoustic source (rather than being based on the center of the array or around the vessel itself).
Any observations of marine mammals by crew members shall be relayed to the PSO team. During good conditions (
Visual PSOs may be on watch for a maximum of 4 consecutive hours followed by a break of at least 1 hour between watches and may conduct a maximum of 12 hours of observation per 24-hour period.
Ramp-up is the gradual and systematic increase of emitted sound levels from an acoustic source. Ramp-up would begin with one GI airgun 105 in
(1) The operator must notify a designated PSO of the planned start of ramp-up as agreed upon with the lead PSO; the notification time should not be less than 60 minutes prior to the planned ramp-up in order to allow PSOs time to monitor the pre-start clearance zone for 30 minutes prior to the initiation of ramp-up (pre-start clearance);
• Ramp-ups shall be scheduled so as to minimize the time spent with the source activated prior to reaching the designated run-in;
• One of the PSOs conducting pre-start clearance observations must be notified again immediately prior to initiating ramp-up procedures and the operator must receive confirmation from the PSO to proceed;
• Ramp-up may not be initiated if any marine mammal is within the pre-start clearance zone. If a marine mammal is observed within the pre-start clearance zone during the 30 minutes pre-clearance period, ramp-up may not begin until the animal(s) has been observed exiting the zone or until an additional time period has elapsed with no further sightings (15 minutes for small delphinids and 30 minutes for all other species);
• Ramp-up must begin by activating the first airgun for 5 minutes and then adding the second airgun; and
• PSOs must monitor the pre-start clearance zone during ramp-up, and ramp-up must cease and the source must be shut down upon detection of a marine mammal within the pre-start clearance zone. Once ramp-up has begun, observations of marine mammals for which take authorization is granted within the pre-start clearance zone does not require shutdown.
(2) If the acoustic source is shut down for brief periods (
• Testing of the acoustic source involving all elements requires ramp-up. Testing limited to individual source elements or strings does not require ramp-up but does require a 30 minute pre-start clearance period.
The shutdown requirement will be waived for small dolphins. As defined here, the small dolphin group is intended to encompass those members of the Family Delphinidae most likely to voluntarily approach the source vessel for purposes of interacting with the vessel and/or airgun array (
These measures apply to all vessels associated with the planned survey activity; however, we note that these requirements do not apply in any case where compliance would create an imminent and serious threat to a person or vessel or to the extent that a vessel is restricted in its ability to maneuver and, because of the restriction, cannot comply. These measures include the following:
(1) Vessel operators and crews must maintain a vigilant watch for all marine mammals and slow down, stop their vessel, or alter course, as appropriate and regardless of vessel size, to avoid striking any marine mammal. A single marine mammal at the surface may indicate the presence of submerged animals in the vicinity of the vessel; therefore, precautionary measures should be exercised when an animal is observed. A visual observer aboard the vessel must monitor a vessel strike avoidance zone around the vessel (specific distances detailed below), to ensure the potential for strike is minimized. Visual observers monitoring the vessel strike avoidance zone can be either third-party observers or crew members, but crew members responsible for these duties must be provided sufficient training to (1) distinguish marine mammals from other phenomena and (2) broadly to identify a marine mammal as a baleen whale, sperm whale, or other marine mammals;
(2) Vessel speeds must be reduced to 10 kn (18.5 kph) or less when mother and calf pairs, pods, or large assemblages of cetaceans are observed near a vessel;
(3) All vessels must maintain a minimum separation distance of 100 m from sperm whales;
(4) All vessels must maintain a minimum separation distance of 500 m baleen whales. If a baleen whale is sighted within the relevant separation distance, the vessel must steer a course away at 10 knots or less until the 500-m separation distance has been established. If a whale is observed but cannot be confirmed as a species other than a baleen whale, the vessel operator must assume that it is a baleen whale and take appropriate action.
(5) All vessels must, to the maximum extent practicable, attempt to maintain a minimum separation distance of 50 m from all other marine mammals, with an understanding that at times this may not be possible (
(6) When marine mammals are sighted while a vessel is underway, the vessel should take action as necessary to avoid violating the relevant separation distance (
Based on our evaluation of the applicant's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present while conducting the activities. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;
• How anticipated responses to stressors impact either: (1) long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
As described above, PSO observations would take place during daytime airgun operations. Two visual PSOs would be on duty at all time during daytime hours. Monitoring shall be conducted in accordance with the following requirements:
(1) UT must work with the selected third-party observer provider to ensure PSOs have all equipment (including backup equipment) needed to adequately perform necessary tasks, including accurate determination of distance and bearing to observed marine mammals, and to ensure that PSOs are capable of calibrating equipment as
PSOs must have the following requirements and qualifications:
(1) PSOs shall be independent, dedicated and trained and must be employed by a third-party observer provider;
(2) PSOs shall have no tasks other than to conduct visual observational effort, collect data, and communicate with and instruct relevant vessel crew with regard to the presence of protected species and mitigation requirements (including brief alerts regarding maritime hazards);
(3) PSOs shall have successfully completed an approved PSO training course appropriate for their designated task (visual);
(4) NMFS must review and approve PSO resumes accompanied by a relevant training course information packet that includes the name and qualifications (
(5) PSOs must successfully complete relevant training, including completion of all required coursework and passing (80 percent or greater) a written and/or oral examination developed for the training program;
(6) PSOs must have successfully attained a bachelor's degree from an accredited college or university with a major in one of the natural sciences, a minimum of 30 semester hours or equivalent in the biological sciences, and at least one undergraduate course in math or statistics; and
(7) The educational requirements may be waived if the PSO has acquired the relevant skills through alternate experience. Requests for such a waiver shall be submitted to NMFS and must include written justification. Requests shall be granted or denied (with justification) by NMFS within one week of receipt of submitted information. Alternate experience that may be considered includes, but is not limited to:
• Secondary education and/or experience comparable to PSO duties;
• Previous work experience conducting academic, commercial, or government-sponsored protected species surveys; or
• Previous work experience as a PSO; the PSO should demonstrate good standing and consistently good performance of PSO duties.
At least one visual PSO must be unconditionally approved (
PSOs must use standardized electronic data collection forms. At a minimum, the following information must be recorded:
• Vessel name, vessel size and type, maximum speed capability of vessel;
• Dates (MM/DD/YYYY format) of departures and returns to port with port name;
• PSO names and affiliations, PSO identification (ID; initials or other identifier);
• Date (MM/DD/YYYY) and participants of PSO briefings;
• Visual monitoring equipment used (description);
• PSO location on vessel and height (in meters) of observation location above water surface;
• Watch status (description);
• Dates (MM/DD/YYYY) and times (Greenwich mean time (GMT) or coordinated universal time (UTC)) of survey on/off effort and times (GMC/UTC) corresponding with PSO on/off effort;
• Vessel location (decimal degrees) when survey effort began and ended and vessel location at beginning and end of visual PSO duty shifts;
• Vessel location (decimal degrees) at 30-second intervals if obtainable from data collection software, otherwise at practical regular interval;
• Vessel heading (compass heading) and speed (in knots) at beginning and end of visual PSO duty shifts and upon any change;
• Water depth (in meters) (if obtainable from data collection software);
• Environmental conditions while on visual survey (at beginning and end of PSO shift and whenever conditions change significantly), including BSS and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon;
• Factors that may have contributed to impaired observations during each PSO shift change or as needed as environmental conditions changed (description) (
• Vessel/Survey activity information (and changes thereof) (description), such as acoustic source power output while in operation, number and volume of acoustic source operating in the array, tow depth of the acoustic source, and any other notes of significance
The following information should be recorded upon visual observation of any marine mammal:
• Sighting ID (numeric);
• Watch status (sighting made by PSO on/off effort, opportunistic, crew, alternate vessel/platform);
• Location of PSO/observer (description);
• Vessel activity at the time of the sighting (
• PSO who sighted the animal/PSO ID;
• Time and date of sighting (GMT/UTC, MM/DD/YYYY);
• Initial detection method (description);
• Sighting cue (description);
• Vessel location at time of sighting (decimal degrees);
• Water depth (in meters);
• Direction of vessel's travel (compass direction);
• Speed (knots) of the vessel from which the observation was made;
• Direction of animal's travel relative to the vessel (description, compass heading);
• Bearing to sighting (degrees);
• Identification of the animal (
• Species reliability (an indicator of confidence in identification) (1 = unsure/possible, 2 = probable, 3 = definite/sure, 9 = unknown/not recorded);
• Estimated distance to the animal (meters) and method of estimating distance;
• Estimated number of animals (high, low, and best) (numeric);
• Estimated number of animals by cohort (adults, yearlings, juveniles, calves, group composition, etc.);
• Description (as many distinguishing features as possible of each individual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics);
• Detailed behavior observations (
• Animal's closest point of approach (in meters) and/or closest distance from any element of the acoustic source;
• Description of any actions implemented in response to the sighting (
• Photos (Yes or No);
• Photo Frame Numbers (List of numbers); and
• Conditions at time of sighting (Visibility; BSS).
UT must submit a draft comprehensive report to NMFS on all activities and monitoring results within 90 days of the completion of the survey or expiration of the IHA, whichever comes sooner. The report would describe the activities that were conducted and sightings of marine mammals. The report would provide full documentation of methods, results, and interpretation pertaining to all monitoring. The 90-day report would summarize the dates and locations of survey operations, and all marine mammal sightings (dates, times, locations, activities, associated seismic survey activities).
The draft report shall also include geo-referenced time-stamped vessel tracklines for all time periods during which airguns were operating. Tracklines should include points recording any change in airgun status (
• Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
• Species identification (if known) or description of the animal(s) involved;
• Condition of the animal(s) (including carcass condition if the animal is dead);
• Observed behaviors of the animal(s), if alive;
• If available, photographs or video footage of the animal(s); and
• General circumstances under which the animal was discovered.
Vessel strike—In the event of a vessel strike of a marine mammal by any vessel involved in the activities covered by the authorization, UT shall report the incident to OPR, NMFS and to the NMFS Southeast Regional Stranding Coordinator as soon as feasible. The report must include the following information:
• Time, date, and location (latitude/longitude) of the incident;
• Vessel's speed during and leading up to the incident;
• Vessel's course/heading and what operations were being conducted (if applicable);
• Status of all sound sources in use;
• Description of avoidance measures/requirements that were in place at the time of the strike and what additional measure were taken, if any, to avoid strike;
• Environmental conditions (
• Species identification (if known) or description of the animal(s) involved;
• Estimated size and length of the animal that was struck;
• Description of the behavior of the animal immediately preceding and following the strike;
• If available, description of the presence and behavior of any other marine mammals present immediately preceding the strike;
• Estimated fate of the animal (
• To the extent practicable, photographs or video footage of the animal(s).
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, the discussion of our analysis applies to all the species listed in Table 1, given that the anticipated effects of this activity on these different marine mammal stocks are expected to be similar. There is little information about the nature or severity of the impacts, or the size, status, or structure of any of these species or stocks that would lead to a different analysis for this activity.
NMFS does not anticipate that serious injury or mortality would occur as a result from low-energy survey, and no serious injury or mortality is proposed to be authorized. As discussed in the Potential Effects of Specified Activities on Marine Mammals and Their Habitat section, non-auditory physical effects and vessel strike are not expected to occur. NMFS expects that all potential take would be in the form of Level B behavioral harassment in the form of temporary avoidance of the area or decreased foraging (if such activity was occurring), responses that are considered to be of low severity and with no lasting biological consequences (
In addition to being temporary, the maximum expected Level B harassment
There are no rookeries, mating, or calving grounds known to be biologically important to marine mammals within the planned survey area and there are no feeding areas known to be biologically important to marine mammals within the survey area. There is no designated critical habitat for any ESA-listed marine mammals within the project area.
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
(1) No serious injury or mortality is anticipated or proposed to be authorized;
(2) No Level A harassment is anticipated, even in the absence of mitigation measures or proposed to be authorized;
(3) Take is anticipated to be by Level B harassment only consisting of temporary behavioral changes of small percentages of the affected species due to avoidance of the area around the survey vessel. The relatively short duration of the proposed survey (10 days) would further limit the potential impacts of any temporary behavioral changes that would occur;
(4) The availability of alternate areas of similar habitat value for marine mammals to temporarily vacate the survey area during the proposed survey to avoid exposure to sounds from the activity;
(5) Foraging success is not likely to be significantly impacted as effects on prey species for marine mammals would be temporary and spatially limited; and
(6) The proposed mitigation measures, including visual monitoring, ramp-ups, and shutdowns are expected to minimize potential impacts to marine mammals.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.
As noted previously, only take of small numbers of marine mammals may be authorized under section 101(a)(5)(A) and (D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. When the predicted number of individuals to be taken is fewer than one-third of the species or stock abundance, the take is considered to be of small numbers. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
NMFS proposes to authorize incidental take by Level B harassment of 3 marine mammal species with four managed stocks. The total amount of takes proposed for authorization relative to the best available population abundance is less than 5 percent for 3 managed stocks and less than 13 percent for 1 managed stock (Gulf of Mexico Western Coastal stock of bottlenose dolphin assuming all takes by Level b harassment are of this stock; see Take Estimation subsection) (Table 6). The take numbers proposed for authorization are considered conservative estimates for purposes of the small numbers determination as they assume all takes represent different individual animals, which is unlikely to be the case.
Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS preliminarily finds that small numbers of marine mammals would be taken relative to the population size of the affected species or stocks.
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Section 7(a)(2) of the ESA (16 U.S.C. 1531
No incidental take of ESA-listed species is proposed for authorization or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.
As a result of these preliminary determinations, NMFS proposes to issue an IHA to UT for conducting marine geophysical surveys in the northwest Gulf of Mexico within Texas State waters during fall 2023, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. A draft of the proposed IHA can be found at:
We request comment on our analyses, the proposed authorization, and any other aspect of this notice of proposed IHA for the proposed marine geophysical survey. We also request comment on the potential renewal of this proposed IHA as described in the paragraph below. Please include with your comments any supporting data or literature citations to help inform decisions on the request for this IHA or a subsequent renewal IHA.
On a case-by-case basis, NMFS may issue a one-time, 1-year renewal IHA following notice to the public providing an additional 15 days for public
• A request for renewal is received no later than 60 days prior to the needed renewal IHA effective date (recognizing that the renewal IHA expiration date cannot extend beyond one year from expiration of the initial IHA).
• The request for renewal must include the following:
(1) An explanation that the activities to be conducted under the requested renewal IHA are identical to the activities analyzed under the initial IHA, are a subset of the activities, or include changes so minor (
(2) A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized.
Upon review of the request for renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures will remain the same and appropriate, and the findings in the initial IHA remain valid.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of correction of a public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Risk Policy Working Group (RPWG) to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). This meeting will be held as a webinar. Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Tuesday, August 22, 2023, at 9 a.m.
This meeting will be held as a webinar only. Webinar registration URL information:
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The original notice published in the
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice; notice of availability of a final management plan and final environmental assessment.
On February 13, 2020, NOAA initiated a review of the Stellwagen Bank National Marine Sanctuary (SBNMS or the sanctuary) management plan to evaluate substantive progress toward implementing the goals of the sanctuary and to make revisions to the management plan as necessary to fulfill the purposes and policies of the NMSA. NOAA anticipated that management plan changes would require preparation of environmental analysis under the National Environmental Policy Act (NEPA), and initiated public scoping meetings to gather information and other comments from individuals, organizations, tribes, and government agencies on the scope, types, and significance of issues related to the SBNMS management plan and the proper scope of environmental analysis for the management plan review. NOAA is providing notice of availability of a final management plan and a final environmental assessment (EA) for SBNMS.
The final management plan and final environmental assessment are now available.
To obtain a copy of the final management plan, final environmental assessment, and finding of no significant impact (FONSI), contact the Management Plan Review Coordinator at Stellwagen Bank National Marine Sanctuary, Alice Stratton, 175 Edward Foster Road, Scituate, MA 02066, 203-882-6515,
Alice Stratton, 203-882-6515,
SBNMS was designated in October 1992. It spans 842-square-miles (638-square-nautical-mile) at the mouth of Massachusetts Bay. The sanctuary boundary is somewhat rectangular, stretching from three miles southeast of Cape Ann to three miles north of Cape Cod. The sanctuary is about 25 miles east of Boston, and lies totally within Federal waters. It encompasses all of Stellwagen and Tillies Banks, and the southern portion of Jeffreys Ledge. SBNMS is administered by NOAA, within the U.S. Department of Commerce, and was designated to conserve, protect, and enhance the biodiversity, ecological integrity, and cultural legacy of marine resources for current and future generations. Sanctuary programs in education, conservation, science, and stewardship help protect SBNMS and its nationally-significant resources, while promoting public use and enjoyment through compatible human activities.
In 2016, NOAA completed an internal assessment of progress toward implementation of the 2010 management plan. The assessment found that 66% (69 of 104 activities) of the management plan's activities had been fully or partially completed or were still being implemented as ongoing functions, while 35% (36 of 104 activities) were not yet started or had been placed on hold. Results of the 2016 internal assessment were discussed at a public meeting of the sanctuary advisory council in October, 2016.
On February 13, 2020, NOAA published a notice in the
On November 30, 2021, NOAA published a notice in the
The revised management plan contains 15 Action Plans addressing priority issues under four primary goals: ensure a thriving sanctuary, increase support for the sanctuary, deepen our understanding of sanctuary resources, and ensure coordinated support for sanctuary infrastructure, staff, and field operations. The revised management plan supports continued protection of sanctuary resources through enforcement of existing sanctuary regulations, education and outreach strategies that promote ocean stewardship, and community engagement.
The revised SBNMS management plan will result in changes to existing programs and policies to address contemporary issues and challenges, and to better protect and manage the sanctuary's resources and qualities. The management plan review process was composed of four major stages: (1) information collection and characterization; (2) preparation and release of a draft management plan and environmental document under NEPA; (3) public review and comment; and (4) preparation and release of a final management plan and environmental document. NOAA has also addressed other statutory and regulatory requirements, including those contained in the Endangered Species Act (ESA), Marine Mammal Protection Act, Essential Fish Habitat (EFH) provisions of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), Coastal Zone Management Act (CZMA), National Historic Preservation Act (NHPA), and tribal consultation responsibilities under Executive Order 13175.
This draft management plan contains 15 action plans which address priority issues for SBNMS. These action plans fall under four primary goals: ensure a thriving sanctuary, increase support for SBNMS, deepen our understanding of sanctuary resources, and ensure coordinated support for sanctuary infrastructure, staff, and field operations. Each action plan is summarized below (refer to the draft for complete text).
1. Marine Mammal Protection: The sanctuary serves as the primary habitat for 22 species of marine mammals. The goal of this plan is to expand our understanding of the vulnerability of marine mammals to anthropogenic activity and develop and implement mitigation activities.
2. Seabird Research: Coastal development, predation by humans and other animals, removal of prey through fisheries activity, and marine environment pollution threaten the many seabirds in the sanctuary. The goal of this plan is to understand the abundance, distribution, habitat use, bycatch, contaminant load, and foraging ecology of seabirds, and how SBNMS relates to the wider Gulf of Maine and Atlantic ecosystems.
3. Vessel Traffic: SBNMS sits at the mouth of Massachusetts Bay, which experiences commercial vessel traffic traveling to and from the growing Port of Boston. Sanctuary staff work to mitigate the impacts of the large volume of vessel traffic through technology, reporting, and warnings. The goal of this plan is to monitor vessel traffic and mitigate negative effects on sanctuary resources.
4. Maritime Heritage and Cultural Landscapes: The sanctuary serves as an underwater museum to maritime history with numerous shipwrecks on the seafloor. The sanctuary's efforts in maritime cultural landscapes help us understand the relationships between the people and the sea in the past and present through research and management. The goal of this plan is to understand the broader context of past and present uses of the sanctuary while assessing and protecting maritime heritage resources in the sanctuary.
5. Compatible Uses: Evolving commercial and recreational uses of the sanctuary impact key elements of the sanctuary's landscape. The goal of this plan is to enhance transparency
6. Climate Change: The goal of this plan is to evaluate climate change impacts on sanctuary resources and incorporate changing conditions in management decisions. Various strategies and efforts for enhanced understanding of climate impacts and synergies will inform decisions on a wide range of sanctuary management, including resource protection, education, and operations.
7. Education and Outreach: A variety of education and outreach programs, tools, and techniques are employed to bring sanctuary information and research to the widest audiences. The goal of this plan is to increase public awareness and understanding of the sanctuary and encourage responsible use and stewardship of its resources.
8. Interagency/Intergovernmental Coordination: NOAA relies on partnerships with other Federal and State agencies as well as collaborations with non-profit, community, research/academic, and many others, for effective management. The goal of this plan is to promote improved management through coordinated partnering with local, State, regional, Tribal, and Federal partners.
9. Sanctuary Advisory Council: The Sanctuary Advisory Council addresses specific management issues and public involvement by developing sound advice for the sanctuary. The goal of this plan is to facilitate an active and engaged community of Sanctuary Advisory Council members to advise the superintendent in carrying out the sanctuary's mission.
10. Research and Monitoring: The sanctuary conducts a robust science program to provide vital information to support management needs. The goal of this plan is to support, promote, and coordinate scientific research, characterization, and long-term monitoring to enhance the understanding of the sanctuary environment and processes, and improve management decision-making for optimal resource management and protection.
11. Soundscape: The sanctuary has an extensive acoustics research program that provides opportunities for partnership and leadership in the development of regional, national, and international policies for managing noise impacts on marine life. The goal of this plan is to maintain the role of SBNMS as a sentinel site for passive acoustic monitoring in the Gulf of Maine, and as a testbed for applying these data to both long-term monitoring of ecosystems and the design of methods to reduce impacts from human activities.
12. Water Quality Monitoring: The exceptional diversity of marine life in the sanctuary depends on good water quality. This action plan addresses the need to collaborate on water quality monitoring and research in the sanctuary to determine whether it can continue to maintain healthy resources.
13. Habitat: Habitat quality in the sanctuary over the last decade has shown changes from both direct interactions, like bottom-contact fishing, and indirect interactions, such as trophic and competitive shifts in population. The goal of this plan is to develop an improved understanding of the condition of major habitat types within the sanctuary to understand their productivity and biodiversity.
14. Ecosystem Services: Sanctuary resources support nearby coastal communities in a variety of ways, and it is important to better understand and quantify the economic and intrinsic values of the sanctuary to natural and human systems. The goal of this plan is to explore the dynamic connections between sanctuary resources and ecosystem services to better inform management decisions.
15. Administration and Infrastructure Capacity: This action plan addresses the necessary operational and administrative activities required for implementing an effective program, including staffing, infrastructure needs, and operational improvements.
The management plan review process did not identify the need for any regulatory or boundary changes at this time.
In accordance with NEPA, on February 13, 2020, NOAA published a notice of intent to prepare an environmental analysis in order to identify and analyze potential impacts associated with adopting and implementing a revised management plan and field activities for SBNMS (85 FR 8213). NOAA's analysis of the draft management plan indicated no significant impacts are expected. Accordingly, NOAA determined the preparation of an EIS would not be necessary, and instead prepared a draft EA, which was made available for public review on November 30, 2021 (86 FR 67923).
For this EA, NOAA evaluated the potential impacts on the human environment of the proposed action and alternatives in compliance with NEPA, as amended (42 U.S.C. 4321
In preparing the final EA, NOAA evaluated and considered all public and agency comments received on the draft management plan and draft EA, and made changes to the management plan and EA as appropriate. NOAA determined that these changes to the management plan did not result in any changes to the determinations of the draft EA with regard to the significance of the impacts. NOAA prepared a FONSI that concluded that implementing the preferred alternative (
NOAA received 56 comments on the Draft Management Plan/Environmental Assessment during the public comment period. These are summarized into 61 topics. NOAA's summary of these comments and relevant responses are provided in Appendix E of the Final Management Plan.
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 a virtual public meeting to solicit input on the performance evaluation of the New Jersey Coastal Management Program. NOAA also invites the public to submit written comments.
NOAA will hold a virtual public meeting on Tuesday, September 19, 2023, at 3 p.m. Eastern Daylight Time (EDT). NOAA may close the meeting 15 minutes after the conclusion of public testimony and after responding to any clarifying questions from hearing participants. NOAA will consider all relevant written comments received by Friday, September 29, 2023.
Comments may be submitted by one of the following methods:
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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 New Jersey 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 New Jersey 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
Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice of emergency open public meeting.
Notice is hereby given of a meeting of the Sanctuary System Business Advisory Council (council). The meeting is open to the public, and an opportunity for oral and written comments will be provided.
The meeting will be held on Friday, August 25, 2023 from 12 p.m. to 1 p.m. ET, and an opportunity for public comment will be provided around 1:40 p.m. ET. Both times and agenda topics are subject to change.
The meeting will be held virtually using Google Meet. To participate, please use the weblink provided below. If you are unable to participate online, you can also connect to the public meeting using the phone number provided.
To provide an oral public comment during the virtual meeting, please sign up prior to or during the meeting by contacting Sage Riddick by phone (240-560-3365) or email (
Sage Riddick, Office of National Marine Sanctuaries, 1305 East-West Highway, Silver Spring, Maryland 20910 (Phone: 240-560-3365; Email:
ONMS serves as the trustee for a network of underwater parks encompassing more
One of the many ways ONMS ensures public participation in the designation and management of national marine sanctuaries is through the formation of advisory councils. The Sanctuary System Business Advisory Council (council) has been formed to provide advice and recommendations to the Director regarding the relationship of ONMS with the business community. Additional information on the council can be found at
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice; availability of a permit application and request for public comment.
Notice is hereby given that NMFS has received an update to an application for a direct take permit, in the form of a Hatchery and Genetic Management Plan (HGMP) for hatchery plans rearing and releasing Sockeye salmon into the Snake River basin. The permits describe hatchery programs operated by the Idaho Department of Fish and Game (IDFG), Shoshone-Bannock Tribe (SBT), National Marine Fisheries Service's Northwest Fisheries Science Center (NWFSC) and Oregon Department of Fish and Wildlife (ODFW). This document serves to notify the public of the availability and opportunity to comment on a draft Environmental Assessment (EA) and an HGMP on the proposed hatchery program.
Comments must be received at the appropriate address (see
Written comments should be addressed to the NMFS Sustainable Fisheries Division, 1201 NE Lloyd Blvd., Portland, OR 97232. Comments may be submitted by email. The mailbox address for providing email comments is:
Andreas Raisch at (503) 230-5405 or by email at
• Snake River Sockeye (
• Chinook salmon (
○ Snake River Spring/Summer run: threatened, naturally and artificially propagated;
• Snake River Steelhead (
Section 9 of the Endangered Species Act (ESA) and Federal regulations prohibit the “taking” of a species listed as endangered or threatened. The term “take” is defined under the ESA to mean harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. NMFS may make exceptions to the take prohibitions in section 9 of the ESA for programs that are approved by NMFS under section 10(a)(1)(A) of the ESA (50 CFR 222.308).
The operators and funding agencies, including IDFG, SBT, ODFW, NMFS's NWFSC and Bonneville Power Administration (BPA), submitted an HGMP to NMFS pursuant to NMFS' ESA Section 10(a)(1)(A) for hatchery activities in the Snake River basin. An EA was also prepared pursuant to the National Environmental Policy Act (NEPA) by NMFS for the Snake River sockeye salmon hatchery program.
The programs are intended to contribute to the survival and recovery of Snake River Sockeye salmon in the Snake River basin. The proposed program would maintain the Snake River sockeye salmon captive broodstock, collect and spawn adult sockeye salmon returning to the Snake River basin, rear juveniles, and release eggs, juveniles, and adult fish in upper Salmon River basin lakes as well as into Tanner Creek. The proposed continuation of the program would indicate best management practices to minimize adverse effects on the ESU.
16 U.S.C. 1531
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is requesting the Office of Management and Budget (OMB) to conduct an emergency review of a revision to a previously approved information collection.
The Department requested emergency processing from OMB for this information collection request on July 26, 2023. As a result, the Department is providing the public with the opportunity to comment under the full comment period. Interested persons are invited to submit comments on or before October 10, 2023.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Beth Grebeldinger, 202-708-8242.
The Department, in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Department is soliciting comments on the proposed information collection request (ICR) that is described below. The Department is especially interested in public comment addressing the following issues: (1) is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
The Department received emergency clearance on June 28, 2023, since normal processing would not enable the Department to implement the required regulatory changes by July 30, 2023, that would have resulted in several months of delays in providing eligible borrowers financial relief and not meeting the requirements of the Master Calendar. Any delay in discharging loans for eligible borrowers would have increased the potential for public harm through delayed financial relief to borrowers who have been employed in public service, and the possibility of additional interest accrual and an increase in overall debt by affected borrowers being unable to receive the relief that is allowed to them under the new regulations, causing them further financial harm. This notice allows the public to comment on the full ICR under the 60-day comment period.
Office of Science, Department of Energy.
Notice of renewal.
Pursuant to the Federal Advisory Committee Act, the Code of Federal Regulations, and following consultation with the Committee Management Secretariat, General Services Administration, notice is hereby given that the Fusion Energy Sciences Advisory Committee (FESAC) has been renewed for a two-year period.
Samuel J. Barish at (301) 903-2917 or email:
The Committee will provide advice to the Director, Office of Science, Department of Energy (DOE), on long-
Additionally, the renewal of the FESAC has been determined to be essential to the conduct of the Department's business and in the public interest in connection with the performance of duties imposed upon the DOE by law. The Committee will continue to operate in accordance with the provisions of the Federal Advisory Committee Act, the Department of Energy Organization Act, the General Services Administration Final Rule on Federal Advisory Committee Management, and other directives and instruction issued in the implementation of those Acts.
This document of the Department of Energy was signed on August 2, 2023, by Sarah E. Butler, Committee Management Officer, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
Take notice that on July 7, 2023, Southwestern Power Administration submits tariff filing: 013 IS Power Rate schedule Amendment P-13B to be effective 7/15/2023.
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.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
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
This is a supplemental notice in the above-referenced proceeding of Energy Prepay II, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is August 22, 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
Take notice that on July 28, 2023, Bonneville Power Administration submits tariff filing: Proposed FY 2024-2025 Wholesale Power and Transmission Rates to be effective 10/1/2023.
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.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
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
Take notice that the Commission has received the following Natural Gas and Oil Pipeline Rate and Refund Report filings:
Filings Instituting Proceedings
Any person desiring to intervene, to protest, or to answer a complaint in any of the above proceedings must file in accordance with Rules 211, 214, or 206 of the Commission's Regulations (18 CFR 385.211, 385.214, or 385.206) 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:
For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659. 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
This is a supplemental notice in the above-referenced proceeding of Nevada Cogeneration Associates #2's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is August 22, 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
Take notice that on July 7, 2023, Southwestern Power Administration submits tariff filing: 2013 IS NFTS Rate schedule Amendment P-13B to be effective 7/15/2023.
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
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
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
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following Complaints and Compliance filings in EL Dockets:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene, to protest, or to answer a complaint in any of the above proceedings must file in accordance with Rules 211, 214, or 206 of the Commission's Regulations (18 CFR 385.211, 385.214, or 385.206) 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
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit an information collection request (ICR), “Transportation Conformity Determinations for Federally Funded and Approved Transportation Plans, Programs, and Projects” (EPA ICR No. 2130.07, OMB Control No. 2060-0561), to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. 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 February 29, 2024.
Comments must be submitted on or before October 10, 2023.
Submit your comments, referencing Docket ID No. EPA-HQ-OAR-2007-0269 online using
Aaron Letterly, Office of Transportation and Air Quality, Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105; telephone number: 734-214-4340; 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,
Transportation conformity applies under EPA's conformity regulations at 40 CFR part 93, subpart A, to areas that are designated nonattainment, and those redesignated to attainment after 1990 (“maintenance areas” with plans developed under Clean Air Act section 175A) for the following transportation-related criteria pollutants: ozone, particulate matter (PM
Transportation conformity determinations are required before federal approval or funding is given to certain types of transportation planning documents as well as non-exempt highway and transit projects.
EPA considered the following in renewing the existing ICR:
• Burden estimates for transportation conformity determinations (including both regional and project-level) in current nonattainment and maintenance areas for the ozone, PM
• Federal burden associated with EPA's adequacy review process for submitted SIP motor vehicle emissions budgets that are to be used in conformity determinations;
• Efficiencies in areas making conformity determinations for multiple NAAQS;
• Differences in conformity resource needs in large and small metropolitan areas and isolated rural areas;
• Infrequency of conformity determinations in isolated rural areas;
• Reduced burden from certain areas no longer determining conformity for the 1997 annual PM
• Reduced burden from areas completing 20 years of maintenance for PM
• The limited conformity requirements that apply in the 1997 ozone NAAQS areas that were not designated nonattainment for a later ozone NAAQS.
This ICR does not include burden associated with the general development of transportation planning and air quality planning documents for meeting other federal requirements.
In notice document 2023-15215 beginning on page 46155 in the issue of Wednesday, July 19, 2023, make the following corrections:
1. On page 46155, in the third column, in the third line, “[EPA-R05-INSERT; FRL-INSERT-Region 5]” should read “[EPA-R05-SFUND-2023-0369; FRL-11170-01-R5]”.
2. On page 46156, in the first column, in the twenty-third line, under
3. On page 46156, in the first column, in the eleventh line from the bottom, “[EPA-R05-INSERT; FRL-INSERT-Region 5]” should read “[EPA-R05-SFUND-2023-0369; FRL-11170-01-R5]”.
Federal Housing Finance Agency.
Federal Home Loan Bank Capital Stock—60-day notice of submission of information collection for
In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA), the Federal Housing Finance Agency (FHFA) is seeking public comment concerning an information collection known as “Federal Home Loan Bank Capital Stock,” which has been assigned control number 2590-0002 by the Office of Management and Budget (OMB). FHFA intends to submit the information collection to OMB for review and approval of a three-year extension of the control number, which is due to expire on November 30, 2023.
Interested persons may submit comments on or before October 10, 2023.
Submit comments to FHFA, identified by “Proposed Collection; Comment Request: `Federal Home Loan Bank Capital Stock, (No. 2023-N-9)' ” by any of the following methods:
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We will post all public comments we receive without change, including any personal information you provide, such as your name and address, email address, and telephone number, on the FHFA website at
Copies of all comments received will be available for examination by the public through the electronic comment docket for this PRA Notice also located on the FHFA website.
Lindsay Spadoni, Assistant General Counsel,
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from OMB for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) to include agency requests or requirements that ten or more persons submit information to a third party.
Section 3506(c)(2)(A) of title 44 requires Federal agencies to provide a 60-day notice
The Federal Home Loan Bank System consists of eleven regional Federal Home Loan Banks (Banks) and the Office of Finance (a joint office that issues and services the Banks' debt securities). The Banks are wholesale financial institutions, organized under authority of the Federal Home Loan Bank Act (Bank Act) to serve the public interest by enhancing the availability of residential housing finance and community lending credit through their member institutions and, to a limited extent, through certain eligible nonmembers. Each Bank is structured as a regional cooperative that is owned and controlled by member institutions located within its district, which are also its primary customers. An institution that is eligible for membership in a particular Bank must purchase and hold a prescribed minimum amount of the Bank's capital stock in order to become and remain a member of that Bank. With limited exceptions, only an institution that is a member of a Bank may obtain access to low cost secured loans, known as advances, or other products provided by that Bank.
Section 6 of the Bank Act establishes capital requirements for the Banks and requires FHFA to issue regulations prescribing uniform capital standards applicable to all of the Banks.
Both the Bank Act and FHFA's regulations state that a Bank's capital plan must require its members to maintain a minimum investment in the Bank's capital stock, but both permit each Bank to determine for itself what that minimum investment is and how each member's required minimum investment is to be calculated.
A Bank must collect information from its members to determine the minimum capital stock investment each member is required to maintain at any point in time. Although the information needed to calculate a member's required minimum investment and the precise method through which it is collected differ somewhat from Bank to Bank, the Banks typically collect two types of information. First, in order to calculate and monitor compliance with its membership stock purchase requirement, a Bank typically requires each member to provide and/or confirm an annual report on the amount and types of assets held by that institution. Second, each time a Bank engages in a business transaction with a member, the Bank typically confirms with the member the amount of additional Bank capital stock, if any, the member must acquire in order to satisfy the Bank's activity-based stock purchase requirement and the method through which the member will acquire that stock.
The OMB number for the information collection is 2590-0002, which is due to
FHFA has analyzed the time burden imposed on respondents by the two collections under this control number and estimates that the average total annual hour burden imposed on all respondents over the next three years will be 20,245 hours. The estimate for each collection was calculated as follows:
FHFA estimates that the average annual number of current and former members and applicants for membership required to report information needed to calculate a membership stock purchase requirement will be 6,550, and that each institution will submit one report per year, resulting in an estimated total of 6,550 submissions annually. The estimate for the average time required to prepare, review, and submit each report is 0.7 hours. Accordingly, the estimate for the annual hour burden associated with membership stock purchase requirement submissions is (6,550 reports x 0.7 hours per report) = 4,585 hours.
FHFA estimates that the average number of daily transactions between Banks and members that will require the exchange of information to confirm the member's activity-based stock purchase requirement will be 300, and that there will be an average of 261 working days per year, resulting in an estimated 78,300 submissions annually. The estimate for the average preparation time per submission is 0.2 hours. Accordingly, the estimate for the annual hour burden associated with activity-based stock purchase requirement submissions is (78,300 submissions × 0.2 hours per submission) = 15,660 hours.
FHFA requests written comments on the following: (1) Whether the collection of information is necessary for the proper performance of FHFA functions, including whether the information has practical utility; (2) the accuracy of FHFA's estimates of the burdens of the collection of information; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) 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.
Office of Public Buildings Service (PBS); General Services Administration, (GSA).
Notice.
Pursuant to the requirements of the National Environmental Policy Act of 1969 (NEPA), the Council on Environmental Quality Regulations, and the GSA/PBS NEPA Desk Guide, GSA intends to prepare an Environmental Impact Statement (EIS) to analyze the potential environmental impacts from the proposed expansion and modernization of the Kenneth G. Ward Land Port of Entry (LPOE) located in Lynden, Washington and the Sumas LPOE located in Sumas, Washington. GSA has initiated the required Section 106 consultation of the National Historic Preservation Act (NHPA) involving outreach efforts with the Washington State Historic Preservation Officer (SHPO) and Tribes.
A virtual public scoping meeting, in open house format, will be held on Wednesday, August 23, 2023, from 5:00 p.m. to 7:00 p.m. Pacific Daylight Time (PDT).
Interested parties should submit comments by Tuesday, September 12, 2023, to be considered in the formation of the Draft EIS. The views and comments of the public are necessary to help determine the scope and content of the environmental analysis. The meeting will be held on the Zoom platform where GSA will present and distribute project information and obtain input on the scope of the project. The link for the public scoping meeting can be found on the GSA project websites at:
All mail-in comments must be postmarked by September 12, 2023.
The public is encouraged to provide written comments regarding the scope of the EIS at the meeting and throughout the comment period. Submit comments identified by Notice-P-2023-02 by any of the following methods:
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Emily Grimes, Environmental Program Manager, Facilities Management Division, GSA. Phone: (253) 394-4026. Email:
For press inquiries only, please contact Christi Chidester Votisek, Public Affairs Officer, GSA. Phone: (253) 931-7127. Email:
The Kenneth G. Ward LPOE is located at 9949 WA-539, Lynden, WA 98264
The Sumas LPOE is an inspection facility where CBP processes commercial vehicles, personal vehicles, and pedestrian traffic at the U.S.-Canada border at 103 Cherry St, Sumas, WA 98295. There are currently four primary non-commercial lanes, with three lanes that process personal vehicles and one that accommodates buses and oversized vehicles; and two primary commercial lanes with booths. Pedestrian traffic transits through indoor processing queues and spaces. The port was constructed in 1988 and operates 24 hours a day, seven days a week.
The current Lynden and Sumas LPOEs no longer function adequately and cannot meet current operational needs. At the Lynden LPOE, space limitations cause frequent congestion in the commercial lane and commercial vehicles often travel farther distances to other ports that offer more efficient processing. The Sumas LPOE does not have enough space for efficient traffic flow or safe and secure inspection areas, which impede the port's operations and cause traffic and safety concerns in the surrounding urban area.
The EIS will evaluate a total of four alternatives at each location—one “no action” or “no build” alternative and three “action” or “build” alternatives. Alternative 1 is the No Action Alternative, which assumes that any demolition of existing facilities, construction of new facilities, and expansion of LPOE operations would not occur. Both LPOEs would continue to operate under current conditions. The three action alternatives would improve the efficiency and effectiveness of the Lynden and Sumas LPOEs and would all include acquiring land, demolishing existing facilities, and constructing new facilities.
At the Lynden LPOE, Alternative 2 would include an east-west facility layout for commercial inspections. Alternative 3 would be identical to Alternative 2 other than the rotation of commercial inspection to a north-south orientation. Land acquisition under Alternatives 2 and 3 at the Lynden LPOE would be similar in acreage but would differ in location or orientation. Alternative 4 would consist of the same facility layout as either Alternative 2 or 3, but would alter construction phasing such that construction activities at the LPOEs occur sequentially. Under Alternative 4, the Lynden LPOE would close and construction activities at the Lynden LPOE would occur first. Once the Lynden LPOE is reopened, the Sumas LPOE would close and construction activities at the Sumas LPOE would occur.
At the Sumas LPOE, the layout of Alternative 2 is designed to optimize operational flow—especially for outbound non-commercial vehicles. The facility layout of Alternative 3 maximizes the vehicle maneuvering area (especially for larger vehicles like trucks). Alternative 4 consists of a multiple story construction in order to provide greater vehicle maneuvering area for transiting vehicles. Compared to Alternatives 2 and 3, Alternative 4 would not have a different number of commercial, outbound, or personal vehicle lanes, but it may consolidate some of the administrative buildings and have a slightly smaller overall footprint. Land acquisition at the Sumas LPOE would be identical under each alternative.
Demolition, construction, and renovation activities would be phased to maintain LPOE operations at both ports for the entirety of the construction period under all action alternatives—except for Alternative 4 at the Lynden LPOE, which would require closing operations at both LPOEs during their respective construction activities. During this time, traffic at the LPOE under construction would be directed to the operational LPOE.
Potential impacts from these three action alternatives will be compared against a first “no action” alternative wherein the current LPOE facilities would continue to operate under existing conditions. The EIS will address the potential environmental impacts of the proposed alternatives on resource areas including but not limited to land use, water resources (including floodplains), biological resources, geology and soils, transportation and traffic, noise, cultural and Tribal resources, socioeconomics, environmental justice and protection of children's health, hazardous waste and materials, air quality, climate change, and utilities.
Agency for Healthcare Research and Quality (AHRQ), Department of Health and Human Services (HHS).
Notice of delisting.
The Patient Safety and Quality Improvement Final Rule (Patient Safety Rule) authorizes AHRQ, on behalf of the Secretary of HHS, to list as a patient safety organization (PSO) an entity that attests that it meets the statutory and regulatory requirements for listing. A PSO can be “delisted” by the Secretary if it is found to no longer meet the requirements of the Patient Safety and Quality Improvement Act of 2005 (Patient Safety Act) and Patient Safety Rule, when a PSO chooses to voluntarily relinquish its status as a PSO for any reason, or when a PSO's listing expires. AHRQ accepted a notification of proposed voluntary relinquishment from the American Physician Partners, LLC PSO, PSO number P0223, of its status as a PSO, and has delisted the PSO accordingly.
The delisting was effective at 12:00 Midnight ET (2400) on July 31, 2023.
The directories for both listed and delisted PSOs are ongoing and reviewed weekly by AHRQ. Both directories can be accessed electronically at the following HHS website:
Cathryn Bach, Center for Quality Improvement and Patient Safety, AHRQ, 5600 Fishers Lane, MS 06N66B, Rockville, MD 20857; Telephone (toll free): (866) 403-3697; Telephone (local): (301) 427-1111; TTY (toll free): (866) 438-7231; TTY (local): (301) 427-1130; Email:
The Patient Safety Act, 42 U.S.C. 299b-21 to 299b-26, and the related Patient Safety Rule, 42 CFR part 3, published in the
The Patient Safety Act authorizes the listing of PSOs, which are entities or component organizations whose mission and primary activity are to conduct activities to improve patient safety and the quality of health care delivery.
HHS issued the Patient Safety Rule to implement the Patient Safety Act. AHRQ administers the provisions of the Patient Safety Act and Patient Safety Rule relating to the listing and operation of PSOs. The Patient Safety Rule authorizes AHRQ to list as a PSO an entity that attests that it meets the statutory and regulatory requirements for listing. A PSO can be “delisted” if it is found to no longer meet the requirements of the Patient Safety Act and Patient Safety Rule, when a PSO chooses to voluntarily relinquish its status as a PSO for any reason, or when a PSO's listing expires. Section 3.108(d) of the Patient Safety Rule requires AHRQ to provide public notice when it removes an organization from the list of PSOs.
AHRQ has accepted a notification of proposed voluntary relinquishment from the American Physician Partners, LLC PSO to voluntarily relinquish its status as a PSO. Accordingly, the American Physician Partners, LLC PSO, P0223, was delisted effective at 12:00 Midnight ET (2400) on July 31, 2023.
American Physician Partners, LLC PSO has patient safety work product (PSWP) in its possession. The PSO will meet the requirements of section 3.108(c)(2)(i) of the Patient Safety Rule regarding notification to providers that have reported to the PSO and of section 3.108(c)(2)(ii) regarding disposition of PSWP consistent with section 3.108(b)(3). According to section 3.108(b)(3) of the Patient Safety Rule, the PSO has 90 days from the effective date of delisting and revocation to complete the disposition of PSWP that is currently in the PSO's possession.
More information on PSOs can be obtained through AHRQ's PSO website at
Agency for Toxic Substances and Disease Registry (ATSDR), Department of Health and Human Services (HHS).
Notice with comment period.
The Agency for Toxic Substances and Disease Registry (ATSDR), within the Department of Health and Human Services (HHS), announces that it is soliciting nominations of substances to be evaluated for an upcoming set of toxicological profiles. ATSDR is opening a docket for the public to submit nominations and provide comment on which toxicological profiles are developed next. Members of the public, government agencies, or private organizations may comment on which substances they are concerned about so that ATSDR may take this information into consideration when developing future toxicological profiles.
Written nominations and comments must be received by September 7, 2023.
You may submit nominations, identified by Docket No. ATSDR-2023-0003, by either of the methods listed below. Do not submit comments by email. ATSDR does not accept comments by email.
• Federal eRulemaking Portal at
•
Farhana Rahman, Agency for Toxic Substances and Disease Registry, Office of Innovation and Analytics, 1600 Clifton Rd. NE, Mail Stop S106-5, Atlanta, GA 30329-4027; Email:
The Superfund Amendments and Reauthorization Act of 1986 (SARA) [42 U.S.C. 9601
Each year, ATSDR develops a list of substances to be considered for toxicological profile development. The nomination process includes consideration of all substances on ATSDR's SPL, as well as other substances nominated by the public.
This notice invites public nominations of substances for toxicological profile development. If nominating a substance that is not on the SPL, please include the rationale for the nomination and any supporting data. ATSDR will evaluate data and information associated with nominated substances and will determine the final list of substances to be chosen for toxicological profile development.
Interested persons or organizations are invited to participate by submitting nominations for substances. These
Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS).
Notice with comment.
This proposed notice acknowledges the receipt of an application from Community Health Accreditation Program (CHAP) for continued recognition as a national accrediting organization for home health agencies (HHAs) that wish to participate in the Medicare or Medicaid programs. The statute requires that within 60 days of receipt of an organization's complete application, the Centers for Medicare & Medicaid Services (CMS) publish a notice that identifies the national accrediting body making the request, describes the nature of the request, and provides at least a 30-day public comment period.
To be assured consideration, comments must be received at one of the addresses provided below, by September 6, 2023.
In commenting, refer to file code CMS-3446-PN.
Comments, including mass comment submissions, must be submitted in one of the following three ways (please choose only one of the ways listed):
1.
2.
Please allow sufficient time for mailed comments to be received before the close of the comment period.
3.
For information on viewing public comments, see the beginning of the
Caecilia Blondiaux (410) 786-2190.
Under the Medicare program, eligible beneficiaries may receive covered services from a Medicare-participating home health agency (HHA), provided certain requirements are met. Sections 1861(m) and (o), 1891 and 1895 of the Social Security Act (the Act) establish distinct criteria for an entity seeking designation as an HHA. Regulations concerning provider agreements are at 42 CFR part 489 and those pertaining to activities relating to the survey and certification of facilities and other entities are at 42 CFR part 488. The regulations at 42 CFR parts 409 and 484 specify the conditions that an HHA must meet to participate in the Medicare program, the scope of covered services and the conditions for Medicare payment for home health care.
Generally, to enter into a provider agreement with the Medicare program, an HHA must first be certified by a state survey agency as complying with the conditions or requirements set forth in 42 CFR part 484 of our regulations. Thereafter, the HHA is subject to regular surveys by a state survey agency to determine whether it continues to meet these requirements.
However, there is an alternative to surveys by state agencies. Section 1865(a)(1) of the Act provides that, if a provider entity demonstrates through accreditation by an approved national accrediting organization that all applicable Medicare conditions are met or exceeded, we will deem those provider entities as having met the requirements. Accreditation by an accrediting organization is voluntary and is not required for Medicare participation.
If an accrediting organization is recognized by the Secretary of Health and Human Services as having standards for accreditation that meet or exceed Medicare requirements, any provider entity accredited by the national accrediting body's approved program would be deemed to meet the Medicare conditions. A national accrediting organization applying for CMS approval of their accreditation program under 42 CFR part 488, subpart A must provide CMS with reasonable assurance that the accrediting organization requires the accredited provider entities to meet requirements that are at least as stringent as the Medicare conditions. Our regulations concerning the approval of accrediting organizations are set forth at § 488.5. The regulations at § 488.5(e)(2)(i) require accrediting organizations to reapply for continued approval of their accreditation program every 6 years or sooner as determined by CMS.
The Community Health Accreditation Program's (CHAP's) term of approval for their HHA accreditation program expires March 31, 2024.
Section 1865(a)(2) of the Act and our regulations at § 488.5 require that our findings concerning review and approval of a national accrediting organization's requirements consider, among other factors, the applying accrediting organization's requirements
Section 1865(a)(3)(A) of the Act further requires that we publish, within 60 days of receipt of an organization's complete application, a notice identifying the national accrediting body making the request, describing the nature of the request, and providing at least a 30-day public comment period. We have 210 days from the receipt of a complete application to publish notice of approval or denial of the application.
The purpose of this proposed notice is to inform the public of CHAP's request for continued approval for its HHA accreditation program. This notice also solicits public comment on whether CHAP's requirements meet or exceed the Medicare conditions of participation (CoPs) for HHAs.
CHAP submitted all the necessary materials to enable us to make a determination concerning its request for continued approval of its HHA accreditation program. This application was determined to be complete on July 5, 2023. Under section 1865(a)(2) of the Act and our regulations at § 488.5 (Application and re-application procedures for national accrediting organizations), our review and evaluation of CHAP will be conducted in accordance with, but not necessarily limited to, the following factors:
• The equivalency of CHAP's standards for HHAs as compared with CMS' HHA CoPs.
• CHAP's survey process to determine the following:
++ The composition of the survey team, surveyor qualifications, and the ability of the organization to provide continuing surveyor training.
++ The comparability of CHAP's processes to those of state agencies, including survey frequency, and the ability to investigate and respond appropriately to complaints against accredited HHAs.
++ CHAP's processes and procedures for monitoring HHAs found out of compliance with CHAP's program requirements. These monitoring procedures are used only when CHAP identifies noncompliance. If noncompliance is identified through validation reviews or complaint surveys, the state survey agency monitors corrections as specified at § 488.9(c).
++ CHAP's capacity to report deficiencies to the surveyed HHAs and respond to the HHA's plan of correction in a timely manner.
++ CHAP's capacity to provide us with electronic data and reports necessary for effective validation and assessment of the organization's survey process.
++ The adequacy of CHAP's staff and other resources, and its financial viability.
++ CHAP's capacity to adequately fund required surveys.
++ CHAP's policies with respect to whether surveys are announced or unannounced, to assure that surveys are unannounced.
++ CHAP's policies and procedures to avoid conflicts of interest, including the appearance of conflicts of interest, involving individuals who conduct surveys or participate in accreditation decisions.
++ CHAP's agreement to provide us with a copy of the most current accreditation survey together with any other information related to the survey as we may require (including corrective action plans).
This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Because of the large number of public comments we normally receive on
The Administrator of the Centers for Medicare & Medicaid Services (CMS), Chiquita Brooks-LaSure, having reviewed and approved this document, authorizes Evell J. Barco Holland, who is the
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA, the Agency, or we) is announcing the availability of a draft guidance for industry entitled “Registration and Listing of Cosmetic Product Facilities and Products.” This draft guidance, when finalized, will assist persons submitting cosmetic product facility registrations and product listing submissions to FDA under the Modernization of Cosmetics Regulation Act of 2022 (MoCRA). This draft guidance is not final nor is it in effect at this time.
Submit either electronic or written comments on the draft guidance by September 7, 2023 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of the draft guidance to the Office of Cosmetics and Colors, Center for Food Safety and Applied Nutrition, Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740. Send two self-addressed adhesive labels to assist that office in processing your request. See the
Jennifer Ross, Office of the Chief Scientist, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 1, Rm. 4332, Silver Spring, MD 20993-0002, 301-796-4880 (this is not a toll-free number), email:
FDA is announcing the availability of a draft guidance for industry entitled “Registration and Listing of Cosmetic Product Facilities and Products.” We are issuing the draft guidance consistent with our good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on this topic. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternate approach if it satisfies the requirements of the applicable statutes and regulations.
On December 29, 2022, the President signed the Consolidated Appropriations Act, 2023 (Pub. L. 117-328) into law, which included MoCRA. Among other provisions, MoCRA added section 607 to the Federal Food, Drug, and Cosmetic Act (FD&C Act), establishing requirements for cosmetic product facility registration and cosmetic product listing. Section 607(a) of the FD&C Act requires every person that owns or operates a facility that engages in the manufacturing or processing of a cosmetic product for distribution in the United States to register each facility with FDA no later than one year after the date of enactment. FDA previously had a voluntary cosmetics registration program (see 21 CFR parts 710 and 720). Because the information in the voluntary cosmetics registration program differs from the information required to be submitted under MoCRA, FDA does not consider previous submissions to the voluntary cosmetics registration program to satisfy the registration and listing mandated by MoCRA. Accordingly, FDA ended its voluntary registration program as of March 27, 2023, while we work toward establishing a new system, and information in the voluntary cosmetics registration program will not be transferred to this new system. In addition to the registration requirements, section 607(c) of the FD&C Act requires that for each cosmetic product, the responsible person submit to FDA “a cosmetic product listing.” Certain small businesses, as defined in section 612 of the FD&C Act, are exempt from the registration and listing requirements.
While electronic submission of registration and listing information is not required, FDA is strongly encouraging electronic submission to facilitate efficiency and timeliness of data submission and management by FDA. To that end, FDA will make an electronic portal available to streamline the data entry process for registration and product listing.
This draft guidance refers to collections of information subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521). As required by the PRA, FDA published an analysis of burden associated with reporting provisions found in section 607 of the FD&C Act in the
Persons with access to the internet may obtain the draft guidance at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Either electronic or written comments on the collection of information must be submitted by October 10, 2023.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-5733,
Under the PRA (44 U.S.C. 3501-3521), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical
Sections 409, 505, 512, and 515 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 348, 355, 360b, and 360e) and related statutes require manufacturers of food additives, human drugs and biological products, animal drugs, and medical devices to demonstrate the safety and utility of their product by submitting applications to FDA for research or marketing permits. Such applications contain, among other important items, full reports of all studies done to demonstrate product safety in man and/or other animals. In order to ensure adequate quality control for these studies and to provide an adequate degree of consumer protection, the Agency issued good laboratory practice (GLP) regulations for nonclinical laboratory studies in part 58 (21 CFR part 58). The regulations specify minimum standards for the proper conduct of safety testing and contain sections on facilities, personnel, equipment, standard operating procedures (SOPs), test and control articles, quality assurance, protocol and conduct of a safety study, records and reports, and laboratory disqualification, and include information collection provisions.
Part 58 requires testing facilities engaged in conducting toxicological studies to retain, and make available to regulatory officials, records regarding compliance with GLPs. Records are maintained on file at each testing facility and examined there periodically by FDA inspectors. The GLP regulations require that, for each nonclinical laboratory study, a final report be prepared that documents the results of quality assurance unit inspections, test and control article characterization, testing of mixtures of test and control articles with carriers, and an overall interpretation of nonclinical laboratory studies. The GLP regulations also require written records pertaining to: (1) personnel job descriptions and summaries of training and experience; (2) master schedules, protocols and amendments thereto, inspection reports, and SOPs; (3) equipment inspection, maintenance, calibration, and testing records; (4) documentation of feed and water analyses and animal treatments; (5) test article accountability records; and (6) study documentation and raw data.
We estimate the burden of the information collection as follows:
Based on an evaluation of the information collection, we are retaining the currently approved estimates. Our assumptions made regarding the time needed for the respective activities is based on our experience with the information collection and informal communications with respondents.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA, Agency, or we) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Either electronic or written comments on the collection of information must be submitted by October 10, 2023.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-5733,
Under the PRA (44 U.S.C. 3501-3521), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
Section 519(e)(1) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360i(e)(1)) provides that FDA may require by order that a manufacturer adopt a method for tracking a class II or III medical device, if the device meets one of the three following criteria: (1) the failure of the device would be reasonably likely to have serious adverse health consequences, (2) the device is intended to be implanted in the human body for more than 1 year (referred to as a “tracked implant”), or (3) the device is life-sustaining or life-supporting (referred to as a “tracked l/s-l/s device”) and is used outside a device user facility. Tracked device information is collected to facilitate identifying the current location of medical devices and patients possessing those devices, to the extent that patients permit the collection of identifying information. Manufacturers and FDA (where necessary) use the data to: (1) expedite the recall of distributed medical devices that are dangerous or defective and (2) facilitate the timely notification of patients or licensed practitioners of the risks associated with the medical device.
In addition, applicable regulations in 21 CFR part 821 (21 CFR 821.1 through 821.60) include provisions for: (1) exemptions and variances; (2) system and content requirements for tracking; (3) obligations of persons other than device manufacturers,
Respondents to the collection of information are medical device manufacturers, importers, and distributors of tracked implants or tracked l/s-l/s devices used outside a device user facility. Distributors include multiple and final distributors, including hospitals. We currently estimate 22,000 potential respondents.
We estimate the burden of this collection of information as follows:
Upon evaluation of the information collection, we have made no adjustment to our currently approved burden estimate of 615,380 hours annually, based on 12 tracking orders. We attribute the attendant burden to the following activities:
Under § 821.25(a) (21 CFR 821.25(a)), device manufacturers subject to FDA tracking orders must adopt a tracking method that can provide certain device, patient, and distributor information to FDA within 3 to 10 working days. Assuming one occurrence per year, we estimate it would take a firm 20 hours to provide FDA with location data for all tracked devices and 56 hours to identify all patients and/or multiple distributors possessing tracked devices.
Under § 821.25(d) manufacturers must notify FDA of distributor noncompliance with reporting requirements. Based on the number of audits manufacturers conduct annually, we estimate no more than one notice will be received in any year, and that it would take 1 hour per incident.
Under § 821.30(c)(2) (21 CFR 821.30(c)(2)), multiple distributors must provide data on current users of tracked devices, current device locations, and other information, upon request from a manufacturer or FDA. Assuming one multiple distributor receives one request in a year from either a manufacturer or FDA, and that lists may be generated electronically, we estimate a burden of 1 hour to comply.
Under § 821.30(d) distributors must verify data or make required records available for auditing, if a manufacturer provides a written request. We assume 5 percent of tracked devices distributed for estimating burden. Each audited database entry prompts one distributor audit response. Because lists may be generated electronically, we estimate a burden of 1 hour to comply.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA, Agency, or we) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Submit written comments (including recommendations) on the collection of information by September 7, 2023.
To ensure that comments on the information collection are received, OMB recommends that written comments be submitted to
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-5733,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
This information collection supports implementation of provisions of section 505 of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 355) and of the licensing provisions of the Public Health Service Act (42 U.S.C. 201
For efficiency of Agency operations, we are revising the information collection to include burden that may be associated with recommendations found in the guidance document entitled “E6(R2) Good Clinical Practice: Integrated Addendum to ICH E6(R1) (March 2018),” currently approved in OMB control number 0910-0843. The guidance document is intended to facilitate implementation of improved and efficient approaches to clinical trial design, including conduct, oversight, recording, and reporting. The recommendations in the guidance help us ensure that sponsors of clinical trials are adhering to requirements prescribed in FDA regulations regarding new drug applications (NDA) (part 312), INDs (21 CFR part 314), and biological licensing applications (BLA) (21 CFR part 601). The guidance document is available for download from our website at
In the
We estimate the burden of this collection of information as follows:
Respondents to the collection of information are sponsors of clinical trials of human drugs. Based on IND and NDA submission data, including submissions to both FDA's Center for Drug Evaluation and Research and the Center for Biologics Evaluation and Research, we estimate there are 1,880 respondents to the information collection. We assume the risk reporting recommendations and associated records discussed in section 5 of the guidance document requires 3 hours to complete, as reflected in table 1, row 1. In table 1, row 2, we account for burden associated with the development of a quality management system and associated recordkeeping also discussed in section 5 of the guidance document. We assume it will take respondents 60 hours to develop and implement each quality management system, as recommended. These estimates are based on our past experiences with INDs, BLAs, and NDAs submitted to FDA.
Since our last evaluation of the information collection burden we attribute to recommendations applicable to activities discussed in the guidance document, we have made no adjustments to our estimate.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Either electronic or written comments on the collection of information must be submitted by October 10, 2023.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Rachel Showalter, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 240-994-7399,
Under the PRA (44 U.S.C. 3501-3521), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
This information collection supports Agency regulations in 21 CFR part 330 regarding over-the-counter (OTC) human drugs and associated guidance. Specifically, FDA regulations in § 330.14 (21 CFR 330.14) establish additional criteria and procedures for classifying OTC drugs as generally recognized as safe and effective and not misbranded. These regulations provide that OTC drug products introduced into the U.S. market after the OTC drug review began in 1972 and OTC drug products without any marketing experience in the United States can be evaluated under the monograph process if the conditions (
As explained in the guidance document entitled “Time and Extent Applications for Nonprescription Drug Products,” (September 2011), when submitting a TEA for FDA review, the submitter must provide evidence as described in § 330.14(c) demonstrating that the condition is eligible for inclusion in the monograph system. Section 330.14(d) specifies the number of copies and address for submission of a TEA. If we determine that a condition is eligible for inclusion in the OTC monograph, we will publish a notice of eligibility that requests the submission of data to demonstrate general recognition of the safety and effectiveness of the condition, and place the TEA on public display. The TEA submitter can then submit the safety and effectiveness information described in § 330.14(f).
The guidance document explains what information an applicant should submit to FDA to request that a drug product be included in the OTC drug monograph system. The guidance document also discusses format and content elements as well as the submission process, consistent with the applicable regulations.
Consistent with applicable statutory requirements, the information is required to be submitted electronically.
We estimate the burden of this information collection as follows:
Our estimated burden reflects time needed for submitting applications, followup submissions of safety and efficacy data, and potential correspondence from submitters to FDA after a TEA has been submitted (
Based on a recent review of the information collection and submissions of TEAs since our last request for OMB approval, we have made no adjustments to the currently approved burden estimates.
Food and Drug Administration, HHS.
Notice.
The Office of Cosmetics and Colors (OCAC) and the Office of the Chief Scientist (OCS) in the Food and Drug Administration (FDA, Agency, or we) are soliciting applications from members of the cosmetic product industry interested in participating in a voluntary pilot program to conduct user acceptance testing to help OCAC and OCS evaluate a potential new electronic submissions portal for cosmetic product facility registration and listing. This electronic submission portal is being implemented pursuant to the Modernization of Cosmetics Regulation Act of 2022 (MoCRA). OCAC and OCS plan to accept up to nine participants for the pilot program. The pilot program is intended to provide OCAC and OCS input to inform evaluation of this new electronic submission portal.
Interested parties should submit an electronic application to participate in this pilot program by August 22, 2023. We plan to conduct pilot testing beginning on or about September 15, 2023. See section III of this document for information on applying for participation.
If you are interested in participating in this pilot program, please submit an electronic application to
Jennifer Ross, Office of the Chief Scientist, Food and Drug Administration, 301-796-4880 (this is not a toll-free number), email:
On December 29, 2022, the President signed the Consolidated Appropriations Act, 2023 (Pub. L. 117-328) into law, which included MoCRA. Among other provisions, MoCRA added section 607 to the Federal Food, Drug, and Cosmetic Act (FD&C Act), establishing requirements for cosmetic product facility registration and cosmetic product listing.
Section 607(a) of the FD&C Act requires every person that owns or operates a facility that engages in the manufacturing or processing of a cosmetic product for distribution in the United States to register each facility with FDA no later than 1 year after the date of enactment. In addition to the registration requirements, section 607(c) of the FD&C Act requires that for each cosmetic product, the responsible person submit to FDA “a cosmetic product listing.” Certain small businesses, as defined in section 612 of the FD&C Act, are exempt from the registration and listing requirements.
FDA previously had a voluntary cosmetics registration program (see 21 CFR parts 710 and 720). Because the information in the voluntary cosmetics registration program differs from the information required to be submitted under MoCRA, FDA does not consider previous submissions to the voluntary cosmetics registration program to satisfy the registration and listing mandated by MoCRA. Accordingly, FDA ended its voluntary registration program as of March 27, 2023, while we work toward establishing a new system, and information in the voluntary cosmetics registration program will not be transferred to this new system.
While electronic submission of registration and listing information is not required, FDA is strongly encouraging electronic submission to facilitate efficiency and timeliness of data submission and management by FDA. To that end, FDA will make an electronic portal available to streamline the data entry process for registration and product listing. Consequently, OCAC and OCS are announcing a pilot program to test the functionality and usability of the new electronic submission process.
The pilot program to evaluate the cosmetic product facility registration and listing electronic submission processes is to begin on or about September 15, 2023, and last approximately 2 weeks. FDA plans to select up to nine participants who represent a broad spectrum representation of the cosmetic product industry. Pilot program participants will receive training and may be asked to submit simulated regulatory submissions and/or information for their cosmetic products. During the pilot program, staff will be available to
None of the information submitted during the pilot will fulfill a participant's registration and listing responsibilities pursuant to MoCRA. Participants will need to submit their information in the electronic registration and listing system once it is available for submissions or through a paper form to fulfill their registration and listing responsibilities pursuant to MoCRA.
Entities that may be eligible to participate in this voluntary pilot program for cosmetic product facility registration and listing are limited to those firms following the procedures set out in section III. and that also meet the two selection criteria that follow:
1. required to submit cosmetic product facility registration and listing information to FDA pursuant to MoCRA by December 29, 2023; and,
2. willing to provide feedback on the cosmetic product facility registration and listing electronic submission process.
To be considered to participate in the pilot program, entities should submit a statement of interest for participation to
Additionally, although not required for consideration, FDA is interested in whether you are a manufacturer or may act as an authorized agent, and whether you have previously submitted registration and listing information to the Agency for any regulated product. Once statements of interest for participation in the pilot are received, FDA will contact interested applicants to confirm selection for the pilot program. FDA will not notify interested applicants who are not selected for the pilot program. FDA will select no more than nine participants, who best meet the selection criteria and who reflect a broad spectrum of cosmetic product manufacturers and processors, including companies that range in size and develop a range of products, or are an authorized agent. In the event a large number of submissions are received, FDA may only review a small number of submissions in order to identify nine (or fewer) for the pilot program.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA, the Agency, or we) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995 (PRA).
Submit written comments (including recommendations) on the collection of information by September 7, 2023.
To ensure that comments on the information collection are received, OMB recommends that written comments be submitted to
Amber Sanford, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-8867,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
OMB's Office of Information and Regulatory Affairs has issued memoranda that provides an overview of administrative flexibilities available to assist Agencies in complying with their statutory obligations under the PRA. Among these flexibilities is use of a generic clearance for certain information collection activities. A generic clearance may be appropriate when (1) the need for the data collection can be evaluated in advance, as part of the review of the proposed plan, but (2) the Agency cannot determine the details of the specific individual collections until a later time. Generic clearances cover collections that are voluntary, low-burden, and uncontroversial.
This generic clearance supports research intended to help the Center for Food Safety and Applied Nutrition understand stakeholders' perceptions, attitudes, motivations, and behaviors. To ensure that communications activities have the highest effect, we will conduct research and studies relating to the control and prevention of disease and the safety and health of the public. FDA is requesting OMB approval for the use of this generic collection of information that allows
To obtain approval for an individual generic submission collection that meets the conditions of this generic clearance, an abbreviated supporting statement will be submitted to OMB along with supporting documentation (
Selection for potential respondents is done via a screening process to match the best possible respondent to each individual generic submission. Respondents to individual requests made under the generic clearance, once approved by OMB, may include a wide range of consumers and other FDA stakeholders, such as producers and manufacturers who are regulated under FDA-regulated food and cosmetic products, dietary supplements, and animal food and feed. Participation is voluntary.
In the
FDA estimates the burden of this collection of information as follows:
Current estimates are based on both historical numbers of participants from past projects as well as estimates for projects to be conducted in the next 3 years. The collections we have conducted under this generic collection of information have informed and helped us better understand stakeholder perceptions, attitudes, motivations, and behaviors to help us improve our communications to them.
Based on a review of the information collection since our last request for OMB approval, we have made no adjustments to our burden estimate.
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a draft guidance for industry entitled “QTc Information in Human Prescription Drug and Biological Product Labeling.” This guidance is intended to assist applicants with incorporating corrected QT (QTc) interval prolongation-related information into the labeling of non-antiarrhythmic human prescription drug and biological products. The guidance provides recommendations on how and where to appropriately include the clinically relevant information on QTc interval prolongation in the labeling, in accordance with regulatory requirements for the content and format of human prescription drug labeling.
Submit either electronic or written comments on the draft guidance by October 10, 2023 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of the draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002; or to the Office of Communication, Outreach and Development, Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. The draft guidance may also be obtained by mail by calling CBER at 1-800-835-4709 or 240-402-8010. See the
William Pierce, Oncology Center of Excellence, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 2159, Silver Spring, MD 20993, 301-796-0521; or Diane Maloney, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993, 240-402-7911.
FDA is announcing the availability of a draft guidance for industry entitled “QTc Information in Human Prescription Drug and Biological Product Labeling.” This guidance is intended to assist applicants with incorporating corrected QT (QTc) interval prolongation-related information into the labeling of non-antiarrhythmic human prescription drug and biological products. An undesirable property of some non-antiarrhythmic drugs is their ability to delay cardiac repolarization. A delay in cardiac repolarization creates an electrophysiological environment that favors the development of torsade de pointes (TdP), which can degenerate into ventricular fibrillation, leading to sudden death. While the degree of QT prolongation is recognized as an imperfect biomarker for proarrhythmic risk, in general, there is a qualitative relationship between QT prolongation and the risk of TdP, especially for drugs that cause prolongation of the QT interval due to inhibition of the delayed rectifier potassium channel.
FDA and the International Council for Harmonisation recommend that applicants for most non-antiarrhythmic drugs with systemic bioavailability assess effect on cardiac repolarization early in clinical development including a clinical electrocardiographic evaluation. The QTc assessment in early clinical development may inform the intensity and continuation of electrocardiogram (ECG) monitoring in late phase clinical trials. A finding of QTc interval prolongation in early clinical development may support continuing ECG monitoring in subsequent clinical trials. The guidance provides recommendations and examples on how and where to appropriately include the clinically relevant information on QTc interval prolongation in labeling, in accordance with regulatory requirements for the content and format of human prescription drug labeling.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “QTc Information in Human Prescription Drug and Biological Product Labeling.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
While this guidance contains no collection of information, it does refer to previously approved FDA collections of information. The previously approved collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The collections of information in 21 CFR 201.56 and 201.57 have been approved under OMB control number 0910-0572; the collections of information in 21 CFR part 314 have been approved under OMB control number 0910-0001; and the collections
Persons with access to the internet may obtain the guidance at
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Advisory Environmental Health Sciences Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting. The meeting can be accessed from the NIEHS Videocast at the following link:
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has procedures at
Information is also available on the Institute's/Center's home page:
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.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the Council of Councils.
The meeting will be held as a virtual meeting and will be open to the public as indicated below. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting. The open session will be videocast and can be accessed from the NIH Videocasting and Podcasting website (
A portion of 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.
Open: 10:00 a.m. to 3:15 p.m.
Closed: 3:15 p.m. to 4:15 p.m.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Information is also available on the Council of Council's home page at
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.
U.S. Immigration and Customs Enforcement; Department of Homeland Security.
Notice; correction.
U.S. Immigration and Customs Enforcement (ICE), a component of the Department of Homeland Security (DHS), is making a correction to the notice titled “Employment Authorization for Haitian F-1 Nonimmigrant Students Experiencing Severe Economic Hardship as a Direct Result of the Current Crisis in Haiti” that published in the
August 8, 2023.
Sharon Snyder, Unit Chief, Policy and Response Unit, Student and Exchange Visitor Program, MS 5600, U.S. Immigration and Customs Enforcement, 500 12th Street SW, Washington, DC 20536-5600; email:
On Thursday, January 26, 2023, DHS published a notice in the
(1) On pages 5016 and 5019, under the sections “Who is covered by this notice?” and “Will the suspension of the applicability of the standard student employment requirements apply to an individual who receives an initial F-1 visa and makes an initial entry into the United States after the effective date of this notice in the
(2) On page 5020 and 5021, ICE is correcting both instances of the CFR citation to direct the public to the correct version of the 8 CFR 103.7(c) (Oct. 1, 2020).
In FR 2023-01593,
1. On page 5016, third column, the text following the heading “Who is covered by this notice?” is corrected to read as follows:
This notice applies exclusively to F-1 nonimmigrant students who meet all of the following conditions:
(1) Are a citizen of Haiti, regardless of country of birth (or an individual having no nationality who last habitually resided in Haiti);
(2) Were lawfully present in the United States on the date of publication of this notice in F-1 nonimmigrant status, under section 101(a)(15)(F)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(15)(F)(i);
(3) Are enrolled in an academic institution that is Student and Exchange Visitor Program (SEVP)-certified for enrollment for F-1 nonimmigrant students;
(4) Are currently maintaining F-1 nonimmigrant status; and
(5) Are experiencing severe economic hardship as a direct result of the current crisis in Haiti.
This notice applies to F-1 nonimmigrant students in an approved private school in kindergarten through grade 12, public school grades 9 through 12, and undergraduate and graduate education. An F-1 nonimmigrant student covered by this notice who transfers to another SEVP-certified academic institution remains eligible for the relief provided by means of this notice.
2. On page 5019, second column, the text following the heading “Will the suspension of the applicability of the standard student employment requirements apply to an individual who receives an initial F-1 visa and makes an initial entry into the United States after the effective date of this notice in the
No. The suspension of the applicability of the standard regulatory requirements only applies to certain F-1 nonimmigrant students who meet the following conditions:
(1) Are a citizen of Haiti, regardless of country of birth (or an individual having no nationality who last habitually resided in Haiti);
(2) Were lawfully present in the United States on the date of publication of this notice in F-1 nonimmigrant status, under section 101(a)(15)(F)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(15)(F)(i);
(3) Are enrolled in an academic institution that is Student and Exchange Visitor Program (SEVP)-certified for enrollment for F-1 nonimmigrant students;
(4) Are currently maintaining F-1 nonimmigrant status; and
(5) Are experiencing severe economic hardship as a direct result of the current crisis in Haiti.
This notice applies to F-1 nonimmigrant students in an approved private school in kindergarten through grade 12, public school grades 9 through 12, and undergraduate and graduate education. An F-1 nonimmigrant student covered by this notice who transfers to another SEVP-certified academic institution remains eligible for the relief provided by means of this notice.
3. On page 5020, third column, under the heading “How may an eligible F-1 nonimmigrant student obtain employment authorization for off-campus employment with a reduced course load under this notice?”, second paragraph, the reference “8 CFR 103.7(c)” is corrected to read “8 CFR 103.7(c) (Oct. 1, 2020)”;
4. On page 5021, second column, item (a)(2) under “Processing”, the reference “8 CFR 103.7(c)” is corrected to read “8 CFR 103.7(c) (Oct. 1, 2020)”.
Transportation Security Administration, DHS.
Notice.
The Transportation Security Administration (TSA) is announcing an opportunity for qualified, interested shippers who agree to implement
Applicable August 8, 2023.
Interested persons can contact
Thomas Friedman, Industry Engagement Manager, Air Cargo Division, Policy Plans and Engagement, TSA; Telephone (571) 227-3555; email:
TSA is required by law to ensure the adequacy of security measures for the transportation of air cargo.
Since establishment of the CCSP, TSA has recognized other capabilities under this regulatory structure. For example, in 2018, TSA announced an opportunity for canine providers to become Certified Cargo Screening Facilities-Canine (CCSF-K9).
TSA has also historically recognized Shipper-CCSFs.
TSA has decided to streamline its security programs by incorporating procedures for Shipper CCSFs into the CCSSSP and, through this notice, ensuring broad announcement of this opportunity for shippers to register to operate as CCSFs. To operate as a CCSF, a shipper must register with TSA's CCSSSP office and be approved as a holder of the CCSSSP. The security program includes the requirements to become a CCSF and, as applicable to shippers and manufacturers, the operational requirements for screening their own products during the course of manufacturing and packaging, and to screen other air cargo items to national and international security standards.
TSA is publishing this notice to ensure all interested persons are aware of the opportunity to become a CCSF. To initiate the registration process, shippers must send an email indicating their interest to the email address identified above under
The shipper may commence operations as a CCSF under the security program after it receives written approval from TSA that all of TSA's requirements are met. As a CCSF, the shipper could directly transfer cargo to an aircraft operator without requiring additional screening. A new registration under the CCSP is effective for 36 months from the date of approval.
Office of Policy Development and Research, Chief Data Officer, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Colette Pollard, Reports Management Officer, REE, Department of Housing and Urban Development, 7th Street SW, Room 8210, Washington, DC 20410; email at
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
HUD uses performance reviews to ascertain the professional and management capacity of HUD-approved housing counseling agencies to provide adequate housing counseling services necessary to comply with the requirements of the Housing and Urban Development Act and to ensure that grant-funded organizations comply with HUD and OMB administrative and financial regulations. If this information is not collected, HUD will be unable to effectively monitor the Housing Counseling Program to guard against waste, fraud, abuse, or inappropriate program practices. This collection provides the means to meet that obligation.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology,
(5) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35.
Office of the Assistant Secretary for Fair Housing and Equal Opportunity (FHEO), HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal.
Written comments and recommendations for the proposed information collection can be submitted within 60 days of publication of this notice to
Erik Heins, Director, Enforcement Support
HUD is requesting this proposed extension of approval for a currently approved information collection to the OMB for review, as required by the Paperwork Reduction Act of 1995 [44 U.S.C. chapter 35, as amended]. On June 8, 2023, OMB issued a Notice of Emergency Approval for Program-related revisions to HUD's previously approved Form HUD-903.1 Series information collection. The OMB Emergency Approval expires on December 31, 2023.
The “Report Housing Discrimination” Form (HUD-903.1) is used for the collection of pertinent information from persons or entities who wish to file housing discrimination complaints with HUD/FHEO under section 810(a) of the Fair Housing Act of 1968 (Act), as amended [42 U.S.C. 3601
HUD's Office of Fair Housing and Equal Opportunity (FHEO) staff uses the currently-approved Form HUD-903.1 Series information collection at the intake stage of case processing to verify that a person or entity has standing as an aggrieved person to file a complaint under the Act; that the respondent is covered by the requirements of the Act; that the subject dwelling and/or transaction is covered by the requirements of the Act; that the alleged discriminatory activity is prohibited under the Act (subject matter jurisdiction); and that the alleged discriminatory activity occurred within the Act's one-year statute of limitations for filing a complaint with HUD. The currently approved Form complies with the procedures described in HUD's Fair Housing Act regulation at 24 CFR part 103, subpart B, subsections 103.10, 103.15, 103.20, 103.25, 103.30, 103.35, and 103.40. The Form also provides a complete list of mailing addresses, email addresses, and fax numbers for HUD's ten (10) Regional FHEO Offices.
The currently approved Form HUD-903.1 Series will not increase the information collection burden for aggrieved persons. The Form asks an aggrieved person to provide their full name; address; phone and/or email contact information; and alternative contact information. The Form also asks the aggrieved person to answer five (5) preliminary questions that may establish HUD's authority (jurisdiction) to file and investigate a housing discrimination complaint.
The currently approved Form HUD-903.1 Series will not increase the total annual burden hours for aggrieved persons who submit the Form to HUD via the internet. Therefore, HUD does not believe that the time for completing the online version of the Form will exceed the current 45-minute time limit for internet submissions.
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed extension of approval for a currently approved collection of information concerning alleged discriminatory housing practices under the Fair Housing Act [42 U.S.C. 3601
Any person who claims to have been injured by a discriminatory housing practice, or any person who believes that they will be injured by a discriminatory housing practice that is about to occur, may file a complaint with HUD not later than one year after the alleged discriminatory housing practice(s) occurred or terminated. FHEO designed the “Report Housing Discrimination” Form HUD-903.1 Series to promote consistency in the documents that, by statute, must be provided to persons or entities against whom complaints are filed [“
The “Report Housing Discrimination” Form HUD-903.1 Series facilitates the collection of pertinent information from persons or entities who wish to file housing discrimination complaints with HUD under section 810(a) of the Fair Housing Act of 1968 (Act), as amended [42 U.S.C. 3601
To further public education about unlawful housing discrimination, the Form also contains a non-exhaustive list of activities that are prohibited under the Fair Housing Act and under VAWA. Electronic versions of the Form are currently available on FHEO's “REPORT HOUSING DISCRIMINATION” web page in English, Spanish, Chinese, Vietnamese, Korean, Arabic, Khmer/Cambodian, Russian, and Somali language texts at:
The Form may be submitted to HUD by mail, email, fax, electronically via the internet, or presented in person to HUD's Regional and/or Field FHEO Offices. HUD/FHEO staff uses this information collection as a source of pertinent data for the HUD Enforcement Management System [“HEMS”], HUD's electronic Fair Housing Act complaint processing database. FHEO uses the HEMS database to conduct intake/assessment of housing discrimination claims; to perfect and generate jurisdictional complaints; to develop investigative plans; to store factual evidence obtained during complaint investigations; to document conciliation efforts under section 810(b) of the Act and voluntary compliance efforts under other Federal civil rights authorities; to generate Final Investigative Reports and Determinations of Reasonable Cause and Determinations of No Reasonable Cause under sections 810(b) and 810(g) of the Act; and to generate digital case files for administrative enforcement actions.
Each aggrieved person will complete the HUD 903.1 Form on a one-time basis. Therefore, HUD estimated the annual burden hours for this information collection at 21,196 hours.
28,262 × 1 (frequency) × .45 minutes (.75 hours.) = 21,196 hours.
There are no additional annualized cost burdens to aggrieved persons or record keepers resulting from this information collection.
This Notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed information collection is necessary for the performance of the agency's functions;
(2) Whether the agency's estimate of burdens imposed by the information collection is accurate;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burdens of the information collection on aggrieved persons, including the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comments in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35, as amended.
Fish and Wildlife Service, Interior.
Notice of availability.
In accordance with the Marine Mammal Protection Act and its implementing regulations, we, the U.S. Fish and Wildlife Service, after consideration of comments received from the public have revised the marine mammal stock assessment reports (SARs) for the Pacific walrus (
Charles Hamilton, Marine Mammals Management, by telephone at 907-786-3804; by email at
In accordance with the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
Under the MMPA and its implementing regulations, we regulate the taking, possession, transportation, purchasing, selling, offering for sale, exporting, and importing of marine mammals. One of the goals of the MMPA is to ensure that each stock of marine mammals occurring in waters under U.S. jurisdiction does not experience a level of human-caused mortality and serious injury (M/SI) that is likely to cause the stock to be reduced below its optimum sustainable population level (OSP). The MMPA defines the OSP as “the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element” (16 U.S.C. 1362(9)).
To help accomplish the goal of maintaining marine mammal stocks at their OSPs, Section 117 of the MMPA requires the Service and the National Marine Fisheries Service (NMFS) to prepare a SAR for each marine mammal stock that occurs in waters under U.S. jurisdiction. A SAR must be based on the best scientific information available; therefore, we prepare it in consultation with the regional scientific review groups established under section 117(d) of the MMPA. Each SAR must include: (1) a description of the stock and its geographic range; (2) a minimum population estimate, maximum net productivity rate, and current population trend; (3) an estimate of the annual human-caused M/SI by source and, for a strategic stock, other factors that may be causing a decline or impeding recovery of the stock; (4) a description of commercial fishery interactions; (5) a categorization of the status of the stock; and (6) an estimate of the potential biological removal (PBR) level.
The MMPA defines the PBR level as “the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population.” (16 U.S.C. 1362(20)). The PBR is the product of the minimum population estimate of the stock (N
Section 117 of the MMPA also requires the Service and NMFS to review the SARs (a) at least annually for stocks that are specified as strategic stocks; (b) at least annually for stocks for which significant new information is available; and (c) at least once every 3 years for all other stocks. If our review of the status of a stock indicates that it has changed or may be more accurately determined, then the SAR must be revised accordingly.
A strategic stock is defined in the MMPA as a marine mammal stock “(A) for which the level of direct human-caused mortality exceeds the PBR level; (B) which, based on the best available scientific information, is declining and is likely to be listed as a threatened species under the Endangered Species Act of 1973, [as amended] (16 U.S.C. 1531
In accordance with Section 117(c) of the MMPA, the Service reviews the stock assessments for the Pacific walrus and Southwest stock of the northern sea otter annually (strategic stocks) and at least once every 3 years for the Southcentral and Southeast stocks of the northern sea otter (non-strategic stocks). If we determine that new information (such as new abundance estimates) indicates that a revision is warranted, we will propose a revision. In 2021,
The Service also published a notice in the
The following table summarizes the final revised SARs for the Pacific walrus and the Southwest, Southcentral, and Southeast stocks of the northern sea otter, listing each stock's N
On March 31, 2023, the Service released a technical report, “
In addition to comments from the SRG, the Service also received comments on the draft SARs from the Marine Mammal Commission, the Eskimo Walrus Commission, and two members of the public. We present substantive issues raised in those comments that are pertinent to all four SARs first, and then comments pertinent to the Pacific walrus, and then the three stocks of northern sea otters in Alaska, along with our responses below.
The complete list of references used for each of these revised SARs is available at
The authority for this action is the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the Fish and Wildlife Service (Service), announce receipt of an application from Helen Crittenden et al. (Helen Crittenden, Alexander van den Berg, and Nancy van den Berg; applicants) for an incidental take permit (ITP) under the Endangered Species Act. The applicants request the ITP to take the federally listed sand skink incidental to the construction of a residential development in Lake County, Florida. We request public comment on the application, which includes the applicants' proposed habitat conservation plan (HCP), and on the Service's preliminary determination that the proposed permitting action may be eligible for a categorical exclusion pursuant to the Council on Environmental Quality's National Environmental Policy Act (NEPA) regulations, the Department of the Interior's (DOI) NEPA regulations, and the DOI Departmental Manual. To make this preliminary determination, we prepared a draft environmental action statement and low-effect screening form, both of which are also available for public review. We invite comment from the public and local, State, Tribal, and Federal agencies.
We must receive your written comments on or before September 7, 2023.
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Erin Gawera, by telephone at 904-731-3121 or via email at
We, the Fish and Wildlife Service (Service), announce receipt of an application from Helen Crittenden et al. (Helen Crittenden, Alexander van den Berg, and Nancy van den Berg) (applicants) for an incidental take permit (ITP) under the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
The applicants request a 5-year ITP to take skinks via the conversion of approximately 0.63 acres (ac) of occupied nesting, foraging, and sheltering skink habitat incidental to the construction and operation of a commercial and residential development on 111.53-ac on parcel numbers 22-21-25-0003-0000-1800, 22-21-25-0003-0000-1000, 22-21-25-0003-0000-1901, 22-21-25-0003-0000-1902, and 22-21-25-0003-0000-1700 in Sections 21, 22, 27 and 28, Township 21 South, Range 25 East, Lake County, Florida. The applicants propose to mitigate for take of the skinks by purchasing credits equivalent to 1.26 ac
Before including your address, phone number, email address, or other personal identifying information in your comment, be aware that your entire comment, including your personal identifying information, may be made available to the public. While you may request that we withhold your personal identifying information, we cannot guarantee that we will be able to do so.
The Service has made a preliminary determination that the applicants' proposed project, including the construction of commercial and residential buildings and associated infrastructure (
The Service will evaluate the application and the comments to determine whether to issue the requested ITP. We will also conduct an intra-Service consultation pursuant to section 7 of the ESA to evaluate the effects of the proposed take. After considering the preceding and other matters, we will determine whether the permit issuance criteria of section 10(a)(1)(B) of the ESA have been met. If met, the Service will issue ITP number PER0549463 to the applicants.
The Service provides this notice under section 10(c) of the Endangered Species Act (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of availability; request for comment.
We, the Fish and Wildlife Service (Service), announce receipt of an application from CenterPoint Integrated Solutions, LLC (applicant) for an incidental take permit (ITP) under the Endangered Species Act. The applicant requests the ITP to take the federally threatened Florida scrub-jay (
We must receive your written comments on or before September 7, 2023.
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•
Alfredo Begazo, by telephone at 772-469-4234, or via email at
We, the Fish and Wildlife Service (Service), announce receipt of an application from CenterPoint Integrated Solutions, LLC (applicant) for an incidental take permit (ITP) under the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
The applicant requests a 5-year ITP to take scrub-jays via the conversion of
Before including your address, phone number, email address, or other personal identifying information in your comment, be aware that your entire comment, including your personal identifying information, may be made available to the public. While you may request that we withhold your personal identifying information, we cannot guarantee that we will be able to do so.
The Service has made a preliminary determination that the applicant's proposed project, including the construction of a commercial building, driveway, parking space, green areas, stormwater pond, and associated infrastructure (
The Service will evaluate the application and the comments to determine whether to issue the requested ITP. We will also conduct an intra-Service consultation pursuant to section 7 of the ESA to evaluate the effects of the proposed take. After considering the preceding and other matters, we will determine whether the permit issuance criteria of section 10(a)(1)(B) of the ESA have been met. If met, the Service will issue ITP number PER2768044 to CenterPoint Integrated Solutions, LLC.
The Service provides this notice under section 10(c) of the Endangered Species Act (16 U.S.C. 1531
Bureau of Land Management, Interior.
Public land order.
This Order withdraws 1,464 acres of Federal surface/subsurface public lands from appropriation under the public land laws, including location and entry under the United States mining laws, but not from leasing under the mineral and geothermal leasing laws, and 1,134 acres of Federal surface public lands from appropriation under the public land laws, and reserves the land for 100 years for management as part of the Bill Williams River National Wildlife Refuge (NWR) located in La Paz and Mohave Counties, Arizona, subject to valid existing rights.
This Public Land Order takes effect on August 8, 2023.
Michael Ouellett, Realty Specialist, BLM Arizona State Office, 1 North Central Avenue, Suite 800, Phoenix, AZ 85004, telephone: (602) 417-9561, email at
This withdrawal and reservation places these lands under the management of the Department of the Interior, U.S. Fish and Wildlife Service, pursuant to the National Wildlife Refuge System Administration Act (NWRSAA) at 16 U.S.C. 668dd, as part of Bill Williams River NWR. These lands were previously withdrawn and reserved as part of the refuge for a 40-year term under Public Land Order No. 6044, which expired on October 7, 2021. Under the NWRSAA at 16 U.S.C. 668dd(a)(6), once land is reserved for management as part of the Refuge System, they remain part of the System until otherwise specified by Act of Congress. This Order reflects the reservation and withdraws the land from the laws specified to protect the land from uses incompatible with Refuge purposes.
By virtue of the authority vested in the Secretary of the Interior by Section 204 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714, it is ordered as follows:
1. Subject to valid existing rights, the following described Federal surface/subsurface public lands are hereby withdrawn from all forms of appropriation under the public land laws, including location and entry under the United States mining laws, but not from leasing under the mineral and geothermal leasing laws, and reserved for wildlife refuge purposes as part of the Bill Williams River NWR;
The areas described aggregate 1,464 acres.
2. Subject to valid existing rights, the following described Federal surface public lands are hereby withdrawn from all forms of appropriation under the public land laws and reserved for wildlife refuge purposes as part of the Bill Williams River NWR;
The areas described aggregate 1,134 acres.
3. This withdrawal will expire 100 years from the effective date of this order, unless, as a result of a review conducted pursuant to Section 204(f) of the Federal Land Policy and Management Act of 1976, 43 U.S.C 1714(f), the Secretary determines that the withdrawal shall be extended.
Bureau of Land Management, Interior.
Notice of realty action.
The Bureau of Land Management (BLM), Las Vegas Field Office, has examined and found suitable for classification for lease and subsequent conveyance under the provisions of the Recreation and Public Purposes (R&PP) Act, as amended, approximately 10 acres of public land in the Las Vegas Valley, Clark County, Nevada. Clark County Real Property Management proposes to add the land to the existing Desert Breeze public park for use as public park and appurtenant facilities.
Interested parties may submit written comments regarding the proposed change in classification for lease and conveyance of the land until September 22, 2023.
Mail written comments to the Bureau of Land Management (BLM) Las Vegas Field Office, Assistant Field Manager, Division of Lands, 4701 North Torrey Pines Drive, Las Vegas, Nevada 89130, or fax to (775) 515-5010.
Lisa Moody, Realty Specialist, Major Projects for the Las Vegas Field Office, at the above address, by telephone at (702) 515-5084, or by email at
The parcel is located north of Flamingo Road and west of S Cimarron Road in Las Vegas and is legally described as:
The area described contains approximately 10 acres, according to the official plats of the surveys of said land on file with the BLM.
In accordance with the R&PP Act, Clark County Real Property Management has filed an application to lease and purchase the above-described land to develop as a park site that will consist of Little League Baseball fields, a warmup area, restrooms, a maintenance yard, turf areas, landscaping, irrigation, utilities, and off-site improvements to integrate the new facilities into the existing Desert Breeze Park that is adjacent to the proposed 10-acre project. Additional detailed information pertaining to the BLM's proposed lease and conveyance, the County's plan of development, and the site plan is available in case file N-101539, which is available for review at the BLM Las Vegas Field Office at the above address. Clark County Real Property Management is a political subdivision of the State of Nevada, and is, therefore, a qualified applicant under the R&PP Act.
Subject to limitations prescribed by law and regulation, prior to patent issuance, the holder of any right-of-way grant from the BLM within the lease area would be given the opportunity to amend the right-of-way grant for conversion to a new term, including perpetuity, if applicable.
The land identified is not needed for any Federal purpose. The lease and conveyance is consistent with the BLM Las Vegas Resource Management Plan dated October 5, 1998, and would be in the public interest. Clark County Real Property Management has not applied for more than the 640-acre annual limitation for public purpose uses and has submitted a statement that their application is for a definite project as required by regulations at 43 CFR 2741.4(b).
The lease and conveyance, when issued, will be subject to the provisions of the R&PP Act and applicable regulations of the Secretary of the Interior, and any patent issued will contain the following reservations to the United States:
1. A right-of-way thereon for ditches or canals constructed by the authority of the United States, Act of August 30, 1890 (43 U.S.C. 945); and
2. All minerals shall be reserved to the United States, together with the right to prospect for, mine, and remove such deposits for the same under applicable law and such regulations as the Secretary of the Interior may prescribe; and
Any lease and conveyance will also be subject to valid existing rights, will contain any terms or conditions required by law (including, but not limited to, any terms or conditions required by 43 CFR 2741.4), and will contain an appropriate indemnification clause protecting the United States from claims arising out of the lessee's/patentee's use, occupancy, or operations on the leased/patented lands. It will also contain any other terms and conditions deemed necessary and appropriate by the Authorized Officer.
Under the Southern Nevada Public Land Management Act of 1998 (Pub. L. 105-263) as amended, lands identified for disposal within the Las Vegas Valley are already withdrawn from location and entry under the U.S. mining laws and from operation of the mineral and geothermal leasing laws. Upon publication of this notice in the
Interested parties may also submit written comments regarding the specific use proposed in the application and plan of development, and whether the BLM followed proper administrative procedures in reaching the decision to
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. Only written comments submitted to the Assistant Field Manager, BLM Las Vegas Field Office, will be considered properly filed. Any adverse comments on the classification will be reviewed as protests by the BLM Nevada State Director, who may sustain, vacate, or modify this realty action.
In the absence of any adverse comments, the decision will become effective on October 10, 2023. The lands will not be available for lease and conveyance until after the decision becomes effective.
Bureau of Land Management, Interior.
Notice of new fees.
Pursuant to the Federal Lands Recreation Enhancement Act (FLREA), the Bureau of Land Management (BLM), Colorado River Valley Field Office (CRVFO) has established expanded (overnight/specialized use) amenity fees at the Gypsum, Catamount, Pinball, Lyon's Gulch, and Upper and Lower Prince Creek Campgrounds. The CRVFO has also established a standard amenity fee (day-use) at the Wolcott Day-Use Site.
New fees will take effect on February 8, 2024.
Documents concerning these new fees may be reviewed at the Colorado River Valley Field Office, 2300 River Frontage Road, CO 81652; phone: (970) 876-9000; and online at:
Hilary Boyd, Assistant Field Manager, telephone: (970) 876-9003, email:
This notice provides public notice that the BLM CRVFO has established recreation fees at campgrounds and the Wolcott Day-Use Site as follows: expanded amenity campground fees of $20 per campsite per night will be charged at the Catamount, Pinball, Lyon's Gulch, and Upper and Lower Prince Creek Campgrounds. Individual campsites can have up to nine people, two vehicles, and two tents per site.
A $4 per person per night fee will be charged for use of group campsites at the Gypsum, Lyon's Gulch, and Upper and Lower Prince Creek Campgrounds. A $40 minimum fee, covering up to 10 people, is established to reserve a group site. The minimum group site fee will apply toward the total amount due. The maximum occupancy of a group site is 25 people.
A $5 per vehicle per day standard amenity fee will be charged at the Wolcott Day-Use Site.
Campground and day-use fee information will be posted at each recreation site, available at the CRVFO, and available online through BLM websites.
To keep up with rising management and maintenance costs, the CRVFO will implement the new fee structure and the following year will begin using the average annual Western U.S. Consumer Price Index (CPI) to make future fee adjustments. The BLM will use the CPI the year after the collection of fees is implemented. When the increase or decrease reaches a $1 increment for per person fees or a $2 increment for campsite fees, the fees would be adjusted accordingly. For example, with a $20 fee for individual campsites, a 10 percent increase in the Western U.S. CPI would lead to a $2 increase in fees to $22. Typically, the Western U.S. CPI increases approximately 3 percent a year. Thus, it would likely take 4 years to increase the fees by $2. For group sites, a 25 percent increase in the Western U.S. CPI would lead to a $1 increase. The BLM would return to the BLM Northwest Resource Advisory Council (RAC) before each fee increase to update the RAC on successes and challenges in using the Western U.S. CPI.
All visitors holding an America the Beautiful—National Parks and Federal Recreational Lands pass (Annual, Senior, Access, Military, Fourth Grade, etc.) will be entitled to free standard amenity fees at locations charging these fees. People holding the America the Beautiful—National Parks and Federal Recreational Lands “Annual Senior Pass,” “Senior Lifetime Pass,” or “Access Pass” (or Golden Age or Access passes) may be provided a 50 percent discount on some expanded amenity fees, except those associated with group reservations.
FLREA provides authority for the Secretaries of the Interior and Agriculture to establish, modify, charge, and collect recreation fees for use of some Federal recreation lands and waters, and contains specific provisions addressing public involvement in the establishment of recreation fees. FLREA also directs the Secretaries of the Interior and Agriculture to publish 6 months' advance notice in the
Under section 803(g)(2)(A) and (C) of FLREA, developed campgrounds and rental cabins qualify as sites wherein visitors can be charged an “Expanded Amenity Recreation Fee.” Pursuant to FLREA and implementing regulations at 43 CFR 2933, fees may be charged for overnight camping, rental of cabins, and group use reservations where specific amenities and services are provided. Specific visitor fees will be identified and posted at each campground, day-use site, or rental cabin.
Under section 803(f)(4) of FLREA, all day-use sites in this notice qualify as areas wherein visitors can be charged a “Standard Amenity Recreation Fee.” Pursuant to FLREA and implementing regulations at 43 CFR 2933, fees may be charged for an area where there are significant opportunities for outdoor recreation, that has substantial Federal investments, where fees can be efficiently collected, and that contains specific amenities and services. Specific
In response to increasing recreation demands and visitation on BLM lands, the CRVFO developed a recreation fee business plan. The business plan reviewed campgrounds and day-use sites where new Standard and Expanded Amenity Recreation Fees are needed to maintain visitor facilities and visitor services, replace aging infrastructure, and improve access to recreational opportunities. The business plan explains: (1) consistency with the BLM recreation fee program policy; (2) the CRVFO recreation management direction; (3) the need for fee collection; (4) how the fees will be used at the sites; (5) Resource Advisory Council coordination; and (6) guidance on future fee increases. As analyzed in the business plan, the recreation use fees are consistent with other nearby Federal land management agency fees and are lower than the fees charged at privately owned campgrounds. The business plan is available upon request to the CRVFO and at the CRVFO website (see
The BLM notified and involved the public at each stage of this process. A public comment period on the draft business plan, announced via news release, ran from December 11, 2018, to January 25, 2019. The final business plan was signed on December 16, 2019. Public notices were posted at each recreation site during the 2019 use season. The CRVFO contacted local special recreation permit holders who might be affected. Local governments were contacted and both Eagle and Pitkin counties provided letters of support for the fee increases. Following FLREA guidelines, the BLM Northwest Resource Advisory Council approved the proposed fee structure on June 13, 2019.
Office of Surface Mining Reclamation and Enforcement, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are proposing to renew an information collection.
Interested persons are invited to submit comments on or before October 10, 2023.
Send your comments on this information collection request (ICR) by mail to Mark Gehlhar, Office of Surface Mining Reclamation and Enforcement, 1849 C Street NW, Room 4556-MIB, Washington, DC 20240, or by email to
To request additional information about this ICR, contact Mark Gehlhar by email at
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
We are soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) is the collection necessary to the proper functions of the agency; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the agency enhance the quality, utility, and clarity of the information to be collected; and (5) how might the agency minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
An agency may not conduct or sponsor and a person is not required to
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Office of Surface Mining Reclamation and Enforcement, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are proposing to renew an information collection.
Interested persons are invited to submit comments on or before September 7, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To request additional information about this ICR, contact Mark Gehlhar by email at
In accordance with the Paperwork Reduction Act of 1995 (PRA; 44 U.S.C. 3501
A
As part of our continuing effort to reduce paperwork and respondent burdens, we are again soliciting comments from the public and other Federal agencies on the proposed ICR that is described below. We are especially interested in public comment addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How might the agency minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be 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.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Notice is hereby given that, on April 12, 2023, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to Section 6(b) of the Act, the identities of the parties to the venture are: Aerocyonics, Inc., East Greenwich, RI; Auburn University, Auburn, AL; Averatek Corp., Santa Clara, CA; Calumet Electronics Corp., Calumet, MI; CPS Technologies Corp., Norton, MA; Idaho Scientific, Boise, ID; Integra Technologies LLC, Wichita, KS; ISOLA USA Corp., Chandler, AZ; Mattrix Technologies, Gainesville, FL; Purdue University, West Lafayette, IN; Rogers Corp., Chandler, AZ; ScanCAD International, Inc., Conifer, CO; STI Electronics, Inc., Madison, AL; Streamline Circuits dba Summit Interconnect, Santa Clara, CA; and TTM Technologies, Stafford Springs, CO. The general area of DEC's planned activity is to bolster the security and resiliency of the defense electronics supply chain. The mission of the DEC is to strengthen the economic and force posture of the U.S. defense electronics industrial base and provide the DoD with deeper insights and connections to the U.S. electronics industry while providing industry with greater access to DoD opportunities.
Executive Office for United States Attorneys, Department of Justice.
60-Day notice.
The Office of the Victims' Rights Ombuds, Executive Office for United States Attorneys, Department of Justice (DOJ), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until October 10, 2023.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Ellen Fitzgerald, Victims' Rights Ombudsman, Executive Office for United States Attorneys, 202-252-1010, 950 Pennsylvania Avenue NW, Room 2261, Washington, DC 20530 (Email:
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
1.
2.
3.
4.
5.
6.
7.
8.
If additional information is required contact: Darwin Arceo, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE, 4W-218, Washington, DC.
On August 2, 2023, the Department of Justice lodged a proposed consent decree with the United States District Court for the Northern District of New York in the lawsuit entitled
The United States and the State of New York filed this civil enforcement action for injunctive relief and civil penalties pursuant to section 113 of the Clean Air Act (“CAA”), 42 U.S.C. 7413, section 309 of the Clean Water Act (“CWA”), 33 U.S.C. 1319, and article 19 of the New York Environmental Conservation Law (“ECL”), and regulations promulgated thereto, against FrieslandCampina Ingredients North America, Inc. (“Friesland” or “Defendant”), as owner and operator of a hydrolyzed protein powder facility (“Facility”) located at 40196 State Highway 10, Delhi, New York.
The complaint alleges that Friesland violated the CAA by failing to: obtain a modification of its title V CAA permit before its Facility became a major source of volatile organic compound (“VOC”) emissions; perform a Reasonably Available Control Technology (“RACT”) demonstration and implement RACT before commencing operation of a major source of VOC emissions; obtain a permit before constructing a new, modified, or existing air contamination source at the Facility; and report and maintain annual reports of its VOC (toluene) emissions. The complaint also alleges that Friesland violated the CWA by: failing to comply with the New York State Department of Environmental Conservation (“NYSDEC”) State Pollutant Discharge Elimination System (“SPDES”) Permit No. NY262838; discharging non-contact cooling water to the Delaware River at temperatures that exceeded the Facility's permit limit of 70 degrees Fahrenheit; introducing total suspended solids into the Village of Delhi's publicly owned treatment works in quantities that caused pass through and/or interference with the treatment works; and failing to comply with its New York SPDES Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity (GP-0-17-004—No. NYR00F872) No Exposure Certification.
The settlement, set forth in a consent decree lodged with the court, would resolve violations of the CAA, CWA, and the ECL, and would require Friesland to reduce harmful toluene emissions through the installation and operation of pollution controls and comply with its permits. Friesland would also pay a civil penalty of $2,880,000 ($1,440,000 of which will be directed to New York State, exclusively to fund projects to prevent, abate, restore, mitigate, or control any identifiable instance of prior or ongoing water, land, or air pollution, as authorized by New York State Finance Law section 4(11) and New York Executive Law section 63(16)), and implement a Supplemental Environmental Project (“SEP”) at the Facility to reduce the adverse impacts of its thermal discharges and overall environmental risk to the Delaware River, by installing a closed-loop cooling tower system to replace its once-through, non-contact cooling water process that discharges excess heat into the adjacent watershed. The SEP would reduce groundwater withdrawals needed for Friesland's operations and the volume of discharges of heated water to the Delaware River, which would enhance trout habitat.
The publication of this notice opens a period for public comment on the proposed consent decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the proposed consent decree may be examined and downloaded at this Justice Department website:
Please enclose a check or money order for $10.25 (25 cents per page reproduction cost) payable to the United States Treasury.
Office of Justice Programs, Department of Justice.
60-Day notice.
The Office of Justice Programs (OJP), Department of Justice (DOJ), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until October 10, 2023.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Jennifer Tyson, Office of Audit, Assessment, and Management, Office of Justice Programs, U.S. Department of Justice, 810 Seventh Street NW, Washington, DC 20531 or
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
The solicitation template collection was previously streamlined to move static instructions and guidance that do not frequently change from year to year to a Grant Application Resource Guide web page. The result is a more concise, user-friendly solicitation document that draws closer attention to the program-specific details and requirements in order to lessen confusion for the applicant. Additionally, it enables the agency to revise static guidance on the web page as necessary, reducing the need to re-issue program solicitations already released to the public.
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If additional information is required contact: Darwin Arceo, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE, 4W-218, Washington, DC.
On August 1, 2023, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the Eastern District of California in the lawsuit entitled
The United States filed this lawsuit under the Clean Air Act (CAA). The United States' complaint names Sinister Manufacturing Company, Inc. (Sinister) as the defendant. The complaint requests civil penalties and injunctive relief for Sinister's alleged unlawful manufacture, sale, and offer for sale of aftermarket automotive devices that bypass, defeat or render inoperative emissions controls. Sinister signed the Consent Decree, under which it agrees to pay a $500,000 civil penalty based on its limited financial ability to pay. The Consent Decree also prohibits Sinister from making, selling or offering to sell defeat products, including delete tuners, and prevents Sinister from transferring intellectual property that would allow others to make such products. To ensure compliance with these requirements, Sinister will implement an internal training program and notify its distributors and former customers about the Consent Decree.
The publication of this notice opens a period for public comment on the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Consent Decree may be examined and downloaded at this Justice Department website:
Please enclose a check or money order for $12.50 (25 cents per page reproduction cost) payable to the United States Treasury.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Employee Benefits Security Administration (EBSA)-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 September 7, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Comments are invited on: (1) whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; (2) the accuracy of the agency's estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Nicole Bouchet by telephone at 202-693-0213, or by email at
The Department's regulations contain information collections that constitute mandatory third-party disclosure requirements applicable to the majority of Employee Retirement Income Security Act (ERISA)-covered pension and welfare benefit plans. The Department has determined that these information collections are necessary in order to ensure the participants and beneficiaries in employee benefit plans covered under ERISA receive adequate information about the benefits due to them and their rights under the plans. 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. See 5 CFR 1320.5(a) and 1320.6.
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.
Division of Coal Mine Workers' Compensation, (OWCP/DCMWC), Labor.
Request public comments.
The Department of Labor (DOL) is soliciting comments concerning the authority to conduct the information collection request (ICR) titled “Voluntary Demographic Form (CM-411).” This comment request is part of continuing Departmental efforts to reduce paperwork and respondent burden in accordance with the Paperwork Reduction Act of 1995 (PRA).
Consideration will be given to all written comments received by October 10, 2023.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered.
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• If your comment includes confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission.
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• OWCP/DCMWC will post your comment as well as any attachments, except for information submitted and marked as confidential by the submitting party, in the docket at
Anjanette Suggs, Office of Workers' Compensation Programs by telephone at 202-354-9660 or by email at
Historically, the Black Lung Program application forms and other claims processing forms have not collected demographic information. The use of this voluntary demographic form will help identify underserved communities and guide language and outreach strategies, thereby strengthening the customer service experience.
Collecting and analyzing demographic data aligns with the following executive orders Executive Orders:
OWCP/DCMWC is soliciting comments concerning the proposed information collection related to the Voluntary Demographic Form. This request helps to ensure that requested data can be provided in the desired format; reporting burden (time and financial resources) is minimized; collection instruments are clearly understood; and the impact of collection requirements on respondents can be properly assessed. OWCP/DCMWC is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of OWCP/DCMWC's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used in the estimate;
• Suggest methods to enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Background documents related to this information collection request are available at
This information collection request concerns Voluntary Demographic Form. OWCP/DCMWC is providing the following estimates with respect to the number of respondents, responses, burden hours, and burden costs supporting this information collection request.
Comments submitted in response to this notice will be summarized in the request for Office of Management and Budget approval of the proposed information collection. They will become a matter of public record and will be available at
National Aeronautics and Space Administration (NASA)
Notice of a modified system of records.
In accordance with the requirements of the Privacy Act of 1974, the National Aeronautics and Space Administration is providing public notice of a modification to a previously announced system of records, Aircraft Crewmembers' Qualifications and Performance Records, NASA 10ACMQ. This notice incorporates updated NASA Standard Routine Uses.
Submit comments within 30 calendar days from the date of this publication. The changes will take effect at the end of that period, if no adverse comments are received.
Bill Edwards-Bodmer, Privacy Act Officer, Office of the Chief Information Officer, National Aeronautics and Space Administration Headquarters, Washington, DC 20546-0001, (757) 864-7998,
NASA Privacy Act Officer, Bill Edwards-Bodmer, (757) 864-7998,
This system notice includes minor textual updates to NASA Standard Routine Uses and updates to system and subsystem manager titles.
Aircraft Crewmembers' Qualifications and Performance Records, NASA 10ACMQ.
Unclassified.
• Mary W. Jackson NASA Headquarters, National Aeronautics and Space Administration (NASA), Washington, DC 20546-0001.
• Ames Research Center (NASA), Moffett Field, CA 94035-1000.
• Armstrong Flight Research Center (NASA), P.O. Box 273, Edwards, CA 93523-0273.
• John H. Glenn Research Center at Lewis Field (NASA), 21000 Brookpark Road, Cleveland, OH 44135-3191.
• Goddard Space Flight Center (NASA), Greenbelt, MD 20771-0001.
• Lyndon B. Johnson Space Center (NASA), Houston, TX 77058-3696.
• John F. Kennedy Space Center (NASA), Kennedy Space Center, FL 32899-0001.
• Langley Research Center (NASA), Hampton, VA 23681-2199.
• Marshall Space Flight Center (NASA), Huntsville, AL 35808
• Stennis Space Center (NASA), Bay Saint Louis, MS 39529.
• Director, Aircraft Capability Management Office, and Director, Institutional Safety Management Division, at NASA Headquarters, Mary W. Jackson NASA Headquarters, National Aeronautics and Space Administration (NASA) Washington, DC 20546-0001.
• Deputy Chief, Flight Control and Cockpit Integration Branch at NASA Ames Research Center (see System Location above for address).
• Chief, Armstrong Research Aircraft Operations Division at NASA Armstrong Flight Research Center (see System Location above for address).
• Head, Aeronautical Programs Branch at NASA Goddard Space Flight Center (see System Location above for address).
• Chief, Aircraft Office at NASA Wallops Flight Facility Center (see System Location above for address).
• Chief, Aircraft Operations Division at NASA Johnson Space Center (see System Location above for address).
• Chief, Aircraft Operations Office at NASA Kennedy Space Center (see System Location above for address).
• Chief, Flight Operations and Engineering Branch at NASA Langley Research Center (see System Location above for address).
• Manager, Aviation Operations Office in Safety and Mission Assurance at Marshall Space Flight Center (see System Location above for address).
• Manager, Range and Aviation Operations Management Office at Stennis Space Center (see System Location above for address).
• 51 U.S.C. 20113(a)—Powers of the Administration in performance of functions to make and promulgate rules and regulations.
• 44 U.S.C. 3101—Records management by agency heads; general duties.
• 41 CFR 102.33—Management of Government Aircraft.
Records in this system are used to document flight crew, including UAS operators, experience and currency as well as itineraries and passenger manifests in case of accidents or requests.
This system maintains information on Crewmembers of NASA aircraft, including (1) NASA employees; (2) employees from other agencies and military detailees working at NASA; (3) active or retired astronauts; (4) contractor personnel; and (5) other space flight personnel on temporary or extended duty at NASA.
This System contains: (1) Records of experience, and currency (
Individuals, training schools or instructors, medical units or doctors.
Any disclosures of information will be compatible with the purpose for which the Agency collected the information. Under the following routine uses that are unique to this system of records, information in this system may be disclosed:
1. To this system of records may be granted to Federal, State, or local agencies or to foreign governments in cases of accident investigations, including mishap and collateral investigations.
2. To Federal, State, or local agencies, companies, or governments requesting qualifications of crewmembers prior to authorization to participate in their flight programs, or to Federal, State, or local agencies, companies, or governments whose crewmembers may participate in NASA's flight programs.
3. To the public or in press releases either by prior approval of the individual, or in the case of public release of information from mishap or collateral investigation reports, pursuant to NASA regulations at 14 CFR part 1213.
In addition, information may be disclosed under the following NASA Standard Routine Uses:
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Records in this system are maintained as hard-copy documents and on electronic media.
Records are retrieved from the system by aircrew identifier.
Records for other than astronauts are maintained in Agency files and destroyed 5 years after crewmember separates from NASA in accordance with NASA Records Retention Schedules (NRRS), Schedule 8 Item 32. Records of crewmembers who are astronauts are permanent and will be transferred to the National Archives in accordance with NRRS, Schedule 8 Item 34.
Electronic records are maintained on secure NASA servers and protected in accordance with all Federal standards and those established in NASA regulations at 14 CFR 1212.605. Additionally, server and data management environments employ infrastructure encryption technologies both in data transmission and at rest on servers. Electronic messages sent within and outside of the Agency that convey sensitive data are encrypted and transmitted by staff via pre-approved electronic encryption systems as required by NASA policy. Approved security plans are in place for information systems containing the records in accordance with the Federal Information Security Management Act of 2002 (FISMA) and OMB Circular A-130, Management of Federal Information Resources. Only authorized
In accordance with 14 CFR part 1212, Privacy Act—NASA Regulations, information may be obtained by contacting in person or in writing the system or subsystem manager listed above at the location where the records are created and/or maintained. Requests must contain the identifying data concerning the requester,
In accordance with 14 CFR part 1212, Privacy Act—NASA Regulations, information may be obtained by contacting in person or in writing the system or subsystem manager listed above at the location where the records are created and/or maintained. Requests must contain the identifying data concerning the requester,
In accordance with 14 CFR part 1212, Privacy Act—NASA Regulations, information may be obtained by contacting in person or in writing the system or subsystem manager listed above at the location where the records are created and/or maintained. Requests must contain the identifying data concerning the requester,
None.
80 FR 79937.
74 FR 50247.
72 FR 55817.
64 FR 69556.
63 FR 4290.
National Aeronautics and Space Administration (NASA).
Notice of a modified system of records.
Pursuant to the provisions of the Privacy Act of 1974, the National Aeronautics and Space Administration is issuing public notice of its proposal to modify an existing system of records Security Records System/NASA 10SECR. Modifications are described below under the caption
Submit comments within 30 calendar days from the date of this publication. The changes will take effect at the end of that period, if no adverse comments are received.
Bill Edwards-Bodmer, Privacy Act Officer, Office of the Chief Information Officer, National Aeronautics and Space Administration Headquarters, Washington, DC 20546-0001, (757) 864-7998,
NASA Privacy Act Officer, Bill Edwards-Bodmer, (757) 864-7998,
The AUTHORITY FOR MAINTENANCE OF THE SYSTEM section has been updated to remove reference to Executive Order 10450 and add reference to Executive Orders 13764 and 13467. This also notice incorporates minor textual edits to NASA Standard Routine Uses and minor formatting revisions to align with OMB guidance.
Security Records System, NASA 10SECR.
Unclassified.
The centralized data system is located at George C. Marshall Space Flight Center (NASA), Marshall Space Flight Center, AL 35812-0001.
Records are also located at:
• Mary W. Jackson NASA Headquarters (NASA), Washington, DC 20546-0001;
• Ames Research Center (NASA), Moffett Field, CA 94035-1000;
• Armstrong Flight Research Center (NASA), PO Box 273, Edwards, CA 93523-0273;
• John H. Glenn Research Center at Lewis Field (NASA), 21000 Brookpark Road, Cleveland, OH 44135-3191;
• Goddard Space Flight Center (NASA), Greenbelt, MD 20771-0001;
• Lyndon B. Johnson Space Center (NASA), Houston, TX 77058-3696;
• John F. Kennedy Space Center (NASA), Kennedy Space Center, FL 32899-0001;
• Langley Research Center (NASA), Hampton, VA 23681-2199;
• George C. Marshall Space Flight Center (NASA), Marshall Space Flight Center, AL 35812-0001;
• John C. Stennis Space Center (NASA), Stennis Space Center, MS 39529-6000;
• Michoud Assembly Facility (NASA), PO Box 29300, New Orleans, LA 70189; and
• White Sands Test Facility (NASA), PO Drawer MM, Las Cruces, NM 88004-0020.
System Manager: Deputy Assistant Administrator of the Office of Protective Services, NASA Headquarters (see System Location above for address).
Subsystem Managers: Chief of Security/Protective Services at each subsystem location at:
• NASA Headquarters (see System Location above for address);
• NASA Ames Research Center (see System Location above for address);
• NASA Armstrong Flight Research Center (see System Location above for address);
• NASA Glenn Research Center (see System Location above for address);
• NASA Goddard Space Flight Center (see System Location above for address);
• NASA Johnson Space Center (see System Location above for address);
• NASA Kennedy Space Center (see System Location above for address);
• NASA Langley Research Center (see System Location above for address);
• NASA Marshall Space Flight Center (see System Location above for address);
• NASA Stennis Space Center (see System Location above for address); and
• Michoud Assembly Facility (see System Location above for address);
• White Sands Test Facility (see System Location above for address).
• 18 U.S.C. 202-208—Bribery, graft, and conflicts of interest;
• 18 U.S.C. 371—Conspiracy to commit offense or to defraud United States;
• 18 U.S.C. 793-799—Espionage and Information Control Statutes;
• 18 U.S.C. 2151-2157—Sabotage statutes;
• 18 U.S.C. 3056—Powers, authorities, and duties of United States Secret Service;
• 40 U.S.C. 1441—Responsibilities regarding efficiency, security, and privacy of Federal computer systems;
• 42 U.S.C. 2011
• 44 U.S.C. 3101—Records management by agency heads; general duties;
• 50 U.S.C.—McCarran Internal Security Act;
• 51 U.S.C. 20101—National and commercial space programs; short title;
• Exec. Order No. 9397, as amended—Numbering system for Federal accounts relating to individual persons;
• Executive Order 13764—Amending the Civil Service Rules, Executive Order 13488, and Executive Order 13467 To Modernize the Executive Branch-Wide Governance Structure and Processes for Security Clearances, Suitability and Fitness for Employment, and Credentialing, and Related Matters;
• Exec. Order No. 10865—Safeguarding classified information within industry;
• Exec. Order No. 12968, as amended—Access to classified information;
• Exec. Order No. 13526, as amended—Classified national security information;
• Executive Order 13587, Structural Reform to Improve the Security of Classified Networks and Responsible Sharing and Safeguarding of Classified Information;
• Pub. L. 81-733—Summary suspension of employment of civilian officers and employees;
• Pub. L. 107-347—Federal Information Security Management Act 2002;
• HSPD 12—Policy for a common identification standard for Federal employees and contractors;
• 14 CFR 1203(b)—National Aeronautics and Space Administration; information security program;
• 14 CFR 1213—Release of information to news and information media;
• 15 CFR pt. 744—Export administration regulations; control policy: end-user and end-use based;
• 22 CFR pt. 62—Department of State; exchange visitor program;
• 22 CFR 120-130—Foreign Relations Export Control;
• 41 CFR pt. 101—Federal property management regulations.
The maintenance of these records supports NASA protective services and security operations as well as the establishment of identities, processing of access requests, and issuance of credentials in NASA's authoritative identity source.
This system maintains information on NASA (1) civil servant employees and applicants; (2) committee members; (3) consultants; (4) experts; (5) Resident Research Associates; (6) guest workers; (7) contractor employees; (8) detailees; (9) visitors; (10) correspondents (written and telephonic); (11) Faculty Fellows; (12) Intergovernmental Personnel Mobility Act (IPA) Employees, interns, Grantees, and Cooperative Employees; and (13) Remote Users of NASA Non-Public Information Technology Resources. This system also maintains information on all non-U.S. citizens, to include Lawful Permanent Residents seeking access to NASA facilities, resources, laboratories, contractor sites, Federally Funded Research and Development Centers or NASA sponsored events for unclassified purposes to include employees of NASA or NASA contractors; prospective NASA or NASA contractor employees; employees of other U.S. Government agencies or their contractors; foreign students at U.S. institutions; officials or other persons employed by foreign governments or other foreign institutions who may or may not be involved in cooperation with NASA under international agreements; foreign media representatives; and representatives or agents of foreign national governments seeking access to NASA facilities, to include high-level protocol visits; or international relations. While not considered `individuals' under The Privacy Act, this system maintains records on international individuals when applicable.
Personnel Security Records, Personal Identity Records including NASA visitor files, Emergency Data Records, Criminal Matters, Traffic Management Records, and Access Management Records. Specific records fields include, but are not limited to: Name, former names, date of birth, place of birth, social security number, home address, phone numbers, email address, citizenship, duty Center, traffic infraction, security violation, security incident, security violation discipline status, action taken, access permissions, area accessed, and date accessed.
Information is obtained from a variety of sources including from the employee, contractor, or applicant directly or via use of the Standard Form (SF) SF-85, SF-85P, or SF-86 and personal interviews; employers' and former employers' records; FBI criminal history records and other databases; financial institutions and credit reports; medical records and health care providers; educational institutions; interviews of witnesses such as neighbors, friends, coworkers, business associates, teachers, landlords, or family members; tax records; and other public records. Security violation information is obtained from a variety of sources, such as guard reports, security inspections, witnesses, supervisor's reports, audit reports.
Any disclosures of information will be compatible with the purpose for which the Agency collected the information. Under the following routine uses that are unique to this system of records, information in this system may be disclosed:
1. to the Department of Justice (DOJ) when: (a) The agency or any component thereof; (b) any employee of the agency in his or her official capacity; (c) any employee of the agency in his or her individual capacity where agency or the DOJ has agreed to represent the employee; or (d) the United States Government, is a party to litigation or has an interest in such litigation, and by careful review, the agency determines that the records are both relevant and necessary to the litigation and the use of such records by DOJ is therefore deemed by the agency to be for a purpose compatible with the purpose for which the agency collected the records.
2. to a court or adjudicative body in a proceeding when: (a) The agency or any component thereof; (b) any employee of the agency in his or her official capacity; (c) any employee of the agency in his or her individual capacity
3. to an Agency in order to provide a basis for determining preliminary visa eligibility.
4. to a staff member of the Executive Office of the President in response to an inquiry from the White House.
5. to the National Archives and Records Administration or to the General Services Administration for records management inspections conducted under 44 U.S.C. 2904 and 2906.
6. to agency contractors, grantees, or volunteers who have been engaged to assist the agency in the performance of a contract service, grant, cooperative agreement, or other activity related to this system of records and who need to have access to the records in order to perform their activity. Recipients shall be required to comply with the requirements of the Privacy Act of 1974, as amended, 5 U.S.C. 552a.
7. to other Federal agencies and relevant contractor facilities to determine eligibility of individuals to access classified National Security information.
8. to any official investigative or judicial source from which information is requested in the course of an investigation, to the extent necessary to identify the individual, inform the source of the nature and purpose of the investigation, and to identify the type of information requested.
9. to the news media or the general public, factual information the disclosure of which would be in the public interest and which would not constitute an unwarranted invasion of personal privacy, consistent with Freedom of Information Act standards.
10. to a Federal, State, or local agency, or other appropriate entities or individuals, or through established liaison channels to selected foreign governments, in order to enable an intelligence agency to carry out its responsibilities under the National Security Act of 1947 as amended, the CIA Act of 1949 as amended, Executive Order 12333 or any successor order, applicable national security directives, or classified implementing procedures approved by the Attorney General and promulgated pursuant to such statutes, orders or directives.
11. in order to notify an employee's next-of-kin or contractor in the event of a mishap involving that employee or contractor.
12. to notify another Federal agency when, or verify whether, a PIV card is valid.
13. to provide relevant information to an internal or external organization or element thereof conducting audit activities of a NASA contractor or subcontractor.
14. to a NASA contractor, subcontractor, grantee, or other Government organization information developed in an investigation or administrative inquiry concerning a violation of a Federal or state statute or regulation on the part of an officer or employee of the contractor, subcontractor, grantee, or other Government organization.
15. to foreign governments or international organizations if required by treaties, international conventions, or executive agreements.
16. to members of a NASA Advisory Committee or Committees and interagency boards charged with responsibilities pertaining to international visits and assignments and/or national security when authorized by the individual or to the extent the committee(s) is so authorized and such disclosure is required by law.
17. to the following individuals for the purpose of providing information on traffic accidents, personal injuries, or the loss or damage of property: (a) Individuals involved in such incidents; (b) persons injured in such incidents; (c) owners of property damaged, lost or stolen in such incidents; and/or (d) these individuals' duly verified insurance companies, personal representatives, employers, and/or attorneys. The release of information under these circumstances should only occur when it will not: (a) interfere with ongoing law enforcement proceedings, (b) risk the health or safety of an individual, or (c) reveal the identity of an informant or witness that has received an explicit assurance of confidentiality. Social security numbers should not be released under these circumstances unless the social security number belongs to the individual requester. The intent of this use is to facilitate information flow to parties who need the information to adjudicate a claim.
18. to the Transportation Security Administration, with consent of the individual on whom the records are maintained, to establish eligibility for the TSA Pre✓ program.
In addition, information may be disclosed under the following NASA Standard Routine Uses:
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Records in this system are maintained electronically and in hard-copy documents.
Records are retrieved from the system by individual's name, file number, badge number, decal number, payroll number, Agency-specific unique personal identification code, and/or Social Security Number.
Personnel Security Records are maintained in Agency files and destroyed in accordance with NASA Records Retention Schedules (NRRS), Schedule 1 Item 103. Foreign national files are maintained and destroyed in accordance with NRRS, Schedule 1 Item 35.
Personal Identity Records are maintained in Agency files and destroyed in accordance with NRRS, Schedule 1 Item 103. Visitor files are maintained and destroyed in accordance with NRRS, Schedule 1 Item 114.
Emergency Data Records are maintained and destroyed in accordance with NRRS 1, Item 100B.
Criminal Matter Records are maintained and destroyed in accordance with NRRS 1, Schedule 97.5, Items A and B.
Traffic Management Records are maintained and destroyed in accordance with NRRS 1, Schedule 97.5, Item C.
Electronic records are maintained on secure NASA servers and protected in accordance with all Federal standards and those established in NASA regulations at 14 CFR 1212.605. Additionally, server and data management environments employ infrastructure encryption technologies both in data transmission and at rest on servers. Approved security plans are in place for information systems containing the records in accordance with the Federal Information Security Management Act of 2002 (FISMA) and OMB Circular A-130, Management of Federal Information Resources (OA-9999-M-MSF-2712, OA-9999-M-MSF-2707, IE-999-M-MSF-1654). Only authorized personnel requiring information in the official discharge of their duties are authorized access to records through approved access or authentication methods. Access to electronic records is achieved only by utilizing NASA agency managed authentication mechanisms. Non-electronic records are secured in access-controlled rooms with electronic security countermeasures and agency managed, PIV enabled, physical authentication mechanisms.
In accordance with 14 CFR part 1212, Privacy Act—NASA Regulations, information may be obtained by contacting in person or in writing the system or subsystem manager listed above at the location where the records are created and/or maintained. Requests must contain the identifying data concerning the requester,
Personnel Security Records compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, Federal contracts, or access to classified information have been exempted by the Administrator under 5 U.S.C. 552a(k)(5) from the access provisions of the Act.
Criminal Matter Records compiled for civil or criminal law enforcement purposes have been exempted by the Administrator under 5 U.S.C. 552a(k)(2) from the access provision of the Act.
In accordance with 14 CFR part 1212, Privacy Act—NASA Regulations, information may be obtained by contacting in person or in writing the system or subsystem manager listed above at the location where the records are created and/or maintained. Requests must contain the identifying data concerning the requester,
In accordance with 14 CFR part 1212, Privacy Act—NASA Regulations, information may be obtained by contacting in person or in writing the system or subsystem manager listed above at the location where the records are created and/or maintained. Requests must contain the identifying data concerning the requester,
Personnel Security Records compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, Federal contracts, or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a confidential source, are exempt from the following sections of the Privacy Act of 1974, 5 U.S.C. 552a(c)(3) relating to access to the disclosure accounting; (d) relating to access to the records; (e)(1) relating to the type of information maintained in the records; (e)(4)(G), (H) and (I) relating to publishing in the annual system notice information as to agency procedures for access and correction and information as to the categories of sources of records; and (f) relating to developing agency rules for gaining access and making corrections. The determination to exempt the Personnel Security Records portion of the Security Records System has been made by the Administrator of NASA in accordance with 5 U.S.C. 552a(k)(5) and Subpart 5 of the NASA regulations appearing in 14 CFR part 1212.
Criminal Matter Records to the extent they constitute investigatory material compiled for law enforcement purposes are exempt from the following sections of the Privacy Act of 1974, 5 U.S.C. 552a(c)(3) relating to access to the disclosure accounting; (d) relating to access to the records; (e)(1) relating to the type of information maintained in the records; (e)(4)(G), (H) and (I) relating to publishing in the annual system notice information as to agency procedures for access and correction and information as to the categories of sources of records; and (f) relating to developing agency rules for gaining access and making corrections. The determination to exempt the Criminal Matter Records portion of the Security Records System has been made by the Administrator of NASA in accordance with 5 U.S.C. 552a(k)(2) and subpart 5 of the NASA regulations appearing in 14 CFR part 1212.
Records subject to the provisions of 5 U.S.C. 552(b)(1) required by Executive Order to be kept secret in the interest of national defense or foreign policy are exempt from the following sections of the Privacy Act of 1974, 5 U.S.C. 552a:(c)(3) relating to access to the disclosure accounting; (d) relating to the access to the records; (e)(1) relating to the type of information maintained in the records; (e)(4)(G), (H) and (I) relating to publishing in the annual system notice information as to agency procedures for access and correction and information as to the categories of sources of records; and (f) relating to developing agency rules for gaining access and making corrections.
The determination to exempt this portion of the Security Records System has been made by the Administrator of NASA in accordance with 5 U.S.C. 552a(k)(1) and subpart 5 of the NASA regulations appearing in 14 CFR part 1212.
88 FR 30166
86 FR 71093
80 FR 79937
80 FR 72745
76 FR 78050
74 FR 50247
72 FR 55817
71 FR 45859
64 FR 69556
63 FR 4298
National Aeronautics and Space Administration (NASA).
Reinstatement of expired information collection.
NASA is proposing to amend the NASA Federal Acquisition Regulation Supplement (NFS) to reflect updates to NASA's Mentor Protégé Program (MPP) including: the requirement of Small Business Specialists' concurrence on the signed letter of endorsement; requirements associated with credit received towards subcontracting goals; the change of the MPP reporting requirement from semi-annually to annually; identified the NASA Mentor Protégé Program Office; and clerical, semantic improvements. NASA also proposes to amend the NFS language to reflect the annual negotiation of its small business percentage goals. Lastly, the NFS will be amended to emphasize collaboration amongst representatives from the Office of Small Business Programs, Office of Procurement, and Program Offices to reduce barriers to entry and to opportunities for all small business concerns and Historically Black Colleges and Universities or Minority Institutions.
Comments are due by September 7, 2023.
Written comments and recommendations for this information collection should be sent within 30 days of publication of this notice to
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Bill Edwards-Bodmer, NASA Clearance Officer, NASA Headquarters, 300 E Street SW, JF0000, Washington, DC 20546, 757-864-7998, or
NASA is proposing to revise the NFS to add new text that: requires concurrence of the Small Business Specialist on the signed letter of endorsement for the MPP; adds requirements associated with credit received towards subcontracting goals; changes the reporting requirement from semi-annually to annually; and makes clerical and other semantic improvements. This proposed rule contains information collection requirements requiring the approval of the Office of Management and Budget
NASA, in coordination with its Office of Small Business Programs, initiated this proposed rule and is proposing to reinstate this collection to decrease the collection requirement from semi- annual to annual. NASA conducts semi- annual Mentor Protégé performance reviews, which are more effective in tracking milestones over the life of the agreement than the submission of semi- annual reports. This change will reduce the reporting requirement on small businesses from semi-annual to annual and still capture necessary information from the semi-annual performance reviews.
NASA uses electronic methods to collect information from collection respondents.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) 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 automated collection techniques or the use of other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.
National Aeronautics and Space Administration (NASA).
Notice of a modified system of records.
Pursuant to the provisions of the Privacy Act of 1974, the National Aeronautics and Space Administration is issuing public notice of its proposal to make minor modifications to the previously noticed system of records, Reasonable Accommodation (RA) Records/NASA 10RAR. Further details are set forth below under the caption
Submit comments within 30 calendar days from the date of this publication. The changes will take effect at the end of that period if no adverse comments are received.
Bill Edwards-Bodmer, Privacy Act Officer, Office of the Chief Information Officer, National Aeronautics and Space Administration Headquarters, Washington, DC 20546-0001, (757) 864-7998,
NASA Privacy Act Officer, Bill Edwards-Bodmer, (757) 864-7998,
This notice incorporates minor textual edits to NASA Standard Routine Uses and minor formatting revisions to align with OMB guidance.
Reasonable Accommodation (RA) Records, NASA 10RAR.
Unclassified.
Amazon Web Services, 410 Terry Avenue North, Seattle, WA 98109,
Mary W. Jackson NASA Headquarters, Washington, DC 20546-0001;
Ames Research Center (NASA), Moffett Field, CA 94035-1000;
Armstrong Flight Research Center (NASA), PO Box 273, Edwards, CA 93523-0273;
John H. Glenn Research Center at Lewis Field (NASA), 21000 Brookpark Road, Cleveland, OH 44135-3191;
Goddard Space Flight Center (NASA), Greenbelt, MD 20771-0001;
Lyndon B. Johnson Space Center (NASA), Houston, TX 77058-3696;
John F. Kennedy Space Center (NASA), Kennedy Space Center, FL 32899-0001;
Langley Research Center (NASA), Hampton, VA 23681-2199;
George C. Marshall Space Flight Center (NASA), Marshall Space Flight Center, AL 35812-0001;
John C. Stennis Space Center (NASA), Stennis Space Center, MS 39529-6000; NASA Shared Services Center (NSSC), Building 5100, Stennis Space Center, MS 39529-6000; and Wallops Flight Facility (NASA), Wallops Island, VA 23337.
Associate Administrator, Office of Diversity and Equal Opportunity (ODEO), NASA Headquarters (see System Location above for address).
Subsystem Managers: ODEO Director, Diversity and Data Analytics Division; and Agency Disability Program Manager at NASA Headquarters (see System Location above for address);
Center ODEO Directors and Center Disability Program Managers, at:
NASA Ames Research Center (see System Location above for address);
NASA Armstrong Flight Research Center (see System Location above for address);
NASA Glenn Research Center (see System Location above for address);
NASA Goddard Space Flight Center (see System Location above for address);
NASA Headquarters (see System Location above for address);
NASA Johnson Space Center (see System Location above for address);
NASA Kennedy Space Center (see System Location above for address);
NASA Langley Research Center (see System Location above for address);
NASA Marshall Space Flight Center (see System Location above for address);
NASA Stennis Space Center (see System Location above for address);
NASA Shared Services Center (NSSC) (see System Location above for address); and Wallops Flight Facility (see System Location above for address).
29 U.S.C. 791
This system is maintained for the purpose of considering, deciding and implementing requests for reasonable accommodation made by NASA employees and applicants for employment.
This system maintains records of requests by (1) NASA employees; or (2) applicants for employment who are seeking reasonable accommodation and also contains the disposition of such requests.
Records may include, but are not limited to: requests for reasonable accommodation including supporting documents for such requests; information concerning the nature of the disability or religious belief, practice, or observance and the need for accommodation; medical records or other substantiating documentation; notes or records made during evaluation of such requests; requests for reconsideration or internal Agency appeals; and disposition all requests and appeals.
Individuals themselves; Associate Administrator for Diversity and Equal Opportunity, and all designees, including NASA Center E.O. Directors and Center Disability Program Managers; EEOC officials.
Any disclosures of information will be compatible with the purpose for which the Agency collected the information. Under the following routine uses that are unique to this system of records, information in this system may be disclosed:
(1) to an authorized appeal grievance examiner, formal complaints examiner, administrative judge, equal employment opportunity investigator, arbitrator or other duly authorized official engaged in investigation or settlement of a grievance, complaint or appeal filed by an employee or applicant; (2) to first aid and safety personnel, when appropriate, if the disability might require emergency treatment; (3) to Federal Government officials or any of their assignees charged with the responsibility of investigating NASA's compliance with The Rehabilitation Act of 1973, as amended, or the Genetic Information Nondiscrimination Act of 2008 (GINA), or Title VII of the Civil Rights Act; and (4) to the Office of Management and Budget (OMB), Department of Labor (DOL), Office of Personnel Management (OPM), Equal Employment Opportunity Commission (EEOC), or Office of Special Counsel (OSC) to obtain advice regarding statutory, regulatory, policy, and other requirements related to reasonable accommodation.
In addition, the following Standard Routine Uses of information contained in Systems of Records (SORs), subject to the Privacy Act of 1974, are standard for many NASA systems. Any disclosures of information will be compatible with the purpose for which NASA collected the information.
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4.
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8.
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10.
11.
Records in this system are maintained in hard-copy and electronically, and within Agency-wide Intranet database and tracking system.
Records in the system are retrieved by name of the employee or applicant requesting accommodation, case identification number, or NASA Center from which the request originated.
Records are maintained and destroyed in accordance with NPR 1441.1 NASA Records Retention Schedules, Schedule 3 Item 2.6.
Electronic records are maintained on secure NASA servers and protected in accordance with all Federal standards and those established in NASA regulations at 14 CFR 1212.605. Additionally, server and data management environments employ infrastructure encryption technologies both in data transmission and at rest on servers. Electronic messages sent within and outside of the Agency are encrypted and transmitted by staff via pre-approved electronic encryption systems as required by NASA policy. Approved security plans are in place for information systems containing the records in accordance with the Federal Information Security Management Act of 2002 (FISMA) and OMB Circular A-130, Management of Federal Information Resources. Only authorized personnel requiring information in the official discharge of their duties are authorized access to records through approved access or authentication methods. Access to electronic records is achieved only from workstations within the NASA Intranet or via a secure Virtual Private Network (VPN) connection that requires two-factor hardware token authentication. Non-electronic records are secured in locked rooms or locked file cabinets.
In accordance with 14 CFR part 1212, Privacy Act—NASA Regulations, information may be obtained by contacting in person or in writing the system or subsystem manager listed above at the location where the records are created and/or maintained. Requests must contain the identifying data concerning the requester,
In accordance with 14 CFR part 1212, Privacy Act—NASA Regulations, information may be obtained by contacting in person or in writing the system or subsystem manager listed above at the location where the records are created and/or maintained. Requests must contain the identifying data concerning the requester,
In accordance with 14 CFR part 1212, Privacy Act—NASA Regulations, information may be obtained by contacting in person or in writing the system or subsystem manager listed above at the location where the records are created and/or maintained. Requests must contain the identifying data concerning the requester,
None.
(21-072, 86 FR 217, pp. 63073-63076)
(15-117, 80 FR 246, pp. 79947-79949)
(15-068, 80 FR 193, pp. 60410-60411)
(11-091, 76 FR 200, pp. 64112-64114)
The National Science Board hereby gives notice of the scheduling of a teleconference of the National Science Board/National Science Foundation Commission on Merit Review (MRX) for the transaction of National Science Board business pursuant to the NSF Act and the Government in the Sunshine Act.
Wednesday, August 9, 2023, from 12-1 p.m. EDT.
This meeting will be via videoconference through the National Science Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314.
Closed.
The agenda is: Committee Chair's opening remarks regarding the agenda; Discussion of topical areas of inquiry.
Point of contact for this meeting is: Chris Blair,
National Science Foundation.
Notice of permit applications received.
The National Science Foundation (NSF) is required to publish a notice of permit applications received to conduct activities regulated under the Antarctic Conservation Act of 1978. NSF has published regulations under
Interested parties are invited to submit written data, comments, or views with respect to this permit application by September 6, 2023 . This application may be inspected by interested parties at the Permit Office, address below.
Comments should be addressed to Permit Office, Office of Polar Programs, National Science Foundation, 2415 Eisenhower Avenue, Alexandria, Virginia 22314 or
Andrew Titmus, ACA Permit Officer, at the above address, 703-292-4479.
The National Science Foundation, as directed by the Antarctic Conservation Act of 1978 (Pub. L. 95-541, 45 CFR 671, as amended by the Antarctic Science, Tourism and Conservation Act of 1996, has developed regulations for the establishment of a permit system for various activities in Antarctica and designation of certain animals and certain geographic areas as requiring special protection. The regulations establish such a permit system to designate Antarctic Specially Protected Areas.
Take, Harmful Interference, Enter Antarctic Specially Protected Areas. The applicant proposes to continue data collections activities conducted to support the Antarctic Site Inventory which, since, 1994, has been censusing/surveying visitor sites and penguin/seabird breeding locations in the Antarctic Peninsula. Visitor site surveys may include censusing penguin and seabird colonies throughout the Antarctic Peninsula. There is the potential for slight disturbance of the birds during surveying and censusing. This permit would address the potential for infrequent, minimal take or harmful interference of the following species: Adelie penguin (
Antarctica Peninsula Region, including ASPA 107, Emperor Island, Dion Islands, Marguerite Bay, Antarctic Peninsula; ASPA 108, Green Island, Berthelot Islands, Antarctic Peninsula; ASPA 109, Moe Island, South Orkney Islands; APSA 110, Lynch Island, South Orkney Islands; ASPA 111, Southern Powell Island and adjacent islands, South Orkney Islands; ASPA 112, Coppermine Peninsula, Robert Island, South Shetland Islands; ASPA 113, Litchfield Island, Arthur Harbor, Anvers Island, Palmer Archipelago; ASPA 115, Lagotellerie Island, Marguerite Bay, Graham Land; ASPA 117, Avian Island, Marguerite Bay, Antarctic Peninsula; ASPA 125, Fildes Peninsula, King George Island (25 de Mayo); ASPA 126, Byers Peninsula, Livingston Island, South Shetland Islands; ASPA 128, Western shore of Admiralty Bay, King George Island, South Shetland Islands; ASPA 129, Rothera Point, Adelaide Island; ASPA 132, Potter Peninsula, King George Island (Isla 25 de Mayo), South Shetland Islands; ASPA 133, Harmony Point, Nelson Island, South Shetland Islands; ASPA 134, Cierva Point and offshore islands, Danco Coast, Antarctic Peninsula; ASPA 139, Biscoe Point, Anvers Island, Palmer Archipelago; ASPA 140, Parts of Deception Island, South Shetland Islands; ASPA 144, Chile Bay (Discovery Bay), Greenwich Island, South Shetland Islands; ASPA 145, Port Foster, Deception Island, South Shetland Islands; ASPA 146, South Bay, Doumer Island, Palmer Archipelago; ASPA 148, Mount Flora, Hope Bay, Antarctic Peninsula; ASPA 149, Cape Shirreff and San Telmo Island, Livingston Island, South Shetland Islands; ASPA 150, Ardley Island, Maxwell Bay, King George Island (25 de Mayo); ASPA 151, Lions Rump, King George Island, South Shetland Islands; ASPA 152, Western Bransfield Strait; and ASPA 153, Eastern Dallmann Bay.
September 1, 2023-August 31, 2028.
Harmful Interference, Enter Antarctic Specially Protected Areas. The applicant would survey chinstrap penguin (
King George Island, South Shetland Islands Robert Island, Livingston Island; Western Antarctic
Peninsula; ASPA 112, Coppermine Peninsula, Robert Island, South Shetland Islands; ASPA 125, Fildes Peninsula, King George Island (25 de Mayo); ASPA 126 Byers Peninsula, Livingston Island, South Shetland Islands; ASPA 128, Western shore of Admiralty Bay, King George Island, South Shetland Islands; ASPA 132, Potter Peninsula, King George Island (Isla 25 de Mayo, South Shetland Islands; ASPA 133, Harmony Point, Nelson Island, South Shetland Islands; ASPA 134, Cierva Point and offshore islands, Danco Coast, Antarctic Peninsula; ASPA 139, Biscoe Point, Anvers Island, Palmer Archipelago; ASPA 150, Ardley Island, Maxwell Bay,
December 1, 2023-February 15, 2024
Weeks of August 7, 14, 21, 28, September 4, 11, 2023. The schedule for Commission meetings is subject to change on short notice. The NRC Commission Meeting Schedule can be found on the internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings or need this meeting notice or the transcript or other information from the public meetings in another format (
Public.
Members of the public may request to receive the information in these notices electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555, at 301-415-1969, or by email at
There are no meetings scheduled for the week of August 7, 2023.
There are no meetings scheduled for the week of August 21, 2023.
There are no meetings scheduled for the week of August 28, 2023.
There are no meetings scheduled for the week of September 4, 2023.
For more information or to verify the status of meetings, contact Wesley Held at 301-287-3591 or via email at
The NRC is holding the meetings under the authority of the Government in the Sunshine Act, 5 U.S.C. 552b.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Monthly notice.
Pursuant to section 189.a.(2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (NRC) is publishing this regular monthly notice. The Act requires the Commission to publish notice of any amendments issued, or proposed to be issued, and grants the Commission the authority to issue and make immediately effective any amendment to an operating license or combined license, as applicable, upon a determination by the Commission that such amendment involves no significant hazards consideration (NSHC), notwithstanding the pendency before the Commission of a request for a hearing from any person.
Comments must be filed by September 7, 2023. A request for a hearing or petitions for leave to intervene must be filed by October 10, 2023. This monthly notice includes all amendments issued, or proposed to be issued, from June 23, 2023, to July 20, 2023. The last monthly notice was published on July 11, 2023.
You may submit comments by any of the following methods; however, the NRC encourages electronic comment submission through the Federal rulemaking website:
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•
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Karen Zeleznock, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-1118; email:
Please refer to Docket ID NRC-2023-0134, facility name, unit number(s), docket number(s), application date, and subject when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:
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The NRC encourages electronic comment submission through the Federal rulemaking website (
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
For the facility-specific amendment requests shown in this notice, the Commission finds that the licensees' analyses provided, consistent with section 50.91 of title 10 of
The Commission is seeking public comments on these proposed determinations. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determinations.
Normally, the Commission will not issue the amendments until the expiration of 60 days after the date of publication of this notice. The Commission may issue any of these license amendments before expiration of the 60-day period provided that its final determination is that the amendment involves NSHC. In addition, the Commission may issue any of these amendments prior to the expiration of the 30-day comment period if circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example in derating or shutdown of the facility. If the Commission takes action on any of these amendments prior to the expiration of either the comment period or the notice period, it will publish in the
Within 60 days after the date of publication of this notice, any person (petitioner) whose interest may be affected by any of these actions may file a request for a hearing and petition for leave to intervene (petition) with respect to that action. Petitions shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.309. If a petition is filed, the Commission or a presiding officer will rule on the petition and, if appropriate, a notice of a hearing will be issued.
Petitions must be filed no later than 60 days from the date of publication of this notice in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document. Petitions and motions for leave to file new or amended contentions that are filed after the deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i) through (iii).
If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration, which will serve to establish when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of the amendment unless the Commission finds an imminent danger to the health or safety of the public, in which case it will issue an appropriate order or rule under 10 CFR part 2.
A State, local governmental body, Federally recognized Indian Tribe, or designated agency thereof, may submit
For information about filing a petition and about participation by a person not a party under 10 CFR 2.315, see ADAMS Accession No. ML20340A053 (
All documents filed in NRC adjudicatory proceedings, including documents filed by an interested State, local governmental body, Federally recognized Indian Tribe, or designated agency thereof that requests to participate under 10 CFR 2.315(c), must be filed in accordance with 10 CFR 2.302. The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases, to mail copies on electronic storage media, unless an exemption permitting an alternative filing method, as further discussed, is granted. Detailed guidance on electronic submissions is located in the “Guidance for Electronic Submissions to the NRC” (ADAMS Accession No. ML13031A056) and on the NRC's public website at
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public website at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC's Electronic Filing Help Desk through the “Contact Us” link located on the NRC's public website at
Participants who believe that they have good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing stating why there is good cause for not filing electronically and requesting authorization to continue to submit documents in paper format. Such filings must be submitted in accordance with 10 CFR 2.302(b)-(d). Participants filing adjudicatory documents in this manner are responsible for serving their documents on all other participants. Participants granted an exemption under 10 CFR 2.302(g)(2) must still meet the electronic formatting requirement in 10 CFR 2.302(g)(1), unless the participant also seeks and is granted an exemption from 10 CFR 2.302(g)(1).
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket, which is publicly available at
The following table provides the plant name, docket number, date of application, ADAMS accession number, and location in the application of the licensees' proposed NSHC determinations. For further details with respect to these license amendment applications, see the applications for amendment, which are available for public inspection in ADAMS. For additional direction on accessing information related to this document, see the “Obtaining Information and Submitting Comments” section of this document.
During the period since publication of the last monthly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR chapter I, which are set forth in the license amendment.
A notice of consideration of issuance of amendment to facility operating license or combined license, as applicable, proposed NSHC determination, and opportunity for a hearing in connection with these actions, were published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.22(b) and has made a determination based on that assessment, it is so indicated in the safety evaluation for the amendment.
For further details with respect to each action, see the amendment and associated documents such as the Commission's letter and safety evaluation, which may be obtained using the ADAMS accession numbers indicated in the following table. The safety evaluation will provide the ADAMS accession numbers for the application for amendment and the
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Draft report; request for comment; correction.
The U.S. Nuclear Regulatory Commission (NRC) is correcting a notice that was published in the
The correction takes effect on August 8, 2023.
Please refer to Docket ID NRC-2023-0096 when contacting the NRC about the availability of information regarding this document. You may obtain publicly available information related to this document using any of the following methods:
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•
•
Emmanuel Sayoc, telephone: 301-415-4084; email:
In the FR on July 11, 2023, in FR Doc. 2023-14577, in the referenced draft NUREG-2192, “Standard Review Plan for Review of Subsequent License Renewal Applications for Nuclear Power Plants, Draft Report for Comment,” Revision 1,” ADAMS Accession No. ML23180A191, Table 3.1-1 and Table 3.2-1 were published with editorial errors. The corrected tables are available in ADAMS under Accession No. ML23213A036.
For the Nuclear Regulatory Commission.
The U.S. NUCLEAR WASTE TECHNICAL REVIEW BOARD will hold a hybrid (in-person/virtual) workshop on August 29, 2023.
Board workshop: August 29, 2023—
Pursuant to its authority under section 5051 of Public Law 100-203, Nuclear Waste Policy Amendments Act (NWPAA) of 1987, the U.S. Nuclear Waste Technical Review Board (Board) will hold a hybrid (in-person/virtual) workshop in Idaho Falls, ID, on Tuesday, August 29, 2023, to update its understanding of the lessons learned from the siting of radioactive waste management facilities, domestically and in other countries.
The hybrid (in-person/virtual) workshop will be held at Snake River Event Center, 780 Lindsay Blvd., Idaho Falls, ID 83402, which is located at the Shilo Inns Idaho Falls. The event center telephone number is (208) 497-0611 and the hotel telephone number is (208) 523-0088. The workshop will begin at 8:00 a.m. Mountain Daylight Time (MDT) and is scheduled to adjourn at 5:00 p.m. MDT. The workshop will include introductory comments by the Board and the Department of Energy (DOE). Planned presentations include descriptions of the siting experiences regarding geologic repositories and a monitored retrievable storage facility in the United States and geologic repositories in Canada, Switzerland, and Sweden. These presentations will be followed by a facilitated panel discussion. DOE will describe how it is incorporating best practices and lessons learned from international and domestic siting efforts, and from environmental justice efforts in its consent-based siting activities. The workshop will close with a facilitated panel discussion on all the workshop topics. After the workshop is adjourned there will be an open house to enable discussions among all participants and attendees. A detailed agenda will be available on the Board's website at
The workshop will be open to the public and there will be an opportunity for public comment prior to workshop adjournment. Those attending the workshop in person and wanting to provide oral comments are encouraged to sign the Public Comment Register at the check-in table near the entrance to the meeting room. Oral commenters will be taken in the order in which they signed in. Public comments can also be submitted during the workshop via the online workshop viewing platform, using the “Comment for the Record” form. Comments submitted online during the day of the workshop will be posted to the Board's website the following day. Depending on the number of speakers and online comments, a time limit on individual remarks may be set. However, written comments of any length may be submitted to the Board staff by mail or electronic mail. All comments received in writing will be included in the workshop record, which will be posted on the Board's website after the workshop. An archived recording of the workshop will be available on the Board's website following the workshop, and a transcript of the workshop will be available on the website by October 30, 2023.
The in-person workshop will follow the COVID-19 precautions mandated by the local jurisdiction. Attendees should observe community guidelines in place at the time of the workshop. The Board will post an update on its website if the workshop changes to a virtual-only workshop. Attendees also are encouraged to pre-register, by providing name and affiliation to
The Board was established in the Nuclear Waste Policy Amendments Act of 1987 as an independent federal agency in the Executive Branch to perform an ongoing evaluation of the technical and scientific validity of activities undertaken by DOE related to implementing the NWPA. Board members are experts in their fields and are appointed to the Board by the President from a list of candidates submitted by the National Academy of Sciences. The Board is required to report its findings, conclusions, and recommendations to Congress and the Secretary of Energy. Board reports, correspondence, congressional testimony, and meeting transcripts and related materials are posted on the Board's website.
For information on the workshop, contact Bret Leslie at
The U.S. Nuclear Waste Technical Review Board will hold a hybrid (in-person/virtual) public meeting on August 30, 2023.
Pursuant to its authority under section 5051 of Public Law 100-203, Nuclear Waste Policy Amendments Act (NWPAA) of 1987, the U.S. Nuclear Waste Technical Review Board (Board) will hold a hybrid (in-person/virtual) meeting in Idaho Falls, ID, on Wednesday, August 30, 2023, to discuss the U.S. Department of Energy (DOE) consent-based siting process activities related to its mission of developing one or more federal interim storage facilities for commercial spent nuclear fuel (SNF) as soon as practicable, and its research and development (R&D) activities related to high burnup SNF and advanced reactor waste disposition.
The hybrid (in-person/virtual) meeting will be held at Snake River Event Center, 780 Lindsay Blvd., Idaho Falls, ID 83402, which is located at the Shilo Inns Idaho Falls. The event center telephone number is (208) 497-0611 and the hotel telephone number is (208) 523-0088. The workshop will begin at 8:00 a.m. Mountain Daylight Time (MDT) and is scheduled to adjourn at 4:00 p.m. MDT. DOE will provide an update on its consent-based siting activities, give an overview of environmental justice in consent-based
The meeting will be open to the public and there will be an opportunity for public comment at the end of the consent-based siting portion of the program and again, prior to meeting adjournment. Those attending the meeting in person and wanting to provide oral comments are encouraged to sign the Public Comment Register at the check-in table near the entrance to the meeting room. Oral commenters will be taken in the order in which they signed in. Depending on the number of speakers and online comments, a time limit on individual remarks may be set. Public comments can also be submitted during the meeting via the online meeting viewing platform, using the “Comment for the Record” form. Comments submitted online during the day of the meeting will be posted to the Board's website the following day. However, written comments of any length may be submitted to the Board staff by mail or electronic mail. All comments received in writing will be included in the meeting record, which will be posted on the Board's website after the meeting. An archived recording of the meeting will be available on the Board's website following the meeting, and a transcript of the meeting will be available on the website by October 30, 2023.
The in-person meeting will follow the COVID-19 precautions mandated by the local jurisdiction. Meeting attendees should observe community guidelines in place at the time of the meeting. The Board will post an update on its website if the meeting changes to a virtual-only meeting. Attendees also are encouraged to pre-register, by providing name and affiliation to
The Board was established in the Nuclear Waste Policy Amendments Act of 1987 as an independent federal agency in the Executive Branch to perform an ongoing evaluation of the technical and scientific validity of activities undertaken by DOE related to implementing the NWPA. Board members are experts in their fields and are appointed to the Board by the President from a list of candidates submitted by the National Academy of Sciences. The Board is required to report its findings, conclusions, and recommendations to Congress and the Secretary of Energy. Board reports, correspondence, congressional testimony, and meeting transcripts and related materials are posted on the Board's website.
For information on the meeting, contact Bret Leslie at
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the Market Dominant or the Competitive product list, or the modification of an existing product currently appearing on the Market Dominant or the Competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern Market Dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3030, and 39 CFR part 3040, subpart B. For request(s) that the Postal Service states concern Competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3035, and 39 CFR part 3040, subpart B. Comment deadline(s) for each request appear in section II.
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This Notice will be published in the
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the Market Dominant or the Competitive product list, or the modification of an existing product currently appearing on the Market Dominant or the Competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern Market Dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3030, and 39 CFR part 3040, subpart B. For request(s) that the Postal Service states concern Competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3035, and 39 CFR part 3040, subpart B. Comment deadline(s) for each request appear in section II.
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This Notice will be published in the
10 a.m., August 16, 2023.
Members of the public wishing to attend the meeting must submit a written request at least 24 hours prior to the meeting to receive dial-in information. All requests must be sent to
This meeting will be open to the public.
Stephanie Hillyard, Secretary to the Board, (312) 751-4920.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rules 4.21 and 8.35 related to Flexible Exchange (“FLEX”) Options. The text of the proposed rule change is 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 Rules 4.21 and 8.35 related to FLEX Options. FLEX Options are customized equity or index contracts that allow investors to tailor contract terms for exchange-listed equity and index options. The Exchange proposes to amend Rule 4.21 to allow for cash settlement of certain FLEX Equity Options.
To permit cash settlement of certain FLEX ETF Options, the Exchange proposes new subparagraph (ii) to Rule 4.21(b)(5)(A). Proposed Rule 4.21(b)(5)(A)(ii) would provide that the exercise settlement for a FLEX ETF Option may be by physical delivery of the underlying ETF or by delivery in cash if the underlying security, measured over the prior six-month period, has an average daily notional value of $500 million or more and a national average daily volume (“ADV”) of at least 4,680,000 shares.
The Exchange also proposes in the introductory paragraph of Rule 4.21(b) that a FLEX Equity Option overlying an ETF (cash- or physically settled) may not be the same type (put or call) and may not have the same exercise style, expiration date, and exercise price as a non-FLEX Equity Option overlying the same ETF.
In addition, the Exchange proposes new subparagraph (a) to Rule 4.21(b)(5)(A)(ii), which would provide that the Exchange will determine bi-annually the underlying ETFs that satisfy the notional value and trading volume requirements in proposed Rule 4.21(b)(5)(A)(ii) by using trading statistics for the previous six-months.
Proposed new subparagraph (b) to Rule 4.21(b)(5)(A)(ii) would further provide that if the Exchange determines pursuant to the bi-annual review that an underlying ETF ceases to satisfy the requirements under Rule 4.21(b)(5)(A)(ii), any new position overlying such ETF entered into will be required to have exercise settlement by physical delivery, and any open cash-settled FLEX ETF Option positions may be traded only to close the position.
The Exchange believes it is appropriate to introduce cash settlement as an alternative contract term to the select group of ETFs because they are among the most highly liquid and actively traded securities. As described more fully below, the Exchange believes that the deep liquidity and robust trading activity in the ETFs identified by the Exchange as meeting the criteria mitigate against historic concerns regarding susceptibility to manipulation.
ETFs are funds that have their value derived from assets owned. The net asset value (“NAV”) of an ETF is a daily calculation that is based off the most recent closing prices of the assets in the fund and an actual accounting of the total cash in the fund at the time of calculation. The NAV of an ETF is calculated by taking the sum of the assets in the fund, including any securities and cash, subtracting out any liabilities, and dividing that by the number of shares outstanding.
Additionally, each ETF is subject to a creation and redemption mechanism to ensure the price of the ETF does not fluctuate too far away from its NAV, which mechanisms reduce the potential for manipulative activity. Each business day, ETFs are required to make publicly available a portfolio composition file that describes the makeup of their creation and redemption “baskets” (
The principal, and perhaps most important, feature of ETFs is their reliance on an “arbitrage function” performed by market participants that influences the supply and demand of ETF shares and, thus, trading prices relative to NAV. As noted above, new ETF shares can be created and existing shares redeemed based on investor demand; thus, ETF supply is open-ended. This arbitrage function helps to keep an ETF's price in line with the value of its underlying portfolio,
The Exchange believes that average daily notional value is an appropriate proxy for selecting underlying securities that are not readily susceptible to manipulation for purposes of establishing a settlement price. Average daily notional value considers both the trading activity and the price of an underlying security. As a general matter, the more expensive an underlying security's price, the less cost-effective manipulation could become. Further, manipulation of the price of a security encounters greater difficulty the more volume that is traded. To calculate average daily notional value (provided in the table below), the Exchange summed the notional value of each trade for each symbol (
Further, the Exchange proposes that qualifying ETFs also meet an ADV standard. The purpose for this second criteria is to prevent unusually expensive underlying securities from qualifying under the average daily notional value standard while not being one of the most actively traded securities. The Exchange believes an ADV requirement of 4,680,000 shares a day is appropriate because it represents average trading in the underlying ETF of 200 shares per second. While no security is immune from all manipulation, the Exchange believes that the combination of average daily notional value and ADV as prerequisite requirements would limit cash settlement of FLEX ETF Options to those underlying ETFs that would be less susceptible to manipulation in order to establish a settlement price.
The Exchange believes that the proposed objective criteria would ensure that only the most robustly traded and deeply liquid ETFs would qualify to have cash settlement as a contract term. As provided in the table below, as of June 30, 2023, the Exchange would be able to provide cash settlement as a contract term for FLEX ETF Options on 39 underlying ETFs, as only this group of securities would currently meet the requirement of 500 Million or more average daily notional value and a minimum ADV of 4,680,000 shares. The table below provides the list of the 39 ETFs that, as of June 30, 2023, would be eligible to have cash settlement as a contract term.
The Exchange believes that permitting cash settlement as a contract term for FLEX ETF Options for the ETFs in the above table would broaden the base of investors that use FLEX Options to manage their trading and investment risk, including investors that currently trade in the over-the-counter (“OTC”) market for customized options, where settlement restrictions do not apply.
Today, equity options are settled physically at The Options Clearing Corporation (“OCC”),
The Exchange notes that the Securities and Exchange Commission (the “Commission”) has previously approved a rule filing of another exchange that allowed for the trading of cash-settled options
With respect to position and exercise limits, cash-settled FLEX ETF Options would be subject to the position limits set forth in Rule 8.35. Accordingly, the Exchange proposes new Rule 8.35(c)(1)(B), which would provide that a position in FLEX Equity Options where the underlying security is an ETF and that is settled in cash pursuant to Rule 4.21(b)(5)(A)(ii) would be subject to the position limits set forth in Rule 8.30, and subject to the exercise limits set forth in Rule 8.42.
The Exchange understands that cash-settled ETF options are currently traded in the OTC market by a variety of market participants,
In the Exchange's view, cash-settled FLEX ETF Options traded on the Exchange would have three important advantages over the contracts that are traded in the OTC market. First, as a result of greater standardization of contract terms, exchange-traded contracts should develop more liquidity. Second, counter-party credit risk would be mitigated by the fact that the contracts are issued and guaranteed by OCC. Finally, the price discovery and dissemination provided by the Exchange and its members would lead to more transparent markets. The Exchange believes that its ability to offer cash-settled FLEX ETF Options would aid it in competing with the OTC market and at the same time expand the universe of products available to interested market participants. The Exchange believes that an exchange-traded alternative may provide a useful risk management and trading vehicle for market participants and their customers. Further, the Exchange believes listing cash-settled FLEX ETF Options would provide investors with competition on an exchange platform, as another exchange as received Commission approval to list the same options.
The Exchange notes that OCC has received approval from the Commission for rule changes that will accommodate the clearance and settlement of cash-settled ETF Options.
The Exchange does not believe that allowing cash settlement as a contract term would render the marketplace for equity options more susceptible to manipulative practices. The Exchange believes that manipulating the settlement price of cash-settled FLEX ETF Options would be difficult based on the size of the market for the underlying ETFs that are the subject of this proposed rule change. The Exchange notes that each underlying ETF in the table above is sufficiently active to alleviate concerns about potential manipulative activity. Further, in the Exchange's view, the vast liquidity in the 39 underlying ETFs that would currently be eligible to be traded as cash-settled FLEX options under the proposal ensures a multitude of market participants at any given time. Moreover, given the high level of participation among market participants that enter quotes and/or orders in physically settled options on these ETFs, the Exchange believes it would be very difficult for a single participant to alter the price of the underlying ETF or options overlying such ETF in any significant way without exposing the would-be manipulator to regulatory scrutiny. The Exchange further believes any attempt to manipulate the price of
Still, the Exchange believes it has an adequate surveillance program in place and intends to apply the same program procedures to cash-settled FLEX ETF Options that it applies to the Exchange's other options products.
With respect to regulatory scrutiny, the Exchange believes its existing surveillance technologies and procedures adequately address potential concerns regarding possible manipulation of the settlement value at or near the close of the market. The Exchange notes that the regulatory program operated by and overseen by the Cboe Global Markets, the Exchange's parent company (“Cboe”), Regulatory Division (which regulates the Exchange and its affiliated national securities exchanges)
Additionally, for options, the Exchange utilizes an array of patterns that monitor manipulation of options, or manipulation of equity securities (regardless of venue) for the purpose of impacting options prices on the Exchange (
In addition to the surveillance procedures and processes described above, improvements in audit trails (
The proposed rule change is designed to allow investors seeking to effect cash-settled FLEX ETF Options with the opportunity for a different method of settling option contracts at expiration if they choose to do so. As noted above, market participants may choose cash settlement because physical settlement possesses certain risks with respect to volatility and movement of the underlying security at expiration that market participants may need to hedge against. The Exchange believes that offering innovative products flows to the benefit of the investing public. A robust and competitive market requires that exchanges respond to members' evolving needs by constantly improving their offerings. Such efforts would be stymied if exchanges were prohibited from offering innovative products for reasons that are generally debated in academic literature. The Exchange believes that introducing cash-settled FLEX ETF Options would further broaden the base of investors that use FLEX Options to manage their trading and investment risk, including investors that currently trade in the OTC market for customized options, where settlement restrictions do not apply. The proposed rule change is also designed to encourage market makers to shift liquidity from the OTC market onto the Exchange, which, it believes, would enhance the process of price discovery conducted on the Exchange through increased order flow. The Exchange also believes that this may open up cash-settled FLEX ETF Options to more retail investors. The Exchange does not believe that this proposed rule change raises any unique regulatory concerns because existing safeguards—such as position limits (and the aggregation of cash-settled positions with physically-settled positions), exercise limits (and the aggregation of cash-settled positions with physically-settled positions), and reporting requirements—would continue to apply. The Exchange believes the proposed position and exercise limits may further help mitigate the concerns that the limits are designed to address about the potential for manipulation and market disruption in the options and the underlying securities.
Given the novel characteristics of cash-settled FLEX ETF Options, the Exchange will conduct a review of the trading in cash-settled FLEX ETF Options over an initial five-year period. The Exchange will furnish five reports to the Commission based on this review, the first of which would be provided within 60 days after the first anniversary of the initial listing date of the first cash-settled FLEX ETF Option under the proposed rule and each subsequent annual report to be provided within 60 days after the second, third, fourth and fifth anniversary of such initial listing. At a minimum, each report will provide a comparison between the trading volume of all cash-settled FLEX ETF Options listed under the proposed rule and physically settled options on the
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.
The Exchange believes that the proposal to permit cash settlement as a contract term for options on the specified group of equity securities would remove impediments to and perfect the mechanism of a free and open market as cash-settled FLEX ETF Options would enable market participants to receive cash in lieu of shares of the underlying security, which would, in turn, provide greater opportunities for market participants to manage risk through the use of a cash-settled product to the benefit of investors and the public interest. The Exchange does not believe that allowing cash settlement as a contract term for options on the specified group of equity securities would render the marketplace for equity options more susceptible to manipulative practices. As illustrated in the table above, each of the qualifying underlying securities is actively traded and highly liquid and thus would not be susceptible to manipulation because, over a six-month period, each security had an average daily notional value of at least $500 million and an ADV of at least 4,680,000 shares, which indicates that there is substantial liquidity present in the trading of these securities, and that there is significant depth and breadth of market participants providing liquidity and of investor interest. The Exchange believes the proposed bi-annual review to determine eligibility for an underlying ETF to have cash settlement as a contract term would remove impediments to and perfect the mechanism of a free and open market as it would permit the Exchange to select only those underlying ETFs that are actively traded and have robust liquidity as each qualifying ETF would be required to meet the average daily notional value and average daily volume requirements, as well as to select the same underlying ETFs on which another exchange may list cash-settled FLEX ETF Options.
The Exchange believes the proposed change that, for FLEX ETF Options, at least one of exercise style, expiration date, and exercise price must differ from options in the non-FLEX market will provide clarity and eliminate confusion regarding permissible terms of FLEX ETF Options, including the proposed cash-settled FLEX ETF Options.
The Exchange believes that the data provided by the Exchange supports the supposition that permitting cash settlement as a FLEX term for the 39 underlying ETFs that would currently qualify to have cash settlement as a contract term would broaden the base of investors that use FLEX Options to manage their trading and investment risk, including investors that currently trade in the OTC market for customized options, where settlement restrictions do not apply.
The Exchange believes that the proposal to permit cash settlement for certain FLEX ETF options would remove impediments to and perfect the mechanism of a free and open market because the proposed rule change would provide TPHs with enhanced methods to manage risk by receiving cash if they choose to do so instead of the underlying security. In addition, this proposal would promote just and equitable principles of trade and protect investors and the general public because cash settlement would provide investors with an additional tool to manage their risk. Further, the Exchange notes that other exchanges have previously received approval that allow for the trading of cash-settled options
The proposed rule change to permit cash settlement as a contract term for options on up to 50 ETFs is designed to promote just and equitable principles of trade in that the availability of cash settlement as a contract term would give market participants an alternative to trading similar products in the OTC market. By trading a product in an exchange-traded environment (that is currently traded in the OTC market), the Exchange would be able to compete more effectively with the OTC market. The Exchange believes the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that it would lead to the migration of options currently trading in the OTC market to trading on the Exchange. Also, any migration to the Exchange from the OTC market would result in increased market transparency. Additionally, the Exchange believes the proposed rule change is designed to remove impediments to and to perfect the mechanism for a free and open market and a national market system, and, in general, to protect investors and the public interest in that it should create greater trading and hedging opportunities and flexibility. The proposed rule change should also result in enhanced efficiency in initiating and closing out positions and heightened contra-party creditworthiness due to the role of OCC as issuer and guarantor of the proposed cash-settled options. Further, the proposed rule change would result in increased competition by permitting the Exchange to offer products that are currently available for trading only in the OTC market and are approved to trade on another options exchange.
The Exchange believes that establishing position limits for cash-settled FLEX ETF Options to be the same as physically settled options on the same underlying security, and aggregating positions in cash-settled FLEX ETF Options with physically settled options on the same underlying security for purposes of calculating position limits is reasonable and consistent with the Act. By establishing the same position limits for cash-settled FLEX ETF Options as for physically settled options on the same underlying security and, importantly, aggregating such positions, the Exchange believes that the position limit requirements for cash-settled FLEX ETF Options should help to ensure that the trading of cash-settled FLEX ETF Options would not increase the potential for manipulation or market disruption and could help to minimize such incentives. For the same reasons, the Exchange believes the proposed exercise limits are reasonable and consistent with the Act.
Finally, the Exchange represents that it has an adequate surveillance program in place to detect manipulative trading in cash-settled FLEX ETF Options and the underlying ETFs. Regarding the proposed cash settlement, the Exchange would use the same surveillance procedures currently utilized for the Exchange's other FLEX Options. For surveillance purposes, the Exchange would have access to information regarding trading activity in the pertinent underlying ETFs. The Exchange believes that limiting cash settlement to no more than 50 underlying ETFs (currently, 39 ETFs would be eligible to have cash-settlement as a contract term) would minimize the possibility of manipulation due to the robust liquidity in both the equities and options markets.
As a self-regulatory organization, the Exchange recognizes the importance of surveillance, among other things, to detect and deter fraudulent and manipulative trading activity as well as other violations of Exchange rules and the federal securities laws. As discussed above, the Cboe Regulatory Division has adequate surveillance procedures in place to monitor trading in cash-settled FLEX ETF Options and the underlying securities, including to detect manipulative trading activity in both the options and the underlying ETF.
Additionally, the Exchange will monitor any effect additional options series listed under the proposed rule change will have on market fragmentation and the capacity of the Exchange's automated systems. The Exchange will take prompt action, including timely communication with the Commission and with other self-regulatory organizations responsible for oversight of trading in options, the underlying ETFs, and the ETFs' component securities, should any unanticipated adverse market effects develop.
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 does not believe that the proposed rule change will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act, as all TPHs that are registered as FLEX Traders in accordance with the Exchange's Rules will be able to trade cash-settled FLEX ETF Options in the same manner. This includes the proposed change that, for FLEX ETF Options, at least one of exercise style, expiration date, and exercise price must differ from options in the non-FLEX market, which will provide clarity and eliminate confusion regarding permissible terms of FLEX ETF Options, including the proposed cash-settled FLEX ETF Options, with which all FLEX Traders must comply. Additionally, positions in cash-settled FLEX ETF Options of all FLEX Traders will be subject to the same position limits, and such positions will be aggregated with positions in physically settled options on the same underlying in the same manner.
The Exchange does not believe that the proposed rule change will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act, as the proposal is designed to increase competition for order flow on the Exchange in a manner that is beneficial to investors because it is designed to provide investors seeking to transact in FLEX ETF Options with the opportunity for an alternative method of settling their option contracts at expiration. The Exchange believes the proposed rule change will encourage competition, as it may broaden the base of investors that use FLEX Options to manage their trading and investment risk, including investors that currently trade in the OTC market for customized options, where settlement restrictions do not apply. The proposed rule change would give market participants an alternative to trading similar products in the OTC market. By trading a product in an exchange-traded environment (that is currently traded in the OTC market), the Exchange would be able to compete more effectively with the OTC market. The Exchange believes the proposed rule change may increase competition as it may lead to the migration of options currently trading in the OTC market to trading on the Exchange. Also, any migration to the Exchange from the OTC market would result in increased market transparency and thus increased price competition.
The Exchange further notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues who offer similar functionality. The Exchange believes the proposed rule change encourages competition amongst market participants to provide tailored cash-settled FLEX ETF Option contracts, as another exchange has received approval to list these contracts (subject to the same position and
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On April 21, 2023, Miami International Securities Exchange LLC (“MIAX” or “Exchange”) filed with the Securities and Exchange Commission (the “Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Currently, Exchange Rule 307(d) establishes option position limits of 25,000 contracts, 50,000 contracts, 75,000 contracts, 200,000 contracts, or 250,000 contracts on the same side of the market for the same underlying security or such other number of option contracts as may be fixed from time to time by the Exchange. The position limit applicable to an option is based on the trading volume and outstanding shares of the underlying security.
The Exchange proposes to amend Exchange Rule 307 to make permanent the position limit changes that currently occur when an underlying security undergoes a corporate stock split.
Proposed Exchange Rule 307(g) would apply the split adjustment factor to the current position limit to establish a new option position limit following a stock split in the underlying security.
The Exchange states that its proposal presents a logical approach to addressing stock splits in underlying securities because it maintains the integrity of the position limit to shares outstanding ratio pre- and post-split, and promotes consistency and stability in the marketplace.
The Exchange states that, today, when the last option listed at the time of the stock split expires, the position limit is re-evaluated according to the criteria in Exchange Rule 307(d)(1)-(5), (where the maximum contract limit is 250,000 contracts), and the position limit is permanently readjusted in accordance with that criteria.
The Exchange also proposes to amend Exchange Rule 307(e) to apply the split
The Exchange states that the proposal provides a uniform and consistent approach for reevaluating position limits for underlying securities that were subject to a stock split because the split factor is properly applied (multiplied for share splits and divided for reverse share splits) to each threshold value under Exchange Rule 307(d) to establish the proper position limit.
The Exchange states that in August 2020 the industry experienced an issue with a four-for-one stock split in Apple Inc. (“AAPL”) that the proposal is tangentially designed to address.
The Exchange states that the reversion to the pre-stock split position limit disrupts the market in a number of ways.
Using AAPL as an example, the Exchange states that pre-split, a market participant could have had an options position of 250,000 contracts that represented 0.0625% [sic] of the total shares outstanding and that, post-split, the market participant could have had an options position of 1,000,000 contracts, which would still represent 0.0625% [sic] of the total shares outstanding.
The Exchange states that other options exchanges could adopt similar rules to harmonize position limit adjustments as a result of stock splits in
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act
Pursuant to Section 19(b)(2)(B) of the Act,
Under the Commission's Rules of Practice, the “burden to demonstrate that a proposed rule change is consistent with the [Act] and the rules and regulations issued thereunder . . . is on the self-regulatory organization that proposed the rule change.”
As discussed above, the Exchange proposes to adopt new rule provisions that would automatically adjust an option's position limit proportional to and following a stock split or reverse stock split in the underlying security. Specifically, proposed Exchange Rule 307(g)(1) would provide that, following a stock split, the new position limit for options on the stock would be a value equal to the option position limit in effect at the time of the split multiplied by the stock split ratio. For a reverse stock split, the position limit in effect at the time of the reverse stock split would be adjusted by dividing the position limit value by the reverse stock split ratio. In addition, the Exchange proposes to amend Exchange Rule 307(e) to provide that, for an option with a position limit that has been adjusted pursuant to proposed Exchange Rule 307(g), the split factor would be used for the position limit analysis in Exchange Rule 307(d).
The Exchange states that the current reversion to the pre-stock split position limit following the expiration of the last option listed at the time of the split prevents market participants from effectively pursuing their trading and investment strategies because the option position limit relative to shares outstanding becomes more restrictive.
The Commission has received one comment regarding the proposal.
Position and exercise limits serve as a regulatory tool designed to address manipulative schemes and adverse market impact surrounding the use of options.
As discussed above, the Exchange and the commenter state that increasing the option position limit by the stock split factor will allow a market participant to continue to maintain an options position representing the same percentage of outstanding shares of the underlying stock following a stock split. However, the trading volume in the underlying stock—not the ability to establish an options position representing a consistent percentage of the outstanding shares pre- and post-split—is one of the relevant metrics for determining the position limit for options on stocks.
Further, the proposal does not explain why it would be appropriate for a stock option potentially to have a split-factor-adjusted position limit that is higher than what is allowed by Exchange Rule 307(d) for corresponding underlying stock-volume-traded measures. For example, under Exchange Rule 307(d), a most recent six-month trading volume in the underlying security of at least 20 million shares qualifies the option for a 50,000-contract position limit, and a most recent six-month trading volume in the underlying security of at least 40 million shares qualifies the option for a 75,000-contract position limit. Under the proposal, if an option at the 50,000-contract limit had a most recent six-month trading volume in its underlying stock of 20 million shares and the stock split two-for-one, the option's position limit would increase to 100,000 contracts and could remain there so long as the underlying stock's most recent six-month trading volume was at least 40 million shares. Under Exchange Rule 307(d), however, a most recent six-month trading volume of 40 million shares in the underlying security qualifies an option for a 75,000-contract limit, not a 100,000-contract limit. The proposal does not explain why this and other potential discrepancies with position limits currently allowed by Exchange Rule 307(d) are appropriate for options with stock-split adjusted position limits.
In addition, although the Exchange states that the reversion to pre-split option position limits prevents market participants from effectively pursuing their trading, hedging, and investment strategies following a stock split, the proposal provides no details to support these assertions, such as the number of customers affected or the trading, hedging, or investment strategies that these customers are unable to execute because of lower post-split position limits. Similarly, although the Exchange states that the reversion to pre-split position limits negatively impacts liquidity, trading volume, and possibly execution prices,
The proposal also does not describe how the Exchange would implement the proposed split-factor adjusted position limit increases or the proposed review of their appropriateness. The proposal does not specify, for example, whether the Exchange intends to follow the OCC's policy of increasing the option position limit immediately after a stock split and allowing the new limit to remain in effect until the last option listed at the time of the stock split expires, regardless of the trading volume or shares outstanding of the underlying stock. Similarly, the proposal does not specify the timing for the proposed split-factor adjusted reviews in Exchange Rule 307(e). Exchange Rule 307(e) currently provides for a six-month review of option position limits. However, the proposal does not specify, for example, whether the review for purposes of determining the appropriateness of a split-factor adjusted position limit would occur six months after the stock split, six months following the expiration of the last option listed at the time of the stock split, or at some other point in time following the stock split.
Finally, the Exchange does not propose a corresponding change to the option exercise limits in Exchange Rule 309. Apart from the exemptions in Exchange Rule 308, Exchange Rule 309(a)(1) generally prohibits members from exercising within any five consecutive business days aggregate long positions in any class of options traded on the Exchange in excess of 25,000 or 50,000 or 75,000 or 200,000 or 250,000 option contracts or such other number of option contracts as may be fixed from time to time by the Exchange as the exercise limit for that class of options. It is not clear whether the
Accordingly, the proposal does not provide an adequate basis for the Commission to conclude that the proposal would be consistent with Section 6(b)(5) of the Act.
The Commission requests that interested persons provide written submissions of their data, views, and arguments with respect to the issues identified above, as well as any other concerns they may have with the proposal. In particular, the Commission invites the written views of interested persons concerning whether the proposed rule change is consistent with Section 6(b)(5), or any other provision of the Act, or the rules and regulations thereunder. Although there do not appear to be any issues relevant to approval or disapproval which would be facilitated by an oral presentation of data, views, and arguments, the Commission will consider, pursuant to Rule 19b-4 under the Act,
The Commission asks that commenters address the sufficiency and merit of the Exchange's statements in support of the proposal in addition to any other comments they may wish to submit about the proposed rule change. In particular, the Commission seeks comment on its concerns expressed above regarding the proposal's consistency with the Act, and seeks commenters' views as to whether the proposal could have an adverse market impact.
Interested persons are invited to submit written data, views, and arguments regarding whether the proposed rule change should be approved or disapproved by August 29, 2023. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by September 12, 2023. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On November 16, 2022, the Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“Commission” or “SEC”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
As FINRA states in the Notice, Rule 606(a) of Regulation National Market System (“Regulation NMS”) requires broker-dealers to publicly disclose specified information about their order routing practices for NMS securities.
As described below and in more detail in the Notice, FINRA proposes to adopt FINRA Rule 6470 (Disclosure of Order Routing Information for OTC Equity Securities), which imposes disclosure requirements for OTC Equity Securities that are generally aligned with the requirements of SEC Rule 606(a) disclosures but with modifications to account for differences between the over-the-counter (“OTC”) markets and the market for NMS securities. In addition, to improve the accessibility of these new disclosures, as well as SEC Rule 606(a) reports, FINRA proposes to adopt FINRA Rule 6470(d) and FINRA Rule 6151 (Disclosure of Order Routing Information for NMS Securities) to require members to send both disclosures to FINRA for centralized publication on the FINRA website.
Proposed FINRA Rule 6470 would require the publication of order routing disclosures for OTC Equity Securities.
Pursuant to proposed FINRA Rule 6470(a), the new OTC Equity Security reports would be required to include the information specified in paragraphs (a)(1) through (4) of proposed FINRA Rule 6470, specifically:
• the percentage of total orders
• the identity of the ten venues to which the largest number of total non-directed held orders for the section were
• for each identified venue, the net aggregate amount of any payment for order flow received, payment from any profit-sharing relationship received, transaction fees paid, and transaction rebates received, both as a total dollar amount and per order, for all non-directed held orders for the section; and
• a discussion of the material aspects of the member's relationship with each identified venue, including, without limitation, a description of any arrangement for payment for order flow and any profit-sharing relationship and a description of any terms of such arrangements, written or oral, that may influence a member's order routing decision including, among other things: (i) incentives for equaling or exceeding an agreed upon order flow volume threshold, such as additional payments or a higher rate of payment; disincentives for failing to meet an agreed upon minimum order flow threshold, such as lower payments or the requirement to pay a fee; (ii) volume-based tiered payment schedules; and (iii) agreements regarding the minimum amount of order flow that the member would send to a venue.
To make both the existing SEC Rule 606(a) reports and the new OTC Equity Security reports more accessible for regulators, investors and others seeking to analyze and compare the data, FINRA is proposing to require that members provide the reports to FINRA for central publication on the FINRA website. Proposed FINRA Rule 6151 would require every member that is required to publish a SEC Rule 606(a) report to provide the report to FINRA, in a manner prescribed by FINRA, within the same time and in the same formats that such report is required to be made publicly available pursuant to SEC Rule 606(a). In combination with proposed FINRA Rule 6470(d), which would require members to provide the OTC Equity Security report to FINRA within one month after the end of the quarter addressed in the report in such a manner as may be prescribed by FINRA, FINRA would be able to publish both SEC Rule 606(a) and OTC Equity Security reports on its public website, free of charge and without usage restrictions.
FINRA states that it undertook an “economic impact assessment” to analyze the potential economic impacts of the proposed rule change, including potential costs, benefits, and distributional and competitive effects, relative to the current baseline.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Exchange Act and the rules and regulations thereunder applicable to a national securities association.
The Commission received two comment letters that were broadly supportive of the proposed rule change and greater transparency regarding the routing of orders in OTC Equity Securities in general.
Among other things, proposed FINRA Rule 6470(a) requires a member to disclose the identity of the ten venues to which the largest number of total non-directed held orders for the section were routed for execution and of any venue to which five percent or more of non-directed held orders for the section were routed for execution.
The commenter states that this approach obscures relevant information from retail customers because, to understand the financial inducements faced by a reporting firm, the relevant information is the payment between the reporting firm and the routing firm. The commenter also states that this results in reported data that is not comparable across broker-dealers.
FINRA believes that the proposal is clear concerning the execution venue reporting requirement.
FINRA states that it is appropriate to require reporting firms to provide information on the routing firm's arrangements with execution venues because reporting firms are responsible for their order handling choices, and FINRA believes that it is reasonable to require reporting firms to obtain and disclose the required information from broker-dealers they choose to use as their routing firms, including where a routing firm or an execution venue is located abroad.
Proposed FINRA Rule 6470, like SEC Rule 606(a), requires the routing report to cover venues to which orders are “routed for execution.”
The commenter states that there are a significant number of OTC stocks that have a limited number of available execution venues (in many cases, only one or two market centers), and states that there is a potential risk that investors viewing the report for these stocks would see a high percentage of order flow being routed to one or two venues without appropriate context of the limited choices available to the reporting firm and that some firms with lower trading volume in OTC Equity Securities could have routing relationships with a limited number of market makers.
The Commission believes that the proposed OTC Equity Security reports are appropriately designed to provide valuable information to customers and others regarding a FINRA member's order routing practices in OTC Equity Securities, which may elicit questions regarding such practices, including when a high percentage of order flow is being routed to a small number of venues. Among other things, the proposed OTC Equity Security reports should help facilitate and inform customer dialogues with their broker-dealers about the broker-dealers' order routing practices in OTC Equity Securities. For example, if a customer has questions about the number of execution venues or frequency of use of an execution venue, the customer should discuss those questions with their reporting broker. In those conversations, or through other means, the reporting broker could also provide additional explanatory context regarding their OTC Equity Security reports, provided that such information is accurate, not misleading, and otherwise complies with other applicable SEC and FINRA requirements.
The commenter also states that FINRA should consider whether certain categories of data that firms are required to report in the OTC Equity Security reports could be obtained by FINRA from the CAT.
The commenter also raises concerns about implementation of the proposal, stating that it is important to ensure that industry members will have sufficient time to properly implement the planned
The Commission believes that FINRA's statements with respect to implementation are reasonable and appropriate. As stated above, FINRA recognizes that members will require sufficient time to implement the new disclosure requirements, intends to provide an appropriate amount of time for implementation of the proposal, will work with the industry to publish technical specifications appropriately in advance of the implementation date, and will also publish interpretive guidance to the extent needed—including on routing scenarios unique to certain platforms in the OTC Equity Security market—with sufficient time allowed for implementation. In addition, FINRA has stated that it will announce the effective date of the proposed rule change in a
Moreover, the commenter expresses concern that there was not sufficient time to comment on this proposal.
The commenter states that its members support centralized publication of SEC Rule 606(a) reports and the OTC Equity Security reports by FINRA, but states that if FINRA will publish these reports that firms should no longer be required to separately publish these reports on their own websites, and instead firms should be required to provide a link from its public website to the applicable section of the FINRA website.
SEC Rule 606(a) reports are required to be made publicly available within one month after the end of the quarter addressed in the report pursuant to Commission rule and such requirement is not affected by this proposal.
The commenter supports FINRA's proposal to publish and maintain a file of which symbols are included in each OTC Equity Security category without charge, but recommends making this file available prior to the first day of each quarter for use in the upcoming quarter.
The commenter supports FINRA's proposal to limit the OTC Equity Security disclosures to non-directed held orders, but requests guidance on the proposed requirement to report the percentage of not held and held orders as a percentage of all orders.
Overall, the proposed requirements relating to the disclosure of order routing information for OTC Equity Securities are reasonably designed to assist customers in evaluating the quality of the order routing services of their broker-dealers and how well their broker-dealers manage potential conflicts of interest with execution venues. Customers would be better able to assess indirect and previously unobservable costs of trading OTC Equity Securities, including, among other things, payment for order flow and transaction fees paid less rebates, which should allow customers to assess the performance of its broker-dealer(s) and be better informed in making choices among firms. The similarities in reporting requirements between proposed FINRA Rule 6470(a) and SEC Rule 606(a) should reduce the burden of reporting for broker-dealers that already produce SEC Rule 606(a) reports, and the proposed differences in reporting requirements for OTC Equity Securities under proposed FINRA Rule 6470(a) and SEC Rule 606(a) reports for NMS securities are reasonable and appropriate due to differences in the nature of OTC Equity Securities and the markets in which they trade.
For the foregoing reasons, the Commission finds that the proposed rule change is consistent with Section 15A(b)(6)
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to modify the NYSE Arca Options Fee Schedule (“Fee Schedule”) regarding the Limit of Fees on Options Strategy Executions (the “Strategy Cap”). The Exchange proposes to implement the fee change effective August 1, 2023. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The purpose of this filing is to add dividend strategies to the list of strategy executions eligible for the Strategy Cap. The Exchange proposes to implement the rule change on August 1, 2023.
Currently, the Strategy Cap provides for a $1,000 cap on transaction fees for strategy executions involving (a) reversals and conversions, (b) box spreads, (c) short stock interest spreads, (d) merger spreads, and (e) jelly rolls.
The Exchange now proposes to modify the Strategy Cap to add dividend strategies as item (f) in the list of strategy executions eligible for the cap (and to make non-substantive conforming changes to include an item (f) in such list). The Exchange also proposes that dividend strategies would be included among the strategies that contribute to an OTP Holder's qualification for the lower cap of $200. Finally, the Exchange proposes to modify Endnote 10 of the Fee Schedule to add subparagraph (f) defining a dividend strategy as transactions done to achieve a dividend arbitrage involving the purchase, sale, and exercise of in-the-money options of the same class, executed the first business day prior to the date on which the underlying stock goes ex-dividend.
The Exchange notes that other options exchanges currently offer similar caps on strategy trades that include dividend strategies.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange operates in a highly competitive market. The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
There are currently 16 registered options exchanges competing for order flow. Based on publicly-available information, and excluding index-based options, no single exchange has more than 16% of the market share of executed volume of multiply-listed equity and ETF options trades.
The Exchange believes that the ever-shifting market share among the exchanges from month to month demonstrates that market participants can shift order flow, or discontinue or reduce use of certain categories of products, in response to fee changes. Accordingly, competitive forces constrain options exchange transaction fees. Stated otherwise, modifications to exchange transaction fees can have a direct effect on the ability of an exchange to compete for order flow.
The Exchange believes the proposed change is reasonable because it is designed to encourage OTP Holders to increase their dividend strategies executed on the Exchange by including dividend strategies among the strategy executions eligible for the Strategy Cap. The Exchange also believes the proposed change could incent OTP Holders to execute and aggregate dividend strategy orders as well as other types of strategy orders at NYSE Arca as a primary execution venue.
To the extent the proposed change attracts greater volume and liquidity, the Exchange believes the proposed change would improve the Exchange's overall competitiveness and strengthen its market quality for all market participants. In the backdrop of the competitive environment in which the Exchange operates, the proposed rule change is a reasonable attempt by the Exchange to increase the depth of its market and improve its market share relative to its competitors. The Exchange's fees are constrained by intermarket competition, as OTP Holders may direct their order flow to any of the 16 options exchanges, including those with similar caps on strategy executions, including dividend strategies.
The Exchange believes the proposed rule change is an equitable allocation of its fees and credits. The proposed change is based on the amount and type of business transacted on the Exchange, and OTP Holders can opt to avail themselves of the Strategy Cap or not. In addition, the modified Strategy Cap, as proposed, would continue to be available to all OTP Holders that direct strategy executions, including dividend strategies, to the Exchange. Moreover,
The Exchange believes the proposed change is not unfairly discriminatory because the proposed modification of the Strategy Cap would apply to all similarly-situated market participants on an equal and non-discriminatory basis. The proposal is based on the amount and type of business transacted on the Exchange, and OTP Holders are not obligated to try to achieve the Strategy Cap, nor are they obligated to execute any dividend strategies. Rather, the proposal is designed to encourage OTP Holders to increase their dividend strategy executions and to utilize the Exchange as a primary trading venue for all strategy executions (if they have not done so previously). To the extent that the proposed change attracts more strategy executions (and, in particular, dividend strategy executions) to the Exchange, this increased order flow would continue to make the Exchange a more competitive venue for, among other things, order execution. Thus, the Exchange believes the proposed rule change would improve market quality for all market participants on the Exchange and, as a consequence, attract more order flow to the Exchange thereby improving market-wide quality and price discovery. The resulting increased volume and liquidity would provide more trading opportunities to all market participants and thus would promote just and equitable principles of trade, remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, to protect investors and the public interest.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
In accordance with Section 6(b)(8) of the Act, the Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Instead, as discussed above, the Exchange believes that the proposed change would encourage the submission of additional liquidity to a public exchange, thereby promoting market depth, price discovery and transparency and enhancing order execution opportunities for all market participants. As a result, the Exchange believes that the proposed change furthers the Commission's goal in adopting Regulation NMS of fostering integrated competition among orders, which promotes “more efficient pricing of individual stocks for all types of orders, large and small.”
The Exchange does not believe the proposed change would impose any burden on intramarket competition that is not necessary or appropriate. The proposed change is designed to incent OTP Holders to direct their dividend strategy orders to the Exchange and could also encourage OTP Holders to continue to aggregate all strategy executions on the Exchange to qualify for the Strategy Cap. Greater liquidity benefits all market participants on the Exchange, and order flow from increased strategy executions could improve market quality for all market participants on the Exchange. In addition, the Strategy Cap, modified as proposed to include dividend strategies, would continue to be available to all similarly situated market participants and thus would not impose a disparate burden on competition.
The Exchange believes that the proposed rule change reflects this competitive environment because it modifies the Exchange's fees in a manner designed to continue to incent OTP Holders to direct trading interest (in particular, dividend strategy executions) to the Exchange, to provide liquidity and to attract order flow. To the extent OTP Holders continue to be incentivized to aggregate strategy executions on the Exchange as a primary trading venue, all of the Exchange's market participants should benefit from the improved market quality and increased opportunities for order execution. The Exchange also believes that the proposed change could promote competition between the Exchange and other execution venues, as other competing options exchanges currently offer a similar fee cap for strategy orders, including dividend strategies.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On May 31, 2023, Nasdaq ISE, LLC (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission is extending this 45-day time period. The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On April 14, 2023, the Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change SR-FINRA-2023-007 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
The Commission is publishing this order pursuant to Section 19(b)(2)(B) of the Exchange Act
FINRA Rule 3110(c)(1) requires a broker-dealer to inspect its locations with a frequency that depends on the location's classification as an office of supervisory jurisdiction (“OSJ”), branch office, or non-branch location.
As part of its response to the COVID-19 pandemic, FINRA adopted temporary Rule 3110.17, effective since November 2020, to provide member firms the option to conduct inspections of their OSJs, branch offices, and non-branch locations remotely, subject to specified terms.
Proposed Rule 3110.18(a) would permit broker-dealers to perform remotely required inspections of OSJs, branch offices, and non-branch locations under the applicable provisions of Rule 3110(c)(1), subject to specified safeguards and limitations. The proposed supplementary material would automatically sunset on a date that is three years after the effective date.
As originally proposed, proposed Rule 3110.18(b)(1) would require that prior to selecting any office or location for remote inspection, rather than an on-site inspection, the broker-dealer must develop a reasonable risk-based approach to using remote inspections and conduct and document a risk assessment for that office or location.
As originally proposed, proposed Rule 3110.18(c) would require a broker-dealer electing to participate in the Pilot (“participating broker-dealer”) to adopt written supervisory procedures regarding remote inspections that are reasonably designed to detect and prevent violations of, and achieve compliance with, applicable securities laws and regulations, and with applicable FINRA rules. Under the proposed provision, reasonably designed procedures for conducting remote inspections of offices or locations must address, among other things: (1) the methodology, including technology, that may be used to conduct remote inspections; (2) the factors considered in the risk assessment made for each applicable office or location; (3) the procedures specified in the data and information collection section of the proposed rule; and (4) the use of other risk-based systems employed generally by the member to identify and prioritize for review those areas that pose the greatest risk of potential violations of applicable securities laws and regulations, and of applicable FINRA rules.
Proposed Rule 3110.18(d) states that the requirement to conduct inspections of offices and locations is one part of the member's overall obligation to have an effective supervisory system, and therefore a member must maintain its ongoing review of the activities and functions occurring at all offices and locations, whether or not the member conducts inspections remotely.
Proposed Rule 3110.18(e) would require a participating broker-dealer to maintain and preserve a centralized record for each Pilot Year
Proposed Rule 3110.18(f) includes a list of conditions to which a broker-dealer must adhere in order to participate in the Pilot, as well as a list of criteria that would render firms ineligible to participate in the Pilot.
Under proposed Rule 3110.18(f)(1), a broker-dealer would be ineligible to conduct remote inspections of any of its offices or locations if the member, at any time during the Pilot: (1) is or becomes designated as a Restricted Firm under FINRA Rule 4111;
Proposed Rule 3110.18(f)(2)(A) would require each participating broker-dealer to have a recordkeeping system that: (1) makes and keeps current, and preserves records required to be made and kept current, and preserved under applicable securities laws and regulations, FINRA rules, and the member's own supervisory procedures under FINRA Rule 3110; (2) ensures such records are not physically or electronically maintained and preserved at the office or location subject to remote inspection; and (3) gives the member prompt access to such records.
Proposed Rule 3110(f)(2)(B) would require each participating broker-dealer to determine that their surveillance and technology tools are appropriate to supervise the types of risks presented by each such remotely supervised office or location.
Proposed Rule 3110.18(g) includes a list of conditions an office or location must adhere to in order to participate in the Pilot, as well as a list of criteria that would render offices or locations ineligible to participate in the Pilot.
Under proposed Rule 3110.18(g)(1), a participating broker-dealer's office or location would not be eligible for a remote inspection if at any time during the Pilot: (1) one or more associated persons at such office or location is or becomes subject to a mandatory heightened supervisory plan under the rules of the Commission, FINRA, or a state regulatory agency;
Proposed Rule 3110.18(g)(2) would require each specific office or location that participates in the Pilot to satisfy the following conditions: (1) electronic communications would be made through the broker-dealer's electronic system; (2) the associated person's correspondence and communications with the public would be subject to the broker-dealer's supervision in accordance with FINRA Rule 3110; and (3) no books or records of the member required to be made and kept current, and preserved under applicable securities laws and regulations, FINRA rules, and the participating broker-dealer's own written supervisory procedures under FINRA Rule 3110, would be physically or electronically maintained and preserved at such office or location.
As originally proposed, proposed Rule 3110.18(h) would require a participating broker-dealer to collect and produce to FINRA on a quarterly basis the following data and information about its participating offices or locations:
In addition, at the time a participating broker-dealer first delivers the data points described above, the proposed rule change would require participating broker-dealers to provide FINRA their written supervisory procedures for remote inspections that account for: (1) escalating significant findings; (2) new hires; (3) supervising brokers with a significant history of misconduct; and (4) outside business activities and “doing business as” designations.
As originally proposed, if the first year of the Pilot covers a period of time that is less than a full calendar year, the proposed rule change would require participating broker-dealers to also collect and produce to FINRA the following data and information no later than December 31 of the first Pilot Year: (1) the number of offices and locations with an inspection completed during the full calendar year of the first Pilot Year;
In addition, Amendment No. 1 modified proposed Rule 3110.18(h)(2) to impose two new obligations to collect and produce data and information to FINRA. Specifically, participating broker-dealers would be required to collect and provide to FINRA the following: (1) the number of offices and locations referenced in proposed Rule 3110.18(h)(2)(B)
As originally proposed, proposed Rule 3110.18(h)(3) would require a participating broker-dealer to collect and provide to FINRA the following calendar year 2019 data and information no later than December 31 of Pilot Year 1 (as defined under proposed Rule 3110.18(l)): (1) the number of offices and locations with an inspection completed during calendar year 2019; and (2) the number of offices and locations in item (1) where findings were identified, the number of those findings and a list of the most significant findings.
Proposed Rule 3110.18(h)(4) would require a participating broker-dealer to establish, maintain and enforce written policies and procedures that are reasonably designed to comply with the data and information collection, and transmission requirements of the Pilot.
In general, proposed Rule 3110.18(i) would require a participating broker-dealer, at least five calendar days before the beginning of a Pilot Year (as defined under proposed Rule 3110.18(l)), to provide FINRA an “opt-in notice” in the manner and format determined by FINRA. By providing such opt-in notice to FINRA, the firm would agree to participate in the proposed pilot program for the duration of such Pilot Year and to comply with the requirements of Rule 3110.18.
Proposed Rule 3110.18(k) would authorize FINRA to make a determination in the public interest and for the protection of investors that a broker-dealer is no longer eligible to participate in the Pilot if the member fails to comply with the requirements of Rule 3110.18.
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Exchange Act to determine whether the proposed rule change should be approved or disapproved.
Pursuant to Section 19(b)(2)(B) of the Exchange Act,
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues identified above, as well as any other concerns they may have with the proposed rule change. In particular, the Commission invites the written views of interested persons concerning whether the proposed rule change is consistent with the Exchange Act and the rules thereunder.
Although there do not appear to be any issues relevant to approval or disapproval that would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4, any request for an opportunity to make an oral presentation.
Interested persons are invited to submit written data, views, and arguments regarding whether the proposed rule change should be approved or disapproved by August 29, 2023. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by September 12, 2023.
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to file number SR-FINRA-2023-007 and should be submitted on or before August 29, 2023. If comments are received, any rebuttal comments should be submitted on or before September 12, 2023.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
The Commission adopted Rule 17a-11 on July 11, 1971 in response to an operational crisis in the securities industry between 1967 and 1970. The rule requires broker-dealers that are experiencing financial or operational difficulties to provide notice to the Commission, the broker-dealer's designated examining authority (“DEA”), and the Commodity Futures Trading Commission (“CFTC”) if the broker-dealer is registered with the CFTC as a futures commission merchant. Rule 17a-11 is an integral part of the Commission's financial responsibility program which enables the Commission, a broker-dealer's DEA, and the CFTC to increase surveillance of a broker-dealer experiencing difficulties and to obtain any additional information necessary to gauge the broker-dealer's financial or operational condition.
Rule 17a-11 also requires over-the-counter derivatives dealers and broker-dealers that are permitted to compute net capital pursuant to Appendix E to Exchange Act Rule 15c3-1 to notify the Commission when their tentative net capital drops below certain levels.
To ensure the provision of these types of notices to the Commission, Rule 17a-11 requires every national securities exchange or national securities association to notify the Commission when it learns that a member broker-dealer has failed to send a notice or transmit a report required under the Rule.
Compliance with the Rule is mandatory. The Commission will generally not publish or make available to any person notices or reports received pursuant to Rule 17a-11. The Commission believes that information obtained under Rule 17a-11 relates to a condition report prepared for the use of the Commission, other federal governmental authorities, and securities industry self-regulatory organizations responsible for the regulation or supervision of financial institutions.
The Commission estimates that the total hour burden under Rule 17a-11 is approximately 274 hours per year.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
Notice.
A determination has been made that a number of foreign persons have engaged in activities that warrant the imposition of measures pursuant to Section 3 of the Iran, North Korea, and Syria Nonproliferation Act. The Act provides for sanctions on foreign entities and individuals for the transfer to or acquisition from Iran since January 1, 1999; the transfer to or acquisition from Syria since January 1, 2005; or the transfer to or acquisition from North Korea since January 1, 2006, of goods, services, or technology controlled under multilateral control lists (Australia Group, Chemical Weapons Convention, Missile Technology Control Regime, Nuclear Suppliers Group, Wassenaar Arrangement) or otherwise having the potential to make a material contribution to the development of weapons of mass destruction (WMD) or cruise or ballistic missile systems. The latter category includes items of the same kind as those on multilateral lists but falling below the control list parameters when it is determined that such items have the potential of making a material contribution to WMD or cruise or ballistic missile systems, items on U.S. national control lists for WMD/
July 19, 2023.
On general issues: Pam Durham, Office of Missile, Biological, and Chemical Nonproliferation, Bureau of International Security and Nonproliferation, Department of State, Telephone (202) 647-4930. For U.S. Government procurement ban issues: Eric Moore, Office of the Procurement Executive, Department of State, Telephone: (703) 875-4079. Email:
On July 19, 2023, the U.S. Government applied the measures authorized in Section 3 of the Iran, North Korea, and Syria Nonproliferation Act (Pub. L. 109-353) against the following foreign persons identified in the report submitted pursuant to Section 2(a) of the Act:
Sinobright Import and Export Company (PRC) (People's Republic of China); and any successor, sub-unit, or subsidiary thereof;
Wisdom Import & Export (Shanghai) Co., Ltd. (PRC) and any successor, sub-unit, or subsidiary thereof;
Seyed Taba (Turkish individual);
EuroAsia (Turkiye) and any successor, sub-unit, or subsidiary thereof;
Mirel Makina Elektronik Teks (Turkiye) and any successor, sub-unit, or subsidiary thereof.
Accordingly, pursuant to Section 3 of the Act, the following measures are imposed on these persons:
1. No department or agency of the U.S. government may procure or enter into any contract for the procurement of any goods, technology, or services from these foreign persons, except to the extent that the Secretary of State otherwise may determine;
2. No department or agency of the U.S. government may provide any assistance to these foreign persons, and these persons shall not be eligible to participate in any assistance program of the U.S. government, except to the extent that the Secretary of State otherwise may determine;
3. No U.S. government sales to these foreign persons of any item on the United States Munitions List are permitted, and all sales to these persons of any defense articles, defense services, or design and construction services under the Arms Export Control Act are terminated; and
4. No new individual licenses shall be granted for the transfer to these foreign persons of items the export of which is controlled under the Export Control Reform Act of 2018 or the Export Administration Regulations, and any existing such licenses are suspended.
These measures shall be implemented by the responsible departments and agencies of the U.S. government and will remain in place for two years from the effective date, except to the extent that the Secretary of State may subsequently determine otherwise. These measures are independent of and in addition to any other sanctions imposed on such entities and/or individuals by other federal agencies under separate legal authorities.
Public notice.
Notice of receipt of request from Nepal for cultural property protection.
Kimberly Nizov, Cultural Heritage Center, Bureau of Educational and Cultural Affairs: (202) 890-7523;
The Government of the Federal Democratic Republic of Nepal made a request to the Government of the United States on May 23, 2023, under Article 9 of the 1970 UNESCO
The Department of State announces the location, dates, times, and agenda for the next meeting of the Cultural Property Advisory Committee (“the Committee”).
The Committee will meet on September 19, 2023, from 9:00 a.m. to 3:00 p.m. (CDT) and September 20, 2023, from 9:00 a.m. to 3:00 p.m. (CDT).
The Committee will meet at the University of Illinois Chicago in Chicago, Illinois. The public will participate in the open session on September 19 via videoconference.
Allison Davis, Cultural Heritage Center, Bureau of Educational and Cultural Affairs: (771) 204-4765; (
The Assistant Secretary of State for Educational and Cultural Affairs calls a meeting of the Cultural Property Advisory Committee (“the Committee”) in accordance with the Convention on Cultural Property Implementation Act (19 U.S.C. 2601-2613) (“the Act”). A portion of this meeting will be closed to the public pursuant to 5 U.S.C. 552b(c)(9)(B) and 19 U.S.C. 2605(h).
Written comments submitted via regulations.gov are not private and are posted at
Public notice.
Proposal to extend the
Andrew Zonderman, Cultural Heritage Center, Bureau of Educational and Cultural Affairs: (202) 718-9481;
Pursuant to the authority vested in the Assistant Secretary of State for Educational and Cultural Affairs, and pursuant to 19 U.S.C. 2602(f)(1), an extension of the
A copy of the
Surface Transportation Board.
Notice of National Grain Car Council meeting; correction.
Notice of this meeting was previously served and published in the
Alan Cassiday at (202) 245-0308, (717) 215-0635, or
In the
The meeting will be held on Tuesday, August 15, 2023, beginning at 1 p.m. (CDT), and is expected to conclude at 5 p.m. (CDT).
By the Board, Scott M. Zimmerman, Acting Director, Office of Proceedings.
Office of the United States Trade Representative.
Request for comments and notice of public hearing.
The interagency Trade Policy Staff Committee (TPSC) will seek public comment to assist the Office of the United States Trade Representative (USTR) in the preparation of its annual report to Congress on Russia's implementation of its obligations as a Member of the World Trade Organization (WTO). This notice includes the schedule for the submission of comments to the TPSC for the Russia report and a public hearing.
USTR strongly prefers electronic submissions made through the Federal eRulemaking Portal:
Silvia Savich, Deputy Assistant U.S. Trade Representative for Russia and Eurasia, at
Russia became a Member of the WTO on August 22, 2012, and on December 21, 2012, following termination of the application of the Jackson-Vanik amendment to Russia and the extension of permanent normal trade relations to the products of Russia, the United States and Russia filed letters with the WTO withdrawing their notices of non-application and consenting to have the WTO Agreement apply between them. In accordance with Section 201(a) of the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012 (Public Law 112-208), USTR is required to submit annually a report to Congress on the extent to which Russia is implementing the WTO Agreement, including the Agreement on the Application of Sanitary and Phytosanitary Measures and the Agreement on Trade Related Aspects of Intellectual Property Rights. The report also must assess Russia's progress on acceding to and implementing the Information Technology Agreement (ITA) and the Government Procurement Agreement (GPA). In addition, to the extent that USTR finds that Russia is not implementing fully any WTO agreement or is not making adequate progress in acceding to the ITA or the GPA, USTR must describe in the report the actions it plans to take to encourage Russia to improve its implementation and/or increase its accession efforts. In accordance with section 201(a), and to assist it in preparing this year's report, the TPSC is soliciting public comments.
The terms of Russia's accession to the WTO are contained in the Marrakesh Agreement Establishing the World Trade Organization and the Protocol on the Accession of the Russian Federation to the WTO (including its annexes) (Protocol). The Report of the Working Party on the Accession of the Russian Federation (Working Party Report) provides detail and context to the commitments listed in the Protocol. You can find the Protocol and Working Party Report on USTR's website at
USTR will convene a public hearing on October 12, 2023 related to Russia's implementation of its WTO commitments. Persons wishing to observe the public hearing will find a link on USTR's web page for Russia on the day of the hearing at
The TPSC requests small businesses or organizations representing small business members that submit comments to self-identify as such, so that we may be aware of issues of particular interest to small businesses.
Written comments and/or oral testimony should address Russia's implementation of the commitments made in connection with its accession to the WTO, including, but not limited to, commitments in the following areas:
a. Import regulation (
b. Export regulation.
c. Subsidies.
d. Standards and technical regulations.
e. Sanitary and phytosanitary measures.
f. Trade-related investment measures (including local content requirements).
g. Taxes and charges levied on imports and exports.
h. Other internal policies affecting trade.
i. Intellectual property rights (including intellectual property rights enforcement).
j. Services.
k. Government procurement.
l. Rule of law issues (
m. Trade facilitation.
n. Other WTO commitments.
To be assured of consideration, submit your written comments, requests to testify, and written testimony by the September 20, 2023, 11:59 p.m. EDT deadline. All submissions must be in English. USTR strongly encourages submissions via
To make a submission via
At the beginning of your submission or on the first page (if an attachment), include the following text: (1) 2023 Russia WTO Implementation Report; (2) your organization's name; and (3) whether the submission is a comment, request to testify, or written testimony. Submissions should not exceed 30 single-spaced, standard letter-size pages in 12-point type, including attachments. Please do not attach separate cover letters, exhibits, annexes, or other attachments to electronic submissions; rather, include any in the same file as the submission itself, not as separate files. You will receive a tracking number upon completion of the submission procedure at
For further information on using
If you are unable to provide submissions as requested, please contact Silvia Savich, Deputy Assistant U.S. Trade Representative for Russia and Eurasia, in advance of the deadline at
If you ask USTR to treat information you submit as BCI, you must certify that the information is business confidential and you would not customarily release it to the public. For any comments submitted electronically containing BCI, the file name of the business confidential version should begin with the characters `BCI.' You must clearly mark any page containing BCI with `BUSINESS CONFIDENTIAL' at the top of that page. Filers of submissions containing BCI also must submit a public version of their submission that will be placed in the docket for public inspection. The file name of the public version should begin with the character `P.'
USTR will post written submissions in the docket for public inspection, except properly designated BCI. You can view submissions at
Federal Aviation Administration, Department of Transportation.
Notice of Advanced Aviation Advisory Committee (AAAC) meeting.
This notice announces a meeting of the AAAC.
The meeting will be held on August 23, 2023, between the hours of 1:00 p.m. and 4:30 p.m. Eastern Time.
Requests for accommodations for a disability must be received by August 16, 2023.
Requests to submit written materials to be reviewed during the meeting must be received no later than August 16, 2023.
The meeting will be held at the FAA Headquarters, 800 Independence Avenue SW, Washington, DC 20591. In-person attendance is limited to Advanced Aviation Advisory Committee members and selected FAA support staff. Members of the public who wish to observe the meeting through virtual means can access the livestream on the following FAA social media platforms on the day of the event:
Gary Kolb, Advanced Aviation Advisory Committee Manager, Federal Aviation Administration, U.S. Department of Transportation, at
The AAAC was created under the Federal Advisory Committee Act (FACA), in accordance with Title 5 of the United States Code (5 U.S.C. App. 2) to provide the FAA with advice on key drone and advanced air mobility (AAM) integration issues by helping to identify challenges and prioritize improvements.
At the meeting, the agenda will cover the following topics:
Additional details will be posted on the AAAC Internet website address listed in the
The meeting will be open to the public via livestream. Members of the public who wish to observe the virtual meeting can access the livestream on the following FAA social media platforms on the day of the event,
The FAA is not accepting oral presentations at this meeting due to time constraints. Written statements submitted by the deadline will be provided to the AAAC members before the meeting. Any member of the public may submit a written statement to the committee at any time.
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief
Comments on this petition must identify the petition docket number and must be received on or before August 28, 2023.
Send comments identified by docket number FAA-2023-1532 using any of the following methods:
•
•
•
•
Deana Stedman, AIR-646, Federal Aviation Administration, phone 206-231-3187, email
This notice is published pursuant to 14 CFR 11.85.
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FMCSA announces its plan to submit the Information Collection Request (ICR) described below to the Office of Management and Budget (OMB) for its review and approval and invites public comment. FMCSA requests approval to renew the ICR titled “Accident Recordkeeping Requirements.” This ICR relates to Agency requirements that motor carriers maintain a record of accidents involving their commercial motor vehicles (CMVs). Motor carriers are not required to report this data to FMCSA, but must produce it upon inquiry by authorized Federal, State, or local officials.
Comments on this notice must be received on or before October 10, 2023.
You may submit comments identified by Federal Docket Management System (FDMS) Number FMCSA-2023-0100 by any of the following methods:
•
•
•
•
Each submission must include the Agency name and the docket number (FMCSA-2023-0100) for this notice. Note that DOT posts all comments received without change to
Ms. Pearlie Robinson, Driver and Carrier Operations Division, DOT, FMCSA, West Building, 6th Floor, 1200 New Jersey Avenue SE, Washington, DC 20590-0001; 202-366-4225;
All submissions must include the Agency name and docket number. For detailed instructions on submitting comments, see the Public Participation heading below. Note that all comments received will be posted without change to
FMCSA encourages you to participate by submitting comments and related materials. If you submit a comment, please include the docket number for
To submit your comment online, go to
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to
Title 49 of the Code of Federal Regulations (CFR), 390.15(b), requires motor carriers to make certain specified records and information pertaining to CMV accidents available to an authorized representative or special agent of FMCSA upon request or as part of an inquiry. Motor carriers are required to maintain an “accident register” consisting of information concerning all “accidents” involving their CMVs (§ 390.15(b) (see “Definition: Accident” below)). The following information must be recorded for each accident: date, location, driver name, number of injuries, number of fatalities, and whether certain dangerous hazardous materials were released. In addition, the motor carrier must maintain copies of all accident reports required by insurers or governmental entities. Motor carriers must maintain this information for 3 years after the date of the accident. Section 390.15 does not require motor carriers to submit any information or records to FMCSA or any other party.
This ICR supports the DOT strategic goal of safety. By requiring motor carriers to gather and record information concerning CMV accidents, FMCSA is strengthening its ability to assess the safety performance of motor carriers. This information is a valuable resource in Agency initiatives to prevent, and reduce the severity of, CMV crashes.
The Agency has modified several of its estimates for this ICR. The estimated number of annual respondents have increased, while the number of responses, burden hours, and annual costs to respondents have decreased. Explanations for these changes are summarized below.
The previously-approved burden is 55,425 burden hours. The Agency decreases its estimate to 48,760 burden hours. The text of § 390.15(b) is unchanged; the decrease in burden hours does not reflect changes in the requirements for accident recordkeeping. The adjustment in annual burden hours is due to an increase in the number of annual respondents from 89,270 to 93,280, and a decrease in the estimate of the number of reportable accidents from 184,749 to 162,533 per year, using interstate and intrastate DOT-reportable motor carrier crash records in FMCSA's Motor Carrier Management Information System for calendar years 2020 through 2022.
This ICR includes estimated labor costs associated with maintaining the Accident Register. The estimated annual labor cost for industry resulting from the Accident Register reporting requirements is decreased from $1,860,617 to $1,507,169.
Finally, the estimated annual cost associated with accident recordkeeping (outside of labor costs) is decreased from $106,785 to $93,944. In the current iteration of this ICR, FMCSA is assuming that (1) approximately 15 percent of motor carriers are storing their Accident Registers electronically, at no extra cost, and (2) approximately 85 percent of motor carriers are storing hard copy versions of their Accident Registers. FMCSA is further assuming that motor carriers that maintain paper records are storing their Accident Registers at their primary place of business, so that they have easy access to such records during an FMCSA investigation.
Issued under the authority of 49 CFR 1.87.
Under part 211 of title 49 Code of Federal Regulations (CFR), this document provides the public notice that on July 7, 2023, TransitAmerica Services, Inc. (TASI), the operations contractor to Metrolink Arrow SCAX, petitioned the Federal Railroad Administration (FRA) for a waiver of
Specifically, TASI requests relief required to participate in FRA's Confidential Close Call Reporting System (C
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested parties desire an opportunity for oral comment and a public hearing, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted at
Communications received by October 10, 2023 will be considered by FRA before final action is taken. Comments received after that date will be considered if practicable.
Anyone can search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). Under 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
Issued in Washington, DC.
Under part 235 of title 49 Code of Federal Regulations (CFR) and 49 U.S.C. 20502(a), this document provides the public notice that by letters received on May 10, 2023, and June 8, 2023, the Buffalo & Pittsburgh Railroad, Inc. (BPRR) petitioned the Federal Railroad Administration (FRA) seeking approval to discontinue or modify a signal system. FRA assigned the petition Docket Number FRA-2022-0056.
Specifically, BPRR requests to discontinue the centralized traffic control (CTC) system on the BPRR mainline in three locations: (1) between the insulated joints at mileposts (MPs) 141.9 and 149.00, (2) between MP 162.10 and 169.80, and (3) between MP 199.9 and 206.28. Several block signals, power switches, and approach signals would be removed from service, and “power switches will be replaced with powered DTMF switches with simulated OS locking circuits.” In support of its application, BPRR states that “the CTC system is no longer essential for the safe movement of traffic as current train activity is reduced,” and removal of the CTC system will improve “efficient operations.” BPRR also states that “there are no opposing train movements or fleeted trains with following moves.”
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment and a public hearing, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted at
Communications received by October 10, 2023 will be considered by FRA before final action is taken. Comments received after that date will be considered if practicable. Anyone can search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). Under 5 U.S.C. 553(c), the U.S. Department of Transportation (DOT) solicits comments from the public to better inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
Issued in Washington, DC.
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) summarized 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 October 10, 2023.
Written comments and recommendations for the proposed ICR should be submitted on regulations.gov to the docket, Docket No. FRA-2023-0002. All comments received will be posted without change to the docket, including any personal information provided. Please refer to the assigned OMB control number for each ICR, 2130-0545 and 2130-0576, respectively, in any correspondence submitted. FRA will summarize comments received in response to this notice in a subsequent notice, made available to the public, and include them in its information collection submission to OMB for approval.
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 regulations mandate. In summary, 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 ICRs that FRA will submit for OMB clearance as the PRA requires:
In this 60-day notice, FRA made adjustments that increased the previously approved burden hours from 350 hours to 353 hours. This increase, after a thorough review, is the result of a more accurate estimate of the annual responses for debrief and critique sessions under § 239.105 and emergency preparedness plans under § 239.101/201/203.
FRA also established requirements for low-location emergency exit path markings to assist occupants in reaching and operating emergency exits, particularly under conditions of limited visibility. Moreover, FRA added standards to ensure emergency lighting systems are provided in all passenger cars and enhanced requirements for the survivability of emergency lighting systems in new passenger cars.
In this 60-day notice, FRA has made adjustments that decreased the burden hours from 859 hours in the current inventory to 755 hours in the requested inventory. This decrease is more in line with the anticipated annual reporting of legible markings and instruction in passenger cars under § 238.123(e).
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.
Under part 211 of title 49 Code of Federal Regulations (CFR), this document provides the public notice that on June 25, 2023, Whitewater Valley Railroad (WVRR) petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR parts 215 (Railroad Freight Car Safety Standards) and 224 (Reflectorization of Rail Freight Rolling Stock). FRA assigned the petition Docket Number FRA-2023-0047.
Specifically, WVRR requested a special approval pursuant to 49 CFR 215.203,
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment and a public hearing, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted at
Communications received by October 10, 2023 will be considered by FRA
Issued in Washington, DC.
Federal Transit Administration (FTA), Department of Transportation (DOT).
Notice of funding opportunity (NOFO).
The Federal Transit Administration (FTA) announces the opportunity to apply for $13,460,978 in Fiscal Year (FY) 2022 and FY 2023 funding under the Pilot Program for Transit-Oriented Development Planning (TOD Pilot Program). As required by Federal public transportation law and subject to funding availability, funds will be awarded competitively to support comprehensive planning or site-specific planning associated with new fixed guideway and core capacity improvement projects. FTA may award additional funding that is made available to the TOD Pilot Program prior to the announcement of project selections.
Complete proposals must be submitted electronically through the
Prospective applicants should initiate the process by registering on the
April McLean-McCoy, FTA Office of Planning and Environment, (202) 366-7429, or
Section 20005(b) of the Moving Ahead for Progress in the 21st Century Act (MAP-21; Pub. L. 112-141), as amended by section 30009 of the Infrastructure Investment and Jobs Act (Pub. L. 117-58) (also called the Bipartisan Infrastructure Law (BIL)), authorizes FTA to award grants under the TOD Pilot Program in the amounts provided by 49 U.S.C. 5338(a)(2)(B). This funding opportunity is occurring under Federal Assistance Listing number 20.500.
This program supports FTA's priorities and objectives through investments that (1) renew our transit systems, (2) reduce greenhouse gas emissions from public transportation, (3) advance racial equity by removing transportation related disparities to all populations within a project area and increasing equitable access to project benefits, (4) maintain and create good-paying jobs with a free and fair choice to join a union, and (5) connect communities by increasing access to affordable transportation options. The TOD Pilot Program grants are competitively awarded to local communities to integrate land use and transportation planning with a new fixed guideway or core capacity improvement transit capital project as defined in Federal public transportation law (49 U.S.C. 5309(a)). (See Section C of this NOFO for more information about eligibility). FTA seeks to fund projects under the TOD Pilot Program that:
• Reduce greenhouse gas emissions in the transportation sector, incorporate evidence-based climate resilience measures and features, reduce the lifecycle greenhouse gas emissions from the project materials, and avoid adverse environmental impacts to air or water quality, wetlands, and endangered species, and address the disproportionate negative environmental impacts of transportation on disadvantaged communities, consistent with Executive Order 14008, Tackling the Climate Crisis at Home and Abroad (86 FR 7619).
• Create proportional impacts to all populations in a project area, remove transportation related disparities to all populations in a project area, and increase equitable access to project benefits, consistent with Executive Order 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government (86 FR 7009).
• Address equity and environmental justice, particularly for communities that have experienced decades of underinvestment and are most impacted by climate change, pollution, and environmental hazards, consistent with Executive Order 14008, Tackling the Climate Crisis at Home and Abroad (86 FR 7619).
• Support the creation of good-paying jobs with the free and fair choice to join a union and the incorporation of strong labor standards and training and placement programs, especially registered apprenticeships, in project planning stages, consistent with Executive Order 14025, Worker Organizing and Empowerment (86 FR 22829), and Executive Order 14052, Implementation of the Infrastructure Investment and Jobs Act (86 FR 64335).
• Support wealth creation, consistent with the Department's Equity Action Plan, through the inclusion of local inclusive economic development and entrepreneurship such as the utilization of Disadvantaged Business Enterprises, Minority-owned Businesses, Women-owned Businesses, or 8(a) firms.
• Qualify for Transportation Infrastructure Finance and Innovation Act (TIFIA) 49 and Railroad Rehabilitation and Improvement Financing (RRIF) TOD financing program(s) once the TOD planning study is complete.
Additionally, in support of the Federal House America Initiative led by the Department of Housing and Urban Development, DOT, through this NOFO, is looking for opportunities to strongly prioritize TOD planning grants in areas of high incidence rates of homelessness, in the hope of providing opportunities
The TOD Pilot Program intends to fund comprehensive planning that supports economic development, increased transit ridership and value capture multimodal connectivity, accessibility, increased transit access for pedestrian and bicycle traffic, and mixed-use and mixed-income development near transit stations; delivers 40 percent of the overall benefits of the planning work to Historically Disadvantaged Communities (defined below), consistent with the Justice40 Initiative; and supports the development of affordable housing, mitigates climate change, and addresses challenges facing environmental justice populations, and homelessness. The TOD Pilot Program also encourages the identification of infrastructure needs and engagement with the private sector. FTA also encourages TOD in areas where communities are trying to preserve, protect, and increase the supply of affordable housing. For assets that were acquired with federal assistance and are no longer needed for the originally authorized purpose, the Fiscal Year 2022 National Defense Authorization Act (NDAA) (Pub. L. 117-81) allows FTA to authorize the transfer of the asset to a local governmental authority, non-profit organization, or other third-party entity if, among other factors, it will be used for TOD that includes affordable housing (49 U.S.C. 5334(h)(1)).
FTA is seeking comprehensive or site-specific planning projects that cover an entire transit capital project corridor. To ensure that any proposed planning work both reflects the needs and aspirations of the local community and results in concrete, specific deliverables and outcomes, transit project sponsors must partner with entities with land use planning authority in the transit project corridor to conduct the planning work.
FTA intends to award all available funding in the form of grants to selected applicants responding to this NOFO. A total of $13,460,978 will be made available through this NOFO. The authorized funding level in BIL is $13,432,051 in Fiscal Year (FY) 2023 funds, with an additional $28,927 remaining from the FY 2022 appropriation. Additional funds made available prior to project selection may be allocated to eligible projects. Only proposals from eligible recipients for eligible activities will be considered for funding. Due to funding limitations, applicants that are selected for funding may receive less than the amount originally requested and are thus encouraged to identify a scaled funding request in their application.
In response to the FY 2022 NOFO (87 FR 32069, which closed on July 25, 2022), the TOD Pilot Program received applications for 23 eligible projects requesting a total of $17,332,094. Of the 23 eligible applications received, 19 projects were funded at a total of $13,131,094.
FTA will grant pre-award authority, consistent with 2 CFR 200.458, for selected projects to incur costs beginning on the date FY 2023 project selections are announced on FTA's website. Funds are available for obligation for four fiscal years after the fiscal year in which the competitive awards are announced. Funds are available only for projects that have not incurred costs prior to the announcement of project selections.
Applicants to the TOD Pilot Program must be a State or States, U.S. Territory, or local governmental authority, and an FTA grant recipient (
Only one application per transit capital project corridor may be submitted to FTA. Multiple applications submitted for a single transit capital project corridor indicate that partnerships are not in place, and FTA may reject all of the applications. FTA will accept multiple applications for the same corridor if each application is a site-specific application, the applications are submitted by separate applicants with different land-use authorities, and a given application does not overlap with any other application that would cover the same site.
In general, the maximum Federal funding share for proposals is 80 percent. Proposals that support planning activities that assist parts of an urbanized area or rural area with lower population density or lower average income levels compared to the applicable area or adjoining areas are eligible to receive a Federal funding share of no less than 90 percent and applicants may request a share up to 100 percent (see the March 21, 2023 Dear Colleague letter:
Eligible sources of non-Federal match include the following: cash from non-Federal sources (other than revenues from providing public transportation services); revenues derived from the sale of advertising and concessions; amounts received under a service agreement with a State or local social service agency or private social service organization; revenues generated from value capture financing mechanisms; funds from an undistributed cash surplus; replacement or depreciation cash fund or reserve; or new funding. In-kind contributions are permitted. Transportation Development Credits (formerly referred to as Toll Revenue Credits) may not be used to satisfy the non-Federal match requirement.
Any comprehensive or site-specific planning work proposed for funding under the TOD Pilot Program must be associated with an eligible transit capital project. To be eligible, the proposed transit capital project must be a new fixed guideway project or a core capacity improvement project, as defined by Federal public transportation law (49 U.S.C. 5302(8)).
A fixed guideway is a public transportation facility:
(A) Using and occupying a separate right-of-way for the exclusive use of public transportation;
(B) Using rail;
(C) Using a fixed catenary system;
(D) For a passenger ferry system; or
(E) For a bus rapid transit system.
A new fixed guideway capital project is defined in (49 U.S.C. 5309(a)) to be:
(A) A new fixed guideway project that is a minimum operable segment or
(B) A fixed guideway bus rapid transit project that is a minimum operable segment or an extension to an existing bus rapid transit system.
A fixed guideway bus rapid transit project is defined in (49 U.S.C. 5309(a)) as a bus capital project:
(A) In which the majority of the project operates in a separated right-of-way dedicated for public transportation use during peak periods;
(B) That represents a substantial investment in a single route in a defined corridor or subarea; and
(C) That includes features that emulate the services provided by rail fixed guideway public transportation systems, including:
(i) Defined stations;
(ii) Traffic signal priority for public transportation vehicles;
(iii) Short headway bidirectional services for a substantial part of weekdays and weekend days; and
(iv) Any other features the Secretary may determine are necessary to produce high-quality public transportation services that emulate the services provided by rail fixed guideway public transportation systems.
A core capacity improvement project is defined by 49 U.S.C. 5309(a) to mean a substantial corridor-based capital investment in an existing fixed guideway system that increases the capacity of the corridor by not less than 10 percent. The term does not include project elements designed to maintain a state of good repair of the existing fixed guideway system.
Comprehensive or site-specific planning work in a corridor for a transit capital project that does not meet the statutory definitions above of either a new fixed guideway project or a core capacity improvement project is not eligible under the TOD Pilot Program.
As outlined in the Application Review Information section below, any comprehensive or site-specific planning funded under the TOD Pilot Program must address all six factors set forth in section 20005(b)(2) of MAP-21, as amended by section 30009 of BIL. Additionally, the comprehensive or site-specific planning effort must advance the metropolitan planning organization's metropolitan transportation plan. Applicants must establish performance criteria for the planning effort.
The following are examples of the types of substantial deliverables that may result from the comprehensive or site-specific planning work. Substantial deliverables are reports, plans, and other materials that represent the key accomplishments of the comprehensive planning effort and that must be submitted to FTA as each is completed. Substantial deliverables may include, but are not restricted to, the following:
i. A comprehensive plan report that includes corridor development policies and station development plans comprising the corridor or the specific site, a proposed timeline, and recommended financing strategies for these plans;
ii. A strategic plan report that includes corridor specific planning strategies and program recommendations to support comprehensive planning;
iii. Revised TOD-focused zoning codes and/or resolutions;
iv. A report evaluating and recommending financial tools to encourage TOD implementation such as land banking, value capture, and development financing;
v. Affordable Housing:
1. Policies that reduce regulatory barriers to the development of affordable housing such as inclusionary zoning that specifies a percentage of new units affordable for targeted incomes or the provision of density bonuses for the creation of affordable housing units;
2. Policies that support affordable rental opportunities;
3. Policies that reduce parking standards;
4. Policies that support permanent affordable housing for disadvantaged groups in areas with high incidence rates of homelessness; and
5. Policies that encourage streamlined permitting for affordable housing units;
vi. Policies to encourage TOD, including actions that reduce regulatory barriers that unnecessarily raise the costs of housing development or impede the development of affordable housing;
vii. Policies to encourage TOD, including actions that increase access to environmental justice populations, reduces greenhouse gas emissions, and the effects of climate change;
viii. Local or regional resolutions to implement TOD plans and/or establish TOD funding mechanisms;
ix. Policies to prioritize TOD in areas with high incidence rates of homelessness for localities to address homelessness holistically through their planning processes.
FTA will not make awards for the following activities:
i. Transit project development activities that would be reimbursable under an FTA capital grant, such as project planning, the design and engineering of stations and other facilities, environmental analyses needed for the transit capital project, or costs associated with specific joint development activities; and
ii. Capital projects, such as land acquisition, construction, and utility relocation.
Applications must be submitted electronically through
Failure to submit information as requested can delay review or disqualify the application. Proposals must include a completed SF-424 Mandatory form and the following attachments to the completed SF-424:
i. A completed Applicant and Proposal Profile supplemental form for the TOD Pilot Program (supplemental form) found on the FTA website at
ii. A map of the proposed study area showing the transit project alignment and stations, major roadways, major landmarks, and the geographic boundaries of the proposed comprehensive planning activities;
iii. Documentation of a partnership between the transit project sponsor and an entity in the project corridor with land use planning authority to conduct the comprehensive planning work, if the
iv. Documentation of any funding commitments for the proposed comprehensive or site-specific planning work.
Information such as the applicant's name, Federal amount requested, local match amount, and description of the study area, are requested in varying degrees of detail on both the SF-424 form and supplemental form. Applicants must fill in all fields unless stated otherwise on the forms. Applicants should use both the “Check Package for Errors” and the “Validate Form” buttons on both forms to check all required fields and ensure that the Federal and local amounts specified are consistent. In the event of errors with the supplemental form, FTA recommends saving the form on your computer and ensuring that JavaScript is enabled in your PDF reader. The information listed below must be included on the SF-424 and supplemental forms for TOD Pilot Program funding applications.
The SF-424 and supplemental form will prompt applicants to address the following items:
1. Provide the name of the lead applicant and, if applicable, the specific co-sponsors submitting the application.
2. Provide the applicant's Unique Entity Identifier (UEI), assigned by SAM.gov.
3. Provide contact information including: Contact name, title, address, phone number, and email address.
4. Specify the Congressional district(s) where the planning project will take place.
5. Identify the project title and project scope to be funded, including anticipated substantial deliverables and the milestones at which they will be provided to FTA.
6. Identify and describe an eligible transit project that meets the requirements of Section C, subsection 3 of this notice.
7. Provide evidence of a partnership between the transit project sponsor and at least one agency with land use authority in the transit capital project corridor, as described earlier in this subsection.
8. Address the six factors set forth in MAP-21 Section 20005(b)(2).
9. Provide evidence of a partnership between transit project sponsor and an entity in the project corridor and those that support unhoused populations and address affordable housing, such as cities, municipalities, non-profit organizations, and housing authority.
10. Address each evaluation criterion separately, demonstrating how the project responds to each criterion as described in Section E.
11. Provide a line-item budget for the total planning effort, with enough detail to indicate the various key components of the comprehensive planning project.
12. Identify the Federal amount requested.
13. Document the matching funds, including amount and source of the match (may include local or private sector financial participation in the project). Describe whether the matching funds are committed or planned and include documentation of the commitments.
14. Provide explanation of the scalability of the project.
15. Address whether other Federal funds have been sought or received for the comprehensive or site-specific planning project.
16. Provide a schedule and process for the development of the comprehensive plan that includes anticipated dates for incorporating the planning work effort into the region's unified planning work program, completing major tasks and substantial deliverables, and completing the overall planning effort.
17. Describe how the comprehensive or site-specific planning work advances the metropolitan transportation plan of the metropolitan planning organization.
18. Propose performance criteria for the development and implementation of the comprehensive or site-specific planning work.
19. Identify potential State, local, or other impediments to the implementation of the comprehensive plan or site-specific plan, and how the work will address them.
20. Describe how the comprehensive or site-specific planning work addresses climate change and elevates challenges facing environmental justice populations
21. Describe how the comprehensive or site-specific planning work allows 40 percent of the overall benefits to flow to Historically Disadvantaged Communities (defined below).
22. Describe how the comprehensive or site-specific planning work prioritizes TOD plans in areas with high incidence rates of homelessness and addresses homelessness holistically through their planning processes. Describe how the comprehensive or site-specific planning work prioritizes TOD plans in areas with high incidence rates of homelessness and addresses housing affordability holistically through their planning processes.
23. Describe how the comprehensive or site-specific planning work addresses the historic displacement of historically disadvantaged populations and how it seeks to mitigate the displacement or improve the conditions for populations at risk of displacement, if possible. In addition, describe how local residents surrounding the comprehensive or site-specific planning work will be included in community engagement, especially those who have been historically excluded.
24. Describe how the comprehensive or site-specific planning work includes value capture elements.
25. Describe the community input process for your comprehensive or site-specific planning work.
26. Identify infrastructure needs associated with the eligible project.
27. Describe how the comprehensive or site-specific planning work incorporates affordable housing or other mixed-income elements.
28. Applicants must address how the project will consider climate change and environmental justice in the planning stage and in project delivery. In particular, applicants must address how the project reduces greenhouse gas emissions in the transportation sector, incorporates evidence-based climate resilience measures and features, and reduces the lifecycle greenhouse gas emissions from the project materials. Applicants also must address the extent to which the project avoids adverse environmental impacts to air or water quality, wetlands, and endangered species, as well as address disproportionate negative impacts of climate change and pollution on disadvantaged communities, including natural disasters, with a focus on prevention, response, and recovery.
29. Applicants must address how their project will include an equity assessment that evaluates whether a project will create proportional impacts and remove transportation related disparities to all populations in a project area. Applicants must demonstrate how meaningful public engagement will occur throughout a project's life cycle. Applicants must address how project benefits will increase affordable transportation options, improve safety, connect Americans to good-paying jobs, fight climate change, and/or improve access to resources and quality of life.
30. Applicants must address all the applicable criteria and priority considerations identified in Section E.
FTA will also give priority consideration to projects that support the Justice40 initiative. In support of
Project budgets must show how different funding sources will share in each activity and present the data in dollars and percentages. The budget should identify other Federal funds the applicant is applying for or has been awarded, if any, that the applicant intends to use. Funding sources should be grouped into three categories: non-Federal, the Pilot Program for Transit-Oriented Development Planning request, and other Federal, with specific amounts from each funding source provided.
Due to funding limitations, projects that are selected for funding may receive less than the amount originally requested, even if an application did not present a scaled project option. In those cases, applicants must be able to demonstrate that the proposed projects are still viable and can be completed with the amount awarded.
Sharing of Application Information—The Department may share application information within the Department or with other Federal agencies if the Department determines that sharing is relevant to the respective program's objectives.
Each applicant is required to: (1) be registered in SAM before submitting an application; (2) provide a valid unique entity identifier in its application; and (3) continue to maintain an active SAM registration with current information at all times during which the applicant has an active Federal award or an application or plan under consideration by FTA. FTA may not make an award until the applicant has complied with all applicable unique entity identifier and SAM requirements. If an applicant has not fully complied with the requirements by the time FTA is ready to make an award, FTA may determine that the applicant is not qualified to receive an award and use that determination as a basis for making a Federal award to another applicant. These requirements do not apply if the applicant is excepted from registration per 2 CFR 25.110. SAM registration takes approximately 3-5 business days, but FTA recommends allowing ample time, up to several weeks, for completion of all steps. For additional information on obtaining a unique entity identifier, please visit
Project proposals must be submitted electronically through
Within 48 hours after submitting an electronic application, the applicant should receive two email messages from
FTA urges applicants to submit their applications at least 96 hours prior to the due date to allow time to receive the validation messages and to correct any problems that may have caused a rejection notification.
Applicants are encouraged to begin the registration process on the
See Section C of this NOFO for detailed eligibility requirements. FTA emphasizes that any comprehensive or site-specific planning projects funded through the TOD Pilot Program must be associated with an eligible transit
Applicants are encouraged to identify scaled funding options in case insufficient funding is available to fund a project at the full requested amount. If an applicant indicates that a project is scalable, the applicant must provide an appropriate minimum funding amount that will fund an eligible project that achieves the objectives of the program and meets all relevant program requirements. The applicant must provide a clear explanation of how the project budget would be affected by a reduced award. FTA may award a lesser amount regardless of whether a scalable option is provided.
All applications must be submitted via the
FTA encourages applicants to:
• Demonstrate whether they have considered climate change, housing affordability, and environmental justice in terms of the transportation planning process or anticipated design components with outcomes that address climate change (
• Describe what specific climate change, affordable housing, or environmental justice activities have been incorporated, including whether a project supports a Climate Action Plan, whether an equitable development plan has been prepared, and whether tools such as the Environmental Protection Agency's (EPA) EJSCREEN at:
• Address how a project is related to housing or land use reforms to increase density, and helps to reduce climate impacts. The application should also describe specific and direct ways the project will mitigate or reduce climate change impacts including any components that reduce emissions, promote energy efficiency, incorporate electrification or low emission or zero emission vehicle infrastructure, increase resilience, recycle or redevelop existing infrastructure or if located in a floodplain be constructed or upgraded consistent with the Federal Flood Risk Management Standard, to the extent consistent with current law.
In addition, FTA will consider benefits to Environmental Justice (EJ) populations (E.O. 12898) when reviewing applications received under this program.
• Identify any EJ populations located within the proposed service area and describe anticipated benefits to that population(s) should the applicant receive a grant under this program. A formal EJ analysis that is typically included in transportation planning or environmental reviews is not requested.
Project proposals will be evaluated primarily on the responses provided in the supplemental form. Additional information may be provided to support the responses; however, any additional documentation must be directly referenced on the supplemental form, including the file name where the additional information can be found. Applications will be evaluated based on the quality and extent to which the following evaluation criteria are addressed.
Whether the project funded under the TOD Pilot Program addresses all six factors set forth in Section 20005(b)(2) of MAP-21, as amended by section 30009 of BIL:
i. enhances economic development, ridership, and other goals established during the project development and engineering processes;
ii. facilitates multimodal connectivity and accessibility;
iii. increases access to transit hubs for pedestrian and bicycle traffic;
iv. enables mixed-use development;
v. encourages affordable housing, particularly in areas with high incidence rates of homelessness;
vi. identifies infrastructure needs associated with the eligible project; and
vii. includes private sector participation.
FTA will evaluate each project to determine the need for funding based on the following factors:
i. How the proposed work will advance TOD implementation in the corridor and region;
ii. Justification as to why Federal funds are needed for the proposed work;
iii. Extent to which the transit project corridor could benefit from TOD planning;
iv. Extent to which TOD planning will address climate change, affordable housing, and challenges facing environmental justice populations.
FTA will evaluate the strength of the work plan, schedule, and process included in the application based on the following factors:
i. Potential state, local, or other impediments to the implementation of the comprehensive or site-specific plan, and how the workplan will address them;
ii. Extent to which the schedule contains sufficient detail, identifies all steps needed to implement the work proposed, and is achievable;
iii. The proportion of the project corridor covered by the work plan;
iv. Extent of partnerships, including how community stakeholders will engage and consider the needs of those traditionally underserved by existing transportation systems, such as low-income and minority households, and unhoused populations, who may face challenges accessing employment and other services.
v. The partnerships' technical capability to develop, adopt, and implement the comprehensive plans, based on FTA's assessment of the applicant's description of the policy formation, implementation, and financial roles of the partners, and the roles and responsibilities of proposed staff;
vi. Extent to which this TOD planning effort increases access for environmental justice populations and allows them to participate in this TOD planning effort;
vii. Extent to which the TOD planning effort increases affordable housing supply;
viii. Extent to which the comprehensive planning work will reduce greenhouse gas emissions and the effects of climate change;
ix. How the performance measures identified in the application relate to the
FTA will assess the status of local matching funds for the planning work. In general, the maximum Federal funding share for proposals is 80 percent. Proposals that support planning activities that assist parts of an urbanized area or rural area with lower population density or lower average income levels compared to the applicable area or adjoining areas will receive a Federal funding share of no less than 90 percent and applicants may request a share up to 100 percent (see the March 21, 2023, Dear Colleague letter:
Applications demonstrating that matching funds for the proposed comprehensive planning work are already committed will receive higher ratings from FTA on this factor. Proposed comprehensive planning projects for which matching funding sources have been identified, but are not yet committed, will be given lower ratings under this factor by FTA, as will proposed comprehensive planning projects for which in-kind contributions constitute the primary or sole source of match.
An FTA technical evaluation committee will verify each proposal's eligibility and evaluate proposals based on the published evaluation criteria. FTA may request additional information from applicants, if necessary.
After completing the merit review, among projects of similar merit, DOT will prioritize projects that:
1. Significantly reduce greenhouse gas emissions in the transportation sector, such as through utilizing fiscally responsible land use; increasing the use of energy efficient modes of transportation like transit, rail, and active transportation; transitioning to clean vehicles and fuels, including through electrification; and/or incorporating carbon-reducing uses of the right-of-way or other carbon reduction strategies.
2. Incorporate evidence-based climate resilience measures or features, such as using best-available climate data sets, information resources, and decision-support tools (including USDOT and other federal resources) to assess the climate-related vulnerability and risk of the project; developing and deploying resilience solutions to address those risks; incorporating nature-based solutions; constructing or upgrading infrastructure using the Federal Flood Risk Management Standard, consistent with current law; and monitoring performance of climate resilience measures.
3. Address the disproportionate negative environmental impacts of transportation on disadvantaged communities; such as considering the benefits and burdens a project may create, and what communities would be most affected.
4. Avoid adverse environmental impacts to air or water quality, wetlands, and endangered species; such as through reduction in Clean Air Act criteria pollutants and greenhouse gases, improved stormwater management, or improved habitat connectivity.
5. Enable all people within the multimodal transportation networks to reach their desired destination safely, affordably, and with a comparable level of efficiency and ease.
6. Reconnect communities and mitigate neighborhood bifurcation through land bridges, caps, lids, linear parks, investments in walking, biking and rolling assets, and other solutions.
7. Address the disproportional impacts of crashes on underserved communities, including individuals with disabilities.
8. Expand access to critical community services such as education and healthcare through mass transit services.
9. Increase housing supply, particularly location-efficient affordable housing, locally-driven land use and zoning reform, rural main street revitalization, growth management, and transit-oriented development.
10. Address the unique challenges rural and Tribal communities face related to mobility and economic development, including isolation, transportation cost burden, and traffic safety (pursuant to DOT's Rural Opportunities to Use Transportation for Economic Success (ROUTES) initiative).
11. Encourage an increase in housing supply, particularly location-efficient affordable housing, locally-driven land use and zoning reform, rural main street revitalization, growth management, and transit-oriented development, pursuant to the White House Housing Supply Action Plan (
12. Incorporate and support integrated land use, economic development, and transportation planning to improve the movement of people and goods and local fiscal health, and to facilitate greater public and private investments and strategies in land-use productivity, including rural main street revitalization or an increase in the production or preservation of location-efficient housing.
13. Provide the plan to conduct meaningful public involvement that includes underserved communities throughout the project lifecycle and uses a meaningful public involvement process. Additionally, consider the benefits and potential burdens a project may create, who would experience them, and how they may be measured over time, with a specific focus on how the benefits and potential burdens will impact underserved/disadvantaged communities.
14. Benefit underserved/Historically Disadvantaged Communities, including benefits that would accrue to underserved/Historically Disadvantaged Communities outside of the specific project area. Use DOT's Transportation Disadvantaged Census Tracts (arcgis.com) tool to identify whether the project impact area encompasses disadvantaged communities. A screenshot of the results is encouraged. Furthermore, applicants are encouraged to use equity screening tools such as DOT's STEAP (Screening Tool for Equity Analysis of Projects) (
In support of Executive Order 14008, and consistent with OMB's Interim Guidance for the Justice40 Initiative, Historically Disadvantaged Communities include (a) certain qualifying census tracts, (b) any Tribal land, or (c) any territory or possession of the United States. Applicants are encouraged to use Climate & Economic Justice Screening Tool (CEJST), a new tool by the White House Council on Environmental Quality (CEQ), that aims to help Federal agencies identify disadvantaged communities as part of the Justice40 initiative to accomplish the goal that 40 percent of benefits from certain federal investment reach disadvantaged communities. Applicants should use CEJST as the primary tool to identify disadvantaged communities (Justice40 communities). Applicants are strongly encouraged to use the USDOT Equitable Transportation Community (ETC) Explorer to understand how their community or project area is
FTA will evaluate the proposals to determine the extent that the proposed project will address affordable housing needs, provide equitable housing choices for environmental justice populations, and avoid displacement of low-income households and existing small businesses.
Among the factors in determining the allocation of program funds, FTA may consider geographic diversity, diversity in the size of the grantees receiving funding, or the applicant's receipt of other competitive awards. Additionally, taking into consideration the findings of the technical evaluation committee, the FTA Administrator will determine the final selection of projects for program funding.
Prior to making an award, FTA is required to review and consider any information about the applicant that is in the Federal Awardee Performance and Integrity Information Systems (FAPIIS) accessible through SAM. An applicant may review and comment on information about itself that a Federal awarding agency previously entered. FTA will consider any comments by the applicant, in addition to the other information in the designated integrity and performance system, in making a judgment about the applicant's integrity, business ethics, and record of performance under Federal awards when completing the review of risk posed by applicants as described in the Office of Management and Budget's Uniform Requirements for Federal Awards (2 CFR 200.205).
The FTA Administrator will announce the final project selections on the FTA website. Project recipients should contact their FTA Regional Offices for additional information regarding allocations for projects under the TOD Pilot Program.
FTA will issue specific guidance to recipients regarding pre-award authority at the time of selection. FTA does not provide pre-award authority for competitive funds until projects are selected and, even then, there are Federal requirements that must be met before costs are incurred. Funds under this NOFO cannot be used to reimburse applicants for otherwise eligible expenses incurred prior to FTA award of a Grant Agreement until FTA has issued pre-award authority for selected projects, or unless FTA has issued a “Letter of No Prejudice” for the project before the expenses are incurred. For more information about FTA's policy on pre-award authority, please see the most recent Apportionment Notice at: FTA Fiscal Year 2023 Apportionments, Allocations and Program Information | US Department of Transportation (
If selected, awardees will apply for a grant through FTA's Transit Award Management System (TrAMS). Recipients of TOD Pilot Program funds are subject to the grant requirements of the Section 5303 Metropolitan Planning program, including those of FTA Circular 8100.1C (
Additionally, recipients of TOD Pilot Program funds are required to participate in a briefing on the USDOT-Build America Bureau, TIFIA/RRIF financing program.
FTA encourages applicants to notify the appropriate metropolitan planning organizations in areas likely to be served by the funds made available under this program. Selected projects must be incorporated into the unified planning work programs of metropolitan areas before they are eligible for FTA funding or pre-award authority.
The applicant assures that it will comply with all applicable Federal statutes, regulations, executive orders, directives, FTA circulars, and other Federal administrative requirements in carrying out any project supported by the FTA grant. The applicant acknowledges that it is under a continuing obligation to comply with the terms and conditions of the grant agreement issued for its project with FTA. The applicant understands that Federal laws, regulations, policies, and administrative practices might be modified from time to time and may affect the implementation of the project. The applicant agrees that the most recent Federal requirements will apply to the project, unless FTA issues a written determination otherwise. The applicant must submit the Certifications and Assurances (
FTA requires that its recipients receiving planning, capital, and/or operating assistance that will award prime contracts exceeding $250,000 in FTA funds in a Federal fiscal year comply with Department of Transportation Disadvantaged Business Enterprise (DBE) program regulations (49 CFR part 26). Applicants should expect to include any funds awarded, excluding those to be used for vehicle procurements, in setting their overall DBE goal.
As a condition of a grant award, grant recipients must demonstrate that the recipient has a plan for compliance with civil rights obligations and nondiscrimination laws, including Title VI of the Civil Rights Act of 1964 and implementing regulations (49 CFR part 21), the Americans with Disabilities Act of 1990 (ADA), Section 504 of the Rehabilitation Act, all other civil rights requirements, and accompanying regulations. This should include a current Title VI plan, completed Community Participation Plan, and a plan to address any legacy infrastructure or facilities that are not compliant with ADA standards. DOT's and FTA's Office of Civil Rights may work with awarded grant recipients to ensure full compliance with Federal civil rights requirements.
Recipients and subrecipients are also encouraged to incorporate program evaluation including associated data collection activities from the outset of their program design and implementation to meaningfully document and measure their progress towards meeting an agency priority goal(s). Title I of the Foundations for Evidence-Based Policymaking Act of 2018 (Evidence Act), (Public Law 115-435) urges Federal awarding agencies and Federal assistance recipients and subrecipients to use program evaluation as a critical tool to learn, to improve equitable delivery, and to elevate program service and delivery across the program lifecycle. Evaluation means “an assessment using systematic data collection and analysis of one or more programs, policies, and organizations intended to assess their effectiveness and efficiency” (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).
For grant recipients receiving an award, 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).
Post-award reporting requirements include submission of Federal Financial Reports and Milestone Progress Reports in FTA's electronic grants management system on a quarterly basis. Applicants should include any goals, targets, and indicators referenced in their application to the project in the Executive Summary of the TrAMS application. Awardees must also submit copies of the substantial deliverables identified in the work plan to the FTA regional office at the corresponding milestones.
As part of completing the annual certifications and assurances required of FTA grant recipients, a successful applicant must report on the suspension or debarment status of itself and its principals. If the award recipient's active grants, cooperative agreements, and procurement contracts from all Federal awarding agencies exceeds $10,000,000 for any period of time during the period of performance of an award made pursuant to this Notice, the recipient must comply with the Recipient Integrity and Performance Matters reporting requirements described in appendix XII to 2 CFR part 200.
It is the policy of the United States to strengthen the security and resilience of its critical infrastructure against both physical and cyber threats. Each applicant selected for Federal funding under this notice must demonstrate, prior to the signing of the grant agreement, effort to consider and address physical and cyber security risks relevant to the transportation mode and type and scale of the project. Projects that have not appropriately considered and addressed physical and cyber security and resilience in their planning, design, and project oversight, as determined by the Department and the Department of Homeland Security, will be required to do so before receiving funds for construction, consistent with Presidential Policy Directive 21—Critical Infrastructure Security and Resilience and the National Security Presidential Improving Cybersecurity for Critical Infrastructure Control Systems.
As expressed in Executive Order 14005, `Ensuring the Future Is Made in All of America by All of America's Workers' (86 FR 7475), the executive branch should maximize, consistent with law, the use of goods, products, and materials produced in, and services offered in, the United States. Funds made available under this notice are subject to the domestic preference requirements:
(a) Except as provided in 49 CFR 661.7 and 661.11, no funds may be obligated by FTA for a grantee project unless all iron, steel, manufactured products, and construction materials used in the project are produced in the United States.
(b) All steel and iron manufacturing processes must take place in the United States, except metallurgical processes involving refinement of steel additives.
(c) The steel and iron requirements apply to all construction materials made primarily of steel or iron and used in infrastructure projects such as transit or maintenance facilities, rail lines, and bridges. These items include, but are not limited to, structural steel or iron, steel or iron beams and columns, running rail and contact rail. These requirements do not apply to steel or iron used as components or subcomponents of other manufactured products or rolling stock, or to bimetallic power rail incorporating steel or iron components.
(d) For a manufactured product to be considered produced in the United States:
(1) All of the manufacturing processes for the product must take place in the United States; and
(2) All of the components of the product must be of U.S. origin. A component is considered of U.S. origin if it is manufactured in the United States, regardless of the origin of its subcomponents.
The Department expects all applicants to comply with that requirement.
For program-specific questions, please contact April McLean-McCoy, Office of Planning and Environment, (202) 366-7429, email:
For issues with GRANTS.GOV, please contact GRANTS.GOV by phone at 1-800-518-4726 or by email at
This program is not subject to Executive Order 12372,
Bureau of Transportation Statistics (BTS), Office of the Assistant Secretary for Research and Technology (OST-R), U.S. Department of Transportation.
Notice and request for comments.
In accordance with the requirements of section 3506(c)(2)(A) of Title 44 of the U.S. Code (Paperwork Reduction Act of 1995), this notice announces the intention of BTS to request the Office of Management and Budget (OMB) to approve a new data collection: SafeMTS—Voluntary Near-Miss Reporting and Analysis System.
Written comments should be submitted by October 10, 2023.
To ensure that your comments are not entered more than once into the docket, submit comments by only one of the following methods:
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•
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Allison Fischman, Office of Safety Data and Analysis, Bureau of Transportation Statistics, Office of the Assistant Secretary for Research and Technology, U.S. Department of Transportation, RTS-35, 1200 New Jersey Avenue SE, Washington, DC 20590-0001,
In August 2022, the Maritime Administration's (MARAD) Office of Safety and BTS signed an Interagency Agreement (IAA) to develop and implement SafeMTS, a voluntary program for confidential reporting of `near-misses' occurring on vessels within the Maritime Transportation System (MTS). The SafeMTS program provides a trusted, proactive means for the maritime industry to report sensitive and proprietary safety information, and to identify early warnings of safety problems and potential safety issues by uncovering hidden, at-risk conditions not previously exposed from analysis of reportable accidents and incidents. Companies participating in SafeMTS are voluntarily submitting safety data. There is no regulatory requirement to submit such data.
The scope of SafeMTS includes a broad range of data categories to promote safe operations and appropriate risk management, which adds a learning component to assist the maritime industry in achieving improved safety performance. BTS will be the repository for the data and will analyze and aggregate information proffered under this program. BTS will publish aggregated analyses providing information on potential causal factors and trends or patterns before safety is compromised and affording continuous improvement opportunities by focusing on repairing impediments to safety. This information collection is necessary to aid MARAD, the maritime industry, and other stakeholders in identifying safety trends and causes of near-miss incidents.
Working with subject matter experts, BTS will then aggregate and further analyze these reports to identify potential causal factors and trends. All data reviewers would be subject to nondisclosure requirements mandated by CIPSEA. The results of these aggregated analyses will be distributed by BTS through publications, meetings, and other forms. Periodic industry meetings may be scheduled by MARAD or industry to discuss the data analysis and trend results, as well as share ideas and process improvements for preventing recurrence.
In August 2022, BTS and MARAD signed an IAA to develop and implement SafeMTS, a voluntary program for confidential reporting of `near-misses' occurring on vessels. The goal of the voluntary near-miss reporting system is to provide BTS with essential information about accident precursors and other hazards. Under the program, BTS will develop and publish aggregate analyses that the industry and all MTS stakeholders can use—in conjunction with incident reports and other sources of information—to reduce safety and environmental risks and continue building a more robust safety culture within the maritime industry.
BTS, within the U.S. Department of Transportation (U.S. DOT), is an objective supplier of statistically sound baseline, contextual, and trend information used to shape
There is currently no reporting regime in place for maritime industry near-miss or safety incidents and other non-casualty/reportable safety matters. Marine casualties and many other incidents are reportable via separate regulations under either OSHA (Occupational Safety and Health Administration) or USCG (U.S. Coast Guard) jurisdiction. However, near-miss reporting is not required under current regulations, and no industrywide database of near-miss events exists for the maritime industry. A consolidated database of near-miss incident data would allow for analysis and dissemination of key findings to the industry for use in advancing maritime transportation safety.
The SafeMTS program, established by MARAD and BTS as a joint program, aims to fill this gap by establishing a confidential safety data system to collect and analyze voluntarily reported, safety-related data from the maritime industry to advance marine transportation safety. A broad set of existing data will be captured from industry partners and analyzed to identify critical safety-related trends that could prevent incidents or identify otherwise non-correlated events. With a broad set of data that includes protection from discovery as mandated by industry and robust data analytics, potential hazards of maritime operations can be identified and shared across the industry so corrective actions can be taken to improve safety. The benefit of data analytics in this area has been discussed in numerous studies, National Academies publications, reports, and articles for over two decades. This program will provide MARAD, in partnership with industry, with the ability to identify critical safety issues and concerns and leverage this information to advance maritime safety.
Respondents who report near-miss incidents will be asked to submit their data and pertinent supplemental information. Respondents will submit the report electronically to BTS. Respondents will be asked to provide information such as: time and location of the event; a short description of the event and operating conditions that existed at the time of the event; contributing factors to the event; results of an investigation or safety analysis report; any corrective actions taken as a result of the event; and any other information that might be useful in determining ways to prevents such events from occurring.
Office of Foreign Assets Control, Treasury.
Notice
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of persons that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List (SDN List) based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them. OFAC is also publishing updates to the identifying information of three persons currently included on the SDN List.
See Supplementary Information section for effective date(s).
OFAC: Andrea Gacki, Director, tel.: 202-622-2490; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel.: 202-622-4855; or the Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
A. On July 20, 2023, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following persons are blocked under the relevant sanctions authority listed below.
1. IVANOVA, Tatyana Grigoryevna, Russia; Kyrgyzstan; DOB 02 May 1975; nationality Russia; Gender Female (individual) [RUSSIA-EO14024].
Designated pursuant to sections 1(a)(i) of Executive Order 14024 of April 15, 2021, “Blocking Property With Respect To Specified Harmful Foreign Activities of the Government of the Russian Federation,” 86 FR 20249, 3 CFR, 2021 Comp., p. 542 (Apr. 15, 2021) (E.O. 14024) for operating or having operated in the electronics sector of the Russian Federation economy.
2. CVETIC, Ivan, Serbia; DOB 29 Apr 1976; POB Serbia; nationality Serbia; Gender Male; Passport 014236438 (Serbia) expires 20 May 2029 (individual) [RUSSIA-EO14024] (Linked To: LIMITED LIABILITY COMPANY AK MICROTECH).
Designated pursuant to section 1(a)(vi)(B) of E.O. 14024 for having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of Limited Liability Company AK Microtech, a person whose property and interests in property are blocked pursuant to E.O. 14024.
1. SCIENTIFIC PRODUCTION COMPANY OPTOLINK (a.k.a. LIMITED LIABILITY COMPANY RESEARCH AND PRODUCTION COMPANY OPTOLINK; a.k.a. LLC RPC OPTOLINK; a.k.a. NPK OPTOLINK LLC; a.k.a. OOO NPK OPTOLINK; a.k.a. OPTOLINK RPC LLC; a.k.a. SPC OPTOLINK), 6A Sosnovaya Alley, Building 5, Zelenograd, Moscow 124489, Russia; Pr-d 4806 d. 5, g. Zelenograd, Moscow 124498, Russia; Saratov, Russia; Arzamas, Russia; Organization Established Date 18 Jul 2001; Tax ID No. 7735105059 (Russia); Registration Number 1027700040719 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the technology sector of the Russian Federation economy, and pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the electronics sector of the Russian Federation economy.
2. AK SYSTEMS (a.k.a. AK SISTEMS), ul. Gorbunova d. 2, str. 3, et 5 pom. II kom 7, Moscow 121596, Russia; Tax ID No. 7731342210 (Russia); Registration Number 1177746022398 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the electronics sector of the Russian Federation economy.
3. JOINT STOCK COMPANY COMPEL (a.k.a. “AO KOMPEL”), ul. Novokhokhlovskaya d. 23, str. 1, Moscow 109052, Russia; Pr-kt Volgogradskii d. 28A, pom I et 3 kom 6, Moscow 109316, Russia; Bolshoi pr-t V.O., 18, Saint Petersburg, Russia; K. Marksa pr-t, 57, Novosibirsk, Russia; Tax ID No. 7713005406 (Russia); Registration Number 1027700032161 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the electronics sector of the Russian Federation economy.
4. KOMPONENTA AO (a.k.a. KOMPONENTA INC), ul. Vyborgskaya d. 16, str. 1, pom. X kom 2, Moscow 125212, Russia; Tax ID No. 7743669411 (Russia); Registration Number 1077763331436 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the electronics sector of the Russian Federation economy.
5. LIMITED LIABILITY COMPANY FOREPOST TRADING (a.k.a. FOREPOST TRADING LLC), ul. Generala Antonova d. 3A, Moscow 117342, Russia; Tax ID No. 7719667861 (Russia); Registration Number 1087746148962 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the electronics sector of the Russian Federation economy.
6. LLC ALTRABETA, Per. 1-I Verkhnii d. 6, lit. A, office 211, Saint Petersburg 194292, Russia; Tax ID No. 7802646313 (Russia); Registration Number 1177847399498 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the electronics sector of the Russian Federation economy.
7. LLC IQ COMPONENTS (a.k.a. AI KYU KOMPONENTS), ul. Salova d. 45, lit. Ya, pomeshch. 1N komnata 35, Saint Petersburg 192102, Russia; Tax ID No. 7816691806 (Russia); Registration Number 1197847052963 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the electronics sector of the Russian Federation economy.
8. LLC ONELEK (a.k.a. LLC ONELEC), Moskovskiy pr, 19 korpus 10, pomeshchenie 2, Cheboksary, Russia; ploshchad Zhuravleva, d. 10, str 3, ofis 33, Moscow, Russia; ul. Bolshaya Tatarskaya d. 21, str. 8, komnata 213, Moscow 115184, Russia; Tax ID No. 7709988048 (Russia); Registration Number 1177746113709 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the electronics sector of the Russian Federation economy.
9. LLC SPETSELSERVIS (a.k.a. SPECELSERVIS), ul Kakhovka, d. 20, str. 2 k. 56, Moscow 117461, Russia; ul. Elektrozavodskaya, d. 24, of. A214, A215, Moscow 107023, Russia; ul. Sushchevskaya d. 21, pod. 2, Moscow 127055, Russia; Tax ID No. 7727191914 (Russia); Registration Number 1037739375024 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the electronics sector of the Russian Federation economy.
10. NPF-RADIOTEKHKOMPLEKT AO (a.k.a. ZAKRYTOE AKTSIONERNOE OBSHCHESTVO NPF RADIOTEKHKOMPLEKT; a.k.a. ZAO NPF RADIOTEKHKOMPLEKT), ul. 1-ya Khutorskaya d. 14, kv. 48, Moscow 127287, Russia; Tax ID No. 7714741462 (Russia); Registration Number 1087746661925 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the electronics sector of the Russian Federation economy.
11. SATURN EK OOO, Pr-d 6-I Predportovyi d. 4, lit. S, pomeshch. 42, Saint Petersburg 196240, Russia; Tax ID No. 7806525158 (Russia); Registration Number 1147847154949 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the electronics sector of the Russian Federation economy.
12. STAUT COMPANY LIMITED (a.k.a. STAUT CO LTD; a.k.a. STAUT DESIGN CENTER), Pr-kt Obukhovskoi Oborony d. 123A, pom. 20, Saint Petersburg 192029, Russia; ul. Moiseenko d. 41, lit. B, pomeshch. #4, floor 2, office 1, Saint Petersburg 191144, Russia; Tax ID No. 7811401214 (Russia); Registration Number 1089847105259 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the electronics sector of the Russian Federation economy.
13. JOINT STOCK COMPANY SCIENCE RESEARCH INSTITUTE FOR PRECISE INSTRUMENTS (a.k.a. AKTSIONERNOE OBSHCHESTVO NAUCHNO ISSLEDOVATELSKI INSTITUT TOCHNYKH PRIBOROV; a.k.a. JOINT STOCK COMPANY RESEARCH INSTITUTE OF PRECISION INSTRUMENTS; a.k.a. “AO NII TP”; a.k.a. “JSC RIPI”), ul. Dekabristov, Vl 51, Moscow 127490, Russia; Target Type State-Owned Enterprise; Tax ID No. 7715784155 (Russia); Government Gazette Number 11482462 (Russia); Registration Number 1097746735481 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the aerospace sector of the Russian Federation economy.
14. JOINT STOCK COMPANY SPECIAL RESEARCH BUREAU OF MOSCOW POWER ENGINEERING INSTITUTE (a.k.a. AKTSIONERNOE OBSHCHESTVO OSOBOE KONSTRUKTORSKOE BYURO MOSKOVSKOGO ENERGETICHESKOGO INSTITUTA; a.k.a. “AO OKB MEI”; a.k.a. “JSC OKB MEI”), ul. Krasnokazarmennaya D. 14, Moscow 111250, Russia; Target Type State-Owned Enterprise; Tax ID No. 7722701431 (Russia); Government Gazette Number 02066983 (Russia); Registration Number 1097746729816 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the aerospace sector of the Russian Federation economy.
15. SPACE RESEARCH INSTITUTE RUSSIAN ACADEMY OF SCIENCES (a.k.a. FEDERALNOE GOSUDARSTVENNOE BYUDZHETNOE UCHREZHDENIE NAUKI INSTITUT KOSMICHESKIKH ISSLEDOVANI ROSSISKOI AKADEMII NAUK; a.k.a. IKI RAN FGBU; a.k.a. “IKI RAS”), Ul Profsoyuznaya, D 84/32, Moscow 117997, Russia; Tax ID No. 7728113806 (Russia); Government Gazette Number 02698692 (Russia); Registration Number 1027739475279 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the aerospace sector of the Russian Federation economy.
16. ALEKSINSKII KHIMICHESKII KOMBINAT (a.k.a. ALEKSINSKY CHEMICAL COMBINE; a.k.a. ALEKSINSKY CHEMICAL PLANT; a.k.a. “AKHK”), pl. Pobedy D. 21, Aleksin 301361, Russia; Tax ID No. 7111003056 (Russia); Registration Number 1027100507510 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the defense and related materiel sector of the Russian Federation economy, and pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the manufacturing sector of the Russian Federation economy.
17. KAZANSKII GOSUDARSTVENNYI KAZENNYI POROKHOVOI ZAVOD (a.k.a. FEDERAL STATE ENTERPRISE KAZAN FEDERAL STATE GUNPOWDER PLANT; a.k.a. “KGKPZ”), ul. Pervogo Maya D. 14, Kazan 420032, Russia; Tax ID No. 1656025681 (Russia); Registration Number 1031624002937 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the defense and related materiel sector of the Russian Federation economy.
18. TAMBOVSKII POROKHOVOI ZAVOD (a.k.a. TAMBOV GUNPOWDER PLANT; a.k.a. TAMBOV POWDER PLANT; a.k.a.
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the defense and related materiel sector of the Russian Federation economy.
19. OPEN JOINT STOCK COMPANY RUSSIAN INSTITUTE OF RADIONAVIGATION AND TIME (a.k.a. “JSC RIRT”), Pl. Rastrelli D. 2, Saint Petersburg 191124, Russia; Pr-kt Obukhovskoi Oborony D. 120, Lit. ets, Saint Petersburg 192012, Russia; 19 Staraya Basmannaya str., building 12, Moscow 105066, Russia; Organization Established Date 07 Sep 1956; Tax ID No. 7825507108 (Russia); Registration Number 1037843100052 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the aerospace sector of the Russian Federation economy.
20. BUDKER INSTITUTE OF NUCLEAR PHYSICS OF SIBERIAN BRANCH RUSSIAN ACADEMY OF SCIENCES (a.k.a. BUDKER INSTITUTE OF NUCLEAR PHYSICS OF SB RAS; a.k.a. FEDERALNOE GOSUDARSTVENNOE BYUDZHETNOE UCHREZHDENIE NAUKI INSTITUT YADERNOL FIZIKI IM. G.I. BUDKERA SIBIRSKOGO OTDELENIYA ROSSISKOI AKADEMII NAUK; f.k.a. INSTITUTE OF NUCLEAR PHYSICS OF THE SIBERIAN BRANCH OF THE USSR ACADEMY OF SCIENCE; a.k.a. IYAF SO RAN FGBU; a.k.a. “BINP SB RAS”), Prospkt Akademika Lavrentyeva D 11, Novosibirsk 630090, Russia; Organization Established Date 19 Jul 1994; Tax ID No. 5408105577 (Russia); Government Gazette Number 03533872 (Russia); Registration Number 1025403658136 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the technology sector of the Russian Federation economy.
21. INSTITUTE OF LASER PHYSICS OF THE SIBERIAN BRANCH OF THE RUSSIAN ACADEMY OF SCIENCES (a.k.a. FEDERALNOE GOSUDARSTVENNOE BYUDZHETNOE UCHREZHDENIE NAUKI INSTITUT LAZERNOI FIZIKI SIBIRSKOGO OTDELENIYA ROSSISKOI AKADEMII NAUK; a.k.a. ILF SO RAN FGBU; a.k.a. INSTITUTE OF LASER PHYSICS OF THE SIBERIAN BRANCH OF THE RAS; a.k.a. INSTITUTE OF LASER PHYSICS SB RAS; a.k.a. “ILP SB RAS”), 15B, prospekt Akademika Lavrenteva, Novosibirsk, Novosibirskaya Obl. 630090, Russia; Organization Established Date 06 Aug 1991; Tax ID No. 5408105471 (Russia); Government Gazette Number 11822515 (Russia); Registration Number 1025403665572 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(vii) of E.O. 14024 for being owned or controlled by, or for having acted or purported to act for or on behalf of, directly or indirectly, the Government of the Russian Federation.
22. P.L. KAPITZA INSTITUTE FOR PHYSICAL PROBLEMS, RUSSIAN ACADEMY OF SCIENCES (a.k.a. FEDERALNOE GOSUDARSTVENNOE BYUDZHETNOE UCHREZHDENIE NAUKI INSTITUT FIZICHESKIKH PROBLEM IM. P.L. KAPITSY ROSSISKOI AKADEMII NAUK; f.k.a. FEDERALNOE GOSUDARSTVENNOE BYUDZHETNOE UCHREZHDENIE NAUKI INSTITUT FIZICHESKIKH PROBLEM IM. P.L. KAPITSY ROSSISKOI AKADEMII NAUK BU; a.k.a. “IFP RAN FGBU”; a.k.a. “KIPP”), Kapitaza Institute, 2 ul. Kosygina, Moscow 119334, Russia; Organization Established Date 31 Jan 1994; Tax ID No. 7736039850 (Russia); Government Gazette Number 02699338 (Russia); Registration Number 1037739409311 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the technology sector of the Russian Federation economy.
23. JOINT STOCK COMPANY URAL MINING AND METALLURGICAL COMPANY (a.k.a. OTKRYTOE AKTSIONERNOE OBSHCHESTVO URALSKAYA GORNO METALLURGICHESKAYA KOMPANIYA; a.k.a. “UMMC”), 1, prospekt Uspenski, Verkhnyaya Pyshma, Sverdlovsk region 624091, Russia; Organization Established Date 20 Oct 1999; Tax ID No. 6606013640 (Russia); Government Gazette Number 52306330 (Russia); Registration Number 1026600727713 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the metals and mining sector of the Russian Federation economy.
24. JOINT STOCK COMPANY URALELEKTROMED (a.k.a. AKTSIONERNOE OBSHCHESTVO URALELEKTROMED; f.k.a. OPEN JOINT STOCK COMPANY URALELECTROMED; a.k.a. URALELEKTROMED AO; a.k.a. URALELEKTROMED JSC; a.k.a. URALELEKTROMED PUBLIC JOINT STOCK COMPANY), 1, Lenin Street, Lugovskoy 624091, Russia; 1, prospekt Uspenski Verkhnyaya Pyshma, Sverdlovsk region 624091, Russia; Organization Established Date 23 Dec 1992; Tax ID No. 6606003385 (Russia); Government Gazette Number 00194429 (Russia); Registration Number 1026600726657 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the metals and mining sector of the Russian Federation economy.
25. JOINT STOCK COMPANY SCIENTIFIC PRODUCTION ENTERPRISE RESEARCH AND DESIGN INSTITUTE OF WELL LOGGING (a.k.a. JOINT STOCK COMPANY NPP VNIIGIS; a.k.a. “AO NPP VNIIGIS”), 1, ul. Gorkogo Oktyabrski, Bashkortostan Republic 452614, Russia; Organization Established Date 26 Dec 1995; Tax ID No. 0265013492 (Russia); Government Gazette Number 01423872 (Russia); Registration Number 1020201929439 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the manufacturing sector of the Russian Federation economy.
26. FUND FOR DEVELOPMENT OF ENERGY COMPLEX ENERGY (a.k.a. FOND ENERGIA; a.k.a. FOUNDATION FACILITATION OF THE STRATEGIC DEVELOPMENT OF THE FUEL AND ENERGY COMPLEX ENERGY; a.k.a. “FUND ENERGY”), Ul. 1-YA Frunzenskaya D. 6, Moscow 119146, Russia; Organization Established Date 28 May 2008; Tax ID No. 7704274995 (Russia); Registration Number 1087799025269 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the financial services sector of the Russian Federation economy.
27. JOINT STOCK COMPANY LOCKO BANK, Leningrad Prosp, D 39 building 80, Moscow 125167, Russia; SWIFT/BIC CLOKRUMM; website
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the financial services sector of the Russian Federation economy.
28. JOINT STOCK COMPANY COMMERCIAL BANK SOLIDARNOST, Ul. Kubysheva D. 90, Samara 443099, Russia; SWIFT/BIC SLDRRU3S; website
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the financial services sector of the Russian Federation economy.
29. UNISTREAM COMMERCIAL BANK JSC (a.k.a. AO KB YUNISTRIM), Ul. Verkhnyaya Maslovka D. 20, Str. 2, Moscow 127083, Russia; SWIFT/BIC UMTNRUMM; website
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the financial services sector of the Russian Federation economy.
30. JOINT STOCK COMPANY PETERSBURG SOCIAL COMMERCIAL BANK (a.k.a. JSC BANK PSCB; f.k.a. PETERSBURG SOCIAL COMMERCIAL BANK OPEN JOINT STOCK COMPANY), Ul. Shpalernaya D. 42, Saint Petersburg 191123, Russia; Moscow, Russia; SWIFT/BIC PSOCRU2P; alt. SWIFT/BIC PSOCRUA1; website
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the financial services sector of the Russian Federation economy.
31. JSC TINKOFF BANK (a.k.a. KHIMMASHBANK; f.k.a. TINKOFF CREDIT SYSTEMS BANK CLOSED JOINT STOCK COMPANY), Ul. 2nd Khutorskaya, 38A, building 26, Moscow 127287, Russia; SWIFT/BIC TICSRUMM; website
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the financial services sector of the Russian Federation economy.
32. AMEGINO FZE, T1-9F-6D, RAKEZ Amenity Center, Al Hamra Industrial Zone-FZ, Ras Al Khaimah, United Arab Emirates; Organization Established Date 04 May 2017; Registration Number 5014362 (United Arab Emirates) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the electronics sector of the Russian Federation economy and pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the technology sector of the Russian Federation economy.
33. A.M. PROKHOROV GENERAL PHYSICS INSTITUTE RUSSIAN ACADEMY OF SCIENCES (a.k.a. FEDERALNOE GOSUDARSTVENNOE BYUDZHETNOE UCHREZHDENNIE NAUKI FEDERALNY ISSLEDOVATELSKI TSENTR INSTITUT OBSHCHEI FIZIKI IM. A.M. PROKHOROVA ROSSISKOI AKADEMII NAUK; a.k.a. PROKHOROV GENERAL PHYSICS INSTITUTE OF RAS; a.k.a. PROKHOROV GENERAL PHYSICS INSTITUTE OF THE RUSSIAN ACADEMY OF SCIENCES; a.k.a. RUSSIAN ACADEMY OF SCIENCES—ALEXANDR MIKHAILOVICH PROKHOROV GENERAL PHYSICS INSTITUTE; a.k.a. “GPI RAS”; a.k.a. “IOF RAN”; a.k.a. “IOF RAN FGBU”), d. 38, ul. Vavilova Moscow, Moscow 119991, Russia; Organization Established Date 14 Sep 1993; Tax ID No. 7736029700 (Russia); Government Gazette Number 02700457 (Russia); Registration Number 1027700378595 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the technology sector of the Russian Federation economy.
34. OSIPYAN INSTITUTE OF SOLID STATE PHYSICS OF THE RUSSIAN ACADEMY OF SCIENCES (f.k.a. FEDERAL STATE BUDGETARY INSTITUTION OF SCIENCE INSTITUTE OF SOLID STATE PHYSICS N.A. YU. A. OSIPYAN OF THE RUSSIAN ACADEMY OF SCIENCES; f.k.a. FEDERALNOE GOSUDARSTVENNOE BYUDZHETNOE UCHREZHDENIE NAUKI INSTITUT FIZIKI TVERDOGO TELA ROSSISKOI AKADEMII NAUK BU; a.k.a. FEDERALNOE GOSUDARSTVENNOE BYUDZHETNOE UCHREZHDENIE NAUKI INSTITUT FIZIKI TVERDOGO TELA ROSSISKOI AKADEMII NAUK FGBU; a.k.a. INSTITUTE OF SOLID STATE PHYSICS OF THE ACADEMY OF SCIENCES SSSR; a.k.a. “IFTT RAN”; a.k.a. “ISSP RAS”), d. 2, ul. Akademika Osipyana Chernogolovka, Moskovskaya Obl 142432, Russia; Organization Established Date 12 Mar 1998; Tax ID No. 5031003120 (Russia); Government Gazette Number 02699796 (Russia); Registration Number 1025003915243 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the technology sector of the Russian Federation economy.
35. FEDERAL STATE BUDGETARY INSTITUTION OF SCIENCE FEDERAL RESEARCH CENTER KAZAN SCIENTIFIC CENTER OF THE RUSSIAN ACADEMY OF SCIENCES (f.k.a. FEDERAL GOSUDARSTVENNOE BYUDZHETNOE UCHREZHDENIE NAUKI KAZANSKI NAUCHNY TSENTR ROSSISKOI AKADEMII NAUK UCH; a.k.a. FEDERAL RESEARCH CENTER KAZAN SCIENTIFIC CENTER OF THE RUSSIAN ACADEMY OF SCIENCES; a.k.a. FEDERALNOE GOSUDARSTVENNOE BYUDZHETNOE UCHREZHDENIE NAUKI FEDERALNY ISSLEDOVATELSKI TSENTR KAZANSKI NAUCHNY TSENTR ROSSISKOI AKADEMII NAUK; a.k.a. FITS KAZNTS RAN; a.k.a. FITS KAZNTS RAN FGBU; a.k.a. FRC KAZSC RAS), d. 2/31, ul. Lobachevskogo Kazan, Tatarstan Republic 420111, Russia; Organization Established Date 22 Apr 1991; Tax ID No. 1655022127 (Russia); Government Gazette Number 33859469 (Russia); Registration Number 1021602842359 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the technology sector of the Russian Federation economy.
36. JOINT STOCK COMPANY GAZPROM AVTOMATIZATSIYA (a.k.a. GAZAVTOMATIKA; a.k.a. OTKRYTOE AKTSIONERNOE OBSCHESTVO GAZPROM AVTOMATIZATSIYA; a.k.a. PUBLICHNOE AKTSIONERNOE OBSCHESTVO GAZPROM AVTOMATIZATSIYA), 25, Savvinskaya Naberezhnaya, Moscow 119435, Russia; d. 3 pom. VI kom. 21, ul. Kirpichnye Vyemki Moscow, Moscow 117405, Russia; Organization Established Date 05 Aug 1993; Tax ID No. 7704028125 (Russia); Government Gazette Number 00159093 (Russia); Registration Number 1027700055360 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the manufacturing sector of the Russian Federation economy.
37. LIMITED LIABILITY COMPANY AK MICROTECH (a.k.a. AK MIKROTEKH; a.k.a. “LLC AKM”), Sh. Varshavskoe d. 118, k. 1, floor 19 kom 3, Moscow 117587, Russia; Tax ID No. 7731339867 (Russia); Registration Number 5167746451648 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the electronics sector of the Russian Federation economy.
38. MCI TRADING DOO BEOGRAD PALILULA (a.k.a. MCI DOO BEOGRAD), Mirocka
Designated pursuant to section 1(a)(vi)(B) of E.O. 14024 for having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of Limited Liability Company AK Microtech, a person whose property and interests in property are blocked pursuant to E.O. 14024.
39. LIMITED LIABILITY COMPANY TYUMEN PETROLEUM RESEARCH CENTER (a.k.a. OBSHCHESTVO S OGRANICHENNOI OTVETSTVENNOSTYU TYUMENSKI NEFTYANOI NAUCHNY TSENTR; a.k.a. TNNTS LIMITED LIABILITY COMPANY; a.k.a. TPRC LIMITED LIABILITY COMPANY), d. 42, ul. Maksima Gorkogo Tyumen, Tyumen region 625048, Russia; Organization Established Date 30 Oct 2000; Tax ID No. 7202157173 (Russia); Government Gazette Number 5544280 (Russia); Registration Number 1077203000434 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the technology sector of the Russian Federation economy.
40. JOINT STOCK COMPANY NEFTEGAZAVTOMATIKA (a.k.a. NEFTEGAZAVTOMATIKA AO (Cyrillic: НЕФТЕГАЗАВТОМАТИКА АО)), Shosse Varshavshoe 39, Moscow 113105, Russia; Organization Established Date 19 Aug 1992; Tax ID No. 7724230019 (Russia); Registration Number 1037739224973 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the manufacturing sector of the Russian Federation economy.
41. LIMITED LIABILITY COMPANY OKTANTA (a.k.a. OKTANTA NDT), Ul. Mayakovskogo D. 22, Kv. 34, Saint Petersburg 191014, Russia; Organization Established Date 05 May 2010; Tax ID No. 7841425639 (Russia); Registration Number 1107847143557 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the manufacturing sector of the Russian Federation economy.
42. LIMITED LIABILITY COMPANY PERM OIL MACHINE COMPANY, Ul. Teknicheskaya D. 5, Perm 614070, Russia; Organization Established Date 11 Jun 1996; Tax ID No. 7727653358 (Russia); Registration Number 1087746698137 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the manufacturing sector of the Russian Federation economy.
43. LIMITED LIABILITY COMPANY PROIZVOSTVENNAYA KOMMERCHESKAYA FIRMA GAZNEFTEMASH (a.k.a. GAZNEFTEMASH LLC; a.k.a. PKF GAZNEFTEMASH), Km Kievskoe Shosse 22-1, Domovladenie 4, Str. 5, Moscow 108811, Russia; Organization Established Date 02 Jun 2008; Tax ID No. 7727653358 (Russia); Registration Number 1087746698137 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the manufacturing sector of the Russian Federation economy.
44. LIMITED LIABILITY COMPANY RUSTMASH, Ul. Lenina D. 1, Korp. 120, Taldom 141960, Russia; Organization
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the manufacturing sector of the Russian Federation economy.
45. ARSENAL MACHINE BUILDING PLANT OPEN JOINT STOCK COMPANY (a.k.a. ARSENAL MACHINE BUILDING PLANT OJSC; a.k.a. MZ ARSENAL OAO; a.k.a. MZ ARSENAL PAO; a.k.a. OTKRYTOE AKTSIONERNOE OBSCHESTVO MASHINOSTROITELNYI ZAVOD ARSENAL), 1-3, Komsomola Street, Saint Petersburg 195009, Russia; Tax ID No. 7804040302 (Russia); Government Gazette Number 07541733 (Russia); Registration Number 1027802490540 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the aerospace sector of the Russian Federation economy.
46. JOINT STOCK COMPANY EXPERIMENTAL DESIGN BUREAU FAKEL (a.k.a. AKTSIONERNOE OBSHCHESTVO OPYTNOE KONSTRUKTORSKOE BYURO FAKEL; a.k.a. AO OKB FAKEL; a.k.a. JSC EDB FAKEL), Moskovskii PR D. 181, Kaliningrad 236001, Russia; Target Type State-Owned Enterprise; Tax ID No. 3906390669 (Russia); Government Gazette Number 44161069 (Russia); Registration Number 1203900004670 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the aerospace sector of the Russian Federation economy.
47. JOINT STOCK COMPANY RESEARCH AND PRODUCTION CORPORATION PRECISION SYSTEMS AND INSTRUMENTS (a.k.a. AKTSIONERNOE OBSHCHESTVO NAUCHNO PROIZVODSTVENNAYA KORPORATSIYA SISTEMY PRETSIZIONNOGO PRIBOROSTROENIYA; a.k.a. JSC RESEARCH AND PRODUCTION CORPORATION PRECISION SYSTEMS AND INSTRUMENTS; a.k.a. SCIENTIFIC AND INDUSTRIAL CORPORATION PRECISION INSTRUMENT SYSTEMS; a.k.a. “AO NPK SPP”; a.k.a. “JSC RPC PSI”), ul. Aviamotornaya D. 53, Moscow 111024, Russia; Target Type State-Owned Enterprise; Tax ID No. 7722698108 (Russia); Government Gazette Number 07559035 (Russia); Registration Number 1097746629639 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the aerospace sector of the Russian Federation economy.
48. M.V. FRUNZE ARSENAL DESIGN BUREAU JOINT STOCK COMPANY (a.k.a. AKTSIONERNOE OBSHCHESTVO KONSTRUKTORSKOE BYURO ARSENAL IMENI M.V. FRUNZE; a.k.a. AO KB ARSENAL), ul. Komsomola, D.1-3, Saint Petersburg 195009, Russia; Target Type State-Owned Enterprise; Tax ID No. 7804588900 (Russia); Government Gazette Number 06506278 (Russia); Registration Number 1177847042229 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the aerospace sector of the Russian Federation economy.
49. LIMITED LIABILITY COMPANY ISHIMBAY SPECIALIZED CHEMICAL PLANT OF CATALYST (a.k.a. “ISCPC LLC”), Ul. Levyi Bereg D. 6, Ishimbay 453203, Russia; Organization Established Date 26 Apr 2006; Tax ID No. 0261014551 (Russia); Registration Number 1060261010996 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the manufacturing sector of the Russian Federation economy.
50. LIMITED LIABILITY COMPANY KNT KAT (a.k.a. “KNT GROUP”), Ul. Kommunisticheskaya D. 116, Kv. 48, Sterlitamak 453100, Russia; Organization Established Date 26 Jul 2018; Tax ID No. 0268084396 (Russia); Registration Number 1180280043580 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the manufacturing sector of the Russian Federation economy.
51. LIMITED LIABILITY COMPANY RN KAT, Ul. Tekhnicheskaya D. 32, Korpus 159, Pom. 2, Sterlitamak 453110, Russia; Organization Established Date 06 Aug 2018; Tax ID No. 0268084491 (Russia); Registration Number 1180280045725 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the manufacturing sector of the Russian Federation economy.
52. LIMITED LIABILITY COMPANY STERLITAMAK CATALYST PLANT (a.k.a. STERLITAMAKSKII ZAVOD KATALIZATOROV; a.k.a. “SZK OOO”), Ul. Tekhnicheskaya 32, Sterlitamak 453110, Russia; Organization Established Date 11 Feb 2004; Tax ID No. 0268033994 (Russia); Registration Number 1040203421378 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the manufacturing sector of the Russian Federation economy.
53. AO NPO KURGANPRIBOR (Cyrillic: АО НПО КУРГАНПРИБОР) (a.k.a. AKTSIONERNOE OBSHCHESTVO NAUCHNOPROIZVODSTVENNOE OBEDINENIE KURGANPRIBOR (Cyrillic: АКЦИОНЕРНОЕ ОБЩЕСТВО НАУЧНОПРОИЗВОДСТВЕННОЕ ОБЪЕДИНЕНИЕ КУРГАНПРИБОР); a.k.a. KURGANPRIBOR JSC), Ul. Yastrzhembskogo D. 41A, Kurgan 640007, Russia; Tax ID No. 4501129676 (Russia); Registration Number 1074501002839 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the defense and related materiel sector of the Russian Federation economy.
54. JOINT STOCK COMPANY ASTROPHYSIKA NATIONAL CENTRE OF LASER SYSTEMS AND COMPLEXES (a.k.a. AKTSIONERNOE OBSHCHESTVO NATSIONALNIY TSENTR LAZERNYKH SISTEM I KOMPLEKSOV ASTROFIZIKA (Cyrillic: АКЦИОНЕРНОЕ ОБЩЕСТВО НАЦИОНАЛЬНЫЙ ЦЕНТР ЛАЗЕРНЫХ СИСТЕМ И КОМПЛЕКСОВ АСТРОФИЗИКА); a.k.a. AO NTSLSK ASTROFIZIKA; a.k.a. GP NPO ASTROFIZIKA), Ul. Aleksandra Solzhenitsyna D. 27, Pomeshch. I, Moscow 109004, Russia; Tax ID No. 7733826256 (Russia); Registration Number 1127747254744 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the technology sector of the Russian Federation economy.
55. BASIS TRADE PROSOFT LLC (a.k.a. BAZIS TREID PROSOFT; a.k.a. “BTPTRADE”), Per. Savvinskii B D. 16, Pom/Et I/1, Moscow 119435, Russia; Tax ID No. 7704345974 (Russia); Registration Number 1167746176883 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the technology sector of the Russian Federation economy.
56. LIMITED LIABILITY COMPANY SIAISI, B-r Andreya Tarkovskogo d. 9, kv. 13, Poselenie Vnukovskoe 108850, Russia; Tax ID No. 7728192029 (Russia); Registration Number 1157746095748 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the electronics sector of the Russian Federation economy.
57. LLC RM DESIGN AND DEVELOPMENT (a.k.a. OSOO RM DIZAYN AND DEVELOPMENT; a.k.a. OSOO RM DIZAYN END DEVELOPMENT; a.k.a. RM DESIGN&DEVELOPMENT; a.k.a. RM DESIGNANDDEVELOPMENT; a.k.a. RM DIZAIN AND DEVELOPMENT OSOO), Chyngyza Atymatova Str., 303, Bishkek 720016, Kyrgyzstan; Organization Established Date 17 Mar 2022; Tax ID No. 01703202210110 (Kyrgyzstan) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the electronics sector of the Russian Federation economy.
58. OOO RADIOTEKHSNAB (a.k.a. RADIOTECHSNAB), Kosa Petrovskaya d. 1, k. 1, lit. R, pomeshch. 32N, Saint Petersburg 197110, Russia; Tax ID No. 7813257380 (Russia); Registration Number 1167847310619 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the electronics sector of the Russian Federation economy.
59. OSOO KARGOLAYN (a.k.a. CARGOLINE LLC), Str. Shabdan Baatyra 27/1, Bishkek 720001, Kyrgyzstan; Organization Established Date 25 Mar 2022; Tax ID No. 02503202210145 (Kyrgyzstan) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the aerospace sector of the Russian Federation economy.
60. OSOO PROGRESS LIDER (a.k.a. PROGRESS LEADER LLC), Skryabina 39/1, Bishkek 720001, Kyrgyzstan; Organization Established Date 25 Mar 2022; Tax ID No. 02503202210310 (Kyrgyzstan) [RUSSIA-EO14024] (Linked To: LIMITED LIABILITY COMPANY SIAISI).
Designated pursuant to section 1(a)(vi)(B) of E.O. 14024 for having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or
61. REGION-PROF LLC, Profsoyuznaya ulitsa d. 108, Moscow 117437, Russia; ul. Akademika Volgina d. 33, Pom. I Kom 38 Et 3, Moscow 117437, Russia; Tax ID No. 7728599583 (Russia); Registration Number 1067759114675 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the electronics sector of the Russian Federation economy.
62. TECHNOLOGIES SYSTEMS AND COMPLEXES LIMITED (a.k.a. OOO TEKHNOLOGII SISTEMY I KOMPLEKSY; a.k.a. “TSC LTD”), Per. Perevedenovskii d. 21, str. 13, floor 1, pomeshch. 10, Moscow 105082, Russia; Tax ID No. 7701922888 (Russia); Registration Number 1117746474010 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the technology sector of the Russian Federation economy.
63. ZAO GTME TEKHNOLOGII, Str. Fatyanova 43, Bishkek 720001, Kyrgyzstan; Organization Established Date 28 Jun 2022; Tax ID No. 02806202210325 (Kyrgyzstan) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the technology sector of the Russian Federation economy.
64. CLOSED JOINT STOCK COMPANY SUPERCONDUCTING NANOTECHNOLOGY (a.k.a. LIMITED LIABILITY COMPANY SUPERCONDUCTING NANOTECHNOLOGY; a.k.a. OBSHCHESTVO S OGRANICHENNOI OTVETSTVENNOSTYU SVERKHPROVODNIKOVYE NANOTEKHNOLOGII; a.k.a. SCONTEL; a.k.a. SKONTEL AO; a.k.a. SKONTEL OOO), 5 str. 1 etazh 4 pom. I kom. 14, ul. Lva Tolstogo, Moscow 119021, Russia; Organization Established Date 19 Jan 2005; Tax ID No. 7704445168 (Russia); Government Gazette Number 19634279 (Russia); Registration Number 5177746003815 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the technology sector of the Russian Federation economy.
65. JOINT STOCK COMPANY TULA CARTRIDGE WORKS (a.k.a. TULA CARTRIDGE PLANT; a.k.a. TULAMMO; a.k.a. “AO TPZ”), ul. Marata D. 47 B, Tula 300004, Russia; Tax ID No. 7105008338 (Russia); Registration Number 1027100507268 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the defense and related materiel sector of the Russian Federation economy.
66. UMMC NONFERROUS METALS PROCESSING LIMITED LIABILITY COMPANY (a.k.a. LIMITED LIABILITY COMPANY UMMC NFMP; a.k.a. OBSHCHESTVO S OGRANICHENNOI OTVETSTVENNOSTYU UGMK OTSM; a.k.a. UGMK OTSM OOO), Ul. Petrova D. 59, Lit. D., Verkhnyaya Pyshma 624092, Russia; str. 1 kab. 206, prospekt Uspenski, Verkhnyaya Pyshma, Sverdlovsk region 624091, Russia; Organization Established Date 04 May 2007; Tax ID No. 6606024709 (Russia); Government Gazette Number 81180857 (Russia); Registration Number 1076606001152 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the metals and mining sector of the Russian Federation economy.
B. On August 3, 2023, OFAC updated the entry on the SDN List for the following persons, whose property and interests in property subject to U.S. jurisdiction continues to be blocked under the relevant sanctions authority listed below.
1. A.M. PROKHOROV GENERAL PHYSICS INSTITUTE RUSSIAN ACADEMY OF SCIENCES (a.k.a. FEDERALNOE GOSUDARSTVENNOE BYUDZHETNOE UCHREZHDENNIE NAUKI FEDERALNY ISSLEDOVATELSKI TSENTR INSTITUT OBSHCHEI FIZIKI IM. A.M. PROKHOROVA ROSSISKOI AKADEMII NAUK; a.k.a. PROKHOROV GENERAL PHYSICS INSTITUTE OF RAS; a.k.a. PROKHOROV GENERAL PHYSICS INSTITUTE OF THE RUSSIAN ACADEMY OF SCIENCES; a.k.a. RUSSIAN ACADEMY OF SCIENCES—ALEXANDR MIKHAILOVICH PROKHOROV GENERAL PHYSICS INSTITUTE; a.k.a. “GPI RAS”; a.k.a. “IOF RAN”; a.k.a. “IOF RAN FGBU”), d. 38, ul. Vavilova Moscow, Moscow 119991, Russia; Organization Established Date 14 Sep 1993; Tax ID No. 7736029700 (Russia); Government Gazette Number 02700457 (Russia); Registration Number 1027700378595 (Russia) [RUSSIA-EO14024].
-to-
A.M. PROKHOROV GENERAL PHYSICS INSTITUTE RUSSIAN ACADEMY OF SCIENCES (a.k.a. FEDERALNOE GOSUDARSTVENNOE BYUDZHETNOE UCHREZHDENNIE NAUKI FEDERALNY ISSLEDOVATELSKI TSENTR INSTITUT OBSHCHEI FIZIKI IM. A.M. PROKHOROVA ROSSISKOI AKADEMII NAUK; a.k.a. PROKHOROV GENERAL PHYSICS INSTITUTE OF RAS; a.k.a. PROKHOROV GENERAL PHYSICS INSTITUTE OF THE RUSSIAN ACADEMY OF SCIENCES; a.k.a. RUSSIAN ACADEMY OF SCIENCES—ALEXANDR MIKHAILOVICH PROKHOROV GENERAL PHYSICS INSTITUTE; a.k.a. “GPI RAS”; a.k.a. “IOF RAN”; a.k.a. “IOF RAN FGBU”), d. 38, ul. Vavilova, Moscow 119991, Russia; Organization Established Date 14 Sep 1993; Tax ID No. 7736029700 (Russia); Government Gazette Number 02700457 (Russia); Registration Number 1027700378595 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the technology sector of the Russian Federation economy.
2. FEDERAL STATE BUDGETARY INSTITUTION OF SCIENCE FEDERAL RESEARCH CENTER KAZAN SCIENTIFIC CENTER OF THE RUSSIAN ACADEMY OF SCIENCES (f.k.a. FEDERAL GOSUDARSTVENNOE BYUDZHETNOE UCHREZHDENIE NAUKI KAZANSKI NAUCHNY TSENTR ROSSISKOI AKADEMII NAUK UCH; a.k.a. FEDERAL RESEARCH CENTER KAZAN SCIENTIFIC CENTER OF THE RUSSIAN ACADEMY OF SCIENCES; a.k.a. FEDERALNOE GOSUDARSTVENNOE BYUDZHETNOE UCHREZHDENIE NAUKI FEDERALNY ISSLEDOVATELSKI TSENTR KAZANSKI NAUCHNY TSENTR ROSSISKOI AKADEMII NAUK; a.k.a. FITS KAZNTS RAN; a.k.a. FITS KAZNTS RAN FGBU; a.k.a. FRC KAZSC RAS), d. 2/31, ul. Lobachevskogo Kazan, Tatarstan Republic 420111, Russia; Organization Established Date 22 Apr 1991; Tax ID No. 1655022127 (Russia); Government Gazette Number 33859469 (Russia); Registration Number 1021602842359 (Russia) [RUSSIA-EO14024].
-to-
FEDERAL STATE BUDGETARY INSTITUTION OF SCIENCE FEDERAL RESEARCH CENTER KAZAN SCIENTIFIC CENTER OF THE RUSSIAN ACADEMY OF SCIENCES (f.k.a. FEDERAL GOSUDARSTVENNOE BYUDZHETNOE UCHREZHDENIE NAUKI KAZANSKI NAUCHNY TSENTR ROSSISKOI AKADEMII NAUK UCH; a.k.a. FEDERAL RESEARCH CENTER KAZAN SCIENTIFIC CENTER OF THE RUSSIAN ACADEMY OF SCIENCES; a.k.a. FEDERALNOE GOSUDARSTVENNOE BYUDZHETNOE UCHREZHDENIE NAUKI FEDERALNY ISSLEDOVATELSKI TSENTR KAZANSKI NAUCHNY TSENTR ROSSISKOI AKADEMII NAUK; a.k.a. FITS KAZNTS RAN; a.k.a. FITS KAZNTS RAN FGBU; a.k.a. FRC KAZSC RAS), d. 2/31, ul. Lobachevskogo, Kazan, Tatarstan Republic 420111, Russia; Organization Established Date 22 Apr 1991; Tax ID No. 1655022127 (Russia); Government Gazette Number 33859469 (Russia); Registration Number 1021602842359 (Russia) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the technology sector of the Russian Federation economy.
3. OSIPYAN INSTITUTE OF SOLID STATE PHYSICS OF THE RUSSIAN ACADEMY OF SCIENCES (f.k.a. FEDERAL STATE BUDGETARY INSTITUTION OF SCIENCE INSTITUTE OF SOLID STATE PHYSICS N.A. YU. A. OSIPYAN OF THE RUSSIAN ACADEMY OF SCIENCES; f.k.a. FEDERALNOE GOSUDARSTVENNOE BYUDZHETNOE UCHREZHDENIE NAUKI INSTITUT FIZIKI TVERDOGO TELA ROSSISKOI AKADEMII NAUK BU; a.k.a. FEDERALNOE GOSUDARSTVENNOE BYUDZHETNOE UCHREZHDENIE NAUKI INSTITUT FIZIKI TVERDOGO TELA ROSSISKOI AKADEMII NAUK FGBU; a.k.a. INSTITUTE OF SOLID STATE PHYSICS OF THE ACADEMY OF SCIENCES SSSR; a.k.a. “IFTT RAN”; a.k.a. “ISSP RAS”), d. 2, ul. Akademika Osipyana Chernogolovka, Moskovskaya Obl 142432, Russia; Organization Established Date 12 Mar 1998; Tax ID No. 5031003120 (Russia); Government Gazette Number 02699796 (Russia); Registration Number 1025003915243 (Russia) [RUSSIA-EO14024].
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OSIPYAN INSTITUTE OF SOLID STATE PHYSICS OF THE RUSSIAN ACADEMY OF SCIENCES (f.k.a. FEDERAL STATE BUDGETARY INSTITUTION OF SCIENCE INSTITUTE OF SOLID STATE PHYSICS N.A. YU. A. OSIPYAN OF THE RUSSIAN
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the technology sector of the Russian Federation economy.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service (IRS), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning Escrow Funds and Other Similar Funds.
Written comments should be received on or before October 10, 2023 to be assured of consideration.
Direct all written comments to Andres Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or by email to
Requests for additional information or copies of this collection should be directed to Martha R. Brinson, at (202) 317-5753, or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice: An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service (IRS), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning returns regarding payments of interest.
Written comments should be received on or before October 10, 2023 to be assured of consideration.
Direct all written comments to Andres Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or by email to
Requests for additional information or copies of this collection should be directed to Martha R. Brinson, at (202) 317-5753, or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
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 Women Veterans will conduct a virtual meeting on August 28-29, 2023. The meeting sessions will begin and end as follows:
The meeting sessions are open to the public.
The purpose of the Committee is to advise the Secretary of Veterans Affairs regarding the needs of women Veterans with respect to health care, rehabilitation, compensation, outreach and other programs and activities administered by VA designed to meet such needs. The Committee makes recommendations to the Secretary regarding such programs and activities.
On Monday, August 28, the agenda includes full committee discussion on 2023 report recommendations. On Tuesday, August 29, the agenda includes time allotted for public comment starting at 2:15 p.m. and ending no later than 2:45 p.m. (ET). The comment period may end sooner, if there are no comments presented or they are exhausted before the end time. Individuals interested in providing comments during the meeting are allowed no more than three minutes for their statements. Following the comment period, full committee discussion on the 2023 report will continue.
Those who want to submit written statements for the Committee's review should submit them to the Center for Women Veterans at
Architectural and Transportation Barriers Compliance Board.
Final rule.
The Architectural and Transportation Barriers Compliance Board (Access Board or Board) issues its final rule that provides minimum guidelines for the accessibility of pedestrian facilities in the public right-of-way. These guidelines, once adopted, would ensure that facilities used by pedestrians, such as sidewalks and crosswalks, constructed or altered in the public right-of-way by Federal, state, and local Governments are readily accessible to and usable by pedestrians with disabilities. When the guidelines are adopted, with or without modifications, as accessibility standards in regulations issued by other Federal agencies implementing the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and the Architectural Barriers Act, compliance with those enforceable accessibility standards is mandatory.
The final rule is effective September 7, 2023.
Scott Windley, Office of Technical and Information Services, Architectural and Transportation Barriers Compliance Board, 1331 F Street NW, Suite 1000, Washington, DC 20004-1111. Telephone (202) 272-0025 (voice) or (202) 272-0028 (TTY). Email address
The U.S. Access Board issues its final rule for accessibility guidelines for pedestrian facilities in public rights-of-way (PROWAG or guidelines). These guidelines are issued under Title II of the Americans with Disabilities Act of 1990 (ADA) and the Architectural Barriers Act of 1968 (ABA). Title II of the ADA applies to State and local government facilities, among others. The ABA applies to facilities constructed or altered by or on behalf of the Federal Government, facilities leased by Federal agencies, and some facilities built with Federal funds.
The purpose of these guidelines is to ensure that pedestrian facilities located in the public right-of-way are readily accessible to and usable by pedestrians with disabilities. Despite on-going efforts to improve access, pedestrians with disabilities throughout the United States continue to face major challenges in public rights-of-way because many sidewalks, crosswalks, and other pedestrian facilities are inaccessible. Equal access to pedestrian facilities is of particular importance because pedestrian travel is the principal means of independent transportation for many persons with disabilities.
Key accessible features of pedestrian facilities specified in these guidelines include:
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These minimum guidelines will become enforceable once they are adopted, with or without modifications, as mandatory standards under the ADA by the U.S. Department of Justice (DOJ) and the U.S. Department of Transportation (USDOT), or the four Federal agencies that set standards for the Federal Government under the Architectural Barriers Act—the U.S. Postal Service (USPS), General Services Administration (GSA), U.S. Department of Defense (DOD), and U.S. Department of Housing and Urban Development (HUD)).
These guidelines are issued pursuant to the ADA and the Rehabilitation Act, which provide statutory authority for the Access Board to issue minimum accessibility guidelines to ensure that transportation facilities are usable by persons with disabilities.
As described in the Rulemaking History section below, these final guidelines have been long awaited, particularly by state and local governments subject to Title II of the ADA. Both the Access Board's 2004
In the absence of final technical requirements for accessibility of pedestrian facilities, state and local governments have been left to determine on their own how to comply with the ADA's existing mandate to make public pedestrian transportation facilities accessible. The lack of final Federal standards has contributed to uncertainty about the relevant standards, which has resulted in courts determining technical requirements for accessibility, in some cases applying requirements for buildings and sites to public rights-of-way, although public rights-of-way are, for the most part, not specifically addressed by these standards (
In addition, the Federal Government similarly lacks accessibility criteria for public rights-of-way, although there are numerous Federal sites that contain public rights-of-way, such as national parks, medical and educational campuses, and military installations. Consequently, the Federal Government, which seeks to be a leader in accessibility, has been without clear, specific, enforceable technical standards for accessibility in public rights-of-way. These final accessibility guidelines for pedestrian facilities in public rights-of-way will serve as the technical basis of enforceable standards issued under the ABA by GSA, USPS, DoD, and HUD.
The Access Board began developing accessibility guidelines for pedestrian facilities in public rights-of-way shortly after the ADA was enacted in 1990. In 1992, the Board issued proposed guidelines for state and local government facilities, including pedestrian facilities in public rights-of-way, followed by interim guidelines in 1994 that also contained provisions for public rights-of-way. 57 FR 60612 (December 21, 1992); 59 FR 31676 (June 20, 1994).
In response to the proposed and interim guidelines, the Board received numerous public comments that indicated a need for further outreach, education, and research on accessible pedestrian facilities in public rights-of-way. Consequently, when the Board issued its first final guidelines for state and local government facilities in 1998, the requirements for pedestrian facilities in the public right-of-way were not included. 63 FR 2000 (January 13, 1998).
In 1999, the Access Board established a Federal advisory committee to recommend accessibility guidelines for pedestrian facilities in public rights-of-way. The committee included a wide range of stakeholders, including representatives of state and local governments, the transportation industry, disability rights advocacy organizations, and other interested groups.
In 2001, the advisory committee presented its consensus recommendations to the Board.
Following the 2005 release, the Access Board continued to further improve the draft guidelines, engaging numerous stakeholders and sponsoring research on various key provisions. The Access Board also engaged in substantial education and outreach efforts, conducting training programs around the country, and answering questions on its technical assistance hotline. In July 2007, the Public Rights-of-Way Access Advisory Committee released a 108-page planning and design guide for alterations based on the 2005 draft guidelines.
In July 2011, the Access Board initiated the instant rulemaking, issuing a Notice of Proposed Rulemaking for Accessibility Guidelines for Public Rights-of-Way (NPRM).
The NPRM requested public comments on all provisions of the proposed Accessibility Guidelines for Public Rights-of-Way (proposed rule or proposed guidelines). In particular, the Access Board sought comments from regulated entities, including state and local governments, on the costs and impacts of certain portions of the proposed rule. The comment period ended on November 23, 2011, and was subsequently reopened until February 2,
On February 13, 2013, the Board issued a supplemental notice of proposed rulemaking (SNPRM) announcing its intent to add requirements for shared use paths (SUPs) to the proposed guidelines for pedestrian facilities in the public right-of-way.
The Board carefully reviewed the public comments received in response to the NPRM and SNPRM, consulted with DOJ and USDOT, and revised the rule text for final publication. In 2015, the Board entered into a second interagency agreement with the Volpe Center to assess costs of the final provisions. However, in January 2017, in response to Executive Order 13771 (January 30, 2017), which required that agencies identify two regulations for elimination for every new regulation proposed and that the total incremental cost of any new regulations and deregulatory actions be zero, the Board ceased work on the PROWAG final rule. Staff shifted efforts to education, outreach, and technical assistance. From 2017 through 2022, Board staff addressed hundreds of technical assistance inquiries related to PROWAG.
In 2021, following issuance of E.O. 13992 (January 20, 2021), which rescinded E.O. 13771, the Board resumed work on the PROWAG rulemaking and entered into a final interagency agreement with the Volpe Center to prepare the final regulatory impact analysis (FRIA). The FRIA is available in the docket for this rulemaking on regulations.gov and on the Access Board's website,
In consideration of the FRIA, public comments and testimony, feedback from other Federal agencies, and many years of close collaboration with stakeholders, the Access Board now issues these final guidelines on accessible pedestrian facilities in the public right-of-way.
The significant changes to the final rule text from the versions proposed in the NPRM and SNPRM are as follows:
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Second, in the final rule, facilities and portions of facilities that are “added” to an existing, developed public right-of-way are “alterations,” and are subject to the requirements for altered facilities (
Third, altered facilities must be connected to an existing pedestrian circulation path by a pedestrian access route (R202.2). In the proposed rule, only select alterations required a connection; however, to ensure that pedestrians with disabilities can realize the benefits of an altered pedestrian facility that is made accessible consistent with these guidelines, the final rule requires all altered facilities to connect to a pedestrian circulation path.
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In response to the NPRM, 460 commenters submitted approximately 600 comments on the provisions of the proposed rule, including 25 state departments of transportation and highway administrations, 2 state utility organizations, and 1 state transit
The Access Board received comments from approximately 255 individuals commenting on their own behalf, including persons with a range of disabilities who will directly benefit from these guidelines, and mobility specialists with experience teaching persons with disabilities how to navigate public rights-of-way. Individual commenters also included numerous civil engineers and planners with expertise in the design and construction of pedestrian facilities.
In addition, the Access Board received comments from representatives of approximately 90 organizations including national and local disability rights advocacy organizations, engineering companies, law firms involved in ADA litigation, professional associations, and pedestrian and citizen advocacy organizations.
In addition to soliciting written comments, the Board also held two public hearings on the proposed rule. NPRM, 76 FR at 44664. In Dallas, Texas, on September 12, 2011, twelve witnesses testified regarding the proposed guidelines. See PROW NPRM Public Hearing, Dallas, Sept. 2011, Docket ID ATBCB-2011-0346. Witnesses included engineers and architects, local government officials, and disability rights advocates, among others. Id. Fifteen individuals testified at a public hearing in Washington, DC on November 9, 2011, including representatives from organizations working with people with disabilities, private industry, and professional associations.
In response to the SNPRM to add shared use paths to the proposed rule, the Access Board received comments from 55 commenters. Eighteen state and local government entities commented, as well as seven disability rights organizations, three engineering companies, four citizens' organizations, and two industry associations. In addition, over 20 individuals, including industry professionals and persons with disabilities, responded to the SNPRM.
The Access Board appreciates the robust and thoughtful public response to the PROWAG rulemaking, and carefully considered all testimony and comments received in response to both the NPRM and the SNPRM. Commenters provided feedback on many specific provisions of the proposed rule. The majority of these comments are addressed in the Section-by-Section Analysis in Section VI of this preamble. However, numerous commenters raised concerns regarding four issues: the application of the guidelines to new construction and alterations; the requirements regarding accessible pedestrian signals; the requirement for pedestrian signals or pedestrian hybrid beacons at roundabouts; and the extension of the leveling out of intersections to pedestrian crossings. The Board addresses these major issues below.
In the proposed rule, the Board identified three types of pedestrian facilities subject to PROWAG: newly constructed facilities, added facilities, and altered facilities. The NPRM specified that newly constructed and added facilities were subject to full compliance with PROWAG (NPRM R201.1; NPRM R202.2), while alterations were expected to comply to the maximum extent practicable where existing physical constraints make it impracticable to fully comply (NPRM R202.3.1).
These three classifications of facilities were carried over from the accessibility guidelines for buildings and sites, where they have been used successfully for many years. 69 FR 44083, 36 CFR part 1191 (July 23, 2004) and 56 FR 35408 (July 26, 1991). However, in response to the PROWAG NPRM, the Board received comments from state DOTs and others indicating confusion as to how to distinguish between new, added, and altered facilities in the public right-of-way. In addition, since publication of the NPRM, the Board has regularly received technical assistance inquiries from individuals seeking to determine whether a particular public right-of-way construction project must fully comply with requirements for new construction or is subject to considerations for existing physical constraints for alterations.
The Board concurs that the distinctions between new construction, added facilities, and alterations, which are readily apparent in construction of a building, are not as clear in the public right-of-way. For example, under the language of the NPRM, a jurisdiction might consider the extension of a sidewalk an alteration of an existing pedestrian facility or alternatively an addition of a new pedestrian facility. The level of compliance with accessibility requirements might hinge on that characterization.
In determining how to resolve this confusion in the final rule, the Board considered comments from state DOTs, local government entities, an association of engineering companies, and the American Association of State Highway and Transportation Officials (AASHTO) indicating that any construction in existing public rights-of-way should be subject to considerations for existing physical constraints, highlighting that existing storm and sanitary sewer infrastructure, utilities, and adjacent developed facilities may make full compliance with the guidelines impossible.
In the final rule, the Board has defined “alteration” as “a change to or an addition of a pedestrian facility in an existing developed public right-of-way that affects or could affect pedestrian access, circulation, or usability” (R104.3). In so defining “alteration,” the Board has revised the requirements for added facilities, now allowing them to comply to the maximum extent feasible where existing physical constraints make compliance with applicable requirements technically infeasible (R202.3). The Board has also provided a definition for “developed” as “[c]ontaining buildings, pedestrian facilities, roadways, utilities, or elements” (R104.3). Taken together, the Board expects full compliance with the requirements for new construction on undeveloped land (
In response to the NPRM, the Board received several comments seeking clarity on what types of roadwork would constitute an “alteration” within the meaning of the rule. The proposed guidelines defined “alteration” as “[A] change to a facility in the public right-of-way that affects or could affect pedestrian access, circulation, or use. Alterations include, but are not limited to, resurfacing, rehabilitation, reconstruction, historic restoration, or changes or rearrangement of structural
One state department of transportation, four local government entities, a national parks and recreation organization, and an individual engineer commenter requested further clarification on the definition of “alteration,” or additional examples.
Much of the concern centered on the Board's inclusion of the example of “resurfacing.” Five states and AASHTO, seven local government entities, various organizations associated with the construction industry, an independent Federal agency, and an engineering company expressed concern that “resurfacing” was included in the definition of alteration and sought additional information on the definition of “resurfacing.” These commenters were concerned that “maintenance” operations and “pavement preservation” would trigger an obligation to comply with these guidelines.
Since the publication of the NPRM, this issue has largely been resolved. In 2013, DOJ and USDOT issued joint guidance clarifying when resurfacing is considered an “alteration” for purposes of ADA Title II compliance and specifying the types of treatments that are considered maintenance.
The Board's revised definition of “alteration” in the final rule omits the examples of specific roadway treatments, deferring to USDOT's and DOJ's joint technical assistance as to which treatments and types of construction are considered alterations for purposes of enforcement of their standards. However, the Board here clarifies that where a roadway treatment is determined to be an alteration, compliance with PROWAG is triggered and the technical requirements apply, regardless of the “scope of the [alteration] project.” The elimination of the “scope of the project” language from the final rule is discussed below.
The proposed guidelines indicated that where existing elements are altered, each altered facility “within the scope of the project” must be made to comply with the guidelines (NPRM R202.3). One state and several local government entities requested clarification on the intended meaning of “scope of the project,” and disability rights advocacy organizations expressed concern that regulated entities may define the scope of the project to avoid compliance. The Board has thus removed this language from the final rule.
Under the final rule, altered portions of existing pedestrian facilities are expected to comply with the requirements (R201.1). This means that the portion of a pedestrian facility that is altered is expected to comply with all applicable technical requirements. Where existing physical constraints make compliance with applicable requirements technically infeasible, compliance with these requirements is required to the maximum extent feasible (R202.3). This is the same approach that is employed in the 2004 ADA and ABA Accessibility Guidelines for buildings and sites.
Section R202.3.1 of the NPRM stated that where existing physical constraints make full compliance with these guidelines “impracticable,” alterations must comply with the technical specifications of these guidelines to the “extent practicable.” The proposed section R202.3.1 provided examples of existing physical constraints, including “underlying terrain, right-of-way availability, underground structures, adjacent developed facilities, drainage, or the presence of a notable natural or historic feature.”
Numerous commenters expressed varying concerns about section R202.3.1 of the proposed rule. One state public utility commission, four local government entities, and an engineering firm requested that the Access Board provide further explanation of the meaning of “extent practicable” and one state DOT recommended replacing the term with “maximum extent practicable.” A disability rights advocacy organization requested a requirement for full compliance with the guidelines unless “technically infeasible.” Three disability rights advocacy organizations and two individuals expressed concern that the language describing existing physical constraints was too broad or might be used as an excuse to deviate from the technical requirements. Three state DOTs and one local government entity requested clarification on “right-of-way availability” as an existing physical constraint and wondered whether they would be expected to obtain additional right-of-way.
In the final rule, the Board has replaced the term “impracticable” with “technically infeasible” and “extent practicable” with “maximum extent feasible,” which are the terms used in the 2004 ADA and ABA Accessibility Guidelines.
The Board also eliminated “right-of-way availability” as an example of an existing physical constraint. The Board acknowledges that in many cases regulated entities have authority to acquire additional right-of-way, which made it a confusing example of an existing physical constraint. DOJ and USDOT may provide further information as to any expectations that entities acquire additional right-of-way to meet accessibility requirements.
A disability rights advocacy organization requested that the Board apply the “primary function” and “path of travel” requirements from the 2004 ADA and ABA Accessibility Guidelines. 36 CFR part 1191, App. B 202.4. In addition, a local chapter of a national public works association, seven local government entities, and a disability rights advocacy organization would like the final rule to contain a 20% threshold for determining whether the cost of providing accessibility features is disproportionate to the overall cost of the alteration.
DOJ's 2010 ADA Standards state in part that alterations made to provide an accessible path of travel to the altered area will be deemed disproportionate to the overall alteration when the cost exceeds 20% of the cost of the alteration to the primary function area. 28 CFR 35.151(b)(4)(iii)(A).
Several commenters expressed concern about their obligations under Title II of the ADA and Section 504 of the Rehabilitation Act for existing facilities that are not altered.
Accessible Pedestrian Signals are devices that communicate information about pedestrian signal timing in non-visual formats such as audible tones, speech messages, and/or vibrating surfaces (R104.3). In the NPRM, the Board proposed that all new and altered pedestrian signals conform to the requirements for accessible pedestrian signals in sections 4E.08 through 4E.13 of the MUTCD (NPRM R209.1).
Several entities submitted comments opposing universal installation of accessible pedestrian signals. Eight state and three local government entities advocated for their jurisdictions' more limited practices with respect to determining where accessible pedestrian signals should be installed: six states and one local government installed accessible signals upon citizen request or as part of planned upgrades; one state and one local government consulted with mobility specialists or disability advocacy groups before installing an accessible pedestrian signal in a given location; one state only installed accessible pedestrian signals where a substantial population of blind individuals is known to travel, such as near a school for students who are blind; one city installed accessible pedestrian signals within a quarter mile of light rail stations, and elsewhere upon request.
Two local governments, while not stating a current practice, indicated that they would like to work with organizations representing the “low vision community” to determine where accessible signals should be installed. Fifteen other local government commenters and six individual commenters from the engineering industry, and an association of city transportation engineers preferred that the guidelines leave the decision as to whether to install accessible pedestrian signals to “engineering judgment,” as specified in the MUTCD. A national organization of transportation officials expressed that the guidelines should require accessible pedestrian signals only where there is a demonstrated need. Three states and two cities indicated that they already provide accessible pedestrian signals whenever possible when new pedestrian signals are installed, or existing signals are altered.
This requirement for the installation of accessible pedestrian signals was also one of the proposed provisions of PROWAG that generated the most public support. More than 115 commenters, including disability rights organizations, individuals with disabilities, and mobility specialists, supported the proposed requirement.
Upon careful consideration of the comments, as well as the costs and benefits of this requirement, the Board has decided to retain in the final rule scoping specifying that accessible pedestrian signals be installed wherever new pedestrian signals are provided, and whenever pedestrian signals are altered. Accessible pedestrian signals are crucial to the independent movement of individuals who are blind or have low vision throughout public rights-of-way.
The Board has assessed the incremental costs associated with the installation of accessible pedestrian signals. FRIA at 46. The Board acknowledges that the requirement for universal installation of APS is the single most costly provision of PROWAG.
Specific changes to language of the provision are addressed in the section-by-section analysis below.
In the NPRM, the Board specified alteration of the signal controller and software, and replacement of a signal head as alterations that would trigger
Four disability rights advocacy organizations, one pedestrian advocacy organization, and four individuals supported the proposed specifications regarding specific actions that should trigger installation of accessible pedestrian signals, and requested that the Access Board add other triggering actions in the final rule. The National Committee on Uniform Traffic Control Devices (NCUTCD) recommended requiring installation of accessible pedestrian signals when traffic signal equipment modification or timing changes affect the ability of a pedestrian with a disability to be aware of the change.
The Access Board proposed the requirements of section R209.2 to ensure that accessible pedestrian signals would be installed during alteration projects. Upon consideration of public comments, the Access Board acknowledges the diverse nature of alterations that affect pedestrian signals, and declines in the final guidelines to specify specific actions that trigger the requirement to install accessible pedestrian signals. Rather, pedestrian signals are subject to the same alteration requirements as other pedestrian facilities. The entity making the alteration will assess, according to requirements in the guidelines as adopted by USDOT and DOJ, whether installation of an accessible pedestrian signal is required. The Board notes that USDOT and DOJ may provide further specifics as to alterations triggering installation of APS in their rulemakings adopting these guidelines.
In the NPRM, the Board proposed a requirement for installation of an accessible pedestrian actuated signal at multilane pedestrian street crossings
Roundabouts present unique challenges for pedestrians who are blind. At roundabouts, entering and exiting vehicles yield, but do not stop. The continuous traffic flow removes many of the audible cues that pedestrians who are blind use to navigate pedestrian street crossings. Without signals that periodically stop vehicles, pedestrians must assess when there is a sufficient gap in traffic to cross. Sighted pedestrians visually assess the distance and speed of on-coming cars to decide when they should cross. However, pedestrians who are blind or have low vision are not able to identify breaks in on-coming traffic by sight and lack the audible cues that might otherwise substitute for visible information.
The Board included the requirement for an accessible pedestrian signal or an accessible PHB at multilane pedestrian street crossings at roundabouts to make those complex pedestrian street crossings accessible to people who are blind or have low vision. At multilane roundabouts, pedestrians who are blind or have low vision face additional challenges. While a vehicle in the lane nearest the curb might stop for a pedestrian who is blind, the stopped vehicle may mask the audible cues of a car in the next lane that does not yield.
The Access Board received numerous comments on this proposed provision. Five state departments of transportation, eleven local government entities, two professional associations for engineers, three engineering companies, and two individuals opposed a universal requirement for the proposed pedestrian treatments at multilane roundabouts. These commenters opined that engineering judgement and/or warrant criteria should be used on a case-by-case basis to determine whether a pedestrian treatment is appropriate at a given roundabout crossing. Two states, seven local government entities, a local public works association, and AASHTO opposed the requirement on the grounds that pedestrian signals and PHBs will create a false sense of safety for pedestrians as drivers who would not be expecting signals at roundabouts would fail to yield to pedestrians.
One state, five local government entities, and a professional association related to the construction industry expressed concern that the addition of pedestrian signals or PHBs would defeat the purpose of using roundabouts instead of traditional intersections. Specifically, these commenters noted that roundabouts keep traffic continuously flowing, reduce air pollution from idling vehicles, reduce accidents, and may cost less to build as compared to fully signalized intersections. Three local government entities expressed concern that PHBs would be confusing to motorists in parts of the country where, at the time the comments were submitted, they were not frequently used. Three state departments of transportation, eight local government entities, a transportation engineering firm, and a public works professional association found the proposed provision too restrictive as written and urged the Access Board to consider other pedestrian crossing treatments such as raised crosswalks and rapid rectangular flashing beacons (RRFBs).
Many other commenters supported the proposed requirement for signals or PHBs at multilane pedestrian street crossings at roundabouts. Two municipalities, seven disability rights advocacy organizations, two pedestrian
The Access Board considered all of the comments submitted regarding pedestrian treatments at roundabouts. In addition to the comments, the Board considered relevant research on alternate pedestrian treatments such as raised crosswalks and RRFBs. Raised crosswalks are marked pedestrian crossings on elevated speed tables that require a driver to slow down to cross the speed table. Because drivers must slow their vehicles to traverse the raised crossing, they are more likely to yield to pedestrians waiting to cross. RRFBs are flashing yellow rectangular lights that are activated by the pedestrian and supplement a pedestrian warning sign. The flashing beacons draw a driver's attention to the pedestrian in the crosswalk, increasing the likelihood that the driver will yield to the pedestrian. Unlike the PHB, neither the raised crosswalk nor the RRFB provide the driver with a “stop” signal. Rather, they bring increased awareness to the presence of a pedestrian.
National Cooperative Highway Research Program Project 674 assessed the use of PHBs and raised crosswalks at a multilane roundabout by blind pedestrians in Golden, Colorado.
A study undertaken by Western Michigan University confirmed the effectiveness of PHBs at multilane roundabouts and showed that RRFBs could be effective in some instances.
A Federal Highway Administration (FHWA) study found further support for the conclusion that under certain circumstances, RRFBs can be effective at providing accessibility for pedestrian crossings at multilane roundabouts. FHWA, Pub. No. FHWA-SA-15-69, Evaluation of Rectangular Rapid-Flashing Beacons (RRFB) at Multilane Roundabouts, 34 (2015, Updated 2020)
The Board also reviewed Transportation Research Board-sponsored research on crossing solutions at roundabouts and channelized turn lanes for pedestrians who are blind or have low vision.
Multilane roundabouts remain highly complex crossings for pedestrians who are blind or have low vision. In light of the lack of clear audible cues at these crossings and the additional challenges posed by the geometry of multilane crossings in these locations, in the final rule the Board has retained the requirement for an enhanced crosswalk treatment at each multilane pedestrian crossing at roundabouts. However, based on commenter feedback and the Board's review of available research, the final rule includes three treatment options for crosswalks at roundabouts, in addition to standard accessible pedestrian signals: PHBs, raised crosswalks, and RRFBs. All three treatments demonstrated positive effects over untreated crossings in the research studies described above. While the three treatments did not perform identically in each research study, the Board finds that each treatment was effective in certain scenarios. The final rule requires that, like other accessible pedestrian signals, all new and altered PHBs provide audible and vibrotactile information in addition to visible cues, and all new and altered RRFBs provide audible information communicating that the warning lights are flashing.
The Board notes that research on single lane roundabouts indicates that certain single lane roundabouts pose challenges to pedestrians with disabilities attempting to cross.
In the NPRM, the Board proposed to require that the grade of pedestrian access routes in crosswalks not exceed 5% (NPRM R302.5.1). The proposed rule also limited the cross slope of pedestrian access routes to 2% (NPRM R302.6), and the cross slope of pedestrian access routes contained within crosswalks at approaches without yield or stop control to 5% (NPRM R302.6.1). The effect of these provisions was to require that in new construction, the leveling out of streets at intersections be extended to crosswalks. It is common practice to level out streets at intersections so that the slope of a street does not present a significant cross slope to the intersecting roadway. AASHTO recommends that at intersections, grades in excess of three percent should be avoided.
The cross slope of a crosswalk is the same as the grade of the roadway that runs through it. Where traffic is required to slow down at a crosswalk because there is a device such as a stop or yield sign, the grade of the road (and the cross slope of the crosswalk) can be flatter because vehicles move more slowly through the crosswalk. However, where traffic will flow across a crosswalk without slowing or stopping, such as during a green light or at an intersection without any traffic control device, abrupt changes in the grade of the road should be minimized to prevent a vehicle from jolting or bottoming out on the grade change in hilly areas.
The proposed rule specified cross slope of pedestrian street crossing in
In response to the NPRM, ten state entities, six local government entities, eight individuals from the engineering and planning industry, and one engineering firm indicated that the Board should use clearer language to distinguish between the types of crossings. Thus, in the final rule, the Board has separated the requirements according to the type of traffic control at the crosswalk: crosswalk with yield or stop control devices (R302.5.2.1); crosswalk at an uncontrolled approach (R302.5.2.2); crosswalk with traffic control signal or PHB (R302.5.2.3); and midblock and roundabout crosswalks (R302.5.2.4).
Many commenters expressed concern about the application of the cross slope provisions in alterations. Three state departments of transportation and one local government entity were concerned that changes in signalization alone, without any construction to the roadway itself, would trigger a requirement to comply with the cross slope requirements at pedestrian crossings. Two states, one association representing state departments of transportation, one local government, and one engineer pointed out that signalization of intersections change over time and questioned whether the requirement should be tied to a fluid marker. The local government and engineer commenters noted that while 5% maximum cross slope might be acceptable at the time of new construction, once more houses and facilities are built around an intersection warranting a stop sign, the requirement would shift to 2%. Commenters noted that a 2% maximum cross slope is less easily achieved in an alteration than in new construction. The Board notes that an alteration to a traffic control device would not necessarily trigger a requirement to comply with cross slope requirements at that crosswalk if the crosswalk is not being altered.
One state expressed concern that resurfacing roadways would trigger a requirement to regrade intersections. A local government indicated that retrofitting cross slopes of existing crossings would have more than minimal impacts, and another local government requested that existing crossings be entirely exempted from the requirement. Four organizations associated with the construction and public works industries expressed concern about the cost of compliance for existing intersections. One state was not sure that it could meet the cross slope requirements given existing infrastructure. Seven local government entities expressed that altering intersections to comply with cross slope requirements would be “unreasonable,” “burdensome,” “impractical,” “difficult,” or “not feasible without major reconstruction.”
The Board acknowledges that full compliance with the cross slope requirements for crosswalks, which is expected in new construction, may be challenging in some alterations due to existing physical constraints. In alterations, compliance with R302.5.2 is required to the maximum extent feasible where existing physical constraints, as discussed in R202.3, make compliance technically infeasible. If existing curbs, gutters, sidewalks, and utilities are not part of the facility being altered, they are generally considered “adjacent developed facilities” which are a type of existing physical constraint under R202.3 that could constrain the technical feasibility of compliance with R302.5.2. Thus, if a public entity is not otherwise altering the adjacent developed facilities as part of its crosswalk alteration and those existing physical constraints would make compliance with R302.5.2 technically infeasible, then compliance is required to the maximum extent feasible without needing to alter the adjacent developed facilities.
The Board notes, however, that when alterations are made to crosswalks, R203.6.2 requires curb ramps or blended transitions to be provided on both ends of the crosswalk where a pedestrian access route crosses a curb, thus making such curb ramps or blended transitions part of the crosswalk being altered. Accordingly, existing curb ramps and blended transitions are not considered existing physical constraints under R202.3. Similarly, existing curbs within the crosswalk where there is no curb ramp or blended transition, are not considered existing physical constraints under R202.3.
The Board has assessed the costs of compliance with the crosswalk cross slope requirements in the FRIA.
Several state and local jurisdictions objected to the technical requirements themselves. One state department of transportation indicated that a 3% maximum cross slope is appropriate for pedestrian crossings with stop and yield control, and 6% maximum is appropriate for other crossings. Two local government entities recommended 5% maximum cross slope for all crossings. Another state agreed with a grade limitation on side streets, but not through streets, which would eliminate restrictions on cross slope of pedestrian crossings spanning through streets. Another state DOT commented that regrading pedestrian crossings is costly and problematic for vehicles, and preferred that tabling not be required. Three local government entities, a public works association, and an association of engineering professionals expressed concern that the cross slope requirements will create a “roller coaster” street profile or “jolt” vehicles as they pass over pedestrian crossings. The Board disagrees that the technical requirements, when properly implemented, will result in the engineering concerns expressed by some commenters. Further, the Board observes that if an entity can demonstrate that the unique characteristics of the underlying terrain of a specific newly designed intersection preclude full compliance with the cross slope requirements, under DOJ's Title II regulations under the ADA, full compliance with the cross slope requirements may not be required.
Other commenters supported the proposed requirements. A professional organization of mobility specialists for people who are blind requested that the Board encourage tabling wherever feasible. A pedestrian advocacy organization asserted that 2% should be the maximum cross slope for all pedestrian crossings. A non-profit accessible design organization also indicated that 2% maximum cross slope should be the standard for all pedestrian crossings, noting that a 5% cross slope is too steep for many manual wheelchair users.
After careful review of the comments, the Board has retained the substantive cross slope requirements for crosswalks as proposed. A cross slope of 1:48 (2.1%) is well established in accessibility guidelines as the appropriate maneuverable cross slope for most individuals in manual wheelchairs and persons with balance impairments.
The Board notes that if the 1:48 cross slope ratio were expressed as a percentage to the nearest hundredth, the relevant percentage would be 2.08%. This percentage has been expressed as 2.1% in the regulatory text due to the limitations of current digital measuring tools commonly used in sidewalk construction, which would round 2.08% to 2.1%.
In these guidelines, the Board balances accessibility with engineering considerations. The Board has assessed the costs of compliance with the crosswalk cross slope requirements in the FRIA.
The proposed guidelines incorporated by reference portions of the 2009 edition of the USDOT Federal Highway Administration's (FHWA's) Manual on Uniform Traffic Control Devices (MUTCD), which is the standard for traffic control devices used throughout the United States. The incorporated sections included several definitions and technical requirements for alternate pedestrian access routes and accessible pedestrian signals and push buttons (NPRM R105.2; R205; R209.1).
Several disability rights advocacy organizations objected to this approach. Two organizations objected to the Access Board's use of the MUTCD in lieu of creating its own technical specifications for these regulated features, while others did not oppose the use of the MUTCD standard but felt that the relevant text of the MUTCD should be reproduced within the guidelines or in an appendix. A variety of commenters urged the Access Board to include the full text of MUTCD definitions for specified terms incorporated by reference.
The National Technology Transfer and Advancement Act requires Federal agencies to use technical standards developed by voluntary consensus standards organizations to carry out policy objectives. 15 U.S.C. 3701
Consistent with its statutory obligations and OMB guidance to reduce the burden on regulated entities, the Access Board uses existing technical standards where possible to meet its policy objectives. Accordingly, the Board proposed incorporation by reference of the MUTCD sections. However, upon review of the comments, and after over a decade of providing technical assistance on the application of those provisions, the Board concurs with commenters that incorporating MUTCD provisions by reference does not provide sufficient clarity for a mandatory standard.
Specifically, the Board notes that the MUTCD contains several types of provisions, some of which are mandatory standards and some of which are guidance, options, and supporting explanations. The Board proposed to incorporate by reference the standards, but further indicated that the guidance, options, and support statements must be used to interpret the standards. The NPRM further stated that if there were any differences between the MUTCD and the proposed rule, the proposed rule applied. Upon review, and in light of the comments, it is clear that this approach does not provide sufficient specificity to achieve uniform nationwide accessibility. In addition, application of the MUTCD relies heavily on engineering judgement, which further invites the possibility of subjective determinations of the need for specific accessibility features.
In the final rule, the Board has addressed this confusion by eliminating all references to the MUTCD and including the specific definitions and requirements directly in the rule text. The technical provisions and the definitions included in the rule text adhere closely to substantive requirements of the MUTCD. The origin of the substantive requirements, and any deviations from the MUTCD, are explained in the Section-by-Section discussion below.
The Board notes that four state DOTs and three local government commenters expressed concern that these guidelines “conflict” with the MUTCD. One state DOT and two local governments indicated that where MUTCD and these guidelines differ, the MUTCD should apply. Two state DOTs commented that if certain treatments are required for accessibility purposes, they should be contained in the MUTCD. Another state department of transportation observed that the MUTCD and the guidelines should not be interpreted as conflicting.
In the development of this final rule, the Access Board consulted representatives from USDOT's Federal Highways Administration, which issues the MUTCD. In addition, the Access Board reviewed USDOT's proposed rule to update the MUTCD. National Standards for Traffic Control Devices; the Manual on Uniform Traffic Control Devices for Streets and Highways; Revision, 85 FR 80898 (proposed Dec. 14, 2020)(to be codified at 23 CFR parts 470, 635, and 655). When USDOT undertakes its own rulemaking to adopt these guidelines as enforceable standards, USDOT will determine how to ensure that there is no “conflict” within its own regulations.
To improve clarity of the rule text, the Board made some non-substantive structural changes. First, while not a change to the rule text itself, the advisories that appeared with the proposed rule text have been removed. The Access Board no longer publishes advisories in the Code of Federal Regulations (CFR) as the information contained in those advisories is guidance, not mandatory requirements. The Access Board will provide guidance on its website to assist regulated parties understand and properly implement the final enforceable standards that are
Second, as previously noted, the Board eliminated incorporation by reference of portions of the MUTCD, opting instead to state the requirements directly in the PROWAG rule text. The Board agreed with numerous commenters who indicated that stating the requirements in the rule text would provide greater clarity. Substantive changes relating to the specific MUTCD sections referenced in the proposed rule are discussed in their respective sections below.
The final rule contains scoping and technical requirements that ensure that pedestrian facilities located in public rights-of-way are readily accessible to and usable by pedestrians with disabilities. This includes both pedestrian facilities in a street or highway right-of-way and pedestrian facilities located in an independent right-of-way or easement, such as a shared use path. These scoping and technical requirements apply to facilities covered by both the ADA and the ABA and become mandatory once adopted for enforcement by another Federal agency issuing regulations implementing the ADA, Section 504 of the Rehabilitation Act, or the ABA.
The intent of this section has not changed from what was proposed in the NPRM; however, the text has been edited for clarity. Specifically, R101.1 states that the guidelines apply to public rights-of-way, including a public right-of-way that forms the boundary of a site or that lies within a site. This clarification is provided so that jurisdictions understand that these guidelines apply to public rights-of-way that may also be part of a “site,” and thus subject to 36 CFR 1191.
As stated in the Major Issues section above, these guidelines do not address existing facilities unless they are altered at the discretion of a covered entity. DOJ's and USDOT's regulations implementing these guidelines under the ADA, will address requirements for existing pedestrian facilities in the public right-of-way.
This section, titled “Equivalent Facilitation” in the proposed rule, states that under the ADA, the use of alternative designs, products, or technologies that result in substantially equivalent or greater accessibility and usability than the proposed guidelines is permitted. The Access Board has added language clarifying that the use of alternative designs, products, or technologies is not permitted for facilities subject to the ABA. The Board has also added a provision at R102.2 explaining that under the ABA, deviations from an enforceable standard issued by GSA, HUD, DoD, or USPS require an approved waiver or modification, which is issued by the standard-setting agency upon a determination that the waiver or modification is “clearly necessary.”
Conventional industry tolerances apply where dimensions are not stated as a range. The final rule clarifies that dimensions that are stated as having a specific minimum or maximum endpoint are considered a range. For example, a cross slope specified as “1:48 (2.1%) maximum” is considered a range from zero to 1:48 (2.1%). Designing to a dimension below the maximum allows for construction inaccuracies without the need for a tolerance.
Several engineers and state DOTs requested that we provide a list of specific tolerances. Tolerances are determined by the industry for the material used. It would not be beneficial to codify specific tolerances in these guidelines that cannot be easily updated when revised by industry. The Board also received comments requesting guidance on how measurements should be taken to assess compliance and others expressing concern about how construction variations would be treated in enforcement scenarios. These concerns should be directed to the enforcing agencies when they issue their proposed rules.
Where the required number of elements or facilities to be provided based on the specified ratio or percentage is not a whole number, the result is rounded up to the next whole number. For example, if a group of five benches is provided at a location that is not a transit stop or shelter, R209.6.2 requires 50% of the benches to provide clear space complying with R404. Since 50% of five is 2.5, the result is rounded up and three benches would be required to provide the clear space.
In the final rule, the Board has omitted the proposed sentence indicating that rounding down for values less than one half is permitted where the determination of the required size or dimension of an element or facility involves ratios or percentages. The Board notes the potential for misinterpretation of this sentence as allowing a regulated entity to round down the measurement of a slope, for example a cross slope of 2.44%, to a whole number. The Board further notes that while this provision is included in the 2004 ABA and ADA Accessibility Guidelines, it has long been a source of confusion. Notably, the Board received a comment from a local government entity erroneously applying this provision to the walking speed used to determine pedestrian signal timing.
Linear measurements in these guidelines are stated in both U.S. customary units and metric units. Slopes are expressed in both ratios and percentages. Each system should be used independently and consistently, as they may not be exact equivalents.
In the proposed rule, slope measurements were stated only in percentages, which in most cases had been rounded to whole numbers. For consistency with the 2004 ADA and ABA Accessibility Guidelines, which expresses slope only in ratios, in the final rule slopes are expressed in both ratios and percentages. The practical effect of this change is that slopes stated as 2 percent in the proposed rule are 1:48 (2.1%) in the final rule, which is the ratio used in the 2004 ADA and ABA Accessibility Guidelines. The Board has elected to state percentages to one decimal place for ease of implementation, as current digital measuring tools commonly used in sidewalk construction typically provide measurements to one decimal place.
This was section 105 in the NPRM but was redesignated as section 104 when the Board deleted proposed section 104 as the result of the decision to eliminate the reference to the MUTCD in favor of providing the actual language from the MUTCD (sometimes as modified) throughout the rule.
The proposed rule indicated that undefined terms are defined using a collegiate dictionary in the sense that the context implies. The final rule implements the Board's current standard approach to undefined terms, stating that undefined terms shall be given their ordinary meaning in the sense that the context implies.
This provision states that the plural and singular forms of a word are used interchangeably in these guidelines.
The Board's decision to include all substantive requirements in the final rule text in lieu of incorporating MUTCD provisions by reference has resulted in significant expansion of the number of defined terms in these guidelines. The proposed rule text, as modified by the SNPRM, included 17 definitions and nine MUTCD definitions that were incorporated by reference.
In addition, the proposed rule specified that terms appearing in the sections of the MUTCD that were incorporated by reference would have the meanings as stated in the definition section of the MUTCD. In moving MUTCD requirements and definitions that had been previously incorporated by reference directly into the rule text, the Board also added to the rule text the relevant defined terms from MUTCD that appeared in these sections.
The Board also added several terms to provide clarity to the rule text and removed a few defined terms that were no longer needed in light of revisions to the proposed rule. In total, the final rule has 52 defined terms, which are identified throughout the rule text in italic font.
The following terms were added from the MUTCD, either verbatim, or with minimal edits made for clarity: Accessible Pedestrian Signal, Crosswalk, Highway, Median, Pedestrian, Pedestrian Interval Change, Pedestrian Hybrid Beacon, Pedestrian Signal Head, Push Button, Push Button Locator Tone, Roadway, Roundabout, Sidewalk, Splitter Island, Traveled Way, and Walk Interval. The following additional terms, which have definitions that are not taken from MUTCD, have been added to provide further clarity to the rule text: Block Perimeter, Boarding Platform, Building, Curb, Detectable Warning Surface, Developed, Grade, Parallel Curb Ramp, Passenger Loading Zone, Pedestrian Activated Warning Devices, Pedestrian Refuge Island, Perpendicular Curb Ramp, Ramp, Stair, Standard Curb Height, Street,
A few proposed defined terms have been removed from the final rule:
• “Facility,” a term and definition that came from ADAAG, has been replaced by “pedestrian facility” and a corresponding definition that more accurately reflects how the term is used in PROWAG. In addition, the reference to “elements” was removed from the definition of pedestrian facility, since elements are components of a pedestrian facility.
• “Island,” which was proposed to be incorporated by reference from MUTCD, has been replaced by “Pedestrian Refuge Island” with a corresponding definition that clarifies the characteristics that make an island suitable for pedestrian refuge (specifically, that the traversable path of the island be at least 72 inches long in the direction of travel to allow sufficient space for two detectable warning surfaces, separation of those surfaces, and space for a pedestrian to wait).
• “Intersection,” which was proposed to be incorporated by reference from MUTCD, has been eliminated from the defined terms. The Board concluded that future regulated entities, specifically state and local departments of transportation, can readily identify an intersection, and that reproducing the highly technical MUTCD definition of intersection in the rule text would not provide additional clarity.
• “Vertical Surface Discontinuities” was eliminated entirely from the rule text. In the final rule, this concept is expressed in the relevant provisions as “changes in level,” which is a widely understood requirement of ADAAG.
In the final PROWAG rule text, most of the original definitions that were proposed have been edited for clarity as follows:
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All newly constructed pedestrian facilities and elements, and all altered portions of existing pedestrian facilities must comply with these guidelines. There is no substantive change in the general scope of the final rule from what was proposed. However, as described in the major issues section above, the Board clarified that newly constructed pedestrian facilities are those that are constructed on greenfield. Any pedestrian facilities or elements that are constructed on or added to developed land, as defined in section R104 are subject to the requirements for alterations, described in section R202.
R201.1 excepts from compliance pedestrian facilities within areas used only by service personnel for maintenance, repair, or monitoring of equipment. This exception was included in the proposed rule as a separate provision entitled “R203 Machinery Spaces.”
This provision specifies that both temporary and permanent pedestrian facilities in the public right-of-way must comply with these guidelines. Temporary facilities might include outdoor festival structures or pop-up service counters. In the final rule, the provision clarifies that when a pedestrian circulation path or transit stop is temporarily closed, an alternate pedestrian access route or transit stop must be provided in accordance with R204. As stated in R204, temporary alternate pedestrian access routes are subject to the technical requirements of R303 and R402 in lieu of the full requirements for permanent pedestrian access routes described at R203.
This provision explains that buildings, structures, and elements that are in the public right-of-way and are not specifically covered by these guidelines are subject to the applicable requirements for buildings and sites at 36 CFR part 1191. In response to commenters' requests for clarity as to what is intended here, the Board added examples of buildings, structures and elements at safety rest areas or park and ride lots, and temporary performance stages and reviewing stands. As stated in R201.2, all permanent and temporary pedestrian facilities in the public right-of-way must comply with accessibility standards. However, PROWAG does not provide technical requirements for every type of structure that is provided for pedestrian use in the public right-of-way. For example, technical accessibility requirements for performance stages are not included in PROWAG, but this provision directs a jurisdiction constructing a performance stage in the public right-of-way to the buildings and sites guidelines for technical accessibility requirements of that structure.
The main purpose of this section is to describe the additional flexibilities provided for compliance when construction of pedestrian facilities and elements occurs on developed land as compared to the expected full compliance of new construction on undeveloped land. These flexibilities are as follows.
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In addition, in section R202.4, the final rule states that alterations may not decrease the accessibility of existing pedestrian facilities below the requirements of the guidelines. This provision has been edited for clarity. The Board uses the term “accessible” in the rule text to refer to pedestrian facilities that are compliant with the guidelines (R104.3). This baseline is useful for jurisdictions implementing PROWAG in certain alteration scenarios where they must make choices amongst various accessible features to achieve compliance. For example, to add a missing landing, the slope of an existing curb ramp may need to be increased to the maximum allowable slope. This is an acceptable choice under these guidelines.
In addition to the above-described changes, the Board has made two other important modifications to the Alterations section of these guidelines. First, as described in the Major Issues section, the Board has included pedestrian facilities and elements that are “added” to developed areas within the definition of alteration. This is a change from the proposed rule where added elements and facilities were subject to the requirements for new construction. The Board agreed with numerous commenters who expressed the view that existing physical constraints present on developed property might affect the extent to
Second, also as discussed in the Major Issues section, the Board stated at proposed R202.3 that each altered element, space, or facility “within the scope of the [alteration] project” was required to comply with these guidelines. Some state and local government commenters indicated confusion over the meaning of “scope of the project,” and some disability rights advocacy organizations expressed concern that the phrase did not clearly convey expectations for compliance with these guidelines. The Board concurs that this provision was an unnecessary source of confusion and has eliminated the proposed R202.3 (which would have appeared at 202.1 in the final rule) as duplicative with the general scoping provision at R201.1. The term “scope of the project” no longer appears in the guidelines. As in the 2004 ABA & ADA Accessibility Guidelines, whatever is altered must be made compliant.
This section contains scoping requirements that explain where pedestrian access routes are required, and scoping requirements that point to the technical requirements in Chapters 3 and 4 applicable to each component of pedestrian access routes.
Pedestrian access routes are a portion of the traversable pedestrian facilities in a public right-of-way that must comply with the accessibility requirements in these guidelines. In new construction, there will be a continuous network of pedestrian access routes that connect all accessible elements, spaces, and pedestrian facilities (R203.2). In alterations, a continuous network of pedestrian access routes will be established piece-by-piece as pedestrian facilities are altered and brought into compliance with PROWAG.
A pedestrian access route exists within or is connected by each newly constructed or altered traversable pedestrian facility: pedestrian circulation paths (including shared use paths) (R203.3); crosswalks (R203.4); pedestrian at-grade rail crossings (R203.5); curb ramps and blended transitions (R203.6); pedestrian overpasses and underpasses (R203.7); ramps (R203.8); elevators and limited use/limited application elevators (R203.9); platform lifts (R203.10); and doors and gates (R203.11).
The structure of section R203 Pedestrian Access Routes in the final rule has been revised from the proposed section R204 of the NPRM (as modified by the SNPRM). First, with edits to R203.1 General, the Board has clarified that the facilities listed in R203 either “contain” or “connect” a pedestrian access route. In the years since the NPRM was published, Access Board technical staff have received inquiries related to whether each piece of sidewalk or pedestrian facility is expected to be part of a pedestrian access route, or whether, for example, a pedestrian access route could be provided on one side of the street and not the other. This confusion stems from a requirement in the 2004 ABA and ADA Accessibility Guidelines that at least one accessible route connect buildings, sites, elements, and spaces, but does not require that each route between these locations be accessible.
The public right-of-way in this aspect is not analogous to buildings and sites. Every new or altered pedestrian facility must be made accessible. Thus, the Access Board clarifies that the requirements for pedestrian access routes are applicable to every newly constructed or altered pedestrian circulation path, crosswalk, pedestrian at-grade rail crossing, and pedestrian overpass and underpass, and the curb ramps, ramps, elevators, platform lifts, and doors and gates that connect pedestrian facilities with pedestrian access routes must also comply with the accessibility requirements of PROWAG.
Second, the Board has moved the scoping for crosswalks (referred to as pedestrian street crossings in the proposed rule at NPRM R206) and the scoping for curb ramps and blended transitions (NPRM R207) into the final rule's scoping section for pedestrian access routes at R203. The Board made this change to further clarify that crosswalks, curb ramps, and blended transitions are pedestrian facilities that comprise part of the continuous network of pedestrian access routes present in the public right-of-way.
Third, in response to numerous technical assistance inquiries over the years since the NPRM was published, in the final rule the Board has added detailed scoping as to the required placement of curb ramps. The scoping clarifies when curb ramps are required at intersection crosswalks, midblock and roundabout crosswalks, on-street parking, and passenger loading zones. It further clarifies that when alterations are made to crosswalks, missing curb ramps must be added as part of the alteration. This added scoping is discussed in greater detail below.
In response to the proposed rule (NPRM 204.2), some commenters requested that the Access Board explicitly require that jurisdictions provide sidewalks, while others requested that the Board clarify that the PROWAG rule does not require sidewalks. The final rule requires that pedestrian access routes connect accessible elements, spaces, and pedestrian facilities (R203.2). A pedestrian access route is comprised primarily of conforming portions of a pedestrian circulation path, which are defined as “a prepared exterior or interior surface provided for pedestrian use in the public right-of-way” (R104.3). It does not matter under the rule whether the pedestrian access route runs through a sidewalk, shared use path, shoulder intended for pedestrian use, or other type of prepared surface, as long as it meets the technical requirements for pedestrian access routes. Jurisdictions may meet the requirements of PROWAG using any of the available options.
In the final rule the Board has revised this provision to indicate that transitional segments, as defined in R104.3, may be used to connect new or altered pedestrian access routes to existing pedestrian circulation paths. Transitional segments appeared in the proposed rule at NPRM R202.3.2.
As noted above, in the final rule, the Board has relocated the scoping for crosswalks to the scoping section for pedestrian access routes to reinforce that crosswalks have a pedestrian access
The Board has added scoping for pedestrian at-grade rail crossings to clarify that wherever pedestrian at-grade rail crossings are provided they contain a pedestrian access route. The technical requirements are referenced.
The 2011 NPRM specified that a curb ramp (or blended transition) must be provided for each pedestrian crossing (NPRM R207.1). The proposed rule indicated that a diagonal curb ramp would continue to be permitted in an alteration scenario where physical constraints prevented the installation of a curb ramp for each crossing (NPRM R207.2). In response to these proposed provisions, a few state and local government commenters requested flexibility to install a single curb ramp based on engineering judgement, while others either agreed with the changes or requested that the Board more clearly state the requirements. Two local government commenters lamented the costs of having installed non-compliant curb ramps over a number of years. Other individuals and disability rights advocacy organizations agreed with limiting the use of diagonal curb ramps.
The final rule maintains the requirement that one curb ramp or blended transition be provided for each crosswalk at an intersection corner, and alternatively allows a blended transition to span all crosswalks at an intersection corner. Use of a single curb ramp at the apex of an intersection corner is permitted in alterations where existing physical constraints make compliance technically infeasible. Diagonal curb ramps often route users into the roadway, not within a crosswalk. To provide equity to persons with disabilities in the public right-of-way, PROWAG must ensure that a person in a wheelchair who requires a curb ramp to cross a street is afforded the same opportunity to stay within the safety of a crosswalk as a person who is able to step off the curb directly into a crosswalk. Thus, unless there are existing physical constraints that prohibit the provision of a curb ramp for each crosswalk, one curb ramp per crossing that is contained within the crosswalk must be provided.
The Board notes that since 2011, numerous state and local jurisdictions have adopted a requirement for one curb ramp per crosswalk at an intersection corner, and the Board is not aware of widespread engineering concerns that have resulted from this shift in local policies.
In response to numerous technical assistance inquiries received by the Board since the NPRM was published seeking clarification on the places where curb ramps must be installed, the Board has added detailed scoping for the required placement of curb ramps. The NPRM stated that curb ramps or blended transitions are required at each pedestrian street crossing. This substantive requirement has not changed, but the Board has provided further clarification regarding what it meant by “pedestrian street crossing” to explain where curb ramps are required. As described above, the Board replaced the term “pedestrian street crossing” with the MUTCD-defined term “crosswalk.”
The MUTCD definition of crosswalk, which appears in R104.5, indicates that a crosswalk is present wherever there is a pedestrian circulation path on one side of a street that approaches the roadway at an angle such that the path would cross the street if the lateral lines of the path were continued (regardless of whether it is marked or unmarked), or where pavement markings indicate a crosswalk. R203.6.1.1 and R203.6.2 clarify that a curb ramp or blended transition must be provided at each end of a crosswalk at an intersection corner, a midblock crossing, and a roundabout crossing. These provisions further clarify that where crossing is prohibited at an intersection or not intended midblock or at a roundabout, jurisdictions must take care to ensure that there is no crosswalk, no curb ramp, and the pedestrian circulation path is separated from the roadway. Information on how to ensure that no crosswalk is present has been added to these provisions for clarity. This information was previously stated in an advisory that accompanied the NPRM rule text (NPRM Advisory 206).
Equity in the public right-of-way requires that persons with disabilities have equal access to crosswalks and information about whether a crosswalk is present. Where pedestrian crossing is permitted, curb ramps must be provided so that persons who use wheelchairs can access them. Where pedestrian crossing is prohibited at an intersection or is not intended midblock or at a roundabout, cane-detectable features must indicate to persons who are blind that this a not a place to cross. Several state DOTs commented on the NPRM advisory, expressing concern that the addition of detectable treatments would be costly, unnecessary, or obstruct sightlines for motorists. The Board has included an assessment of the costs in its Final Regulatory Impact Analysis and notes that jurisdictions have options for ensuring that they do not create a crosswalk where crossing is prohibited or not intended. This includes options, such as grass strips and landscaping, that can be used where a jurisdiction is concerned that a sign or barrier might obstruct motorists' sightlines.
The Board is aware of concerns expressed by individuals seeking technical assistance implementing the proposed rule that a curb ramp is required on each side of a crosswalk, even in scenarios where there is a pedestrian circulation path only on one side. The purpose of this requirement is to ensure that a person in a wheelchair who has entered a crosswalk on one side is able to safely exit the roadway on the other side as a person who does not use a wheelchair would do by stepping onto the curb. Jurisdictions that do not wish to provide a curb ramp on the side of the street where no pedestrian circulation path is present must ensure that there is no crosswalk, as defined in R104.3. Thus, the jurisdiction must provide a separation between the pedestrian circulation path and the roadway to indicate to pedestrians that crossing is prohibited. Where no
The Board has added scoping provisions at R203.6.1 clarifying that curb ramps or blended transitions may be required to connect on-street parking spaces, on-street parking space access aisles, and passenger loading zones to pedestrian access routes if needed to accomplish the required connection.
At R203.6.2, the Board has clarified that when alterations are made to crosswalks, curb ramps or blended transitions must be provided on both ends of the crosswalk where the pedestrian access route crosses a curb. This provision provides consistency with DOJ's and USDOT's joint technical assistance document on the requirements to provide curb ramps when streets, roads, or highways are altered through resurfacing.
In R203.7, the Board has clarified that pedestrian overpasses and underpasses include overpasses and underpasses on shared use paths. In addition, the Board has eliminated platform lifts as an option to achieve accessibility of these structures in new construction. A state disability council opined in its comments that limited use/limited application elevators and platform lifts do not provide equal access because of limited functionality. Platform lifts are more difficult for users with disabilities to independently operate and are more likely to breakdown in outdoor environments than elevators and limited use/limited application elevators. The Board is aware of many instances of maintenance issues and mechanical failures with respect to platform lifts and has thus revised the rule text to allow these devices only in alterations when installation of an elevator or limited use/limited application elevator is not technically feasible. Jurisdictions that install platform lifts should be aware of their maintenance obligations to ensure platform lifts remain operable at all times that the pedestrian facility is open for pedestrian use.
At R203.8 through R203.10, the Board added scoping provisions for ramps, elevators and limited use/limited application elevators, and platform lifts so that it is clear that wherever these facilities are present in the public right-of-way, they must comply with accessibility requirements.
In the final rule, the Board has revised the scoping for doors, doorways, and gates to require that all doors, doorways and gates that are part of a pedestrian access route must comply with the specified technical accessibility requirements. This is a change from the proposed rule, which required all doors, doorways, and gates of any pedestrian facility to comply with requirements (NPRM R218), and a change from the SNPRM which exempted doors, doorways, and gates on shared use paths from compliance (SNPRM R218). In the preamble to the SNPRM, the Board indicated that the exemption for shared use paths was provided to avoid a perceived conflict with AASHTO guidance. 78 FR 10110, 10113 (Feb. 13, 2013). AASHTO discourages the use of physical barriers on shared use paths.
In response to the SNPRM, several disability rights advocacy organizations commented that doors, doorways, and gates on shared use paths should not be excepted, and two state DOTs requested clarity regarding applicable technical standards for these facilities. The Board concurred with commenters that pedestrian gates on shared use paths should not be excepted from accessibility requirements. Persons with disabilities must be able to access shared use paths through gates if they are provided. The Board has thus reinstated the technical requirements for doors, doorways, and gates in the final rule. Further, consistent with AASHTO guidance, which recommends the use of bollards if physical barriers are needed to restrict motor vehicle entry, the final rule permits the use of bollards on shared use paths (R302.2).
The proposed scoping for alternate pedestrian access routes stated that an alternate pedestrian access route is required when a pedestrian circulation path is closed due to construction, alterations, maintenance operations, or other similar conditions (NPRM R205). In the final rule, the Board has maintained similar scoping; however, it has removed the term “alterations” from the list of conditions to avoid confusion as “construction” accurately covers the intended scenario. In addition, the Board has edited the text to indicate that the requirement to provide an alternate pedestrian access route is triggered by a pedestrian circulation path being made inaccessible due to the described conditions, rather than being completely closed, since a pedestrian circulation path can be unusable for persons with disabilities without being completely closed to all users. The Board has added “closure” to the list of conditions triggering the requirement for an alternate pedestrian access route to clarify that where a pedestrian circulation path is completely closed for any reason, an alternate pedestrian access route must be provided.
In the proposed rule, the scoping provision for alternate pedestrian access routes pointed to provisions of the MUTCD that were incorporated by reference. The final rule instead points to the relevant technical provisions of chapters 3 and 4, as the MUTCD provisions are no longer incorporated by reference.
In response to the proposed rule, state and local government commenters raised concerns regarding scenarios where the alternate route would need to deviate substantially from the original pedestrian circulation path. For example, one state DOT indicated that freeway widening projects may necessitate the complete closure of a bridge, including the pedestrian facilities, making an alternate pedestrian access route infeasible or impossible to provide.
In response to these concerns, in the final rule the Board has added an exception allowing an “alternate means of providing access” for pedestrians with disabilities where establishing an alternate pedestrian access route is technically infeasible. An “alternate
The Access Board received numerous public comments supporting a requirement for the provision of alternate pedestrian access routes, including approximately 150 individual commenters and several disability rights and pedestrian advocacy organizations. Several local government commenters and one state DOT requested flexibility to provide alternate accessible routes only when deemed practicable. In addition, two state DOTs, two local government commenters, and two industry organizations expressed concern regarding the cost of providing alternate routes.
The Board acknowledges that there are costs involved in providing alternate pedestrian access routes and has assessed those costs in the FRIA.
In the final rule, the Board has added a provision requiring that where accessible transit stops are not accessible due to construction, maintenance operations, or other similar conditions, an alternate transit stop be provided. MUTCD section 6D.01, which the Board proposed to incorporate by reference indicates that to accommodate the needs of individuals with disabilities, transit stops should be maintained in temporary traffic control zones (6D.01 paragraph 11). If the accessibility of a transit stop cannot be maintained, an alternate accessible transit stop must be provided.
The Board has added a provision in the scoping of the final rule to emphasize that where a temporary passenger loading zone is provided, it must be accessible per the relevant technical provisions. This requirement is already covered by the general scoping provision R201.2, which indicates that the requirements in the guidelines apply to temporary pedestrian facilities. However, the Board added this provision to emphasize that alternate passenger loading zones provided in the public right-of-way during construction or maintenance operations must be accessible.
Detectable warning surfaces are standardized surfaces built in or applied to certain pedestrian walking surfaces to warn pedestrians who are blind or have low vision of a hazard. A distinct cane-detectable pattern of truncated domes provides a tactile cue of transitions to vehicular routes and of open drop-offs at transit platforms. The proposed rule required detectable warning surfaces at curb ramps or blended transitions, which remove tactile cues otherwise provided by curb faces; at cut-through pedestrian refuge islands to indicate their presence within a crosswalk; at at-grade rail crossings not located in a street or highway; along drop-offs at the boundary of passenger boarding platforms, which are above standard curb height; and along boarding sidewalk and street-level rail boarding and alighting areas not protected by screens or guards.
In the final rule, the Board is also requiring detectable warning surfaces on pedestrian circulation paths at driveways with stop or yield control to alert pedestrians who are blind or have low vision that they are walking into an active vehicular way. The Board indicated in an advisory that accompanied the proposed rule text that detectable warning surfaces should be provided at commercial driveways with stop or yield control (NPRM Advisory R208.1). Several commenters, including state and local governments, requested clarification on the provision of detectable warning surfaces at commercial driveways. In the final rule, the Board clarifies that detectable warning surfaces are required at driveways where stop or yield control is provided. In the final rule, the Board declines to limit the covered driveways to “commercial” driveways to ensure that pedestrian circulation paths at driveways to multifamily housing facilities that have stop or yield control also have detectable warning surfaces.
Some state and local government commenters encouraged the Board to move the requirement for detectable warning surfaces at commercial driveways from the advisory to the rule text. Two state DOT commenters questioned whether stop or yield control was the appropriate threshold for application of the requirement. The Board has concluded that where there is sufficient vehicular traffic to provide stop or yield control (
Several commenters questioned whether the Board intended to require detectable warning surfaces at street or sidewalk level bus stops. In R104.3, the Board added a definition of “boarding platform” to clarify that detectable warning surfaces are only required where the bus boarding and alighting area is on a platform raised above standard curb height.
The proposed rule indicated that detectable warning surfaces are neither required nor desirable at cut-through pedestrian refuge islands that are less than 6 feet in length in the direction of pedestrian travel (NPRM R208.2 and NPRM Advisory R208.2). In the final
In the final rule, the Board has restructured for clarity the scoping section for detectable warning surfaces at R205 to provide a separate provision for each place that detectable warning surfaces are required. Each provision indicates that technical requirements relevant to that placement.
Where pedestrian signal heads and pedestrian activated warning devices are provided at crosswalks, they must be accompanied by audible information devices that make those visual signals accessible to persons who are blind or have low vision. In the proposed rule, the Board incorporated by reference sections of the MUTCD in lieu of providing technical requirements for these devices.
As proposed by incorporation by reference of MUTCD section 4E.09 paragraph 7 (NPRM R209.1), the final rule requires that the accessible features of pedestrian signal heads and pedestrian activated warning devices must be available at all times.
Commenters expressed confusion regarding the expectations for implementation of the incorporated sections of the MUTCD. In response to these concerns, in the final rule the Board has stated the technical requirements for accessible pedestrian signal heads and accessible pedestrian activated warning devices directly in the rule text. The scoping section for these devices has been modified to provide detailed references to the new technical sections.
Numerous state and local government commenters objected to a universal requirement for accessible pedestrian signals in new construction wherever pedestrian signal heads are provided. As described above in the Major Issues section, after careful consideration of these comments, the Board has retained the requirement for accessible features for all new and altered pedestrian signal heads and pedestrian activated warning devices.
In the proposed rule, the Board specified that altering the signal controller and software, or replacing the signal head, would constitute an alteration requiring compliance with the technical requirements for accessible pedestrian signals and push buttons. As described above in the Major Issues section, in the final rule the Board has removed the provision specifying the types of alterations that would trigger implementation of the technical accessibility requirements for pedestrian signal heads and pedestrian activated warning devices. USDOT and DOJ may provide additional guidance on these issues.
Finally, in the final rule the Board has updated the terminology used in the heading of this section for consistency with the terminology used by MUTCD and USDOT, and to better described the devices that must be made accessible.
Limitations on the extent to which objects may protrude horizontally into a pedestrian circulation path, as well as vertical clearance requirements above a pedestrian circulation path, apply to the full width of pedestrian circulation paths. The specific technical requirements for protruding objects and vertical clearances appear in section R402 of the final rule.
In the public right-of-way context, a “protruding object” is anything that extends into the three-dimensional space above a pedestrian circulation path, or an object contained wholly within it. Examples include, but are not limited to, streetlights, utility poles and equipment cabinets, signposts and signs, parking meters, trash receptacles, public telephones, mailboxes, newspaper vending machines, benches, transit shelters, kiosks, bicycle racks, planters and planted trees, and street sculptures. Technical requirements for protruding objects are designed to ensure that objects located within pedestrian circulation paths are cane-detectable, so they do not present hazards for people who are blind or have low vision.
Regulated entities will need to comply with the requirements for protruding objects when installing or permitting the installation of utilities, trees, awnings, street furniture, and other objects on or adjacent to pedestrian circulation paths. The American Association of State Highway and Transportation Officials (AASHTO) recommends that trees and shrubs be pruned to maintain usability of walkways, and that permitted uses of public rights-of-way, such as sidewalk cafes, be monitored to ensure that they do not encroach upon the pedestrian access route.
The scoping provision for protruding objects included in the SNPRM modified the proposed scoping provision text indicating that protruding objects must not reduce the clear width required for pedestrian access routes (NPRM 210). In the SNPRM, the Board added an 8-foot vertical clearance requirement for shared use paths (SNPRM 210.3). In the final rule, the Board has moved both vertical clearance and clear width requirements to the technical section on protruding objects and vertical clearance at R402.4 and R402.5. Comments received regarding those provisions are addressed in the discussion of R402.4 and R402.5 below. The Board has renamed the section to “Protruding Objects and Vertical Clearance” for clarity.
In response to the NPRM, a local government and an engineer commented that the requirements for protruding objects should apply only to the pedestrian access route portion of the pedestrian circulation path. A local government entity commented that an exception should be provided applying protruding objects requirements to only 36 inches of the pedestrian circulation path in constrained conditions. While a person using a wheelchair can visually assess a sidewalk to determine which portion has less cross slope or fewer changes in level, a blind pedestrian or a person with low vision is not going to know which portion of the pedestrian circulation path has been designated as a pedestrian access route. Thus, objects that protrude into any portion of the pedestrian circulation path could create a hazard if not cane-detectable. The Board thus maintains the requirement that the entire pedestrian circulation path comply with the technical requirements for protruding objects.
The Board acknowledges that the advisory included with the proposed rule created confusion for commenters
Signs that are intended solely for pedestrians, including transit signs, and all signs serving shared use paths, must comply with the technical requirements for visual characters at R410. Thus, signs that are not on shared use paths and are intended for both motorists and pedestrians, or bicyclists and pedestrians, are not required to comply. However, all signs on shared use paths are required to comply as pedestrians (1) should be aware of the potential movement of bicycles in the shared space, and (2) have a reasonable expectation that any sign on a shared use path is potentially providing pedestrian information.
The scoping excepts two categories of pedestrian signs from compliance with technical requirements for visual characters at R410. First, transit schedules, timetables, and maps are not required to comply. Compliance with the technical requirements for these specific types of transit signs would render them too large. Other types of transit signs, such as signs that identify stops and routes, must comply with the requirements. The second category of signs that are exempted from compliance are signs that are mounted immediately above or incorporated into a push button detector unit. The requirements of R410 may also make these signs too large.
In the NPRM, the Board used inartful language to convey that signs intended solely for pedestrians are the signs covered by this rule (NPRM 211.2). The Board has edited this language for clarity. Also, in the NPRM, the Board proposed that where audible sign systems and other technologies are used to provide equivalent information to information contained on pedestrian signs, the signs would not need to comply with technical requirements for visual characters (NPRM R211.1). In an accompanying advisory, the Board presented remote infrared signs as an example of an audible technology, that if used, would make it unnecessary for the sign to comply with technical requirements for visual characters (NPRM Advisory 211.1). In response to the proposed rule, two advocacy organizations for people who are blind or have low vision and a state DOT commented that the provision of audible signs does not negate the need for compliance with technical requirements for visual characters.
The Board concurs that reliance on audible signs in lieu of compliance for visual characters is insufficient for persons who have both low vision and hearing impairments. Further, while acknowledging the 14 commenters who indicated support for the use of remote infrared signs, the Board has concluded that relying on technologies that require a pedestrian to have a receiver does not currently provide equal access to visual signs; however, in the future this may be a possibility with more widespread development and adoption of wayfinding mobile applications. Thus, in the final rule, all signs intended solely for pedestrians must comply with technical requirements for visual characters except for the two categories of signs described above.
Requirements for accessible parking space signs have been moved to the technical section for on-street parking spaces (R310). The requirement for signage at accessible passenger loading zones has been eliminated in the final rule for consistency with ADAAG and to avoid misinterpretation of the sign as indicating exclusive use for passengers with disabilities, particularly where there is only one loading zone.
Each drinking fountain in the public right-of-way must comply with accessibility requirements at 602.1 through 602.6 of Appendix D to 36 CFR part 1191 (ADA & ABA Accessibility Guidelines).
Each permanent public street toilet must comply with sections 603 through 610 of Appendix D to 36 CFR part 1191 (ADA & ABA Accessibility Guidelines). Permanent street toilets are standalone toilet room units that are provided in public rights-of-way in cities throughout the United States. Specific examples of these permanent street toilets are discussed in the FRIA. FRIA at 125. Street toilets are different than, for example, traditional restroom facilities provided at highway rest stops. Those traditional bathroom facilities are in a building; pursuant to R201.3, they are subject to the applicable requirements of 36 CFR part 1191 (ADA & ABA Accessibility Guidelines).
Portable toilet units must comply with section 603 of Appendix D to 36 CFR part 1191 (ADA & ABA Accessibility Guidelines). Where there are multiple portable toilet units clustered in a single location, at least 5 percent, but no fewer than one of each type of toilet unit at each cluster must comply with the referenced technical requirements. In this context, “type” references those units differentiated by gender.
The Board has revised the scoping of the public street toilet section for clarity, including revising the heading, which reads “Public Toilet Facilities,” to avoid the confusion between public street toilets and traditional toilet facilities that was reflected in the public comments. The Board has also corrected the references to 36 CFR part 1191 (ADA & ABA Accessibility Guidelines) and provided separate provisions for permanent street toilets and portable toilet units.
At each group of adjacent tables, at least 5 percent, but no fewer than one table, must comply with technical accessibility requirements at 902 of Appendix D to 36 CFR part 1191 (ADA & ABA Accessibility Guidelines). The proposed rule had stated the requirements relative to each “location” where tables were provided, and a state government commenter indicated that this language was unclear. The Board has thus revised the text of this provision to clarify that the requirement applies to each group of adjacent tables, as opposed to all tables in a larger area that might be considered a “location.”
Each sales or service counter in the public right-of-way must comply with section 904.4 of Appendix D to 36 CFR part 1191 (ADA & ABA Accessibility Guidelines). In the final rule, the Board has added exceptions (one applicable to facilities subject to the ADA and a second applicable to facilities subject to the ABA) to this scoping for sales and service counters that are located in a building that is not itself in the public right-of-way, but that directly serves the public right-of-way, such as a walk-up service window on a sidewalk. The Board added these exceptions to eliminate confusion for sales and service counters that are part of a building and thus subject to 36 CFR part
In the proposed rule, the Board provided a single scoping provision for all benches in the public right-of-way except for those at tables (which are covered under the technical requirements for tables) (NPRM R212.6). This included benches along pedestrian circulation paths and those at transit stops and shelters. Commenters indicated that the requirement that clear space not overlap the area within 1.5 feet of the front of the bench was confusing. The Board concluded that while the requirement is appropriate for transit shelters, it should be revised for other contexts.
In the final rule, the Board has clarified that for benches at transit stops (R209.6.1) and benches not at transit stops or shelters (R209.6.2) the clear space complying with R404 must be next to either end of the bench, or if the bench does not have an “end,” such as a circular bench, the clear space must be either integral to the bench or located no more than 18 inches (455 mm) from the front of the bench. Where the clear space is integral to the bench, there will be a break in the bench where the clear space is located. These requirements ensure that a pedestrian using a wheelchair may sit in proximity to a companion seated on the bench. The Board has restructured the provision for clarity.
In the final rule, the Board has maintained the requirement that the clear space not overlap the area within 18 inches (455 mm) for benches provided within transit shelters.
Four commenters requested that the Board provide technical criteria for benches. The Board concurs with commenters that benches in the public right-of-way should have armrests and back support for maximum accessibility. As stated in the advisory that accompanied the proposed rule, benches that provide full back support and armrests to assist in sitting and standing are more useable by pedestrians with disabilities. However, as the Board did not propose specific technical requirements, such as specifications for armrest loads and dimensions and back height, the Board declines to add those now at the final rule stage.
One company that provides jurisdictions with advertisement-funded bus stop benches requested that the Board exempt bus stop benches located on unimproved surfaces from the requirement to provide clear space in order to protect the company's business model. The Access Board declines this request. Consistent with the implementation approach of many accessibility regulations, new construction and alterations provide an opportunity for a jurisdiction to add accessibility to a pedestrian facility at minimal additional cost. PROWAG requires the provision of boarding and alighting areas at all newly constructed and altered transit stops. Thus, when installing concrete for the boarding and alighting areas required by PROWAG, a jurisdiction has the opportunity to install a concrete pad for a bench if the jurisdiction so desires. PROWAG does not require jurisdictions to provide benches at transit stops, but where provided, they must comply with accessibility requirements.
Operable parts of other fixed elements to be used by pedestrians, including street furniture, not specifically addressed by this rule must comply with technical requirements for operable parts at R403. This provision has been added in response to commenters' concerns about other types of street furniture that are not specifically addressed in the rule text.
The Board notes that operable parts on parking meters and pay stations other than those that serve accessible parking spaces, which have additional technical requirements specified at 310.6, are covered under R209.7 and must comply with the technical requirements for operable parts at R403. This means that all parking meters and pay stations must meet clear space, reach range, and operation requirements; however, they do not need to comply with requirements for visual displays stated at R310.6 that ensure information is visible to a person using a manual wheelchair. Two disability rights advocacy organizations commented in support of clear space at all parking meters and pay stations. The Board observes that many individuals with disabilities use parking spaces other than accessible spaces; to ensure equity in public rights-of-way, persons with disabilities must be able to access parking meters and pay stations wherever they park.
Where provided, transit stops and transit shelters shall comply with the technical requirements at R309. In response to the NPRM, a local government transit advisory group commented that the Board had failed to propose a scoping provision for vending machines at transit shelters. The Board concurs that this was an oversight, and has added a scoping provision for fare vending machines that references the operable parts technical requirements at R403 and the relevant provisions of Section 707 of 36 CFR part 1191. The Board also added a scoping provision for operable parts of other fixed elements at transit stops and shelters intended to be used by pedestrians.
Where on-street parking is provided and is metered or designated by signs or pavement markings, accessible parking spaces complying with the technical provisions at R310 must be provided. The minimum number of accessible on-street parking spaces required is determined according to Table R211 assessing the total number of spaces.
The Board has made several revisions to this scoping section based on public comments. In the proposed rule, the board used the total number of spaces on a “block perimeter” to determine the number of accessible spaces required. Several commenters indicated that the meaning of block perimeter was unclear, while others noted that not all on-street parking is located on a block perimeter. In response to these concerns, the Board has defined block perimeter in R104.3 and included an example within the definition for clarity. In addition, the Board has added a provision for parking not on a block perimeter to clarify that those on-street parking spaces are also subject to accessibility requirements.
In response to commenter concerns, the Board has excepted on-street spaces that are designated exclusively for commercial or law enforcement vehicles, or residential parking. Those excepted spaces are not counted for the purpose of determining the required number of accessible spaces. These spaces must be designated for use solely for the excepted purpose; spaces that are designated for commercial or law enforcement vehicle use or residential parking only during certain hours are not excepted and must be counted for the purpose of determining the required number of accessible spaces. Another
The Board notes that these minimum guidelines for the provision of accessible parking in public rights-of-way do not prevent regulated entities from providing additional accessible parking, including residential accessible parking. Standard-setting agencies may also adopt a more stringent standard.
In response to the NPRM, a local government commenter asked whether on-street accessible spaces are required where there is an adjacent public off-street lot, and a state government DOT requested that the Board allow jurisdictions to combine the number of on-street and off-street parking spaces for the purpose of designating accessible spaces. On-street parking spaces are covered by PROWAG and off-street parking in lots or garages is covered by the requirements at 36 CFR 1191. Accessible parking must be separately designated for on-street and off-street locations. To ensure equity for persons with disabilities, if on-street parking is provided then accessible on-street parking must also be provided.
Several local government commenters requested flexibility for the provision of accessible on-street parking where paratransit or other parking management programs, such as free parking, are provided for persons with disabilities. The Board has carefully considered these comments and has declined to provide exceptions for jurisdictions with paratransit or parking management programs. The provision of accessible on-street parking spaces consistent with PROWAG ensures that parking spaces are available that will allow persons with disabilities to park close to their destinations and have either a direct or nearby connection to a pedestrian access route or pedestrian circulation path. The provision of paratransit or free parking for persons with disabilities does not address the availability of accessible parking for persons with disabilities who rely on private vehicle transportation. Jurisdictions that allow persons with disabled parking placards to park in “no parking” or loading zone areas cannot guarantee that those areas will have accessible features such as proximity to a curb ramp or an adjacent sidewalk clear of obstructions such that a ramp can be deployed.
One commenter indicated that the rule should include guidelines for accessible electric vehicle charging stations. The Board is undertaking a separate rulemaking to address the accessibility of electric vehicle charging stations, which may ultimately address electric vehicle charging stations in the public right-of-way.
Where permanently designated passenger loading zones other than transit stops are provided, at least one accessible passenger loading zone complying with technical requirements must be provided in every continuous 100 feet (30 m) of loading zone space, or fraction thereof. The Board revised the text of this scoping provision to clarify that the passenger loading zones covered by this rule are those that are permanently designated for passenger loading, other than transit stops. This includes passenger loading zones permanently designated for ride share. Often, permanent passenger loading zones in the public right-of-way are comprised of a sidewalk cut out so that vehicles can pull out of the traveled way to unload passengers. However, a permanently affixed sign designating a passenger loading zone is sufficient to bring the loading zone under coverage of this rule. Passenger loading zones that vary with the time of day or the occupancy of a particular retail space, such as valet stands that are provided only during certain hours, are not considered permanently designated and are therefore not subject to PROWAG.
Where provided on pedestrian circulation paths, stairs must comply with technical requirements at R408 and escalators must comply with section 810.9 of Appendix D to 36 CFR part 1191 (ADA & ABA Accessibility Guidelines). Stairs and escalators are not part of pedestrian access routes, but where they are provided in the public right-of-way, they must comply with technical requirements. Persons with certain disabilities will find a short set of stairs more useable than a long ramp, thus although these pedestrian facilities are not part of the pedestrian access route, it is nonetheless important that they conform to accessibility requirements.
In the final rule, the Board substituted the word “stairs” for “stairways” for consistency with the term used in the requirements of 36 CFR part 1191 (ABA & ADA Accessibility Guidelines), and to clarify that a single stair is subject to the requirements of PROWAG.
Wherever handrails are installed on
The technical requirements contain accessibility design criteria and apply as specified in the scoping provisions of Chapter 2 or where referenced by another technical requirement in Chapter 3 or 4. These technical requirements were developed specifically for pedestrian facilities in the public right-of-way.
The technical requirements for pedestrian access routes at R302 are intended to provide a continuous path throughout the pedestrian facilities of a
In the final rule, the Board eliminated the list of components of pedestrian access routes that appeared in NPRM R302.2. The Board concurred with a local government commenter who opined that each facility included in this list should have scoping in Chapter 2. The Board revised R203 to provide scoping for each pedestrian facility, and then determined that the list of facilities with associated technical provisions at NPRM R302.2 was duplicative of the revised section R203. Further, the Board concluded that the list at NPRM R302.2 added to the confusion regarding the concept of a pedestrian access route in the public right-of-way.
As explained above in the discussion of R203, pedestrian access routes in the public right-of-way function differently than accessible routes in buildings and on sites. Accessible routes in buildings and on sites are required to connect accessible facilities and elements to other accessible facilities and elements and may consist of various components. 36 CFR part 1191, Appx. D 206.2, 402.2. A pedestrian access route in the public right-of-way runs through nearly every traversable surface within the pedestrian facilities; thus, unlike the requirements for a building, every new and altered traversable surface in the public right-of-way, except for stairs and facilities that have been specifically excepted, must comply with pedestrian access route requirements. As a result of elimination of the proposed R302.2, the sub-provisions of R302 have been renumbered.
The requirements for clear width of pedestrian access routes have not changed from what the Board proposed, as modified by the SNPRM (SNPRM R302.3). Specifically, a 48-inch (1220 mm) continuous clear width is required for most portions of the pedestrian access route. There are two exceptions: (1) places where a pedestrian access route crosses medians and pedestrian refuge islands, which require 60 inches of clear width or the width of the crosswalk (whichever is greater), and (2) shared use paths where the clear width must extend the entire width of the path. In response to commenter questions, the Board revised the language of the provision to clarify that the required width is measured exclusive of any curb. Also, in response to comments, the Board has added a sentence clarifying that bollards are permitted on shared use paths as long as the clear width of the pedestrian access route is 48 inches (1220 mm) or wider (R302.2.2).
In response to the NPRM, three state DOTs and two utility companies requested that the Board allow a reduction in the clear width of pedestrian access routes to accommodate utility poles, traffic signal poles, and similar obstructions. An additional 28 individual commenters employed by utility companies requested that the Board revise the clear width requirement to 36 inches. In alterations, including the addition of a pedestrian circulation path to an existing right-of-way, where existing physical constraints make compliance with the clear width requirements technically infeasible, compliance with these requirements is required to the maximum extent feasible.
In the context of alterations, where there are existing physical constraints, the width must still comply to the maximum extent feasible; a pedestrian circulation path narrower than 36 inches may be impassible by a person with a mobility device. In new construction of undeveloped land, by contrast, the Board expects jurisdictions to insist that utilities, traffic signals, and street furniture be located to allow for full compliance with accessibility requirements. However, as provided in DOJ's Title II regulations, full compliance with the relevant accessibility requirements is not required in the context of new construction where a public entity can demonstrate that it is structurally impracticable to meet the requirements. Full compliance is considered structurally impracticable only in those rare circumstances when the unique characteristics of terrain prevent the incorporation of accessibility features. 28 CFR 35.151.
Some commenters, including two disability rights advocacy organizations, a pedestrian advocacy organization and a local government DOT, requested that the Board expand the required clear width to 60 or 72 inches. The Board acknowledges that its public rights-of-way advisory committee recommended a width of 60 inches.
In response to the SNPRM, some commenters requested that the Access Board add a minimum width for shared use paths. Jurisdictions determine the width for a shared use path using criteria related to anticipated user volumes. AASHTO recommends that two-directional shared use paths should be 10 feet wide minimum. AASHTO, Guide for the Development of Bicycle Facilities 5-3 (4th ed. 2004). Where shared use paths are anticipated to serve a high percentage of pedestrians and high user volumes, AASHTO recommends that the paths should be 11 to 14 feet wide to enable a bicyclist to pass another path user travelling in the same direction, at the same time a path user is approaching from the opposite direction.
The Board is concerned that stating a minimum width, such as the width required for a pedestrian access route, may cause confusion that would result in the installation of narrower shared use paths than what would otherwise be used. Thus, the Board has maintained the requirement stated in the SNPRM that technical requirements for pedestrian access routes are applicable to the full width of shared use paths, whatever the width.
In response to a local government commenter that expressed concern that motorists would mistake a full-width curb ramp of a shared use path for a driveway, and a state DOT requested an exception for bollards that prohibit vehicular travel, the Board has added a
One local government commenter sought clarification regarding the applicable clear width for a path where bicyclists and pedestrians travel on separate but adjacent paths. A state's department of recreation asserted that for pedestrian paths with adjacent equestrian paths, the requirements should apply only to the pedestrian portion of the path. Whether a particular pedestrian facility should be considered a shared use path or not will be determined by the specific characteristics of the path. The question is whether there is a shared use path, or a pedestrian circulation path and an adjacent bike path or equestrian path.
If there is a detectable separation between the pedestrian portion of the path and the bike or equestrian portion of the path, then it may not actually be a shared use path, but rather two distinct facilities in close proximity.
Passing spaces must be provided at intervals of 200 feet (61 m) maximum where the clear width of the pedestrian access route is less than 60 inches (1525 mm). The passing spaces, which are 60 inches by 60 inches, are provided to allow sufficient space for two persons in wheelchairs to pass each other. Pedestrian access routes and passing spaces may overlap. In response to the NPRM, a utility company expressed concern about passing spaces being added to a pedestrian access route near an at-grade rail crossing where typically pedestrians would be channelized into the crossing. Passing spaces must be added at intervals no greater than 200 feet, but jurisdictions have flexibility to place some passing spaces at shorter intervals to ensure that specific areas are avoided.
A local government commenter requested clarification as to what length of a pedestrian circulation path would need to be altered to trigger the requirement for a passing space. As this is a question regarding how the technical requirements will be enforced, the Board notes that USDOT and DOJ may provide further specifics on this issue.
The grade of a pedestrian access route is the running slope of the route in the direction of pedestrian travel. Grade is the vertical change in elevation over the horizontal distance covered and is expressed as either a ratio or, when dividing these two numbers, as a percent. The grade of pedestrian access routes must comply with the specifications corresponding to the location of the pedestrian access route, except for the grade of curb ramps and blended transitions, and ramps, which must comply with the grade specifications of their respective technical requirements (R304, R407).
Where pedestrian access routes are contained within a street or highway right-of-way, the grade of the pedestrian access route shall not exceed 1:20 (5.0%). An exception permits the grade of the pedestrian access route to not exceed the grade established for the adjacent street or highway, where the grade established for that adjacent street or highway exceeds 1:20 (5.0%) (R302.4.1). However, where pedestrian access routes are contained within crosswalks, a maximum grade of 1:20 (5.0%) is required (R302.4.3). This is consistent with AASHTO guidance, which recommends that the sidewalk grade follow the grade of adjacent roadways, and also recommends maximum cross slopes for roadways.
In response to comments from state and local government entities, the Board restructured R302.4.1 (NPRM 302.5) to clarify that a pedestrian access route within a highway right-of-way may be graded to 1:20 (5.0%), even where the grade of the adjacent street is less than 1:20 (5.0%). The Board has restructured this provision to provide a general requirement of 1:20 (5.0%) maximum grade of the pedestrian access route, with an exception stating that where the grade of the adjacent street exceeds 1:20 (5.0%), the grade of the pedestrian access route shall not exceed the grade of the adjacent street. In some circumstances where the grade of the adjacent street is less than 1:20 (5.0%), compliance with the general requirement could result in a pedestrian access route with a grade of 1:20 (5.0%) maximum being steeper than the grade of the adjacent street if the grade of the adjacent street is less than 1:20 (5.0%).
The Board also received comments from four state DOTs indicating that their standard maximum for superelevation exceeds 5%. To address this concern, the Board has added an exception for the grade of the pedestrian access route within a crosswalk, which specifies that where roadway design requires superelevation greater than 1:20 (5.0%) at the location of a crosswalk, the grade of the pedestrian access route within the crosswalk may be the same as the superelevation (R302.4.3).
In the SNPRM, the Board added a provision requiring compliance with grade requirements to the “extent practicable” in both new construction and alterations where compliance with grade requirements for pedestrian access routes “not practicable” due to existing terrain or infrastructure, right-of-way availability, a notable natural feature, or similar existing physical constraints (SNPRM R302.5.2). The Board explained that this provision was responsive to comments to the Advance Notice of Proposed Rulemaking (ANPRM) on accessibility guidelines for shared use paths indicating that physical constraints may prevent full compliance with grade requirements.
The comments received in response to the SNPRM indicate that the proposed language at SNPRM R302.5.2 did not provide additional clarity or substantial flexibilities beyond what is already available through other provisions and standards. The Board received comments from some state DOTs and local governments detailing circumstances where the grade of SUPs in their jurisdictions exceed 5% principally due to underlying terrain. For example, one local government located in a mountainous area noted that only 17% of the land within its jurisdiction has a slope of 5% or less and indicated that its design guidelines allow the grade of shared use paths to exceed 5% for short sections where topographical constraints necessitate design flexibility. A state DOT observed that the language of the SNPRM created a “grey area” where jurisdictions would use engineering judgement in determining whether compliance with the 5% maximum grade was “practicable” due to existing terrain. An accessibility advocacy organization commented that accessibility standards should be applied “100 percent” and only scaled back where existing site conditions warrant.
Upon consideration of the comments and further reflection and research, the Board has concluded that the proposed provision at SNPRM R302.5.2 specifically allowing the grade of the pedestrian access route to comply with grade requirements to the “extent
First, the Board notes that the Volpe Center, which assessed the costs of compliance with this provision, observed that the majority of shared use path miles cataloged in available documentation are built on abandoned or converted railroad track beds, and thus have a grade of less than 1:100 (1.0%) due to their railroad origins.
Second, the Board notes that most shared use paths are built on existing rights-of-way and thus considered alterations under the final rule.
For example, a state department of conservation and recreation submitted a comment in response to the SNPRM requesting that the Access Board allow new shared use paths to use the grade of the existing facility that they will be built on, such as a fire road or abandoned railroad that would serve as a trail bed. Under the final rule, the construction of shared use paths on existing facilities such as these are alterations, and compliance would be expected to the maximum extent feasible where existing physical constraints make compliance technically infeasible (
Second, with respect to newly constructed shared use paths not within a highway right-of-way, the Access Board observes that DOJ regulations implementing accessibility requirements under Title II of the ADA state that full compliance with the relevant accessibility requirements is not required in the context of new construction where a public entity can demonstrate that it is structurally impracticable to meet the requirements. 28 CFR 35.151. While under DOJ's regulation full compliance is considered structurally impracticable only in those rare circumstances when the unique characteristics of terrain prevent the incorporation of accessibility features, the comments received in response to the SNPRM indicate that the main impediment to full compliance with grade requirements is the underlying terrain. DOJ and USDOT may elect to provide additional information regarding the unique characteristics of terrain that would make compliance with grade requirements structurally impracticable.
In sum, the Board has eliminated SNPRM R302.5.4 from the final rule as unnecessary in light of other available flexibilities to address circumstances where the characteristics of the underlying terrain prevent full compliance with the technical requirements for grade.
In the final rule, the Board has also eliminated a provision that provided flexibilities for instances where compliance with grade requirements is precluded by laws intended to preserve threatened or endangered species, the environment, or archeological, cultural, historical, or significant natural features (SNPRM R302.5.5). This provision was modeled after a provision in the Board's supplemental rulemaking under the ABA for Federal outdoor areas. 36 CFR part 1191, Appx. D 1019.1. Upon further consideration, the Board has concluded that while this exception was suitable for recreational trails in National Parks and other Federal lands, is not appropriate for the construction of transportation facilities, including shared use paths, which should be designed to prioritize equitable transportation for all, and are already subject to environmental review.
Cross slope is the slope perpendicular to the direction of pedestrian travel (
A maximum cross slope of 1:48 (2.1%) is specified for pedestrian access routes, except for pedestrian access routes contained within certain crosswalks. This is the same cross slope specified for accessible routes in buildings and facilities. 36 CFR part 1191, Appx. D 403.3. In exterior environments, this cross slope is adequate to allow water to drain off paved walking surfaces.
The Board has added an exception to this general rule to clarify that the portion of a pedestrian access route within a street that connects an accessible parallel parking space to the nearest crosswalk as specified in R310.2.2 is not required to comply with cross slope requirements.
In crosswalks, the slope of the roadway is taken into consideration because the grade or running slope of the roadway perpendicular to the direction of pedestrian travel will comprise the cross slope of the crosswalk. The NPRM specified 5 percent maximum cross slope for pedestrian access routes contained within pedestrian street crossings “without yield or stop control” (NPRM R302.6.1). The purpose of allowing a steeper cross slope at these crosswalks is to avoid a jolt to vehicles at the change of grade where vehicles do not need to slow to a yield or stop at a crossing.
In an advisory that accompanied the proposed rule text, the Board indicated that a pedestrian street crossing “without yield or stop control” included intersections with a traffic signal designed for the green phase. In response to the NPRM, several commenters indicated that the meaning of “without yield or stop control” was unclear. The Board concurs with these commenters, and in the final rule has provided more specific requirements for different types of approaches.
In R302.5.2 of the final rule, the Board breaks down the cross slope for pedestrian access routes contained within a crosswalk. Specifically, the Board addresses crosswalks where the
The cross slope of the pedestrian access route within a midblock crosswalk or a crosswalk at a roundabout is permitted to be the same as the grade of the street that it crosses (R302.5.2.4). The Board added a reference to crossings at roundabouts to clarify that these crosswalks, which do not occur at traditional intersections, operate similarly to midblock crossings.
In response to the NPRM, the Board received numerous comments on the topic of cross slope, which are addressed above in the Major Issues section. The Board has assessed the costs of compliance of R302.5.2 in the FRIA.
The walking surfaces of pedestrian access routes, elements, and spaces that are required to be accessible shall be stable, firm, and slip resistant (R302.6). This is the same requirement as the proposed rule (NPRM 302.7); in the final rule, the Board made edits for clarity.
The NPRM contained a provision regarding vertical alignment of surfaces, which was intended to communicate that adjacent surfaces, such as pavers, portions of sidewalk, or other pedestrian facilities and elements within the pedestrian access route, be on the same plane. The provision further required grade breaks to be flush (
In the proposed rule, the Board used the term “vertical surface discontinuities” to describe what is referred to as “changes in level” in the 2004 ABA and ADA Accessibility Guidelines.
The term “changes in level” as used in these guidelines refers to an abrupt increase or decrease in the level of the walking surface of a pedestrian access route, such as occurs when one sidewalk panel is slightly higher than an adjacent panel. It is measured relative to the plane of the walking surface; it does not take into consideration the grade of the pedestrian access route. The text of this provision has been revised for clarity. The requirements state that changes in level up to
The Board has also included an additional clarification that changes in level greater than
In the public right-of-way, changes in level of 6 inches (150 mm) or less are not subject to the ramps technical requirements and thus do not require handrails, edge protection, or landings. This clarification addresses local government commenters' concerns about the difficulty of limiting changes in level to
The Board acknowledges comments from two state government commenters that requested a requirement that utility covers, vault frames, and gratings not be located on curb ramps in new construction. The Board does recommend that these items be located elsewhere in new construction; however, these items are permitted if installed consistent with the requirements.
Horizontal openings in ground surfaces, for example, holes in gratings or gaping cracks in pavement, must not be so large such that a sphere larger than
In general, elongated openings are permitted perpendicular to the dominant direction of travel. In the final rule, in response to comments from a state DOT and a pedestrian advocacy organization, the Board has clarified that elongated openings are not permitted where pedestrian access routes intersect as a single dominant direction of travel cannot be identified in that circumstance.
The Board notes the concern raised by one commenter that one northern state uses 1-inch-wide horizontal openings on stairs to minimize snow and ice build-up, and acknowledges that newly constructed and altered stairs in this jurisdiction may require additional maintenance to clear snow and ice. However, equity requires that persons with disabilities in northern climates also have access to pedestrian facilities. A cane or crutch tip may become trapped in a horizontal opening wider than
In response to the NPRM, a local government commenter indicated that the horizontal openings requirements may conflict with water drainage in existing rights-of-way. As discussed above, alterations in existing rights-of-way are to comply with technical requirements to the maximum extent feasible where existing physical constraints make compliance with applicable requirements technically infeasible.
In the final rule, the Board has consolidated at R302.6.4 all of the surface requirements for pedestrian access routes at pedestrian at-grade rail crossings. The surface alignment requirement (R302.6.4.1) has not changed from the proposed rule, except
Flangeway gaps are the horizontal opening immediately adjacent to the rails that allow passage of train wheel flanges. Flangeway gaps, like other horizontal openings in a walking surface, can pose a potential hazard to pedestrians with certain disabilities because they can entrap wheelchair casters, walker wheels, and crutch or cane tips.
The requirements for flangeway gaps have been set at the narrowest dimension that allows a train to safely traverse a pedestrian crossing. There are two different dimensions for flangeway gaps: 3 inches maximum for crossings located on railroad track subject to Federal Railroad Administration (FRA) safety regulations at 49 CFR part 213, and 2 and
In response to the proposed rule a public utilities commission requested that the Board include a specification for field side gaps (
The same railroads association also commented that a 2 and
A public utilities commission requested a requirement for flange filler. In the NPRM, the Board asked a question seeking information or research on materials and devices that fill the flangeway gap but received no responses. At the time that the NPRM was published, the Board anticipated that significant research would be undertaken on this topic. The Board acknowledges that flangeway gap fillers are used at some light rail station stops; however, there has not been sufficient research for the Board to conclude that a national mandatory requirement for flangeway gap fillers at grade-level crossings is appropriate. The Board intends to encourage further research on this topic, and may revisit a requirement for flangeway gap fillers in the future.
The proposed rule did not contain technical provisions for alternate pedestrian access routes. Rather the scoping incorporated by reference specific provisions of the MUTCD. In response to commenter concerns, and as described above, the Board has eliminated references to the MUTCD and included technical requirements directly in the rule text.
In proposed section NPRM 205, the Board indicated that alternate pedestrian access routes must comply with sections 6D.01, 6D.02 and 6G.05 of the MUTCD (2009 Edition). The proposed rule further noted that where provided, pedestrian barricade and channelizing devices were required to comply with sections 6F.63, 6F.68, and 6F.71 of the MUTCD.
The guiding principle with respect to accessibility for MUTCD alternate pedestrian access routes is found in MUTCD 6D.02 paragraph 3, which states, “When existing pedestrian facilities are disrupted, closed, or relocated in a [temporary traffic control] zone, the temporary facilities shall be detectable and include accessibility features consistent with the features present in the existing pedestrian facility.” In section R303, the Board has specified the required accessibility features of alternate pedestrian access routes to ensure that they are detectable and contain the basic accessibility features of the closed route without being overly burdensome.
The final rule requires that jurisdictions provide signs identifying alternate pedestrian access routes in advance of decision points. The signs must comply with technical requirements for characters at R410. In addition, proximity actuated audible signs or other non-visual means of conveying the information on the signs must be provided within the public right-of-way.
The signs are intended to provide clarity to pedestrians as to where any alternate pedestrian access route is located. Placing signs ahead of decision points, such as at an intersection that precedes a closed sidewalk, reduces the need for pedestrians to retrace their steps or alternately attempt to cross a roadway at a place other than a crosswalk.
The proposed rule referenced MUTCD 6D.01 paragraph 3, which requires that jurisdictions provide advance notification of sidewalk closures. Equity requires that whatever information is made available to sighted persons must also be provided in a non-visual format. Equitable access to information on alternate pedestrian access routes is contemplated in the guidance to MUTCD 6D.02, which was referenced in the proposed rule:
Because printed signs and surface delineation are not usable by pedestrians with visual disabilities, blocked routes, alternate crossings, and sign and signal information should be communicated to pedestrians with visual disabilities by providing audible information devices, accessible pedestrian signals, and barriers and channelizing devices that are detectable to pedestrians traveling with the aid of a long cane or who have low vision.
The Board also indicated in an advisory that accompanied the proposed rule that proximity-actuated audible signs are a preferred means to warn pedestrians who are blind or have low vision about sidewalk closures (NPRM Advisory R205).
In response to the NPRM, the Board received comments from four disability rights advocacy organizations, one state
As stated above, equity requires that information provided in a visual format to pedestrians also be provided in a non-visual format so that pedestrians who are blind or have low vision have equal access to the information. The Board has evaluated the costs of these devices in the FRIA.
The surface of an alternate pedestrian access route must comply with technical accessibility requirements for surfaces at R302.6 at least to the extent that the closed route complied with those surface requirements. This is consistent with the proposed rule's reference to MUTCD 6D.02, which requires that temporary pedestrian facilities have accessibility features consistent with the closed route.
The minimum continuous clear with of alternate pedestrian access routes must be 48 inches, except where an alternate pedestrian access route utilizes an existing pedestrian circulation path, in which case the width must be at least the width of the temporarily closed pedestrian circulation path. MUTCD 6D.02 paragraph 3, which was referenced in the proposed rule, requires that temporary facilities include accessibility features consistent with the features present in the existing pedestrian facility.
With respect to the requirements for clear width of alternate pedestrian access routes, the Board has sought to balance the concerns of over 150 individual commenters and several disability rights and pedestrian advocacy organizations who support mandatory alternate pedestrian access routes usable by persons with disabilities, with the concerns of six state and local DOTs that would like the accessibility requirements for alternate routes not to exceed the existing accessibility of the temporarily closed route.
The Board has provided a general requirement for a minimum clear width of 48 inches, which as described in the discussion of pedestrian access routes at R302.2 above, is the minimum width that the Board has determined to be accessible for persons with disabilities. This width is achievable where an alternate pedestrian access route is provided within the roadway using barricades, or where an existing sidewalk used for the alternate pedestrian access route is at least 48 inches (as is the case in most central business districts and many jurisdictions that have already adopted 48 inches as a minimum sidewalk width).
Where an alternate pedestrian access route crosses a curb, a curb ramp or blended transition complying with the requirements must be provided to ensure that the alternate pedestrian access route is useable by persons with mobility disabilities. A curb ramp or blended transition is required regardless of whether the temporarily closed pedestrian circulation path contained this accessibility feature. Again, the Board is seeking to balance the concerns of over 150 individual commenters and disability rights and pedestrian advocacy organizations with the concerns of local and state DOTs about the burden of building temporary facilities. An alternate pedestrian access route that does not provide a curb ramp or blended transition over a curb would not be usable for many persons with mobility disabilities, and they would not have equal access to the alternate route.
Where a channelizing device is used to delineate an alternate pedestrian access route, continuous detectable edging complying with technical requirements must be provided for the length of the route. An exception is provided for places where pedestrians or vehicles turn or cross, which would necessitate a gap in the channelizing device and detectable edging. Where detectable edging is provided, the top of the topmost part of the detectable edging cannot be lower than 32 inches above the ground and must not be sharp or abrasive. These specifications allow for persons who are blind or have low vision to detect the edging by running their hands along the topmost part of the edging. The bottommost part of the edging cannot be more than 2 inches above the ground to allow for continuous cane detection. These specifications for detectable edging come from MUTCD 6F.63 paragraph 5, which was incorporated by reference in the proposed rule.
Temporary pedestrian signals at alternate pedestrian access routes are not required by these guidelines. However, when a jurisdiction decides to provide temporary pedestrian signal heads in the public right-of-way, they are subject to these guidelines, as specified at R201.2. The Board has reiterated this requirement at R303.7 to ensure that jurisdictions understand that when a temporary pedestrian signal head is provided at a crosswalk that is part of an alternate pedestrian access route, pedestrian pushbuttons or passive detection devices complying with the technical requirements at R307 must be provided. Similar to the requirements for temporary signage, equity requires that visual information provided on pedestrian signal heads must be available to persons who are blind or have low vision in a non-visual format.
Curb ramps provide a smooth transition where a pedestrian access route crosses a curb. Blended transitions provide a smooth wraparound connection at a corner or a flush connection where there is no curb to cut through. There are two types of curb ramps: perpendicular and parallel. Perpendicular curb ramps have running slopes that are perpendicular to the curb or street served. Parallel curb ramps have running slopes that are parallel to the curb or street served. Parallel curb
In the final rule, this section has been reorganized for clarity. In response to commenter concerns, the Board has provided definitions in R104.3 for “perpendicular curb ramp,” “parallel curb ramp,” and “blended transitions.” In addition, in the final rule, the Board has substituted the term “landing” for “turning space,” in response to commenters' requests for consistency with ADAAG terminology. The Board had used the term “turning space” in the NPRM to avoid confusion with the “landings” associated with ramps (R407). However, the Board acknowledges that “landing” is the commonly used term for these curb ramp-associated spaces, and in the final rule now uses the term “landing.” It is important to note, however, that the landings associated with ramps (R407.6) have different technical requirements than the landings associated with curb ramps (R304.2.4 and R304.3.4). Curb ramps are not “ramps” for the purposes of PROWAG (see definition of “ramp” at R104.3) and are thus not subject to the requirements for ramps at R407.
Numerous commenters from state and local government entities and an engineering association expressed confusion as to the proposed 1:20 (5.0%) minimum for the running slope of curb ramps, pointing out that in many cases a curb ramp need not reach 5% depending on the grade of the adjacent pedestrian facilities. The Board concurred with commenters and in the final rule has removed the minimum running slope and stated only a maximum of 1:12 (8.3%) (R304.2.1). In addition, the Board has added an exception to clarify that where the curb ramp length must exceed 15 feet (4.6 m) to achieve a 1:12 (8.3%) running slope, the curb ramp length shall extend at least 15 feet (4.6 m) and may have a running slope greater than 1:12 (8.3%). A curb ramp complying with the exception to R304.2.1 need not exceed 15 feet in length.
The cross slope of perpendicular curb ramp runs is specified at 1:48 (2.1%) maximum (R304.2.2). The Board has provided an exception stating that for curb ramps at a crosswalk, the cross slope may be equal to or less than the cross slope permitted at the crosswalk. This exception corrects an error in the proposed rule indicating that at certain pedestrian street crossings, the cross slope could equal the highway grade (NPRM R304.5.3); this conflicted with the cross slope provisions for certain crosswalks.
The requirements for grade breaks were moved out of the common requirements section to the perpendicular and parallel curb ramps sections for clarity. Grade breaks at the top and bottom of a curb ramp run must be perpendicular to the direction of the curb ramp run (R304.2.3). Grade breaks are not permitted on the surfaces of curb ramp runs and landings. Surface slopes that meet at grade breaks must be flush. There are no changes to this requirement from the proposed rule.
For each perpendicular curb ramp, a clear area 48 inches (1220 mm) wide by 48 inches (1220 mm) long must be provided beyond the bottom grade break and within the width of the crosswalk (R304.2.4). The clear area must be located outside the vehicle lanes, including any bike lanes, that run parallel to the crosswalk. The running slope of the clear area cannot exceed 1:20 (5.0%) maximum, and the cross slope is as specified by R302.5. The purpose of the clear area is to allow pedestrians an area outside of the vehicle lanes to orient themselves to the crossing.
In the proposed rule, this provision was entitled, “Clear Space” and appeared in the common requirements for curb ramps and blended transitions (NPRM R304.5.5). In the final rule it has been renamed “Clear Area” to avoid confusion with the clear spaces described at R404 and has been moved to the section specific to perpendicular curb ramps for clarity. Also in the final rule, the Board has specified slope and cross slope of clear areas in response to commenters' request for clarity on these requirements. In addition, the Board has clarified that vehicle lanes include any bike lanes.
Numerous state and local government entity commenters expressed confusion regarding the required location of the clear space, and in particular the requirement that the clear space be located wholly outside the parallel vehicle travel lane. Some commenters erroneously thought that an additional 48 inches of shoulder would be required to comply with this requirement. The confusion reflects a misunderstanding of how compliance is assessed. Each curb ramp is assessed separately, so although the clear space may be in a vehicle travel lane that is
When a change in direction is necessary to access the top of a perpendicular curb ramp from a pedestrian access route, a landing 48 inches (1220 mm) wide minimum by 48 inches (1220 mm) long minimum must be provided at the top of the curb ramp (R304.2.5). At shared use paths, the landing must be as wide as the shared use path. In response to numerous comments, the final rule eliminates a proposed requirement for a larger landing where the turning space is constrained. The cross slope requirements for landings, which appeared in the proposed rule at NPRM 304.5.3, have been consolidated into the perpendicular curb ramp section. Slope requirements have been added for clarity.
Perpendicular curb ramps must have flared sides with a 1:10 (10.0%) maximum slope where a pedestrian circulation path crosses the side of a curb ramp (R304.2.6). The slope of the flared sides is measured parallel to the curb line. In the NPRM, the Board sought comment on whether a steeper side flare slope should be specified (NPRM Question 18). While a few state and local government entities and other commenters expressed support for increasing the slope of flared sides, others, mostly disability rights advocacy organizations and individuals sought to retain the 1:10 (10%) maximum citing hazards to pedestrians. The Board carefully considered the comments and was persuaded that increasing the slope of flares beyond 1:10 (10.0%) would present accessibility issues. Thus, the Board has retained the 1:10 (10.0%) maximum side flare slope.
The Board has added a new provision at R304.2.7 which clarifies that a transitional segment may be used in the connection of a perpendicular curb ramp or its landing to a pedestrian access route. A transitional segment is defined in R104.3 as “[t]he portion of a pedestrian circulation path that connects adjacent surfaces with different slopes or dimensions to provide a smooth transition.” The purpose of allowing a transitional segment is to address circumstances such as the warping in the pedestrian circulation path that will need to occur,
Numerous commenters from state and local government entities and a public works association expressed confusion as to the proposed 1:20 (5.0%) minimum for the running slope of curb ramps, pointing out that in many cases a curb ramp need not reach 5% depending on the grade of the adjacent pedestrian facilities. The Board concurred with commenters and in the final rule has removed the minimum running slope and stated only a maximum of 1:12 (8.3%) (R304.3.1). In addition, the Board has added an exception to clarify that where the curb ramp length must exceed 15 feet (4.6 m) to achieve a 1:12 (8.3%) running slope, the curb ramp run length shall extend at least 15 feet (4.6 m) and may have a running slope greater than 1:12 (8.3%). Curb ramps complying with the exception to R304.3.1 need not exceed 15 feet.
The cross slope of parallel curb ramp runs is 1:48 (2.1%) maximum (R304.3.2). This provision was moved from the common requirements for curb ramps and blended transitions in the proposed rule (NPRM R304.5.3).
The requirements for grade breaks were moved out of the common requirements section to the perpendicular and parallel curb ramps sections for clarity. Grade breaks at the top and bottom of a curb ramp run must be perpendicular to the direction of the curb ramp run (R304.3.3). Grade breaks are not permitted on the surfaces of curb ramp runs and landings. Surface slopes that meet at grade breaks must be flush. There are no changes to this requirement from the proposed rule.
Landings that are 48 inches (1220 mm) wide minimum by 48 inches (1220 mm) long minimum must be provided at the bottom of parallel curb ramps (R304.3.4). As discussed above, in the proposed rule these landings were referred to as “turning spaces” (NPRM R304.3.1). In response to numerous comments, the final rule eliminates a proposed requirement for a larger landing where the turning space was constrained. The cross slope requirements for parallel curb ramp landings, which appeared in the proposed rule at NPRM 304.5.3, have been moved into the parallel curb ramp section. Slope requirements have been added for clarity.
A blended transition is a wraparound connection at a corner, or a flush connection where there is no curb to cut through, other than a curb ramp (R104.3). A blended transition is permitted in lieu of a curb ramp where a pedestrian access route crosses a curb, and where there is a flush connection between the sidewalk or shared use path and a crosswalk, such as at a raised crossing. When designed properly, one blended transition can serve all of the crosswalks at an intersection corner. The running slope of blended transitions is 1:20 (5.0%) maximum (R304.4.1).
The cross slope of a blended transition must be equal to or less than the cross slope of the crosswalk it serves (R304.4.2). The final rule corrects an error in the proposed rule indicating that at certain pedestrian street crossings, the cross slope of a blended transition may equal the highway grade (NPRM R304.5.3); this conflicted with the cross slope provisions for certain crosswalks. As explained above, the cross slope provision was moved from the common requirements for curb ramps and blended transitions in the proposed rule (NPRM R304.5.3) to provide greater clarity.
In the final rule, the Board has added a provision requiring a bypass where a blended transition serving more than one pedestrian circulation path has a running slope greater than 1:48 (2.1%). This is provided so that a pedestrian with a disability may bypass the slope of blended transition that the individual does not need to use. Without a bypass an individual with a disability may be forced to unnecessarily traverse a corner at a 1:20 (5.0%) cross slope. A bypass for blended transitions was not included in the proposed rule; individuals contacting the Board for technical assistance in implementing the proposed guidelines brought this issue to the attention of the Board.
R304.5 specifies technical requirements applicable to both curb ramps and blended transitions.
The minimum clear width of curb ramps and blended transitions not on shared use paths is 48 inches (1220 mm) (R304.5.1.1). The minimum clear width of curb ramps and blended transitions on shared use paths is the width of the shared use path (R304.5.1.2).
In response to the SNPRM, the Board received comments from a few local government entities indicating concerns about the requirement that a curb ramp or blended transition on a shared use path be the same width as the shared use path. One local government commenter expressed concern that motorists would mistake a full-width curb ramp for a driveway. Another indicated that a full width curb ramp might be hard to achieve in an alteration. Another indicated that drainage, bridges, or utility poles might preclude full compliance.
The Board notes that jurisdictions have options to discourage motorists from erroneously entering a shared use path at a curb ramp, including signage or properly installed bollards (
A change of grade is an abrupt difference in the grades of two adjacent surfaces. Change of grade is determined by adding the two opposing slopes together. Where a change of grade that exceeds 13.3% occurs between a curb ramp or blended transition and the street or gutter, the final rule requires a transition space, with a running slope of 1:48 (2.1%) maximum and a cross slope no greater than the cross slope of the crosswalk as specified by R302.5, between the two surfaces that is a minimum of 24 inches in depth in the direction of pedestrian travel and the full width of the curb ramp. This
An accessible design firm commented that the change of grade should be limited to 11%. The Board acknowledges that its Public Rights-of-Way Access Advisory Committee recommended an 11% limit on change of grade in its 2001 report.
The proposed rule addressed change of grade as “Counter Slope” (NPRM R304.5.4) and specified a 5% maximum counter slope. Commenters requested additional clarity with respect to this provision. This provision has been reworded for clarity, and also to add an option for a change of grade that exceeds 13.3% if a transitional space is provided. However, the substantive requirements have not changed; the 13.3% maximum is a function of the 1:12 (8.3%) upper limit on curb ramp running slope (R304.2.1) and the 1:20 (5.0%) limit on grade of the pedestrian access route (R302.4), which was the permitted counter slope in the proposed rule.
To ensure equitable safety to pedestrians with disabilities, in the final rule the Board has added a separate provision clarifying that curb ramps and blended transitions must lead directly into crosswalks. Specifically, perpendicular curb ramp runs and parallel curb ramp landings must be contained wholly within the width of the crosswalk they serve. In addition, the full width of blended transitions at shared use paths and 48 inches (1220 mm) of blended transitions at all other pedestrian circulation paths must be contained wholly within the width of the crosswalks they serve. In the proposed rule, the Board specified that the clear area required at the bottom of curb ramps be contained wholly within the width of the crosswalk served (NPRM R304.5.5). In light of the confusion exhibited by commenters with respect to the proposed clear area provision, the Board has made explicit the requirement that curb ramps and blended transitions lead directly into crosswalks.
In the final rule, the Board has added a provision clarifying that surfaces of curb ramps and blended transitions must comply with the technical requirements for surfaces of pedestrian access routes at R302.6; however, changes in level as described at R302.6.2 are not permitted.
Detectable warning surfaces are cane detectable surfaces consisting of truncated domes aligned in a square or radial grid pattern. As indicated in R205, detectable warning surfaces are required at specified locations to warn pedestrians who are blind or have low vision that they are entering or exiting a vehicular way, or that there is a drop from a boarding platform into a track street.
Two individual commenters and a manufacturer of detectable warning surfaces requested that the Board add wayfinding elements to the technical requirements for detectable warning surfaces. The Board is aware that there are detectable wayfinding surfaces that exist that provide tactile directional guidance. However, these serve a different purpose than the detectable warning surfaces required by ADAAG and PROWAG, which serve to warn pedestrians of the presence of a vehicular way.
As described in the final regulatory impact analysis, detectable warning surfaces as described in the proposed rule have been widely implemented throughout the United States over the past decade. FRIA at 13. Widespread consistent implementation of detectable warning surfaces coupled with the final rule's clarified requirement at R304.5.4 that curb ramps and blended transitions lead directly into crosswalks will provide additional wayfinding for pedestrians who are blind or have low vision. The Board will continue to monitor developments in outdoor wayfinding for possible future updates to PROWAG.
The truncated domes on detectable warning surfaces have a base diameter of 0.9 inches (23 mm) minimum and 1.4 inches (36 mm) maximum, a top diameter of 50 percent of the base diameter minimum and 65 percent of the base diameter maximum, and a height of 0.2 inches (5.1 mm) (R305.1.1). In the final rule, in consideration of technical assistance inquiries received by the Access Board since publication of the proposed rule, the Board has added a sentence clarifying that when detectable warning surface tiles are cut to fit, partial domes are permitted along the cut edges.
With respect to spacing, truncated domes have a center-to-center spacing of 1.6 inches (41 mm) minimum and 2.4 inches (61 mm) maximum, and a base-to-base spacing of 0.65 inches (17 mm) minimum, measured between the most adjacent domes (R305.1.2). In the final rule, the Board has added an exception to clarify that when detectable warning surfaces are cut to fit, center-to-center spacing measured between domes adjacent to cut edges may exceed the spacing requirement up to twice the normal spacing between domes (R305.1.2 Exception 1). In addition, the Board has added an exception to clarify that dome spacing requirements do not apply at a gap in a detectable warning surface at an expansion joint, provided that the detectable warning surface aligns with both edges of the expansion joint (R305.1.2 Exception 2). This exception is particularly relevant to the installation of detectable warning surfaces on boarding platforms in the public right-of-way.
An advocacy organization for people who are blind commented that the Board should restate the dome size with exact specifications to ensure uniformity and to avoid the potential domes that are too large and close together to be detected. The Board maintains a narrow range in the permitted dome size to account for the various materials used for detectable warning surfaces. Again, over the past decade the proposed guidelines for detectable warning surfaces have been implemented by numerous jurisdictions throughout the United States; the Board is not aware of a detectability issue for detectable warning surfaces made within the required specifications.
A few other concerns were raised by commenters regarding the truncated dome design of detectable warning surfaces: one individual indicated that the truncated domes are too rough on wheelchair users; another individual asserted that the truncated dome design is difficult to keep free of snow and ice; and a regional association of engineers was concerned that the spacing would present a hazard to rollerbladers and skateboarders. The Board is aware that people who use wheelchairs typically prefer smooth surfaces for rollability; however, the Board must balance the accessibility needs of individuals with various types of disabilities. With respect to the concern regarding maintenance of detectable warning surfaces, the Board notes that over the past decade numerous jurisdictions that experience winter weather have been able to implement and appropriately maintain detectable warning surfaces. Further, the Board is not aware of widespread hazards to rollerbladers and
Detectable warning surfaces must contrast visually with adjacent walking surfaces, either light-on-dark or dark-on-light. Four commenters requested a more specific measure of contrast, such as 70%. Ten individual commenters, three disability rights advocacy organizations, and a pedestrian advocacy organization requested that the Board require that detectable warning surfaces be “federal yellow.” The Board has carefully considered these comments and declines to require a specific color or contrast percentage. The Board appreciates the desire for measurable standards; however, the percentage of contrast between surfaces is difficult to measure in outdoor environments that will have varying lighting conditions throughout the day. Further, as PROWAG does not specify a color or building material for any pedestrian surfaces, it would be difficult to specify a single color that would provide appropriate contrast in all circumstances. For example, federal yellow may provide less contrast with a concrete sidewalk than a maroon or black detectable warning surface. The Board has concluded that contrast is appropriately assessed on a case-by-case basis in consideration of the building materials used.
Detectable warning surfaces must extend 24 inches (610 mm) minimum in the direction of pedestrian travel. The width is specified depending on the type of pedestrian facility where the detectable warning surface is installed. This provision has been restructured for clarity. In the final rule, the Board has clarified that at cut-through pedestrian islands, the width of the detectable warning surface is the full width of the pedestrian circulation path; detectable warning surfaces at pedestrian refuge islands with curb ramps were already covered under the specification for the width of detectable warning surfaces at curb ramps and blended transitions, which is the full width of the curb ramp run (excluding any flared sides), blended transition, or landing.
In response to the proposed rule, the Board received comments from one individual and several local government entities in California requesting that the Board require a minimum of 36 inches in the direction of pedestrian travel or clarification as to whether 36 inches is permitted under PROWAG. The Board is aware that state requirements in California specify a 36-inch depth of detectable warning surfaces at curb ramps.
Section R305.2, called “Placement” in the NPRM, indicates specifically where a detectable warning surface is to be located at each of the places listed in R205 where detectable warning surfaces are required. In the final rule, the Board has revised the title of Section R305.2 to “Location” and the language of this section to address scenarios where there is no curb. The Board uses the phrase “edge of pavement” to refer to the place where the curb ramp or blended transition meets the street.
In addition, the Board has added a sentence stating that if a concrete border is required for proper installation of a detectable warning surface, a concrete border not exceeding 2 inches is permitted on all sides of the detectable warning surface except where the requirements at R305.2.1, R305.2.3, and R305.2.4 specifically allow a setback of six inches between the detectable warning surface and the edge of pavement. In the proposed rule, the Board provided an advisory indicating that where a concrete border is required for proper installation of a detectable warning surface, the border should not exceed 2 inches (NPRM Advisory R305.2). A local government in Texas and an association of accessibility professionals in Texas requested that the Board allow a 4-inch border. A design firm indicated that the Board should allow 6 inches on either side of the detectable warning surface, and a local government requested a 2-inch tolerance for the full width of a curb ramp. The Board is not aware of detectable warning surfaces requiring a border larger than 2 inches for proper installation. The option for up to a 6-inch (150 mm) setback between the detectable warning surface and the edge of pavement is provided to minimize the potential for damage to detectable warning surfaces during snow removal operations.
In the final rule, the substantive requirements for the location of detectable warning surfaces (except for the setback allowances described above) at perpendicular curb ramps (R305.2.1), parallel curb ramps (R305.2.2), blended transitions (R305.2.3), pedestrian refuge islands (R305.2.4), and sidewalk and street-level rail boarding and alighting areas (R305.2.7) are unchanged, although the Board has clarified some of the language. Specifically, the Board removed the requirement in the NPRM R305.2.1(2) that detectable warning surfaces are to be placed within one dome spacing of the bottom grade break. The final rule requires that the detectable warning surface be placed on the ramp run at the bottom grade break.
With respect to pedestrian at-grade rail crossings (R305.2.5), the Board has added a sentence clarifying that pedestrian gates must not overlap detectable warning surfaces. With respect to boarding platforms (R305.2.6), the Board has added an exception clarifying that where a curb is present, such as is the case with some bus rapid transit platforms, the detectable warning surface may be placed at the back of curb.
As described above in the discussion of R205, the final rule specifies that detectable warning surfaces be provided at driveways controlled with yield or stop control devices or traffic signals. Thus, the Board has added a corresponding technical provision at R305.2.8 stating that detectable warning surfaces at driveways controlled with yield or stop control devices or traffic signals are to be provided on the pedestrian circulation path where the pedestrian circulation path meets the driveway.
In response to the NPRM, the Board received various comments on the location of detectable warning surfaces at curb ramps. With respect to perpendicular curb ramps, two local government commenters requested clarification as to the placement of detectable warning surfaces at commercial driveways. For driveways where detectable warning surfaces are required, jurisdictions must follow any of the options for perpendicular curb ramps as appropriate. A level transition between the pedestrian access route and the driveway is treated as a blended transition.
In response to comments regarding the placement of detectable warning surfaces on perpendicular curb ramps at
With respect to the location of detectable warning surfaces at parallel curb ramps, two commenters raised concerns regarding the clarity of the use of the terms “flush transition” and “turning space” in this context. In the final rule, these terms have been replaced (see R305.2.2). Two state DOTs expressed concerns regarding the clarity of the provision describing the location of the detectable warning surfaces at blended transitions. The Board has revised this language for clarity (
The Board also received comments regarding the location for the detectable warning surface at pedestrian at-grade rail crossings. Two state DOTs and a state public utilities commission expressed concern that 72 inches from the centerline of the nearest rail is too close to the rail to place the detectable warning. The Board notes that this provision provides a range that allows the detectable warning surface to be placed between 72 inches (1830 mm) and 15 feet (4.6 m) from the centerline of the nearest rail. This range applies to light rail and freight train crossings. Seventy-two inches (1830 mm) is appropriate for some light rail crossings; the Board concurs that freight crossings would likely be placed farther back from the rail. The Board is confident that jurisdictions will apply appropriate safety considerations for particular crossings when determining where to place the detectable warning surface within the required range.
Two advocacy organizations for persons with disabilities expressed concern about how close the detectable warning surface would be placed to pedestrian gates at pedestrian at-grade rail crossings. In response, the Board added language clarifying that pedestrian gates must not overlap detectable warnings (R305.2.5).
The Board received three comments requesting that it clarify the meaning of “boarding platform,” as used in R305.2.6 so that it is clear that the Board does not intend for detectable warning surfaces to be placed at standard sidewalk-level bus stops. In the final rule, the Board added a definition of “boarding platform” at R104.3, which clarifies that boarding platforms are platforms “raised above standard curb height.”
The technical requirements for crosswalks address the required pedestrian signal phase timing and accessible walk indication, as well as specifications for crosswalks at roundabouts and channelized turn lanes.
Where pedestrian signal indications are provided at a crosswalk, the pedestrian signal phase timing is based on a pedestrian clearance time that is calculated using a pedestrian walking speed of 3.5 ft/s (1.1 m/s) or less from the location of the pedestrian push button to a pedestrian refuge island or the far side of the traveled way. This is the same walking speed proposed in the NPRM.
Four state DOTs and ten local government entities objected to this provision in the NPRM, pointing out that in the MUTCD this walk speed appears as guidance (MUTCD 4E.06 paragraph 7) and is thus not required. These jurisdictions would like to use engineering judgment to determine the clearance time, expressing potential issues that might result from longer clearance times, such as an increase in air pollution from vehicular delays, jaywalking, and red light running. Six disability rights advocacy organizations requested that pedestrian clearance times be calculated using a slower walking speed of 3.0 ft/s to 3.25 ft/s.
The Board has carefully considered the comments received on this issue. In the final rule, the Board has maintained the requirement that pedestrian clearance time be calculated using a walking speed of 3.5 ft/s (1.1 m/s) or less, and further requires that the walk interval be 7 seconds minimum.
In addition, the final rule states that where the pedestrian clearance time is calculated to a pedestrian refuge island, an additional pedestrian push button or passive detection device must be provided on the pedestrian refuge island. This was a proposed requirement that comes directly from MUTCD section 4E.08 paragraph 13, which was incorporated by reference in the NPRM (NPRM R209.1).
In using a walking speed of 3.5 ft/s (1.1 m/s), the Board seeks to balance the traffic management concerns of state and local jurisdictions while ensuring that pedestrians with disabilities are afforded sufficient time to traverse a crosswalk. The Board notes that in 2009, FHWA made a research-based decision to revise the MUTCD recommended walking speed for calculating pedestrian clearance times.
Further, in the final rule, the Board incorporated another option from MUTCD section 4E.06 paragraph 8 in an exception allowing a faster walking speed to be used if a passive detection device is provided that automatically adjusts the pedestrian clearance time based on the pedestrian's actual clearance of the crosswalk (R306.2 Exception). These devices tailor the clearance to the actual presence of the pedestrian in the crosswalk.
One state DOT and one local government commenter, as well as the National Committee on Uniform Traffic Control Devices, requested that the Access Board add a provision allowing a 4 ft/s walking speed where an extended pushbutton press allows additional time. This is an option under MUTCD section 4E.06 paragraph 8. The Board declines to allow jurisdictions to raise the walking speed to 4 ft/s where an extended pushbutton press is provided as pedestrians may not be aware that they need additional time until they are already in the crosswalk. However, as noted above, the Board has provided additional flexibility for
As noted above, in the final rule text, the Board has specified a requirement that the walk interval be 7 seconds minimum for all signalized crosswalks, which is the length recommended by the MUTCD. Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD) 2009 Edition, 4E.06 paragraph 11. The MUTCD provides guidance indicating that walk intervals as short as 4 seconds may be used where pedestrian volumes and characteristics do not require a 7-second walk interval; however, walk intervals of less than 7 seconds do not provide a sufficient amount of time for many people with disabilities to leave the curb as they need to wait for a curb ramp to be clear and then navigate down the ramp.
An accessible walk indication complying with the technical requirements at R308.2 must have the same duration as the walk interval. However, where the pedestrian signal rests in “walk,” the accessible walk indication may be limited to the first 7 seconds of the walk interval. If the pedestrian signal is resting in walk and there is sufficient time remaining to provide an accessible walk interval before the beginning of the pedestrian change interval, the accessible walk indication may be recalled by a button press (R306.3 Exception). This requirement is based on MUTCD section 4E.11, which was among the sections of the MUTCD incorporated by reference in the proposed rule. In consultation with USDOT, the Board has slightly revised the second sentence of the exception from the MUTCD language to clarify that the accessible walk interval may be recalled only when there is sufficient time remaining for a full walk interval before the pedestrian change interval begins. This change ensures that an accessible walk indication is provided only when there is enough crossing time remaining to disembark the sidewalk and fully cross the street.
Section R306.4 specifies the edge detection and crosswalk treatments required at roundabouts. A roundabout is a circular intersection with yield control at entry, which permits a vehicle on the circulatory roadway to proceed, and with deflection of the approaching vehicle counter-clockwise around a central island (R104.3).
Several commenters requested an explanation as to why edge detection treatments are needed at roundabouts but not elsewhere. Edge detection treatments are required at roundabouts to assist pedestrians who are blind or have low vision to locate the crosswalk (R306.4.1). At roundabouts, the orientation of the crosswalks to the circular roadway eliminates traditional tactile cues at crosswalks inherent to standard rectilinear intersections. In addition, the continuous circular traffic flow at these unsignalized crosswalks obscures the audible cues that pedestrians who are blind would otherwise use to detect a crossing and gaps in the traffic. Thus, edge detection treatments are needed to ensure that pedestrians who are blind or have low vision have the same opportunity to use a crosswalk at a roundabout as individuals with vision.
There are two options to ensure that crosswalks at roundabouts are detectable. The pedestrian circulation path can be separated from the curb, crosswalk to crosswalk, with landscaping or another nonprepared surface 24 inches (610 mm) wide minimum (R306.4.1.1). Alternatively, where sidewalks are flush against the curb, a continuous and detectable vertical edge treatment must be provided along the street side of the sidewalk wherever pedestrian crossing is not intended (R306.4.1.2). The bottom of the vertical edge treatment can be no higher than 15 inches (380 mm) maximum above the walking surface of the pedestrian circulation path.
In the proposed rule, the Board addressed continuous and detectable edge treatment at curb-attached sidewalks (NPRM R306.3.1). In the final rule, the Board has clarified that the other option is separation between the curb and the pedestrian circulation path by landscaping or nonprepared surface (R306.4.1.1).
The Board's reference in the proposed rule (NPRM R306.3.1) to chains, fencing, and railings created confusion for commenters and others who have sought technical assistance from the Board regarding vertical edge detection. The Board indicated a maximum height for the bottom edge of these treatments but did not intend to convey that these are the only options for vertical edge detection that jurisdictions may use. Consequently, in the final rule, the Board has removed the reference to chains, fencing and railings. The Board will provide examples of vertical edge detection options in its technical assistance materials.
Two state DOTs and one engineer commented that a standard or raised curb should be a sufficient indication that crossing is not intended. A standard or raised curb does not provide sufficient indication that a crossing is not intended. Four state DOTs expressed concern that vertical edge treatments would negatively impact snow removal operations. The Board notes that jurisdictions that have these concerns may opt for separation instead of a vertical edge treatment. One state DOT requested that cobblestone treatment be permitted for separation. Cobblestone surfaces are prepared surfaces that are used in existing facilities for pedestrian circulation. Thus, they are not useful for wayfinding because they are easily mistaken for a walking surface.
The Board observes that while several state DOTs and local government commenters expressed concern regarding the implementation or need for detectable edge treatment at roundabouts, over 150 individuals, five disability rights organizations, and one local government official commented in support of a requirement for edge detection at roundabouts. The Board is confident that persons with disabilities need edge detection for equitable use and safety of pedestrian facilities at roundabouts.
Crosswalks at multi-lane segments of roundabouts and multi-lane channelized turn lanes require one or more of the following treatments: a traffic control signal with a pedestrian signal head; a pedestrian hybrid beacon; a pedestrian actuated rectangular rapid flashing beacon; or a raised crossing (R306.4.2 and R306.5). The requirement for crosswalk treatments at multi-lane roundabouts is discussed in the Major Issues section above. For the same accessibility reasons that these treatments are needed at roundabout crossings, they are also needed at multi-lane channelized turn crossings. Accordingly, the Board has included that requirement at R306.5.
An accessible pedestrian signal is a device that communicates information about pedestrian signal timing in non-visual formats such as audible tones or speech messages, and vibrating surfaces. In the proposed rule, technical requirements for accessible pedestrian signals were incorporated by reference from the MUTCD. Specifically, the
The Board concurs that additional clarification as to the technical requirements for accessible pedestrian signals is appropriate and has thus added technical sections for pedestrian pushbuttons and passive pedestrian detection (R307) and accessible pedestrian signal walk indications (R308) directly to the rule text, based on the technical requirements of the MUTCD sections referenced in the proposed rule. The MUTCD sections are not incorporated by reference. The requirements are generally consistent with the MUTCD, as described in the provision-specific discussions below; however, the language used in the final rule text clarifies that these requirements are mandatory.
In general, accessible pedestrian signals have three features: (1) a method of activation, which is either a pushbutton that activates accessible features when pressed or a passive pedestrian detection device that uses technology to detect the presence of pedestrians and then automatically activates accessible features; (2) a device that provides audible indications of visual pedestrian signals for people who are blind or have low vision; and (3) a pushbutton with a tactile arrow that provides vibrotactile cues to individuals who are deaf and also blind or have low vision. These three features may be integrated into one device or presented in multiple devices that work together as a system. Operable parts must comply with technical requirements for operable parts at R403 (R307.1).
Pedestrian push buttons and passive detection devices activate the accessible pedestrian signals and, where applicable, the walk interval. This provision was incorporated by reference in the proposed rule from MUTCD section 4E.09 paragraph 13, but referred only to pedestrian push buttons. In the final rule, the Board revised the language to clarify that push buttons or passive detection will activate the accessible pedestrian signals and walk interval, where applicable. In addition, the language of the proposed MUTCD provision suggested that pushbuttons were optional, which was inconsistent with the language of NPRM R209.1 indicating that pushbuttons are required. The revised language in the final rule removes this inconsistency, clarifying that pedestrian push buttons are required.
Where an extended push button press is used to provide additional features, a push button press of less than one second actuates only the pedestrian timing and any associated accessible walk indication, and a push button press of one second or more actuates the pedestrian timing, any associated accessible walk indication, and any additional features. If additional crossing time is provided by means of an extended pushbutton press, a sign so indicating shall be mounted adjacent to or integral with the pedestrian push button. This provision is taken from MUTCD section 4E.13 paragraph 2.
Pedestrian push buttons must be located no greater than 5 feet from the side of a curb ramp run or the edge of the farthest associated crosswalk line from the center of the intersection (R307.4). Pedestrian push buttons must be located between 1.5 and 10 feet from the edge of the curb or pavement. The purpose of this provision is to ensure that push buttons are placed in close proximity to the crosswalk they serve as individuals who need the tactile features will need to stand next to the push button while awaiting the walk interval, and often the audible signals emanate from the push button housing.
This provision is taken from MUTCD 4E.08 paragraph 4, which states that pedestrian pushbuttons should be located between 1.5 and 6 feet from the edge of the pavement and 4E.08 paragraph 6, which states that where physical constraints prevent that location, the pushbutton should not be farther than 10 feet from the edge of curb or pavement. The Board agrees that placing the pushbutton between 1.5 and 6 feet from the edge of curb or pavement is preferable but has extended the requirement to 10 feet in acknowledgment that the geometry of some intersections, even in new construction, will necessitate placement further than 6 feet from the edge of curb or pavement.
Where two pedestrian push buttons are provided on the same corner, they must be 10 feet or more apart; however, in alterations where it is technically infeasible to provide 10 feet of separation between pedestrian push buttons on the same corner, the pedestrian pushbuttons may be closer together and a pedestrian push button information message complying with R308.3.2 must be provided (R307.4.1). This provision is taken from MUTCD sections 4E.08 paragraphs 7 and 8 and 4E.10 paragraph 3. Two local government commenters and AASHTO expressed concern regarding the requirement for 10 feet of separation between pedestrian push buttons on the same corner. The Board notes that in the final rule this requirement applies to new construction on undeveloped land. Pedestrian push buttons that are added to existing rights-of-way are considered alterations, and alterations subject to existing physical constraints that make compliance with applicable requirements technically infeasible must comply with the applicable requirements to the maximum extent feasible (R202.3).
The face of the push button must be aligned parallel to its associated crosswalk. This alignment ensures that the tactile arrow points in the direction of pedestrian travel, and provides uniformity for wayfinding. This provision is taken from MUTCD section 4E.08 paragraph 4.
Pedestrian push buttons or passive detection devices must activate audible and vibrotactile walk indications complying with R308. This requirement specifies that both audible and vibrotactile indications are required, and is taken from MUTCD section 4E.11 paragraph 2.
Where a pedestrian push button or a passive detection device is provided for pedestrian activated warning devices, such as rectangular rapid flashing beacons, the pedestrian push button or passive detection device must activate a speech message that indicates the status of the beacon in lieu of an audible walk indication. The speech message volume must comply with requirements stated at R308.4. Where a pedestrian push button is provided, it must not include vibrotactile features indicating a walk interval.
This provision clarifies the type of accessible indications that are required
Pedestrian push buttons must have a locator tone complying with R307.8. This provision is taken from MUTCD section 4E.12 paragraph 2. The locator tone is a sound that emanates from the push button housing that enables individuals who are blind or have low vision to locate the push button.
Locator tones have a duration of 0.15 seconds or less and repeat at one-second intervals except when another audible indication from the same device is active (R307.8.1). This requirement is taken from MUTCD section 4E.12 paragraph 4. To avoid a scenario in which multiple sounds are simultaneously emanating from the same device, the Board has added language clarifying that when another audible indication from the same device is active, the locator tone is to be silenced. The Board has also added an exception allowing the locator tone to be silenced if a passive detection system activates the locator tone when a pedestrian is within a 12-foot radius of the pedestrian push button. This addresses some commenter concerns regarding sounds bothering nearby residents. However, the Board also notes that those concerns are likely no longer an issue due to evolving technology; when the proposed rule was published, speakers were placed closer to the pedestrian signal heads, and were not typically integrated into the pedestrian push button device as they are now. This resulted in louder audible cues than those that emanate from today's devices.
Pedestrian push button locator tones must be intensity responsive to ambient sound and audible 6 to 12 feet from the push button, or to the building line, whichever is less (R307.8.2). The push button locator tone must be louder than ambient sound up to a maximum volume of 5 dBA louder than ambient sound. Automatic volume adjustment in response to ambient traffic sound level is capped at a maximum volume of 100 dBA. This requirement is taken from MUTCD sections 4E.11 paragraphs 9 and 10 and 4E.12 paragraph 6.
Section R307.8.3 requires that where audible beaconing is used, the volume of the push button locator tone during the pedestrian change interval of the called pedestrian phase be increased and operated in one of the following ways: the louder audible walk indication and louder locator tone comes from the far end of the crosswalk, as pedestrians cross the street; the louder locator tone comes from both ends of the crosswalk; or the louder locator tone comes from an additional speaker that is aimed at the center of the crosswalk and that is mounted on a pedestrian signal head. This requirement is taken from MUTCD section 4E.13 paragraph 8.
When the traffic control signal is operating in a flashing mode, pedestrian push button locator tones must remain active, and the pedestrian push button must activate a speech message that communicates the operating mode of the traffic control signal (R307.8.4). Where traffic control signals or pedestrian hybrid beacons are activated from a flashing or dark mode to a stop-and-go mode by pedestrian actuations, a speech message communicating the operating status of the traffic control signal is not required. Flashing mode refers to when traffic signals flash either red or yellow, often late at night when traffic volumes are reduced, or at intersections in rural areas with low regular traffic flow.
Requirements for push button locator tones are addressed at MUTCD section 4E.12 paragraph 5. The MUTCD states that push buttons must be deactivated when the traffic control signal is in flashing mode. In response to comments from a national disability rights advocacy organization that emphasized the importance of visual information being provided in non-visual format for pedestrians who are blind or have low vision, the Board has explicitly deviated from the MUTCD's approach in this instance to ensure that pedestrians who are blind or have low vision can access information regarding the status of the traffic control device.
Pedestrian push buttons must have a tactile arrow with high visual contrast that is aligned parallel to the direction of travel on their associated crosswalks. This requirement is taken from MUTCD 4E.12 paragraph 1.
Audible and vibrotactile walk indications are provided by accessible pedestrian signals during a walk interval. The walk interval occurs when a traffic control device signals traffic to stop and a pedestrian signal head signals to pedestrians, using the illuminated “walking person” visual signal, to exit the curb and begin to cross the street. The remainder of the time allotted for pedestrians to complete the crossing is called the “pedestrian change interval,” and is signaled by an illuminated flashing “upraised hand.” The technical requirements in section R308 pertain mostly to the audible and vibrotactile cues during the walk interval. The Board acknowledges and concurs with commenters' requests for standardization with respect to audible cues. These requirements will provide standardization with respect to the type of sound, pattern of speech message, and volume of the audible cues provided.
Accessible pedestrian signals have an audible and vibrotactile walk indication during the walk interval only. The audible walk indication must be audible from the beginning of the associated crosswalk. During the pedestrian change interval, audible cues of the accessible pedestrian signals revert to the pedestrian push button locator tone. This requirement is taken from MUTCD sections 4E.11 paragraphs 4 and 25.
There are two types of audible walk indications: a percussive tone (R308.3.1) and a speech walk message (R308.3.2). A percussive tone is required where an accessible pedestrian signal is provided at a single crossing or where two accessible pedestrian signals are 10 feet or more from each other at a corner. The percussive tone repeats eight to ten ticks per second with multiple frequencies and a dominant component at 880 Hz. In alterations, where it is technically infeasible to provide 10 feet separation between pedestrian push buttons on the same corner, the audible walk indication for each signal is a speech walk message that complies with R308.3.2. These requirements are taken from MUTCD section 4E.11 paragraphs 7 and 8.
Several commenters objected to the “chirping” noise that was used by early accessible pedestrian signals. The Board notes that the final rule prescribes either a percussive tone or an audible speech
The Board carefully considered comments on the format of audible walk indications from two national advocacy organizations for people who are blind or have low vision. Both organizations requested that the audible walk indications be limited to speech messages to ensure that the same information available to a sighted pedestrian is provided to a pedestrian who is blind or has low vision.
In the absence of additional significant research studies regarding audible walk indications, the Board has accepted the MUTCD's preference for percussive tones over speech messages. The Board notes that MUTCD adopted this approach based on research that concluded that speech walk indications were not understandable to pedestrians under all ambient sound conditions.
The Board acknowledges that this approach does not wholly address issues that may face pedestrians who are blind or have low vision, as they are not provided with the same information that is provided visually, specifically the pedestrian countdown. Consequently, persons who are blind or have low vision approaching a crosswalk during the pedestrian clearance interval will not know how many seconds remain and may then wait an entire cycle for the audible walk indication even if they would have had sufficient time to cross. The Board will encourage additional research regarding speech messages at crosswalks, including the viability of an audible pedestrian countdown.
Jurisdictions have the option of providing speech information messages at a pedestrian signal, regardless of whether it is a pretimed signal or actuated with the pedestrian push button or passive detection; however, the speech information message may only be actuated when the walk interval is not timing (R308.3.2.1). Speech information messages provide wayfinding assistance for persons who are blind or have low vision and can be especially helpful at intersection corners with multiple crossings. If provided, the speech message must begin with the term “Wait,” followed by intersection identification information modeled after: “Wait to cross Broadway at Grand.” Information on intersection signalization or geometry may also be provided after the intersection identification information.
Where a speech walk message is used as the audible walk indication, it must use the following patterns. At intersections having pedestrian phasing that is concurrent with vehicular phasing, the speech message must be patterned after the model: “Broadway. Walk sign is on to cross Broadway.” (R308.3.2.2). At intersections with exclusive pedestrian phasing, meaning that traffic is stopped in all directions while pedestrians cross in all directions, the speech message must be patterned after the model: “Walk sign is on for all crossings” (R308.3.2.3). Where a pilot light is provided, the speech message “Wait” must be provided if actuated while the walk interval is not timing (R308.2.3.4). These speech message requirements come from MUTCD sections 4E.11 paragraphs 18 and 19 and 4E.08 paragraph 17.
Audible walk indications must be louder than ambient sound, up to a maximum volume of 5 dBA louder than ambient sound. For automatic volume adjustment in response to ambient traffic sound, the maximum volume is 100 dBA. Where audible beaconing is provided in response to an extended push button press, the beaconing can exceed 5 dBA louder than ambient sound; however, the maximum volume remains 100 dBA. Volume requirements come from MUTCD section 4E.10 paragraphs 9 and 10.
The pedestrian push button must vibrate during the walk interval. People who use vibrotactile cues, such as people who are both deaf and blind, will stand with their hand on the pedestrian push button until it vibrates indicating the walk interval. The only vibrotactile cue provided is the walk interval. The vibrotactile walk indication requirement comes from MUTCD section 4E.11 paragraph 3.
The technical requirements for transit stops and transit shelters, which appear at NPRM section 308 in the proposed rule, are largely based on provisions for transit facilities in the 2004 ADA and ABA Guidelines.
A transit stop is defined in the final rule as, “An area that is designated for passengers to board or alight from buses, rail cars, and other transportation vehicles that operate on a fixed route or scheduled route, including bus stops and
Boarding and alighting areas at sidewalk or street-level must comply with technical requirements specific to boarding and alighting areas for slope and dimensions, as well as common requirements for all transit stops, and must serve each accessible vehicle entry and exit (R309.1.1, R309.1.3). Where a transit shelter is provided, the boarding and alighting area can be located within or outside the shelter.
The proposed rule required that transit stops serving multicar vehicles have technically compliant boarding and alighting areas for each vehicle (NPRM R308.1.1). In the final rule, the Board has replaced this language with a more precise requirement that a compliant boarding and alighting area serve each accessible vehicle entry.
A state DOT requested that the Board incorporate language indicating that entities comply with this requirement “to the extent that the construction specifications are within their control,” which is language that the U.S. Department of Transportation added to modify its adoption of 810.2.2 of Appendix D to 36 CFR part 1191.
Boarding and alighting areas must have a clear length of 96 inches (2440
The slope of boarding and alighting areas measured parallel to the street must be the same as the grade of the street (R309.1.1.2). The slope of boarding and alighting areas measured perpendicular to the street must be 1:48 (2.1%) maximum. There are no substantive changes to this provision from the proposed rule. The provision has been retitled “slope,” as the term “grade,” which was used in the proposed rule, connotes a specific direction of pedestrian travel.
Boarding platforms in the public right-of-way must comply with technical requirements for platform and vehicle coordination (R309.1.2.1) and slope (R309.1.2.2) as well as common requirements for all transit stops (R309.1.3). The final rule defines “boarding platform” as “[a] platform raised above
Boarding platforms must be positioned to coordinate with vehicles in accordance with DOT's applicable requirements in 49 CFR parts 37 and 38, which require the height of the vehicle floor and the platform to be coordinated so as to minimize vertical and horizontal gaps. There is no change to this requirement from the proposed rule.
The slope of boarding platforms measured parallel to the track or street must be the same as the grade of the track or street, while the slope of the boarding platform measured perpendicular to the track or street must be 1:48 (2.1%) maximum. This is a change from the proposed rule, which required the slope to be 2% maximum in each direction for new construction. Upon consideration, the Board has concluded that similar to boarding and alighting areas at street level, the slope of boarding platforms measured parallel to the street or track must be the same as the grade of the track or street even in new construction.
Boarding and alighting areas and boarding platforms must comply with surface characteristics stated at R302.6 (R309.1.3.1). In new construction on undeveloped land, boarding and alighting areas and boarding platforms connect to pedestrian access routes in accordance with R203.2. In alterations, boarding and alighting areas and boarding platforms must connect to existing pedestrian circulation paths by pedestrian access routes complying with R302 (R309.1.3.2). This connection is required by R202.2 but also expressed here to ensure that jurisdictions understand that any altered boarding and alighting areas and boarding platforms must be connected to an existing pedestrian circulation path. This requirement seeks to avoid a scenario in which a person with a disability alights a transit vehicle but is then trapped in the alighting area because there is no connection to a pedestrian circulation path. In response to the NPRM, two individuals and a state DOT commented in support of a connection requirement.
The Board acknowledges a comment from a national advocacy organization for individuals who are blind or have low vision requesting that the Board require all transit stops in new construction to have boarding and alighting areas or boarding platforms that are at least 6 inches higher than street level. The organization asserts that such a requirement will minimize gaps between the vehicle and the alighting area, minimize the slope of low-floor transit bus ramps when extended, and prevent transit vehicles from encroaching into alighting areas and possibly hitting a passenger. The Board is unaware of research indicating that these are widespread problems for transit riders with disabilities in jurisdictions where transit stops are located at street-level. The Board thus declines to require a specific height for transit stops.
Pedestrian access routes must connect transit shelters to boarding and alighting areas or boarding platforms (R309.2.1). This requirement, which appeared at NPRM R308.2 in the proposed rule, ensures that persons with disabilities are able to access transit shelters. Transit shelters must have a clear space complying with the technical requirements at R404 entirely within the shelter (R309.2.2). This clear space allows a person using a wheelchair sufficient space inside the shelter to await the transit vehicle. Where seating is provided within the shelter, the clear space must be located either at one end of a seat or so as to not overlap the area within 18 inches (460 mm) from the front edge of the seat to leave leg room for seating provided within the shelter.
Any environmental controls provided within a transit shelter, such as lights or heating, must be proximity actuated to ensure that persons with disabilities can use them (R309.2.3). Protruding objects within transit shelters must comply with technical requirements for protruding objects at R402 to ensure that they are not hazards to persons who are blind or have low vision (R309.2.4).
There are no substantive changes in the final rule for technical requirements for transit shelters, although the provisions have been restructured for clarity. In response to the proposed rule, a disability rights advocacy organization requested that the Board add a requirement for a wheelchair turning space. Two design firms also commented on turning space, indicating that any required turning space should be permitted to be partially outside the shelter. The Board considered these comments and concluded that a requirement for turning space is not necessary in light of the typical designs of transit shelters, which would allow a person in a wheelchair to make a turn either partially inside the shelter or directly outside.
The Board acknowledges a comment from a design firm requesting technical criteria for benches. As stated above in the discussion of street furniture (R209), the Board concurs that technical criteria for benches, specifically back support and armrest requirements, would be useful to ensure accessibility, but as the
In the proposed rule, technical requirements for accessible on-street parking spaces were addressed at NPRM R309. There are few substantive changes from the proposed requirements; however, in the final rule, the provisions have been restructured for clarity.
In the proposed rule, the Board presented two sets of specifications for accessible parallel on-street parking spaces: specifications for wide sidewalks where the width of the adjacent sidewalk or available right-of-way exceeds 14 feet (NPRM R309.2.1) and specifications for narrow sidewalks, where the available sidewalk or right-of-way is 14 feet or less.
In the final rule, the Board had restructured this section to clarify that in new construction on undeveloped land, larger accessible parallel on-street parking spaces are required. Specifically, in the final rule, the default dimensions of accessible parallel on-street parking spaces are 24 feet long minimum parallel to the sidewalk and 13 feet wide minimum perpendicular to the sidewalk (R310.2.1). The 13-foot width accounts for the typical width of a parallel parking space plus an additional five feet, which in the proposed rule was characterized as an “access aisle” (NPRM R309.2.1). The 24-foot length accounts for the 20-foot length of a typical parking space (the dimension that the Board has used in R211 as a proxy to count unmarked parking spaces) plus 48 inches that will allow a person exiting on the driver side of the vehicle to access the connection to the pedestrian access route, such as a curb ramp, on the passenger side of the vehicle.
In the final rule, the Board concurred with an individual commenter who recommended that the Board provide total dimensions for the accessible parallel space instead of dimensions for an additional access aisle. The Board has observed in the implementation of the proposed guidelines that some jurisdictions have marked the access aisles, which creates confusion for both drivers and parking enforcement officials as to whether a vehicle may be parked in the access aisle. The point of the additional space of the access aisle (now additional width in the final rule) is to allow the driver to situate the vehicle anywhere within the full width of the space so that a person with a disability may exit the vehicle on whichever side is needed without exiting directly into a travelled way. Some persons with disabilities will need space on the driver side of their vehicle, outside of the travelled way, to transfer to a wheelchair.
The Board has provided two exceptions to the required dimensions for accessible parallel on-street parking spaces that are applicable in alterations. First, in Exception 1, the Board states that where parallel on-street parking spaces are altered but the adjacent pedestrian circulation path is not, any accessible parallel on-street parking spaces provided may have the same dimensions as the adjacent parallel on-street parking spaces if they are provided nearest the crosswalk at the end of the block face or nearest a midblock crosswalk, and a curb ramp or blended transition is provided serving the crosswalk.
This exception clarifies that where a jurisdiction is not altering a sidewalk, it need not alter the sidewalk solely to provide accessible parallel on-street spaces with the prescribed dimensions of R310.2.1, if they meet the conditions above. Rather, where, for example, the parking lane is being repaved (altered), but the sidewalk will not be altered, the jurisdiction is permitted to provide typically-sized, accessible parking spaces if they are provided nearest a crosswalk at the end of the block face or nearest a midblock crosswalk, and a curb ramp or blended transition is provided serving the crosswalk. The substantive content of this exception appeared at NPRM R309.2.1.1. The language has been revised to clarify that that the spaces must be provided nearest to a crosswalk where a curb ramp or blended transition is provided, as was the intent of the proposed language requiring the spaces to be located “at the end of the block face.”
Exception 2 of section R310.2.1 of the final rule contains the provision that appeared at NPRM R309.2.2, which relates to the requirements for parallel parking adjacent to narrow sidewalks. Where providing parallel on-street parking spaces with the dimensions specified in R310.2.1 would result in an available right-of-way width less than or equal to 9 feet (2.7 m), measured from the curb line to the right-of-way line, the accessible parallel on-street parking spaces may have the same dimensions as the adjacent parallel on-street parking spaces if they are provided nearest a crosswalk at the end of the block face or nearest a midblock crosswalk, and a curb ramp or blended transition is provided serving the crosswalk. The language of this provision has been edited to clarify that there must be a curb ramp or blended transition present where the accessible spaces are located, as was the intention in the proposed rule of requiring that they be located “at the end of the block face.” In addition, in the final rule, the Board has clarified that these accessible spaces may have the same dimensions as the adjacent parallel on-street spaces.
As in the proposed rule, the Board limits the requirement for the larger sized parking space to places where 9 full feet of available right-of-way will remain. Nine feet of available right-of-way allows for the required 48-inch clear width of the pedestrian access route and an additional 5 feet for street furniture and building frontage.
Two local government commenters and one state DOT objected to the requirement to locate typically-sized accessible parallel on-street parking spaces nearest to curb ramps. They asserted that local programs may locate spaces based on need or have requirements that the must be a certain distance from an intersection. The Board acknowledges that in the absence of Federal requirements, some state and local jurisdictions have created their own specifications for the location of accessible on-street spaces. However, to provide equity to persons with disabilities with respect to their personal safety, the amount of time that they spend in the roadway between their vehicle and the sidewalk must be minimized. Thus, it is crucial that accessible spaces are located nearest the crosswalk at the end of the block face or nearest mid-block crosswalk with a curb ramp or blended transition serving the crosswalk.
Each accessible parking space complying with the dimensions of R310.2.1 must have an independent connection to a pedestrian access route (R310.2.2). If there is a curb between the parking space and the pedestrian access route, a curb ramp or blended transition complying with R304 must be provided in accordance with R203.6.1.3 and R310.2.2; however, a detectable warning surface is not required. Built-up curb ramps within the parking space are not permitted. The clear area requirement for a curb ramp directly serving a parking space complying with the dimensions of R310.2.1 is satisfied within the additional length of the space. Accessible spaces provided in accordance with the exceptions to R310.2.1 must be connected to the curb ramp serving the crosswalk by a
A state disability board requested that the rule specify slope and cross slope for parking spaces. The Board considered this request, but concluded that roadway design considerations preclude the Board from specifying slope and cross slope for on-street parking. However, in the final rule, the Board has added a provision requiring surfaces of parking spaces to comply with technical specifications for surfaces at R302.6, except that changes in level are not permitted (R310.2.3). As indicated in the advisory at NPRM 309.1, accessible parking spaces should be located where the street has the least crown and grade (and close to key destinations).
A state DOT and a local government entity pointed out in response to the proposed rule that the access aisle (now additional width) of a parallel parking space does not benefit side lift and ramp users because they typically deploy onto the sidewalk. In the final rule, the Board has added a provision requiring that the center 50 percent of the length of the sidewalk or other surface adjacent to accessible parking spaces be free of obstructions (R310.2.4). This requirement will ensure that there is an adjacent unobstructed area to accommodate deployment of a lift or ramp.
In the final rule, the Board, concurring with a comment from an association of accessibility professionals, also added a provision clarifying the requirement for identification of accessible on-street parking spaces with a sign bearing the International Symbol of Accessibility installed 60 inches (1525 mm) minimum above the ground measured to the bottom of the sign (R310.2.5).
In the final rule, the Board has split perpendicular and angled on-street parking spaces into separate provisions, with an additional common requirements provision applicable to both, to address a change in the dimensions of the spaces and access aisles. In response to comments expressing confusion as to the need for a 96-inch access aisle for perpendicular and angled parking, the Board notes that the purpose of the access aisle is to allow sufficient space between an accessible vehicle and the next vehicle to deploy a ramp.
In R310.3.1 of the final rule, the Board has retained the proposed requirement that perpendicular spaces have an adjacent 96-inch (2440 mm) minimum access aisle extending the full length of the space. The Board has also retained the allowance that one access aisle may be shared by two spaces, but has clarified that this is only permitted where the front entry and rear entry parking are both allowed. Most wheelchair vans that are equipped with a ramp deploy on the passenger side. Thus, where a driver can park the vehicle such that the access aisle is on the passenger side, regardless of which side of the space the access aisle is located, it is appropriate that access aisle be shared by two spaces.
In the final rule, the Board has reallocated the total amount of space anticipated for the angled parking space and access aisle as follows. The Board has stated the width of accessible angled parking spaces to 132 inches (3350 mm) and reduced the width of the access aisle to 60 inches (1525 mm) (R310.4.1). The access aisle must extend the full length of the parking space on the passenger side (R310.4.2).
Because most wheelchair vans equipped with a ramp deploy on the passenger side, the Board requires that the access aisle be located on that side of the vehicle. The larger parking space allows a driver flexibility to situate the vehicle within the space so that a person with a disability on either side of the vehicle will have sufficient clearance to disembark. A person deploying a ramp on the passenger side would pull in all the way to the left in the space, which would allow the equivalent of the proposed 96-inch access aisle (
The following requirements apply to accessible perpendicular and accessible angled on-street parking spaces. The access aisles must be marked to discourage people from parking in them (R310.5.1). The access aisles must be located at the same level as the parking space they serve and cannot encroach on the traveled way (R310.5.2). These requirements are substantively the same as those proposed at NPRM R309.3.
In new construction on undeveloped land, access aisles must connect to pedestrian access routes (R310.5.3); in alterations, the access aisle may connect to an existing pedestrian circulation path in accordance with R202.2 (R310.5.3 Exception 1). In the proposed rule, this provision was entitled, “Curb Ramps or Blended Transitions” (NPRM R309.4). The Board has replaced this section with more precise language requiring a connection to a pedestrian access route, as in some areas there is no curb between the parking and the pedestrian access route and thus, no curb ramp is needed. Where curb ramps are used to make the connection, they must be provided in accordance with R203.6.1.4 and must comply with the technical requirements for curb ramps at R304 (R310.5.3); however, a detectable warning surface is not required on a curb ramp or blended transition used exclusively to connect on-street parking access aisles to pedestrian access routes.
Where curb ramps or blended transitions are used, they must not reduce the required width or length of the access aisles or accessible parking spaces (R310.5.3). This requirement clarifies a statement made in the proposed rule that “[c]urb ramps shall not be located within the access aisle” (NPRM R309.4), which a state DOT indicated was unclear. The Board has observed jurisdictions install curb ramps within an access aisle that obstruct the area intended for deployment of a ramp. The connection to the pedestrian access route, which could be a curb ramp, blended transition, or a section of pedestrian access route, must be wholly outside the required dimensions of the access aisle. A built-up curb ramp within the access aisle that reduces the required dimensions or otherwise obstructs deployment of a ramp or lift is not permitted.
Surfaces of parking spaces and access aisles serving them must comply with technical requirements for surface characteristics at R302.6, except that changes in level are not permitted (R310.5.4). A state DOT, a local government entity, and an engineer commented on the slope and cross slope characteristics of access aisles; however, the Board neither proposed nor included in the final rule any slope or cross slope requirements for on-street parking spaces or access aisles due to roadway design considerations.
In the final rule, the Board, concurring with a comment from an
The operable parts of parking meters and parking pay stations that serve accessible parking spaces must comply with technical requirements for operable parts at R403. The clear space required by R403.2 shall be located so that displays and information on parking meters and pay stations are visible from a point located 40 inches (1015 mm) maximum above the center of the clear space in front of the parking meter or parking pay station.
The only change to the substantive requirements of this section from the proposed rule is the elimination of NPRM 309.5.1 which required that parking meters for parallel parking spaces be located at the head or foot of the parking space. This requirement has been superseded by R310.2.4, which requires the center 50 percent of the length of each parking space to be free from obstructions. The provision in the final rule more precisely accomplishes the goal of ensuring that the area adjacent to a parallel parking space needed to deploy a ramp will not be obstructed, while eliminating a concern expressed by a commenter as to the uncertainty of where the “head” and “foot” of the parking space are located, and the concern expressed by other commenters that the proposed language prescribed the provision of parking meters even for jurisdictions where users of accessible spaces do not pay for parking.
The substantive technical requirements for accessible passenger loading zones differ minimally from the proposed requirements at NPRM R310; however, in the final rule they have been reorganized for clarity.
Accessible passenger loading zones must provide a vehicular pull-up space that is 96 inches (2440 mm) wide minimum and 20 feet (6.1 m) long minimum (R311.2). Vehicle pull-up spaces have adjacent access aisles that are 60 inches (1525 mm) wide minimum extending the full length of the vehicle pull-up space (R311.3). Two local government entities and one individual commented that the dimensions specified do not account for sidewalk widths or pedestrian volumes. The Board does not require that accessible passenger loading zones be provided. In new construction on undeveloped land, neither of the issues raised should be a concern as the design would reflect these considerations. In alterations, jurisdictions must comply with the applicable requirements to the maximum extent feasible where existing physical constraints make compliance with these requirements technically infeasible (see R202.3).
Access aisles must be at the same level as the vehicle pull-up space they serve and must not encroach on the traveled way. In alterations, where existing right-of-way precludes the installation of an access aisle separate from the pedestrian access route and the vehicle drop-off area is at-grade with the sidewalk, there may be overlap between the pedestrian access route and the access aisle.
As with accessible parallel parking spaces, the Board has added a requirement for accessible passenger loading zones that the center 50 percent of the adjacent sidewalk, or other surface, be free of obstructions to ensure that there is room for a vehicle to deploy a side lift or ramp.
Access aisle surfaces must be marked to discourage parking in them (R311.3.2). Surfaces of vehicle pull-up spaces and the access aisles serving them must comply with characteristics of surfaces specified at R302.6; in the final rule the Board has clarified that changes in level are not permitted (R311.4). Some commenters requested clarification regarding the required slope and cross slope of accessible passenger loading zones; however, the Board neither proposed nor included in the final rule any slope or cross slope requirements for passenger loading zones due to roadway design considerations.
Similar to the final requirements for accessible parking spaces, the Board has replaced a proposed provision requiring curb ramps or blended transitions to connect the access aisle to the pedestrian access route (NPRM R310.3) with language simply requiring the connection in consideration of places where there is no curb between the passenger loading zone and the adjacent pedestrian access route (R311.5). In alterations, the access aisle may connect to an existing pedestrian circulation path in accordance with R202.2. Where curb ramps and blended transitions are used, they must comply with technical requirements for curb ramps, except that detectable warning surfaces are not required on curb ramps and blended transitions used exclusively to connect access aisles to pedestrian access routes. Curb ramps and blended transitions also must not reduce the required width or length of access aisles. A built-up curb ramp within the access aisle that reduces the required dimensions or otherwise obstructs deployment of a ramp or lift is not permitted.
Chapter 4 contains technical requirements that, as originally proposed in the NPRM, were virtually the same as similarly titled provisions in the 2004 ADA and ABA Accessibility Guidelines. In response to public comments, and to improve the clarity of the final rule text, several of these provisions have been revised to address the public rights-of-way context more precisely. Consequently, the original distinction between Chapter 3 and Chapter 4 of the PROWAG rule text, where Chapter 3 was specific to PROWAG and Chapter 4 was taken almost directly from the 2004 ADA and ABA Accessibility Guidelines, no longer applies. However, as the proposed guidelines have been widely adopted by state and local government entities, the Board has maintained the two-chapter structure of the technical requirements to ease the transition from the proposed guidelines to the final Guidelines.
The supplemental technical requirements in Chapter 4 apply as specified in the scoping provisions of Chapter 2 or where referenced by another technical requirement in Chapter 3 or 4. These technical requirements have been adapted specifically for pedestrian facilities in the public right-of-way. In the final rule, the Board has replaced the term “finish surface,” which is typically used to refer to an interior surface, with “walking surface” or “ground surface,” which are more appropriate in the rights-of-way context. Measurements are taken from the top of the surface.
The name of this section, called “Protruding Objects” in the proposed rule (NPRM R402) has been revised in the final rule to more precisely reflect the content. There are many types of protrusions in the public right-of-way, including but not limited to signs, awnings, and landscaping. Landscaping protrusions in the public rights-of-way are common and pose special challenges to pedestrians with disabilities. For example, low hanging tree branches pose a hazard to pedestrian who are
Objects with leading edges that are more than 27 inches (685 mm) and less than 80 inches (2030 mm) above the walking surface cannot protrude horizontally more than 4 inches (100 mm) into pedestrian circulation paths. The text of this provision has been revised for clarity, but the substantive requirement has not been changed from the proposed provision, which was based on the 2004 ABA and ADA Accessibility Guidelines. However, in the final rule, the Board has added an exception that allows handrails to protrude 4.5 inches (115 mm) into a pedestrian circulation path to account for consistency with the 2004 ABA and ADA Accessibility Guidelines.
In response to the NPRM, one local government entity indicated that the protrusion limits could affect landscaping requirements and increase landscape trimming costs. The Board notes that it is common practice for jurisdictions to manage and maintain the landscaping abutting sidewalks and other pedestrian circulation paths; the final rule's protrusion limits are unlikely to significantly affect those costs.
Post-mounted objects must be installed in compliance with these technical requirements so they do not pose a hazard to persons who are blind or have low vision. In the final rule, the Board has revised the text of these provisions for clarity. The Board has also excepted the sloping portion of handrails serving stairs and ramps from compliance with R402.3.
Where objects mounted on a single post or pylon are more than 27 inches (685 mm) and less than 80 inches (2030 mm) above the walking surface, the objects must not protrude more than 4 inches horizontally into the pedestrian circulation path, as measured horizontally either from the post or pylon or from the outside edge of the base if the base is at least 2
Where objects within a pedestrian circulation path are mounted between posts or pylons and the clear distance between the posts or pylons is greater than 12 inches (305 mm), the lowest edge of the object must be 27 inches (685 mm) maximum above the walking surface (low enough so that it is cane-detectable) or 80 inches (2030 mm) minimum above the walking surface (high enough that someone could walk under it) (R402.3.2). In the final rule, the Board has added an exception allowing objects mounted on two or more posts or pylons that do not comply with the above dimensions if a barrier with its lowest edge at 27 inches maximum above the walking surface is provided. The barrier is cane-detectable, and thus reduces the hazard.
The vertical clearance of a pedestrian circulation path must be 80 inches high minimum. Where the vertical clearance is less than 80 inches, guards or other barriers must be provided to prohibit pedestrian travel. This will prevent pedestrians from colliding with objects overhead. The lowest edge of the guard or barrier must be no higher than 27 inches above the walking surface to ensure that it is cane detectable. These substantive requirements for vertical clearance have not changed from those in the proposed rule, although they have been revised for clarity. In addition, the Board has substituted the word “guard” for “guardrail,” which has a different meaning in the transportation context.
In response to the NPRM, the Board received comments from a disability rights advocacy organization and an accessible design firm requesting that the Board required vertical clearance of 96 inches to account for sagging wet branches, awnings, and wires. The Board has maintained the vertical clearance at 80 inches, which provides sufficient head clearance for most people. As in the case of several of PROWAG's technical requirements, some maintenance may be needed to maintain compliance.
In the final rule, the Board has added a provision to clarify that protruding objects may not reduce the clear width required for pedestrian access routes, as specified at R302.2. That means, for example, that an object mounted between posts cannot be placed in the middle of a sidewalk, even if it complies with the requirements at R402.3.2, if it obstructs the required clear width of the path.
An operable part is a component of an element used to insert or withdraw objects, or to activate, deactivate, or adjust the element, or interact with the element (R104.3). The technical requirements for operable parts apply to operable parts on street furniture, fare vending machines, other fixed elements at transit stops and shelters, accessible pedestrian signals (pedestrian push buttons), parking meters and parking pay stations that serve accessible parking spaces, and any other fixed elements used by pedestrians. A clear space complying with technical requirements at R404 must be provided at operable parts (R403.2). Operable parts must be located within the reach ranges specified in R406 (R403.3). There are no substantive changes to the technical requirements for operable parts from what was proposed in the NPRM; however, the Board updated the definition of “operable part” to include a component of an element use to “interact with the element” (R104.3). This addition is designed to cover QR codes and any other future markings that are intended to be scanned with a mobile device. If a QR code or similar marking is provided on an element, that code or marking must be within reach range, and clear space complying with R404 must be provided so that a person in a wheelchair can use it.
Operable parts must be operable with one hand and not require tight grasping, pinching, or twisting of the wrist (R403.4). The force required to activate operable parts may not exceed 5 pounds (22.2 N). One local government entity objected to this requirement asserting that products rated for exterior use have controls that likely require more force than 5 pounds to operate. The Board is not aware of jurisdictions having actual difficulties obtaining products that comply with this requirement. Exterior environments on buildings and sites are also subject to the same technical requirements for operable parts. 36 CFR part 1191, Appx. B 205, Appx. C F205, Appx. D 309.
Clear spaces are required at operable parts so that a person with a wheelchair or other mobility aids (such as a walker or crutches) has sufficient room and a stable surface to access an operable part. Clear spaces are also provided adjacent or integral to benches so that a person using a wheelchair may sit in proximity to a companion using the bench. Two disability rights advocacy organizations requested in their comments that the Board remove the advisory specifying
Clear spaces are 30 inches (760 mm) minimum by 48 inches (1220 mm) minimum (R404.3). Their surfaces must comply with technical requirements for surface characteristics at R302.6 (R404.2). The slope of a clear space must be 1:48 (2.1%) maximum in both directions (R402.2). This is a change from the proposed rule, which required a running slope consistent with the grade of the adjacent pedestrian access route and a cross slope of 2 percent. The Board agreed with commenters that minimizing the slope in both directions provides better accessibility, particularly where both hands are needed for an operable part, leaving a person without a hand to stabilize a manual wheelchair. The Board has retained an exception where the grade of an adjacent pedestrian access route conforms to the requirements of R302.4; in those situations, the slope of the clear space may be consistent with the slope of the pedestrian access route.
Two state DOTs and a regional association of engineers raised concerns about the cross slope exceeding 2 percent in circumstances where a pedestrian pushbutton for an accessible pedestrian signal is adjacent to a curb ramp and the clear space then overlaps the curb ramp. The Board notes that full compliance is expected for new construction on undeveloped land, and that in alterations, where existing physical constraints make compliance with applicable requirements technically infeasible, compliance with these requirements is required to the maximum extent feasible (
Clear spaces may include knee and toe clearance complying with R405 (R404.4.). Clear spaces are positioned either for a forward approach or parallel approach (R404.5). In the final rule, the Board has clarified the orientation of the clear space for each approach: the 30-inch side is nearest to the element for a forward approach, and the 48-inch side is nearest to the element for a parallel approach (R404.5).
Clear spaces must not be located on curb ramp runs or flares. One fully unobstructed side of a clear space must adjoin a pedestrian access route or another clear space (R404.6). If a clear space is confined on all or part of three sides, additional maneuvering clearance must be provided (R404.7). For a forward approach where the depth of the confined space exceeds 24 inches measured perpendicular to the element, the clear space and additional maneuvering clearance must be 36 inches (915 mm) wide minimum (R404.7.1). The clear space and additional maneuvering clearance must be 60 inches (1525 mm) wide minimum for a parallel approach where the depth of the confined space exceeds 15 inches.
The technical requirements for knee and toe clearance apply where space beneath an element is included as part of the clear space. These technical requirements are virtually identical to those in the 2004 ABA and ADA Accessibility Guidelines. The only change from the proposed rule is that the Board added a clarifying provision at R405.2.4 stating that space extending more than 6 inches (150 mm) beyond the available knee clearance at 9 inches above the ground surface is not considered toe clearance. The Board added this provision for consistency with section 306.2.4 of the 2004 ABA and ADA Accessibility Guidelines.
Technical requirements for reach ranges describe where an operable part must be located so that a person using a wheelchair can reach it. They also specify whether obstructions between the pedestrian and the element with the operable part are permitted, and if so, to what extent. The substantive requirements have not changed from the proposed rule, but the text of the provisions has been edited for clarity.
For both forward and parallel approaches, the reach range extends between 15 inches (380 mm) and 48 inches (1220 mm) above the ground surface (R406.2). Where the clear space is configured solely for a forward approach to an element, obstructions are not permitted between the clear space and the element (R406.3.1). Where a clear space is configured for a parallel approach to an element, an obstruction 10 inches (255 mm) deep maximum is permitted between the clear space and the element (R406.3.2).
In response to comments from three state DOTs requesting that the Board clarify the permitted height of an obstruction, in the final rule the Board has stated that for clear spaces configured for a parallel approach to an element, the permitted obstruction must be no more than 34 inches (865 mm) high (R406.3.2). This obstructed high reach limit is consistent with that stated in section 308.3.2 of the 2004 ABA and ADA Accessibility Guidelines.
Four state DOTs, three local government commenters, and an engineering firm requested that an obstructed side reach up to 24 inches deep be allowed as is permitted in the 2004 ADA and ABA Accessibility Guidelines. The Board declines to make this change, as most operable parts placed in new construction in the public right-of-way can be located so they are unobstructed. The Board notes that most of the concerns expressed related to existing rights-of-way. Alterations must comply with the applicable requirements to the maximum extent feasible where existing physical constraints make compliance with these requirements technically infeasible (R202.3). An engineering firm expressed concern that the 10-inch obstruction depth limit would present challenges for mounting push buttons within the specified reach range. The Board notes that push button extensions, which are readily available, mitigate this concern.
Ramps in the public right-of-way are used to provide access to a pedestrian overpass or underpass, to the entrance of a building or facility, and in instances where the grade of the sidewalk exceeds the allowances specified at R302.4. In the final rule, the Board has defined a “ramp” as a “sloped walking surface with a running slope steeper than 1:20 (5.0%) that accomplishes a change in level and is not part of a pedestrian circulation path that follows the roadway grade. A curb ramp is not a ramp” (R104.3).
In addition, the Board has revised R407.1 to state that R407 does not apply to curb ramps or pedestrian access routes following the grade established for the adjacent street consistent with the requirements of R302.4.1.
This definition and revisions to R407.1 address two repeated concerns in the comments to the NPRM and in subsequent technical assistance inquiries the Board has received since the NPRM was published. First, the Board clarifies that “curb ramps” and “ramps” are different types of pedestrian facilities and have distinct technical requirements. Two state DOTs, one local government entity, an
The running slope of a ramp run is 1:12 (8.3%) maximum (R407.2) and the cross slope of a ramp run is 1:48 (2.1%) maximum (R407.3). In the proposed rule, the Board had specified a minimum running slope of 5 percent, which was derived from the proposed maximum grade of a pedestrian access route (NPRM R407.2). A state DOT requested that the Board eliminate the minimum slope, and the Board concurred that stating a minimum slope was contributing to the confusion as to the applicability of the ramp technical requirements. Thus, the final rule does not state a minimum running slope for ramp runs.
The clear width of a ramp run must be 48 inches (1220 mm) minimum, and if handrails are provided, the clear width between handrails must be 48 inches (1220 mm) minimum (R407.4). This is a departure from the NPRM in which the Board proposed that the clear width of ramps be 36 inches minimum, consistent with the 2004 ADA and ABA Accessibility Guidelines. Several commenters, including three state DOTs and a local government entity, recommended that ramps have a minimum width of 48 inches, consistent with the rest of the pedestrian access route in the public right-of-way. The Board concurred, but also provided an exception allowing a minimum width between handrails of 36 inches (915 mm) for ramps that exclusively serve a building entrance.
The rise for any ramp run is 30 inches (760 mm) maximum (R407.5). Landings must be provided at the top and bottom of each ramp run (R407.6). Landing slopes must be 1:48 (2.1%) maximum parallel and perpendicular to the ramp running slope. Landings are 60 inches (1525 mm) long minimum (R407.6.3) and as wide as the widest ramp run leading to the landing (R407.6.2). Ramps that change direction between runs at landings must have a clear landing 60 inches (1525 mm) minimum by 60 inches (1525 mm) minimum where the ramps change direction (R407.6.4). A state DOT requested 48 inch (1220 mm) minimum landings; the Board declines this suggestion as switchbacks require more space for maneuvering. A state disability board requested that the Board clarify that handrails cannot overlap the minimum clear dimensions of the landing. The Board does not think this modification to the rule text is needed, as R407.4 indicates that clear width is measured inside any handrails.
Surfaces of ramp runs and landings comply with R302.6, except that changes in level, are not permitted (R407.7). Ramp runs with a rise greater than 6 inches (150 mm) must have handrails complying with R409 (R407.8).
Edge protection must be provided on each side of ramp runs and each side of ramp landings, except those serving an adjoining ramp run, stairway, or other pedestrian circulation path (R407.9). In the final rule, this provision has been revised for clarity. There are two options for edge protection. One is to extend the surface of the ramp run or landing 12 inches (305 mm) minimum beyond the inside face of the handrail (R407.9.1). The other is to provide a 4-inch (100 mm) high curb or a barrier that prevents the passage of a 4-inch sphere (R407.9.2). In the final rule, the Board has specified the minimum height of the curb for clarity and consistency with guidance for the 2004 ABA and ADA Accessibility Guidelines.
Technical accessibility requirements for stairs are needed for individuals with disabilities who are ambulatory and use stairs. For example, a person who drags a foot may catch it on a nosing if it does not comply with the requirements. For individuals who walk with difficulty or have challenges with balance, it is often preferable to use stairs rather than a ramp when both are provided as stairs may represent a shorter distance to be traveled or a more even surface.
The final technical requirements for stairs in the public right-of-way are almost identical to the requirements for stairs in the 2004 ADA and ABA Accessibility Guidelines, and those proposed in the NPRM with two exceptions. First, consistent with the requirements in the 2004 ADA and ABA Accessibility Guidelines but different than the NPRM, the Board has clarified at R408.4 that treads are permitted to have a slope of 1:48 (2.1%) maximum. Second, in response to a request from over 80 commenters, the Board has added a requirement for visual contrast on stair treads and landings.
All steps on a flight of stairs must have uniform riser heights and uniform tread depths (R408.2). Risers must be 4 inches (100 mm) high minimum and 7 inches (180 mm) high maximum. Treads must be 11 inches (280 mm) deep minimum. Two commenters requested that the Board permit the bottom riser to be of varying height to accommodate the grade of the sidewalk. The Board does not find that a modification to the rule text is needed to account for this scenario. DOJ regulations implementing accessibility requirements under Title II of the ADA state that full compliance with the relevant accessibility requirements is not required in the context of new construction where a public entity can demonstrate that it is structurally impracticable to meet the requirements. 28 CFR 35.151. In alterations, where compliance with a requirement is technically infeasible, compliance is required to the maximum extent feasible (
Open risers are not permitted (R408.3). Stair treads must comply with technical requirements for surface characteristics at R302.6, except that changes in level are not permitted (R408.4). However, treads may have a slope not steeper than 1:48 (2.1%).
The radius of curvature at the leading edge of the tread must be 0.5 inches (13 mm) maximum (R408.5). If the nosing projects beyond the riser, the underside of the leading edge of the nosing must be curved or beveled. Risers are permitted to slope under the tread at an angle of 30 degrees maximum from vertical. The nosing may project 1.5 inches (38 mm) maximum over the tread below.
The leading edge of each step tread and top landing must be marked by a 1-inch (25 mm) wide stripe (R408.6). The stripe must contrast visually with the rest of the step tread or circulation path surface, either light-on-dark or dark-on-light. In adopting a requirement for contrast striping, the Board notes that a 1- to 2-inch stripe of contrasting color (either dark-on-light or light-on dark) is required by American National Standard (ANSI) through adoption of international building codes (IBC) to help users distinguish each step.
Stairs must have handrails complying with the technical requirements for handrails at R409.
Wherever handrails are provided in the public right-of-way, regardless of whether or not they are required, they must comply with technical requirements for handrails. The Board received several comments in response to the handrails technical requirements in the NPRM asking the Board to clarify where handrails are required. Again, handrails are required on ramps and stairs (R409.2); they are not required on curb ramps or pedestrian circulation paths complying with the grade requirements at R302.4. The Board added a statement to R409.1 clarifying that R409 does not apply to curb ramps.
The technical requirements for handrails in the final rule are substantively the same as the technical requirements in the NPRM. The Board provided clarification, described below, as to how jurisdictions are to handle scenarios where handrail extensions would reduce the clear width of a pedestrian access route (see R409.10).
Handrails must be continuous within the full length of each ramp run or stair flight (R409.3). Inside handrails on switchback or dogleg ramps and stairs must be continuous between ramp runs or stair flights.
The top of handrail gripping surfaces must be between 34 inches (865 mm) and 38 inches (965 mm) above walking surfaces, ramp surfaces, and stair nosings (R409.4). Handrails must be installed at a consistent height. There must be at least 1.5 inches (38 mm) between the handrail gripping surface and any other adjacent surface to allow sufficient room to grip the handrail (R409.5).
Handrail gripping surfaces must be continuous along their length and unobstructed along their tops and sides (R409.6). The bottoms of handrail gripping surfaces must not be obstructed for more than 20 percent of their length. Any horizontal projections must be at least 1.5 inches (38 mm) below the bottom of the handrail gripping surface.
Handrail gripping surfaces' cross sections comply with either R409.7.1 (circular) or R409.7.2 (non-circular). Where expansion joints are necessary for large spans of handrails, the expansion joint cross section may be smaller than the specified cross section diameters for sections no more than 1 inch (25 mm) long. Handrail gripping surfaces with a circular cross section must have an outside diameter of 1.25 inches (32 mm) minimum and 2 inches (51 mm) maximum (R409.7.1). Handrail gripping surfaces with a non-circular cross section must have a perimeter dimension of 4 inches (100 mm) minimum and 6.25 inches (160 mm) maximum, and a cross-section dimension of 2.25 inches (57 mm) maximum (R409.7.2). Handrail gripping surfaces and any surfaces adjacent must not be sharp or abrasive and must have rounded edges (R409.8).
Handrails must not rotate within their fittings; however, where expansion joints are necessary for large spans of handrails, the expansion joint may rotate in its fitting (R409.9).
Handrail gripping surfaces must extend beyond and in the same direction of ramp runs and stair flights in accordance with R409.10. In response to a comment from a state DOT requesting clarity on the requirement for handrail extensions where they would protrude into a pedestrian circulation path, the Board has clarified that in new construction on undeveloped land, handrails must not extend into a roadway or pedestrian circulation path. However, in alterations, if handrail extensions complying with R409.10 would reduce the clear width of a pedestrian access route, they shall extend as far as possible without reducing the clear width. Extensions are not required for continuous handrails at the inside turn of switchback or dogleg ramps and stairs.
The required extensions are as follows. Ramp handrails must extend horizontally above the landing for 12 inches (305 mm) minimum beyond the top and bottom of ramp runs (R409.10.1). Extensions must either return to a wall, guard, or the landing surface, or be continuous to the handrail of an adjacent ramp run. At the top of a stair flight, handrails must extend horizontally above the landing for 12 inches (305 mm) minimum beginning directly above the first riser nosing (R409.10.2). Extensions must either return to a wall, guard, or the landing surface, or be continuous to the handrail of an adjacent stair flight.
At the bottom of a stair flight, handrails must extend at the slope of the stair flight for a horizontal distance at least equal to one tread depth beyond the last riser nosing (R409.10.3). Extensions must either return to a wall, guard, or the landing surface, or be continuous to the handrail of an adjacent stair flight.
Technical requirements for pedestrian signs provide accessibility to pedestrians with low vision. As stated in the scoping at R208, all signs on shared use paths and all other signs in the public right-of-way intended for pedestrians other than those explicitly excepted are required to comply with the technical requirements. The Board notes, in response to a local government comment, that a noncompliant sign accompanied by a compliant sign does not meet the requirements. All signs covered by the scoping must comply with the technical requirements.
The only change to the final technical requirements for signs from the proposed provisions is that the Board has relocated the requirement for height to the end of the section as a more logical placement. The technical requirements for visual characters on signs are substantively identical to the character requirements in the 2004 ADA and ABA Accessibility Guidelines. 36 CFR part 1191, Appx. D 703.
Characters and their background must have a non-glare finish (R410.2), contrast with their background (R410.2), and be conventional in form (R410.4). Characters may be uppercase or lowercase or a combination of both (R410.3).
Characters must be selected from fonts where the width of the uppercase letter “O” is 55 percent minimum and 110 percent maximum of the height of the uppercase letter “I” (R410.5). Minimum character heights are specified in Table R410.6. The viewing distance is measured as the horizontal distance between the character and an obstruction preventing further approach towards the sign (R410.6). Character height is based on the uppercase letter “I”.
Stroke thickness (R410.7), character spacing (R410.8), and line spacing (R410.9) are specified. Visual characters must be at least 40 inches (1015 mm) above the ground surface.
The International Symbol of Accessibility (ISA) is provided as a figure. Wherever the ISA is used, it must have a non-glare finish and contrast with its background. In the final rule, this provision has been slightly restructured, but there are no
The Office of Management and Budget has reviewed this final rule pursuant to E.O. 12866, 58 FR 51735 (Sept. 30, 1993), Principles of Regulations, and E.O. 13563, 76 FR 3821, (Jan. 21, 2011), Improving Regulation and Regulatory Review.
The USDOT Volpe Center prepared the final regulatory impact analysis (FRIA) on behalf of the Access Board. The FRIA is available on the Access Board's website at
Pursuant to E.O. 13563, the Volpe Center has used “the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible”; however, the final rule and the underlying statutes create many important benefits that, in the words of E.O. 13563, stem from “values that are difficult or impossible to quantify.” In addition to considering the rule's quantitative effects, the Board has considered the rule's qualitative effects.
Executive Order 13563 states that in making a reasoned determination that a regulation's benefits justify its costs, “each agency may consider and (discuss qualitatively) values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.” The proposed guidelines promote important societal values that are difficult or impossible to quantify. When enacting the ADA, Congress found “the discriminatory effects of architectural, transportation, and communication barriers” to be a continuing problem that “denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.” 42 U.S.C. 12101(a)(5) and (9).
Congress declared that “the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency.” 42 U.S.C. 12101(a)(8). This final rule promotes the goals declared by Congress by eliminating the discriminatory effects of architectural, transportation, and communication barriers in the design and construction of pedestrian facilities in the public right-of-way. The proposed guidelines are also important to achieving the benefits of the other parts of the Americans with Disabilities Act. As the House Report for the Americans with Disabilities Act stated, “[t]he employment, transportation, and public accommodation sections . . . would be meaningless if people who use wheelchairs were not afforded the opportunity to travel on and between the streets.” H.R. 485, 101st Cong., 2d Sess. 84 (1990).
In the FRIA, the Volpe Center provides benefits and costs calculated relative to a no-action baseline, which represents a continuation of existing state and local design standards and construction practices. The details of the baseline vary significantly across PROWAG provisions, because in some areas existing practices align fairly closely with PROWAG, while in other cases there are larger differences.
The FRIA describes the methodology used to calculate compliance costs and associated benefits, including data sources, key input values and assumptions, calculation methods, and information on potential limitations and sources of uncertainty. This methodology is then applied to estimate the costs and benefits of major PROWAG provisions on a lifecycle basis, relative to a no-action baseline.
The below summarizes the quantified cost and benefit estimates. The FRIA also presents a discussion of potential compliance costs for pedestrian overpasses and underpasses; sidewalk dimensions and materials; handrails; public street toilets; transit stops and shelters; and alternate pedestrian access routes. However, these are not listed in the summary table because they are expected to have little to no overall cost impact relative to the baseline. Similarly, a number of other benefits were identified that could not be monetized using the available data.
As the relevant analysis time periods can vary by provision, the costs and benefits have been converted to annualized equivalents (using 3% and 7% discount rates) to ease comparisons. As the figures indicate, estimated monetized benefits exceed estimated compliance costs by a considerable margin. However, some of the most important benefits of this rule, in the form of equal access to public facilities, personal freedom and independence, and the elimination of accessibility barriers to mobility, are not quantified due to the inherent difficulty in monetizing such impacts.
The impacts of the proposed guidelines on small governmental jurisdictions with a population of less than 50,000 are discussed below. This information is required by the Regulatory Flexibility Act (5 U.S.C. 603).
The Access Board's current accessibility guidelines, the 2004 ADA and ABA Accessibility Guidelines, were developed primarily for buildings and facilities on sites. Some of the requirements in the 2004 ADA and ABA Accessibility Guidelines can be readily applied to pedestrian facilities in the public right-of-way, but other requirements are developed specifically for pedestrian facilities in the public right-of-way and address conditions and constraints that exist in the public right-of-way.
The Access Board is required to issue accessibility guidelines by the Americans with Disabilities Act (ADA) (42 U.S.C. 12204) and Section 502 of the Rehabilitation Act (29 U.S.C. 792) to ensure that newly constructed and altered facilities are readily accessible to and usable by pedestrians with disabilities.
The NPRM received 14 comments from entities considered “small”,
Other comments asked clarifying questions about definitions and the applicability of the proposed rule, and one commentor explicitly supported the proposed rule in its entirety.
The Access Board carefully considered all comments, including those from small government entities, and revised the final rule in light of those comments. No changes were made, however, that solely affect small government entities.
No comments were filed by the Chief Counsel for Advocacy of the Small Business Administration in response to the proposed rule.
The number of small governmental jurisdictions with a population less than 50,000 affected by the proposed guidelines is shown in the table below.
More than 65 percent of municipal governments (12,701) and almost 75 percent of towns and townships (12,062) have a population of less than 2,500. Many of these small governmental jurisdictions are located in rural areas, which generally do not construct pedestrian transportation networks (
In addition, some jurisdictions do not have full responsibility for all rights-of-way within their town or county boundaries, and accordingly would only be affected by this final rule with respect to the right-of-way that is in their purview. For example, in Delaware, North Carolina, and West Virginia, the State DOT is responsible for the management of roadways, which means that small governmental jurisdictions in these states
The public rights-of-way accessibility guidelines address the design, construction, and alteration of pedestrian facilities in the public right-of-way, including sidewalks, crosswalks, pedestrian overpasses and underpasses, curb ramps and blended transitions at crosswalks, pedestrian signals, street furniture (
The regulatory assessment analyzes the following five requirements in the final rule that will have more than minimal impacts on state and local transportation departments:
•
•
•
•
•
There are no significant alternatives that will minimize any significant impacts of these requirements on small governmental jurisdictions and achieve the objectives of the ADA, Section 504 of the Rehabilitation Act, and the ABA to eliminate the discriminatory effects of architectural, transportation, and communication barriers in the design and construction of pedestrian facilities in the public right-of-way.
The Unfunded Mandates Reform Act does not apply to legislative or regulatory provisions that establish or enforce any “statutory rights that prohibit discrimination on the basis of race, color, religion, sex, national origin, age, handicap, or disability.” 2 U.S.C. 658a. Accordingly, it does not apply to this rulemaking.
This regulation contains no information collection requirements subject to review by the Office of Management and Budget under the Paperwork Reduction Act. See 44 U.S.C. 3501,
To the extent this rule is subject to the Congressional Review Act, the Access Board has complied with its requirements by submitting this final rule to Congress and the Government Accountability Office prior to publication in the
The proposed rule adheres to the fundamental federalism principles and policy making criteria in Executive Order 13132. The portion of this rule applicable to state and local governments is issued under the authority of the Americans with Disabilities Act, civil rights legislation that was enacted by Congress pursuant to its authority to enforce the Fourteenth Amendment to the U.S. Constitution and to regulate commerce. The Americans with Disabilities Act was enacted “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. 12101(b)(1). The Americans with Disabilities Act recognizes the authority of State and local governments to enact and enforce laws that “provide for greater or equal protection for the rights of individuals with disabilities than are afforded by this chapter.” 42 U.S.C. 12201(b). This rule is based largely on the recommendations of a Federal advisory committee which included representatives of state and local governments. The Access Board made drafts of the proposed rule available for public review and comment. State and local governments provided comments on the drafts of the proposed rule.
Buildings and facilities, Civil rights, Federal buildings and facilities, Highways and roads, Individuals with disabilities, Parking, Rights-of-way, Transportation.
29 U.S.C. 792; 42 U.S.C. 12204; 42 U.S.C. 4151
The accessibility guidelines for pedestrian facilities in the public right-
R101.1
R101.2
R101.3
R101.4
R102.1
R102.2
R103.1
R103.2
R103.3
R104.1
R104.2
R104.3
R201.1
R201.2
R201.3
R202.1
R202.2
R202.3
R202.4
R202.5
R203.1
R203.2
R203.2.1
R203.2.2
R203.3
R203.4
R203.5
R203.6
R203.6.1
R203.6.1.1
R203.6.1.2
R203.6.1.3
R203.6.1.4
R203.6.2
R203.7
R203.8
R203.9.
R203.10
R203.11
R204.1
R204.2
R204.3
R205.1
R205.2
R205.2.1
R205.2.2
R205.3
R205.4
R205.5
R205.6
R205.7
R206.1
R206.2
R206.3
R207.1
R208.1
2. Signs mounted immediately above or incorporated into a
R209.1
R209.2
R209.3
R209.3.1
R209.3.2
R209.4
R209.5
R209.6
R209.6.1
R209.6.2
R209.7
R210.1
R210.2
R210.3.
R211.1
2. On-street parking spaces designated exclusively for commercial or law enforcement vehicles shall not be required to comply with R211 and shall not be counted for purposes of Table R211.
3. Where on-street parking spaces are
R211.2
R211.3
R212.1
R213.1
R214.1
R301.1
R302.1
R302.2
R302.2.1
R302.2.2
R302.3
R302.4
R302.4.1
R302.4.2
R302.4.3
R302.5
R302.5.1
R302.5.2
R302.5.2.1
R302.5.2.2
R302.5.2.3
R302.5.2.4
R302.6
R302.6.1
R302.6.2
R302.6.3
R302.6.4
R302.6.4.1
R302.6.4.2
R302.6.4.2.1
R302.6.4.2.2
R303.1
R303.2
R303.3
R303.4
R303.5
R303.6
R303.6.1
R303.6.2
R303.7
R304.1
R304.2
R304.2.1
R304.2.2
R304.2.3
R304.2.4
R304.2.5
R304.2.6
R304.2.7
R304.3
R304.3.1
R304.3.2
R304.3.3
R304.3.4
R304.4
R304.4.1
R304.4.2
R304.4.3
R304.5
R304.5.1
R304.5.1.1
R304.5.1.2
R304.5.2
A. The change of
B. A transitional space shall be provided at the bottom of the
R304.5.3
R304.5.4
R305.1
R305.1.1
R305.1.2
2. Dome spacing requirements do not apply at a gap in a
R305.1.3
R305.1.4
A. At
B. At cut-through
C. At
D. Where required at
E. At boarding and alighting areas at
R305.2
R305.2.1
A. Where the ends of the bottom
B. Where the ends of the bottom
C. Where the ends of the bottom
R305.2.2
R305.2.3
R305.2.4
R305.2.5
R305.2.6
R305.2.7
R305.2.8
R306.1
R306.2
R306.3
R306.4
R306.4.1
R306.4.1.1
R306.4.1.2
R306.4.2
R306.5
R307.1
R307.2
R307.3
R307.4
R307.4.1
R307.5
R307.6
R307.7
R307.8
R307.8.1
R307.8.2
R307.8.3
A. The louder audible walk indication and louder locator tone comes from the far end of the
B. The louder locator tone comes from both ends of the
C. The louder locator tone comes from an additional speaker that is aimed at the center of the
R307.8.4
R307.9
R308.1
R308.2
R308.3
R308.3.1
R308.3.2
R308.3.2.1
R308.3.2.2
R308.3.2.3
R308.3.2.4
R308.4
R308.5
R309.1
R309.1.1
R309.1.1.1
R309.1.1.2
R309.1.2
R309.1.2.1
R309.1.2.2
R309.1.3
R309.1.3.1
R309.1.3.2
R309.2
R309.2.1
R309.2.2
R309.2.3
R309.2.4
R310.1
R310.2
R310.2.1
2. In
R310.2.2
R310.2.3
R310.2.4
R310.2.5
R310.3
R310.3.1
R310.4
R310.4.1
R310.4.2
R310.5
R310.5.1
R310.5.2
R310.5.3
R310.5.4
R310.5.5
R310.6
R311.1
R311.2
R311.3
R311.3.1
R311.3.2
R311.4
R311.5
R401.1
R402.1
R402.2
R402.3
R402.3.1
R402.3.2
R402.4
R402.5
R403.1
R403.2
R403.3
R403.4
R404.1
R404.2
R404.3
R404.4
R404.5
R404.6
R404.7
R404.7.1
R404.7.2
R405.1
R405.2
R405.2.1
R405.2.2
R405.2.3
R405.2.4
R405.2.5
R405.3
R405.3.1
R405.3.2
R405.3.3
R405.3.4
R405.3.5
R406.1
R406.2
R406.3
R406.3.1
R406.3.2
R407.1
R407.2
R407.3
R407.4
R407.5
R407.6
R407.6.1
R407.6.2
R407.6.3
R407.6.4
R407.7
R407.8
R407.9
R407.9.1
R407.9.2
R408.1
R408.2
R408.3
R408.4
R408.5
R408.6
R408.7
R409.1
R409.2
R409.3
R409.4
R409.5
R409.6
R409.7
R409.7.1
R409.7.2
R409.8
R409.9
R409.10
R409.10.1
R409.10.2
R409.10.3
R410.1
R410.2
R410.3
R410.4
R410.5
R410.6
R410.7
R410.8
R410.9
R410.10
R411.1
R411.2
Commodity Futures Trading Commission.
Final rule.
The Commodity Futures Trading Commission (Commission) is amending certain reporting and information regulations applicable to derivatives clearing organizations (DCOs). These amendments, among other things, update information requirements associated with commingling customer funds and positions in futures and swaps in the same account, revise certain daily and event-specific reporting requirements in the regulations, and codify in an appendix the fields that a DCO is required to provide on a daily basis under the regulations. In addition, the Commission is adopting amendments to certain delegation provisions in its regulations.
Eileen A. Donovan, Deputy Director, (202) 418-5096,
In January 2020, the Commission adopted amendments to its part 39 regulations in order to, among other things, update DCO reporting requirements.
The Commission received a total of 11 substantive comment letters in response to the proposal.
In the discussion below, the Commission highlights topics of particular interest to commenters and discusses comment letters that are representative of the views expressed on those topics. The discussion does not explicitly respond to every comment submitted; rather, it addresses the most significant issues raised by the proposed rulemaking and analyzes those issues in the context of specific comments.
Regulation § 39.13(h)(5) requires a DCO to have rules that require its clearing members to maintain current written risk management policies and procedures; ensure that it has the authority to request and obtain information and documents from its clearing members regarding their risk management policies, procedures, and practices; and require its clearing members to make information and documents regarding their risk management policies, procedures, and practices available to the Commission upon the Commission's request. It also requires the DCO to review the risk management policies, procedures, and practices of each of its clearing members on a periodic basis.
It is the Commission's view that these requirements are unnecessary for clearing members that clear only fully collateralized positions, as fully collateralized positions do not expose the DCO to any credit or default risk stemming from the inability of a clearing member to meet a margin call or a call for additional capital. Therefore, and consistent with other amendments to part 39 to address fully collateralized positions,
Regulation § 39.15(b)(2) sets forth procedures a DCO must follow to obtain Commission approval to commingle customer positions and associated funds from two or more of three separate account classes—futures and options, foreign futures and options, and swaps—in either a futures or cleared swaps customer account. The Commission proposed several amendments to § 39.15(b)(2) to better reflect the information that the Commission needs to evaluate such a request.
OCC, Eurex, ICE, and Better Markets supported the proposal. OCC stated that the changes appear reasonably calibrated to achieve the Commission's policy objectives while providing useful guidance to DCOs on the required contents of a request. Eurex added that the proposed changes appropriately streamline the procedures and will help focus both DCOs seeking such relief, and the Commission in its review of such request for relief, on the information most relevant to a DCO's request.
Furthermore, recognizing that futures and swaps are typically commingled to allow for portfolio margining, the Commission proposed to add new § 39.15(b)(2)(vii) to require that a DCO provide an express confirmation that any portfolio margining will be allowed only as permitted under § 39.13(g)(4), which allows portfolio margining of positions only if the price risks with respect to such positions are “significantly and reliably correlated.” Although ICE generally supported the proposed changes to § 39.15(b)(2), ICE stated that the express confirmation under proposed new § 39.15(b)(2)(vii) is unnecessary, as § 40.5 already requires that a DCO analyze its proposal for compliance with the Commodity Exchange Act (CEA) and Commission regulations. The Commission notes, however, that because the DCO's submission would address commingling but not necessarily portfolio margining, the DCO's analysis may not take § 39.13(g)(4) into account. Thus, the Commission does not want approval of the submission to be misinterpreted as approval of the DCO's portfolio margining as well. Because a submission under § 40.5 is deemed approved by the Commission without any written form of approval, requiring the DCO to provide the express confirmation in § 39.15(b)(2)(vii) is meant to address that.
In response to the Commission's request for comment as to whether there is additional information that would be helpful to market participants and the public in evaluating a DCO's commingling rule submission, ICE does not believe that the Commission should require disclosure of additional information. ICE stated that the information already required, as proposed to be modified, will provide market participants with sufficient information to evaluate a commingling proposal.
In general, Better Markets believes the proposal would strengthen the existing requirements by requiring a DCO to provide not only an analysis of the risk characteristics of the products but also an analysis of any risk characteristics of products to be commingled that are
Regulation § 39.18(g)(1) requires that a DCO promptly notify staff of the Division of Clearing and Risk (Division) of any hardware or software malfunction, security incident, or targeted threat that materially impairs, or creates a significant likelihood of material impairment of, automated system operation, reliability, security, or capacity. The Commission proposed to amend § 39.18(g)(1) to eliminate the materiality threshold, requiring DCOs to report all such events regardless of their magnitude. Better Markets supported the proposal to remove the materiality threshold, stating that both the Commission and DCOs would benefit from expanded reporting of such incidents. CME, OCC, ICE, Eurex, Nodal, CCP12, Google, and WFE opposed the proposal.
CCP12, CME, Eurex, ICE, Nodal, OCC, and WFE stated that the removal of the materiality threshold would lead to a significant increase in the number of reportable events, including events which have little or no impact on a DCO's operations or on market participants, or which are mitigated well before any impact, and thus of little or no value as the subject of a required notification. CCP12, CME, Eurex, Google, ICE, Nodal, OCC, and WFE commented that such an increase in reportable incidents would burden both DCOs and the Commission, and would
CCP12, CME, Eurex, ICE, Nodal, and OCC further stated that the Commission underestimated the increase in reporting obligations as a result of the proposal to eliminate the materiality threshold; CCP12, CME, and OCC similarly stated that the Commission underestimated the costs of such notifications. Such underestimates would, according to commenters, distort the Commission's cost-benefit considerations. The Commission received additional comments in opposition to the proposed removal of the materiality threshold, including statements regarding the costs and impacts on third-party contracts, the value of allowing DCOs to use their expertise to determine which events are material, and a request to alternatively allow for quarterly submission of reports for incidents deemed not material.
After considering the comments received, the Commission recognizes the concerns raised therein and declines at this time to adopt the proposal to remove the materiality threshold for the reporting of exceptional events under § 39.18(g). Better Markets supported the removal of the materiality threshold, stating that events might be material even when they do not have any effect on measurements often used to determine materiality, and that both the Commission and DCOs would benefit from clear reporting standards which would promote consistency in reporting across DCOs. However, given the rationale of comments opposed to the removal of the materiality threshold as described above, including arguments regarding increased cost, lack of informational benefit, and the volume of reports which would be required if the threshold were removed, and the lack of opportunity to solicit comment on potentially less costly or voluminous alternatives suggested by commenters, the Commission declines to move forward with the proposal at this time. The Commission understands that removing the materiality threshold altogether could result in a significant increase in the number of reportable events, including events which have little or no impact on a DCO's operations, or which are mitigated well before any impact, and thus could be of little or no value as the subject of a required notification. The Commission will continue to evaluate the effectiveness of the existing reporting standard in generating uniform and timely notification regarding events where notification would be of value to the Commission and will provide additional guidance, or further modify the standard, as appropriate. Better Markets also commented that the requirement in § 39.18(g) that notice of exceptional events be given “promptly” is vague and should be amended to a more specific timeframe in order to avoid undue delay in reporting. The Commission notes, however, that it did not propose to amend this requirement, as Commission staff has not had any issues with the timing of the notices that are made.
The Commission also proposed to amend § 39.18(g)(1) by adding “operator error” to the list of events that would require prompt notification to the Division. Better Markets expressed support for the addition of “operator error” to the list of potentially reportable events, and WFE, CME, OCC, and Nodal expressed opposition. Better Markets stated that “operator error” is appropriately included as an additional subject of reporting because such errors may impact or potentially impact the operation, reliability, security, or capacity of a DCO's automated systems. WFE, CME, OCC, CCP12, and Nodal expressed concern about the potential breadth of the term “operator error,” which is not defined in the regulation and which might be read to include de minimis, routine errors which would require reporting of events that have little or no impact on clearing and settlement functions and for which effective procedures are already in place to mitigate any potential impacts. OCC further stated that “operator error” might be read to include actions of clearing members or their agents and employees because they are responsible for providing information via applications, and OCC suggested adding certainty to the term “operator error” by providing examples.
After considering the comments received, the Commission recognizes the concerns raised therein and declines to adopt the proposal to include “operator error” to the list of events that would require prompt notification to the Division under § 39.18(g)(1). The Commission acknowledges that, as described by Better Markets, operator errors may impact a DCO's operations in the same way as other events described in § 39.18(g)(1). However, the Commission believes that such operator errors are already required to be reported under § 39.18(g)(1) as a “security incident,” which, as defined by § 39.18(a), is a cybersecurity or physical security event that actually jeopardizes or has a significant likelihood of jeopardizing automated system operation, reliability, security, or capacity, or the availability, confidentiality or integrity of data. The proposed addition of “operator error” was intended to specify this obligation more clearly. In light of comments which indicate that the proposal would result in confusion, particularly as to scope, the Commission will not adopt the proposal but will consider providing guidance, or further modifying § 39.18(g)(1), as appropriate.
The Commission further proposed to redesignate existing paragraph (g)(2) of § 39.18 as new paragraph (g)(3) (without any further revisions), and to move from existing paragraph (g)(1) to paragraph (g)(2) the requirement to report security incidents or threats (and not just “targeted” threats). Thus, as proposed, new § 39.18(g)(2) would require that a DCO promptly notify the Division of any security incident or threat that compromises or could compromise the confidentiality, availability, or integrity of any automated system or any information, services, or data, including, but not limited to, third-party information, services, or data, relied upon by the DCO in discharging its responsibilities.
Among comments received regarding this proposed amendment, OCC, Google, and ICE expressed opposition, and Better Markets commented in favor. Better Markets stated that non-targeted cyber attacks can be just as destructive as targeted attacks, and thus the reporting of non-targeted attacks may enhance the ability of the CFTC to assess emerging threats and alert DCOs. OCC, Google, and ICE stated that the inclusion of the language “could compromise” is overly broad and ambiguous and would dramatically increase the reach and burdens of the rule without providing regulatory benefit. OCC recommended removing “could compromise” from the proposal and stated that, as proposed, § 39.18(g)(2) would increase a DCO's costs of obtaining third-party services and may lead to termination of existing third-party relationships because of the additional costs and potential liability facing third parties as a result of the proposal. Google also expressed opposition to the removal of the “targeted” qualifier for threats, stating that it would result in overbroad and inefficient reporting. Google
Finally, in connection with the proposed amendments to § 39.18(g), the Commission proposed to amend § 39.18(a) to define “hardware or software malfunction” and “automated system.” WFE, CME, OCC, and CCP12 expressed opposition to the proposed definition of “automated system,” and OCC, CCP12, Eurex and Nodal expressed opposition to the proposed definition of “hardware or software malfunction.” WFE, CME, OCC, and CCP12 stated that the definition of “automated system” is broad and overinclusive, and that most of a DCO's ancillary support systems would fall within the definition, resulting in a significant increase in reporting obligations under § 39.18(g) that are not related to a DCO's core clearing and settlement functions. OCC, CCP12, Eurex, and Nodal expressed opposition to the definition of “hardware or software malfunction,” stating that it is overly broad and would result in a significant increase in reach and burden of reporting requirements with little corresponding regulatory value to the Commission. OCC recommended that both definitions be refined to avoid reporting of incidents that pose no significant risk to a DCO's core functions and which do not impact or narrowly impact market participants. OCC further recommended limiting the definitions to systems or events that impact a DCO's market activities that are subject to the Commission's jurisdiction. After considering the comments received, the Commission recognizes the concerns raised therein and declines to adopt the proposed definitions for “hardware or software malfunction” and “automated system” but will consider providing guidance defining these terms, or further modifying § 39.18(g), as appropriate.
Based on the concerns raised in the comments received, the Commission is not adopting any of the proposed changes to § 39.18(g). Although the Commission continues to believe that the considerations that motivated the initial proposal are valid, it also recognizes the concerns and alternatives raised by commenters as requiring additional analysis that precludes adopting the proposal at this time. To that end, the Commission may choose to instead provide guidance to address these considerations, or to propose new modifications to § 39.18(g) reflecting both the motivations for the proposed rule and the concerns raised by commenters.
Regulation § 39.19(c)(1) requires a DCO to report to the Commission on a daily basis initial margin, variation margin (VM), cash flow, and position information for each clearing member, by house origin, by each customer origin, and by individual customer account. The Commission proposed to amend § 39.19(c)(1)(i)(B) and (C) to remove the requirement that a DCO report daily VM and cash flows by individual customer account.
FIA, CCP12, Eurex, OCC, and ICE supported the proposal; no commenters opposed it. CCP12 and ICE stated that many DCOs do not possess VM and cash flow information at the customer level. OCC confirmed that it does not collect VM and cash flow information at the individual customer account level in the ordinary course of business. FIA stated that DCOs would need to develop and implement new systems, processes, and controls, at significant cost, to accurately report customer level VM and cash flow information. FIA stated that because clearing members that are futures commission merchants (FCMs) currently do not provide DCOs with daily customer level VM and cash flow information, FCM clearing members would incur substantial upfront and ongoing costs to provide this information to DCOs. OCC stated that collecting this information would impose significant costs on OCC and its clearing members. FIA stated that daily reporting of customer VM and cash flow information would not be of meaningful benefit to the Commission, DCOs, clearing members or market participants, particularly when weighed against the associated costs. OCC believes that because it engages in VM netting at the customer origin level, VM and cash flow information at the individual customer account level would not necessarily reflect OCC's actual exposure to its clearing members.
In response to the Commission's request for comment on whether there are certain products or market segments where it may be appropriate to retain customer-level reporting requirements, FIA and ICE stated that there is no basis to differentiate between product categories, with FIA emphasizing the cost to DCOs and FCMs of developing new reporting processes to report VM and cash flow information by individual customer account, and the limited marginal benefit of reporting such information. Because many DCOs currently do not receive VM and cash flow information at the customer level, and a requirement to collect this information would impose significant costs on DCOs, the Commission is removing this requirement by adopting the amendments to § 39.19(c)(1)(i)(B) and (C) as proposed.
The Commission proposed to add a new appendix to part 39 of the Commission's regulations that would codify the existing reporting fields for the daily reporting requirements in § 39.19(c)(1). Until now, the instructions, reporting fields, and technical specifications for daily reporting have been contained in the Reporting Guidebook, which the Division provides to DCOs to facilitate reporting pursuant to § 39.19(c)(1).
Eurex, ICE, CCP12, and OCC supported the proposal to codify the existing daily reporting fields in new appendix C to part 39. Better Markets opposed the proposal, arguing that codifying the Reporting Guidebook will make it more difficult for the Commission to quickly update the reporting fields in response to new products or other financial innovations. In response to Better Markets, the Commission notes that it has drawn on its experience of more than a decade since § 39.19(c)(1) was first adopted to make certain it will receive the data it intended to be provided under this provision. However, in the unlikely event that the Commission identifies additional data it needs, the Commission could, if necessary, request from a DCO “information related to its business as a clearing organization, including information relating to trade and clearing details” pursuant to § 39.19(c)(5)(i). The Commission is therefore adopting the proposal to add new appendix C to part 39 of the Commission's regulations, to codify the existing reporting fields in the Reporting Guidebook, which includes both required and optional fields.
The Commission proposed to include in appendix C several new fields that do not appear in the Reporting Guidebook but would further implement the existing daily reporting requirements under § 39.19(c)(1). Eurex generally supported the proposal, while CME opposed it, stating that the Commission severely underestimated the time and costs associated with adding the proposed new fields, and that the costs to DCOs substantially outweigh the benefits that additional reporting provides to the Commission. The new fields and comments received are discussed in greater detail below.
The Commission proposed to include in appendix C a series of new fields applicable only to interest rate swaps, including the delta ladder, gamma ladder, vega ladder, zero rate curves, and yield curves that a DCO uses in connection with managing risks associated with interest rate swap positions. The Commission did not receive any comments on this proposal and therefore is adopting these fields as proposed. However, the Commission is amending the title of this section of appendix C to change it from “Greek Ladder Reporting” to “Risk Metric Ladder Reporting”, which better reflects the contents of the section, since rate and yield curves technically are not “Greeks,” and to account for the possible addition of other non-Greek risk metrics in the future.
The Commission proposed to require a DCO to report timing information about VM calls and payments, including the time and amount of each VM call to each clearing member, the time and amount that VM is received from each clearing member, and the time and amount that VM is paid to each clearing member. There were no comments in support of the proposal.
CME, ICE, and OCC opposed the proposal, arguing that it would impose costs on DCOs and settlement banks because they would need to build systems for daily automated reporting of payment flow timestamps. ICE and OCC stated that the manner in which DCOs make and collect a margin call is unique to each DCO based on its own processes and, as a result, the information that would be reported under these proposed fields only would reflect individual DCOs' practices, with the information being too bespoke to be useful for surveillance. OCC further stated that clearing member payments to or from OCC at settlement times are made on a net basis, taking into account multiple categories of pay or collect obligations, in addition to the mark-to-market amounts. CME stated that not all settlement banks communicate with DCOs in automated and digestible file formats that can be used for daily reporting. Echoing comments by CME, CCP12 recommended that the Commission consider whether this proposal would require settlement banks to develop and deploy automated systems to communicate timestamps to DCOs, which could make compliance with this requirement unnecessarily complex. CME also stated that the information would not be useful for the Commission in real-time monitoring of DCO liquidity issues because it would be reported one day later, and because the timing of payments can vary from day to day for reasons unrelated to liquidity issues or other risks to DCOs or their clearing members. ICE stated that specific timing information is generally irrelevant, so long as the amounts are paid before the applicable DCO's deadline, and that the exact timing of payments is not indicative of the DCO's liquidity position or its ability to manage liquidity risks.
As an alternative to the proposal, CME recommended that the Commission require DCOs to report when clearing members are sufficiently late making VM payments that it results in an impactful delay to the completion of the settlement cycle. ICE stated that because the proposal does not account for different approaches to the payment and netting of VM, the proposed fields would need to be revised to reflect the variety of ways that DCOs deal with VM payments. CCP12 commented that reporting VM calls and payment as of the beginning, middle, and end of the day would avoid confusion that may accompany reporting of individual cash flows, and would simplify DCOs' reporting obligations.
The Commission understands that compliance with this requirement would be unnecessarily complex, given that the manner in which DCOs make and collect a margin call is unique to each DCO based on its own processes. The Commission is therefore persuaded by the comments that the timing information would not be particularly useful to it and therefore has determined not to require DCOs to report this information at this time.
The Commission proposed to require a DCO that clears interest rate swaps, forward rate agreements, or inflation index swaps to include in its daily reports the actual trade date for each position along with an event description. CCP12 supported the proposal, but requested that the Commission clarify whether the term “actual trade date” refers to the economically agreed date or the execution date. CME opposed the proposal, stating that the proposed requirement is duplicative of the recent amendments to part 45 of the Commission's regulations, under which DCOs already provide this information to the Commission. CME also stated that numerous dates for these products exist in the over-the-counter registers, and requested clarification as to which date should be reported. The Commission is adopting the proposal, albeit with one change. In response to commenters' requests for clarification, the Commission is modifying the description of “trade date” to read, the “[d]ate a transaction was originally executed, resulting in the generation of
The Commission proposed to require a DCO to include in its daily reports information that reflects that the daily report is complete, with completeness information submitted either as a manifest file that contains a list of files sent by the DCO, or by including the file number and count information embedded within each report, where each Financial Information eXchange Markup Language (FIXML) file would indicate its position in the sequence of files submitted that day,
Although the Commission acknowledges that for some DCOs, such as OCC, sequential file numbering to indicate completeness may be preferable, the Commission agrees with Eurex and Nodal that submitting a manifest file is operationally more efficient, especially for those DCOs that submit more complex or voluminous reports. Similarly, to ensure consistency and uniformity across all reports received, the Commission declines to provide DCOs with the option to choose between sequential file numbering and a manifest file to indicate completeness. Therefore, the Commission is adopting the proposal to require a DCO to include in its daily reports a manifest file that reflects that the daily report is complete.
The Commission requested comment on whether it should require that a DCO provide the current settlement prices and related information published by DCMs for futures and options contracts with no open interest. No commenters supported this proposal.
CCP12, Nodal, OCC, ICE, and CME opposed the proposal. CCP12 stated that DCOs already calculate and report settlement prices for contracts with no open interest where they believe those prices provide a benefit to DCOs themselves or the marketplace, and requiring DCOs to report such data for all contracts with no open interest would be of questionable value for analytical or regulatory purposes. CCP12 recommended that DCOs continue to be afforded the discretion to choose to report such information on a voluntary basis. Nodal stated that, in addition to being impractical, the proposal would duplicate information that DCMs are required to report pursuant to part 16 of the Commission's regulations. CME argued that reporting data that is unused and not based on observed open interest would not help the risk surveillance process because it does not represent an actual transaction, and ICE argued that the information would not be reliable because it is not based on actual trading activity. OCC and ICE stated that this information would be of limited utility, with OCC adding that this information relates to contracts that do not impact the DCO's risk profile. CME stated that exchanges and DCOs list new products daily and that this reporting requirement would add complexity to the listing process. CME also questioned whether the Commission has the authority to require this information if it is not clear that this information is necessary to conduct oversight of the DCO since it does not reflect actual trades that are settled or cleared. Similarly, OCC argued that a requirement to report such information could be inconsistent with the scope of reporting required by DCO Core Principle L, which requires a DCO to disclose publicly and to the Commission daily settlement prices, volume, and open interest for each contract settled or cleared by the DCO. CME noted that an alternative would be to require reporting of contracts with no open interest, but without requiring pricing information.
The Commission is persuaded by the comments that settlement information for contracts with no open interest would not be particularly useful to it, given that it does not impact a DCO's risk profile, among other things. Therefore, the Commission has determined not to adopt the proposed requirement at this time.
The Commission has made a variety of non-substantive and technical edits to appendix C to part 39. Some of the edits are intended to ensure that, to the extent that a requirement appears in multiples places in appendix C, its title and description are uniform throughout. Other edits include the deletion of duplicate fields, the deletion of surplus language, formatting instructions, or technical instructions, or the replacement of abbreviations with complete words. Other edits rename fields or clarify, simplify, or rephrase descriptions. For example, the “Universal Product Identifier” field is being renamed “Unique Product Identifier” (UPI), and its description is being changed from “Uniquely identifies the product of a security using ISO 4914 standard, Unique Product Identifier” to “[a] unique set of characters that represents a particular swap. The Commission will designate a UPI pursuant to 17 CFR 45.7.” Another example is that the description for the Implied Volatility field is being changed from “implied volatility” to “[t]he implied volatility and quotation style for the contract, typically in natural log percent or index points.”
Regulation § 39.19(c)(1)(i)(D) requires the daily reporting of end-of-day positions for each clearing member, by house origin and by each customer origin, and by each individual customer account. In January 2020, the Commission amended this provision to require, among other things, that a DCO identify each individual customer account using both a legal entity identifier (LEI) and any internally-generated identifier, where available, within each customer origin for each clearing member.
CCP12, OCC, CME, and Eurex supported this proposal. Eurex noted that in Europe there is no requirement that LEIs be provided to DCOs and that, consequently, not all Multilateral Trading Facilities or Approved Trade Sources transmit LEIs to DCOs. On the other hand, CME observed that LEI reporting to DCOs has become more routine. ICE opposed the requirement that a DCO identify each individual customer account by LEI because extensive systems changes would be required to add identifiers to the reportable data, and since DCOs are unlikely to have customer-level LEI information, the costs associated with implementing this requirement outweigh the benefits. In response to ICE's comment, the Commission further emphasizes that the requirement that a DCO identify each individual customer account using both an LEI and any internally-generated identifier, “where available,” is intended to mean this information is required,
The Commission proposed to add to § 39.19(c)(1)(i) a requirement that a DCO include in its daily reports the results of the margin model backtesting that a DCO is required to perform daily pursuant to § 39.13(g)(7)(i). The Commission also proposed to add to new appendix C to part 39 the data fields it believes would be relevant and necessary to capture the backtesting results that would have to be reported under this provision. The Commission is adopting as proposed the amendment to § 39.19(c)(1)(i) to require that a DCO include in its daily reports its margin model backtesting results. As explained below, in response to concerns expressed by commenters, the Commission is modifying certain of the proposed data fields in new appendix C for reporting margin model backtesting results.
Chris Barnard supported the proposal, stating that daily reporting of backtesting results will improve the Commission's oversight of DCOs and should work to increase the accuracy, relevance, and effectiveness of DCOs' margin calculations. Nodal generally supported requiring DCOs to provide the Commission with daily backtesting results, noting that it already provides such information to the Commission on a voluntary basis. CME requested that the Commission provide DCOs with ample time, preferably 18 months, to test and implement daily reporting of backtesting results. OCC stated that it has no objection to reporting its margin model backtesting results.
ICE opposed the proposal. ICE argued that the manner in which the Commission currently supervises DCO margin models, including the requirement in § 39.13(g)(3) that margin models be independently validated, and the requirement in § 39.19(c)(4)(xxiii) that a DCO report to the Commission regarding material issues with its margin model, is sufficient for the Commission to supervise margin model performance over time.
Nodal and Eurex argued that the Commission should collaborate with DCOs to determine the specific information needed and the data fields via which it should be reported to ensure that the Commission is receiving the data and information it needs, in a manner that is consistent across all DCOs, to provide effective oversight of the performance of DCOs' margin models.
Commenters expressed concern regarding the new fields that the Commission proposed to add to new appendix C for the purpose of reporting backtesting results, with commenters focusing on the fields for reporting detailed information related to margin model breaches. The Commission had proposed that breach details be reported using three fields: initial margin; VM; and breach amount, which was defined as the difference between the initial margin and VM. ICE, OCC, and Eurex argued that the proposed fields would not provide the Commission with meaningful information regarding margin model breaches. ICE stated that because initial margin requirements and VM payments may not be associated with the same set of positions, “from a formal statistical (hypothesis testing) point of view, the backtesting of the initial margin model should consider fixed positions over the implemented margin period of risk.” Similarly, OCC argued that the VM field should be replaced with a field titled “Static Portfolio Profit/Loss,” which would reflect “profit or loss on the same portfolio against which the initial margin was assessed.” OCC also argued that the Breach Amount field description be revised to delete the reference to VM and instead reflect the “difference between the initial margin and static portfolio profit/loss.” Along the same lines, Eurex argued that VM should be replaced as a measure for backtesting by a more general backtesting profit/loss, which would include further mandatory fields detailing how backtesting profit/loss is calculated (including profit/loss horizon, “clean” vs. “dirty” profit/loss, mark-to-market vs. mark-to-model profit/loss). Lastly, both Eurex and ICE emphasized the importance of the margin period of risk as a component of evaluating backtesting results.
In response to these comments, the Commission is amending the fields for reporting margin model backtesting results. The Commission is replacing the VM field with a new field titled
The Commission proposed to amend § 39.19(c)(1)(ii) to clarify that the daily reporting requirements of § 39.19(c)(1)(i) do not apply to fully collateralized positions. The Commission did not receive any comments on the proposal. The Commission is adopting the amendments to § 39.19(c)(1)(ii) as proposed.
The Commission proposed to add, as new § 39.19(c)(1)(iii), the ability for a DCO to, after consultation with the Division, voluntarily submit any additional daily reporting data fields it believes would be necessary or appropriate. OCC supported the proposal. OCC recommended that the Commission remove the phrase “consultation with” and replace it with “notification to,” given the potential timing issues attendant to daily reporting generally, potential ambiguity regarding the extent and nature of the “consultation” required in the proposal, and to provide DCOs with greater flexibility. OCC also recommended that the Commission clarify that voluntarily reporting of additional information does not create an obligation to continue reporting the information, unless agreed to in writing by the DCO and Commission staff. No commenters opposed the proposal.
The Commission agrees with OCC that, absent any agreement to the contrary, voluntary reporting by a DCO of additional information does not create an obligation to continue reporting that information. As for the mechanics of how a DCO should proceed with voluntarily reporting additional information, the Commission believes that the best approach is for the DCO to coordinate with Division staff to ensure that any necessary accommodations are in place so that the Division has the ability to receive the additional information and to incorporate it into its analytics. The Commission therefore disagrees with OCC because it believes that the collaborative approach encompassed within the phrase “consultation with” is preferable to the unilateral approach described in the phrase “notification to.” The Commission is adopting new § 39.19(c)(1)(iii) as proposed.
The Commission proposed to amend § 39.19(c)(4)(ix)(A)(
In response to OCC's request for clarification, the Commission notes that the phrase the “entity . . . holding a controlling interest” is intended to refer to both the specific corporate entity holding an ownership interest in the DCO, as well as to any parent entity of one or more owners that collectively own more than 50 percent of the DCO. With respect to the comments from Better Markets, the Commission initially notes that the comments do not address the merits of the proposal, but instead focus on changes the Commission made to a different regulation in a different rulemaking.
The Commission proposed to amend § 39.19(c)(4)(xii) and (xiii), which require a DCO to report changes to credit facility funding arrangements and liquidity funding arrangements, respectively, to clarify that the reporting requirements include reporting new arrangements as well as changes to existing ones. Eurex and OCC supported both proposals, with OCC noting that they are consistent with its interpretation of the existing regulations. No commenters opposed the proposals. The Commission is adopting the amendments to § 39.19(c)(4)(xii) and (xiii) as proposed.
The Commission proposed to amend § 39.19(c)(4)(xv) to require that a DCO report to the Commission within one business day after it becomes aware of any material issues or concerns regarding the performance, stability, liquidity, or financial resources of any credit facility funding arrangement, liquidity funding arrangement, custodian bank, or settlement bank used by the DCO or approved for use by the DCO's clearing members. The Commission proposed to extend the reporting requirement, which previously applied only to any settlement bank used by the DCO or approved for use by the DCO's clearing members, to apply as well to any credit facility funding arrangement, liquidity funding arrangement, or custodian bank used by the DCO or approved for use by the DCO's clearing members. The Commission also proposed to change the threshold that triggers a DCO's reporting obligations by replacing the requirement that a DCO report to the Commission within one business day after any material issues or concerns arise, with the requirement that a DCO report to the Commission within one business day after it becomes aware of any material issues or concerns.
Eurex, OCC, and ICE supported the proposal. OCC observed that the proposal properly addresses the variety
With respect to ICE's comment that § 39.19(c)(4)(xv) should specify that a DCO must report material issues or concerns related to the provider of a credit facility funding arrangement, as opposed to reporting issues or concerns related to the arrangement itself, the Commission intends that the amended regulation apply to issues or concerns related to the provider as well as to the arrangement itself. The amended regulation is intended to ensure that the Division receives notice when a DCO learns that it may not be able to obtain the resources from the provider pursuant to the arrangement. The Commission disagrees with the suggestion from Better Markets that DCOs be required to report all issues or concerns regarding the performance, stability, liquidity, or financial resources of any credit facility funding arrangement, liquidity funding arrangement, custodian bank, or settlement bank used by the DCO or approved for use by the DCO's clearing members. Although Better Markets correctly noted the subjectivity inherent in a materiality standard, the Commission does not believe that it would be useful for it to be notified of all issues or concerns, especially since, in connection with its supervision of DCOs and engagement with DCO staff regarding reporting of issues or concerns related to settlement banks, Division staff has not found that the materiality standard impedes necessary reporting. Because the Commission believes that the threshold for reporting is properly calibrated, the Commission is adopting § 39.19(c)(4)(xv) as proposed.
The Commission proposed new § 39.19(c)(4)(xxv), which would set forth the requirement currently in § 39.37(b)(2) that, when a DCO updates its responses to the Disclosure Framework for Financial Market Infrastructures published by the Committee on Payment and Settlement Systems and the Board of the International Organization of Securities Commissions in accordance with § 39.37(b)(1), the DCO shall provide notice of those updates to the Commission. Eurex and OCC supported the proposal, with OCC noting that it is a non-substantive change to existing DCO reporting obligations. No commenters opposed the proposal. ICE recommended that, to be consistent with § 39.37(b)(2), the Commission should state explicitly that the proposed reporting requirement only applies to material changes that a DCO makes to its disclosures under the PFMI Disclosure Framework. The Commission does not believe that such clarification is necessary, given that new § 39.19(c)(4)(xxv) simply references the reporting requirements in § 39.37(b)(2) without altering the substance of those requirements. The Commission is adopting new § 39.19(c)(4)(xxv) as proposed.
Regulation § 39.21 requires a DCO to publish on its website a variety of information designed to enable market participants to make informed decisions about using the clearing services provided by the DCO. The Commission proposed several amendments to these requirements to better align a DCO's disclosure obligations with the type of clearing services that the DCO provides. Specifically, the Commission proposed to amend § 39.21(c)(3) and (4) to provide that a DCO that clears only fully collateralized positions is not required to disclose its margin-setting methodology, or information regarding the size and composition of its financial resource package for use in a default, if instead the DCO discloses that it does not employ a margin-setting methodology or maintain a financial resource package because it clears only fully collateralized positions. Additionally, the Commission proposed to amend § 39.21(c)(7) to provide that a DCO may omit any non-FCM clearing member that clears only fully collateralized positions, and therefore does not share in the mutualized risk associated with clearing activity, from its published list of clearing members. The Commission did not receive any comments on these proposed changes, and is therefore adopting them as proposed.
Regulation § 39.37 requires each systemically important DCO (SIDCO) and each DCO that elects to comply with subpart C of part 39 of the Commission's regulations (subpart C DCO) to disclose certain information to the public and to the Commission. Regulation § 39.37(c) and (d) require, respectively, a SIDCO or subpart C DCO to “disclose, publicly, and to the Commission” transaction data, and information regarding the segregation and portability of customers' positions and funds. The Commission proposed to amend these provisions to clarify that public disclosure of the information is sufficient and a separate report directly to the Commission is not required. OCC supports and appreciates the proposal, stating that it would relieve DCOs of duplicative requirements to report this information both publicly and to the Commission. The Commission is adopting this amendment as proposed.
Regulation § 140.94(c) is a delegation of authority from the Commission to the Director of the Division of Clearing and Risk to perform certain specific functions. The Commission proposed to amend § 140.94(c)(10) to delegate to the Director the authority in existing § 39.19(a) to require a DCO to provide to the Commission the information specified in § 39.19 and any other information that the Commission determines to be necessary to conduct oversight of the DCO, and in existing § 39.19(b)(1) to specify the format and manner in which the information required by § 39.19 must be submitted to the Commission.
OCC generally supported the proposed changes to § 140.94(c)(10), as OCC agreed that the proposed delegations would appropriately empower Commission staff to facilitate efficient administration of part 39, and ensure that the Commission and its staff can obtain relevant information in a timely manner. OCC stated that changes to a DCO's reporting obligations can pose significant technical or logistical challenges, and necessitate substantial investment of time and resources to effect compliance. Therefore, while OCC supported the proposed changes, it urged the Division to continue to engage
The Regulatory Flexibility Act (RFA) requires that agencies consider whether the regulations they propose will have a significant economic impact on a substantial number of small entities and, if so, provide a regulatory flexibility analysis on the impact.
The Paperwork Reduction Act (PRA)
This final rulemaking modifies the existing information collection associated with part 39, “Requirements for Derivatives Clearing Organizations, OMB control number 3038-0076.” In accordance with the PRA, 44 U.S.C. 3507(d), the Commission has submitted these information collection requirements to OMB for its review.
The Commission is adopting as proposed new § 39.13(h)(5)(iii) to provide that a DCO that clears fully collateralized positions may exclude from the requirements of paragraphs (h)(5)(i) and (ii) those clearing members that clear only fully collateralized positions. The requirements would still apply to clearing members that clear fully collateralized positions but also clear margined products. This change will reduce the burden for DCOs that clear fully collateralized products, but does not affect the burden for the majority of DCOs that are subject to daily reporting requirements, as only four of the fifteen currently registered DCOs clear fully collateralized positions. As a result, the Commission believes that this reduction will have a negligible impact on the overall reporting burden for DCOs, and therefore the Commission is leaving the reporting burden for these reporting requirements unchanged.
The Commission is amending § 39.15(b)(2), which applies when a DCO and its clearing members seek to commingle customer positions in futures, options, foreign futures, foreign options, and swaps, or any combination thereof, and any money, securities, or property received to margin, guarantee or secure such positions, in an account subject to the requirements of sections 4d(a) or 4d(f) of the CEA. The Commission is consolidating paragraphs (b)(2)(i) and (ii) and renumbering paragraphs accordingly. These changes pertain only to the structure and organization of the regulation and therefore do not impact the reporting requirement. The Commission is amending § 39.15(b)(2) to clarify that the requirement in paragraph (b)(2)(i)(G) that a DCO discuss the systems or procedures that the DCO has implemented to oversee its clearing members' risk management of eligible products may be addressed by describing why existing risk management systems and procedures are adequate, and to add language clarifying that the requirements and standard of review of § 40.5 apply to commingling rule submissions. Because these changes are mere clarifications of existing requirements, they also have no impact on the reporting burden.
Similarly, the Commission is removing existing paragraph (b)(2)(iii), which provides that the Commission may request additional information in support of a rule submission filed under existing paragraph (b)(2)(i) or (ii), and adding new paragraph (b)(2)(viii), which provides that the Commission may request supplemental information to evaluate the DCO's submission and requires a DCO to submit any other information necessary for the Commission to evaluate the DCO's rule's compliance with the CEA and the Commission's regulations. This does not impact the reporting burden because new paragraph (b)(2)(viii), like existing paragraph (b)(2)(iii), would ensure that the Commission can consider all information relevant to the rule submission. Although existing paragraph (b)(2)(iii) does not contain explicit language similar to new paragraph (b)(2)(viii)'s requirement that the DCO submit any other information necessary for the Commission to evaluate the rule's compliance with the CEA and the Commission's regulations, the fact that existing paragraph (b)(2)(iii) permits the Commission to request such information implies a DCO's obligation to supply it. Simply making this implication explicit does not impact the reporting burden.
The Commission is deleting paragraphs (b)(2)(i)(C), (E), (H), and (L) because they require a DCO to submit information the Commission can already access or has not needed in its review of commingling rule submissions. This change will decrease the reporting burden. In addition, the Commission is removing existing paragraph (b)(2)(i)(I), which requires the DCO to provide information related to its margin methodology, while adding related paragraph (b)(2)(vii), which will require that a DCO discuss whether it anticipates allowing portfolio margining of commingled positions, describe and analyze any margin reductions it would apply to correlated positions, and make an express confirmation that any portfolio margining will be allowed only as permitted under § 39.13(g)(4). These changes will collectively decrease the reporting burden because the requirements being removed through the deletion of paragraph (b)(2)(i)(I) are, as a whole, more burdensome than the requirements being added in paragraph (b)(2)(vii). Similarly, the Commission is removing the requirement in existing paragraph (b)(2)(i)(K) to discuss a DCO's default management procedures generally and maintaining only the requirement to address default management procedures unique to the products eligible for commingling and moving that requirement to paragraph (b)(2)(vi). This narrowing of the scope of
The Commission is amending paragraph (b)(2)(i)(B) (renumbered as paragraph (b)(2)(ii)), which requires the DCO to provide an analysis of the risk characteristics of the products that would be eligible for commingling, to specify that the DCO should address any risk characteristics of products to be commingled that are unusual in relation to the other products the DCO clears, such as margining, liquidity, default management, pricing, or other risk characteristics, and how the DCO plans to manage any risks identified. Because such analysis was not previously explicitly required, and because DCOs that would not otherwise have addressed such issues in their analysis of the risk characteristics of the eligible products will now be required to do so, this will increase the reporting burden. However, the Commission expects this increase to be negligible, as this provision would only apply when a DCO is considering a new commingling of customer positions in various products, and only when the risk characteristics of products to be commingled are unusual in relation to other products the DCO clears.
The Commission is amending paragraph (b)(2)(i)(F) (and renumbering it as paragraph (b)(2)(iv)), which currently requires the DCO to describe the financial, operational, and managerial standards or requirements for clearing members that would be permitted to commingle eligible products, to require only that the DCO describe any additional requirements that would apply to clearing members permitted to commingle eligible products. The Commission believes that this amendment will have no impact on the reporting burden. Although the new requirement that the DCO describe any additional requirements is broader than the current requirement to describe financial, operational, and managerial standards or requirements, the existing paragraph requires the DCO to report even if no additional requirements would apply. The amendment only requires reporting when additional requirements are, in fact, applicable.
The Commission believes that the reductions in the reporting burden resulting from the deletion of paragraphs (b)(2)(i)(C), (E), (H), and (L) and the narrowing of the reporting burden resulting from the deletions of paragraphs (b)(2)(i)(I) and (K) (even after giving effect to the addition of new paragraphs (b)(2)(vi) and (vii)) are at least as great as the increase in the reporting burden resulting from the amendments to paragraph (b)(2)(i)(B) (renumbered as paragraph (b)(2)(ii)). Because the Commission lacks the data to fully quantify each of these changes, it is conservatively estimating that these changes collectively do not alter the reporting burden. The Commission is of the view that to the extent that the cross-margining program would be submitted as part of a new rule or rule amendment filing pursuant to § 40.5, the changes are already covered by OMB control number 3038-0093 and there is no change in the burden estimates.
The Commission is adopting the proposed amendments to § 39.19(c)(1)(i)(A) that clarify that the existing requirement to identify individual customer accounts by LEI and internally-generated identifier was intended to apply to all instances in § 39.19(c)(1) where reporting is required at the individual customer account level, and not only to end-of-day positions. The Commission therefore is amending § 39.19(c)(1)(i)(A) to specify that when a DCO reports initial margin requirements and initial margin on deposit by each individual customer account as required, the DCO also must identify each individual customer account by LEI and internally-generated identifier, where available. The clarification will not affect the burden on DCOs because DCOs already provide this information and the impact of this amendment on the existing burden is negligible.
The Commission also is amending § 39.19(c)(1)(i)(B) and (C), which require a DCO to report daily variation margin and cash flow information by house origin and separately by customer origin and by each individual customer account, to remove the requirement that a DCO report daily variation margin and cash flows by individual customer account. This change is anticipated to result in a negligible decrease from the current burden of 0.5 burden hours per report.
The Commission also is adopting new § 39.19(c)(1)(iii), as proposed, which will give a DCO the ability, after consultation with the Division, to voluntarily submit any additional data field in its daily reports that is necessary or appropriate to better capture the information that is being reported. The Commission believes that adding this provision to § 39.19(c)(1) does not affect the existing burden estimates for daily reporting. Although it is unclear at this time whether any DCOs will decide to voluntarily submit additional data fields in their daily reports and how frequently they will do so, the Commission believes that the impact of this new provision on the existing daily reporting burden is negligible. The Commission does not anticipate that DCOs will add information to their daily reports if doing so is a burden. The Commission instead anticipates that voluntary reporting by DCOs likely will consist only of data that already is maintained in reportable format and that can be included in the daily reports with minimal effort.
The Commission is also adding to part 39 an appendix that will codify the existing reporting fields for the daily reporting requirements in § 39.19(c)(1). The codification of existing reporting fields in new appendix C will not change the reporting burden.
The Commission is adding new fields within new appendix C that would further implement the existing daily reporting requirements under § 39.19(c)(1). Specifically, the Commission is adopting a requirement that a DCO include in its daily reports, with regard to interest rate swaps only, the delta ladder, gamma ladder, vega ladder, zero rate curves, and yield curves that the DCO uses in connection with managing risks associated with interest rate swaps positions. The Commission also is adopting a requirement that a DCO that clears interest rate swaps, forward rate agreements, or inflation index swaps to include in its daily reports the actual trade date for each position, along with an event description. The Commission is not adopting a proposed requirement that each DCO include in its daily reports timing information about variation margin calls and payments, but is adopting a proposed requirement to include in its daily reports information that reflects that the daily report is complete. Lastly, in connection with adopting a new requirement in § 39.19(c)(1)(i) that a DCO include in its daily reports the results of its required daily margin model backtesting, the Commission also is adding to new appendix C amended versions of the additional data fields necessary to implement this requirement.
With respect to adding new fields to new appendix C, and adding to § 39.19(c)(1)(i) a requirement that a DCO include in its daily reports the results of its required margin model backtesting, the Commission believes that the incremental capital investment costs associated with implementing these requirements would be negligible. In many cases, the new fields are data that are already being used for DCO risk management and operations, and in some cases are already being reported to the Commission on a voluntary basis. Further, the Commission believes that any capital investment implementation for the reporting of these fields would leverage the DCO's existing server architecture that could be scaled up to meet these requirements with negligible costs. However, to the extent that a DCO does not currently use any of the information that would be required under the new fields, or if that information is not accessible on an automated basis, then a DCO may incur start-up costs associated with reporting information pursuant to the new fields, specifically including costs for coding, as well as testing, quality assurance, and compliance review. As explained below in connection with its discussion of cost-benefit considerations, the Commission has estimated
Lastly, because the Commission understands that the preparation and submission of the daily reports required under § 39.19(c)(1)(i) is largely automated, the Commission estimates that adding the new fields to new appendix C, and adding to § 39.19(c)(1)(i) a requirement that a DCO include in its daily reports the results of the margin model backtesting, will result in a negligible increase to the current estimate of 0.5 burden hours per report. Accordingly, the Commission retains its existing estimate for the burden associated with daily reporting under § 39.19(c)(1).
The aggregate burden estimate for daily reporting remains as follows:
Regulation § 39.19(c)(4) requires a DCO to notify the Commission of the occurrence of certain events; § 39.19(c)(4)(ix)(A)(
Regulation § 39.19(c)(4)(xii) and (xiii) require notification of changes in a liquidity funding arrangement or settlement bank arrangement. The Commission is amending these regulations to clarify that the reporting requirements include reporting new arrangements as well as changes to existing ones. The clarification will not affect the burden on DCOs because such reporting is already implied in the regulation.
Separately, the Commission is amending § 39.19(c)(4)(xv) to add credit facility funding arrangements, liquidity funding arrangements, and custodian banks to the list of arrangements or banks for which the DCO must report to the Commission any issues or concerns of which the DCO becomes aware. Although this increases the number of entities or arrangements for which reporting may be required, given that a DCO is only required to report these issues when it becomes aware of them, and given that these events are not very common, any increase should be negligible.
The Commission proposed to revise § 39.18(g) to delete the materiality threshold. Proposed changes would also
The Commission proposed modifying the reporting obligations under § 39.18(g)(1) and new § 39.18(g)(2) to specify that only events that impact, or potentially impact, a DCO's clearing operations must be reported under each subsection. The Commission is not adopting these changes.
Finally, the Commission is adding § 39.19(c)(4)(xxv) to centralize an existing reporting obligation under § 39.37(b)(2) in § 39.19. This does not create a new reporting obligation. The Commission is also revising § 39.37(c) and (d) to remove the requirement to make certain disclosures to the Commission while retaining a requirement to make such disclosures publicly. This will cause a negligible decrease in costs that will not affect the reporting burden. The reporting burden under existing § 39.37 is covered in the PRA estimate for that regulation.
The aggregate burden estimate of § 39.19(c)(4) adjusted for the changes described above is as follows:
The Commission is revising § 39.21(c)(3) and (4) to exclude DCOs that clear only fully collateralized positions from the specific disclosure requirements of these paragraphs. Similarly, the Commission is amending § 39.21(c)(7), which requires a DCO to publish on its website a current list of its clearing members, to provide that a DCO may omit any clearing member that clears only fully collateralized positions and is not an FCM from the list of clearing members that it must publish on its website. Because such DCOs are still required to report per other parts of § 39.21, such as to disclose the terms and conditions of each contract cleared, the fees it charges its members, and daily settlement prices, volumes, and open interest for each contract, the number of respondents will remain unchanged. The changes do not affect the burden for the majority of DCOs that are subject to the public disclosure requirements. For fully collateralized DCOs, the changes would result in a negligible decrease in the amount of time required per report. The aggregate estimated burden for § 39.21 remains as follows:
Section 15(a) of the CEA requires the Commission to consider the costs and benefits of its actions before promulgating a regulation under the CEA or issuing certain orders.
The Commission recognizes that the final rule may impose costs. The Commission has endeavored to assess the expected costs and benefits of the final rule in quantitative terms, including PRA-related costs, where possible. In situations where the Commission is unable to quantify the costs and benefits, the Commission identifies and considers the costs and benefits of the applicable rules in qualitative terms. The lack of data and information to estimate those costs is attributable in part to the nature of the final rule. Additionally, any initial and recurring compliance costs for any particular DCO will depend on the size, existing infrastructure, practices, and cost structure of the DCO.
To further the Commission's consideration of the costs and benefits imposed by the proposal, the Commission invited comments from the public on all aspects of its cost-benefit considerations, including the identification and assessment of any costs and benefits not discussed by the Commission; data and any other information to assist or otherwise inform the Commission's ability to quantify or qualitatively describe the costs and benefits of the proposed amendments; and substantiating data, statistics, and any other information to support positions posited by commenters with respect to the Commission's discussion. To the extent that the Commission received comments specific to the costs and benefits of the proposed changes, those comments are discussed in the relevant sections below.
The baseline for the Commission's consideration of the costs and benefits of this final rule is: (1) the DCO Core Principles set forth in section 5b(c)(2) of the CEA; (2) the information requirements associated with commingling customer funds and positions in futures and swaps in the same account under § 39.15(b)(2); (3) the reporting obligations under § 39.18(g) related to a DCO's system safeguards; (4) daily reporting requirements under § 39.19(c)(1); (5) event-specific reporting requirements under § 39.19(c)(4); (6) public information requirements under § 39.21(c); (7) disclosure obligations for SIDCOs and subpart C DCOs under § 39.37; and (8) delegation of authority provisions under § 140.94.
The Commission notes that this consideration of costs and benefits is based on its understanding that the derivatives market regulated by the Commission functions internationally with: (1) transactions that involve U.S. entities occurring across different international jurisdictions; (2) some entities organized outside of the United States that are registered with the Commission; and (3) some entities that typically operate both within and outside the United States and that follow substantially similar business practices wherever located. Where the Commission does not specifically refer to matters of location, the discussion of costs and benefits below refers to the effects of the final rule on all relevant derivatives activity, whether based on their actual occurrence in the United
The Commission is adopting new § 39.13(h)(5)(iii), which provides that a DCO that clears fully collateralized positions may exclude from the requirements of paragraphs (h)(5)(i) and (ii), which concern clearing members' risk management policies and procedures, those clearing members that clear only fully collateralized positions. The requirements would still apply to clearing members that clear fully collateralized positions but also clear margined products.
Fully collateralized positions do not expose DCOs to many of the risks that traditionally margined products do. Full collateralization prevents a DCO from being exposed to credit or default risk stemming from the inability of a clearing member or customer of a clearing member to meet a margin call or a call for additional capital. This limited exposure and full collateralization of that exposure renders certain provisions of part 39 inapplicable or unnecessary, including § 39.13(h)(5). The Commission is adopting this provision in order to provide greater clarity to DCOs and future applicants for DCO registration regarding how § 39.13(h)(5) applies to DCOs that clear fully collateralized positions. Furthermore, the Commission believes that this amendment will provide a benefit to DCOs that clear fully collateralized positions, as they will no longer need to meet a requirement that does not apply to their clearing model.
The Commission does not anticipate any costs associated with this change, as it would codify the removal of requirements that need not apply to fully collateralized positions.
In addition to the discussion above, the Commission has evaluated the costs and benefits in light of the specific considerations identified in section 15(a) of the CEA. In consideration of section 15(a)(2)(B) of the CEA, the Commission believes that § 39.13(h)(5)(iii) may increase operational efficiency for DCOs that clear fully collateralized positions. The provision should not impact the protection of market participants and the public, the financial integrity of markets, or sound risk management practices, as the requirements that the Commission is proposing to exclude for fully collateralized positions do not further these factors when applied to such positions. The Commission has considered the other section 15(a) factors and believes that they are not implicated by this provision.
The Commission is amending § 39.15(b)(2) to clarify its requirements and revise the information a DCO must provide to the Commission when it seeks to commingle customer positions and associated funds from different account classes. The Commission anticipates that the amendments will help DCOs, the Commission, and the public to focus on those issues that are most important in considering the submission, and will generally reduce compliance burdens on DCOs.
Based on its experience in reviewing commingling rule submissions, the Commission believes the changes to the information requirements would improve the quality of future submissions and enhance protection of market participants. The existing requirements often result in rule submissions that provide information the Commission already has and lack sufficient focus on the commingling itself, making it difficult for both the Commission and the public to properly assess the risks that commingling of customer funds may pose. The amendments would improve the quality of the submissions by providing the information needed to evaluate the risks posed to customers by commingling products that otherwise would be held in separate accounts.
The amendments would reduce compliance burdens for DCOs by removing existing paragraphs (b)(2)(i)(C), (E), (H), and (L), provisions that call for submission of information the Commission can otherwise access or has not needed in its review of commingling rule submissions. Replacing existing paragraph (b)(2)(i)(I) and adding the related § 39.15(b)(2)(vii) would focus DCO efforts on providing the most useful information on the topic of margin methodology, and eliminates a requirement to provide margin methodology information with which the Commission is already familiar. Similarly, by maintaining only that part of paragraph (b)(2)(i)(K) concerning default management procedures unique to the products eligible for commingling and moving that requirement to paragraph (b)(2)(vi), the amended regulation would focus the discussion of the DCO's default management procedures on changes necessitated by the commingling of eligible products rather than general information on default management procedures already available to the Commission.
As discussed above, the Commission expects that the amendments to § 39.15(b)(2) will decrease DCOs' costs associated with seeking commingling approval. These changes most meaningfully reduce costs by no longer requiring a DCO to produce certain information it was previously required to provide to the Commission. This is partly offset by the addition of new information requirements. Paragraph (b)(2)(vii), as amended, would require information concerning portfolio margining that is largely a subset of the margin methodology information required by existing paragraph (b)(2)(i)(I). The new requirement in this paragraph amounts to a one sentence confirmation of compliance with § 39.13(g)(4). Paragraph (b)(2)(viii), intended to ensure a DCO provides all information the Commission needs to evaluate a commingling rule submission, incorporates the requirements of existing paragraph (b)(2)(iii). Further, the amendment to existing paragraph (b)(2)(i)(B) on risk characteristics (renumbered as § 39.15(b)(2)(ii)), in addition to focusing the discussion on unusual characteristics, extends the analysis to include a discussion of the DCO's management of identified risk characteristics, which is information that should likely be readily available to DCOs. The Commission is adding to § 39.15(b)(2)(ii) the requirement that a DCO's analysis address any characteristics that are unusual in relation to the other products cleared by the DCO, such as margining, liquidity, default management, pricing, or other risk characteristics. The Commission believes that a DCO may incur additional minor costs, but only to the extent that the products do in fact have margining, liquidity, default management, pricing, or other risk characteristics that are unusual in relation to those currently cleared by the DCO. Lastly, to the extent paragraph (b)(2)(vi) on default management procedures extends beyond the scope of existing paragraph (b)(2)(i)(J) or (K), DCOs should already have this information.
In addition to the discussion above, the Commission has evaluated the costs and benefits of the amendments to
For reasons discussed in greater detail above, the Commission is declining to adopt the proposal to amend § 39.18(g)(1) to expand the scope of hardware or software malfunctions for which a DCO must provide notice to the Division by deleting the materiality element from the requirement to report malfunctions that materially impair, or create a significant likelihood of material impairment of, the DCO's automated systems. Similarly, the Commission is also declining to adopt the remaining proposed changes to § 39.18(g), including the elimination of the materiality threshold for reporting of other exceptional events, the addition of new language regarding reporting for operator error, the addition of untargeted threats as a reporting event, and definitions for “hardware or software malfunction” and “automated system.” The retention of the current regulatory framework, including the reporting threshold which affords discretion to DCOs to report only material events, will benefit DCOs by allowing the expenditure of less time and fewer resources to report events of no significance, the knowledge of which would provide little or no informational value to the Division.
Commenters stated that the Commission underestimated the increase in reporting obligations as a result of the proposal to eliminate the materiality threshold for the reporting of exceptional events under § 39.18(g) (estimated at four reports per DCO per year) as well as the costs of such notifications (estimated at $152 per year). The Commission is not adopting the proposal to remove the materiality threshold or any of the other proposed changes to § 39.18(g).
As the Commission is not adopting the proposed amendments to § 39.18(g), a consideration of costs and benefits under section 15(a) is not applicable for this subsection.
The Commission is amending § 39.19(c)(1)(i)(B) and (C) to remove the requirement that DCOs report to the Commission on a daily basis variation margin and cash flows by individual customer account. In removing these requirements from § 39.19(c)(1)(i)(B) and (C), the Commission anticipates benefits to DCOs and their clearing members in that their operational, technological, and compliance burdens would be reduced. The Commission did not receive any comments on the costs or benefits associated with these changes.
The Commission expects that DCOs and their clearing members will not incur any costs related to the amendments to § 39.19(c)(1)(i)(B) and (C), as the Commission is eliminating the existing requirement that DCOs report to the Commission on a daily basis variation margin and cash flows by individual customer account.
In addition to the discussion above, the Commission has evaluated the costs and benefits of the amendments to § 39.19(c)(1)(i)(B) and (C) in light of the specific considerations identified in section 15(a) of the CEA. The Commission believes that the amendments to § 39.19(c)(1)(i)(B) and (C) will have a moderately beneficial effect by reducing technological, operational, and compliance burdens of DCOs, and of their clearing members. The Commission also believes that the amendments will not have any effect on protection of market participants and the public or on sound risk management practices because, although the Commission is slightly reducing the amount of information that DCOs must report to the Commission, the Commission is confident that it will continue to receive from DCOs sufficient information to effectively and efficiently supervise and oversee DCOs and the derivatives markets. The Commission has considered the other section 15(a) factors and believes that they are not implicated by the amendments to § 39.19(c)(1)(i)(B) and (C).
The Commission is adding a new appendix C to part 39 that codifies the existing reporting fields for the daily reporting requirements in § 39.19(c)(1). Until now, the instructions, reporting fields, and technical specifications for daily reporting have been contained in the Reporting Guidebook, which the Division provides to DCOs to facilitate reporting pursuant to § 39.19(c)(1). Although codifying the Reporting Guidebook will not result in material benefit to currently registered DCOs, the Commission believes that it likely will benefit prospective DCO applicants, as well as members of the industry and general public, by providing a detailed list of DCO daily reporting obligations, in contrast to the more general requirements in § 39.19(c)(1). The Commission did not receive any comments on the costs or benefits associated with these changes.
The Commission does not expect that DCOs will incur increased costs related to codifying the reporting fields from the Reporting Guidebook in new appendix C to part 39. DCOs have been relying on the Reporting Guidebook for nearly a decade to satisfy their daily reporting obligations under § 39.19(c)(1). Codifying these requirements into a regulatory appendix does not alter the existing burden that DCOs have in complying with § 39.19(c)(1).
In addition to the discussion above, the Commission has evaluated the costs and benefits of codifying the Reporting Guidebook as appendix C to part 39 in light of the specific considerations identified in section 15(a) of the CEA. The Commission has considered the section 15(a) factors and believes that adding new appendix C to part 39 to codify the reporting fields set forth in the existing Reporting Guidebook does not implicate the section 15(a) factors.
The Commission is adding several new reporting fields that will be incorporated into new appendix C to part 39.
The Commission believes that the costs associated with adding these new daily reporting fields to appendix C are negligible. The Commission believes that DCOs already possess this information in read-ready format and use it in the ordinary course of business, and the regulation only requires that they transmit it to the Commission in a standardized format. Despite these beliefs and out of an abundance of caution, the Commission is estimating the cost of developing and producing the new daily reporting fields that would be incorporated into new appendix C.
The Commission estimates that the capital costs associated with the addition of new daily reporting fields in new appendix C, and the requirement that DCOs include information on their backtesting results in their daily reports are negligible. The Commission also estimates that any ongoing costs are negligible because the Commission understands that the preparation and submission of the daily reports required pursuant to § 39.19(c)(1)(i) is largely automated. However, to the extent that a DCO does not currently use any of the information that would be required under the new fields, or if that information is not accessible on an automated basis, then a DCO may incur start-up costs associated with reporting information pursuant to the new fields, specifically including costs for coding, as well as testing, quality assurance, and compliance review. To estimate these start-up costs, the Commission relied upon internal subject matter experts in its Divisions of Data and Clearing and Risk to estimate the amount of time and type of DCO personnel necessary to complete the coding, testing, quality assurance, and compliance review. The Commission then used data from the Department of Labor's Bureau of Labor Statistics from May 2021 to estimate the total costs of this work.
CME commented on the cost-benefit considerations related to the addition of these new daily reporting fields, arguing that the Commission severely underestimated the amount of time that would be required to comply with the requirement. Specifically, CME commented that it believes the time required to implement the proposed changes would be “an order of magnitude greater than predicted,” which would add to the costs. However, CME did not quantify the amount by which it believes that costs would be increased, and as a result, the Commission is reluctant to adjust its estimates based on this comment. Furthermore, the Commission is not adopting all of the new fields that were proposed, which would reduce the costs that may be incurred by DCOs to implement the required changes. Accordingly, the Commission believes that retaining its initial estimates of these costs in the proposal (excluding estimates of any proposals not being adopted in the final rule) addresses CME's concern that the Commission's initial estimates of the costs of implementation were not adequate, while accounting for the fact that costs were reduced by the Commission's decision not to adopt all of the relevant proposals.
In addition to the discussion above, the Commission has evaluated the costs and benefits of adding these daily reporting fields to new appendix C to part 39 in light of the specific considerations identified in section 15(a) of the CEA. Requiring DCOs to include in their daily reports delta ladder, gamma ladder, vega ladder, zero rate curve, and yield curve information for interest rates swaps, as well as trade dates for interest rate swaps, forward rate agreements, and inflation index swaps, are expected to provide information necessary for the Commission to improve its supervision and oversight of DCOs and the derivatives markets, which in turn is expected to result in improved protection of market participants and
The Commission is adding to § 39.19(c)(1)(i) a requirement that DCOs include in their daily reports the results of the margin model backtesting that DCOs are required to perform daily pursuant to § 39.13(g)(7)(i). Because margin model backtesting results are a crucial element of an effective risk surveillance program, obtaining this information will allow the Commission to conduct more effective oversight of DCOs, thereby enhancing the protections afforded to the markets generally. The Commission did not receive any comments on the costs or benefits associated with these changes.
The Commission expects that requiring DCOs to report backtesting results daily will impose only a negligible cost on DCOs because DCOs already possess this information, and they are being required only to transmit it to the Commission in a standardized format. Additionally, the Commission has revised the fields in new appendix C to part 39 for reporting backtesting results to address concerns expressed by commenters and better align those fields with the manner in which DCOs calculate their backtesting results, since DCOs do not perform backtesting and calculate the results in a uniform manner. However, to the extent that a DCO does not maintain the required information in the required standardized format, a DCO may incur initial costs related to modifying its systems to convert the information to the standardized format, specifically including costs for coding, as well as testing, quality assurance, and compliance review. An estimate of these start-up costs is included in the discussion of the estimated costs associated with reporting information pursuant to the new fields in appendix C. The Commission notes, however, that some DCOs are already voluntarily providing backtesting information to the Commission on a weekly or monthly basis.
In addition to the discussion above, the Commission has evaluated the costs and benefits of requiring DCOs to report backtesting results daily in light of the specific considerations identified in section 15(a) of the CEA. Requiring DCOs to report backtesting results daily is expected to improve the Commission's supervision of DCO risk management and, therefore, is expected to yield enhanced protection of market participants and the public, improved financial integrity of the futures markets, and also potentially improve DCO risk management practices. The Commission has considered the other section 15(a) factors and believes that they are not implicated by adding to § 39.19(c)(1)(i) a requirement that DCOs include in their daily reports the results of their daily margin model backtesting.
The Commission is amending § 39.19(c)(1)(ii) to clarify that this regulation does not apply to fully collateralized positions. Because § 39.19(c)(1)(ii) merely expands on § 39.19(c)(1)(i), which already does not apply to fully collateralized positions, and therefore has no independent force or effect, this amendment does not represent a substantive change. Making this change to § 39.19(c)(1)(ii) provides greater certainty to DCOs, their clearing members, and their customers, and may prevent them from having to request guidance on this matter from the Commission or the Division in the future. Further, the Commission believes that this amendment may increase operational efficiency for DCOs that clear fully collateralized positions. The Commission did not receive any comments on the costs or benefits associated with these changes.
The Commission does not anticipate any non-negligible change in costs resulting from amending § 39.19(c)(1)(ii) to clarify that it does not apply to fully collateralized positions.
In addition to the discussion above, the Commission has evaluated the costs and benefits of amending § 39.19(c)(1)(ii) to clarify that this regulation does not apply to fully collateralized positions in light of the specific considerations identified in section 15(a) of the CEA. The Commission believes that this amendment may increase operational efficiency for DCOs that clear fully collateralized positions, which is in the public interest. The Commission has considered the other section 15(a) factors and believes that they are not implicated by the amendment.
Regulation § 39.19(c)(4)(ix)(A)(
The Commission expects the costs related to the amendment to § 39.19(c)(4)(ix)(A)(
In addition to the discussion above, the Commission has evaluated the costs and benefits of the amendments to § 39.19(c)(4)(ix)(A)(
The Commission is amending § 39.19(c)(4)(xv) to require that a DCO report to the Commission within one business day after it becomes aware of any material issues or concerns regarding the performance, stability, liquidity, or financial resources of any credit facility funding arrangement, liquidity funding arrangement, custodian bank, or settlement bank used by the DCO or approved for use by the DCO's clearing members. This amendment expands the reporting requirement, which previously applied only to any settlement bank used by the DCO or approved for use by the DCO's clearing members, to apply as well to any credit facility funding arrangement, liquidity funding arrangement, or custodian bank used by the DCO or approved for use by the DCO's clearing members. This amendment also changes the threshold that triggers a DCO's reporting obligations by replacing the requirement that a DCO report to the Commission within one business day after any material issues or concerns arise, with the requirement that a DCO report to the Commission within one business day after it becomes aware of any material issues or concerns. Given the importance of credit facility funding arrangements, liquidity funding arrangements, custodian banks, and settlement banks to both DCOs and clearing members, it is imperative that the Commission be informed of any known issues or concerns regarding these entities or arrangements, especially considering the broader impact that problems with these entities or arrangements could have on DCOs and clearing members, as well as the derivatives markets as a whole. As such, the reporting of this information is expected to improve the Commission's oversight and supervision of DCOs, clearing members, and the derivatives markets generally. The Commission did not receive any comments on the costs or benefits associated with these changes.
The Commission expects that the costs related to the amendments to § 39.19(c)(4)(xv) will be negligible. Specifically, because a DCO is only required to report these issues when it becomes aware of them, and given that these events are not very common, any cost increase is estimated to be negligible.
In addition to the discussion above, the Commission has evaluated the costs and benefits of the amendments to § 39.19(c)(4)(xv) in light of the specific considerations identified in section 15(a) of the CEA. The Commission believes that the amendments to § 39.19(c)(4)(xv) may potentially have a beneficial effect on protection of market participants and the public, as well as on the financial integrity of the futures markets, because the amendments would provide the Commission with new, additional information that is anticipated to assist the Commission in its supervision of DCOs and oversight of the derivatives markets. Additionally, this information could be time-sensitive and critically important in times of market stress or broader economic upheaval. The Commission has considered the other section 15(a) factors and believes that they are not implicated by the amendments to § 39.19(c)(4)(xv).
The Commission is adopting new § 39.19(c)(4)(xxv) to codify in § 39.19 the requirement in § 39.37(b)(2) that, when a DCO updates its responses to the Disclosure Framework for Financial Market Infrastructures published by the Committee on Payment and Settlement Systems and the Board of the International Organization of Securities Commissions in accordance with § 39.37(b)(1), the DCO shall provide notice of those updates to the Commission. This amendment further centralizes within § 39.19 the obligations of DCOs to report information to the Commission, which benefits affected DCOs by consolidating their reporting obligations within one location. The Commission did not receive any comments on the costs or benefits associated with these changes.
The Commission does not anticipate any costs associated with the adoption of § 39.19(c)(4)(xxv) because it does not alter the existing reporting obligations of DCOs.
In addition to the discussion above, the Commission has evaluated the costs and benefits of the adoption of § 39.19(c)(4)(xxv) in light of the specific considerations identified in section 15(a) of the CEA. The Commission has considered the section 15(a) factors and believes that they are not implicated by the adoption of § 39.19(c)(4)(xxv).
The Commission is amending § 39.21(c)(3) and (4) to provide that a DCO that clears only fully collateralized positions is not required to disclose its margin-setting methodology, or information regarding the size and composition of its financial resource package for use in a default, if instead the DCO discloses that it does not employ a margin-setting methodology or maintain a financial resource package because it clears only fully collateralized positions. The Commission anticipates the public may benefit from increased clarity regarding the risks that market participants may face at such a DCO because the full collateralization requirement is intended to mitigate such risk.
The Commission does not anticipate any costs associated with the amendment to § 39.21(c)(3) and (4).
In addition to the discussion above, the Commission has evaluated the costs and benefits of the amendments to § 39.21(c)(3) and (4) in light of the specific considerations identified in section 15(a) of the CEA. The Commission believes that the amendments to § 39.21(c)(3) and (4) serve the broader public interest due to the increased clarity regarding the risks that market participants may face at such a DCO, as the full collateralization requirement is intended to mitigate such risk. The Commission has considered the other section 15(a) factors and believes that they are not implicated by the amendments to § 39.21(c)(3) and (4).
The Commission is amending § 39.21(c)(7) to provide that a DCO may omit any non-FCM clearing member that clears only fully collateralized positions, and therefore does not share in the mutualized risk associated with clearing activity, from its published list of clearing members. The Commission anticipates that the amendment will reduce operational and compliance burdens on eligible DCOs. This is a significant benefit because, given the manner in which they engage directly with market participants, DCOs that provide for fully collateralized clearing may have a large number of non-FCM clearing participants and a high volume of turnover among such participants.
The Commission does not anticipate any costs associated with the amendments to § 39.21(c)(7), as the rule reduces the public disclosure requirements that apply to DCOs that provide for fully collateralized clearing.
In addition to the discussion above, the Commission has evaluated the costs and benefits of the amendments to § 39.21(c)(7) in light of the specific considerations identified in section 15(a) of the CEA. The Commission believes that the amendments to § 39.21(c)(7) will have a limited and rather moderately beneficial effect on the operations of the eligible DCOs themselves, because eligible DCOs would enjoy the reduced burden of being excused from including non-FCM clearing members that clear only fully collateralized positions in their published lists of clearing participants. Additionally, with respect to public interest considerations, the Commission believes that the amendments to § 39.21(c)(7) will have a moderately beneficial effect on non-FCM market participants that clear through eligible DCOs, because those market participants would benefit from the additional privacy afforded to them when they are not publicly listed as clearing members on the DCO's website. The Commission has considered the other section 15(a) factors and believes that they are not implicated by the amendments to § 39.21(c)(7).
The Commission is amending § 39.37(c) and (d) to clarify that public disclosure of the information described in those paragraphs is all that is required. The changes to § 39.37(c) and (d) will provide a modest benefit to SIDCOs and subpart C DCOs by clarifying that a separate report directly to the Commission of information that the DCO discloses publicly pursuant to § 39.37(c) and (d) is not required.
The Commission has not identified any costs associated with the changes to § 39.37(c) and (d).
In addition to the discussion above, the Commission has evaluated the costs and benefits of the amendment of § 39.37(c) and (d) in light of the specific considerations identified in section 15(a) of the CEA. The Commission has considered the section 15(a) factors and believes that they are not implicated by the changes.
The Commission is amending § 140.94(c)(10) to provide the Director of the Division with delegated authority to request additional information that the Commission determines to be necessary to conduct oversight of the DCO, and to specify the format and manner of the DCO reporting requirements. The Commission believes the delegation of authority will promote a more expedient process to address these aspects of the reporting requirements under § 39.19.
The Commission has not identified any costs associated with the amendments to § 140.94(c)(10).
The Commission has considered the section 15(a) factors and believes that they are not implicated by this amendment.
Section 15(b) of the CEA requires the Commission to take into consideration the public interest to be protected by the antitrust laws and endeavor to take the least anticompetitive means of achieving the purposes of the CEA, in issuing any order or adopting any Commission rule or regulation.
The Commission believes that the public interest to be protected by the antitrust laws is the promotion of competition. In the proposal, the Commission requested comment on whether: (1) the proposed rulemaking implicates any other specific public interest to be protected by the antitrust laws; (2) the proposed rulemaking is anticompetitive and, if it is, what the anticompetitive effects are; and (3) whether there are less anticompetitive means of achieving the relevant purposes of the CEA that would otherwise be served by adopting the proposed rule amendments. The Commission did not receive any comments in response.
The Commission has considered the final rule to determine whether it is anticompetitive and has identified no anticompetitive effects. Because the Commission has determined that the rules are not anticompetitive and have no anticompetitive effects, the Commission has not identified any less anticompetitive means of achieving the purposes of the CEA.
Reporting and recordkeeping requirements.
Authority delegations (Government agencies).
For the reasons stated in the preamble, the Commodity Futures Trading Commission amends 17 CFR chapter I as follows:
7 U.S.C. 2, 6(c), 7a-1, and 12a(5); 12 U.S.C. 5464; 15 U.S.C. 8325; Section 752 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111-203, title VII, sec. 752, July 21, 2010, 124 Stat. 1749.
The revision and addition read as follows:
(h) * * *
(5) * * *
(i) * * *
(B) Require its clearing members to provide to the derivatives clearing organization or the Commission, upon request, information and documents regarding their risk management policies, procedures, and practices, including, but not limited to, information and documents relating to the liquidity of their financial resources and their settlement procedures.
(iii) A derivatives clearing organization that clears fully collateralized positions may exclude from the requirements of paragraphs (h)(5)(i) and (ii) of this section those clearing members that clear only fully collateralized positions.
(b) * * *
(2)
(i) Identification of the products that would be commingled, including product specifications or the criteria that would be used to define eligible products;
(ii) Analysis of the risk characteristics of the eligible products and of the derivatives clearing organization's ability to manage those risks, addressing any characteristics that are unusual in relation to the other products cleared by the derivatives clearing organization, such as margining, liquidity, default management, pricing, or other risk characteristics;
(iii) Analysis of the liquidity of the respective markets for the eligible products, the ability of clearing members and the derivatives clearing organization to offset or mitigate the risk of such eligible products in a timely manner, without compromising the financial integrity of the account, and, as appropriate, proposed means for addressing insufficient liquidity;
(iv) A description of any additional requirements that would apply to clearing members permitted to commingle eligible products;
(v) A description of any risk management changes that the derivatives clearing organization will implement to oversee its clearing members' risk management of eligible products, or an analysis of why existing risk management systems and procedures are adequate in connection with the proposed commingling;
(vi) An analysis of the ability of the derivatives clearing organization to manage a potential default with respect to any of the eligible products that would be commingled, including a discussion of any default management procedures that are unique to the products eligible for commingling;
(vii) A discussion of the extent to which the derivatives clearing organization anticipates allowing portfolio margining of commingled positions, including a description and analysis of any margin reduction applied to correlated positions and the language of any applicable clearing rules or procedures, and an express confirmation that any portfolio margining will be allowed only as permitted under § 39.13(g)(4); and
(viii) Any other information necessary for the Commission to determine the rule submission's compliance with the Act and the Commission's regulations in this chapter, which the Commission may request as supplemental information if not provided in the initial submission. The Commission may extend the review period for the rule submission in accordance with § 40.5(d) of this chapter in order to request and obtain supplemental information as necessary.
The revisions and additions read as follows:
(c) * * *
(1) * * *
(i) A derivatives clearing organization shall compile as of the end of each trading day, and submit to the Commission by 10 a.m. on the next business day, a report containing the results of the backtesting required under § 39.13(g)(7)(i), and the following information related to all positions, other than fully collateralized positions, in accordance with the data fields set forth in appendix C to this part:
(A) Initial margin requirements and initial margin on deposit for each clearing member, by house origin and by each customer origin, and by each individual customer account. The derivatives clearing organization shall identify each individual customer account, using both a legal entity identifier, where available, and any internally-generated identifier, within each customer origin for each clearing member;
(B) Daily variation margin, separately listing the mark-to-market amount collected from or paid to each clearing member, by house origin and by each customer origin;
(C) All other daily cash flows relating to clearing and settlement including, but not limited to, option premiums and payments related to swaps such as coupon amounts, collected from or paid to each clearing member, by house origin and by each customer origin; and
(D) End-of-day positions, including as appropriate the risk sensitivities and valuation data that the derivatives clearing organization generates, creates, or calculates in connection with managing the risks associated with such positions, for each clearing member, by house origin and by each customer origin, and by each individual customer account. The derivatives clearing organization shall identify each individual customer account, using both a legal entity identifier, where available, and any internally-generated identifier, within each customer origin for each clearing member.
(ii) The report shall contain the information required by paragraphs (c)(1)(i)(A) through (D) of this section for each of the following, other than fully collateralized positions:
(iii) Notwithstanding the specific fields set forth in appendix C to this part, a derivatives clearing organization may choose to submit, after consultation with staff of the Division of Clearing and Risk, any additional data field that is necessary or appropriate to better
(4) * * *
(ix) * * *
(A) * * *
(
(xii)
(xiii)
(xv)
(xxv)
(c) * * *
(3) Information concerning its margin-setting methodology, except that a derivatives clearing organization that clears only fully collateralized positions instead may disclose that it does not employ a margin-setting methodology because it clears only fully collateralized positions;
(4) The size and composition of the financial resource package available in the event of a clearing member default, updated as of the end of the most recent fiscal quarter or upon Commission request and posted as promptly as practicable after submission of the report to the Commission under § 39.11(f)(1)(i)(A), except that a derivatives clearing organization that clears only fully collateralized positions instead may disclose that it does not maintain a financial resource package to be used in the event of a clearing member default because it clears only fully collateralized positions;
(7) A current list of all clearing members, except that a derivatives clearing organization may omit any clearing member that clears only fully collateralized positions and is not a futures commission merchant;
(c) Have procedures for identifying, addressing, and managing conflicts of interest involving members of the board of directors.
(c) Publicly disclose relevant basic data on transaction volume and values consistent with the standards set forth in the Public Quantitative Disclosure Standards for Central Counterparties published by the Committee on Payments and Market Infrastructures and the International Organization of Securities Commissions;
(d) Publicly disclose rules, policies, and procedures concerning segregation and portability of customers' positions and funds, including whether each of:
7 U.S.C. 2(a)(12), 12a, 13(c), 13(d), 13(e), and 16(b).
(c) * * *
(10) All functions reserved to the Commission in § 39.19(a), (b)(1), (c)(2), (c)(3)(iv), and (c)(5) of this chapter;
The following appendices will not appear in the Code of Federal Regulations.
On this matter, Chairman Behnam and Commissioners Johnson, Goldsmith Romero, Mersinger, and Pham voted in the affirmative. No Commissioner voted in the negative.
Today the Commission considered a final rule addressing reporting and information requirements for derivatives clearing organizations (DCOs). As with the proposal, the final rule provides greater transparency, clarity, and certainty to our DCOs and market participants. It also streamlines how the Commission receives information necessary to carry out its supervisory role. By periodically updating our regulations, the agency can incorporate our experiences with the industry and market participants directly into our ruleset. We can also use these opportunities to respond to emerging technologies, issues, and risks with responsive and targeted regulation. This both creates efficiencies and a level playing field, and provides a forum to address ongoing compliance concerns on each of our respective sides through open dialogue.
I fully support the final rule. Ensuring our regulations are operating as intended is paramount. DCOs play a critical role in U.S. derivatives markets. Any lapse in their duties or even the perception that compliance is nothing more than window dressing puts our markets and the larger financial system at risk, especially when it comes to entities that have been designated as systemically important by the Financial Stability Oversight Council known as “SIDCOs.”
The majority of the proposed Part 39 amendments—with the exception of those addressing system safeguards—were considered today. Several amendments in the final rule, codify existing staff letters and Commission practices and interpretations with the goal of ensuring that DCOs understand their reporting obligations and the Commission receives the information it needs to perform its supervisory responsibilities in the most effective and least burdensome manner. For example, an amendment to Rule 39.19 will codify an existing staff letter
Acknowledging that different risk profiles require more tailored consideration, the final rule will adopt specific obligations for fully collateralized positions which specify that certain requirements for risk management, daily reporting, and website publication do not apply to DCOs that clear fully collateralized positions. In addition, to ensure that the Commission maintains unfettered access to data, an amendment to Part 140 of the Commission rules will delegate to the Director of the Division of Clearing and Risk (DCR) existing authority to require a DCO to provide to the Commission the information specified in Rule 39.19 and any other information that the Commission determines to be necessary to conduct oversight of the DCO, and to specify the format and manner in which the information required must be submitted to the Commission.
Given that what we do as regulators is as important as what we do not do, based on the concerns raised regarding the system safeguards proposals, the Commission did not vote on the adoption of any of the proposed amendments. This determination does not alter the current landscape or diminish Commission concerns regarding cyber resilience. However, significant and important concerns and meaningful alternatives raised by commenters require additional consideration and analysis. The Commission will continue to consider how best to address the issues targeted in the proposed rule while incorporating additional information gained through this rulemaking process and additional examination.
Today, the Commission considers several amendments to Part 39 regulations. In January of 2020, the Commission amended a number of the provisions in Part 39 to enhance certain risk management and reporting obligations and clarify the meaning of certain provisions including registration and reporting requirements.
The Dodd-Frank Wall Street Reform and Consumer Protection Act set out to implement reforms to mitigate systemic risk and promote transparency and stability.
In light of the role of DCOs in our markets, we must provide a framework that not only supports market stability but is functional and can be practically integrated. The implementation of the proposed final amendments to existing regulations will address gaps in reporting data to the Commission.
We live in a digital age, and our dependence on technology, digital operational infrastructure systems, and software is increasingly undeniable. The security and integrity of cyber systems is important for the effective functioning of individual firms. Interconnectedness in financial markets creates the possibility that a cyber-threat that impacts certain actors in our markets may also impact the safety and soundness of counterparties or customers. In some instances, these cyber events will lead to more significant disruption, impeding clearing and settlement of transactions or impacting price discovery. Just a few months ago, ION, a significant service provider in global derivatives markets, experienced a cybersecurity event that triggered concerning effects across derivatives markets. The ION cybersecurity event underscores the importance of cyber security monitoring, prevention, and reporting.
Under DCO Core Principle I, DCOs must “establish and maintain a program of risk analysis and oversight to identify and minimize sources of operational risk through the development of appropriate controls and procedures . . . .”
In November of 2022, DCR proposed amendments to Regulation 39.18(g), recommending improvements to certain cyber-event reporting requirements. The proposed amendment would have eliminated the materiality threshold, which would have required DCOs to report all such events regardless of magnitude.
While I appreciate the Commission's careful response to public comments received regarding proposed amendments to Regulation 39.18(g), it is important to balance thoughtful consideration of cyber regulation with the emergent need for action. Our markets cannot afford to wait for continued attacks or delayed action over a significant period of time. The potential disruption that may be created by cyber-events requires a timely response.
As market participants integrate, adopt, and partner with significant technology firms and adopt software and technology that facilitates the technical operations for their businesses, it is imperative that our regulation focus on monitoring, reporting, transparency and the development of cyber recovery and resilience programs.
Four months ago, the Market Risk Advisory Committee (MRAC) that I sponsor held a meeting in this room. The director of national cybersecurity at the White House's Office of the National Cyber Director and others joined a thoughtful dialogue focused on preventing or mitigating the threat of cyber events and cyber security threats. In addition to valuable dialogue during the MRAC meeting, my staff and I traveled to the White House executive offices to meet with the Office of the National Cyber Director. Our discussions and dialogue continue.
DCR is correctly focused on refining and updating Regulation 39.18(g). There is a clear need for immediate and careful study of the cyber-risk issues that present for DCOs. To this end, an MRAC subcommittee focused on technical and operational resilience will begin to examine several of the issues raised in the proposed amendment and comment letters. Hopefully, our collective efforts will enhance cyber resilience of the registrants in our markets as well as the critical third- and fourth-party service providers that registrants may depend on.
DCO Core Principle F and requires DCOs to establish standards and procedures for protecting and ensuring the safety of clearing member and customer funds. In addition, Core Principle F requires DCOs to establish standards and procedures that are designed to protect and to ensure the safety of funds and assets held in custody, to hold such funds and assets in a way designed to minimize risk, and to limit investment of such funds and assets to instruments with minimal credit, market, and liquidity risks. The DCO risk mitigation function is imperative for the segregation and safekeeping of clearing member and customer funds and assets.
Today, DCR proposes amendments that seek to close a gap with respect to DCO regulations that govern segregation of customer assets.
While there are robust regulations governing segregation of customer funds by futures commission merchants (FCMs),
I support the Commission's adoption of the proposed amendments that enhance customer protections, namely segregation of customer funds, treatment of customer funds, and the introduction of financial resource requirements for certain DCOs.
The amendments today also include updates addressing liquidity-related transparency. When market participants fail to manage liquidity risk effectively, enterprise risk management failures may occur and, depending on the size and significance of the market participants experiencing risk management failures, the effects may trigger disruption across global financial markets.
The transparency amendments proposed today, enhance reporting requirements for credit and liquidity facilities. Specifically, Regulation 39.19(c)(4)(xv) will require DCOs to report within one business day after becoming aware of any material issues or concerns regarding the performance, stability, liquidity, or financial resources of any credit facility funding arrangement, liquidity funding arrangement, custodian bank, or settlement bank used by the DCO or approved for use by the DCO's clearing members. These amendments will improve the Commission's risk surveillance of DCOs and clearing members. Prudent risk management—the management of liquidity needs, in particular—is critical to DCO resilience. I support the amendments to enhance transparency. Each adds value to the Core Principles we uphold and our mandate to the protect customers and preserve the integrity of the financial markets that we regulate.
I want to thank the staff of DCR—Eileen Donovan, August Imholtz, Gavin Young, and Parisa Nouri—for their diligent and thoughtful work on these amendments.
Clearinghouses play an important public interest role—they are critical market infrastructure intended to foster financial stability, trust, and confidence in U.S. markets. Dodd-Frank Act reforms increased central clearing, thereby increasing financial stability. Those reforms also concentrated risk in clearinghouses. With that concentrated risk, it is critical that the Commission maintain vigilance in its oversight over clearinghouses to identify and monitor risk and promote financial stability. This is most important for the CFTC's monitoring of systemic risk.
Clearinghouse reporting is a cornerstone to the Commission's oversight, including monitoring risk and promoting financial stability. I support this rule because it strengthens and improves certain clearinghouse reporting requirements.
First, the final rule strengthens requirements for reporting the risk characteristics of products to be commingled that are unusual in relation to other products that the clearinghouse clears. A clearinghouse must obtain CFTC approval to commingle customer positions and associated funds of products that would otherwise be held in separate customer accounts.
This rule facilitates effective Commission oversight, as clearinghouses will provide better information for the CFTC to evaluate a request to commingle customer positions across asset classes. This practice can be used to reduce margin requirements for customers with offsetting positions. Margin requirements are an important element of financial stability, so any reduction should be carefully considered.
In addition to providing the CFTC an analysis of risk characteristics of the products to be commingled, this rule adds an analysis of any risk characteristics that are
I also appreciate that the final rule incorporates the suggestion by a public interest group that the Commission go further and add that the analysis should specifically address the commingled products' margining, liquidity, default management, pricing, and volatility risks that are unusual in relation to those currently cleared by the clearinghouse. This is particularly important given that the derivatives industry is seeing a change with emerging products such as digital assets for example, that can carry emerging risk in each of these areas.
I support the expansion of the rule requiring a clearinghouse to report
I read with interest the comment about changes to Regulation 39.19(c)(4) during the last Administration regarding Commission approval when a clearinghouse seeks to transfer its registration and open interest in connection with a corporate change. While that is not the subject of this rule, I would be interested in learning more about the effects of those amendments and what is needed for the Commission to have greater control over a transfer of registration. This is an issue that arose when it became apparent that LedgerX would be sold in FTX's bankruptcy.
Clearinghouses report information daily to the Commission such as initial margin, variation margin, cash flow, and position information for each clearing member, by house origin, and by each customer origin and customer account. Over time, the Commission has provided detailed instructions and technical specifications in the Reporting Guidebook. The whole purpose of the Reporting Guidebook was to ensure uniformity in clearinghouse reporting, as well as to ensure that the Commission received the right information for its surveillance and oversight of clearinghouses and the derivatives markets.
I am pleased to support the Commission now requiring the reporting fields, rather than just serving as a guide, which will strengthen the enforceability of reporting fields and aid in clearinghouse accountability. First, the Reporting Guidebook contains some reporting fields that are only optional, not required, but that would help the Commission in its oversight. It is important to require these fields, removing a clearinghouse's option not to report them. Second, the types of clearinghouses registering with or applying to register with the Commission are changing. Recently, for example, we have seen digital asset companies registering or applying to register, some with no history of being regulated. It has become increasingly important that we have rules and regulations, rather than guides that can be ignored by new clearinghouses.
However, I do agree with the comment from a public interest group that it is important for the Commission to be nimble, particularly in light of emerging products and emerging risk. I urge the staff to consider how we can both implement this new rule requiring the reporting fields, while also staying ahead of the risk curve in gathering the information needed or releasing additional guidance or rules.
When it comes to expanding the reporting of cyber incidents and other incidents, the final rule dropped proposed requirements for expanded Commission reporting. Let me start by saying that drafting new regulation is a process that works best with public input from the full range of interested parties. While I supported this requirement at the proposal stage, I also understand the importance of listening to commenters about the practical effect of our regulations.
However, the concern that caused us to propose the rule still exists. The cyber threat is pervasive and increasing. In fact, since the Commission issued this proposal last November, cyber incidents have continued to threaten the derivatives markets. Notably, in January 2023, a third-party service provider, ION Markets, suffered a ransomware attack that disrupted trade processing at affected brokers.
Early notification is key for the Commission's ability to protect markets, including working with registrants and all those affected to coordinate a response. The original proposal was based on CFTC staff finding a troubling lack of uniformity in how clearinghouses were reporting cyber incidents or incidents of other disruptions. As discussed in the open meeting on the proposed rule, there were 120 reports of an incident made in fiscal year 2022. Examination staff have learned of about perhaps as many incidents that they considered material where the CFTC should have been notified.
The goal of the rule was to improve the uniformity of reporting incidents to the CFTC. While I appreciate the commenters' concerns about the consequences of removing the limitation that the incident be material, as well as other proposed changes, we still need to address the underlying problem in some way.
Additionally, the proposal also clarified that incidents requiring notification were not just those caused by cyber attackers, but also those triggered by accidents or malfunctions. At the recent Technology Advisory Committee meeting, TAC member Professor Hilary Allen of American University Washington College of Law described how by some estimates, losses from accidental tech glitches exceed those from cyberattacks.
Ultimately, given the experiences of the CFTC staff, the Commission needs to find the right fix that improves notifications. I am pleased to see a commitment here to addressing this urgent need as cyber threats are the threats of our day. The Technology Advisory Committee's Cybersecurity Subcommittee is working on advising the Commission on how best to promote cyber resilience.
I am thankful for the Commission's continued attention to this topic and I urge
I support the final rule on reporting and information requirements for derivatives clearing organizations (DCOs) (DCO Reporting Final Rule) because of its careful attention and response to public comments received. I would like to thank Clark Hutchison, Eileen Donovan, Parisa Nouri, August Imholtz, Gavin Young, Theodore Polley, and Elizabeth Arumilli of the Division of Clearing and Risk (DCR) for their work on the DCO Reporting Final Rule. I appreciate the staff addressing my concerns.
The Commission has a great deal to be proud of with respect to its DCO registration and oversight regimes. Mandatory clearing for swaps was a pillar of the G20 reforms, and the U.S. was one of the first jurisdictions to adopt a clearing requirement pursuant to the directive.
I am pleased that the DCO Reporting Final Rule is appropriately responsive to industry concerns that the Commission's existing rules were unworkable.
In this instance, Regulation 39.19(c)(1) required a DCO to report to the Commission on a daily basis initial margin, variation margin, cash flow, and position information for each clearing member, by house origin, by each customer origin, and by individual customer account.
There are other instances of the Commission responding to overwhelming support from commenters on unworkable proposals. These include significant amendments the Commission had proposed to the system safeguards rules for DCOs. To highlight one, Regulation 39.18(g)(1) requires that a DCO promptly notify DCR staff of any hardware or software malfunction, security incident, or targeted threat that materially impairs, or creates a significant likelihood of material impairment of, automated system operation, reliability, security, or capacity.
The Commission had proposed amending Regulation 39.18(g)(1) to eliminate the materiality threshold, requiring DCOs to report all such events regardless of their magnitude.
Speaking from personal experience, I think that if we had removed the materiality requirement, there would be a nonstop flood of notifications coming in to the staff because there are operational issues that occur all the time, many of which are insignificant and are resolved with de minimis impact. But nonetheless, without a materiality threshold then all such incidents would need to be reported promptly. So, I am pleased that we are taking the time to consider this aspect of the proposed rule further, particularly since there is ongoing work around the world on international standards, and the Fed and the Securities and Exchange Commission (SEC) are also both updating their incident reporting requirements. There is no doubt that the maintenance of strong incident reporting regimes is critical to CFTC oversight, but I also believe that it is important for the Commission to harmonize it's reporting regime with other similar regulatory approaches.
The SEC's Reg SCI is most analogous to our DCO systems safeguards and systems incident reporting requirements.
In looking at the preamble to the NPRM for Reg SCI, I note that it dates back to two policy statements by the SEC on “Automated Systems for Self-Regulatory Organizations” dated 1989 and 1991.
Both the securities and futures markets experienced the same shift to electronic trading and reliance on automated systems in the wake of rapid technological advance, and given how these developments dominated the industry, I believe it is reasonable to infer that the contemporaneous use of the term “automated systems” in CFTC regulations would have similar meaning to the SEC's use of that term in the context of securities regulation.
Therefore, I think it would make sense to evaluate whether to adopt essentially the same definition for “automated systems” as the SEC definition of “SCI systems” because I think the intent and scope would be the same. In fact, the SEC explicitly acknowledged the similarities in the securities and U.S. commodities markets with respect to systems issues and incidents in its preamble to the final rule.
Overall, this rule is an example of how good government works, and I am pleased to support it. Thank you.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS issues this final rule to implement Amendment 122 to the Fishery Management Plan (FMP) for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI). Amendment 122 establishes the Pacific Cod Trawl Cooperative Program (PCTC Program or Program), a limited access privilege program (LAPP) to harvest Pacific cod in the BSAI trawl catcher vessel (CV) sector. The PCTC Program allocates Pacific cod harvest quota to qualifying groundfish License Limitation Program (LLP) license holders and qualifying processors and requires participants to form cooperatives to harvest the quota. This action is necessary to increase the value of the fishery, minimize bycatch to the extent practicable, provide for the sustained participation of fishery-dependent communities, ensure the sustainability and viability of the resource, and promote safety and stability in the harvesting and processing sectors. This action is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the BSAI FMP, and other applicable law.
This rule is effective on September 7, 2023.
Electronic copies of the Environmental Assessment (EA), the Regulatory Impact Review (RIR), and the Social Impact Analysis (collectively referred to as the “Analysis”), and the Finding of No Significant Impact (FONSI) prepared for this final rule may be obtained from
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to NMFS Alaska Region, P.O. Box 21668, Juneau, AK 99802-1668, Attn: Gretchen Harrington; and to
Stephanie Warpinski, 907-586-7228 or
NMFS published a Notice of Availability for Amendment 122 in the
The following background sections describe the PCTC Program and this final rule. A detailed description of the PCTC Program and its development is provided in the preamble to the proposed rule and in the Analysis.
Pacific cod (
The overfishing level (OFL), acceptable biological catch (ABC), and total allowable catch (TAC) for BSAI groundfish are specified through the annual harvest specification process. A detailed description of the annual harvest specification process is provided in the final 2023 and 2024 harvest specifications for groundfish of the BSAI (88 FR 14926, March 10, 2023). For Pacific cod, the harvest specifications establish separate OFLs, ABCs, and TACs for the Bering Sea (BS) subarea and the Aleutian Islands (AI) subarea of the BSAI. Allocations of Pacific cod to the Community Development Quota (CDQ) Program sector and to the non-CDQ fishery sectors are further apportioned by seasons. Season dates for the CDQ and non-CDQ fishery sectors are established at 50 CFR 679.23(e)(5). In general, regulations apportion trawl gear allocations among three seasons that correspond to January 20-April 1 (A season), April 1-June 10 (B season), and June 10-November 1 (C season).
The trawl CV sector is apportioned 22.1 percent of the BSAI Pacific cod non-CDQ TAC, which is further divided into seasonal allowances between the A, B, and C seasons. A season is issued 74 percent of the trawl CV sector's total apportionment, B season is issued 11 percent, and C season is issued 15 percent. After NMFS deducts estimated incidental catch from the trawl CV sector apportionment, each seasonal allowance is assigned to the trawl CV sector as a BSAI directed fishing allowance (DFA).
NMFS implemented the Groundfish License Limitation Program (LLP) in 1998 (63 FR 52642, Oct. 1, 1998) and issued LLP licenses to qualifying participants based on historical participation in the Federal groundfish fisheries off Alaska. A groundfish LLP license authorizes a vessel to participate in a directed fishery for groundfish in the BSAI in accordance with specific area and species endorsements, vessel and gear designations, and the maximum length overall (MLOA), or any exemption from the MLOA, specified on the license. All Federal Pacific cod harvesting activity in the BSAI requires an LLP license and the correct endorsements.
AI endorsements issued to certain LLP licenses under Amendment 92 to the BSAI FMP were intended to facilitate shoreside deliveries of Pacific cod to AI communities and provide additional harvest opportunities for non-American Fisheries Act (AFA) trawl vessels who had demonstrated a dependence on AI groundfish resources. The AI endorsements issued to LLP licenses used by non-AFA trawl CVs less than 60 ft (18.3 m) length overall (LOA) are severable from the LLP license and transferable to another LLP licenses with a MLOA under 60 ft (18.3 m) LOA. The transferability provision was intended to allow smaller vessels operational flexibility and avoid stranding an AI endorsement on an LLP
The PCTC Program implements a complex suite of measures to improve fishery conditions for all participants. This Program establishes criteria for harvesters and processors in the BSAI trawl CV sector Pacific cod fishery to qualify for and receive quota share (QS), criteria for allocating QS in the initial year of implementation, and criteria for the transfer of QS. QS holders are required to join a cooperative (harvesters) or associate with a cooperative (processors). The aggregate QS of cooperative members and associated processors yields an exclusive harvest privilege for PCTC Program cooperatives, which NMFS will issue as cooperative quota (CQ) each year. CQ represents a portion of the A and B season BSAI trawl CV sector Pacific cod DFA. Of the total annual CQ, 77.5 percent is derived from QS issued to LLP licenses, and 22.5 percent is derived from QS issued to processors. The DFA for the C season remains available for harvest as a limited access fishery open to all CVs with the required trawl gear and area endorsements on the LLP license assigned to the vessel.
The PCTC Program includes ownership and use caps to prevent a permit holder from acquiring an excessive share of the fishery as required under Magnuson-Stevens Act section 303A(c)(5)(D). No person is permitted to hold more than 5 percent of harvester-issued QS or 20 percent of processor-issued QS. In addition, no vessel is allowed to harvest more than 5 percent of the annual CQ, and no company is allowed to process more than 20 percent of the annual CQ. The PCTC Program also includes legacy exemptions for persons over these ownership and use caps at the time of PCTC Program implementation, allowing participants to maintain levels of historical participation rather than forcing divestiture.
The PCTC Program reduces the halibut and crab Prohibited Species Catch (PSC) limits for participating trawl CVs during the A and B seasons. NMFS will apportion halibut and crab PSC limits to PCTC Program cooperatives during the annual harvest specifications process based on the percentage of total BSAI Pacific cod CQ allocated to each cooperative.
To support the sustained participation of AI communities in the Pacific cod trawl CV fishery, cooperatives are required to collectively set-aside 12 percent of the A season CQ for delivery to an Aleutian Islands shoreplant (AI CQ set-aside) during years in which an AI community representative notifies NMFS of their intent to process Pacific cod.
The following sections describe the primary management measures included in the PCTC Program. Each Program element is discussed in further detail in the preamble to the proposed rule prepared for this action (88 FR 8592, February 9, 2023).
NMFS established a PCTC Program official record containing all necessary information concerning legal landings of Pacific cod during the qualifying period, vessel and processor ownership, LLP license holdings, and any other information needed for assigning QS. NMFS will use the PCTC Program official record as of December 31, 2022 to establish the initial pool of QS that will be distributed to eligible harvesters and processors.
Under the PCTC Program, NMFS will assign QS to eligible LLP licenses. “Eligible PCTC Program LLP license” means an LLP license that has qualifying catch history (
“Legal landings” means the retained catch of Pacific cod caught by a CV using trawl gear in the BSAI during the directed fishing season for Pacific cod that was: (1) made in compliance with state and Federal regulations in effect at that time, (2) recorded on a State of Alaska fish ticket or shoreside logbook for shoreside deliveries or in observer data for mothership deliveries, and (3) was the predominately retained species on the fishing trip (
Under this final rule, the Regional Administrator will allocate PCTC Program QS to an LLP license holder who submits a timely Application for PCTC Program QS that is approved by NMFS. For each LLP license without a transferable AI endorsement, NMFS will assign a specific number of PCTC Program QS units based on the BSAI trawl CV Pacific cod legal landings of that LLP license using information from the PCTC Program official record according to the following procedures:
(1) Determine the BSAI trawl CV Pacific cod legal landings authorized by an LLP license for each calendar year from 2009 through 2019.
(2) Drop from consideration the calendar year in which the LLP license had the least amount of legal landings. If an LLP license had one or more years with zero harvest, drop one of those years.
(3) Sum the Pacific cod legal landings for the 10 years in which each LLP license had the most landings. This yields the QS units for each LLP license.
For each LLP license with a transferable AI endorsement, NMFS will assign a specific number of PCTC Program QS units based on the legal landings of each vessel that was used to generate the transferable AI endorsement and subsequent legal landings authorized by the LLP license associated with the endorsement using information from the PCTC Program official record according to the following procedures:
(1) Determine the BSAI trawl CV Pacific cod legal landings for each vessel used to generate the transferable AI endorsement from January 20, 2004 through September 13, 2009 and the LLP license associated with that transferable AI endorsement from September 14, 2009 through the end of 2019.
(2) Drop from consideration the calendar year which the vessel used to generate the transferable AI endorsement (January 20, 2004-September 13, 2009) or the associated LLP license (2009-2019) and during which the vessel had the least amount of legal landings. If a vessel or LLP license had one or more years with zero harvest, drop one of those years.
(3) Sum the Pacific cod legal landings of the highest fifteen years for each LLP license with transferable AI endorsement. This yields the QS units for each LLP license with a transferable AI endorsement.
After the QS units for the LLP licenses with and without transferable AI endorsements are determined under part 3 of each scenario above, NMFS sums all harvester QS units to calculate the harvesters' total QS pool. NMFS will then determine what portion of the 77.5 percent of the A and B season DFA allocated as harvester QS is represented by each LLP license's QS units. To do so, NMFS will divide each LLP license's total QS units by the sum (Σ) of all QS units for all eligible LLP licenses based on the PCTC Program official record as presented in the following equation:
The result (quotient) of this equation is the percentage of the total harvesters' portion of PCTC Program QS allocation (which is 77.5 percent of the A and B season DFA) that a QS holder can assign to a cooperative each year.
NMFS will not divide QS among LLP licenses. The current LLP license owner is entitled to all QS derived from the LLP license and transferable AI endorsement catch history, unless compensation was required by a private agreement associated with the sale of the LLP license.
Some legal landings during 2009 through 2019 were made by vessels with two or more associated LLP licenses. In these cases, NMFS will assign the qualifying catch history to a single LLP license in one of two ways. First, the LLP license owners may come to an agreement regarding the division of qualifying catch history and submit this agreement to NMFS when they apply for QS. Second, if no agreement is provided by the LLP license holders, the owner of the vessel that made the qualifying catch can assign the history to one of the LLP licenses that authorized the catch.
“Eligible PCTC Program processor” means a processing facility with an active Federal Fisheries Permit (FFP) or Federal Processing Permit (FPP) (subject to eligibility requirements under Amendment 120 to the BSAI FMP to limit CPs acting as mothership) that has historically received Pacific cod legal landings during the PCTC Program qualifying years. NMFS will issue QS to the owner of an eligible PCTC Program processor based on deliveries of legal landings in the Federal BSAI Pacific cod trawl fishery in the A and B seasons for each calendar year from 2009 through 2019, with the calendar year in which the processor received the least amount of legal landings dropped from the calculation. Owners of eligible PCTC Program processors must submit a timely and complete Application for PCTC Program QS.
Processors that are no longer active (
NMFS will assign a specific number of PCTC Program QS units to each processor's PCTC Program QS permit based on the qualifying legal landings delivered to the processor using information from the PCTC Program official record according to the following procedures:
(1) Determine the BSAI trawl CV Pacific cod legal landings in the A and B seasons delivered to each eligible processor for each calendar year from 2009 through 2019.
(2) Drop from consideration the calendar year in which the processor received the least amount of legal landings. If a processor had one or more years with zero processing of Pacific cod legal landings, drop one of those years.
(3) Sum the Pacific cod legal landings of the highest 10 years for each eligible processor. This yields the QS units for each processor.
(4) Divide the QS units for each eligible processor by the sum (Σ) of all QS units for all processors based on the PCTC official record as presented in the following equation:
The result (quotient) of this equation is the percentage of the total processors' portion of PCTC Program QS allocation (which is 22.5 percent of the A and B season DFA) that a QS holder can assign to a cooperative each year.
A person must submit an Application for PCTC Program QS in order to receive an initial allocation of PCTC QS. NMFS requires an application to ensure that QS is assigned to the appropriate person(s) and to provide a process for resolving claims of legal landings that are contrary to the PCTC Program official record. Once a person submits an Application for PCTC Program QS that is approved by NMFS, that person will not need to resubmit an application for QS in future years. NMFS will post a list of the eligible PCTC Program LLP license holders and the eligible PCTC Program processors on the NMFS Alaska Region web page (see
NMFS will mail an application package to the address on record for all potentially eligible LLP license holders and processors. This package will include a letter informing potentially eligible LLP license holders and processors whether NMFS has determined they are eligible to receive QS, and if so, the amount of QS calculated by NMFS based on qualifying catch or processing history from the PCTC Program official record.
Applications will also be available on the NMFS Alaska Region web page (see
An Application for PCTC Program QS can be submitted electronically or by mail as indicated in the instructions provided on the application. A completed Application for PCTC Program QS must be received by NMFS no later than 1700 hours AKST on October 10, 2023, or if sent by U.S. mail, postmarked by that time. Objective written evidence of timely application will be considered proof of a timely application. If participants do not submit an application by the deadline, they will forfeit their PCTC Program QS.
If a participant agrees with the PCTC Program official record summary, they still must submit an Application for PCTC Program QS by the deadline.
If a participant did not receive an application package from NMFS, they may still apply for QS by submitting an Application for PCTC Program QS and providing evidence of qualifying participation in the BSAI trawl CV sector Pacific cod fishery by the application deadline.
If a participant would like to receive QS and does not agree with the PCTC Program official record summary, they must complete an Application for PCTC Program QS by the application deadline and provide evidence of any claims of participation that are contrary to the official record.
If an LLP license holder's PCTC Program official record summary includes shared catch history, the participants with shared catch history must execute an agreement specifying the amount of shared catch history to assign to each LLP license. If NMFS does not receive an agreement, the owner of the catcher vessel designated on the LLP licenses at the time of harvest will determine the amount of QS assigned to each permit.
If any applicant disagrees with NMFS's initial calculations and provides documentation with their Application for PCTC Program QS to support a claim of catch history that is different from the PCTC Program official record, NMFS will determine whether such documentation is sufficient to amend the official record. If so, NMFS will issue QS to the applicant. If not, NMFS will inform the applicant that the submitted documentation was insufficient and provide the applicant with a 30-day evidentiary period to further support their claims. After the close of the 30-day evidentiary period, NMFS will make its final decision about the official record and issue an initial administrative determinations (IAD) to the applicant. Applicants who disagree with the IAD may appeal NMFS's decision through the NOAA National Appeals Office according to the procedures found at 50 CFR 679.43.
NMFS will identify in an IAD any deficiencies or discrepancies in the application, including any deficiencies in the information or evidence submitted to support an applicant's claims challenging the official record. NMFS's IAD will state which claims cannot be approved based on the available information or evidence and provide information on how an applicant can appeal an IAD. An applicant who appeals an IAD will not receive QS for contested landings data unless and until the appeal is resolved in the applicant's favor. Once NMFS has approved an Application for PCTC Program QS in its entirety, NMFS will assign QS units to an applicant's LLP license or issue a processor a PCTC Program QS permit with a specified number of QS units.
For the 2024 fishing season, NMFS will issue CQ to cooperatives based on the QS held by cooperative members at the time of CQ issuance. Any ongoing appeals or QS transfers allowed under the 90-day transfer window for AFA non-exempt CVs will apply to subsequent fishing years.
Under the PCTC Program, QS holders may transfer QS concurrently with the transfer of the LLP license, AI endorsement, or processor PCTC Program QS permit. In order to transfer QS, a QS holder must submit to NMFS an Application for Transfer of License Limitation Program Groundfish/Crab License or the Application for Transfer of Pacific Cod Trawl Cooperative Program Quota Share (QS) for Processors. Transfer of QS requires approval by NMFS to properly track ownership caps. For harvesters, QS may be transferred with an LLP license or a transferable AI endorsement to another person through the existing LLP transfer provisions described in regulations at 50 CFR 679.4(k)(7). Each application must include any additional information needed for the transfer of QS, including amount of QS to be transferred (generally all QS attached to the license), the transferee, and the sale price of QS. Applications are available on the NMFS Alaska Region web page (see
To facilitate cooperative formation under the PCTC Program in the first year, QS transfers submitted after November 1 and prior to the start of PCTC Program fishing season will be applied to the following year, meaning if a transfer was submitted in December 2023, the transfer would not be applied until after the PCTC Program fishing season ends in 2024.
Under Amendment 92, the AI endorsements issued to LLP licenses used by non-AFA trawl CVs less than 60 ft (18.3 m) LOA are severable from the LLP license they were initially issued and transferable to another LLP licenses with a MLOA under 60 ft (18.3 m) LOA. NMFS modified the LLP license transfer regulations to clarify the process for transferring an AI endorsement independent of the LLP license. As part of the application process, a person must specify the LLP license to which the transferred AI area endorsement will be assigned.
Once PCTC Program QS is issued, the QS units will remain attached to the associated LLP license or processor's PCTC Program QS permit in most circumstances and cannot be severed or otherwise transferred independently. There are several limited exceptions to non-severability: (1) QS can be fully or partially transferred during the limited 90-day transfer provision for non-exempt AFA CVs; (2) QS attached to LLP licenses with a transferable AI endorsement can be transferred along with the endorsement to another LLP license that meets the criteria for a transferable AI endorsement (endorsements cannot be stacked on a single LLP); (3) if a participant qualifies for a legacy exemption and receives an initial allocation of QS in excess of the ownership cap, that participant's QS can be split during a transfer to prevent any recipient from exceeding a cap; and (4) QS can be separated from a processor QS permit in any transfer of processor-held QS if necessary to prevent any transferee from exceeding an ownership or use cap.
For LLP licenses associated with AFA non-exempt vessels, within 90 days of initial issuance of QS, the owner of the LLP license may transfer QS to another LLP license associated with an AFA non-exempt vessel. These QS transfers are subject to the QS ownership cap. This provision allows LLP license holders that engaged in AFA sideboard harvesting agreements during the qualifying period to transfer resulting QS back to the originating LLP license.
The transferor and the transferee must submit to NMFS a letter, signed by both persons, as evidence of their agreement to transfer the QS in this one-time
The PCTC program includes QS ownership caps to prevent a permit holder from acquiring an excessive share of the fishery as required under Magnuson-Stevens Act Section 303A(c)(5)(D). Individual ownership caps for both harvesters and processors are calculated using the “individual and collective rule” which means a person is deemed to own QS in the same percentage that person owns or uses the relevant license, permit, or vessel. If a person owns QS equal to the cap, NMFS will not approve a transfer of additional QS to that person. The PCTC Program also includes CQ use caps, described in sections IV.E and IV.F.
With the exception of persons qualifying for the legacy exemption, no person is permitted to individually or collectively own more than 5 percent of the aggregate QS units initially assigned to eligible LLP licenses. The number of QS units is based on the PCTC Program official record. When QS is transferred, the person receiving the transfer is prohibited from holding or using QS over the 5 percent cap. This QS ownership cap limits the amount of QS assigned to an LLP license that can be held or controlled by a single entity. Processor QS does not count toward this ownership cap.
With the exception of persons qualifying for the legacy exemption, no person is permitted to individually or collectively own more than 20 percent of the aggregate QS units initially assigned to QS permits held by eligible processors. Processor QS ownership caps are necessarily higher than harvester-held QS caps because the total number of eligible processors is significantly less than the number of harvesters. This cap is applied at the aggregate company or firm level (not the individual facility level). The processor QS ownership cap limits the amount of processor-held QS that can be held or controlled by a single entity.
Under the PCTC Program, persons over the cap at the time of QS issuance are granted non-transferable legacy exemptions. Because the ownership caps fall well short of excessive shares in the fishery and allocating QS based on status quo levels of participation would not result in any participant holding an excessive share of limited access privileges, the Program grants legacy exemptions to participants whose initial QS allocations exceed the ownership caps. The legacy exemptions are intended to preserve stability in the fishery rather than force longtime participants to divest and reduce their reliance on the fishery. However, legacy exemptions are unique to persons receiving initial QS allocations and cannot be transferred. All future purchasers of QS would be subject to the ownership caps.
NMFS will not approve transfers of an LLP license with QS or a PCTC Program QS permit if the transfer would cause a person to exceed the 5 percent harvester QS ownership cap or the 20 percent processor QS ownership cap.
For LLP licenses and PCTC Program QS permit holders that are initially issued QS greater than the ownership cap (
If a QS holder has a legacy exemption from the QS ownership cap, NMFS will not approve a QS transfer to that person unless and until that person's holdings of QS are reduced to an amount below the QS ownership cap.
The PCTC Program is a cooperative-based program that requires harvesters to join a cooperative each year and processors to associate with a cooperative each year to benefit from QS holdings. NMFS will issue cooperatives annual CQ derived from the QS held by the harvesters that join the cooperative and associated processors. Under the Program, cooperative members are expected to coordinate their fishing operations, potentially reduce operational expenses, and increase the quality and revenue from the product, among other benefits.
Under the PCTC Program, forming a cooperative requires at least three LLP licenses with QS. Annually, each cooperative must associate with at least one permitted processor. There is no limitation on the number of LLP licenses that may join a single cooperative, the number of processors a cooperative can associate with, or on the amount of QS a single cooperative can control. There is also no limit on the number of cooperatives that may form, but each LLP license may only be assigned to one cooperative. A person may hold multiple LLP licenses, meaning that an individual who holds three or more LLP licenses may form a cooperative in association with a processor.
An LLP license holder may change cooperatives and processor associations may change annually without penalty. However, an LLP license holder with QS may not change cooperatives and cooperatives may not change their processor associations during the PCTC Program fishing season. If an LLP license is sold or transferred during the season, it will remain with the cooperative until the end of the season. Inter-cooperative formation is allowed and an inter-cooperative agreement (see section IV.B) is required to implement the AI set-aside and to allow for efficient transfer of CQ or PSC limits between cooperatives.
NMFS will issue annual CQ to each cooperative based on the aggregate QS held by all cooperative members and associated processors. CQ constitutes an exclusive harvest privilege for the A and B seasons. NMFS will issue CQ by season and rely on the cooperatives to ensure the seasonal limits are not exceeded. Any unused A season CQ may be harvested during the B season. Cooperative members will determine their own harvest strategy, including which vessels can harvest the CQ.
CQ is not designated for the BS or AI subareas separately, but may be harvested from either area because the non-CDQ Pacific cod sector allocations are BSAI wide. If the non-CDQ Pacific cod TAC is or will be reached in either the BS or the AI subareas, NMFS will
Cooperatives are limited in the manner in which they distribute CQ derived from processor-held QS for harvest by cooperative vessels. To address vertically integrated companies where a processing company may also own LLP licenses or CVs within a cooperative, CQ derived from processor-held QS must be divided among cooperative harvesting CVs proportionately to the QS attached to LLP licenses on board the CVs. In other words, a cooperative should not allow a CV or LLP license owned by a processor to harvest a greater proportion of the CQ resulting from processor-held QS than the LLP license will have brought into the cooperative absent any processor-held QS. Each cooperative will monitor this provision and include reporting on harvest of CQ resulting from processor-held QS in the PCTC Program cooperative annual report to the North Pacific Fishery Management Council (Council).
All participants in the Program must organize into cooperatives, and the cooperative must submit a complete Application for PCTC Program CQ prior to the November 1 deadline each year to receive an annual CQ permit. If the cooperative fails to submit a timely application for CQ, NMFS will not issue CQ to the cooperative for that fishing year.
NMFS will process the application for CQ and, if approved, issue a CQ permit and apportioned amounts of annual crab PSC and halibut PSC limits to the cooperative. NMFS will use these applications to issue CQ permits, establish annual cooperative accounts for catch accounting purposes, and identify specific harvester vessels for each cooperative. As with other LAPPs, the information received in this application is annually used to review ownership and control information for various QS holders to ensure that QS and CQ use caps are not exceeded. Processors that receive deliveries of CQ but do not hold a QS permit do not need to be listed on the application for CQ.
The Application for PCTC Program CQ is available on the NMFS Alaska Region website and may be submitted electronically through the NMFS online system or the NMFS Alaska Region website. The following list summarizes the information that is required:
• PCTC Program LLP license identification numbers;
• Processor-held PCTC Program QS permit number(s) and name of the processor that holds that each QS permit;
• PCTC Program QS ownership documentation;
• PCTC Program cooperative business address or identifier identification;
• Members of the PCTC Program cooperative and the associated processor that holds a QS permit;
• Trawl vessel identification, including the name(s) and USCG documentation number of vessel(s) eligible to harvest the CQ issued to the PCTC Program cooperative;
• A copy of the business license issued by the state in which the PCTC cooperative is registered as a business entity;
• A copy of the articles of incorporation or partnership agreement of the PCTC Program cooperative;
• A list of the names of all persons, to the individual level, holding an ownership interest in the LLP licenses that join the cooperative and the percentage ownership each person and individual holds in each LLP license;
• A list of trawl CVs eligible to harvest a portion of that cooperative's CQ;
• A copy of the cooperative agreement signed by the members of the PCTC Program cooperative, which must include, at a minimum, the following terms: (1) QS holders affiliated with processors cannot participate in price setting negotiations except as permitted by antitrust law; (2) monitoring provisions, including sideboard protections in the GOA, sufficient to ensure compliance with the PCTC Program; and (3) a provision that specifies the obligations of PCTC QS holders who are members of the cooperative to ensure the full payment of cost recovery fees that may be due;
• A copy of the inter-cooperative agreement that provides the plan for coordinating harvest and delivery of the AI CQ set-aside;
• Designated representative and cooperative members' signatures and certification; and
• Authorization for the designated representative to act on behalf of the cooperative to complete the application.
NMFS will review the CQ applications for accurate information, including cooperative and inter-cooperative agreements, ownership and use caps, and payment of any fees, including cost recovery. If approved, NMFS will issue a CQ permit to the cooperative. NMFS will issue CQ permits after the annual harvest specifications are recommended by the Council for the upcoming year. Permits will generally be issued in early January for the fishing year starting January 20. The CQ permit will list the metric tons of Pacific cod by A and B season that the cooperative may harvest, the metric tons of apportioned halibut PSC, and the number of each species of crab PSC that the cooperative may use during the fishing year.
NMFS will issue CQ for A and B seasons separately, with total CQ issued to all cooperatives in each season equal to the DFA. The remaining TAC for the trawl CV sector will be the incidental catch allowance (ICA) for Pacific cod caught as bycatch in other fisheries, such as pollock.
A person holding a PCTC Program QS permit is required to associate with a cooperative to use their QS. This creates an economic incentive for the processors that hold QS to either associate with a cooperative on an annual basis or sell their permit to a processor that will associate with a cooperative. Processor-held QS that is not associated with a specific cooperative will be distributed as CQ among all the cooperatives that form in a given year in the same proportion as the CQ assigned to each cooperative. A cooperative may associate with a processor that does not hold QS.
A vessel use cap restricts the CQ that can be consolidated and harvested by one vessel during the year. The PCTC Program includes a 5 percent vessel use cap for CVs. With the exception of persons qualifying under the legacy exemption, no vessel is permitted to harvest more than 5 percent of the annual CQ issued in the fishery. A vessel designated on an LLP license that receives QS in excess of the QS ownership cap at the time of QS issuance will be granted a legacy exemption from the vessel use cap because that vessel would have harvested over 5 percent of the total A and B season trawl CV sector Pacific cod allocation during the qualifying years. The legacy exemption applies to the
A processor's CQ use cap protects against excessive consolidation of processing activity by limiting a person (
Under this Program, a cooperative may transfer all or part of its CQ to another cooperative for harvest subject to the limitations imposed by the use caps. Transfers of CQ are for a single year's annual allocation. The underlying QS remains with the LLP license. This CQ transfer provision provides flexibility for cooperatives to transfer Pacific cod for harvest or PSC to support cooperative fishing. The ability to transfer PSC allows cooperatives to account for unforeseen circumstances, but the incentive to avoid hitting a cooperative PSC limit remains because of the cost of acquiring PSC from another cooperative.
This final rule allows post-delivery transfers of CQ, but all transfers must be completed prior to August 1, after the close of the B season. At the end of the fishing season, remaining CQ may be consolidated into fewer cooperatives (and for harvest by fewer vessels) due to the requirement that a vessel may not begin a fishing trip without unharvested CQ. Consolidation of CQ to a smaller number of cooperatives toward the end of the fishing season facilitates “sweep up” trips to complete the season's harvests.
To transfer CQ and associated PSC limits between cooperatives, the cooperative must use the NMFS online system on the NMFS Alaska Region website, which allows for automated review and approval of transfer requests within use cap constraints. NMFS will not approve a CQ transfer if the transfer would result in a CV exceeding the use cap. A transfer of CQ is not effective until approved by NMFS.
Under the PCTC Program, the Council has requested cooperatives to provide voluntary annual reports. Consistent with other cooperative programs developed by the Council, these reports shall include specific information on the structure, function, and operation of the cooperatives.
Each year, the Council will receive reports outlining the cooperatives' performance at one of its regularly scheduled meetings. These reports will be used by the Council and NMFS to ensure the program is functioning as intended and to solicit timely information on issues that may need to be addressed by the Council. The Council requested that each cooperative report include information on CQ leasing activities and any penalties issued, harvest of CQ resulting from processor-held QS, cooperative membership, cooperative management, and performance (including implementation of the AI CQ set-aside when in effect).
NMFS will annually apportion halibut and crab PSC limits to PCTC Program cooperatives based on the percentage of total CQ allocated to their cooperative. During the A and B seasons, NMFS will monitor PSC use at the sector level, and cooperatives will manage PSC use at the cooperative level. Cooperative vessels are prohibited from fishing under the Program if a halibut PSC limit is reached for the cooperative or from fishing in a crab bycatch limitation zone if a crab PSC limit is reached in that relevant area. PSC limits may be transferred between cooperatives using the NMFS online system to cover any overages or to allow a cooperative to continue harvesting Pacific cod.
Annually, NMFS will apportion the halibut PSC limit assigned to the BSAI trawl limited access sector Pacific cod fishery to the trawl CV and AFA CP sectors; 98 percent will be apportioned to the trawl CV sector and 2 percent will be apportioned to AFA CP sector. The specific percentage of the total halibut PSC limit assigned to the trawl limited access sector may change annually. NMFS will then apportion the halibut PSC limit to the trawl CV sector for the A, B, and C season. Of the halibut PSC limit apportioned to the trawl CV sector, 95 percent will be available for the PCTC Program in the A and B seasons and 5 percent is available for the C season.
To implement the halibut PSC reduction under the Program, NMFS will annually apply a fixed percentage reduction to the A and B season PSC apportionment derived from the overall trawl CV sector halibut PSC apportionment. The total halibut PSC reduction under the Program is 25 percent, which will be phased in over two years. In the first year of the Program, NMFS will apply a 12.5 percent reduction to the A and B season trawl CV sector halibut PSC apportionment in the annual harvest specifications after the Council recommends and NMFS approves the BSAI trawl limited access sector's PSC limit apportionments to fishery categories. In the second year of the Program and every year thereafter, NMFS will apply a 25 percent reduction to the A and B season trawl CV sector halibut PSC apportionment. Any amount of the PCTC Program PSC limit remaining after the B season will be reallocated to the trawl CV limited access fishery in the C season. Because the annual halibut PSC limit for the Program is not a fixed amount established in regulation and, instead, is determined annually through the harvest specification process, NMFS must apply the 25 percent reduction to the A and B season apportionment of the trawl CV sector apportionment to implement the overall PSC reductions under the Program.
The annual crab PSC limits available to the BSAI trawl limited access sector Pacific cod fishery category will be apportioned between the trawl CV sector and the AFA CP sector based on the proportion of BSAI Pacific cod allocated to the two sectors: 90.6 percent to BSAI trawl CVs and 9.4 percent to AFA CPs. Of the crab PSC limit apportioned to the trawl CV sector, 95 percent will be available for the PCTC Program (A and B seasons) and 5 percent will be available for the C season. NMFS will then reduce the crab PSC limits by 35 percent during the A and B seasons for the PCTC Program. As with halibut PSC, any amount of the PCTC Program PSC limit remaining after the B season will be reallocated to the C season trawl CV limited access fishery.
Under the PCTC Program, cooperatives are required to collectively set aside an amount of CQ equal to 12
The AI CQ set-aside provides additional incentives for harvesters to deliver AI Pacific cod to an Aleutian Islands shoreplant. The AI CQ set-aside is designed to provide benefits and stability to fishery-dependent fishing communities in the AI when a shoreplant is operating and is responsive to lingering effects caused by changes in management regimes such as rationalization programs. Without the AI CQ set-aside, AI harvesters, shoreplants, and fishing communities could be preempted from the fishery by the offshore sector. The AI CQ set-aside is especially beneficial to AI communities in low TAC years when harvest can otherwise fully occur in the BS, preventing any cod deliveries in the AI.
This final rule does not affect any sector's BSAI Pacific cod allocation or the CDQ Pacific cod allocation in the AI. Non-CDQ sectors continue to receive annual allocations as established under Amendment 85 to the BSAI FMP (72 FR 50787, September 4, 2007). The performance of this AI CQ set-aside provision will be evaluated in the periodic reviews of the Program.
The AI CQ set-aside provision for AI processors requires cooperatives to set-aside an amount of annual CQ for delivery to an Aleutian Islands shoreplant if the city of Adak or Atka files a notice of intent to process that year. The AI CQ set-aside is in effect and available for delivery to an Aleutian Islands shoreplant during the A and B seasons unless all notices of the intent to process are withdrawn by the AI communities. If all notices of intent to process are withdrawn, any remaining portion of the AI CQ set-aside will be available for cooperatives to deliver to any processor.
Cooperatives will manage the AI CQ set-aside through an inter-cooperative agreement. This agreement will ensure annual coordination between the cooperatives and shoreplants that are operating in the AI and guarantee that the AI CQ set-aside is available for delivery to the Aleutian Islands shoreplants. This reduces the management burden on NMFS and relies on the cooperatives to organize annual fishing activity.
Each year, the cooperative must submit a copy of the inter-cooperative agreement with the Application for PCTC Program CQ to NMFS that describes (1) how the AI CQ set-aside would be administered by the cooperatives, (2) how the cooperatives intend to harvest the AI CQ set-aside, and (3) how cooperatives would ensure that CVs less than 60 ft (18.3 m) LOA assigned to an LLP license with a transferable AI endorsement have the opportunity to harvest 10 percent of the AI CQ set-aside for delivery to an Aleutian Islands shoreplant. Each cooperative is required to provide the cooperative's plan for coordinating harvest and delivery of the AI CQ set-aside to an Aleutian Islands shoreplant regardless of whether that cooperative intends to harvest any amount of the AI CQ set-aside.
For the calendar year 2023, to provide for implementation of the Program during its first year, NMFS will allow each cooperative to submit the inter-cooperative agreement on or before December 31, 2023, after the November 1 deadline for the Application for PCTC Program CQ.
This final rule allows the representative of the City of Adak or the City of Atka to submit an annual notice of intent to process PCTC Program Pacific cod in the upcoming fishing year to the NMFS Regional Administrator no later than October 15 of the year prior to fishing. Submission of the notice of intent by October 15 provides NMFS inseason management with the timely information it needs to manage the upcoming fisheries and notify the cooperatives that the AI CQ set-aside is in effect for the upcoming year. If neither Adak nor Atka submit a notice of intent to process by October 15, cooperatives are not required to set aside CQ for delivery to an Aleutian Islands shoreplant in the subsequent fishing season.
A city's notice of intent to process Pacific cod must contain the following information: date, name of city, a statement of intent to process Pacific cod, statement of calendar year during which the city intends to process Pacific cod, and the contact information for the city representative where the relevant shoreplant is located.
On or before November 30, the Regional Administrator will notify the representative of Adak or Atka confirming receipt of their notice of intent to process Pacific cod. Shortly after receipt of a notice of intent to process Pacific cod, NMFS will announce through notice in the
Even if Adak or Atka is uncertain at the time the notice of intent is due as to whether an Aleutian Islands shoreplant will be operational, there would be no penalty to Adak or Atka or the shoreplant for stating their intention to process but then later withdrawing that notice of intent. Adak or Atka would be allowed to withdraw their notice of intent at any time after submitting it to NMFS. In the event that both Adak and Atka withdraw their notices of intent to process during the A or B season, NMFS will publish a notice in the
NMFS will monitor the implementation of the AI CQ set-aside throughout the A and B seasons. NMFS will consider the number and frequency of deliveries to Aleutian Islands shoreplants as well as the season timing and remaining CQ to be harvested. As soon as practicable, if the Regional Administrator determines that Aleutian Islands shoreplants authorized under the PCTC Program will not process the entire AI set-aside, the Regional Administrator may publish a notice in the
The Council and NMFS annually establish separate OFLs, ABCs, and TACs for the AI and BS subareas; however, the non-CDQ sector allocations (including the PCTC Program allocations) remain BSAI-wide allocations. Each year, during the annual harvest specifications process described at § 679.20(c), NMFS will specify an ICA and a DFA derived from the AI non-CDQ TAC. The amount of AI Pacific cod that NMFS estimates will be taken as incidental catch when directed fishing for non-CDQ groundfish other than Pacific cod in the AI subarea will be the AI ICA. The amount of the AI ICA may vary from year to year, and in future years, NMFS will specify the AI ICA in the annual harvest specifications based on recent and anticipated
NMFS will specify the AI ICA and DFA so that NMFS can clearly establish the amount of the AI CQ set-aside. It will also aid the public in knowing how much of the AI non-CDQ TAC is available for directed fishing prior to the start of fishing to aid in the planning of fishery operations.
The amount of the annual AI CQ set-aside for delivery to an Aleutian Islands shoreplant is equal to the lesser of either the AI Pacific cod non-CDQ DFA or 12 percent of the A season CQ and is in effect during the A and B seasons. When the AI CQ set-aside is equal to the AI DFA, directed fishing for Pacific cod in the AI may be conducted only by PCTC Program vessels that deliver their catch of AI Pacific cod to an Aleutian Islands shoreplant. However, if the AI DFA is greater than the AI CQ set-aside (and thus the set-aside is equal to 12 percent of the A season CQ), the difference between the AI DFA and the AI CQ set-aside may be available for directed fishing by all PCTC Program vessels with no restrictions on where that CQ must be delivered and processed.
The C season apportionment—which is 15 percent of the total annual allocation to the BSAI Pacific cod trawl CV sector—remains a limited access fishery open to all trawl CVs with LLP license endorsements to harvest Pacific cod in the BS and/or AI with trawl gear. The C season limited access fishery, which occurs June 10 through November 1, continues to be managed as it is under status quo conditions and remains unchanged by this final rule.
Although directed fishing for Pacific cod in the C season is an important part of the annual fishing plan for some trawl CVs, most of the trawl CV C season catch is incidental to other directed fishing. In the fall, as directed fishing for Pacific cod that opens on September 1 for the hook-and-line and pot sectors progresses, NMFS estimates any BSAI trawl CV C season allocation, including any unused amounts of PCTC Pacific cod and PSC limits rolled over to the C season, will be available for reallocation to other sectors. In some years, projected unused amounts of the trawl CV Pacific cod TAC will be available to reallocate, and NMFS may make a reallocation in late September or October. In other years, there may not be any projected unused amounts, and NMFS will wait until after directed fishing for pollock and Pacific cod by the trawl CV sector closes. In that circumstance, reallocations will occur in November or December. When the BS and AI Pacific cod TACs are higher, trawl CV C season Pacific cod may go unused and can be reallocated to other sectors. For projected unused PSC limits, the Regional Administrator may reallocate a portion of crab PSC or halibut PSC to Amendment 80 cooperatives if the amount assigned to the BSAI trawl limited access sector is not projected to be harvested or used (§ 679.91(f)).
To help ensure efficient allocation management, NMFS may rollover any unused portion of a seasonal apportionment from any non-CDQ fishery sector (except the jig sector) to that sector's next season during the current fishing year (§ 679.20(a)(7)(iv)(B) and (C)).
Under the PCTC Program, the cooperatives are granted harvest privileges in the A and B seasons of the BSAI Pacific cod fishery. Those harvest privileges alter the reallocation structure from the trawl CV sector prior to the C season since rollovers of unused CQ and PSC limits to other sectors will not occur until the close of the annual PCTC fishing year (the end of the B season).
The PCTC Program modifies existing GOA sideboard limits and associated GOA halibut PSC limits for non-exempt AFA vessels and LLP license holders and closes directed fishing where sideboard limits are too small to support a directed fishery. All GOA non-exempt AFA CVs and associated AFA LLP licenses are sideboarded in aggregate for all GOA groundfish fishing activity and for GOA halibut PSC based on their GOA catch history during the qualifying period, except when participating in the Central Gulf of Alaska (CGOA) Rockfish Program. The existing sideboards apply to non-exempt AFA vessels as defined at § 679.64(b)(2). The PCTC Program modifies the calculation of the existing sideboard limits for these non-exempt AFA CVs based on the GOA catch history. LLP licenses associated with non-exempt AFA CVs are also subject to the revised sideboard limits regardless of which vessel is named on the LLP.
GOA sideboards are currently calculated for non-exempt AFA CVs based on the ratio of catch to the TAC during the years 1995-1997. The PCTC Program modifies the calculation of the sideboard ratios for non-exempt AFA CVs that will be used in the annual GOA harvest specifications, looking at the ratio of catch to the TAC in the qualifying years of 2009-2019 (as shown in Table 2).
In addition, the ratio used to apportion GOA halibut PSC limits is modified and the five seasonal apportionments based on that sideboard ratio is reduced to a single aggregate annual amount. Providing an aggregate annual halibut PSC limit provides greater flexibility for the AFA vessels and LLP licenses to assign halibut PSC limits to those GOA groundfish sideboard fisheries that have the greatest value. Table 3 shows the new aggregate GOA halibut PSC limit ratio based on catch history during the qualifying period 2009-2019 that will be used annually in the GOA harvest specifications table after the effective date of this final rule.
Additionally, this final rule closes directed fishing to all GOA non-exempt AFA CVs and LLP licenses for the following species categories: Southeast Outside district of the Eastern GOA pollock, Western GOA shallow-water flatfish, Central and Eastern GOA deep-water flatfish, Central GOA dusky rockfish, and Eastern GOA and Central GOA Pacific ocean perch. NMFS will no longer publish AFA Program sideboard limits for these specific species or species groups in the
The Council directed cooperatives to (1) ensure GOA AFA exempt and non-AFA CVs and CVs assigned to under 60 ft (18.3 m) LLP licenses with AI transferrable endorsements do not lease their CQ as a condition of benefiting from a GOA sideboard exemption, (2) implement a penalty structure for violations, and (3) report leasing activities and penalties issued in the cooperative's annual report to the Council. The cooperative can allow leasing for (1) AFA GOA-exempt CVs, non-AFA CVs, and CVs assigned to under 60 ft (18.3 m) LOA LLP licenses with a transferable AI endorsement with less than 300 metric tons of average annual qualifying catch history, and (2) CVs assigned to the LLP license that only fishes in the CGOA Rockfish Program during the calendar year. Additionally, NMFS requires cooperatives to include information about the cooperative's plan to monitor CQ leasing activities, including into
This final rule revises the BSAI Pacific cod and halibut PSC sideboard limits for AFA trawl CVs specified at § 679.64(b)(4)(i) and in Table 40 to part 679 to only apply in the C season. The BSAI Pacific cod sideboard limit is no longer necessary in the A and B seasons because directed fishing in the BSAI for Pacific cod is now managed under the PCTC Program. NMFS removes the halibut PSC sideboard limits for AFA trawl CVs because the PCTC Program establishes lower PSC limits for PCTC Program participants. This final rule does not change the BSAI crab PSC sideboard limit for AFA trawl CVs specified at § 679.64(b)(4)(i) and Table 41 to part 679.
This final rule implements a sideboard limit on the amount of CQ that can be processed by a CP designated on a groundfish LLP license with a BSAI Pacific cod trawl mothership endorsement. This sideboard limit is assigned to each LLP license with a BSAI Pacific cod trawl mothership endorsement that authorizes the CP to act as a mothership in the BSAI Pacific cod fishery as listed in Table 57 to part 679. The Council recommended that each eligible CP acting as a mothership can process up to 125 percent of the eligible CP's processing history during the qualifying years (with no drop year). This at-sea processing sideboard limit is permanently attached to the associated LLP license and applies to the processing activity of any associated vessel.
The data used to calculate the at-sea processing sideboard limits and the resulting sideboard limit assigned to each LLP license is confidential. Each LLP license holder is responsible for coordinating with any cooperative to ensure the applicable processing limit is not exceeded. The at-sea processing sideboard limit is not an allocation and the PCTC Program does not require that this amount be delivered to CPs acting as a mothership, but it provides an upper bound on how much CQ may be delivered.
The at-sea processing sideboard limit is consistent with Amendment 120 (84 FR 70064, December 20, 2019) that restricted the number of CPs that are eligible to operate as a mothership receiving and processing Pacific cod from CVs in the BSAI non-CDQ Pacific cod directed fishery using trawl gear. Under Amendment 120, NMFS issued a BSAI Pacific cod trawl mothership endorsement to two LLP licenses but did not include a limit on the amount of BSAI Pacific cod that can be processed because it was not thought that any one processor could increase their capacity significantly under the LLP management system. However, under this rationalized, slower paced, cooperative fishing Program, the Council and NMFS determined it may be possible for continued mothership processing growth beyond historical patterns, so the Council recommended that a processing limit be established for each LLP license listed in Table 57 to part 679. For more information on processing limits for the mothership sector, please see section 2.9.5 of the Analysis (see
Annually, NMFS will calculate the at-sea processing sideboard limit, expressed as a percentage of the aggregate CQ that would apply to each LLP license with a BSAI Pacific cod trawl mothership endorsement and notify the LLP license holder upon issuance of initial allocations. This final rule does not change the regulations pertaining to the transfer of LLP licenses as specified at § 679.4(k)(7) nor the process to change the designated vessel on an LLP license as specified at § 679.4(k)(7)(vii). Each LLP license subject to this at-sea processing sideboard limit is prohibited from exceeding the processing limit as specified in regulations at § 679.133(b)(2).
The PCTC Program is a LAPP established under the provisions of Section 303A of the Magnuson-Stevens Act. The Magnuson-Stevens Act requires that NMFS collect fees from limited access privilege holders to cover the actual costs of management, data collection and analysis, and enforcement activities associated with LAPPs. Cost recovery fees may not exceed three percent of the ex-vessel value of the fish harvested under the LAPP. NMFS will assess a fee on the ex-vessel value of PCTC Program Pacific cod harvested by cooperatives in the BSAI. Halibut and crab PSC are not subject to a cost recovery fee because PSC cannot be retained for sale and, therefore, does not have an ex-vessel value.
The annual PCTC Program cost recovery process builds on other existing cost recovery requirements implemented under other programs. NMFS annually receives information used to calculate Pacific cod standard prices in the existing BSAI Pacific cod Ex-vessel Volume and Value Report, which is submitted in early November of each year. NMFS will use this existing data source to calculate standard prices used to determine the annual PCTC Program fishery value, which will be used to calculate the annual PCTC Program cost recovery fee percentage. NMFS will begin tracking PCTC Program management costs upon the effective date of this final rule. PCTC Program landings will be made in the A and B seasons, which extends from January 20 to June 10.
The following is an example to illustrate the data NMFS will use in the annual PCTC Program cost recovery process using the year 2025. The PCTC Program fishing year will have landings subject to cost recovery starting on January 20, 2025 and ending on June 10, 2025. NMFS will calculate standard prices derived from the volume and value report submitted by November 10, 2024 for landings made in 2024. Finally, NMFS will use the management costs from July 2024 through June 2025 to calculate the 2025 fee percentage. By no later than July 31, 2025, the Regional Administrator will publish a notice announcing the standard prices and fee percentage in the
NMFS will send each cooperative a fee liability letter to inform each cooperative of the fee percentage applied to the current year's landings and the total amount due (fee liability). The letter will include a summary explaining the fee liability determination including the current fee percentage and details of CQ pounds debited from CQ allocations by permit, date, and prices.
Fees must be paid by August 31 of each year. NMFS requires that all payments be submitted electronically in U.S. dollars through the NMFS Alaska Region website. Instructions for electronic payment are made available on the payment website and through a fee liability summary letter NMFS will mail to the cooperative.
Each cooperative is responsible for paying cost recovery fees assessed on cooperative landings. Failure to pay cost recovery fee liabilities on time will result in NMFS not approving a cooperative's application for a CQ permit the following year until full payment of the fee liability is received by NMFS. NMFS will not issue a CQ permit until NMFS receives a complete application for CQ and confirmation of the full payment of any cost recovery fee liability. Communication with NMFS using the contact information provided in the fee liability letter will provide ample opportunity for cooperative to
The agency may pursue collection of the unpaid fees if the formal determination is not appealed and the account remains unpaid or under-paid 30 days after fees are due (August 31 of each year). The Regional Administrator will continue to prohibit issuance of a CQ permit for any subsequent calendar years until NMFS receives the unpaid fees.
This final rule establishes requirements for observer coverage and other monitoring and enforcement provisions to ensure that fleet-wide harvests under the PCTC Program are effectively monitored and that catches remain within allocations. These requirements include full observer coverage for CVs harvesting CQ (except for CVs delivering unsorted codends to motherships, as explained below) and requirements for communications equipment to facilitate observer data entry and electronic transmission to NMFS. These monitoring provisions are designed to maximize the quality of data used to estimate PCTC Program catch and bycatch, including PSC. Shoreside processors are required to report landings data to NMFS electronically through eLandings. Estimates of at-sea discards and PSC would be derived solely from observer data.
All vessels used to harvest CQ are required to carry equipment to facilitate at-sea electronic transmission of observer data to NMFS. This final rule modifies regulations at § 679.51(e)(1)(iii)(A) to explicitly require vessel operators to allow an observer to use the vessel's existing communications equipment for confidential entry, transmission, and receipt of work-related messages.
All vessels participating in the PCTC Program are required to provide an onboard computer that meets minimum specifications for use by an observer. Currently, NMFS uses and installs custom software (ATLAS) on the vessel's computer, and this software application is used by observers to enter the data they collect. The ATLAS software contains business rules that perform many quality control and data validation checks automatically, which dramatically increases the quality of the preliminary data. After the observer data are entered into the ATLAS software, they are transmitted to NMFS.
At-sea transmission of observer data improves data quality. To minimize impacts to small vessel operators, the requirements for non-AFA trawl CVs to install equipment necessary to facilitate at-sea observer data transmission become effective three years after the effective date of this final rule. Though the installation of equipment to facilitate at-sea data transmission on non-AFA vessels will not be required immediately upon implementation of the Program, this final rule clarifies that if a vessel already has equipment capable of facilitating at-sea data transmission, that equipment must be made available to the observer for use in transmitting work-related messages including collected data.
This final rule requires motherships receiving unsorted codends from a PCTC Program CV to comply with catch monitoring requirements specified at § 679.93(c) for Amendment 80 vessels and CPs. These requirements are already applicable to Amendment 80 CPs acting as motherships and would continue to apply when acting as a mothership to process PCTC Program CQ. This final rule does not alter existing observer coverage requirements for trawl CVs delivering unsorted codends to a mothership in the BSAI. A trawl CV delivering unsorted codends to a mothership is not required to carry an observer because the catch is not brought on board the CV and not available for observer sampling. Rather, the catch is sorted and sampled by observers aboard the mothership.
Motherships receiving deliveries from PCTC Program CVs are required to have at least two observers aboard the mothership, at least one of whom will be required to be endorsed as a lead level 2 observer. More than two observers are required to be aboard if the observer workload restriction would otherwise preclude sampling as required. All PCTC Program catch, except halibut sorted on deck by vessels participating in the halibut deck sorting described at § 679.120, must be weighed on a NMFS-approved scale in compliance with the scale requirements at § 679.28(b). Each haul must be weighed separately and all catch made available for sampling by an observer.
This Program establishes catch monitoring requirements for all shoreside processors receiving deliveries from CVs harvesting PCTC Program CQ. All groundfish landings made to a shoreside processors must be sorted; weighed on a scale approved by the State of Alaska as described at § 679.28(c); and be made available for sampling by an observer, NMFS staff, or any individual authorized by NMFS. Any of these persons must be allowed to test any scale used to weigh groundfish to determine its accuracy.
The Council will review the PCTC Program five years after implementation to determine if the Program is functioning as intended, as required by the Magnuson-Stevens Act. This review and evaluation by the Council will include an assessment of the program objectives. Specifically, the Council will review whether the allocation of Pacific cod is fair and equitable given participation in the fishery, historical investments in and dependence upon the fishery, and employment in the harvesting and processing sectors. The Council will also assess performance of the Program based on changes in annual cooperative formation, changes in product value, the number and distribution of processing facilities, and stability or use of annual processor associations with harvesting cooperatives. The focus of these reviews will be the impact of this action on the harvesting and processing sectors, as well as on fishery dependent communities. The Council will also assess whether the needs for management and enforcement, as well as data collection and analysis, are adequately met.
NMFS received 16 comment letters on the NOA and the proposed rule. NMFS has summarized and responded to the 55 unique comments below. The comments were from individuals, local government representatives, Alaska Native corporations, and industry participants including harvesters and processors.
An LLP license will only be eligible for qualifying catch history in an area if it had the endorsement for that area at the time of harvest. In the event more than one LLP license associated with a vessel had the area endorsement for where the catch occurred, the vessel owner will decide how to assign QS to the LLP licenses. In the event only one LLP license associated with a vessel had the area endorsement for where the catch occurred, despite there being more than one LLP license associated with the vessel at the time fishing began, only the LLP license with the correct area endorsement will receive the resulting qualifying catch history. The vessel owner would not decide how this portion of the QS would be assigned between LLP licenses. For example, say a vessel had qualifying catch history in the BS and AI and was named on two LLP licenses at the time the landing occurred. One LLP license had a BS endorsement and the other LLP license had BS and AI endorsements. In this scenario, fishing history in the BS would be considered shared catch between the two LLP licenses (because both LLP licenses had the appropriate endorsements authorizing the fishing activity) and fishing history in the AI is considered qualifying catch history only for LLP license with the AI endorsement.
A person may own more than one processing facility with qualifying processing history and an FPP or FFP and therefore may receive more than one PCTC Program QS permit. A firm that operated a processing facility that is no longer active would be eligible to receive a PCTC QS permit for a different facility if it holds a valid FPP for that facility and that facility has qualifying processing history.
Note that any processor with an FPP can process CQ. There is not a requirement to hold a PCTC Program QS permit or associate with a cooperative for a processor to receive deliveries and process CQ. Further, any shoreside processor, stationary floating processor, or mothership, including an eligible CP with a BSAI Pacific cod trawl mothership endorsement, may associate with a cooperative regardless of whether or not the processor holds a PCTC Program QS permit. For PCTC Program QS permit holders, the only way to receive benefits from a PCTC Program QS permit is to associate annually with a cooperative.
The QS issued to processors is divided among eligible processors based on the percentage of legal landings of Pacific cod they processed during the A and B seasons during the qualifying years compared to the total legal landings of BSAI Pacific cod processed by all eligible processors. Because processing facilities will be issued QS based on deliveries of this catch history, the Council chose to award QS based on processing history by considering the time frame of 2009-2019, the same time frame used for the majority of CVs. The Council did not recommend a variation in the qualifying years for any processor either in the BS or AI.
The Council and NMFS considered several different options for the range of qualifying years including an option that would have included catch history years from 2004 through 2019. The Council selected 2009 through 2019 as representative of history for the vast majority of CVs because these years reflect current and historical participation and are consistent with the Council's approach to awarding QS based on catch history in other rationalization programs. The Council decided against history earlier than 2009 for the majority of catch history because that was prior to the implementation of Amendment 85 to the BSAI FMP. Amendment 85 established sector allocations for Pacific and separate TAC splits for the Pacific cod stock, which changed fishery management and operations.
The one exception to the qualifying years is for LLP licenses with a transferable AI endorsement that, prior to receiving that AI endorsement through Amendment 92 to the BSAI FMP, participated in the AI parallel fishery from January 20, 2004 through September 13, 2009 without an LLP license. Eight vessels met the criteria for eligibility to receive these transferable AI endorsements based on their fishing activity in parallel fisheries where they did not qualify for an LLP license but still fished in federal waters.
This PCTC Program does not create a closed class of processors who may process CQ. Any shoreside processor, stationary floating processor, mothership, and eligible CPs with a
This provision is different from the set-aside implemented under Amendment 113 but is intended achieve a similar goal. The Council considered maintaining the 5,000 metric tons floor similar to Amendment 113, but ultimately decided against it to maintain the same allocation criteria for all processors and to address concerns about leasing the 5,000 metric tons floor in years when there was not an active Aleutian Islands shoreplant. In addition, all the allocations under the PCTC Program are based on percentages of the TAC, not static numbers. This allows for flexibility in years of low TAC.
However, NMFS maintained in the regulations that the Regional Administrator may remove the delivery requirement for some or all of the projected unused AI CQ set-aside if the Regional Administrator determines that Aleutian Islands shoreplants will not process the entire AI CQ set-aside. NMFS will monitor the cooperative's implementation of the AI CQ set-aside throughout the A and B seasons. NMFS will consider the number and frequency of deliveries to Aleutian Islands shoreplants as well as the season timing and remaining CQ to be harvested. The Regional Administrator will use this information to determine if it is appropriate to remove the delivery requirement for some or all of the projected unused AI CQ set-aside.
In considering whether an allocation is fair and equitable under National Standard 4, NMFS assesses whether the allocation is rationally connected to achieving OY in the fishery, would maximize overall net benefits, and achieve the objectives of the FMP. In addition, NMFS considers the relative impacts of various allocations in light of status quo conditions. Here, the PCTC Program allocates QS to processors based on two objective criteria: (1) historic participation in the fishery and (2) an active processing license that demonstrates ongoing participation. This second criteria provides some reasonable assurance any allocated privileges will be utilized and OY will continue to be achieved in the fishery. There is currently no active processor (with an active FPP) in Adak that could be allocated QS based on historic participation, and operations at the Adak plant have been inconsistent. As a result, under the processor-held QS eligibility criteria alone, AI communities would not receive QS under this program.
However, the Council and NMFS recognize that providing some degree of support to AI communities remains a management objective. Therefore, this rule includes a set-aside for AI communities that would require cooperatives to deliver an amount of annual CQ equal to the lesser of either 12 percent of their A season CQ or the
NMFS disagrees that the PCTC Program allocations are not fair and equitable because they do not place AI communities on the same footing as active processors. The fact that the AI CQ set-aside is based on total A season CQ is immaterial to fairness and equity—that simply provides a basis for calculating the amount of the set-aside in any given year. The set-aside remains in effect through the B season, and it is intended to mandate deliveries of an amount of Pacific cod to Aleutian Islands shoreplants through the B season whenever Aleutian Islands shoreplants are operating.
The AI CQ set-aside is intended to provide for the sustained participation of AI communities in the event there is an operational Aleutian Islands shoreplant in future years. Currently, no operating shoreplant is open to accept deliveries of Pacific cod. Even if the plant were open, without the PCTC Program AI CQ set-aside vessels, would have no obligation to deliver Pacific cod to AI communities. Compared to current conditions, the PCTC Program will provide for the sustained participation of AI communities and minimize adverse economic impacts on AI communities to the extent practicable by ensuring these communities will receive deliveries of Pacific cod in years when an Aleutian Islands shoreplant is in operation and able to take deliveries.
The Council and NMFS took into account the importance of fishery resources to fishing communities, including but not limited to Adak. The PCTC Program is designed to provide for the sustained participation of many different fishing communities (
The Magnuson-Stevens Act LAPP provisions in Section 303A(c)(5)(A) require that the Council ensure fair and equitable initial allocations, including consideration of (1) current and historical harvests, (2) employment in the harvesting and processing sectors, (3) investments in and dependence on the fishery, and (4) the current and historical participation of fishing communities. The Council developed and NMFS implemented the PCTC Program after considerable debate and
Similarly to other business relationships between harvesters and processors, a processing plant will need to offer competitive prices to harvesters. This is true for processing plants in all of Alaska's federal fisheries.
Cooperatives may form annually in association with a federally permitted processor to harvest their CQ. That processor must hold an active FPP or FFP, but they are not required to also hold QS. This extends to all active processors, including potential Aleutian Islands shoreplants. However, processors do not form cooperatives and will not be members of cooperatives under the PCTC Program. In addition, associating with a processor in Adak would not require a cooperative to forego access to processor-held QS. Though each cooperative is required to associate with at least one processor, there is no limit on the number of processors with which a cooperative may associate.
Regarding incentives to deliver to an Aleutian Islands shoreplant, cooperatives are required to annually submit an inter-cooperative agreement that describes, (1) how the AI CQ set-aside would be administered by the cooperatives; (2) how the cooperatives intend to harvest the AI CQ set-aside; and (3) how cooperatives would ensure that CVs less than 60 ft (18.3 m) LOA assigned to an LLP license with a transferable AI trawl endorsement have the opportunity to harvest 10 percent of the AI CQ set-aside for delivery to an Aleutian Islands shoreplant. In years the AI CQ set-aside is in effect, refusing to work with an Aleutian Islands shoreplant could mean the cooperatives forfeit 12 percent of their A season CQ. Therefore, NMFS expects the cooperatives will have an incentive to work with an Aleutian Islands shoreplant.
The Magnuson-Stevens Act requires use caps in development of a LAPP to prevent any person from holding, acquiring, or using an excessive share of limited access privileges. One of the use caps in the PCTC Program is a firm level processor cap that no company may process more than 20 percent of the CQ (§ 679.133(a)(4) and (5)). This processing cap does not apply to Aleutian Islands shoreplants when the AI intent to process is in effect.
Once 12 percent of A season CQ has been landed at an Aleutian Islands shoreplant, cooperatives could continue to deliver to AI communities but would no longer be required to. In contrast, once 88 percent of A season CQ had been delivered elsewhere, vessels could deliver CQ only to an Aleutian Islands shoreplant. If the cooperatives fail to deliver 12 percent of A season CQ to an Aleutian Islands shoreplant, the remainder of the set-aside would remain in place for the B season rather than being rolled over as CQ with no restrictions on delivery. The operating Aleutian Islands shoreplant may accept deliveries of CQ harvested in either the BS or the AI. The cooperatives would monitor the conditions and terms of the inter-cooperative agreement to ensure those provisions are followed.
Failure to come to any agreement would result in NMFS withholding CQ. NMFS will not issue CQ to cooperatives until the inter-cooperative agreement is submitted to NMFS with the cooperative application.
If cooperatives fail to implement the agreement and do not deliver the AI CQ set-aside, the cooperatives would lose access to that portion of the CQ in that year, as it could only be harvested and delivered to an AI shoreplant.
Amendment 122 will not likely restore plant operations, revive the local economy, or reopen the school. NMFS must adequately analyze a solution to provide relief and the environment to allow fish processing to occur in Adak to ensure consequences of existing conditions are identified and mitigated. Amendment 122 will have negative impacts and likely lead to prolonged closure of the processing facility.
The FONSI is incorrect when it states that Amendment 122 would not have any effect on the health of minority or low-income communities. Adak is a small, remote, island community with significant Unangax
These effects should be well-documented in an EIS as these impacts need to be studied in detail in order for NMFS and the Council to know the full and true impacts Amendment 122 will have on Adak.
NMFS acknowledges that there are circumstances unique to Adak and that the processing facility, which is important to the local economy, was relying on Amendment 113. However, after a court struck down Amendment 113 and the plant closed, the Council had to consider means of providing some benefits in the future if a plant were to open again while recognizing there is no operating business that could currently hold QS.
NMFS prepared an Analysis in compliance with the National Environmental Policy Act (NEPA) to determine whether the environmental impact of the proposed action was significant. The Analysis also analyzed social and economic impacts of the alternatives, including access to fishing activity, compared to status quo conditions. Section 2.10.5 of the Analysis discussed the impact of the proposed action on fishing communities. Based on the Analysis, NMFS concluded that Amendment 122 and this final rule will not have a significant impact on the human environment. NMFS has determined that Amendment 122 will not have significant adverse impacts on the City of Adak.
NMFS anticipates there will be beneficial economic effects compared to status quo because the AI CQ set-aside provision is designed to provide Pacific cod deliveries to Adak and Atka in years when there is an operational processor. Because the EA demonstrates there will be no significant impacts on the human environment compared to current conditions—as opposed to in comparison to a different program not currently under consideration—NMFS is not required to prepare an EIS under the requirements of NEPA. Additionally, the Council on Environmental Quality regulations implementing NEPA state in 40 CFR 1502.16(b) that economic or social effects by themselves do not require preparation of an EIS.
Vessels may deliver CQ to a different processor than the processor associated with their cooperative. There is not a closed class of processors eligible to receive deliveries of CQ, meaning a vessel may deliver some or all of the CQ to multiple processors.
NMFS separately collects the information that it needs to manage the fishery. Voluntary cooperative reports to the Council also reduce the time NMFS spends collecting and storing the annual reports and eliminates the need to modify regulations for a mandatory report that are burdensome and do not provide information necessary to manage the fishery.
The Council also directed that each cooperative's annual report provide information on CQ leasing activities and any penalties issued and harvest of CQ resulting from processor-held QS. Additionally, NMFS requires cooperatives to include information about the cooperative's plan to monitor CQ leasing activities and the use of CQ derived from processor held QS within the cooperative, in the Application for PCTC Program CQ.
For the first year, NMFS is making a change to the deadline to accommodate timing concerns. For the calendar year 2023 only, each cooperative must submit the inter-cooperative agreement to NMFS prior to December 31, 2023, described at § 679.131 (a)(4)(viii). Inter-cooperative formation would be allowed and an inter-cooperative agreement would be required to implement the AI set-aside and to allow for efficient transfers of CQ or PSC limits between cooperatives.
Revise the proposed standard to require the same information down to the individual level for any person having an ownership interest in excess of five percent. If based on that information NMFS has any concerns about compliance with ownership and use caps, the Agency can be authorized to request additional ownership information.
This collection of information is necessary to monitor compliance with the use caps on CQ and the ownership caps on QS. NMFS does not currently monitor ownership of publicly traded companies beyond the person (
It is critical that final rule include this flexibility. It is critical that the second mothership be able to provide markets if the first mothership breaks down. It is critical that the two motherships be able to work together as either of them nears its sideboard limit to provide at least a single market for those fishermen who have no delivery alternatives.
The solution is to include in the final rule a provision that allows either of the
This provision is not an allocation, and the Council did not recommend a sideboard that would function as a joint processing sideboard limit for the CP sector. Rather, any remaining CQ that exceeds a vessel's at-sea processing sideboard limit may be delivered to any other processor, including a shoreside processor.
This final rule includes the following substantive changes from the proposed to final rule to address public comment, clarify regulatory language, or to correct inadvertent errors in the proposed regulations. Throughout the regulatory text, NMFS also made technical and grammar edits to correct regulatory cross references, use consistent terms, remove redundancy, and promote clarity.
At § 679.2, NMFS modified the definition for
At § 679.5(c)(6)(v)(J)(
At § 679.7(m)(2)(i), NMFS removed the phrase “while fishing under a CQ permit issued to a PCTC Program cooperative” to ensure that motherships and shoreside processors would not be excluded from the prohibition against failing to follow the catch monitoring requirements. At § 679.7(m)(4)(ii), NMFS clarified that it is unlawful for the manager of a shoreside processor or stationary floating processor to process any groundfish delivered by a CV fishing under the authority of a CQ permit not weighed on a scale approved by the State of Alaska. NMFS removed § 679.7(m)(5)(i), Fail to retain any Pacific cod caught by a vessel when that vessel is fishing under the authority of a CQ permit, because improved retention/improved utilization (IR/IU) regulations at § 679.27(c)(2) already apply. NMFS removed § 679.7(m)(5)(iv) Operate a vessel fishing under the authority of a CQ permit issued to a PCTC Program cooperative and have any Pacific cod aboard the vessel unless those fish were harvested under the authority of a CQ permit, because this prohibition would prevent a mothership from possessing CDQ Program Pacific cod onboard the vessels at the same time as participating in the PCTC Program. This is not necessary because this final rule allows each haul delivered to a mothership to be assigned a management program code. NMFS also removed references to joint and several liability for violations because existing agency regulations at 15 CFR 904.107 address joint and several liability for any civil penalties issued.
NMFS changed to Table 56 to part 679 to include Central GOA dusky rockfish and Central GOA Pacific ocean perch sideboard limits for non-exempt AFA CVs. This regulatory change was inadvertently left out in the proposed rule; however it was correctly described in the preamble to the proposed rule at Section VIII.A and in Table 3.
The proposed rule had erroneously removed the harvesting sideboards for AFA vessels at § 679.64(b)(3)(ii), (iv), and (4)(ii). In the final rule, NMFS added these paragraphs back in the regulations. At § 679.64(b)(3)(ii), NMFS specified that the BSAI Pacific cod harvesting sideboard applies only to C season. At §§ 679.64(b)(3)(iv) and 679.64(b)(4)(ii), NMFS corrected the regulation to state that non-exempt AFA
At § 679.130(e), NMFS added that a PCTC Program processor eligible to receive an initial allocation of QS includes a processor that holds a valid FFP and an LLP license with a BSAI Pacific cod trawl mothership endorsement.
NMFS moved the paragraphs on the non-severability of Pacific cod legal landings and the exception provisions from § 679.130(f)(4) to § 679.130(i)(5), and made changes to the headings for consistency and convention. NMFS added that Pacific cod legal landings are non-severable from transferable AI endorsements. NMFS clarified in § 679.130(i)(5)(i) that, if multiple LLP licenses authorized catch by a vessel, the LLP license holders must submit to NMFS an agreement specifying the amount of shared catch history to assign to each LLP license with the application for PCTC Program QS.
At § 679.130(j)(3), NMFS clarified several transfer requirements for processor-held PCTC Program QS permits. First, processors that received an initial QS allocation must have an active FPP or FFP to receive benefits from their QS through associating with a cooperative. Second, any transfer of QS in excess of the ownership cap must be to another PCTC Program QS permit holder who remains below the ownership cap or a new processor with an active FPP. PCTC Program QS permits issued to shoreside processors can only be transferred to other shoreside processors that hold an FPP.
NMFS also added language to specify transfer restrictions for PCTC Program QS permits initially issued to an FFP holder. CPs acting as motherships may transfer their QS permit to the onshore or offshore sector, subject to eligibility requirements under Amendment 120 to limit CPs acting as motherships (
At § 679.131(a)(1)(i), NMFS clarified that QS assigned to LLP licenses and PCTC Program QS permits held by a processor must be assigned to a cooperative through a CQ permit to use the CQ derived from that QS to catch Pacific cod, crab PSC, or halibut PSC assigned to the PCTC Program. NMFS removed the terms “process or receive” because the PCTC Program does not require a processor to hold QS or CQ to process or receive Pacific cod from cooperatives.
At § 679.131(a)(4)(viii), NMFS modified the text to accommodate cooperative formation prior to the first year of the PCTC Program in response to comment 49. NMFS will allow, for the calendar year 2023 only, for each cooperative to submit the inter-cooperative agreement to NMFS prior to December 31, 2023. This single year variation will give cooperatives additional time to come to an agreement after publication of the final rule. In all years after 2023, the inter-cooperative agreement must be submitted with the cooperative application no later than November 1 of each calendar year. The inter-cooperative agreement is required before NMFS issues CQ to each cooperative and fishing begins in A season (January 20). The inter-cooperative agreement must be submitted regardless of whether an Adak or Atka files a notice of intent to process with NMFS per § 679.132(b).
At § 679.131(i), NMFS modified language to reflect language in other catch share programs when referring to the NMFS online system used for inter-cooperative transfers. Instead of being specific to the current program, eFish, NMFS used “online system” to account for any future application naming conventions.
At § 679.131(j)(3)(i), NMFS clarified that in order for a cooperative to associate with a processor with an FFP, the vessel must be named on an LLP license with a BSAI Pacific cod trawl mothership endorsement in response to comment 40.
At § 679.132(b)(5)(ii), NMFS modified this text to clarify that cooperatives must ensure that the PCTC Program harvests from the BS do not exceed the minimum AI CQ set-aside.
At § 679.132(c)(3) and (4), NMFS clarified language pertaining to the Regional Administrator removing the delivery requirement and the process for withdrawing a notice of intent to process, in response to comments 17 and 18. NMFS removed language at § 679.132(c)(4) regarding removing the projected unused AI set-aside to PCTC Program cooperatives in proportion to the amount of CQ that each PCTC Program cooperative received in the initial allocation of CQ for the remainder of the A and B seasons. NMFS maintained in the regulations that the Regional Administrator may remove the delivery requirement for some or all of the projected unused AI CQ set-aside if the Regional Administrator determines that Aleutian Islands shoreplants will not process the entire AI CQ set-aside.
NMFS also removed language limiting when the City of Adak or City of Atka could withdraw their notice of intent to process. A notice of intent to process may be withdrawn at any time after it is submitted to NMFS. NMFS clarified that all notices of intent must be withdrawn for NMFS to remove the delivery requirements applicable when the AI CQ set-aside is in effect.
At § 679.133(a)(6)(iv), NMFS added language to exempt an Aleutian Islands shoreplant from processor use caps when the AI CQ set-aside is in effect.
At § 679.133(b)(2), based on comment 55, NMFS modified the text to reflect the Council recommendation that NMFS establish a sideboard limit for each LLP license with a BSAI Pacific cod trawl mothership endorsement not to exceed 125 percent of the CP's processing history. Processing Pacific cod by a CP acting as a mothership is limited by eligibility requirements under Amendment 120.
At § 679.135(d)(2)(iv), NMFS clarified that if a cooperative does not pay its cost recovery fees and a member of that cooperative leaves and joins another cooperative, NMFS will withhold any CQ generated by that person's QS until the original cooperative pays its delinquent cost recovery fee.
Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS Assistant Administrator (AA) has determined that this final rule is consistent with Amendment 122 to the BSAI FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.
NMFS prepared an environmental assessment (EA) for this action and the AA concluded that there will be no significant impact on the human environment as a result of this rule. This action creates a LAPP to rationalize the BSAI Pacific cod trawl CV sector A and B seasons but will not result in significant changes to amount, timing, or location of total harvest, or result in other changes that would significantly impact the quality of the human environment. A copy of the EA is available from NMFS (see
This final rule has been determined to be not significant for the purposes of Executive Order 12866.
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a final regulatory
This FRFA incorporates the initial regulatory flexibility analysis (IRFA), a summary of the significant issues raised by the public comments in response to the IRFA, NMFS' responses to those comments, and a summary of the analyses completed to support this action.
Section 604 of the Regulatory Flexibility Act (RFA) requires that, when an agency promulgates a final rule under section 553 of Title 5 of the U.S. Code, after being required by that section or any other law to publish a general notice of proposed rulemaking, the agency shall prepare a FRFA. Section 604 describes the required contents of a FRFA: (1) a statement of the need for and objectives of the rule; (2) a statement of the significant issues raised by the public comments in response to the IRFA, a statement of the assessment of the agency of such issues, and a statement of any changes made to the proposed rule as a result of such comments; (3) the response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA) in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments; (4) a description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available; (5) a description of the projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and (6) a description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in this final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.
A description of this final rule and the need for and objectives of this rule are contained in the preamble to this final rule and the preamble to the proposed rule (88 FR 8592, February 9, 2023) and are not repeated here.
An IRFA was prepared in the Classification section of the preamble to the proposed rule. The Chief Counsel for Advocacy of the SBA did not file any comments on the proposed rule. NMFS received no comments specifically on the IRFA.
This final rule directly regulates owners and operators of harvesters and processors that participate in the BSAI trawl CV Pacific cod fishery including (1) trawl CVs, (2) shoreside processors, (3) floating processors, (4) trawl CPs acting as motherships, and (5) small government jurisdictions in the AI. This rule may also impact observer providers that support the BSAI trawl CV Pacific cod fishery, but they are indirectly impacted. Therefore, observer providers are not considered directly regulated entities in the IRFA prepared for this action.
A small business includes any firm that is independently owned and operated and not dominant in its field of operation. Businesses classified as primarily engaged in commercial fishing are considered small entities if they have less than 11 million dollars in annual gross receipts for all businesses in the commercial fishing industry (NAICS 11411). The RFA requires consideration of affiliations between entities for the purpose of assessing whether an entity is classified as small. The AFA pollock cooperatives, which make up a subset of the entities regulated under this final rule, are types of affiliation between entities. All of the AFA cooperatives have gross annual revenues that are substantially greater than 11 million dollars. Therefore, NMFS considers members in these cooperatives to be “affiliated” large (non-small) entities for RFA purposes. The eligible AFA entities are large entities based on those affiliations. The remaining 13 trawl CVs would be considered small entities. This count includes five trawl CVs that are greater than 60 ft (18.3 m) LOA and eight CVs that are less than 60 ft (18.3 m) LOA with a transferable AI endorsement.
Though CPs engage in both fish harvesting and fish processing activities, since at least 1993, NMFS Alaska Region has considered CPs to be predominantly engaged in fish harvesting rather than fish processing. Under this classification, the threshold of 11 million dollars in annual gross receipts is the appropriate threshold to apply to identify any CPs that are small entities. All the CPs that are directed regulated by this action do not meet the SBA definition of a small entity due to cooperative affiliation.
Under the SBA's size standard for “seafood product preparation and packaging” (NAICS code 311710), seafood processors are considered small entities if they are independently owned and operated, not dominant in their field of operation, and have a combined annual employment of fewer than 750 employees. Of the plants that took deliveries of Pacific cod from 2017 through 2019 that are currently in business, one firm would be considered a small entity.
The RFA defines “small governmental jurisdiction” as the government of a city, county, town, school district or special district with a population of less than 50,000 people. Two small governmental jurisdictions are directly regulated under the action. Adak and Atka would be required to submit a notice of their intent to process to NMFS to receive a portion of the AI CQ set-aside described in Section V of this preamble. The set-aside amount is intended to benefit the AI communities, and participation by these communities is voluntary.
This action implements new recordkeeping, reporting, and compliance requirements and revises existing requirements. These requirements are necessary for the management and monitoring of the PCTC Program.
All PCTC program participants are required to provide additional
To participate in the Program, persons are required to complete application forms, transfer forms, reporting requirements, and monitoring requirements. These requirements impose costs on small entities in gathering the required information and completing the information collections.
NMFS has estimated the costs of complying with the requirements based on information such as the burden hours per response, number of responses per year, and wage rate estimates from industry or the Bureau of Labor Statistics. Persons are required to complete many of the requirements at the start of the Program, such as the application to participate in the Program. Persons are required to complete some requirements every year, such as the cooperative application. Additionally, reporting for purposes of catch accounting or transfer of CQ among cooperatives is completed more frequently. The impacts of these changes are described in more detail in Sections 2.10.7 and 2.10.12 of the Analysis prepared for this final rule (see
New requirements for the PCTC Program include the Application for PCTC Program QS, applications for transfer of QS during the 90-day transfer window, the Application for PCTC Program CQ, the Application for Transfer of PCTC Program QS for Processors, the AI notice of intent to process, inter-cooperative transfers, the appeals process, and cost recovery fee.
The initial allocation process requires all eligible harvesters and processors who want to participate in the PCTC Program to submit an Application for PCTC Program QS to receive QS. This application is needed to determine the allocation of QS to eligible LLP licenses and to eligible processors. For harvesters, NMFS will use the Catch Accounting System data to determine how much Pacific cod was harvested using the LLP license authorizing a CV and ask the current LLP license holder to verify the catch estimate. For processors NMFS will use the Catch Accounting System data to determine the amount of qualifying Pacific cod delivered to the processor, and the processors will verify the estimates. That information will also be used to determine whether the QS holder complies with the ownership and use cap limitations imposed under the program. Allowing persons to harvest a given percentage of the fishery is anticipated to allow harvesters to avoid fishing in bad weather conditions, improving safety of the fleet. The fleet is also expected to be able to deliver a consistently higher quality product. Quality improvements are expected to result from shorter times between harvest and processing and less damage to the fish in the holds by not fishing in bad weather.
In addition, the initial allocation process has a 90-day transfer window to allow persons to transfer QS between non-exempt AFA LLP licenses under certain conditions to honor private contracts and agreements associated with harvest of the AFA Pacific cod sideboard limits. This transfer window allows persons to resolve any disputes or request QS transfers between LLP licenses. After the 90-day window for these transfers has closed, QS cannot be separated from an LLP license or transferable AI endorsement unless necessary to prevent exceedances of the ownership or use caps, or if required by an operation of law.
The PCTC Program includes a standardized appeals process. The appeals process provides participants the required opportunity to dispute the catch and processing history records in the Catch Accounting System that are used to determine a person's allocation of QS. The appeals process is in addition to the 90-day transfer window discussed above and open to all participants.
Each year the cooperative manager for each cooperative will be required to submit an Application for PCTC Program CQ that identifies the LLP licenses and processor QS permits named to the cooperative and the vessels allowed to harvest the CQ. This application includes the inter-cooperative agreement that defines how the AI CQ set-aside will be harvested during years it is in effect. The Council requests that cooperatives submit an annual cooperative report to the Council.
The Application of Transfer of PCTC Program QS for Processors will be required for eligible processors to transfer their QS to other processors. Processor QS assigned to a processor-held PCTC Program QS permit established under the PCTC program may be transferred through the NMFS online system with approval by NMFS.
The PCTC program requires the cooperatives to set aside 12 percent of their A season CQ allocation for delivery to Aleutian Islands shoreplants in years that a representative from the City of Adak or the City of Atka files a valid intent to process with NMFS. The notice of intent to process is necessary for NMFS and the cooperatives to know whether the regulations established for the set-aside are in effect during the A and B seasons. If a notice of intent to process is filed, it also triggers additional reporting in the cooperative report to the Council.
The PCTC Program is a LAPP, and therefore NMFS is required to collect fees for the PCTC Program under sections 303A and 304(d)(2) of the Magnuson-Stevens Act. Section 304(d)(2) of the Magnuson-Stevens Act limits the cost recovery fee so that it may not exceed 3 percent of the ex-vessel value of the Pacific cod harvested under the PCTC Program. Ex-vessel volume and value reports currently being used to establish an average annual price for BSAI trawl caught Pacific cod will be used to establish the standard price, and no additional collection of price data will be necessary. NMFS uses this information to meet the required provisions in sections 303A and 304(d) of the Magnuson-Stevens Act that require NMFS to collect these fees associated with recoverable costs.
In addition to the new requirements, the PCTC Program revises existing requirements.
If LLP license holders want to transfer their LLP license or transferable AI endorsement and the associated PCTC Program QS, they must fill out an Application to Transfer a Groundfish or Crab LLP License. This form is revised to collect information on the PCTC QS transaction, including QS prices, amount transferred, and whether there are multiple transferees in the event ownership caps would otherwise be exceeded. Information is added to the LLP license transfer form identifying how PCTC QS would be distributed to the other LLP licenses if the original holder of the LLP license was assigned QS that was over the 5 percent ownership cap and qualified for the legacy exemption.
The PCTC Program requires updating ATLAS data transmission to enable the timely electronic entry, archival, and transmission of observer data for at-sea operations and shorebased processing plants.
This rule requires that all vessels submit logbooks when fishing in the PCTC program. All CVs greater than or equal to 60 ft (18.3 m) LOA currently submit logbooks. Some CVs that participate in the AI Pacific cod fishery
The Council and NMFS considered an extensive and elaborate suite of alternatives, options, and sub-options as it designed and evaluated a quota share program for the BSAI Pacific cod trawl CV sector, including a “no action” alternative. The Analysis presents the complete set of alternatives, in various combinations with the complex suite of elements and options. The Council selected a preferred alternative that includes a suite of elements and options to manage the BSAI trawl CV Pacific cod sector. The alternatives included no action (Alternative 1) and action to implement a cooperative-style LAPP for the BSAI Pacific cod trawl CV sector (Alternatives 2a and 2b and Alternative 3, which is the Council's recommended action).
In general, the recommended LAPP includes allocations of QS to groundfish LLP licenses based on the legal landings of targeted BSAI Pacific cod in a Federal fishery during a range of qualifying years included in the options. The action also allocates QS to a processors based on processing history of legal landings of BSAI Pacific cod harvested in a Federal fishery and deducted from the BSAI trawl CV sector apportionment during the qualifying years. One alternative considered but not selected included gear conversion, which would have authorized BSAI Pacific cod quota associated with trawl CV LLP licenses to be fished annually by CVs using pot gear. In the end, the Council did not include the gear conversion element in its preferred alternative due to concerns over the possibility of high crab PSC in pot gear for red king crab (Zone 1) and
A second option considered but removed was a cooperative formation approach based on existing AFA and non-AFA membership. The AFA vessels and non-AFA vessels would have formed their cooperatives independently of each other. A person owning both an AFA vessel and non-AFA vessel would have been required to join the AFA cooperative for the AFA vessel and the non-AFA cooperative for the non-AFA vessel. Allowing only an AFA and non-AFA cooperative was rejected by the Council after considering the obstacles it would create under the various program elements being considered by the Council and withdrawal of industry support for the option. Integrating multiple processors, the potential limitation on competition, and reduced cooperative formation choice were ultimately the issues associated with the two cooperative approach that led to it being removed from consideration. The recommended action allows a cooperative to associate with one or more processor(s). This approach reduces antitrust concerns that were raised to the Council under the AFA and non-AFA cooperative structure.
The alternatives discussed in this section constitute the suite of “significant alternatives,” under this action, for purposes of the RFA. Based upon the best available scientific data, and consideration of the objectives of this action, NMFS did not identify alternatives to the action that have the potential to accomplish the stated objectives of the Magnuson-Stevens Act and any other applicable statutes and that have the potential to minimize any significant adverse economic impact of the rule on small entities. After public process, the Council concluded that the PCTC Program would best accomplish the stated objectives articulated in the problem statement and applicable statutes, and minimize to the extent practicable adverse economic impacts on the universe of directly regulated small entities.
This final rule contains collection of information requirements subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This final rule contains new collections of information for the PCTC Program under new OMB Control Number 0648-0811 and revises requirements for collections of information under existing OMB Control Numbers 0648-0213 (Alaska Region Logbook and Activity Family of Forms); -0318 (North Pacific Observer Program); -0334 (Alaska License Limitation Program for Groundfish, Crab, and Scallops); -0711 (Alaska Cost Recovery and Fee Programs); -0678 (North Pacific Fishery Management Council Cooperative Annual Reports); and -0515 (Alaska Interagency Electronic Reporting System). However, because the collection of information authorized by OMB Control Number 0648-0515 is concurrently being revised in a separate action, the revisions to that collection of information in this rule will be assigned a temporary control number, 0648-0812, that will later be merged into 0648-0515. The existing collections of information under OMB Control Numbers 0648-0330 (NMFS Alaska Region Scale & Catch Weighing Requirements) and 0648-0445 (NMFS Alaska Region Vessel Monitoring System (VMS) Program) will also provide information needed to implement the PCTC Program and will continue to apply. This rule does not make changes to these two collections of information. The public reporting burden estimates provided below for these collections of information include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
This rule creates new collection of information requirements to implement PCTC Program. The new collections of information authorize applications and processes used by the PCTC Program cooperatives, processors, LLP license holders, and community representatives to apply for permits, to transfer CQ and QS, to manage fishing and processor activity, and to appeal agency decisions. These new collections are necessary for NMFS to implement, monitor, and enforce the PCTC Program. The data is used to ensure that program participants adhere to all harvesting, processing, ownership, and use limits.
The public reporting burden per individual response is estimated to average 2 hours for the Application for Pacific Cod Trawl Cooperative Program Quota Share, 2 hours for the Application for Pacific Cod Trawl Cooperative Program Cooperative Quota, 2 hours for the Application for Transfer of Pacific Cod Trawl Cooperative Program Quota Share for Processors, 10 minutes for the Application for Inter-Cooperative Transfer of Cooperative Quota, 30 minutes for the notification of intent to process Aleutian Islands Pacific cod, 2 hours for the application to transfer QS during the 90-day transfer window for non-exempt AFA LLP license holders, and 4 hours for appeals.
This rule revises the existing requirements for the collection of information 0648-0213 related to logbooks because CVs participating in the PCTC Program are required to submit a CV trawl gear daily fishing logbook. Some CVs less than 60 ft (18.3 m) LOA that do not currently submit this logbook will need to begin doing so
This rule revises the existing requirements for the collection of information 0648-0318 related to the North Pacific Observer Program because all vessels participating in the PCTC program are required to have a computer onboard and use ATLAS to submit observer data to NMFS. This increases the number of vessels that need to provide observers access to a computer with ATLAS installed. PCTC Program participants have up to three years to install communication equipment to facilitate electronic transmission of observer data to NMFS. Most vessels comply with this requirement by allowing NMFS to install ATLAS on an existing computer on the vessel. Many, if not all, of the vessels that will need to install ATLAS already have a computer that meets the minimum requirements, and they will incur costs only if they choose to purchase an additional computer. Estimated costs to purchase and install the data transmission system vary from about $5,000 to $37,000, depending on what a vessel needs to install. This rule also revises the existing requirements in this collection because CVs that choose to participate in the PCTC Program are required to be in the full observer coverage category instead of the partial observer coverage category. These CVs will no longer be required to use ODDS to log fishing trips; therefore, this decreases the number of respondents that log trips in ODDS. The public reporting burden per individual response is estimated to average 15 minutes to log a trip in ODDS.
This rule revises the existing requirements for the collection of information 0648-0334 related to the LLP license and the transferable AI endorsement to include PCTC Program QS information on the groundfish/crab LLP license transfer application form. The public reporting burden per individual response is estimated to average 1 hour for the Application for Transfer LLP Groundfish/Crab License.
This rule revises the collection of information under OMB Control Number 0648-0515 associated with electronic reporting. However, due to multiple concurrent actions for that collection, the collection-of-information requirements will be assigned a temporary control number, 0648-0812, that will later be merged into OMB Control Number 0648-0515.
PCTC Program participants need to use eLandings to submit landings and production information, which is approved under control number OMB 0648-0515. CVs participating in the PCTC Program are required to submit a CV trawl gear daily fishing logbook and may use either the electronic logbook approved under OMB Control Number 0648-0515 or the paper logbook approved under OMB Control Number 0648-0213. CVs greater than 60 ft (18.3 m) LOA are already required to maintain logbooks but this is a new requirement for CVs less than 60 ft (18.3 m) LOA. Some CVs less than 60 ft (18.3 m) LOA that do not currently submit the logbook will need to begin doing so. The temporary control number covers the revisions necessary to -0515 for the CVs that choose to submit electronic logbooks. The PCTC Program does not change the information collected by this logbook but does increase the number of participants required to submit it. The public reporting burden per individual response is estimated to average 15 minutes for the CV electronic logbook.
A change from the proposed rule to the final rule adds a new reporting requirement for the mothership daily cumulative production logbook, which is approved under OMB Control Number 0648-0515. This revision to -0515 for the mothership logbook is included in this temporary control number. No changes are needed to the respondents or responses for the mothership logbook because all expected respondents are currently submitting it. No change was made to the public reporting burden because the estimate allows for differences in the time needed to complete and submit the information. The public reporting burden per individual response is estimated to average 15 minutes for the mothership logbook.
This rule revises the existing collection of information under 0648-0678 because the Council requests PCTC Program cooperatives submit a voluntary annual cooperative report to the Council. This revision adds the PCTC Program cooperatives as new respondents that will submit an annual cooperative report. The public reporting burden per individual response is estimated to average 18 hours for the PCTC Program annual report.
This rule revises the existing requirements for the collection of information 0648-0711 related to cost recovery because the PCTC Program is a LAPP that is subject to a cost recovery fee under Magnuson-Stevens Act 303A. This revision adds the PCTC Program cooperatives as new respondents that will submit a cost recovery fee to NMFS. The rule requires PCTC Program processors to submit an annual Pacific Cod Ex-vessel Volume and Value Report; however, this does not change the respondents or responses for this report because all expected respondents are currently submitting it. The public reporting burden per individual response is estimated to average 1 minute for the PCTC cost recovery fee and 1 minute for the Pacific Cod Ex-vessel Volume and Value Report.
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. Written comments and recommendations for these information collections should be submitted on the following website:
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.
Reporting and recordkeeping requirements.
Alaska, Fisheries, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, NMFS amends 15 CFR part 902 and 50 CFR part 679 as follows:
44 U.S.C. 3501
The revisions and additions read as follows:
(b) * * *
16 U.S.C. 773
The additions and revisions read as follows:
(1)
(2)
(3)
(i) Controls 10 percent or more of the voting stock of another corporation or business concern;
(ii) Has the authority to direct the business of the entity that owns the fishing vessel or processor. The authority to direct the business of the entity does not include the right to simply participate in the direction of the business activities of an entity that owns a fishing vessel or processor;
(iii) Has the authority in the ordinary course of business to limit the actions of or to replace the chief executive officer, a majority of the board of directors, any general partner or any person serving in a management capacity of an entity that holds 10 percent or greater interest in a fishing vessel or processor. Standard rights of minority shareholders to restrict the actions of the entity are not included in this definition of control provided they are unrelated to day-to-day business activities. These rights include provisions to require the consent of the minority shareholder to sell all or substantially all the assets, to enter into a different business, to contract with the major investors or their affiliates, or to guarantee the obligations of majority investors or their affiliates;
(iv) Has the authority to direct the transfer, operation, or manning of a fishing vessel or processor. The authority to direct the transfer, operation, or manning of a vessel or processor does not include the right to simply participate in such activities;
(v) Has the authority to control the management of or to be a controlling factor in the entity that holds 10 percent or greater interest in a fishing vessel or processor;
(vi) Absorbs all the costs and normal business risks associated with ownership and operation of a fishing vessel or processor;
(vii) Has the responsibility to procure insurance on the fishing vessel or processor, or assumes any liability in excess of insurance coverage;
(viii) Has the authority to control a fishery cooperative through 10 percent or greater ownership or control over a majority of the vessels in the cooperative, has the authority to appoint, remove, or limit the actions of or replace the chief executive officer of the cooperative, or has the authority to appoint, remove, or limit the actions of a majority of the board of directors of the cooperative. In such instance, all members of the cooperative are considered affiliates of the individual, corporation, or other business concern that exerts control over the cooperative; or
(ix) Has the ability through any other means whatsoever to control the entity that holds 10 percent or greater interest in a fishing vessel or processor.
(i) The annual catch limit of an Amendment 80 species that may be caught by an Amendment 80 cooperative while fishing under a CQ permit;
(ii) The amount of annual halibut and crab PSC that may be used by an Amendment 80 cooperative while fishing under a CQ permit.
(2)
(i) The annual catch limit of a rockfish primary species or rockfish secondary species that may be harvested by a rockfish cooperative while fishing under a CQ permit;
(ii) The amount of annual halibut PSC that may be used by a rockfish cooperative in the Central GOA while fishing under a CQ permit (see rockfish halibut PSC in this section).
(3)
(i) The annual catch limit of Pacific cod that may be caught by a PCTC Program cooperative while fishing under a CQ permit;
(ii) The amount of annual halibut and crab PSC that may be used by a PCTC Program cooperative while fishing under a CQ permit.
(a) * * *
(1) * * *
(k) * * *
(16)
(q)
(ii) A CQ permit is valid only until the end of the BSAI Pacific cod B season for the year in which the CQ permit is issued;
(iii) A legible copy of a valid CQ permit must be carried on board the vessel(s) used by the PCTC Program cooperative.
(2)
(ii) A processor may associate the QS assigned to the PCTC Program QS permit with a PCTC Program cooperative as described at § 679.131.
The additions and revision read as follows:
(a) * * *
(1) * * *
(iii) * * *
(G) PCTC Program Cooperative number subpart L to this part.
(4) * * *
(i)
(c) * * *
(6) * * *
(v) * * *
(J) * * *
(
(
(x)
(m)
(ii) Use a vessel to catch or receive a PCTC Program cooperative's Pacific cod when that vessel was not listed on the Application for PCTC Program CQ.
(iii) Fail to comply with any other requirement or restriction specified in this part or violate any provision of this part.
(2)
(ii) Operate a vessel that is subject to a sideboard limit detailed at § 679.133, as applicable, and fail to follow the catch monitoring requirements detailed at § 679.134.
(iii) Exceed the ownership or use caps specified at § 679.133.
(3)
(ii) Operate a vessel that is subject to a sideboard limit detailed at § 679.133 and fail to use functioning VMS equipment as described at § 679.134.
(4)
(ii) For the manager of a shoreside processor or stationary floating processor to process any groundfish delivered by a catcher vessel fishing under the authority of a CQ permit not weighed on a scale approved by the State of Alaska.
(iii) Fail to submit a timely and complete Pacific cod Ex-vessel Volume and Value Report as required under § 679.5(u)(1).
(iv) Use a catcher/processor designated on an LLP license with a BSAI Pacific cod trawl mothership endorsement to sort, process, or discard any species, except halibut sorted on deck by vessels participating in halibut deck sorting described at § 679.120, before the total catch is weighed on a
(v) Use a catcher/processor designated on an LLP license with a BSAI Pacific cod trawl mothership endorsement to process Pacific cod in excess of the at-sea processing sideboard limit defined at § 679.133(b)(2) and assigned to the LLP license.
(vi) Process an amount of Pacific cod that exceeds use caps specified at § 679.133.
(5)
(ii) Begin a fishing trip for PCTC Program Pacific cod with any vessel named in a PCTC Program cooperative if the total amount of unharvested PCTC Program Pacific cod on a CQ permit currently held by that cooperative is zero or less.
(iii) Have a negative balance in a CQ account after the end of the calendar year for which a CQ permit was issued.
(iv) Fail to submit a PCTC Program cost recovery fee payment as required under § 679.135.
(a) * * *
(7) * * *
(viii)
(e) * * *
(3) * * *
(vi) For a catcher/processor with a BSAI Pacific cod trawl mothership endorsement that receives an unsorted codend delivered by a catcher vessel authorized to harvest and that is assigned to PCTC Program Pacific cod, the maximum retainable amount for each species or species group applies at any time for the duration of the fishing trip and must be applied to only the PCTC Program hauls during a fishing trip.
(b) * * *
(1) * * *
(ii) * * *
(B)
(
(2) * * *
(iii) * * *
(A)
(B)
(4) * * *
(i) * * *
(B)
(e) * * *
(3) * * *
(iv)
(E)
(7) * * *
(v) This paragraph (e)(7) does not apply to apportionments to the PCTC Program as described at § 679.130.
The revisions and additions read as follows:
(a) * * *
(2) * * *
(i) * * *
(C) * * *
(
(
(vi) * * *
(G)
(e) * * *
(1) * * *
(iii) * * *
(A)
(B)
(D)
The revisions read as follows:
(b) * * *
(3) * * *
(ii)
(iv)
(4) * * *
(ii) The non-exempt AFA catcher vessels and the associated LLP licenses PSC bycatch limit for halibut in the GOA will be an annual amount based on a static ratio of 0.072 derived from the aggregate retained groundfish catch by non-exempt AFA CVs in each PSC target category from 2009 through 2019.
(a)
(2) The following fishing seasons apply to fishing under this subpart subject to other provisions of this part:
(i) Fishing by vessels participating in a cooperative is authorized for the PCTC Program A season from 1200 hours, A.l.t., January 20 through 1200 hours, A.l.t., April 1.
(ii) Fishing by vessels participating in a cooperative is authorized for the PCTC Program B season from 1200 hours, A.l.t., April 1 through 1200 hours, A.l.t., June 10.
(iii) The PCTC Program does not apply to the Pacific cod trawl catcher vessel C season, as defined at § 679.23(e)(5)(ii)(C)(
(b)
(1) Was made in compliance with State and Federal regulations in effect at that time; and
(2) Was recorded on a State of Alaska fish ticket for shoreside deliveries or in observer data for mothership deliveries; and
(3) Was the predominately retained species on the fishing trip; and
(4) Was authorized by:
(i) An LLP license and caught in the A or B season of a Federal or parallel groundfish fishery during the qualifying years 2009 through 2019; or
(ii) An LLP license with a transferable AI endorsement prior to receiving the AI endorsement and was caught in a parallel fishery between January 20, 2004, and September 13, 2009; and
(5) Was not made in a CDQ fishery; and
(6) Was not made in a State of Alaska GHL fishery.
(c)
(d)
(2) NMFS will assign Pacific cod legal landings to an LLP license that meets the requirements of paragraph (b) of this section.
(3) NMFS will reissue LLP licenses to eligible harvesters that specify the number of PCTC Program QS units assigned to their LLP licenses.
(e)
(f)
(2) NMFS will assign Pacific cod processing history based on legal landings delivered to a processor authorized by an FPP or FFP that meets the requirements of this section.
(3) For the initial allocation of PCTC Program QS, qualifying processing history is attached to the processor at the time legal landings were received.
(4) An eligible processor will be issued a PCTC Program QS permit that specifies the number of QS units assigned to that processor.
(g)
(i) The amount of Pacific cod legal landings as defined at in this section assigned to an LLP license;
(ii) The amount of Pacific cod processing history of legal landings as defined at § 679.130 assigned to an FPP or FFP;
(iii) The amount of PCTC Program QS resulting from Pacific cod legal landings assigned to an LLP license held by an eligible harvester, or QS resulting from Pacific cod processing history assigned to an FPP or FFP held by an eligible processor;
(iv) The amount of Pacific cod sideboard ratios assigned to LLP licenses;
(v) Eligibility to participate in the PCTC Program; and
(vi) QS assigned to PCTC Program participants.
(2) The PCTC Program official record is presumed to be correct. An applicant participating in the PCTC Program has the burden to prove otherwise.
(3) Only Pacific cod legal landings and processing history of legal landings, as described in paragraph (b) of this section, shall be used to establish an allocation of PCTC Program QS. Evidence of legal landings shall be limited to documentation of state or Federal catch reports that indicate the amount of Pacific cod harvested, the groundfish reporting area in which it was caught, the vessel and gear type used to catch it, and the date of harvesting, landing, or reporting.
(h)
(2)
(3)
(i) Additional required documentation for LLP license holders. Vessel names, ADF&G vessel registration numbers, and USCG documentation numbers of all vessels that fished under the authority of each LLP license, including dates when landings were made under the authority of an LLP license from 2009 through 2019 or under the authority of an LLP license prior to earning a transferable AI endorsement from 2004-2019;
(ii) Additional required documentation for processors. Processor name, FFP or FPP number, and location of processing plant, including dates when landings were made under the authority of an LLP license from 2009 through 2019;
(iii) The applicant must sign and date the application certifying under penalty of perjury that all information is true and correct. If the application is completed by a designated representative, then explicit authorization signed by the applicant must accompany the application.
(4)
(5)
(i)
(1)
(i) Determine the Pacific cod legal landings for each LLP license for each calendar year from 2009 through 2019.
(ii) Select the 10 calendar years from the qualifying time period with the highest amount of legal landings for each LLP license, including years with zero metric tons if necessary.
(iii) Sum the Pacific cod legal landings of the highest 10 years for each LLP license. This yields the PCTC
(2)
(i) Determine the Pacific cod legal landings for each LLP license with a transferable AI endorsement for each calendar year from 2004 through 2019.
(ii) Select the fifteen calendar years that yield the highest amount of legal landings for each LLP license, including years with zero metric tons if necessary.
(iii) Sum the Pacific cod legal landings of the highest fifteen years for each LLP license with transferable AI endorsement. This yields the PCTC Program QS units (in metric tons) for each LLP license with a transferable AI endorsement.
(3)
(4)
(i) Sum the Pacific cod legal landings delivered to each FPP or FFP for each calendar year from 2009 through 2019;
(ii) Select the ten calendar years that yield the highest amount of legal landings delivered to each FPP or FFP, including years with zero metric tons if necessary;
(iii) Sum the Pacific cod legal landings of the highest 10 years for each FPP or FFP. This yields the QS units for each eligible processor, which will be specified on a PCTC Program QS permit for that processor;
(iv) The PCTC Program QS pool for processors is the sum of all QS units assigned to processors in metric tons based on the PCTC official record as of December 31, 2022.
(5)
(i) If multiple LLP licenses authorized catch by a vessel, the LLP license holders must submit to NMFS an agreement specifying the amount of shared catch history to assign to each LLP license with the application for PCTC Program QS. In the absence of an agreement, the owner of the vessel that made the catch will assign qualifying catch history to each LLP license.
(ii) For the LLP licenses associated with non-exempt AFA catcher vessels, within 90 days of initial issuance of PCTC Program QS, the owners of the LLP licenses that are associated with AFA non-exempt catcher vessels that engaged in fish transfer agreements during the qualifying periods may transfer PCTC Program QS to other LLP licenses associated with AFA non-exempt vessels, subject to the ownership cap at § 679.133.
(A) NMFS will execute permanent transfers of PCTC Program QS between eligible LLP licenses during the 90-day transfer provision upon request. The transferor and transferee must show they agree to the one-time permanent transfer of PCTC Program QS, or show a transfer is authorized by an operation of law (
(B) After the expiration of the 90-day transfer provision, PCTC Program QS will no longer be severable from the LLP license to which it is assigned unless authorized by the transfer rules specified in paragraph (j) or modification is supported by an operation of law.
(j)
(2) Transfer of PCTC Program QS assigned to LLP licenses that exceeds PCTC Program QS ownership caps.
(i) If an LLP license receives an initial allocation of PCTC Program QS that exceeds an ownership cap specified at § 679.133(a), upon transfer of the LLP license, the LLP license holder may transfer the amount of PCTC Program QS in excess of the ownership cap separately from the LLP license and assign it to one or more LLP licenses. However, a transfer will not be approved by NMFS if that transfer would cause the receiving LLP license to exceed an ownership cap specified at § 679.133(a).
(ii) Prior to the transfer of an LLP license that received an initial allocation of PCTC Program QS that exceeds an ownership cap specified at § 679.133(a), the LLP license holder must transfer the PCTC Program QS that is in excess of the ownership cap separately from that LLP license and assign it to one or more LLP licenses. On completion of the transfer of PCTC Program QS, the LLP license that was initially allocated an amount of PCTC Program QS in excess of the ownership cap may not exceed any ownership cap specified at § 679.133(a).
(iii) Any PCTC Program QS associated with the LLP license that is in excess of the ownership cap may be assigned to another LLP license through the application used to transfer LLP licenses, and only if the application is approved as specified at § 679.4(k)(7).
(iv) PCTC Program QS that is transferred from an LLP license that was initially allocated an amount of PCTC Program QS in excess of the ownership cap specified at § 679.133(a) and assigned to another LLP license may not be severed from the receiving LLP license.
(3) Transfer of processor PCTC Program QS Permits. A person may transfer a PCTC Program QS permit to another processor with an active FPP issued under § 679.4. A transfer of processor-held PCTC Program QS may not cause the receiver of the permit to exceed the ownership cap specified at § 679.133(a) at the time of transfer. A PCTC Program QS permit held by a processor and associated QS may be transferred only if the application for transfer of PCTC Program QS permit is filled out entirely. A PCTC Program QS permit initially issued to an FFP holder may be transferred to a processor with an active FPP issued under § 679.4 or to a processor with an active FFP that authorizes a vessel named on an LLP license with a BSAI Pacific cod trawl mothership endorsement.
(4) Transfer of PCTC Program QS assigned to a processor-held PCTC Program QS permit that exceeds PCTC Program ownership caps.
(i) If a PCTC Program QS permit receives an initial allocation of QS that exceeds an ownership cap specified at § 679.133(a), the processor may transfer QS in excess of the ownership cap separately from that PCTC Program QS permit and assign it to the PCTC Program QS permit of one or more processors with an active FPP or FFP.
(ii) Prior to the transfer of a PCTC Program QS permit that received an initial allocation of QS that exceeds an ownership cap specified at § 679.133(a), the permit holder must transfer the QS that is in excess of the ownership cap separately from that PCTC Program QS permit and assign it to one or more PCTC Program QS permits. On completion of the transfer of QS, the PCTC Program QS permit that was initially allocated an amount of QS in excess of the ownership cap may not exceed any ownership cap specified at § 679.133(a).
(iii) Any QS associated with the PCTC Program QS permit held by a processor that is in excess of an ownership cap may be transferred only if the application for transfer of PCTC Program QS permit is filled out entirely.
(a)
(ii) NMFS will issue a CQ permit to a PCTC Program cooperative based on the aggregate PCTC Program QS of all LLP licenses and associated processors designated on an application for CQ that is approved by the Regional Administrator as described under paragraph (a)(4) of this section.
(iii) Processors must associate with a PCTC Program cooperative for the PCTC Program QS assigned to that processor's PCTC Program QS permit to be issued to a PCTC Program cooperative as CQ.
(2)
(3)
(4)
(i) PCTC Program cooperative identification, including but not limited to the name of the cooperative and the taxpayer identification number;
(ii) PCTC Program QS holders and ownership documentation;
(iii) PCTC Program cooperative member vessels and LLP licenses;
(iv) PCTC Program cooperative associated processors;
(v) Vessels with FFPs on which the CQ issued to the PCTC Program cooperative will be used;
(vi) Certification of cooperative representative;
(vii) An attached copy of the membership agreement or contract that includes the following terms:
(A) How the cooperative intends to harvest its CQ;
(B) The obligations of QS holders who are members of a PCTC Program cooperative to ensure the full payment of PCTC Program fee liabilities that may be due;
(C) How cooperatives monitor and report leasing activity in GOA fisheries; and
(D) For a cooperative intending to harvest any amount of the CQ set-aside, the cooperative's plan for coordinating harvest and delivery of the CQ set-aside with an Aleutian Islands shoreplant as defined § 679.2.
(viii) Each year, all cooperatives must establish an inter-cooperative agreement. This inter-cooperative agreement must be included as part of each annual cooperative application and is required before NMFS will issue CQ. The inter-cooperative agreement must establish how the cooperatives intend to harvest the CQ set-aside in years when it applies and ensure harvests in the BS do not exceed the minimum set-aside as specified at § 679.132(a)(4)(i). For the calendar year 2023, NMFS will allow each cooperative to submit the inter-cooperative agreement prior to December 31, 2023.
(b)
(i)
(ii)
(2)
(ii)
(3)
(ii)
(4)
(ii)
(iii)
(iv)
(c)
(i) Multiply the halibut PSC limit apportioned to the BSAI trawl limited access sector's Pacific cod fishery category by 98 percent, which yields the halibut PSC apportioned to the trawl catcher vessel sector. The remaining 2 percent is apportioned to the AFA catcher/processor sector as specified at § 679.21(b)(4).
(ii) Assign 95 percent of the trawl catcher vessel sector's halibut PSC limit to the A and B seasons and 5 percent to the C season.
(iii) Each year after apportioning halibut PSC to the trawl catcher vessel sector for the A and B season, apply one of the following reductions to the A and B season trawl catcher vessel halibut PSC limit to determine the overall PCTC Program halibut PSC limit:
(A) In the first year of the PCTC Program, reduce the A and B season halibut PSC limit by 12.5 percent.
(B) In the second year, and each year thereafter, reduce the A and B season halibut PSC limit by 25 percent.
(2)
(i) Divide the amount of CQ units assigned to each PCTC Program cooperative by the amount of CQ allocated to all cooperatives. This yields the percentage of CQ units held by each cooperative.
(ii) Multiply the overall PCTC Program halibut PSC limit by the percentage of the CQ assigned to a cooperative. This yields the amount of halibut PSC issued to that cooperative as CQ.
(3)
(d)
(i) Multiply the crab PSC limit apportioned to the BSAI trawl limited access sector's Pacific cod fishery category by 90.6 percent, which yields the percentage of crab PSC apportioned to the trawl catcher vessel sector. The remaining 9.4 percent goes to the AFA catcher/processor sector as specified at § 679.21(b)(4).
(ii) Assign 95 percent of the trawl catcher vessel sector's crab PSC limit to the A and B seasons and 5 percent to the C season.
(iii) Reduce the A and B season trawl catcher vessel crab PSC limit by 35 percent to determine the overall PCTC Program crab PSC limit.
(2)
(i) Divide the amount of CQ assigned to each PCTC Program cooperative by the total CQ assigned to all cooperatives. This yields the percentage of CQ held by that cooperative.
(ii) Multiply the overall PCTC Program crab PSC limit by the percentage of the CQ pool assigned to a cooperative. This yields the crab PSC limit issued to that cooperative as CQ.
(3)
(e)
(f)
(g)
(h)
(i)
(j)
(2)
(i) Each PCTC Program cooperative must be formed as a partnership, corporation, or other legal business entity that is registered under the laws of one of the 50 States or the District of Columbia;
(ii) Each PCTC Program cooperative must appoint an individual as the designated representative to act on the cooperative's behalf and to serve as a contact point for NMFS for questions regarding the operation of the cooperative. The designated representative may be a member of the cooperative, or some other individual designated by the cooperative to act on its behalf;
(iii) Each PCTC Program cooperative must submit a timely and complete application for CQ; and
(iv) Each PCTC Program cooperative must meet the mandatory requirements established in paragraph (j)(3) of this section.
(3)
(4)
(a)
(2)
(3)
(4)
(i) When the AI DFA exceeds 12 percent of A season CQ, the AI set-aside is 12 percent of the PCTC Program A season CQ and is in effect during the A and B seasons.
(ii) If the AI non-CDQ DFA is below 12 percent of the PCTC Program A season CQ, then the AI set-aside will be set equal to the AI non-CDQ DFA and is in effect during the A and B seasons. When the AI set-aside is in effect and set equal to the AI non-CDQ DFA, directed fishing for Pacific cod in the AI may only be conducted by PCTC Program vessels that deliver their catch of AI Pacific cod to an Aleutian Islands shoreplant. After June 10, the Regional Administrator may open directed fishing for AI non-CDQ Pacific cod for other sectors.
(b)
(2)
(3)
(i) Date of submission,
(ii) Name of city,
(iii) Statement of intent to process PCTC Program Pacific cod,
(iv) Identification of the fishing year during which the city intends to process PCTC Program Pacific cod,
(v) Contact information for the representative of the city, and
(vi) Documentation of authority to represent the City of Adak or the City of Atka.
(4)
(5)
(i) The PCTC Program cooperative(s) are required to set-aside an amount of CQ calculated by the Regional Administrator pursuant to (a)(4) of this section for delivery to an Aleutian Islands shoreplant as defined at § 679.2.
(ii) All cooperatives must enter into an inter-cooperative agreement that describes how the AI set-aside will be administered by the cooperatives to ensure that the PCTC Program harvests from the BS do not exceed the minimum set-aside. This inter-cooperative agreement must establish how the cooperatives intend to harvest the AI set-aside when it applies. This inter-cooperative agreement must be provided as part of the annual PCTC Program cooperative application as specified at § 679.131(a)(4) and is required before NMFS can issue CQ.
(iii) The inter-cooperative agreement must establish how cooperatives would ensure that trawl catcher vessels less than 60 ft (18.3 m) LOA assigned to an LLP license with a transferable AI trawl endorsement have the opportunity to harvest 10 percent of the AI set-aside for delivery to an Aleutian Islands shoreplant.
(c)
(2) PCTC Program cooperatives may not deliver more than the PCTC A season CQ minus the AI set-aside established under this section to processors in the BS subarea when the AI CQ set-aside is in effect.
(3) The City of Adak or the City of Atka may withdraw their annual notice of intent to process prior to the end of B season.
(4) The Regional Administrator may remove the delivery requirement for some or all of the projected unused AI CQ set-aside if the Regional Administrator determines that the Aleutian Islands shoreplants will not process the entire AI CQ set-aside.
(5) In the event all notices of intent to process are withdrawn, the Regional Administrator will remove the delivery requirement for CQ that was set-aside for that calendar year.
(6) To remove the AI CQ set-aside delivery requirement for that calendar year, the Regional Administrator will publish a document in the
(a)
(ii) Use caps do not apply to halibut or crab PSC CQ.
(iii) Ownership and use caps may not be exceeded except as provided under paragraph (a)(6) of this section.
(iv) All QS ownership caps are a percentage of the initial PCTC Program QS pool established by NMFS at § 679.130(e).
(v) The CQ processing use cap is a percentage of the total amount of CQ issued to cooperatives during a calendar year.
(vi) The vessel use cap is a percentage of the amount of CQ assigned to the PCTC Program during a calendar year.
(2)
(3)
(4)
(5)
(6)
(ii) A person may receive an initial allocation of PCTC Program QS in excess of the processor ownership cap. This exemption is non-transferable.
(iii) A vessel designated on an LLP license that received an initial allocation of PCTC Program QS in excess of the harvester ownership cap may harvest CQ in excess of the vessel use cap up to the amount of CQ resulting from QS assigned to the LLP license. This exemption is non-transferable.
(iv)
(7)
(b)
(1)
(2)
(a)
(b)
(c)
(2)
(d)
(e)
(2)
(3)
(f)
(1)
(ii)
(2)
(3)
(4)
(5)
(6)
(7)
(a)
(i) Subsequent transfer of CQ or QS held by PCTC Program cooperative members does not affect the cooperative's liability for noncompliance with this section.
(ii) Non-renewal of a CQ permit does not affect the cooperative's liability for noncompliance with this section.
(iii) Changes in the membership in a PCTC Program cooperative, such as members joining or departing during the relevant year, or changes in the amount of QS holdings of those members does not affect the cooperative's liability for noncompliance with this section.
(2)
(3)
(ii) Make electronic payment payable to NMFS.
(iii) Submit payment and related documents as instructed on the NMFS Alaska Region website as defined at § 679.2.
(iv) Payment must be made electronically in U.S. dollars using an approved payment method available on the payment website.
(b)
(c)
(2)
(i) NMFS must use the following factors to determine the fee percentage:
(A) The catch to which the PCTC Program cost recovery fee will apply;
(B) The ex-vessel value of that catch; and
(C) The costs directly related to the management, data collection, and enforcement of the PCTC Program.
(ii) NMFS must use the following equations to determine the fee percentage:
(iii) The calculated fee percentage is applied to the ex-vessel value of CQ landings made in the previous calendar year.
(3)
(4)
(ii) The PCTC Program fee liability assessed to a PCTC Program cooperative
(iii) NMFS will provide a fee liability summary letter to all cooperatives by no later than August 1 of each year. The summary will explain the fee liability determination including the current fee percentage, details of CQ pounds debited from CQ allocations by permit, species, date, and prices.
(d)
(2) If a cooperative fails to submit full payment for PCTC Program cost recovery fee liability by the date described in paragraph (a)(3) of this section:
(i) At any time thereafter the Regional Administrator may send an IAD to the cooperative stating the amount of the cooperative's estimated fee liability that is past due and requesting payment. If payment is not received by the 30th day after the date on the IAD, the agency may pursue collection of the unpaid fees.
(ii) The Regional Administrator may disapprove any application to transfer CQ to or from the cooperative in accordance with § 679.130.
(iii) No CQ permit will be issued to that cooperative for that following calendar year and the Regional Administrator may continue to prohibit issuance of a CQ permit for any subsequent calendar years until NMFS receives the unpaid fees.
(iv) No CQ will be issued based on the QS held by the members of that PCTC Program cooperative to any other CQ permit for any subsequent calendar years until NMFS receives the unpaid fees.
(e)
(f)
(g)
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Summary presentation of final rules.
This document summarizes the Federal Acquisition Regulation (FAR) rules agreed to by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) in this Federal Acquisition Circular (FAC) 2023-05. A companion document, the
For effective dates see the separate documents, which follow.
The FAC, including the SECG, is available at
The analyst whose name appears in the table below in relation to the FAR case. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755 or
Summaries for each FAR rule follow. For the actual revisions and/or amendments made by these FAR rules, refer to the specific item numbers and subjects set forth in the documents following these item summaries. FAC 2023-05 amends the FAR as follows:
This final rule amends the FAR to implement the Acquisition 360 Survey tool, a voluntary online survey to elicit industry feedback on the preaward and debriefing processes in a consistent and standardized manner. Contracting officers may insert the provision into solicitations in accordance with agency procedures. However, because it is voluntary, the impact on offerors or contractors is expected to be minimal.
This final rule amends the FAR to update the net worth threshold for the owners of small disadvantaged business concerns to align with SBA's regulations, and updates obsolete FAR citations to certain SBA regulations.
This final rule amends the FAR to update obsolete contact information, web addresses, and office titles necessary to obtain Federal and Defense specifications and standards from the DoD Acquisition Streamlining and Standardization Information System (ASSIST) website or, for Defense documents not available in ASSIST, from the Defense Standardization Program Office. These updates will ensure offerors have the most current information with which to obtain both Federal and Defense specifications and standards that are referenced in an agency's solicitation. The final rule will not have a significant economic impact on a substantial number of small entities because it simply updates contact information, web addresses and office titles in existing regulations.
Administrative change is made at FAR 52.212-3.
Federal Acquisition Circular (FAC) 2023-05 is issued under the authority of the Secretary of Defense, the Administrator of General Services, and the Administrator of National Aeronautics and Space Administration.
Unless otherwise specified, all Federal Acquisition Regulation (FAR) and other directive material contained in FAC 2023-05 is effective August 8, 2023 except for Item I, which is effective September 22, 2023, and Items II, III, and IV, which are effective September 7, 2023.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to encourage use of voluntary feedback mechanisms, where appropriate, to support continual improvement of the acquisition process.
Effective September 22, 2023.
For clarification of content, contact Ms. Zenaida Delgado, Procurement Analyst, at 202-969-7207, or by email at
Understanding how contractors experience the Federal marketplace is critical to the Government's ability to build and maintain a healthy, diverse, and resilient supplier base that can help Federal agencies use acquisition as a catalyst to address the needs of our Nation. While many agencies periodically seek feedback from their contractors, there are no Government-wide mechanisms for agencies to collect and consider this information in a consistent and organized manner. This final rule fills an important gap in Government-vendor communications by providing a standardized tool for voluntary vendor feedback.
DoD, GSA, and NASA published a proposed rule in the
An advance notice of proposed rulemaking (ANPR) was published at 83 FR 34820 on July 23, 2018, to obtain public input regarding matters related to contractor feedback, the overall cost of compliance and any specific regulatory requirements that are particularly burdensome. The proposed Acquisition 360 Survey questions were also posted.
One respondent submitted comments on the proposed rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) reviewed the public comments in the development of the final rule. A discussion of the comments is provided as follows:
There are no significant changes from the proposed rule. Minor corrections were made at FAR 1.102-3(a)(3) to the citation referencing performance standards, and to update a reference at FAR 26.206(a). The new FAR provision at FAR 52.201-1 was added to the list of provisions and clauses at FAR 12.301(e) to reflect the final rule's applicability to commercial solicitations.
This rule adds a provision at FAR 52.201-1, Acquisition 360: Voluntary Survey. The provision is not prescribed for any particular procurement; agencies, in accordance with their procedures, may include it in solicitations at or below the SAT and in solicitations for commercial services and commercial products, including COTS items.
This final rule amends the FAR to implement the Acquisition 360 Survey tool, a voluntary online survey to elicit industry feedback on the preaward and debriefing processes in a consistent and standardized manner. Contracting officers may insert the provision into solicitations per agency guidance. However, because it is voluntary, the impact on offerors or contractors is expected to be minimal.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.
The Congressional Review Act (5 U.S.C. 801-808) requires interim and final rules to be submitted to Congress before the rule takes effect. DoD, GSA, and NASA will send this rule to each House of the Congress and to the Comptroller General of the United States. The Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget has determined that this is not a major rule under 5 U.S.C. 804.
DoD, GSA, and NASA have prepared a Final Regulatory Flexibility Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 U.S.C. 601-612. The FRFA is summarized as follows:
This final rule amends the Federal Acquisition Regulation to implement the voluntary use of the Acquisition 360 Survey to elicit feedback on preaward and debriefing processes in a consistent and standardized manner. The objective of the rule is to encourage agency use of the Acquisition 360 Survey tool to obtain feedback from offerors which may be used to improve their acquisition processes.
No public comments were received in response to the initial regulatory flexibility analysis.
Data generated from the Federal Procurement Data System (FPDS) and the System for Award Management (SAM) have been used as the basis for estimating the number of small entities affected by this rule. Currently, there are approximately 331,899 small entities registered in SAM that were small in at least one North American Industry Classification Systems (NAICS) code. The rule, therefore, will potentially impact all 331,899 small entities.
To estimate the likely number of small entities impacted by the rule, we used the average of FPDS data for fiscal years 2020, 2021, and 2022. Examination of the data reveals that the number of unique small entities that received contract awards was 79,264. DoD, GSA, and NASA estimate that each unique small entity would respond to approximately 3 solicitations, equating to 237,791 potential offers. It is anticipated that 33 percent of these potential offerors will submit a response to the survey based upon the outcome of a previous OFPP-conducted pilot. Based upon this data, it is anticipated that 78,471 small entities will likely be affected by the rule.
The final rule encourages potential offerors to provide feedback at
There were other alternatives considered, to include the status quo, for Government acquisition officials to elicit feedback from their contractors, such as vendor outreach with industry days on the agency's performance of its contract administration responsibilities; however, these would not accomplish the stated objective of the rule, nor would they minimize the economic impact of the rule on small entities.
Interested parties may obtain a copy of the FRFA from the Regulatory Secretariat Division. The Regulatory Secretariat Division has submitted a copy of the FRFA to the Chief Counsel
The Paperwork Reduction Act (44 U.S.C. 3501-3521) applies. The rule contains information collection requirements. OMB has cleared this information collection requirement under OMB Control Number 9000-0204, Acquisition 360 Voluntary Survey.
Government procurement.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 1, 12, 26, and 52 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C. chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C. 20113.
(a) Agencies are encouraged to develop internal procedures seeking voluntary feedback from interested parties in an acquisition to assess process strengths and weaknesses and improve effectiveness and efficiency of the acquisition process. Agencies may—
(1) Utilize a variety of feedback mechanisms available to the public (
(2) Utilize the core preaward and debriefing survey questions at
(3) Seek additional feedback on targeted aspects of an acquisition throughout its lifecycle (
(b) Contracting officers are encouraged to insert the provision 52.201-1, Acquisition 360: Voluntary Survey, in accordance with agency procedures.
(c) Contracting officers shall not review information until after contract award and shall not consider it in the award decision.
The addition reads as follows:
(e) * * *
(1) The contracting officer may use the provision at 52.201-1, Acquisition 360: Voluntary Survey, as prescribed in 1.102-3(b).
As prescribed in 1.102-3(b), insert the following provision:
(a) All actual and potential offerors are encouraged to provide feedback on the preaward and debriefing processes, as applicable. Feedback may be provided to agencies up to 45 days after award. The feedback is anonymous, unless the participant self-identifies in the survey. Actual and potential offerors can participate in the survey by selecting the following link:
(b) The Contracting Officer will not review the information provided until after contract award and will not consider it in the award decision. The survey is voluntary and does not convey any protections, rights, or grounds for protest. It creates a way for actual and potential offerors to provide the Government constructive feedback about the preaward and debriefing processes, as applicable, used for a specific acquisition.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to implement regulatory changes made by the Small Business Administration to adjust the net worth threshold for owners of small disadvantaged business concerns.
Effective September 7, 2023.
For clarification of content, contact Ms. Carrie Moore, Procurement Analyst, at 571-300-5917, or by email at
DoD, GSA, and NASA are amending the FAR to implement regulatory changes made by the Small Business Administration (SBA) in its interim rule published on November 17, 2022, at 87 FR 69118, which adjusted for inflation the net worth threshold for an individual to be eligible as an owner of a small disadvantaged business concern from $750,000 to $850,000. To do so, this rule updates this threshold to reflect a reference to SBA's regulations at 13 CFR 124.104(c)(2), which is used in the definition of “small disadvantaged business concern,” in the FAR. This rule also updates FAR citations to former SBA regulations 13 CFR 124.1002 through 124.1016, as SBA removed these sections from their regulations in a rule published May 8, 2020 (85 FR 27290).
The statute that applies to the publication of the FAR is 41 U.S.C. 1707. Subsection (a)(1) of 41 U.S.C. 1707 requires that a procurement policy, regulation, procedure, or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment because it does not change existing acquisition procedures for agencies or contractors; instead, this final rule simply revises the FAR to align with SBA's regulation by reflecting the increased threshold established by SBA in its regulations, and updates obsolete FAR citations to certain SBA regulations that no longer exist.
This rule amends the solicitation provisions at FAR 52.212-3 and 52.219-1, and contract clauses at FAR 52.212-5, 52.213-4, 52.219-8, 52.219-9, 52.219-28, and 52.244-6. However, this rule does not impose any new requirements on contracts valued at or below the SAT, or on contracts for commercial products, including COTS items, or commercial services. The clauses continue to apply to acquisitions at or below the SAT and to acquisitions for commercial products, including COTS items, and commercial services.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.
As required by the Congressional Review Act (5 U.S.C. 801-808) before an interim or final rule takes effect, DoD, GSA, and NASA will send the rule and the “Submission of Federal Rules Under the Congressional Review Act” form to each House of the Congress and to the Comptroller General of the United States. The Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget has determined that this is not a major rule under 5 U.S.C. 804.
Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 41 U.S.C. 1707(a)(1) (see section II. of this preamble), the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612) are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.
This rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
Government procurement.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 19, and 52 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C. chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C. 20113.
This section applies to reviews of a small business concern's SDB status as a prime contractor or subcontractor.
(c) An SBA review of a subcontractor's SDB status differs from a formal protest. Protests of a concern's size as a prime contractor are processed under 19.302. Protests of a concern's size as a subcontractor are processed under 19.703(b).
The revision reads as follows:
The revisions read as follows:
The revision reads as follows:
The revision reads as follows:
The revision reads as follows:
The revision reads as follows:
The revision reads as follows:
The revision reads as follows:
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to update contact information, web addresses, and office titles associated with the DoD Acquisition Streamlining and Standardization Information System and clarify the authoritative source for a form.
Effective September 7, 2023.
Ms. Carrie Moore, Procurement Analyst, at 571-300-5917 or by email at
DoD, GSA, and NASA are amending the FAR to update the contact information, web addresses, and office titles necessary to obtain Federal and Defense specifications and standards from the DoD Acquisition Streamlining and Standardization Information System (ASSIST) website or, for Defense documents not available in ASSIST, the Defense Standardization Program Office. This final rule also adds a reference in part 53, Forms, to the American National Standards Institute (ANSI) Z39.18, Scientific and Technical Reports—Preparation, Presentation, and Preservation, with the prescription for the Standard Form 298, Report Documentation Page.
DoD, GSA, and NASA published a final rule at 64 FR 72446, on December 27, 1999, to provide guidance to offerors on how to obtain Defense specifications and standards formerly listed in the DoD Index of Specifications and Standards (DoDISS) from the ASSIST database or from the DoD Single Stock Point (DoDSSP). DoD, GSA, and NASA published additional revisions to this guidance at 71 FR 227, on January 3, 2006, which replaced references to DoDISS with ASSIST and made several updates associated with obtaining DoD specifications and standards via internet, phone, and fax.
This final rule updates the web address where offerors may download unclassified DoD specifications and standards from the ASSIST website, as well as the program office name and the contact information where offerors can obtain Defense specifications and standards that are not available from the ASSIST website. The rule also removes obsolete guidance for ordering specifications, standards, and/or product descriptions by mail or in person via a physical address, fax, or phone, as these methods of contact were replaced by a more immediate method of access via the ASSIST database. Conforming changes are made in the FAR provisions at 52.211-1, Availability of Specifications Listed in the GSA Index of Federal Specifications, Standards and Commercial Item Descriptions, FPMR Part 101-29; 52.211-2, Availability of Specifications, Standards, and Data Item Descriptions Listed in the Acquisition Streamlining and Standardization Information System (ASSIST); and 52.212-1, Instructions to Offerors—Commercial Products and Commercial Services.
Additionally, this rule adds a reference to ANSI Standard Z39.18 within the prescription for form SF 298 in part 53 to provide the source document that requires the use of the form.
The statute that applies to the publication of the FAR is 41 U.S.C. 1707. Subsection (a)(1) of 41 U.S.C. 1707 requires that a procurement policy, regulation, procedure, or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment because this rule only: updates the obsolete contact information and methods for obtaining Defense specifications and standards and Federal specifications, standards, and product descriptions; and identifies the source document that requires the use of a standard form identified in the FAR. This rule does not change the policy regarding or necessity for obtaining such documents or using the form.
This rule does not create any new solicitation provisions or contract clauses. This rule does amend the provisions at FAR 52.211-1, 52.211-2, and 52.212-1 to incorporate the updated directions to obtain Federal and DoD documents, but does not impose any new requirements on contracts at or below the SAT, for commercial products, including COTS items, or for commercial services. The provision 52.212-1 continues to apply to acquisitions at or below the SAT and to acquisitions for commercial products, including COTS items, or for commercial services; while the provisions 52.211-1 and 52.211-2 continue to apply to acquisitions at or below the SAT, and not apply to acquisitions for commercial products, including COTS items, or for commercial services.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.
The Congressional Review Act (5 U.S.C. 801-808) requires interim and final rules to be submitted to Congress before the rule takes effect. The Office of Information and Regulatory Affairs (OIRA) in the Office of Management and
Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 41 U.S.C. 1707(a)(1) (see section II. of this preamble), the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612) are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.
This rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
Government procurement.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 9, 11, 23, 52, and 53 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C. chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C. 20113.
(b) Specifications requiring a qualified product are included—
(1) In the GSA Index of Federal Specifications, Standards and Commercial Item Descriptions; and
(2) On the Department of Defense Acquisition Streamlining and Standardization Information System (ASSIST) website at
(c) * * *
(2) Department of Defense Manual 4120.24, Defense Standardization Program (DSP) Procedures, (
(d) The publications in paragraphs (b)(1) and (c)(1) of this section may be obtained from the address in 11.201(d)(1).
The revisions read as follows:
(d) (1) The GSA Index of Federal Specifications, Standards and Commercial Item Descriptions, FPMR Part 101-29, may be viewed at the ASSIST website at
(2) Most unclassified Defense specifications and standards may be downloaded from the ASSIST website at
(3) Defense documents not available from the ASSIST website may be ordered from the Defense Standardization Program Office by—
(i) Using the ASSIST feedback module at
(ii) Contacting the Defense Standardization Program Office by telephone at 571-767-6888 or email at
(b) The contracting officer shall insert the provision at 52.211-2, Availability of Defense Specifications, Standards, and Data Item Descriptions in the Acquisition Streamlining and Standardization Information System (ASSIST) website, in solicitations that cite specifications available in ASSIST that are not furnished with the solicitation.
As prescribed in 11.204(a), insert the following provision:
(a) The GSA Index of Federal Specifications, Standards and Commercial Item Descriptions, FPMR Part 101-29, and copies of Federal specifications, standards, and product descriptions can be downloaded from the ASSIST website at
(b) If the General Services Administration, Department of Agriculture, or Department of Veterans Affairs issued this solicitation, a copy of
As prescribed in 11.204(b), insert the following provision:
(a) Most unclassified Defense specifications and standards may be downloaded from the ASSIST website at
(b) Defense documents not available from ASSIST may be requested from the Defense Standardization Program Office by—
(1) Using the ASSIST feedback module (
(2) Contacting the Defense Standardization Program Office by telephone at 571-767-6888 or email at
(i) * * *
(1)(i) The GSA Index of Federal Specifications, Standards and Commercial Item Descriptions, FPMR Part 101-29, and copies of Federal specifications, standards, and product descriptions can be downloaded from the ASSIST website at
(ii) If the General Services Administration, Department of Agriculture, or Department of Veterans Affairs issued this solicitation, a copy of specifications, standards, and commercial item descriptions cited in this solicitation may be obtained from the address in paragraph (i)(1)(i) of this provision.
(2) Most unclassified Defense specifications and standards may be downloaded from the ASSIST website at
(3) Defense documents not available from the ASSIST website may be requested from the Defense Standardization Program Office by—
(i) Using the ASSIST feedback module (
(ii) Contacting the Defense Standardization Program Office by telephone at 571-767-6688 or email at
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
This document makes an amendment to the Federal Acquisition Regulation (FAR) in order to make needed editorial changes.
Effective: September 7, 2023.
Ms. Lois Mandell, Regulatory Secretariat Division (MVCB), at 202-501-4755 or
This document makes an editorial change to 48 CFR part 52.
Government procurement.
Therefore, DoD, GSA, and NASA amend 48 CFR part 52 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C. chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C. 20113.
The revision reads as follows:
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Small Entity Compliance Guide (SECG).
This document is issued under the joint authority of DoD, GSA, and NASA. This
August 8, 2023.
The FAC, including the SECG, is available at
For clarification of content, contact the analyst whose name appears in the table below. Please cite FAC 2023-05 and the FAR Case number. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755 or
Summaries for each FAR rule follow. For the actual revisions and/or amendments made by these FAR rules, refer to the specific item numbers and subjects set forth in the documents following these item summaries. FAC 2023-05 amends the FAR as follows:
This final rule amends the FAR to implement the Acquisition 360 Survey tool, a voluntary online survey to elicit industry feedback on the preaward and debriefing processes in a consistent and standardized manner. Contracting officers may insert the provision into solicitations in accordance with agency procedures. However, because it is voluntary, the impact on offerors or contractors is expected to be minimal.
This final rule amends the FAR to update the net worth threshold for the owners of small disadvantaged business concerns to align with SBA's regulations, and updates obsolete FAR citations to certain SBA regulations.
This final rule amends the FAR to update obsolete contact information, web addresses, and office titles necessary to obtain Federal and Defense specifications and standards from the DoD Acquisition Streamlining and Standardization Information System (ASSIST) website or, for Defense documents not available in ASSIST, from the Defense Standardization Program Office. These updates will ensure offerors have the most current information with which to obtain both Federal and Defense specifications and standards that are referenced in an agency's solicitation. The final rule will not have a significant economic impact on a substantial number of small entities because it simply updates contact information, web addresses and office titles in existing regulations.
Administrative change is made at FAR 52.212-3.