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Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
The FAA is adopting a new airworthiness directive (AD) for all The Boeing Company Model 737 airplanes equipped with CFM International, S.A. (CFM) Model LEAP-1B series turbofan engines. This AD was prompted by a report indicating that use of engine anti-ice (EAI) in dry air for more than five minutes during certain environmental and operational conditions can cause overheating of the engine inlet inner barrel beyond the material design limit, resulting in failure of the engine inlet inner barrel and severe engine inlet cowl damage. This AD requires revising the existing airplane flight manual (AFM) to limit the use of EAI in certain conditions and revising the operator's existing minimum equipment list to prohibit dispatch under a certain item. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective August 25, 2023.
The FAA must receive comments on this AD by September 25, 2023.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
James Laubaugh, Aviation Safety Engineer, FAA, 2200 South 216th St., Des Moines, WA 98198; phone: 206-231-3622; email:
The FAA invites you to send any written data, views, or arguments about this final rule. 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 AD 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 AD, 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 AD. Submissions containing CBI should be sent to James Laubaugh, Aviation Safety Engineer, FAA, 2200 South 216th St., Des Moines, WA 98198; phone: 206-231-3622; email:
The FAA has received a report in June 2023 indicating that flight testing and analysis revealed that the use of EAI in dry air for more than five minutes during certain combinations of altitude, total air temperature, and N1 settings can result in engine inlet cowl temperatures exceeding design limits when not in visible moisture. Excessive heat buildup can cause overheat of the engine inlet inner barrel beyond the material design limit, resulting in failure of the engine inlet inner barrel and severe engine inlet cowl damage. There have been no reports of in-service failures of the engine inlet inner barrel to date.
This condition as previously described, if not addressed, could result in departure of the inlet and potential fan cowl failure and departure from the airplane. The departure of the inlet may cause fuselage and/or window damage, potentially resulting in decompression and hazard to window-seated passengers aft of the wing and/or impact damage to the wing, flight control surfaces, and/or empennage, which could result in loss of control of the airplane. Inlet loss also causes significantly increased aerodynamic drag and asymmetric lift due to wing blanking, which risks fuel exhaustion on certain flights, resulting in a forced off-airport landing and injury to passengers. The FAA is issuing this AD to address the unsafe condition on these products.
The FAA is issuing this AD because the agency has determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This AD requires revising the existing AFM to limit the use of engine anti-ice in certain conditions. This AD also requires revising the operator's existing minimum equipment list (MEL) to prohibit dispatch under Master Minimum Equipment List (MMEL) Item 30-21-01B (EAI valve locked open). Further analysis of this item is necessary to determine whether continued use will cause failure of the engine inlet inner barrel.
Section 91.9 prohibits any person from operating a civil aircraft without complying with the operating limitations specified in the AFM. FAA regulations also require operators to furnish pilots with any changes to the AFM (14 CFR 121.137) and pilots in command to be familiar with the AFM (14 CFR 91.505).
This AD refers to Item 30-21-01B (Engine (Cowl) Anti-Ice Valves), Boeing 737 MAX (B-737-7/-8/-8200/-9) MMEL, Revision 5, dated June 3, 2022; this item is also included in an operator's FAA-approved minimum equipment list (MEL). This AD prohibits dispatch or release of the airplane under conditions currently allowed by that item in the MMEL. The FAA plans to revise the MMEL to remove that item in a future revision; operators would then be required to also remove that item from their existing FAA-approved MEL.
The FAA considers this AD to be an interim action. The manufacturer is currently developing a modification that will address the unsafe condition identified in this AD. Once this modification is developed, approved, and available, the FAA might consider additional rulemaking.
Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551
An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies forgoing notice and comment prior to adoption of this rule because operating EAI in dry air for more than five minutes during certain environmental and operational conditions can cause overheating of the engine inlet inner barrel beyond the material design limit, resulting in failure of the engine inlet inner barrel and severe engine inlet cowl damage. If not addressed, this could result in departure of the inlet and potential fan cowl failure and departure from the airplane. The departure of the inlet may cause fuselage and/or window damage, potentially resulting in decompression and hazard to window-seated passengers aft of the wing and/or impact damage to the wing, flight control surfaces, and/or empennage, which could result in loss of control of the airplane. Further, inlet loss causes significantly increased aerodynamic drag and asymmetric lift due to wing blanking, which risks fuel exhaustion on certain flights, resulting in a forced off-airport landing and injury to passengers. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).
In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forgo notice and comment.
The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without notice and comment, RFA analysis is not required.
The FAA estimates that this AD affects 402 airplanes of U.S. registry. The FAA estimates the following costs to comply with this 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.
This AD will not have federalism implications under Executive Order 13132. This AD will 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 this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866, and
(2) Will not affect intrastate aviation in Alaska.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective August 25, 2023.
None.
This AD applies to all The Boeing Company Model 737 airplanes equipped with CFM International, S.A. (CFM) Model LEAP-1B series turbofan engines, certificated in any category.
Air Transport Association (ATA) of America Code 30, Ice and Rain Protection; 71, Powerplant.
This AD was prompted by a report indicating that use of engine anti-ice (EAI) in dry air for more than five minutes during certain environmental and operational conditions can cause overheating of the engine inlet inner barrel beyond the material design limit, resulting in failure of the engine inlet inner barrel and severe engine inlet cowl damage. The FAA is issuing this AD to address use of EAI in certain environmental and operational conditions. The unsafe condition, if not addressed, could result in departure of the inlet and potential fan cowl failure and departure from the airplane. The departure of the inlet may cause fuselage and/or window damage, potentially resulting in decompression and hazard to window-seated passengers aft of the wing and/or impact damage to the wing, flight control surfaces, and/or empennage, which could result in loss of control of the airplane. Inlet loss also causes significantly increased aerodynamic drag and asymmetric lift due to wing blanking, which risks fuel exhaustion on certain flights, resulting in a forced off-airport landing and injury to passengers.
Comply with this AD within the compliance times specified, unless already done.
Within 15 days after the effective date of this AD: Revise the Limitations Section of the existing AFM to include the information specified in figure 1 to paragraph (g) of this AD. This may be done by inserting a copy of figure 1 to paragraph (g) of this AD into the existing AFM.
Within 15 days after the effective date of this AD or upon completion of the AFM revision required by paragraph (g) of this AD, whichever occurs first: Revise the operator's existing FAA-approved MEL to prohibit dispatch under the MEL item corresponding with Master Minimum Equipment List (MMEL) Item 30-21-01B (Engine (Cowl) Anti-Ice Valves).
(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 responsible Flight Standards 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. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the responsible Flight Standards Office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by The Boeing Company Organization Designation Authorization (ODA) that has been authorized by the Manager, AIR-520, Continued Operational Safety Branch, FAA, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
For more information about this AD, contact James Laubaugh, Aviation Safety Engineer, FAA, 2200 South 216th St., Des Moines, WA 98198; phone: 206-231-3622; email:
None.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends the Class E airspace at Yankton, SD. This action is the result of an airspace review caused by the decommissioning of the Yankton very high frequency omnidirectional range (VOR) as part of the VOR Minimum Operating Network (MON) Program.
Effective 0901 UTC, November 30, 2023. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11 and publication of conforming amendments.
A copy of the Notice of Proposed Rulemaking (NPRM), all comments received, this final rule, and all background material may be viewed online at
FAA Order JO 7400.11G, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class E surface airspace and the Class E airspace extending upward from 700 feet above the surface at Chan Gurney Municipal Airport, Yankton, SD, to support instrument flight rule operations at this airport.
The FAA published an NPRM for Docket No. FAA-2023-1010 in the
Class E airspace designations are published in paragraphs 6002 and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the
FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.
This amendment to 14 CFR part 71:
Modifies the Class E surface area to within a 5.1-mile (increased from a 4.1-mile) radius of Chan Gurney Municipal Airport, Yankton, SD; removes the Yankton VOR/DME and all associated extensions from the airspace legal description; and removes the city associated with the airport in the header of the airspace legal description to comply with changes to FAA Order JO 7400.2P, Procedures for Handling Airspace Matters;
And modifies the Class E airspace extending upward from 700 feet above the surface to within a 7.6-mile (decreased from a 7.8-mile) radius of Chan Gurney Municipal Airport; and removes the city associated with the airport in the header of the airspace legal description to comply with changes to FAA Order JO 7400.2P.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Within a 5.1-mile radius of the Chan Gurney Municipal Airport.
That airspace extending upward from 700 feet above the surface within a 7.6-mile radius of Chan Gurney Municipal Airport.
Federal Aviation Administration (FAA), DOT.
Final rule; correction.
A final rule was published in the
Effective 0901 UTC, October 5, 2023. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11 and publication of conforming amendments.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Ave., College Park, GA 30337; Telephone (404) 305-6364.
The FAA published a final rule in the
Pursuant to the authority delegated to me, the amendment of Class E airspace extending upward from 700 feet above the surface for Columbus, MS, in Docket No. FAA-2023-1352, as published in the
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E surface airspace and Class E airspace extending upward from 700 feet above the surface for the Greenville, NC area, as a new instrument approach procedure has been designed for ECU Health Medical Center Heliport. This action also makes an editorial change.
Effective 0901 UTC, October 5, 2023. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11 and publication of conforming amendments.
A copy of the Notice of Proposed Rulemaking (NPRM), all comments received, this final rule, and all background material may be viewed online at
FAA Order JO 7400.11G Airspace Designations and Reporting Points and subsequent amendments can be viewed online at
John Goodson, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Avenue, College Park, GA 30337; Telephone: (404) 305-5966.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it amends Class E airspace in Greenville, NC, to support IFR operations in the area.
The FAA published a notice of proposed rulemaking for Docket No. FAA 2023-1004 in the
Class E airspace designations are published in paragraphs 6002 and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, incorporated by reference in 14 CFR 71.1 annually. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the
FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.
This action amends 14 CFR part 71 by:
We are amending the Class E surface airspace for Pitt-Greenville Airport, Greenville, NC, by increasing the radius to 4.6 miles (previously 4.4 miles) and replacing the outdated term Notice to Airmen with the term Notice to Air Missions.
Amending the Class E airspace extending upward from 700 feet above the surface by increasing the radius of the Pitt-Greenville Airport to 7.1 miles (previously 6.4 miles) and establishing an extension of 1.1 miles on each side of the Pitt-Greenville Airport's 008° bearing extending from the airport's 7.1-mile radius to 13.4 miles northeast of the airport. In addition, this action establishes Class E airspace extending upward from 700 feet above the surface within a 6.2-mile radius of ECU Health Medical Center.
Controlled airspace is necessary for the area's safety and management of instrument flight rules (IFR) operations.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a.
This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances warrant the preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
That airspace extending upward from the surface within a 4.6-mile radius of Pitt-Greenville Airport. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Air Missions. The effective date and time will be continuously published in the Chart Supplement.
That airspace extending upward from 700 feet above the surface within a 7.1-mile radius of Pitt-Greenville Airport and 1.1 miles on each side of the Pitt-Greenville Airport's 008° bearing extending from the airport's 7.1-mile radius to 13.4 miles northeast of the airport, and that airspace extending upward from 700 feet above the surface within a 6.2-mile radius of ECU Health Medical Center Heliport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends the Class E airspace at Rush City, MN. This action is the result of an airspace review caused by the decommissioning of the Rush City non-directional beacon (NDB). The geographic coordinates of the airport are also being updated to coincide with the FAA's aeronautical database.
Effective 0901 UTC, November 30, 2023. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11 and publication of conforming amendments.
A copy of the Notice of Proposed Rulemaking (NPRM), all comments received, this final rule, and all background material may be viewed online at
FAA Order JO 7400.11G, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Rebecca Shelby, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5857.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the
The FAA published an NPRM for Docket No. FAA-2023-0919 in the
Class E airspace designations are published in paragraphs 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the
FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.
This amendment to 14 CFR part 71modifies the Class E airspace extending upward from 700 feet above the surface within a 6.4-mile (decreased from a 6.5-mile radius) of Rush City Regional Airport, Rush City, MN; removes the Rush City NDB from the airspace legal descriptions; and updates the geographic coordinates of the airport to coincide with the FAA's aeronautical database.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Rush City Regional Airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E airspace extending upward from 700 feet above the surface for Covington Municipal Airport, Covington, TN, as a new instrument approach procedure has been designed for this airport.
Effective 0901 UTC, October 5, 2023. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11 and publication of conforming amendments.
A copy of the Notice of Proposed Rulemaking (NPRM), all comments received, this final rule, and all background material may be viewed online at
FAA Order JO 7400.11G Airspace Designations and Reporting Points and subsequent amendments can be viewed online at
John Fornito,Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Avenue, College Park, GA 30337; Telephone: (404) 305-6364.
The FAA's authority to issue rules regarding aviation safety is found in
The FAA published a notice of proposed rulemaking for Docket No. FAA 2023-1082 in the
Class E airspace designations are published in Paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, incorporated by reference in 14 CFR 71.1 annually. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the
FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.
This action amends 14 CFR part 71 by amending Class E airspace extending upward from 700 feet above the surface for Covington Municipal Airport, Covington, TN, to accommodate area navigation (RNAV) global positioning system (GPS) standard instrument approach procedures (SIAPs) serving this airport. This amendment supports a new instrument approach at this airport. The existing radius would be increased to 10.2 miles (previously 7 miles). Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations in the area.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a.
This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances warrant the preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extends upward from 700 feet above the surface within a 10.2-mile radius of Covington Municipal Airport.
Federal Aviation Administration (FAA), DOT.
Final rule, correction.
This action corrects a final rule published by the FAA in the
Effective date 0901 UTC, October 5, 2023. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11 and publication of conforming amendments.
A copy of the final rule, this final rule correction, and all background material may be viewed online at
FAA Order JO 7400.11G, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Brian Vidis, Rules and Regulations Group, Office of Policy, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.
The FAA published a final rule in the
Accordingly, pursuant to the authority delegated to me, in Docket No. FAA-2023-1533, as published in the
Amend the West Palm Beach, FL Airspace Class C description by adding Area C to the description, to read as follows:
Federal Aviation Administration (FAA), DOT.
Final rule; correction.
The FAA is correcting a final rule published by the FAA in the
Effective date 0901 UTC, October 5, 2023. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11 and publication of conforming amendments.
FAA Order JO 7400.11G, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Steven Roff, Rules and Regulations Group, Office of Policy, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.
The FAA published a final rule for Docket No. FAA-2022-0265 in the
Accordingly, pursuant to the authority delegated to me, the geographical coordinates in Docket No. FAA-2022-0265, as published in the
Federal Aviation Administration (FAA), DOT.
Final rule; correction.
The FAA is correcting a final rule published by the FAA in the
Effective date 0901 UTC, October 5, 2023. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11 and publication of conforming amendments.
FAA Order JO 7400.11G, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Steven Roff, Rules and Regulations Group, Office of Policy, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.
The FAA published a final rule for Docket No. FAA-2022-0215 in the
Accordingly, pursuant to the authority delegated to me, the longitude degrees for ZIKNI, AK, WP and RUFVY, AK, WP reflected in Docket No. FAA-2022-0215, as published in the
Federal Aviation Administration (FAA), DOT.
Final rule; correction.
A final rule was published in the
Effective 0901 UTC, October 5, 2023. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11 and publication of conforming amendments.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Ave., College Park, GA 30337; Telephone (404) 305-6364.
The FAA published a final rule in the
Accordingly, pursuant to the authority delegated to me, the amendment of Class E airspace designated as an extension to the Class C surface area for Nashville International Airport, TN, in Docket No. FAA-2023-0995, as published in the
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends the Class E airspace at Ruston, LA. This action is the result of an airspace review caused by the decommissioning of the Ruston non-directional beacon (NDB). The geographic coordinates of the airport are also being updated to coincide with the FAA's aeronautical database.
Effective 0901 UTC, November 30, 2023. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11 and publication of conforming amendments.
A copy of the Notice of Proposed Rulemaking (NPRM), all comments received, this final rule, and all background material may be viewed online at
FAA Order JO 7400.11G, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Rebecca Shelby, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5857.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class E airspace extending upward from 700 feet above the surface at Ruston Regional Airport, Ruston, LA, to support instrument flight rule operations at this airport.
The FAA published an NPRM for Docket No. FAA-2023-0735 in the
Class E airspace designations are published in paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order Jo 7400.11G is publicly available as listed in the
FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.
This amendment to 14 CFR part 71 modifies the Class E airspace extending upward from 700 feet above the surface to within a 6.5-mile radius of Ruston Regional Airport, Ruston, LA, and updates the geographic coordinates of the airport to coincide with the FAA's aeronautical database.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Ruston Regional Airport.
Census Bureau, Commerce Department.
Final rule.
The Census Bureau issues this final rule amending its regulations to reflect new export reporting requirements related to the State Department, Directorate of Defense Trade Controls (DDTC) Category XXI Determination Number. Specifically, the Census Bureau is adding a conditional data element, DDTC Category XXI Determination Number, when “21” is selected in the DDTC USML Category Code field in the Automated Export System (AES) to represent United States Munitions List (USML) Category XXI. In addition, this rule makes remedial changes to the Foreign Trade Regulations (FTR) to update International Traffic in Arms Regulations (ITAR) references in existing data elements: DDTC Significant Military Equipment Indicator and DDTC Eligible Party Certification Indicator. This rule also makes other remedial changes to the FTR.
This final rule is effective November 8, 2023.
Omari S. Wooden, Assistant Division Chief, Data User and Respondent Outreach, Economic Management Division, Census Bureau by phone (301) 763-3829 or by email
The Census Bureau is amending the Foreign Trade Regulations (FTR) to add a conditional data element, Directorate of Defense Trade Controls (DDTC) Category XXI Determination Number, when “21” (see Appendix L of the Automated Export System Trade Interface Requirements (AESTIR)) is selected in the DDTC United States Munitions List (USML) Category Code field in the Electronic Export Information (EEI). The FTR defines the DDTC USML Category Code as the USML category of the article being exported (22 CFR) part 121).
Public Law 106-113 amended 13 U.S.C. 301, to add subsection “(h)” directing the Secretary of Commerce to require, by regulation, the mandatory electronic filing of export information through the Automated Export System (AES) for items identified in the Commerce Control List (CCL) and the USML. Under the authorities in chapter 9 of title 13, U.S.C., the Secretary of Commerce will collect additional data on the export of items under DDTC USML Category Code “21” to identify and validate commodities for which DDTC USML Category Code “21” is cited.
The DDTC Category XXI Determination Number is a unique number issued by DDTC in conjunction with a notification that a specific commodity is described in USML Category XXI. Information on valid USML Category XXI determinations and the prospective AES error code may be found in the Frequently Asked Questions section of DDTC's website (
The Census Bureau published a Notice of Proposed Rulemaking (NPRM) in the
Finally, the U.S. Department of Homeland Security and the U.S. Department of State concur with the revisions to the FTR as required by 13 U.S.C. 302 and Public Law 107-228, division B, title XIV, section 1404.
The Census Bureau received three comments on the NPRMs published in the
As discussed above, after consideration of the comments received on the proposed rule, the Census Bureau includes in this final rule an additional change to § 30.3(e)(1)(ii) to reference the USPPI Identification Number instead of USPPI EIN or DUNS. This change will provide consistency with § 30.6(a)(1)(iii), which states that, if the USPPI Identification Number is reported as a DUNS, the submission of the EIN of the USPPI also is required. Additionally, FTR Appendix B to Part 30—AES Filing Citation, Exemption and Exclusion Legends (II and III) will be changed from USPPI EIN to USPPI Identification Number to allow further consistency with § 30.6(a)(1)(iii).
Pursuant to the Foreign Relations Act, Public Law 107-228 and 13 U.S.C. 302, the Census Bureau is amending relevant sections of the FTR to revise or clarify export reporting requirements. Therefore, the Census Bureau is amending 15 CFR part 30 by making the following revisions:
• Revise § 30.2(d)(3) to remove the language, “(See subpart B of this part for export control requirements for these types of transactions.),” as the exclusion overrides the export control requirements.
• Revise § 30.3(e)(1)(ii) to remove USPPI EIN or DUNS and replace with USPPI Identification Number.
• Revise § 30.6(a)(1)(iii) to clarify that, when the Dun and Bradstreet Number (DUNS) is reported as the U.S. Principal Party in Interest (USPPI) Identification Number, the Employer Identification Number (EIN) of the USPPI also is required to be reported in the Automated Export System.
• Revise § 30.6(b)(3) to amend the Foreign Trade Zone (FTZ) identifier to allow for nine digits. The increased number of digits is required because of the increase in the number of subzones.
• Revise § 30.6(b)(16)(ii) to amend the DDTC Significant Military Equipment (SME) indicator by updating the ITAR references as a result of DDTC relocating certain ITAR provisions to improve the overall structure of the ITAR.
• Revise § 30.6(b)(16)(iii) to amend the DDTC eligible party certification indicator by updating the ITAR references as a result of DDTC relocating certain ITAR provisions to improve the overall structure of the ITAR.
• Revise § 30.6(b)(16)(ix) to add the conditional data element “DDTC Category XXI Determination Number.” The “DDTC Category XXI Determination Number” will be the unique number issued by DDTC to a member of the regulated community (usually the original equipment manufacturer) in conjunction with a notification that a specific commodity is described in USML Category XXI. This number is required only when citing Category XXI as an export classification and is used to confirm that an authoritative DDTC USML Category XXI determination is being referenced to do so.
• Revise § 30.37(u) to remove and reserve the exemption for technical data. This exemption is covered under § 30.2(d)(3), making the exemption redundant.
• Revise § 30.55 to remove the citation “19 CFR 103.5” and add in its place “19 CFR part 103.”
• Revise § 30.71 to amend the Note to paragraph (b) to address the yearly adjustments for civil penalties as a result of inflation.
• Revise § 30.74 to amend paragraph (c)(5) to remove information that may become outdated and referencing the Census Bureau website to obtain the most current method for submitting a Voluntary Self-Disclosure.
• Revise FTR Appendix B to Part 30—AES Filing Citation, Exemption and Exclusion Legends (II and III) to remove USPPI EIN and add in its place USPPI Identification Number.
The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy, Small Business Administration that this rule will not have a significant economic impact on a substantial number of small entities. There were no comments on this certification in the proposed rule.
In the current Foreign Trade Regulations, the Electronic Export Information (EEI) shall be filed through the Automated Export System (AES) for all exports of physical goods. The AES is the electronic system for collecting Shipper's Export Declaration (SED) (or any successor document) information from persons exporting goods from the United States, Puerto Rico, Foreign Trade Zones located in the United States and Puerto Rico, the U.S. Virgin Islands, between the U.S. and Puerto Rico, and to the U.S. Virgin Islands from the United States or Puerto Rico. Under this final rule, export shipments with “21” in the DDTC USML Category Code field will be required to report the DDTC Category XXI Determination Number.
In calendar year 2022, authorized agents and U.S. Principal Parties in
This rule has been determined to not be significant for purposes of Executive Order 12866. This rule does not contain policies with federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 13132.
Notwithstanding any other provisions 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 valid Office of Management and Budget (OMB) control number.
The information collection requirements included in this rule will be submitted to OMB for review under OMB Control Number 0607-0152. The information collection associated with that control number was approved after 60-day and 30-day public comment periods (87 FR 70777; 88 FR 7680). This rule changes existing requirements for the information collection but will not impact the current reporting-hour burden approved under that control number. Public comment is sought regarding: whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; 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, including through the use of automated collection techniques or other forms of information technology. Submit comments on these or any other aspects of the collection of information to
Robert L. Santos, Director, Census Bureau, approved the publication of this notification in the
Economic statistics, Exports, Foreign trade, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, the Census Bureau is amending 15 CFR part 30 as follows:
5 U.S.C. 301; 13 U.S.C. 301-307; Reorganization plan No. 5 of 1990 (3 CFR 1949-1953 Comp., p. 1004); Department of Commerce Organization Order No. 35-2A, July 22, 1987, as amended, and No. 35-2B, December 20, 1996, as amended; Public Law 107-228, 116 Stat. 1350.
(d) * * *
(3) Electronic transmissions and intangible transfers.
(e) * * *
(1) * * *
(ii) USPPI Identification Number.
(a) * * *
(1) * * *
(iii)
(b) * * *
(3)
(16) * * *
(ii)
(iii)
(ix)
The contents of the statistical copies of import entries and withdrawals on file with the Census Bureau are treated as confidential and will not be released without authorization by CBP, in accordance with 19 CFR part 103 relating to the copies on file in CBP offices. The importer or import broker must provide the Census Bureau with
The civil monetary penalties are adjusted for inflation annually based on The Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410; 28 U.S.C. 2461), as amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-134) and the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Section 701 of Pub. L. 114-74). In accordance with this Act, as amended, the penalties in title 13, chapter 9, sections 304 and 305(b), United States Code are adjusted and published each year in the
(c) * * *
(5)
Coast Guard, DHS.
Notification of enforcement of regulations.
The Coast Guard will enforce a safety zone that encompasses certain navigable waters on Lake Erie, for D-Day Conneaut, in Conneaut, OH. This action is necessary and intended for the safety of life and property on navigable waters during this event. During the enforcement period, no person or vessel may enter the respective safety zone without the permission of the Captain of the Port Buffalo or a designated representative.
The regulations in 33 CFR 165.939, entry (c)(2) of Table to § 165.939, will be enforced from 1:45 p.m. through 5:45 p.m. each day from August 17, 2023, through August 19, 2023.
If you have questions about this notice of enforcement, call or email Lieutenant Jared Stevens, Waterways Management Division, U.S. Coast Guard Marine Safety Unit Cleveland; telephone 216-937-0124, email
The Coast Guard will enforce Safety Zones; Annual Events in the Captain of the Port Buffalo Zone, as listed in 33 CFR 165.939, Table 165.939(c)(2) in Conneaut, OH on all U.S. waters of Conneaut Township Park, Lake Erie, within an area starting at 41°57.71′ N, 080°34.18′ W, to 41°58.36′ N, 080°34.17′ W, to 41°58.53′ N, 080°33.55′ W, to 41°58.03′ N, 080°33.72′ W (NAD 83), and returning to the point of origin.
Pursuant to 33 CFR 165.23, entry into, transiting, or anchoring within the safety zone during an enforcement period is prohibited unless authorized by the Captain of the Port Buffalo or a designated representative. Those seeking permission to enter the safety zone may request permission from the Captain of Port Buffalo via channel 16, VHF-FM. Vessels and persons granted permission to enter the safety zone shall obey the directions of the Captain of the Port Buffalo or his designated representative. While within a safety zone, all vessels shall operate at the minimum speed necessary to maintain a safe course.
This notice of enforcement is issued under authority of 33 CFR 165.939 and 5 U.S.C. 552(a). In addition to this notice of enforcement in the
Coast Guard, Department of Homeland Security (DHS).
Temporary final rule.
The Coast Guard is establishing a safety zone for the James DeYoung Powerplant Explosive Demolition on August 10, 2023. This safety zone is located on all waters of
This rule is effective from 8:30 a.m. through 9:45 a.m. August 10, 2023.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions about this rule, call or email Petty Officer Brianna Southard, USCG SECTOR Lake Michigan—Waterways Management Division, U. S. Coast Guard; telephone 414-747-7188, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the event sponsor changed the date of the demolition and did not provide the Captain of the Port enough notice to accommodate the comment period. It is impracticable to conduct a notice-and-comment rulemaking and have this temporary rule in place by August 10, 2023.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector Lake Michigan (COTP) has determined that potential hazards associated with the explosive demolition, will be a safety concern for anyone within a 1000-foot radius of the demolition site. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the demolition.
This rule establishes a safety zone from 8:30 a.m. until 9:45 a.m. on August 10, 2023. The safety zone will cover all navigable waters within a 1000-foot radius of position 42°47.726′ N 086°6.81′ W in the vicinity of the James DeYoung Powerplant on the Macatawa River, Holland, MI. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the demolition. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the size, location and duration of the safety zone. The safety zone will impact a small part of the waterway and is designed to minimize impact on navigable waters. This rule will prohibit entry into certain navigable waters of Macatawa River in Holland, MI, and is not anticipated to exceed 1 hour in duration. Moreover, under certain conditions vessels may still transit through the safety zone when permitted by the COTP Lake Michigan.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves safety zone with a 1000-foot radius on the Macatawa River around position 42°47.726′ N 086°6.81′ W on August 10, 2023, from 8:30 a.m. until 9:45 a.m. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons set out in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.
(a)
(b)
(1) The general regulations in § 165.23.
(2) All vessels must obtain permission from the Captain of the Port (COTP) Lake Michigan or his or her designated representative to enter, move within, or exit a safety zone established in this section when the safety zone is enforced. Vessels and persons granted permission to enter one of the safety zones listed in this section must obey all lawful orders or directions of the COTP Lake Michigan or his or her designated representative. Upon being hailed by the U.S. Coast Guard by siren, radio, flashing light or other means, the operator of a vessel must proceed as directed.
(c)
Postal Service
Final rule.
The Postal Service is amending
Steven Jarboe at (202) 268-7690, Devin Qualls at (202) 268-3287, or Garry Rodriguez at (202) 268-7281.
On June 28, 2023, the Postal Service published a notice of proposed rulemaking (88 FR 41871-41872) to add an additional IMpb validation. In response to the proposed rule, the Postal Service did not receive any formal comments.
The Postal Service is adding a third validation under the “Barcode Quality” compliance category that will require that an IMpb must include a valid, unique 3-digit STC that accurately represents the mail class, product, and service combination on the physical label affixed to the package. Additionally, the IMpb on the package must also correspond with electronic package level details and Extra Services Code(s) contained within the Shipping Services File (SSF). Any variance in the data presented in the electronic submission of a parcel or a variance with the physical aspect of the label affixed to a parcel presented for mailing will be subject to the IMpb noncompliance fee if a mailer falls below the 98 percent threshold.
We believe this revision will ensure IMpb quality enabling the Postal Service to provide customers with a more efficient mailing experience.
The Postal Service adopts the described changes to
We will publish an appropriate amendment to 39 CFR part 111 to reflect these changes.
Administrative practice and procedure, Postal Service.
Accordingly, 39 CFR part 111 is amended as follows:
5 U.S.C. 552(a); 13 U.S.C. 301-307; 18 U.S.C. 1692-1737; 39 U.S.C. 101, 401-404, 414, 416, 3001-3018, 3201-3220, 3401-3406, 3621, 3622, 3626, 3629, 3631-3633, 3641, 3681-3685, and 5001.
• The IMpb must include a valid, unique 3-digit Service Type Code that accurately represents the mail class, product, and service combination on the physical label affixed to the package and the electronic package level details and Extra Services Code(s) in the Shipping Services File.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving Washington State Implementation Plan (SIP) revisions submitted on August 10, 2022. The submitted revisions incorporate the most recent updates to Washington's Smoke Management Plan and reflect state legislative and regulatory changes. The EPA is approving the revisions based on our determination that the revisions are consistent with Clean Air Act requirements.
This final rule is effective September 11, 2023.
The EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2022-0731. All documents in the docket are listed on the
Randall Ruddick, EPA Region 10, 1200 Sixth Avenue (Suite 155), Seattle, WA 98101, (206) 553-1999,
Throughout this document wherever “we” or “our” is used, it means the EPA.
On March 23, 2023, the EPA proposed to approve Washington's August 10, 2022, SIP submission revising the Washington Smoke Management Plan (88 FR 17481). The reasons for our proposed approval are included in the proposal and will not be restated here. The public comment period closed on April 24, 2023. We received one anonymous comment in support of our proposed action; therefore, we are finalizing our action as proposed.
The EPA is approving and incorporating by reference, where appropriate, Washington's 2022 submitted revisions into the Washington SIP 40 CFR part 52, subpart WW as discussed in our March 23, 2023, proposed approval (88 FR 17481). Once this approval becomes effective, the Washington SIP will include the following statutes and regulations:
• RCW 52.12.103, Burning Permits—Issuance—Contents (state effective March 27, 1984);
• RCW 52.12.104, Burning Permits—Duties of permittee (state effective March 27, 1984);
• RCW 76.04.005, Definitions. (1) “Additional fire hazard” (5) “Department protected lands” (9) “Forest debris” (11) “Forestland” (12) “Forestland owner,” “owner of forestland,” “landowner,” or “owner” (13) “Forest material” (15) “Landowner operation” (18) “Participating landowner” (20) “Slash” (21) “Slash burning” (23) “Unimproved lands” (state effective July 24, 2015);
• RCW 76.04.205, Burning Permits—Civil Penalty (state effective July 25, 2021);
• RCW 70A.15.1030, Definitions. (21) “Silvicultural burning” (state effective June 11, 2020);
• RCW 70A.15.5000, Definition of “outdoor burning” (state effective July 26, 2020);
• RCW 70A.15.5010, (2) Outdoor burning—Fires prohibited—Exceptions (state effective June 11, 2020);
• RCW 70A.15.5020, Outdoor burning—Areas where prohibited—Exceptions—Use for management of storm or flood-related debris—Silvicultural burning, except (3) (state effective June 11, 2020);
• RCW 70A.15.5120, Burning permits for abating or prevention of forest fire hazards, management of ecosystems, instruction on silvicultural operations—Issuance—Fees (state effective June 11, 2020);
• RCW 70A.15.5130, Silvicultural forest burning—Reduce statewide emissions—Exemption—Monitoring program (state effective July 28, 2019);
• RCW 70A.15.5140, Burning permits for abating or prevention of forest fire hazards, management of ecosystems, instruction on silvicultural operations—Conditions for issuance and use of permits—Air quality standards to be met—Alternate methods to lessen forest debris (state effective June 11, 2020);
• RCW 70A.15.5150, Cooperation between department of natural resources and state, local, or regional air pollution authorities—Withholding of permits (state effective June 11, 2020);
• RCW 70A.15.5190, Outdoor burning allowed for managing storm or flood related debris (state effective June 11, 2020);
• WAC 332-24-201, Burning Permit Program—Requirements and Exceptions (state effective June 30, 1992);
• WAC 332-24-205, General rules—minimum requirements for all burning, except (13) (state effective November 22, 2019);
• WAC 332-24-211, Specific rules for small fires not requiring a written burning permit (solely for the purpose of establishing the size threshold for burns covered by the Smoke Management Plan) (state effective June 30, 1992);
• WAC 332-24-217, Burning permit—penalty (state effective June 30, 1992);
• WAC 332-24-221, Specific rules for burning that requires a written burning permit (state effective February 1, 2012).
In addition, the EPA is proposing to approve, but not incorporate by reference, into the Washington SIP at 40 CFR part 52, subpart WW the Department of Natural Resources Smoke Management Plan, state effective May 10, 2022 (including all Appendices to such plan), as such plan applies to silvicultural burning regulated by DNR.
We note that, as provided in 40 CFR 52.2476 of the Washington SIP, any variance or exception to the 2022 SMP granted by DNR or Ecology must be submitted by Washington for approval to EPA in accordance with the requirements for revising SIPs in 40 CFR 51.104 and any such variance or exception does not modify the requirements of the federally approved Washington SIP until approved by EPA as a SIP revision.
In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of regulatory provisions described in section II of this preamble and set forth in the amendments to 40 CFR part 52 in this document. The EPA has made, and will continue to make, these materials reasonably available through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act.
Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. The EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”
The air agency did not evaluate environmental justice considerations as part of its SIP submittal; the Clean Air Act and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the
In addition, the SIP is not approved to apply on any Indian reservation land in Washington except as specifically noted below and is also not approved to apply in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law. Washington's SIP is approved to apply on non-trust land within the exterior boundaries of the Puyallup Indian Reservation, also known as the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress explicitly provided state and local agencies in Washington authority over activities on non-trust lands within the 1873 Survey Area. Consistent with EPA policy, the EPA provided a consultation opportunity to potentially affected tribes in a letter dated May 24, 2022.
This action is subject to the Congressional Review Act, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 10, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:
42 U.S.C. 7401
The additions read as follows:
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Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of (2S)-5-Oxopyrrolidine-2-carboxylic Acid (L-PCA) in or on all food commodities when used as a plant growth regulator in accordance with label directions and good agricultural practices. Exponent, on behalf of Verdesian Life Sciences U.S., LLC, submitted a petition, pursuant to the Federal Food, Drug, and Cosmetic Act (FFDCA), asking the EPA to amend its regulations to establish an exemption from the requirement of a tolerance for residues of the pesticide, when used as a plant growth regulator on agricultural crops, turf and ornamental plants. Instead, EPA is establishing an exemption from the requirement of a tolerance for residues L-PCA in or on all food commodities when applied in buffered end-use products and used in accordance with label directions and good agricultural practices. This regulation eliminates the need to establish a maximum permissible level for residues of L-PCA when used in accordance with this exemption.
This regulation is effective August 10, 2023. Objections and requests for hearings must be received on or before October 10, 2023 and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2018-0158, is available at
Madison Le, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (202) 566-1400; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, greenhouse owner, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Office of the Federal Register's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2018-0158 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before October 10, 2023. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2018-0158, by one of the following methods:
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Additionally, FFDCA section 408(b)(2)(D) requires that the Agency consider “available information concerning the cumulative effects of a particular pesticide's residues” and “other substances that have a common mechanism of toxicity.”
EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no harm to human health. If EPA is able to determine that a tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, an exemption from the requirement of a tolerance may be established.
Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for L-PCA including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with L-PCA follows.
L-PCA is derived from L-glutamic acid via an intramolecular condensation reaction. L-PCA is naturally found in mammalian tissues. L-PCA has a non-toxic mode of action and can effectively enhance upregulation of the glutamine synthesis pathway. When applied to plants, it has demonstrated effects, such as increased growth, increased nodulation, and greater fresh weight. It also has seed priming properties. L-PCA has a long history of use in consumer products, including dietary supplements and cosmetic products.
L-PCA can be applied in various forms (free acids or salts), but it releases a common moiety that is the pesticidally-active component and serves as the basis for risk assessment and tolerance regulation. Since L-PCA is a strong acid, buffered solutions will contain some salt form, but not enough at any moment in time to be toxicologically relevant.
In the field, the above rationale continues to apply when active ingredient is in solution. If the products dry out on plants and then someone touches them, there would likely be some exposure from the salt form, however, it will not change the toxicology since it would not stay in the salt form once it was solubilized upon ingestion/contact with water.
With regard to the overall toxicological profile, L-PCA is of low toxicity. Acute toxicity data indicate that L-PCA is of low acute oral, dermal, and inhalation toxicity. However, with its low pH (2), it is likely corrosive. The available data suggest it is not a skin sensitizer.
Studies from the open scientific literature on the sodium salt analog, Na-PCA, were submitted to satisfy the 90-day oral for L-PCA. The Na-PCA toxicity database is considered appropriate for use in L-PCA risk assessment when EP formulations are buffered. There is an expectation that EP formulations for use as plant growth regulators will be buffered because unbuffered solutions will not be effective as a plant growth regulator,
For developmental toxicity, a non-guideline 1-generation reproduction toxicity screening study was submitted on Na-PCA in lieu of a developmental toxicity study. The study showed no treatment-related effects on offspring body weights, body weight gains or on post-implantation losses, mean litter size, numbers of live and dead pups born, sex ratio, or the birth or survival indices. No gross or microscopic pathology of the reproductive tract was seen, and reproductive performance was not affected by treatment. While this study is not a guideline developmental toxicity study, EPA has determined that the screening study is acceptable to satisfy the prenatal developmental toxicity data at this time for the specified products. This decision is based on the fact that no observable toxicity was produced at the limit dose
EPA determined that 90-day inhalation toxicity and 90-day dermal studies were not required to assess the risks from L-PCA for the following reasons: (1) physical and chemical properties of the buffered formulations of L-PCA are similar to those of Na-PCA; (2) estimated margins of error (MOEs) are more than 10X the level of concern (LOC); and (3) no irritation was observed in studies conducted using the buffered end-use products.
The available data indicates that the active ingredient is non-mutagenic.
Based on the toxicological profile, EPA did not identify any toxicological endpoints of concern for
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FFDCA Section 408(b)(2)(C) provides that EPA shall retain an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act (FQPA) Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor. An FQPA safety factor is not required at this time for L-PCA because there are no threshold effects; no dietary endpoints have been selected based on the lack of human-relevant adverse effects at limit doses in the 90-day oral toxicity study and prenatal developmental toxicity study.
Based on the available data and information, EPA has concluded that a qualitative aggregate risk assessment is appropriate to support the pesticidal use of L-PCA in buffered end-use products, and that risks of concern are not anticipated from aggregate exposure to the substance in this manner. This conclusion is based on the low toxicity of the active ingredient and its salts, which release a common moiety that is the basis for the risk assessment. Due to the lack of toxicity, EPA concludes that there is no aggregate risk from exposure to L-PCA.
A full explanation of the data upon which EPA relied and its risk assessment based on those data can be found within the September 20, 2022, document entitled “Product Chemistry Review and Human Health Risk Assessment for FIFRA Section 3 Registrations of (2S)-5-Oxopyrrolidine-2-carboxylic Acid (L-PCA) Technical, containing 99.1% L-PCA, VLS 2002-03, Containing 25.0% L-PCA and VLS 2002-03-0.10, Containing 10.0% L-PCA.” This document, as well as other relevant information, is available in the docket for this action as described under
Based on the Agency's assessment, EPA concludes that there is reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of L-PCA.
An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.
Therefore, EPA is establishing an exemption for residues of L-PCA in or on all food commodities when used as a plant growth regulator in accordance with label directions and good agricultural practices.
This action establishes an exemption from the requirement of a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal Governments, on the relationship between the National Government and the States or Tribal Governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR part 180 as follows:
21 U.S.C. 321(q), 346a and 371.
An exemption from the requirement of a tolerance is established for residues of the pesticide, (2S)-5-Oxopyrrolidine-2-carboxylic Acid (L-PCA) in or on all food commodities when used as a plant growth regulator in accordance with label directions and good agricultural practices.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Determination.
The Centers for Disease Control and Prevention (CDC), located within the Department of Health and Human Services (HHS), has determined that an excluded attenuated strain,
This determination is effective August 10, 2023.
Samuel S. Edwin Ph.D., Director, Division of Select Agents and Toxins, Centers for Disease Control and Prevention, 1600 Clifton Road NE, Mailstop H21-4, Atlanta, Georgia 30329, Telephone: (404) 718-2000.
The HHS select agent regulations (42 CFR part 73) established a process by which an attenuated strain of a select biological agent that does not have the potential to pose a severe threat to public health and safety may be excluded from the requirements of the regulations. On October 15, 2003,
As set forth under 42 CFR 73.4(e)(2), if an excluded attenuated strain is subjected to any manipulation that restores or enhances its virulence, the resulting select agent will be subject to the requirements of the regulations. On March 20, 2023, an entity informed CDC of a reversion whereby
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes establishing Class E airspace extending upward from 700 feet above the surface in Warrenton, VA, as new instrument approach procedures have been designed for Fauquier Hospital Emergency Transport Heliport, Warrenton, VA.
Comments must be received on or before September 25, 2023.
Send comments identified by FAA Docket No. FAA-2023-1692 and Airspace Docket No. 23-AEA-13 using any of the following methods:
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FAA Order JO 7400.11G Airspace Designations and Reporting Points and subsequent amendments can be viewed online at
John Goodson, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Avenue, College Park, GA 30337; Telephone: (404) 305-5966.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it would establish Class E airspace in Warrenton, VA.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the proposal's overall regulatory, aeronautical, economic, environmental, and energy-related aspects. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only once if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.
The FAA will file in the docket all comments it receives and a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.
An electronic copy of this document may be downloaded online at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see
Class E airspace designations are published in Paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, incorporated by reference in 14 CFR 71.1 annually. This document proposes to amend the current version of that order, FAA Order JO 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and
FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.
The FAA proposes an amendment to 14 CFR part 71 by establishing Class E airspace extending upward from 700 feet above the surface within a 6.0-mile radius of Fauquier Hospital Emergency Transport Heliport, Warrenton, VA, as new instrument approach procedures have been designed for the heliport.
Controlled airspace is necessary for the area's safety and management of instrument flight rules (IFR) operations. This action is necessary to support IFR operations in the area.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.0-mile radius of Fauquier Hospital Emergency Transport Heliport.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class D airspace and Class E airspace extending upward from 700 feet above the surface for Heart of Georgia Regional Airport, Eastman, GA. This action would increase the radius of the Class D airspace and the Class E airspace extending upward from 700 feet above the surface, as well as amend verbiage in the Class D description. This action would also update the airport's name and geographic coordinates for the Class E airspace extending upward from 700 feet above the surface.
Comments must be received on or before September 25, 2023.
Send comments identified by FAA Docket No. FAA-2023-1674 and Airspace Docket No. 23-ASO-33 using any of the following methods:
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FAA Order JO 7400.11G Airspace Designations and Reporting Points and subsequent amendments can be viewed online at
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Avenue, College Park, GA 30337; Telephone: (404) 305-6364.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A,
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the proposal's overall regulatory, aeronautical, economic, environmental, and energy-related aspects. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only once if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.
The FAA will file in the docket all comments it receives and a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Operations office (see
Class D and Class E airspace designations are published in Paragraphs 5000 and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 annually. This document proposes to amend the current version of that order, FAA Order JO 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and effective September 15, 2022. These updates will be published in the next FAA Order JO 7400.11 update. FAA Order JO 7400.11G is publicly available as listed in the
FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.
The FAA proposes an amendment to 14 CFR part 71 to amend Class D airspace and Class E airspace extending upward from 700 feet above the surface for Heart of Georgia Regional Airport, Eastman, GA, by increasing the Class D radius to 4.6-miles (previously 4.4 miles) and the Class E airspace extending upward from 700 feet above the surface to 7.1-miles (previously 7.0 miles), and update the geographic coordinates to coincide with the FAA's database. This action would also replace Notice to Airmen with Notice to Air Missions and Airport/Facility Directory with Chart Supplement in the Class D description. Finally, this action would update the airport name to Heart of Georgia Regional Airport (formerly Eastman-Dodge County Airport) in the Class E airspace extending upward from 700 feet above the surface. Controlled airspace is necessary for the area's safety and management of instrument flight rules (IFR) operations.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extends upward from the surface to and including 2,500 feet MSL within a 4.6-mile radius of the Heart of Georgia Regional Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Air Missions. The effective date and time will thereafter be continuously published in the Chart Supplement.
That airspace extending upward from 700 feet above the surface within a 7.1-mile radius of Heart of Georgia Regional Airport.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Alaskan VOR Federal Airway V-333 and to revoke Alaskan VOR Federal Airway V-401. The FAA is taking this action due to the pending decommissioning of the Shishmaref, AK, and Ambler, AK, Nondirectional Radio Beacons (NDB). The identifier V-333 is also used as an identifier for Domestic VOR Federal Airway V-333 in the vicinity of Rome, GA. The identifier V-401 is also used as an identifier for Domestic VOR Federal Airway V-401 in the vicinity of Worland, WY. This proposed airspace action only pertains to the Alaskan V-333 and V-401. The V-333 near Rome, GA and V-401 near Worland, WY, would not be affected by this proposed airspace action.
Comments must be received on or before September 25, 2023.
Send comments identified by FAA Docket No. FAA-2023-1147 and Airspace Docket No. 22-AAL-55 using any of the following methods:
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FAA Order JO 7400.11G, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Steven Roff, Rules and Regulations Group, Office of Policy, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it proposes to amend Alaskan VOR Federal Airway V-333 and revoke Alaskan VOR Federal Airway V-401.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.
The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Operations office (see
Alaskan VOR Federal airways are published in paragraph 6010(b) of FAA Order JO 7400.11, Airspace Designations and Reporting Points,
FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.
In 2003, Congress enacted the Vision 100-Century of Aviation Reauthorization Act (Pub L., 108-176), which established a joint planning and development office in the FAA to manage the work related to the Next Generation Air Transportation System (NextGen). Today, NextGen is an ongoing FAA-led modernization of the nation's air transportation system to make flying safer, more efficient, and more predictable.
In support of NextGen, this proposal is part of an ongoing, large and comprehensive T-route modernization project in the state of Alaska. The project mission statement states: “To modernize Alaska's Air Traffic Service route structure using satellite-based navigation development of new T-routes and optimization of existing T-routes will enhance safety, increase efficiency and access, and will provide en route continuity that is not subject to the restrictions associated with ground-based airway navigation.”
As part of this initiative, the Shishmaref, AK, and Ambler, AK, NDBs are scheduled to be decommissioned. As a result, portions of Alaskan V-333 and V-401 in its entirety will become unusable. This airspace action proposes to amend the Alaskan V-333 by removing the portion of the airways that rely on the Shishmaref NDB and revoke Alaskan V-401 airway it its entirety. The mitigations to these amendments are already in place. United States Area Navigation (RNAV) route T-228 overlays Alaskan VOR Federal Airway V-333. Alaskan VOR Federal Airway V-401 extends between Ambler, AK, NDB, Kotzebue, AK, VOR distance measuring equipment (VOR/DME) and Shishmaref, AK, NDB. T-233 is near V-401 to the south between the Ambler, AK, NDB and the Kotzebue, AK, VOR/DME. RNAV route T-364 overlies the V-401 between Kotzebue, AK, VOR/DME and Shishmaref, AK, NDB.
The VOR Federal airway identifier V-333 is used in Alaska and in the Rome, GA, area. The VOR Federal airway identifier V-401 is used in Alaska and in the Worland, WY, area. This proposed airspace action only pertains to the Alaskan V-333 and V-401. It would not affect the V-333 near Rome, GA or the V-401 near Worland, WY.
The FAA proposes to amend 14 CFR part 71 by amending Alaskan VOR Federal airway V-333 and revoking Alaskan VOR Federal airway V-401 in its entirety. The Domestic VOR Federal airways V-333 and V-401 would remain unchanged. The proposed airspace actions are described below.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
From Hooper Bay, AK; to Nome, AK.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to modify the Class E airspace extending upward from 700 feet above the surface at Minden-Tahoe Airport, Minden, NV.
Comments must be received on or before September 25, 2023.
Send comments identified by FAA Docket No. FAA-2023-1006 and Airspace Docket No. 22-AWP-65 using any of the following methods:
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FAA Order JO 7400.11G, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Keith T. Adams, Federal Aviation Administration, Western Service Center, Operations Support Group, 2200 S 216th Street, Des Moines, WA 98198; telephone (206) 231-2428.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify Class E airspace to support IFR operations at Minden-Tahoe Airport, Minden, NV.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.
The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Operations office (see
Class E5 airspace designations are published in paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. These updates would be published in the next update to FAA Order JO 7400.11. That order is publicly available as listed in the
FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.
The FAA is proposing an amendment to 14 CFR part 71 to modify the Class E airspace extending upward from 700 feet above the surface at Minden-Tahoe Airport, Minden, NV.
The southern portion should have an extension .5 miles past the radius on a 180 bearing with a width of 1.2 miles on each side to better contain arriving IFR operations below 1,500 feet above the surface. Additionally, the northern portion of the existing Class E airspace should have an extension .2 miles past the 6.5-mile radius on a 359 bearing with a width of 1.8 nautical miles on each side to better contain departing IFR operations until they reach 1,200 feet above the surface.
Finally, the FAA proposes administrative modifications to the airport's associated legal descriptions. The geographic coordinates located on line three of the text header should be updated to match the FAA's database.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of the Minden-Tahoe Airport and 1.8 miles on each side of a 359° bearing from the airport extending from the 6.5-mile radius to 6.57 miles north of the airport and 1.2 miles on each side of a 180 bearing from the airport extending from the 6.5-mile radius to 7 miles south of the airport.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class D airspace, Class E surface airspace, and Class E airspace designated as an extension to a Class D surface area for Lynchburg Regional Airport/Preston Glenn Field, Lynchburg, VA. This action would increase the radius for this airport, as well as amending verbiage in the descriptions.
Comments must be received on or before September 25, 2023.
Send comments identified by FAA Docket No. FAA-2023-1736 and Airspace Docket No. [23-AEA-14) using any of the following methods:
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FAA Order JO 7400.11G Airspace Designations and Reporting Points and subsequent amendments can be viewed online at
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Avenue, College Park, GA 30337; Telephone: (404) 305-6364.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it would amend Class D and Class E airspace in Lynchburg, VA. An airspace evaluation determined that this update is necessary to support IFR operations in the area.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only once if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.
The FAA will file in the docket all comments it receives and a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Operations office (see
Class D and Class E airspace designations are published in Paragraphs 5000, 6002, and 6004 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 annually. This document proposes to amend the current version of that order, FAA Order JO 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and effective September 15, 2022. These updates would subsequently be published in the next update to FAA Order JO 7400.11. FAA Order JO 7400.11G is publicly available as listed in the
The FAA proposes an amendment to 14 CFR part 71 to amend Class D airspace and Class E surface airspace by:
• Updating the airport name to Lynchburg Regional Airport/Preston Glenn Field (previously Lynchburg Regional-Preston Glenn Field Airport).
• Increasing the radius to 4.6 miles (previously 4.5 miles).
• Removing the city name from the airport header.
• Removing the state name from the Falwell Airport header.
• Replacing the terms Notice to Airmen with Notice to Air Missions and Airport/Facility Directory with Chart Supplement.
• Removing the Lynchburg VORTAC from the description, as it is unnecessary in describing the airspace.
The FAA proposes an amendment to 14 CFR part 71 to amend Class E airspace designated as an extension to a Class D surface area by:
• Updating the airport name to Lynchburg Regional Airport/Preston Glenn Field
• Removing the Lynchburg VORTAC from the description is unnecessary in describing the airspace.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from the surface to and including 3,400 feet MSL within a 4.6-mile radius of Lynchburg Regional Airport/Preston Glenn Field, excluding the portion within a .5-mile radius of Falwell Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Air Missions. The effective date and time will thereafter be published continuously in the Chart Supplement.
That airspace extending upward from the surface within a 4.6-mile radius of Lynchburg Regional Airport/Preston Glenn Field, excluding the portion within a .5-mile radius of Falwell Airport. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Air Missions. The effective date and time will thereafter be published continuously in the Chart Supplement.
That airspace extending upward from the surface within 1.6-miles each side of the 028° bearing of Lynchburg Regional Airport/
Federal Trade Commission.
Notice of proposed rulemaking; extension of comment period.
The Federal Trade Commission (“FTC” or “Commission”) is extending the deadline for filing comments on its notice of proposed rulemaking (“NPRM”) regarding the Premerger Notification; Reporting and Waiting Period Requirements.
For the NPRM published in the
Interested parties may file a comment online or on paper by following the instructions in the Request for Comment part of the
Robert L. Jones, Assistant Director, Premerger Notification Office, Bureau of Competition, Federal Trade Commission, 400 7th Street SW, Room CC-5301, Washington, DC 20024.
On June 27, 2023, the Commission announced and made public its notice of proposed rulemaking regarding the Hart-Scott-Rodino Coverage, Exemption, and Transmittal Rules (“HSR Form Change”), including its request for public comment on all aspects of the proposed rule. The NPRM was subsequently published in the
Interested parties have requested an extension of the public comment period to give them additional time to respond to the NPRM's request for comment. While the Commission believes that the current 60-day period—which is 62 days after public release of the notice of proposed rulemaking—is sufficient for meaningful comment and public participation, the Commission agrees to allow the public additional time to prepare and file comments. The Commission therefore extends the comment period to September 27, 2023, to provide commenters a total of 92 days from the public release of the NPRM on June 27, 2023. This is a 30-day extension of the 60-day comment period from publication in the
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before September 27, 2023. Write “16 CFR parts 801-803—Hart-Scott-Rodino Coverage, Exemption, and Transmittal Rules, Project No. P239300” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the
Because of the agency's security screening, postal mail addressed to the Commission will be subject to delay. We strongly encourage you to submit your comment online through
If you file your comment on paper, write “16 CFR parts 801-803—Hart-Scott-Rodino Coverage, Exemption, and Transmittal Rules, Project No. P239300” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610, (Annex H), Washington, DC 20580. If possible, please submit your paper comment to the Commission by overnight service.
Because your comment will be placed on the publicly accessible website,
Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c), 16 CFR 4.9(c). The written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. See FTC Rule 4.9(b). Your comment will be kept confidential only if the General Counsel grants your request in accordance with the law and the public interest. Once your comment has been posted publicly at
Visit the Commission's website,
By direction of the Commission.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve State Implementation Plan (SIP) revisions to the San Joaquin Valley Air Pollution Control District (SJVAPCD) portion of the California State Implementation Plan (SIP). The revisions were submitted by the California Air Resources Board (CARB), on behalf of SJVAPCD, in response to EPA's May 22, 2015, finding of substantial inadequacy and SIP call for certain provisions in the SIP related to exemptions and affirmative defenses applicable to excess emissions during startup, shutdown, and malfunction (SSM) events. EPA is proposing approval of the SIP revisions because the Agency has determined that they are in accordance with the requirements for SIP provisions under the Clean Air Act (CAA or the Act).
Comments must be received on or before September 11, 2023.
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2022-0604 at
Christine Vineyard, EPA Region IX, 75 Hawthorne St., San Francisco, CA 94105. By phone: (415) 947-4125 or by email at
Throughout this document wherever “we” or “our” is used, it refers to EPA.
On February 22, 2013, the EPA issued a Federal Register notice of proposed rulemaking outlining EPA's policy at the time with respect to SIP provisions related to periods of SSM. EPA analyzed specific SSM SIP provisions and explained how each one either did or did not comply with the CAA with regard to excess emission events.
On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction,” (80 FR 33839, June 12, 2015), hereafter referred to as the “2015 SSM SIP Action.” The 2015 SSM SIP Action clarified, restated, and updated EPA's interpretation that SSM exemption and affirmative defense SIP provisions are inconsistent with CAA requirements. The 2015 SSM SIP Action found that certain SIP provisions in 36 states were substantially inadequate to meet CAA requirements and issued a SIP call to those states to submit SIP revisions to address the inadequacies. EPA established an 18-month deadline by which the affected states had to submit such SIP revisions. States were required to submit corrective revisions to their SIPs in response to the SIP calls by November 22, 2016.
EPA issued a Memorandum in October 2020 (2020 Memorandum), which stated that certain provisions governing SSM periods in SIPs could be viewed as consistent with CAA requirements.
On September 30, 2021, EPA's Deputy Administrator withdrew the 2020 Memorandum and announced EPA's return to the policy articulated in the 2015 SSM SIP Action (2021 Memorandum).
With regard to the SJVAPCD SIP, in the 2015 SSM SIP Action, the EPA determined that the rules in the following table were substantially inadequate to meet CAA requirements (80 FR 33840, 33973):
Each of these SIP provisions provide an affirmative defense available to sources for excess emissions that occur during a breakdown condition (
CARB, on behalf of SJVAPCD, submitted the SIP revisions on April 14, 2022, in response to the SIP call issued in the 2015 SSM SIP Action. In its submission, California is requesting that EPA revise the SJVAPCD SIP by removing the rules in the table above from the California SIP.
EPA is proposing to approve SJVAPCD's April 14, 2022 SIP submission. Affirmative defense provisions like these are inconsistent with CAA requirements and removal of these provisions would strengthen the SIP. This action, if finalized, would remove the affirmative defense provisions from the SJVAPCD portion of the EPA-approved SIP for California. EPA is proposing to find that these revisions are consistent with CAA requirements and that they adequately address the specific deficiencies that EPA identified in the 2015 SSM SIP Action with respect to the SJVAPCD portion of the California SIP.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). EPA is proposing to approve California's April 14, 2022 SIP submission requesting removal of (i) Fresno County “Rule 110 Equipment Breakdown”; (ii) Kern County “Rule 111 Equipment Breakdown”; (iii) Kings County “Rule 111 Equipment Breakdown”; (iv) Madera County “Rule 113 Equipment Breakdown”; (v) Stanislaus County “Rule 110 Equipment Breakdown”; and (vi) Tulare County “Rule 111 Equipment Breakdown” from the California SIP. We are proposing approval of the SIP revisions because we have determined that they are consistent with the requirements for SIP provisions under the CAA. EPA is further proposing to determine that such SIP revisions correct the deficiencies identified in the May 22, 2015 SIP call. EPA is not reopening the 2015 SSM SIP Action and is only taking comment on whether these SIP revisions are consistent with CAA requirements and whether they address the “substantial inadequacy” of the specific SJVAPCD SIP provisions identified in the 2015 SSM SIP Action.
In this document, EPA is proposing to amend regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, and as described in section I of the preamble, EPA is proposing to remove provisions from Fresno County, Kern County, Kings County, Madera County, Stanislaus County, and Tulare County portions of the California SIP. EPA has made, and will continue to make, these documents generally available through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves removal of State law not meeting Federal requirements and does not impose additional requirements beyond those already imposed by State law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999).
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997).
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001).
Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA.
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”
The State did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) proposes to approve a revision to the Washington State Implementation Plan (SIP) for the Southwest Clean Air Agency (SWCAA) jurisdiction as it relates to the ozone National Ambient Air Quality Standard. This proposed revision updates SWCAA's requirements in the SIP for Stage I and Stage II vapor recovery systems at gasoline dispensing facilities including: decommissioning existing Stage II systems incompatible with onboard refueling vapor recovery systems on or before January 1, 2023; allowing removal from service of Stage II vapor recovery equipment compatible with onboard refueling vapor recovery on or after January 1, 2023; and removing the requirement for Stage II vapor recovery at new installations. The proposed revisions to the SIP also include, among other changes, revised requirements for installation of enhanced conventional nozzles, installation of low permeation hoses, and annual testing based on facility throughput. SWCAA's submittal, in coordination with the Washington Department of Ecology, incudes a demonstration that such removal of Stage II requirements is consistent with the Clean Air Act and EPA guidance.
Comments must be received on or before September 11, 2023.
Submit your comments, identified by Docket ID No. EPA-R10-OAR-2023-0341 at
Jeff Hunt, EPA Region 10, 1200 Sixth Avenue—Suite 155, Seattle, WA 98101, at (206) 553-0256, or
Throughout this document whenever “we,” “us,” or “our” is used, it is intended to refer to the EPA.
Ozone is a gas composed of three oxygen atoms. Ground-level ozone is generally not emitted directly from a vehicle's exhaust or an industrial smokestack but is created by a chemical reaction between nitrogen oxides (NO
Stage II vapor recovery is an air pollution control technology for automobiles and other on-road mobile sources. When an automobile or other vehicle is brought into a gas station to be refueled, the empty portion of the gas tank on the vehicle contains gasoline vapors, which are VOCs. When liquid gasoline is pumped into the partially empty gas tank in the vehicle the vapors are displaced out of the tank as the tank fills with liquid gasoline. Where air pollution control technology is not used, these vapors are emitted into the air. In the atmosphere, these VOCs can, in the presence of sunlight, react with NO
Onboard refueling vapor recovery (ORVR) is another emission control system that can capture fuel vapors from vehicle gas tanks during refueling. ORVR systems are carbon canisters installed directly on automobiles to capture the fuel vapors displaced from the gasoline tank before they are released to the atmosphere. The fuel vapors captured in the carbon canisters are then combusted in the engine when the automobile is started and operated after refueling.
Stage II vapor recovery systems and vehicle ORVR systems were initially both required by the 1990 Amendments to the CAA, with Stage II requirements applying to certain nonattainment areas. Under CAA section 182(b)(3) ozone nonattainment areas classified as moderate and above were required to adopt Stage II requirements. CAA section 202(a)(6), requires an onboard system of capturing vehicle refueling emissions, commonly referred to as an ORVR system. In 1994, the EPA promulgated ORVR standards (59 FR 16262, April 6, 1994). Section 202(a)(6) of the CAA required that the EPA's ORVR standards apply to light-duty vehicles manufactured beginning in the fourth model year after the model year in which the standards were promulgated, and that ORVR systems provide a minimum evaporative emission capture efficiency of 95 percent.
On May 16, 2012, the EPA issued a national rulemaking making the finding that ORVR systems are in “widespread use” and determined that emission reductions from ORVR alone are essentially equal to and will soon surpass the emission reductions achieved by Stage II alone (see 77 FR 28772 at 28772). In the May 16, 2012 action, we noted that each year, non-ORVR-equipped vehicles continue to be replaced with ORVR-equipped vehicles and Stage II and ORVR systems capture the same VOC emissions and thus, are redundant.
The Portland/Vancouver area was designated an interstate ozone nonattainment area in 1978. On November 15, 1990, the CAA Amendments of 1990 were enacted. (Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q). Under section 181(a)(1) of the 1990 CAA, the area was further classified as a “Marginal” ozone nonattainment area. This interstate nonattainment area consisted of the southern portion of Clark County, Washington, and portions of Multnomah, Clackamas, and Washington Counties in Oregon. In 1997, the EPA redesignated the Portland/Vancouver area to attainment (62 FR 27204, May 19, 1997). The Portland/Vancouver area was designated as “unclassifiable/attainment” due to the data showing the area was below the new NAAQS for subsequent updates, including the 1997 8-hour ozone NAAQS (69 FR 23857, April 30, 2004), the 2008 8-hour ozone NAAQS (77 FR 30088, May 21, 2012), and the 2015 8-hour ozone NAAQS (82 FR 54232, November 16, 2017).
The Portland/Vancouver area was not subject to Stage II requirements under the 1990 Clean Air Act Amendments as it was classified as Marginal nonattainment for the 1-hour NAAQS for ozone, rather than Moderate or above. However, SWCAA in coordination with the Washington Department of Ecology submitted SWAPCA 491 “Emission Standards and Controls for Sources Emitting Gasoline Vapors” (state effective November 21, 1996, subsequently renamed to SWCAA 491) which contained Stage II requirements as a SIP-strengthening measure approved concurrently with redesignation of the Portland/Vancouver area to attainment (see proposed rulemaking, 62 FR 10501, March 7, 1997, at page 10507). On August 11, 2015 (80 FR 48033), the EPA approved SWCAA's maintenance plan update for the Vancouver portion of the Portland/Vancouver area that specifically anticipated and modeled widespread use of ORVR and the full decommissioning of Stage II in the modeling demonstration of continued attainment through 2015. The SWCAA maintenance plan update and the
On June 22, 2023, SWCAA, in coordination with the Washington Department of Ecology as the Governor's designee for revisions to the SIP, submitted the current version of SWCAA 491 “Emission Standards and Controls for Sources Emitting Gasoline Vapors” (state effective February 7, 2020) for EPA approval. Since the EPA's last approval of SWCAA 491, SWCAA revised the regulations four times. Effective June 24, 2000, SWCAA updated the regulations to revise applicability of the Stage II vapor recovery program, which is now replaced by the applicability provisions of the current SWCAA 491. Other changes to SWCAA 491, effective June 24, 2000, are generally SIP-strengthening in nature including the addition of gasoline marine vessel loading and unloading vapor control requirements, which are now contained in the current version of SWCAA 491. The exact revisions in 2000 are in redline/strikeout format included in the docket for this action under WSR 00-11-149. Effective March 18, 2001 (WSR 01-05-067), SWCAA made minor changes to SWCAA 491 to reflect the name change from “Southwest Pollution Control Authority” to “Southwest Clean Air Agency.” Effective June 18, 2017 (WSR 17-11-080), SWCAA consolidated all agency fees into a single location and updated the cross reference in SWCAA 491-030 accordingly. We note that the 2000, 2001, and 2017 revisions to SWCAA 491 were not previously submitted as updates to the SIP. However, to the extent these revisions are retained in the current version of SWCAA 491 submitted for approval, we are proposing to determine that these relatively minor changes since our last update to the SIP in 1997 are approvable.
The most substantive changes to SWCAA 491 since the EPA's last approval are detailed in WSR 20-03-031, state effective February 7, 2020. Among other changes, this revision to SWCAA 491 included the following: added a requirement to install enhanced conventional (ECO) nozzles; added a requirement that low permeation hoses be installed on higher volume gasoline dispensing facilities without balance type Stage II vapor recovery equipment by no later than January 1, 2023; added a requirement for annual testing of Stage I vapor recovery systems;
The EPA's primary consideration for determining the approvability of SWCAA's revisions to remove Stage II vapor control requirements and provide for decommissioning of Stage II equipment within SWCAA's jurisdiction is whether these revisions comply with section 110(l) of the Act. Section 110(l) requires that a revision to the SIP not interfere with any applicable requirement concerning attainment and reasonable further progress (RFP), or any other applicable requirement of the Act. The EPA can approve a SIP revision that removes or modifies control measures in the SIP once the state or local agency makes a “noninterference” demonstration that such removal or modification will not interfere with attainment of the NAAQS, RFP, or any other CAA requirement.
The EPA reviewed SWCAA's submittal with the revised SWCAA 491 regulatory text as well as the accompanying analysis of emissions impacts. We propose to determine that SWCAA's June 22, 2023, SIP revision addresses the EPA's Widespread Use for Onboard Refueling Vapor Recovery and Stage II Waiver (77 FR 28772) and is consistent with the EPA's “Guidance on Removing Stage II Gasoline Vapor Control Programs from State Implementation Plans and Assessing Comparable Measures” (EPA-457/B-12-001, August 7, 2012).
The demonstration indicates that the emissions benefit of retaining Stage II requirements is rapidly diminishing with vehicle fleet turnover and ORVR penetration. As discussed in the EPA 2012 Guidance, the EPA has developed equations to assist states in evaluating the emissions consequences of phasing out existing Stage II programs. These equations may be used to calculate an “increment,” which identifies the area-wide emission control gained from Stage II installations as ORVR technology phases in. For example, using the equations in the EPA 2012 Guidance, SWCAA calculated the increment declining from 4.0% in 2020 to 1.1% in 2023 for Clark County, the most populous county in SWCAA's jurisdiction. Projecting these increments to full implementation of the rule in 2023, the removal of Stage II vapor recovery systems would result in minimal increases in VOC emissions of 18.31 tons per year (tpy) for SWCAA's entire jurisdiction. Additionally, SWCAA calculated the emission reduction benefits of enhanced conventional nozzles and low permeation hoses. These emission reduction benefits are estimated to be 33.84 tpy, outweighing the emissions increase from decommissioning Stage II
Lastly, the removal of Stage II is consistent with the current maintenance plan update for the Vancouver portion of the Portland/Vancouver ozone area (80 FR 48033, August 11, 2015). As previously discussed, this maintenance plan update was approved by the EPA in 2015. The associated modeling, included in the docket for this action, anticipated the decommissioning of Stage II in the projection of continued ozone attainment for the 1997 8-hour ozone NAAQS.
We are proposing to find that SWCAA's demonstration for removal of Stage II equipment meets section 110(l) of the Act. Therefore, we are proposing to approve and incorporate by reference SWCAA 491 “Emission Standards and Controls for Sources Emitting Gasoline Vapors” state effective February 7, 2020. This version of the regulation removes from the Washington SIP the requirement for Stage II vapor recovery systems in SWCAA's jurisdiction and adds additional VOC controls such as the installation of enhanced conventional nozzles and low permeation hoses, as well as other historic changes since the EPA's last approval as discussed in section II of this preamble.
In this document, the EPA is proposing to include in a final rule, regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference SWCAA 491 discussed in section IV of this preamble. The EPA has made, and will continue to make, these documents generally available through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act.
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”
The Southwest Clean Air Agency did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for the Sacramento Mountains checkerspot butterfly (
We will accept comments received or postmarked on or before October 10, 2023. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. eastern time on the closing date. We must receive requests for a public hearing, in writing, at the address shown in
You may submit comments by one of the following methods:
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Shawn Sartorius, Field Supervisor, U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna NE, Albuquerque, NM 87113; telephone 505-346-2525. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States.
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:
(1) Specific information on:
(a) The amount and distribution of Sacramento Mountains checkerspot butterfly habitat;
(b) Any additional areas occurring within the range of the species in Otero County, New Mexico, that should be included in the designation because they (i) are occupied at the time of listing and contain the physical or biological features that are essential to the conservation of the species and that may require special management considerations, or (ii) are unoccupied at the time of listing and are essential for the conservation of the species;
(c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and
(d) To evaluate the potential to include areas not occupied at the time of listing, we particularly seek comments regarding whether occupied areas are adequate for the conservation of the species. Additionally, please provide specific information regarding whether or not unoccupied areas would, with reasonable certainty, contribute to the conservation of the species and contain at least one physical or biological feature essential to the
(7) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
(8) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation, and the related benefits of including or excluding specific areas.
(9) Information on the extent to which the description of probable economic impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts and the description of the environmental impacts in the draft environmental assessment is complete and accurate and any additional information regarding probable economic impacts that we should consider.
(10) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act, in particular for those on Tribal lands. We are considering the land owned by the Mescalero Apache Tribe in Unit 3 (Spud Patch Canyon) for exclusion. If you think we should exclude any additional areas, please provide information supporting a benefit of exclusion.
(11) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.
Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, do not provide substantial information necessary to support a determination. Section 4(b)(2) of the Act directs that the Secretary shall designate critical habitat on the basis of the best scientific data available.
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
If you submit information via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
Because we will consider all comments and information we receive during the comment period, our final designation may differ from this proposal. Based on the new information we receive (and any comments on that new information), our final designation may not include all areas proposed, may include some additional areas that meet the definition of critical habitat, or may exclude some areas if we find the benefits of exclusion outweigh the benefits of inclusion and exclusion will not result in the extinction of the species.
Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests must be received by the date specified in
On January 25, 2022, we published a proposed rule in the
An assessment team prepared a current condition assessment report for the Sacramento Mountains checkerspot butterfly. The assessment team was composed of Service biologists, in consultation with other species experts. The current condition assessment report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past and present factors (both negative and beneficial) affecting the species.
In accordance with our joint policy on peer review published in the
The Sacramento Mountains checkerspot butterfly (butterfly) is a subspecies of the Anicia checkerspot, or variable checkerspot, in the Nymphalidae (brush-footed butterfly) family that is native to the Sacramento Mountains in south-central New Mexico. The Sacramento Mountains checkerspot butterfly inhabits high-altitude meadows in the upper-montane and subalpine zone at elevations between 2,380 and 2,750 meters (m) (7,800 and 9,000 feet (ft)) within the Sacramento Mountains, which is an isolated mountain range in south-central New Mexico (Service 2005 et al., p. 9). The species requires host plants for
Since 1998, populations have been known from 10 meadow units on U.S. Forest Service (Forest Service) land (Forest Service 1999, p. 2). The meadows cover the occupied areas within the species' range and give the most accurate representation of species and habitat conditions available. These meadow units include Bailey Canyon, Pines Meadow Campground, Horse Pasture Meadow, Silver Springs Canyon, Cox Canyon, Sleepygrass Canyon, Spud Patch Canyon, Deerhead Canyon, Pumphouse Canyon, and Yardplot Meadow. The species has been extirpated from several of these meadows recently. The Yardplot Meadow was sold and developed, while suitable habitat in Horse Pasture Meadow was eliminated by logging (Forest Service 2017, p. 3) but has since become somewhat revegetated. No adults or caterpillars have been detected within Pumphouse Canyon since 2003, and the species has likely been extirpated at that site (Forest Service 2017, p. 3). In 2020, all 10 meadows were surveyed for butterflies and larvae; a total of 8 butterflies were detected in only Bailey Canyon and Pines Meadow Campground combined (Forest Service 2020a, p. 3), and no larval tents were found at any site (Forest Service 2020a, pp. 1-3; Hughes 2020, pers. comm.).
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species' occurrences, as determined by the Secretary (
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management, such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation also does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would likely result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement “reasonable and prudent alternatives” to avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the current condition assessment report (Service 2022, entire) and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented
In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas we will designate as critical habitat from within the geographical area occupied by the species at the time of listing, we consider the physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection. The regulations at 50 CFR 424.02 define “physical or biological features essential to the conservation of the species” as the features that occur in specific areas and that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features.
A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. For example, physical features essential to the conservation of the species might include gravel of a particular size required for spawning, alkaline soil for seed germination, protective cover for migration, or susceptibility to flooding or fire that maintains necessary early-successional habitat characteristics. Biological features might include prey species, forage grasses, specific kinds or ages of trees for roosting or nesting, symbiotic fungi, or absence of a particular level of nonnative species consistent with conservation needs of the listed species. The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic essential to support the life history of the species.
In considering whether features are essential to the conservation of the species, we may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species. These characteristics include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing (or development) of offspring; and habitats that are protected from disturbance.
We derive the specific physical or biological features essential to the conservation of Sacramento Mountains checkerspot butterfly from studies of the species' habitat, ecology, and life history as described below. Additional information can be found in the current condition assessment report (Service 2022, entire; available on
The main larval host plant for the Sacramento Mountains checkerspot butterfly is the New Mexico beardtongue (
The preferred adult nectar source is orange sneezeweed (
Before human intervention, the habitat of the Sacramento Mountains checkerspot butterfly was dynamic, with meadows forming and reconnecting due to natural wildfire regimes (Service et al. 2005, p. 21). These patterns would have facilitated natural dispersal and recolonization of meadow habitats following disturbance events, especially when there was high butterfly population density in adjacent meadows (Service et al. 2005, p. 21). Currently, spruce-fir forests punctuate suitable butterfly habitat (
We have determined that the following physical or biological features are essential to the conservation of the Sacramento Mountains checkerspot butterfly:
(1) Open meadow, grassland habitat within the larger mixed-conifer forest in high-altitude areas within the upper-montane and subalpine zones at elevations between 2,380 and 2,750 meters (m) (7,800 and 9,000 feet (ft))
(2) The larval food plant (host plant), primarily New Mexico beardtongue (
(a) Patches of plants clustered together;
(b) Large, robust individual plants; and/or
(c) Stands of plants adjacent to other tobacco root plants.
(3) Access to nectar sources, primarily orange sneezeweed (
(4) Habitat connectivity consisting of up to 890 m (2,920 ft) between populations or areas of suitable habitat to allow for dispersal and gene flow.
(5) Less than 5 percent canopy cover.
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection.
A detailed discussion of activities influencing the Sacramento Mountains checkerspot butterfly and its habitat can be found in the proposed listing rule (87 FR 3739; January 25, 2022). It is possible all areas of critical habitat may require some level of management to address the current and future threats to the physical or biological features. The features essential to the conservation of this species may require special management considerations or protection to reduce the following threats: incompatible grazing by large ungulates, recreation, invasive and nonnative plants, climate change (
As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat. We are proposing to designate critical habitat in areas within the geographical area occupied by the species at the time of listing. We also are proposing to designate specific areas outside the geographical area occupied by the species because we have determined that a designation limited to occupied areas would be inadequate to ensure the conservation of the species. Occupied areas are inadequate for the conservation of this species because the species needs to have sufficient quality and quantity of habitat for adequately resilient populations, numerous populations to create redundancy to survive catastrophic events, and enough genetic diversity to allow for adaptations to changing environmental conditions (representation) to achieve viability. Currently, the Sacramento Mountains checkerspot butterfly is extant in two locations, representing only two metapopulation units, which is insufficient to support a robust, functioning metapopulation structure and, therefore, the viability of the species. We are reasonably certain that the unoccupied areas will contribute to the conservation of the species and contain one or more of the physical or biological features and are, therefore, considered habitat for the species. Additionally, the unoccupied units qualify as “habitat” for the species because they contain the resources necessary (
To identify critical habitat units for the Sacramento Mountains checkerspot butterfly, we used a variety of sources for species data. We used literature published on the species (Ferris and Holland 1980, entire; Forest Service 1999, entire; Pittenger and Yori 2003, entire) and the conservation plan developed by the Service (2005, entire) to determine habitat needs and locations of the butterfly. We also relied on annual Forest Service survey reports and data collected between 1999 and 2020 (Forest Service 1999, entire; Forest Service 2017, entire; Forest Service 2020a, entire) and associated mapping data (Forest Service 2020b, unpaginated) provided by the Forest Service for areas currently occupied by the Sacramento Mountains checkerspot butterfly and areas surveyed regularly. We supplemented this information with expert knowledge gathered during the development of the current condition assessment report (Service 2022, entire).
We determined that an area (in this case a meadow) was occupied at the time of listing for Sacramento Mountains checkerspot butterfly if:
(1) The meadow is located within the historical range of the species;
(2) The meadow contains at least physical or biological features (1) through (3), and (5), as described above under
(3) Adults have been observed during surveys from 3 or more of the most recent consecutive years (2021 and earlier); and
(4) There is evidence of reproduction during one of the three most recent consecutive surveys (2021 and earlier).
Therefore, if meadows do not meet these criteria, we determined that those areas were unoccupied at the time of listing. The sources of data for our occupied proposed critical habitat units for the Sacramento Mountains checkerspot butterfly were the original digitized polygons provided by the Forest Service.
For areas outside the geographical area occupied by the species at the time of listing, we delineated critical habitat unit boundaries using the original digitized polygons provided by the Forest Service and the 2020 National Agricultural Imagery Program (NAIP) 0.6-meter imagery. We resampled the NAIP imagery to 1 meter using ESRI ArcGIS Pro and classified that data into two classes: open space or tree cover. We were then able to identify areas that had greater than 95 percent open canopy, as required by the species. Using the Focal Statistics results (95-100 percent) as a guide, we digitized new polygons at the 1:5000 scale and updated the original Forest Service polygons to include and connect areas that meet the definition of critical habitat for the Sacramento Mountains checkerspot butterfly.
In summary, for areas outside the geographical area occupied by the species at the time of listing, we delineated critical habitat unit boundaries using the following criteria:
(1) Areas within the historical range of the species (
(2) Areas with 95 percent or greater open canopy.
(3) Areas not currently occupied but presumed to be suitable habitat because they contain at least some of the essential physical or biological features.
(4) Habitat that provides connectivity due to its proximity between currently occupied and/or unoccupied areas.
When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features necessary for the Sacramento Mountains checkerspot butterfly. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat.
We propose to designate as critical habitat lands that we have determined are occupied at the time of listing (
Units are proposed for designation based on one or more of the physical or biological features being present to support the Sacramento Mountains checkerspot butterfly's life-history processes. Some units contain all of the identified physical or biological features and support multiple life-history processes. Some units contain only some of the physical or biological features necessary to support the Sacramento Mountains checkerspot butterfly's particular use of that habitat.
The proposed critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document under Proposed Regulation Promulgation. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on
We are proposing nine units as critical habitat for the Sacramento Mountains checkerspot butterfly. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the Sacramento Mountains checkerspot butterfly. The nine areas we propose as critical habitat are: (1) Bailey Canyon; (2) Pines Meadow Campground; (3) Spud Patch Canyon; (4) Silver Springs Canyon; (5) Horse Pasture Meadow; (6) Sleepygrass Canyon; (7) Pumphouse Canyon; (8) Deerhead Canyon; and (9) Cox Canyon. Table 1 shows the proposed critical habitat units, the approximate area, land ownership, and occupancy of each unit.
We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the Sacramento Mountains checkerspot butterfly, below. All areas in the unoccupied units (Units 3 through 9) meet the definition of critical habitat because they are outside the geographical area occupied by the species at the time of listing, were historically occupied by the Sacramento Mountains checkerspot butterfly, and are essential for the conservation of the species (see each unit description below for details). Units 3 through 9 qualify as habitat for the species because they contain the resources necessary (
Unit 1 consists of approximately 200.5 ac (81.1 ha) and is in the Sacramento Ranger District in the northwestern portion of the butterfly's range. The unit is occupied and is located entirely on the Lincoln National Forest. This unit contains physical or biological features (1) through (3) and (5), as described above under
Threats that are occurring in this area include incompatible grazing by large ungulates, recreation, invasive and nonnative plants, climate change, and altered fire regime. The Forest Service is actively managing this unit by surveying for the butterfly during the active period, erecting exclosures to allow habitat to recover, and planting New Mexico beardtongue and other native nectar sources. This unit may require special management considerations to control invasive plant species, reduce recreational use, and reduce or remove browse pressure from large ungulates.
Unit 2 consists of approximately 62.4 ac (25.2 ha) and is located in the northwestern portion of the butterfly's range. The unit is primarily in the Sacramento Ranger District. The unit is occupied and contains all of the physical or biological features described above under
Threats that are occurring in this area include incompatible grazing by large ungulates, recreation, invasive and nonnative plants, climate change, and altered fire regime. The Forest Service is actively managing some areas of this unit by surveying for the butterfly during the species' active period and erecting exclosures to allow habitat to recover. This unit may require special management considerations to control invasive plant species, reduce recreational use, and reduce or remove browse pressure from f large ungulates.
Unit 3 consists of a total of approximately 277.2 ac (112.2 ha) and is located in the northeastern portion of the butterfly's historical range. The unit is primarily within the Sacramento Ranger District. This unit contains physical or biological features (1) through (3) and (5), as described above under
Threats that are occurring in this area include incompatible grazing by large ungulates, recreation, invasive and nonnative plants, climate change, and altered fire regime. The Forest Service is surveying for adult butterflies annually in some of the areas on the Lincoln National Forest in this unit. Within this unit, a total of 22.4 ac (9.1 ha) of land owned by the Mescalero Apache Tribe is being considered for exclusion.
Unit 4 consists of approximately 203.4 ac (82.3 ha) in the north-central portion of the butterfly's historical range and lies to the northeast of the village of Cloudcroft. The unit is partly within the Sacramento Ranger District and is unoccupied. This unit contains physical or biological features (1), (3), and (5), as described above under
Threats that are occurring in this area include incompatible grazing by large ungulates, recreation, invasive and nonnative plants, climate change, and altered fire regime. The Forest Service is also surveying the areas on the Lincoln National Forest in this unit annually for adult butterflies.
Unit 5 consists of approximately 82.4 ac (33.4 ha) and is located in the central portion of the butterfly's historical range. It lies to the east of the village of Cloudcroft. This unit is unoccupied, contains all of the physical or biological features described above under
Threats that are occurring in this area include incompatible grazing by large ungulates, recreation, invasive and nonnative plants, climate change, and altered fire regime. Suitable habitat in Horse Pasture Meadow was previously eliminated by logging to create a helicopter pad. The butterfly has not been detected in this unit since construction of the helicopter pad, which was constructed for helicopters that transport people and supplies to fight forest fires. The helicopter pad is no longer there, and there is open meadow habitat. This unit has been somewhat revegetated, and New Mexico beardtongue and nectar sources now exist in this area. Additional habitat restoration techniques could be used to restore butterfly habitat in this area. Forest Service is planning to actively manage this former habitat to encourage species recovery.
Unit 6 consists of approximately 223.5 ac (90.5 ha) and is located in the central portion of the butterfly's historical range, east of the village of Cloudcroft. This unit is unoccupied; 55.3 percent of the unit is located on the Lincoln National Forest in the Sacramento Ranger District, and 44.7 percent is located on privately owned land. This unit contains all of the physical or biological features described above under
Threats that are occurring in this area include incompatible grazing by large ungulates, recreation, invasive and nonnative plants, climate change, and altered fire regime. Forest Service is surveying areas on the Lincoln National Forest in this unit annually for adult butterflies.
Unit 7 consists of a total of approximately 136.6 ac (55.3 ha) and is located in the southern portion of the butterfly's range, southeast of the village of Cloudcroft. The unit is unoccupied and contains physical or biological features (1) through (3) and (5), as described above under
A portion of this unit is part of an active grazing allotment. The Forest Service consults on active grazing allotment permits every 5 years. Threats that are occurring in this area include incompatible grazing by large ungulates (including livestock), recreation, invasive and nonnative plants, climate change, and altered fire regime. The Forest Service restored this area using invasive species management, and native habitat has already been established. The Forest Service is also surveying the portions of this unit located on the Lincoln National Forest for adult butterflies annually.
Unit 8 consists of approximately 33.1 ac (13.4 ha) and is southeast of the village of Cloudcroft in the southern portion of the butterfly's historical range. This unit is unoccupied and contains physical or biological features (1) through (3) and (5), as described above under
Threats that are occurring in this area include incompatible grazing by large ungulates, recreation, invasive and nonnative plants, climate change, and altered fire regime. The Forest Service is surveying the portions of this unit on the Lincoln National Forest for adult butterflies annually.
Unit 9 consists of approximately 417.8 ac (169.0 ha) and is located in the southern portion of the butterfly's historical range, south of the village of Cloudcroft. This unit is unoccupied; 31.62 percent is located on the Lincoln National Forest, and 68.38 percent is located on privately owned land. This unit contains physical or biological features (1) through (3) and (5), as described above under
Threats that are occurring in this area include incompatible grazing by large ungulates, recreation, invasive and
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.
We published a final rule revising the definition of destruction or adverse modification on August 27, 2019 (84 FR 44976). Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, Tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
Compliance with the requirements of section 7(a)(2) is documented through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended purpose of the action,
(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal agencies to reinitiate consultation on previously reviewed actions. These requirements apply when the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law) and, subsequent to the previous consultation: (a) if the amount or extent of taking specified in the incidental take statement is exceeded; (b) if new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (c) if the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion or written concurrence; or (d) if a new species is listed or critical habitat designated that may be affected by the identified action. The reinitiation requirement applies only to actions that remain subject to some discretionary Federal involvement or control. As provided in 50 CFR 402.16, the requirement to reinitiate consultations for new species listings or critical habitat designation does not apply to certain agency actions (
The key factor related to the destruction or adverse modification determination is whether implementation of the proposed Federal action directly or indirectly alters the designated critical habitat in a way that appreciably diminishes the value of the critical habitat for the conservation of the listed species. As discussed above, the role of critical habitat is to support the physical or biological features essential to the conservation of a listed species and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may violate section 7(a)(2) of the Act by destroying or adversely modifying such habitat, or that may be affected by such designation.
Activities that we may, during a consultation under section 7(a)(2) of the Act, consider likely to destroy or adversely modify critical habitat include, but are not limited to:
(1) Actions that would remove or alter Sacramento Mountains checkerspot butterfly's native food plants (New Mexico beardtongue, orange sneezeweed, and other native nectar sources), or tobacco root. Such activities could include, but are not limited to, grading, leveling, plowing, mowing, burning, herbicide or pesticide spraying, incompatible grazing, or otherwise disturbing non-forested openings that result in the death of or injury to eggs, larvae, or adult Sacramento Mountains checkerspot butterflies. These activities could significantly impair or eliminate the habitat necessary for the taxon's breeding, foraging, sheltering, or other essential life functions.
(2) Actions that would alter the soil structure on which native food plants are dependent. Such activities could include, but are not limited to, erosion control activities, such as the installation of structures or vegetation and grading for construction purposes. These activities could significantly impair or eliminate the habitat that is essential for the survival and reproduction of Sacramento Mountains checkerspot butterfly's native food plants.
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that the Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense (DoD), or designated for its use, that are subject to an integrated natural resources management plan (INRMP) prepared under section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation. No DoD lands with a completed INRMP are within the proposed critical habitat designation.
Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. Exclusion decisions are governed by the regulations at 50 CFR 424.19 and the Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act (hereafter, the “2016 Policy”; 81 FR 7226, February 11, 2016), both of which were developed jointly with the National Marine Fisheries Service (NMFS). We also refer to a 2008 Department of the Interior Solicitor's opinion entitled, “The Secretary's Authority to Exclude Areas from a Critical Habitat Designation under Section 4(b)(2) of the Endangered Species Act” (M-37016).
In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise discretion to exclude the area only if such exclusion would not result in the extinction of the species. In making the determination to exclude a particular area, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. In our final rules, we explain any decision to exclude areas, as well as decisions not to exclude, to demonstrate that the decision is reasonable. We describe below the process that we use for taking into consideration each category of impacts and any initial analyses of the relevant impacts.
Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate the impacts that a specific critical habitat designation may have on restricting or modifying specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat for this particular species. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.”
The “without critical habitat” scenario represents the baseline for the analysis, which includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat (
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with the E.O. regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly affected entities, where practicable and reasonable. If sufficient data are available, we assess to the extent practicable the probable impacts to both directly and indirectly affected entities Section 3(f) of E.O. 12866 identifies four criteria when a regulation is considered a “significant regulatory action” and requires additional analysis, review, and approval if met. The criterion relevant here is whether the designation of critical habitat may have an economic effect of $200 million or more in any given year (section 3(f)(1)). Therefore, our consideration of economic impacts uses a screening analysis to assess whether a designation of critical habitat for Sacramento Mountains checkerspot butterfly is likely to exceed the economically significant threshold.
For this particular designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from this proposed designation of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the Sacramento Mountains checkerspot butterfly (IEc 2023, entire). We began by conducting a screening analysis of the proposed designation of critical habitat in order to focus our analysis on the key factors that are likely to result in incremental economic impacts. The purpose of the screening analysis is to filter out particular geographical areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. In particular, the screening analysis considers baseline costs (
The presence of the listed species in occupied areas of critical habitat means that any destruction or adverse modification of those areas is also likely to jeopardize the continued existence of the species. Therefore, designating occupied areas as critical habitat typically causes little if any incremental impact above and beyond the impact of listing the species. As a result, we generally focus the screening analysis on areas of unoccupied critical habitat (unoccupied units or unoccupied areas within occupied units). Overall, the screening analysis assesses whether designation of critical habitat is likely to result in any additional management or conservation efforts that may incur incremental economic impacts. This screening analysis combined with the information contained in our IEM constitute what we consider to be our draft economic analysis (DEA) of the proposed critical habitat designation for the Sacramento Mountains checkerspot butterfly; our DEA is summarized in the narrative below.
As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the critical habitat designation. In our evaluation of the probable incremental economic impacts that may result from the proposed designation of critical habitat for the Sacramento Mountains checkerspot butterfly, first we identified, in the IEM dated November 3, 2022, probable incremental economic impacts associated with the following categories of activities: (1) Fire management (
In our IEM, we attempted to clarify the distinction between the effects that would result from the species being listed and those attributable to the critical habitat designation (
The proposed critical habitat designation for the Sacramento Mountains checkerspot butterfly includes approximately 1,636.9 acres (662.4 hectares) in nine units in Otero County, New Mexico. Two of the units are occupied, and seven of the units are unoccupied, by the Sacramento Mountains checkerspot butterfly. The unoccupied areas comprise 84 percent of the total proposed critical habitat area. Approximately 32 percent of the total proposed designation is located on private lands, 67 percent on Federal lands, and 1 percent on Tribal lands.
For the areas that are occupied by the species (16 percent of the proposed critical habitat designation), the economic impacts of designating critical habitat under section 7 of the Act are likely limited to additional administrative efforts to consider adverse modification under section 7. This is because any activities occurring in these areas and that require Federal approval or funding will be subject to section 7 consultation requirements regardless of critical habitat designation because the species may be present and any recommended project modifications to avoid adversely modifying critical habitat are the same as those needed to avoid jeopardizing the species.
For the areas unoccupied by the species (84 percent of the proposed critical habitat designation), incremental section 7 costs may include the administrative costs of consultation, as well as the costs of developing and implementing conservation measures for the species. This may include invasive species management activities, feral horse/large ungulate management activities (including fencing), and other land management activities by the Forest Service on the Lincoln National Forest. On private lands, consultation activities and related conservation actions are anticipated to be limited. Because a portion of Unit 3 (Spud Patch Canyon) is on Mescalero Apache Tribal land, we are considering that area for exclusion. Therefore, the probable economic impact may be less than anticipated for this unit.
The overall incremental costs of critical habitat designation for the Sacramento Mountains checkerspot butterfly are anticipated to be less than $117,000 per year during the next 10 years. In total, fewer than one programmatic consultation, one formal consultation, two informal consultations, and six technical assistance efforts are anticipated to occur annually in proposed critical habitat areas. The incremental administrative costs of consultations are approximately $32,000 per year (2022 dollars). Project modifications in unoccupied habitat for the Sacramento Mountains checkerspot butterfly have the potential to increase conservation in these areas, resulting in an incremental benefit. Data limitations preclude our ability to monetize these benefits; however, project modifications are unlikely to exceed $200 million in a given year. Data limitations impede our ability to confidently estimate the total incremental costs of establishing critical habitat for the Sacramento Mountains checkerspot butterfly. However, available information suggests it is unlikely that the incremental costs will reach $200 million in a given year based on the estimated annual number of consultations and per-unit consultation costs. The designation is unlikely to trigger additional requirements under State or local regulations and is not expected to affect property values.
We are soliciting data and comments from the public on the DEA discussed above. During the development of a final designation, we will consider the information presented in the DEA and any additional information on economic impacts we receive during the public comment period to determine whether any specific areas should be excluded from the final critical habitat designation under the authority of section 4(b)(2) of the Act, our implementing regulations at 50 CFR 424.19, and the 2016 Policy. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or areas that pose potential national-security concerns (
However, we cannot automatically exclude requested areas. When DoD, DHS, or another Federal agency requests exclusion from critical habitat on the basis of national-security or homeland-security impacts, we must conduct an exclusion analysis if the Federal requester provides information, including a reasonably specific justification of an incremental impact on national security that would result from the designation of that specific area as critical habitat. That justification could include demonstration of probable impacts, such as impacts to ongoing border-security patrols and surveillance activities, or a delay in training or facility construction, as a result of compliance with section 7(a)(2) of the Act. If the agency requesting the exclusion does not provide us with a reasonably specific justification, we will contact the agency to recommend that it provide a specific justification or clarification of its concerns relative to the probable incremental impact that could result from the designation. If we conduct an exclusion analysis because the agency provides a reasonably specific justification or because we decide to exercise the discretion to conduct an exclusion analysis, we will defer to the expert judgment of DoD, DHS, or another Federal agency as to: (1) Whether activities on its lands or waters, or its activities on other lands or waters, have national-security or homeland-security implications; (2) the importance of those implications; and (3) the degree to which the cited implications would be adversely affected in the absence of an exclusion. In that circumstance, in conducting a discretionary section 4(b)(2) exclusion analysis, we will give great weight to national-security and homeland-security concerns in analyzing the benefits of exclusion.
In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for the Sacramento Mountains checkerspot butterfly are not owned or managed by the DoD or DHS, and, therefore, we anticipate no impact on national security or homeland security.
Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security discussed above. To identify other relevant impacts that may affect the exclusion analysis, we consider a number of factors, including whether there are permitted conservation plans covering the species in the area—such as HCPs, safe harbor agreements (SHAs), or candidate conservation agreements with assurances (CCAAs)—or whether there are non-permitted conservation agreements and partnerships that may be impaired by designation of, or exclusion from, critical habitat. In addition, we look at whether Tribal conservation plans or partnerships, Tribal resources, or government-to-government relationships of the United States with Tribal entities may be affected by the designation. We also consider any State, local, social, or other impacts that might occur because of the designation.
When analyzing other relevant impacts of including a particular area in a designation of critical habitat, we weigh those impacts relative to the conservation value of the particular area. To determine the conservation value of designating a particular area, we consider a number of factors, including, but not limited to, the additional regulatory benefits that the area would receive due to the protection from destruction or adverse modification as a result of actions with a Federal nexus, the educational benefits of mapping essential habitat for recovery of the listed species, and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat.
In the case of the Sacramento Mountains checkerspot butterfly, the benefits of critical habitat include public awareness of the presence of the Sacramento Mountains checkerspot butterfly and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for the Sacramento Mountains checkerspot butterfly due to protection from destruction or adverse modification of critical habitat. Continued implementation of an ongoing management plan that provides conservation equal to or more than the protections that result from a critical habitat designation would reduce those benefits of including that specific area in the critical habitat designation.
After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh those of inclusion. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction of the species. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation.
Several Executive Orders, Secretary's Orders, and policies concern working with Tribes. These guidance documents generally confirm our trust responsibilities to Tribes, recognize that Tribes have sovereign authority to control Tribal lands, emphasize the importance of developing partnerships with Tribal governments, and direct the Service to consult with Tribes on a government-to-government basis.
A joint Secretary's Order that applies to both the Service and NMFS—Secretary's Order 3206,
Our implementing regulations at 50 CFR 424.19 and the 2016 Policy are consistent with S.O. 3206. When we undertake a discretionary exclusion analysis under section 4(b)(2) of the Act, in accordance with S.O. 3206, we consult with any Tribe whose Tribal trust resources, tribally owned fee lands, or Tribal rights may be affected by including any particular areas in the designation. We evaluate the extent to which the conservation needs of the species can be achieved by limiting the designation to other areas and give great weight to Tribal concerns in analyzing the benefits of exclusion.
However, S.O. 3206 does not override the Act's statutory requirement of designation of critical habitat. As stated above, we must consult with any Tribe when a designation of critical habitat may affect Tribal lands or resources. The Act requires us to identify areas that meet the definition of “critical habitat” (
We are considering excluding the following areas under section 4(b)(2) of the Act from the final critical habitat designation for the Sacramento Mountains checkerspot butterfly: 22.4 ac (9.1 ha) of land owned by the Mescalero Apache Tribe in Unit 3 of the Spud Patch Canyon Unit based on Tribal resources and government-to-government relationships of the United States with Tribal entities. We specifically solicit comments on the inclusion or exclusion of such areas. If through this proposed rule's public comment period (see
We are required by E.O.s 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
Executive Order 14094 reaffirms the principles of E.O. 12866 and E.O. 13563 and states that regulatory analysis should facilitate agency efforts to develop regulations that serve the public interest, advance statutory objectives, and are consistent with E.O. 12866, E.O. 13563, and the Presidential Memorandum of January 20, 2021 (Modernizing Regulatory Review). Regulatory analysis, as practicable and appropriate, shall recognize distributive impacts and equity, to the extent permitted by law. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this final rule in a manner consistent with these requirements.
E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is not significant.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine whether potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in light of recent court decisions, Federal agencies are required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself; in other words, the RFA does not require agencies to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies would be directly regulated if we adopt the proposed critical habitat designation. The RFA does not require evaluation of the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that, if made final as proposed, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if made final, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.
Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare statements of energy effects when undertaking certain actions. In our economic analysis, we did not find that this proposed critical habitat designation would significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no statement of energy effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This proposed rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or Tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or Tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions are not likely to destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
(2) We do not believe that this rule would significantly or uniquely affect small governments because it will not produce a Federal mandate of $100 million or greater in any year, that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments. Therefore, a small government agency plan is not required.
In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the Sacramento Mountains checkerspot butterfly in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical
In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant Federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this proposed critical habitat designation with, appropriate State resource agencies. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the proposed rule does not have substantial direct effects either on the States, or on the relationship between the Federal government and the States, or on the distribution of powers and responsibilities among the various levels of government. The proposed designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical or biological features of the habitat necessary for the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist State and local governments in long-range planning because they no longer have to wait for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) of the Act would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
In accordance with E.O. 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule would not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, this proposed rule identifies the physical or biological features essential to the conservation of the species. The proposed areas of critical habitat are presented on maps, and the proposed rule provides several options for the interested public to obtain more detailed location information, if desired.
This rule does not contain information collection requirements, and a submission to OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Regulations adopted pursuant to section 4(a) of the Act are exempt from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
However, when any of the areas that meet the definition of “critical habitat” for the species are in States within the Tenth Circuit, such as that of the Sacramento Mountains checkerspot butterfly, we undertake a NEPA analysis for that critical habitat designation consistent with the Tenth Circuit ruling in
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), E.O. 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with federally recognized Tribes on a government-to-government basis. In accordance with Secretary's Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. We solicited information from the Mescalero Apache Nation within the range of the Sacramento Mountains checkerspot butterfly to inform the development of the current condition assessment report, but we did not receive a response. We will continue to work with Tribal entities during the development of a final rule for the designation of critical habitat for the Sacramento Mountains checkerspot butterfly.
A complete list of references cited in this rulemaking is available on the internet at
The primary authors of this proposed rule are the staff members of the Fish
Endangered and threatened species, Exports, Imports, Plants, Reporting and recordkeeping requirements, Transportation, Wildlife.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
(i)
(1) Critical habitat units are depicted for Otero County, New Mexico, on the maps in this entry.
(2) Within these areas, the physical or biological features essential to the conservation of the Sacramento Mountains checkerspot butterfly consist of the following components:
(i) Open meadow, grassland habitat within the larger mixed-conifer forest in high-altitude areas within the upper-montane and subalpine zones at elevations between 2,380 and 2,750 meters (m) (7,800 and 9,000 feet (ft)) within the Sacramento Mountains of southern New Mexico.
(ii) The larval food plant (host plant), primarily New Mexico beardtongue (
(A) Patches of plants clustered together;
(B) Large, robust individual plants; and/or
(C) Stands of plants adjacent to other tobacco root plants.
(iii) Access to nectar sources, primarily orange sneezeweed (
(iv) Habitat connectivity consisting of less than 890 m (2,920 ft) between populations or areas of suitable habitat to allow for dispersal and gene flow.
(v) Less than 5 percent canopy cover.
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on the effective date of the final rule.
(4) Data layers defining map units were created using U.S. Department of Agriculture, Forest Service shapefiles delimiting the known range of the species based on surveys. Then additional areas were mapped using satellite imagery of meadow habitat within the appropriate elevation (2,380 to 2,750 m (7,800 to 9,000 feet)). The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at the Service's internet site at
(5) Index map follows:
(6) Unit 1: Bailey Canyon; Otero County, New Mexico.
(i) Unit 1 consists of 200.5 ac (81.1 ha) in Otero County and is composed of lands entirely in Federal ownership.
(ii) Map of Unit 1 follows:
(7) Unit 2: Pines Meadow Campground; Otero County, New Mexico.
(i) Unit 2 consists of 62.4 ac (25.2 ha) in Otero County and is composed of lands in Federal (62.2 ac (25.2 ha)) and private (0.2 ac (0.08 ha)) ownership.
(ii) Map of Unit 2 follows:
(8) Unit 3: Spud Patch Canyon; Otero County, New Mexico.
(i) Unit 3 consists of 277.2 ac (112.2 ha) in Otero County and is composed of lands in Federal (203.9 ac (82.5 ha)), Tribal (22.4 ac (9.1 ha)), and private (50.9 ac (20.6 ha)) ownership.
(ii) Map of Unit 3 follows:
(9) Unit 4: Silver Springs Canyon; Otero County, New Mexico.
(i) Unit 4 consists of 203.4 ac (82.3 ha) in Otero County and is composed of lands in Federal (132.9 ac (53.8 ha)) and private (70.5 ac (28.5 ha)) ownership.
(ii) Map of Unit 4 follows:
(10) Unit 5: Horse Pasture Meadow; Otero County, New Mexico.
(i) Unit 5 consists of 82.4 ac (33.4 ha) in Otero County and is composed of lands entirely in Federal ownership.
(ii) Map of Unit 5 follows:
(11) Unit 6: Sleepygrass Canyon; Otero County, New Mexico.
(i) Unit 6 consists of 223.5 ac (90.5 ha) in Otero County and is composed of lands in Federal (123.5 ac (50.0 ha)) and private (100.0 ac (40.5 ha)) ownership.
(ii) Map of Unit 6 follows:
(12) Unit 7: Pumphouse Canyon; Otero County, New Mexico.
(i) Unit 7 consists of 136.6 ac (55.3 ha) in Otero County and is composed of lands in Federal (134.4 ac (54.4 ha)) and private (2.2 ac (0.9 ha)) ownership.
(ii) Map of Unit 7 follows:
(13) Unit 8: Deerhead Canyon; Otero County, New Mexico.
(i) Unit 8 consists of 33.1 ac (13.4 ha) in Otero County and is composed of lands in Federal (22.1 ac (8.9 ha)) and private (11.0 ac (4.5 ha)) ownership.
(ii) Map of Unit 8 follows:
(14) Unit 9: Cox Canyon; Otero County, New Mexico.
(i) Unit 9 consists of 417.8 ac (169.0 ha) in Otero County and is composed of lands in Federal (132.1 ac (53.5 ha)) and private (285.7 ac (115.6 ha)) ownership.
(ii) Map of Unit 9 follows:
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 collection techniques or other forms of information technology.
Comments regarding this information collection received by September 11, 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.
The Authorities that allow the Rural Housing Service (RHS), Rural Business and Cooperative Service (RBCS) and Rural Utilities service (RUS), Agencies within Rural Development (RD) are as follows:
The RHS is authorized under various sections of Title V of the Housing Act of 1949, as amended, to provide financial assistance to construct, improve, alter, repair, replace, or rehabilitate dwellings, which will provide modest, decent, safe, and sanitary housing to eligible individuals in rural areas. The Consolidated Farm and Rural Development Act, as amended, authorizes the credit programs of the RHS, RBCS and RUS to provide financial assistance for essential community facilities such as construction of community facilities and water and waste systems; and the improvement, development, and financing of businesses, industries, and employment.
The information collection under OMB Number 0575-New will enable the Agencies to effectively monitor a recipient's compliance with the federal debt reporting and to determine employment verification and eligibility for Federal financial assistance.
The Agencies offer supervised credit programs to build modest housing and essential community facilities in rural areas. Section 517 (d) of Title V of the Housing Act of 1949, as amended, provides the authority for the Secretary of Agriculture to issue loan guarantees for the acquisition of new or existing dwellings and related facilities to provide decent, safe, and sanitary living conditions and other structures in rural areas.
Trade and Foreign Agricultural Affairs (TFAA), USDA.
Notice.
This notice informs the public of the sanitary and phytosanitary (SPS) standard-setting activities of the Codex Alimentarius (Codex), in accordance with section 491 of the Trade Agreements Act of 1979, as amended, and the Uruguay Round Agreements Act. This notice also provides a list of other standard-setting activities of Codex, including commodity standards, guidelines, codes of practice, and revised texts. This notice, which covers Codex activities during the time periods of June 1, 2022 to May 31, 2023 and June 1, 2023 to May 31, 2024, seeks comments on standards under consideration and recommendations for new standards.
Comments must be received on or before October 13, 2023.
The U.S. Codex Office (USCO) invites interested persons to submit their comments on this notice. Comments may be submitted by one of the following methods:
•
•
•
Please state that your comments refer to Codex. If your comments relate to specific Codex committees, please identify the committee(s) in your comments and submit a copy of your comments to the U.S. delegate to the committee.
Ms. Mary Frances Lowe, United States Manager for Codex Alimentarius, U.S. Department of Agriculture, Office of the Under Secretary for Trade and Foreign Agricultural Affairs, U.S. Codex Office, 1400 Independence Avenue SW, Room 4861, Washington, DC 20250-3700, Email:
For information pertaining to committees, contact the U.S. delegate for that committee. A complete list of delegates and alternate delegates is accessible via the internet at:
The World Trade Organization (WTO) was established on January 1, 1995, as the common international institutional framework for the conduct of trade relations among its members in matters related to the Uruguay Round Trade Agreements. The WTO is the successor organization to the General Agreement on Tariffs and Trade (GATT). United States membership in the WTO was approved and the Uruguay Round Agreements Act (Uruguay Round Agreements) was signed into law by the President on December 8, 1994, Public Law 103-465, 108 Stat. 4809. The Uruguay Round Agreements became effective with respect to the United States on January 1, 1995. The Uruguay Round Agreements amended the Trade Agreements Act of 1979. Pursuant to section 491 of the Trade Agreements Act of 1979, as amended, the President is required to designate an agency to be “responsible for informing the public of the sanitary and phytosanitary (SPS) standard-setting activities of each international standard-setting organization” (19 U.S.C. 2578). The main international standard-setting organizations are the Codex Alimentarius (Codex), the World Organisation for Animal Health (WOAH, founded as OIE), and the International Plant Protection Convention (IPPC). The President, pursuant to Proclamation No. 6780 of March 23, 1995, (60 FR 15845), designated the U.S. Department of Agriculture as the agency responsible for informing the public of the SPS standard-setting activities of each international standard-setting organization. The Secretary of Agriculture has delegated to the Trade and Foreign Agricultural Affairs Mission Area the responsibility to inform the public of the SPS standard-setting activities of Codex. The Trade and Foreign Agricultural Affairs Mission Area has, in turn, assigned the responsibility for informing the public of the SPS standard-setting activities of Codex to the U.S. Codex Office (USCO).
Codex was created in 1963 by two United Nations organizations, the Food and Agriculture Organization (FAO) and the World Health Organization (WHO). Codex is the principal international organization for establishing standards for food. Through adoption of food standards, codes of practice, and other guidelines developed by its committees, and by promoting their adoption and implementation by governments, Codex seeks to protect the health of consumers, ensure fair practices in the food trade, and promote coordination of food standards work undertaken by international governmental and nongovernmental organizations. In the United States, U.S. Codex activities are managed and carried out by the United States Department of Agriculture (USDA); the Food and Drug Administration (FDA), Department of
As the agency responsible for informing the public of the SPS standard-setting activities of Codex, the USCO publishes this notice in the
1. The SPS standards under consideration or planned for consideration; and
2. For each SPS standard specified:
a. A description of the consideration or planned consideration of the standard
b. Whether the United States is participating or plans to participate in the consideration of the standard
c. The agenda for United States participation, if any; and
d. The agency responsible for representing the United States with respect to the standard.
To obtain copies of the standards listed in
This notice also solicits public comment on standards that are currently under consideration or planned for consideration and recommendations for new standards. The U.S. delegate, in conjunction with the responsible agency, will take the comments received into account in participating in the consideration of the standards and in proposing matters to be considered by Codex.
The U.S. delegate will facilitate public participation in the United States Government's activities relating to Codex. The U.S. delegate will maintain a list of individuals, groups, and organizations that have expressed an interest in the activities of the Codex committees and will disseminate information regarding U.S. delegation activities to interested parties. This information will include the status of each agenda item; the U.S. Government's position or preliminary position on each agenda item; and the time and place of planning meetings and debriefing meetings following the Codex committee sessions. In addition, the USCO makes much of the same information available through its web page at
The information provided in
Public awareness of all segments of rulemaking and policy development is important. Consequently, the USCO will announce this
Done at Washington, DC.
The Codex Alimentarius Commission (Commission or CAC) convened its 45th Session (CAC45) from November 21-25, 2022, in Rome, Italy, with report adoption taking place virtually on December 12-13, 2022 and continued by written procedure. The relevant document is REP22/CAC. The actions taken by the Commission at CAC45 (
The Commission is scheduled to convene its 46th Session (CAC46) from November 27 to December 2, 2023. At its 46th Session, the Commission will consider adopting standards recommended by committees at Step 8 or 5/8 (final adoption) and advance the work of committees by adopting draft standards at Step 5 (interim adoption, for further comment and consideration by the relevant committee). The Commission will also consider revocation of Codex texts; proposals for new work; discontinuation of work; amendments to Codex standards and related texts; and matters arising from the Reports of the Commission, the Executive Committee, and subsidiary bodies. Although the agenda for the 46th Session is not yet available, it is expected that the Commission will also consider Codex budgetary and financial matters; FAO/WHO scientific support to Codex (activities, budgetary and financial matters); matters arising from FAO/WHO; reports of side events; election of the chairperson and vice-chairpersons and members of the Executive Committee elected on a geographical basis; designation of countries responsible for appointing the chairpersons of Codex subsidiary bodies; any other business; and adoption of the report.
The Executive Committee (CCEXEC) is composed of the Commission chairperson; vice-chairpersons; seven members elected by the Commission from each of the following geographic regions: Africa, Asia, Europe, Latin America and the Caribbean, Near East, North America, and the South West Pacific; and regional coordinators from the six regional coordinating committees. The United States currently participates as an advisor to Canada, the member elected on a geographical basis from North America.
CCEXEC convened its 82nd Session (CCEXEC82) virtually June 20-24, 2022, with virtual report adoption on June 30, 2022. The relevant document is REP22/EXEC1. CCEXEC82 conducted Critical Review of the standards development work of the Codex Committees on Fats and Oils (CCFO), Nutrition and Foods for Special Dietary Uses (CCNFSDU), Food Hygiene (CCFH), and Residues of Veterinary Drugs in Foods (CCRVDF). CCEXEC82 also considered the progress of three Sub-Committees concerned with (1) the development of practical guidance on the application of the
CCEXEC convened its 83rd Session (CCEXEC83) from November 14 to 18, 2022, in Rome, Italy. The relevant document is REP22/EXEC2. In addition to making recommendations to CAC45 on the work of Codex committees, CCEXEC83 discussed practical guidance
CCEXEC convened its 84th Session (CCEXEC84) from July 10-14, 2023, in Geneva, Switzerland. The relevant document is REP23/EXEC1. In addition to discussing recommendations to CAC46 on the work of Codex committees, CCEXEC84 discussed the Blueprint on the Future of Codex; recommendations on the Future of Codex in the context of 60th anniversary celebrations; monitoring the implementation of the Codex Strategic Plan 2020-2023; and plans for the development of the Codex Strategic Plan for 2026-2031. The Executive Committee also considered the following agenda items: applications from international non-governmental organizations for observer status in Codex; and regional standards. The Executive Committee agenda for the 85th Session (CCEXEC85, November 2023) is not yet available.
The Codex Committee on Contaminants in Foods (CCCF) establishes or endorses permitted maximum levels (MLs) and guideline levels (GLs) for contaminants and naturally occurring toxicants in food and feed; prepares priority lists of contaminants and naturally occurring toxicants for risk assessment by the Joint FAO/WHO Expert Committee on Food Additives (JECFA); considers and elaborates methods of analysis and sampling for the determination of contaminants and naturally occurring toxicants in food and feed; considers and elaborates standards or codes of practice for related subjects; and considers other matters assigned to it by the Commission in relation to contaminants and naturally occurring toxicants in food and feed.
The Committee had the following items which were considered and approved by the 45th Session of the Codex Alimentarius Commission (CAC45) in November 2022:
The CCCF convened its 16th Session (CCCF16) from April 17-21, 2023, in Utrecht, Netherlands, with report adoption taking place virtually on April 26, 2023. The relevant document is REP23/CF16. CCCF16 advanced the following items for consideration by the CAC46 in November 2023:
The CCCF is scheduled to convene its 17th session (CCCF17) from April 15-19, 2024. The CCCF17 location and agenda are currently unavailable.
The Committee is expected to continue working on:
The Codex Committee on Fats and Oils (CCFO) is responsible for elaborating worldwide standards for fats
The Committee had the following items which were considered and approved by CAC45 in November 2022:
The CCFO is scheduled to convene for its 23rd Session (CCFO23) from February 19-23, 2024, in Kuala Lumpur, Malaysia. The CCFO23 agenda is currently unavailable.
The Committee is expected to continue work on:
The Committee on Fish and Fishery Products (CCFFP) is responsible for elaborating standards for fresh, frozen, and otherwise processed fish, crustaceans, and mollusks. The CCFFP is working by correspondence and is expected to complete its pending work by October 1, 2023.
The Codex Committee on Food Additives (CCFA) establishes or endorses acceptable MLs for individual food additives; prepares a priority list of food additives for risk assessment by the JECFA; assigns functional classes to individual food additives; recommends specifications of identity and purity for food additives for adoption by the Codex Alimentarius Commission; considers methods of analysis for the determination of additives in food; and considers and elaborates standards or codes of practice for related subjects such as the labeling of food additives when sold as such.
The CCFA convened its 53rd Session (CCFA53) from March 27-31, 2023, in Hong Kong, China. The relevant document is REP23/FA. CCFA53 advanced the following items for consideration by the CAC46 in November 2023:
The CCFA is scheduled to convene its 54th Session (CCFA54) from April 22-26, 2024. The CCFA54 agenda is currently unavailable.
The Committee is expected to continue work on:
The Codex Committee on Food Hygiene (CCFH) is responsible for developing basic provisions on food hygiene applicable to all food; considering and amending or endorsing provisions on food hygiene contained in Codex commodity standards and Codex codes of practice developed by other committees; considering specific food hygiene problems assigned to it by the Commission; suggesting and prioritizing areas where there is a need for microbiological risk assessment at the international level and developing questions to be addressed by the risk assessors; and considering microbiological risk management matters in relation to food hygiene and in relation to the FAO/WHO risk assessments.
The Committee had the following items which were considered and approved by the CAC45 in November 2022:
The CCFH convened its 53rd Session (CCFH53) from November 27-December 2, 2022, in San Diego, California, with report adoption taking place virtually on December 8, 2022. The relevant document is REP 23/FH. CCFH53 advanced the following items for consideration by the CAC46 in November 2023:
The CCFH is scheduled to convene its 54th Session (CCFH54) from March 11-15, 2024, in Nairobi, Kenya. The CCFH54 agenda is currently unavailable.
The Committee is expected to continue work on:
The Codex Committee on Food Import and Export Inspection and Certification Systems (CCFICS) is responsible for developing principles and guidelines for food import and export inspection and certification systems, with a view to harmonizing methods and procedures that protect the health of consumers, ensure fair trading practices, and facilitate international trade in foodstuffs; developing principles and guidelines for the application of measures by the competent authorities of exporting and importing countries to provide assurance, where necessary, that foodstuffs comply with requirements, especially statutory health requirements; developing guidelines for the utilization, as and when appropriate, of quality assurance systems to ensure that foodstuffs conform with requirements and promote the recognition of these systems in facilitating trade in food products under bilateral/multilateral arrangements by countries; developing guidelines and criteria with respect to format, declarations, and language of such official certificates as countries may require with a view towards international harmonization; making recommendations for information exchange in relation to food import/export control; consulting as necessary with other international groups working on matters related to food inspection and certification systems; and considering other matters assigned to it by the Commission in relation to food inspection and certification systems.
The Committee had the following item which was considered and approved by the CAC45 in November 2022:
The CCFICS convened its 26th Session from May 1-5, 2023, in Hobart, Tasmania, Australia. The relevant document is REP 23/FICS. The Committee advanced the following items for consideration by the CAC46 in November 2023:
The CCFICS is scheduled to convene its 27th Session (CCFICS27) from September 16-20, 2024, in Australia. The CCFICS27 agenda is currently unavailable.
The Committee is expected to continue work on:
The Codex Committee on Food Labelling (CCFL) drafts provisions on labeling applicable to all foods; considers, amends, and endorses draft specific provisions on labeling prepared by the Codex committees drafting standards, codes of practice, and guidelines; and studies specific labeling problems assigned to it by the Codex Alimentarius Commission. The Committee also studies problems associated with the advertisement of food with particular reference to claims and misleading descriptions.
The CCFL convened its 47th Session (CCFL47) from May 15-19, 2023, in Gatineau (Ottawa), Canada. The relevant document is REP23/FL. CCCFL47 advanced the following items for consideration by the CAC46 in November 2023:
In addition, CCFL47 endorsed labeling provisions in standards developed by other Codex committees, including the Codex Committee on Fresh Fruits and Vegetables (CCFFV); the Codex Committee on Spices and Culinary Herbs (CCSCH); and the Codex Coordinating Committee for Asia (CCASIA). For the Standard for Dried Floral Parts—Saffron, CCFL47 agreed to endorse all labeling provisions except those on country of origin and country of harvest, referring these two provisions back to the CCSCH for reconsideration.
The CCFL is scheduled to convene its 48th session (CCFL48) from October 28 to November 1, 2024, in Ottawa, Canada. The CCFL48 agenda is currently unavailable.
The Committee is expected to continue work on:
The Codex Committee on Fresh Fruits and Vegetables (CCFFV) is responsible for elaborating worldwide standards and codes of practice, as may be appropriate, for fresh fruits and vegetables, consulting as necessary, with other international organizations in the standards development process to avoid duplication.
The Committee had the following items which were considered and approved by the CAC45 in November 2022:
In addition, the Committee agreed to the following item for internal use by the Committee:
The date and location of the 23rd Session of the CCFFV (CCFFV23) have not yet been determined. The CCFFV23 agenda is currently unavailable.
The Committee is expected to continue work on:
The Codex Committee on General Principles (CCGP) is responsible for procedural and general matters referred to it by the Codex Alimentarius Commission, including: (a) The review or endorsement of procedural provisions/texts forwarded by other subsidiary bodies for inclusion in the
The 33rd Session of the CCGP (CCGP33) is scheduled for October 2-6, 2023, in Bordeaux, France.
The Committee is expected to discuss:
The Codex Committee on Methods of Analysis and Sampling (CCMAS) defines the criteria appropriate to Codex Methods of Analysis and Sampling; serves as a coordinating body for Codex with other international groups working on methods of analysis and sampling and quality assurance systems for laboratories; specifies, on the basis of final recommendations submitted to it by the bodies referred to above, reference methods of analysis and sampling appropriate to Codex standards which are generally applicable to a number of foods; considers, amends if necessary, and endorses as appropriate, methods of analysis and sampling proposed by Codex (commodity) committees, except for those methods of analysis and sampling for residues of pesticides or veterinary drugs in food, the assessment of microbiological quality and safety in food, and the assessment of specifications for food additives; elaborates sampling plans and procedures, as may be required; considers specific sampling and analysis problems submitted to it by the Commission or any committees; and defines procedures, protocols, guidelines or related texts for the assessment of food laboratory proficiency, as well as quality assurance systems for laboratories.
The CCMAS convened its 42nd Session (CCMAS42) from June 12-16, 2023, in Budapest, Hungary, with virtual report adoption on June 20, 2023. The relevant document is REP23/
The CCMAS is scheduled to convene its 43rd Session CCMAS43 from May 13-17, 2024, in Budapest, Hungary. The CCMAS43 agenda is currently unavailable.
The Committee is expected to continue work on:
The Codex Committee on Nutrition and Foods for Special Dietary Uses (CCNFSDU) is responsible for studying nutrition issues referred to it by the Codex Alimentarius Commission. The Committee also drafts general provisions, as appropriate, on nutritional aspects of all foods and develops standards, guidelines, or related texts for foods for special dietary uses in cooperation with other committees where necessary; considers, amends if necessary, and endorses provisions on nutritional aspects proposed for inclusion in Codex standards, guidelines, and related texts.
The Committee had the following item which was considered and approved by the CAC45 in November 2022:
The CCNFSDU convened its 43rd Session (CCNFSDU43) from March 7-10, 2023, in Dusseldorf, Germany, with virtual report adoption on March 15, 2023. The relevant document is REP23/NFSDU. CCNFSDU43 advanced the following items for consideration by the CAC46 in November 2023:
The CCNFSDU is scheduled to convene its 44th Session (CCNFSDU44) from October 2-6, 2024. The CCNFSDU44 location and agenda are currently unavailable.
The Committee is expected to continue work on:
The Codex Committee on Pesticide Residues (CCPR) is responsible for establishing maximum residue limits (MRLs) for pesticide residues in specific food items or in groups of food; establishing MRLs for pesticide residues in certain animal feeding stuffs moving in international trade where this is justified for reasons of protection of human health; preparing priority lists of pesticides for evaluation by the Joint FAO/WHO Meeting on Pesticide Residues (JMPR); considering methods of sampling and analysis for the determination of pesticide residues in food and feed; considering other matters in relation to the safety of food and feed containing pesticide residues; and establishing maximum limits for environmental and industrial contaminants showing chemical or other similarity to pesticides in specific food items or groups of food.
The Committee had the following items which were considered and approved by the CAC45 in November 2022:
The CAC45 also discontinued work, approved new work, and revoked existing MRLs as recommended by CCPR53, and noted the discontinuation of discussion of review of the international estimated short-term intake (IESTI) equations.
The CCPR convened its 54th Session (CCPR54) in Beijing, China from June 26-July 1, 2023. The relevant document is REP23/PR. CCPR54 advanced the following items for consideration by the CAC46 in November 2023:
The CAC46 will also consider discontinuation of work and revocation of existing MRLs as recommended by CCPR54.
The CCPR is scheduled to convene its 55th Session (CCPR55) from June 3-8, 2024, in China. The CCPR55 agenda is currently unavailable.
The Committee is expected to continue work on:
The Codex Committee on Residues of Veterinary Drugs in Foods (CCRVDF) determines priorities for the consideration of residues of veterinary drugs in foods and recommends MRLs for veterinary drugs. The Committee also develops codes of practice, as may be required, and considers methods of sampling and analysis for the determination of veterinary drug residues in food.
The Committee had the following item which was considered and approved by the CAC45 in November 2022:
The CCRVDF convened its 26th Session (CCRVDF26) from February 13-17, 2023, in Portland, Oregon. The relevant document is REP23/RVDF. CCRVDF26 advanced the following items for consideration at the CAC46 in November 2023:
The CCRVDF is scheduled to convene its 27th Session (CCRVDF27) from October 21-25, 2024. The CCRVDF27 location, and agenda are currently unavailable.
The Committee is expected to continue work on:
The Codex Committee on Spices and Culinary Herbs (CCSCH) is responsible for elaborating worldwide standards for spices and culinary herbs in their dried and dehydrated state in whole, ground, and cracked or crushed form. CCSCH also consults, as necessary, with other international organizations in the standards development process to avoid duplication.
The CCSCH convened its 6th Session (CCSCH6) virtually from September 26 to October 10, 2022. The relevant document is REP22/SCH. The Committee had the following items which were considered and approved by the CAC45 in November 2022:
The CCSCH is scheduled to convene its 7th Session (CCSCH7) from January 29-February 2, 2024, in India. The CCSCH7 agenda is currently unavailable.
The committee is expected to continue work on:
Several Codex Alimentarius Commodity Committees have adjourned
The FAO/WHO Regional Coordinating Committees define the problems and needs of the regions concerning food standards and food control; promote within the Committee contacts for the mutual exchange of information on proposed regulatory initiatives and problems arising from food control and stimulate the strengthening of food control infrastructures; recommend to the Commission the development of worldwide standards for products of interest to the region, including products considered by the Committees to have an international market potential in the future; develop regional standards for food products moving exclusively or almost exclusively in intra-regional trade; draw the attention of the Commission to any aspects of the Commission's work of particular significance to the region; promote coordination of all regional food standards work undertaken by international governmental and non-governmental organizations within each region; exercise a general coordinating role for the region and such other functions as may be entrusted to them by the Commission; and promote the use of Codex standards and related texts by members.
There are six regional coordinating committees:
The Coordinating Committee for Africa (CCAFRICA) convened its 24th Session (CCAFRICA24) virtually from September 5-9, 2022, with report adoption taking place on September 13, 2022.
The CCAFRICA had the following items which were considered and adopted by the CAC45 in November 2022:
The CCAFRICA plans to convene its 25th Session (CCAFRICA25) in approximately two years' time. The CCAFRICA25 date, location, and agenda are currently unavailable.
The Coordinating Committee for Asia (CCASIA) convened its 22nd Session (CCASIA22) virtually from October 12-18, 2022, with report adoption taking place on October 21, 2022.
The CCASIA advanced the following items for consideration at the CAC46 in November 2023:
The CCASIA plans to convene its 23rd Session (CCASIA23) in 2024. The CCASIA23 date, location, and agenda are currently unavailable.
The Coordinating Committee for Europe (CCEURO) did not meet during the time period covered by this notice and has not announced the date or location of its next session (CCEURO33). The CCEURO33 agenda is currently unavailable.
The Coordinating Committee for Latin America and the Caribbean (CCLAC) convened its 22nd Session (CCLAC22) virtually from October 24-28, 2022.
The CCLAC plans to convene its 23rd Session (CCLAC23) in approximately two years' time from CCLAC22. The CCLAC23 date, location, and agenda are currently unavailable.
The Coordinating Committee for North America and the South West Pacific (CCNASWP) convened its 16th Session (CCNASWP16) in Nadi, Fiji, from January 30 to February 3, 2023.
The CCNASWP advanced the following item for consideration by the CAC46 in November 2023:
The CCNASWP will convene its 17th Session in approximately two years' time from CCNASWP16. The CCNASWP17 date, location, and agenda are currently unavailable.
The Coordinating Committee for the Near East (CCNE) did not meet in 2022. The CCNE plans to convene its 11th Session (CCNE11) at FAO headquarters in Rome, Italy, September 18-22, 2023. The agenda for CCNE 11 includes discussion of the following topics: alignment of regional standards, proposed draft regional standard for maamoul, Codex work relevant to the region, food safety and quality in the region including current and emerging issues—country updates, implementation of the Codex Strategic Plan 2020-2025, Discussion Paper on the development of a standard for halal products, and Nomination of the regional coordinator.
U.S. Codex Office, United States Department of Agriculture, Room 4861, 1400 Independence Avenue SW, Washington, DC 20250-3700, Email:
Commission on Civil Rights.
Notice; cancellation of community forum meeting.
The Commission on Civil Rights published a notice in the
Victoria Moreno,
The meeting notice was originally published in the
U.S. Commission on Civil Rights.
Notice of public meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act, that the U.S. Virgin Islands Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a public meeting via Zoom. The purpose of the meeting is to discuss and plan on matters related to the Committee's inaugural civil rights project.
Tuesday, September 5, 2023, from 11:00 a.m.-12:30 p.m. Atlantic Time.
The meeting will be held via Zoom.
David Barreras, Designated Federal Officer, at
This Committee meeting is available to the public through the Zoom meeting link above. Any interested member of the public may listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. Per the Federal Advisory Committee Act, public minutes of the meeting will include a list of persons who are present at the meeting. If joining via phone, callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Closed captioning is available by selecting “CC” in the meeting platform. To request additional accommodations, please email
Members of the public are entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be emailed to David Barreras at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit Office, as they become available, both before and after the meeting. Records of the meetings will be available via
Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a meeting of the Puerto Rico Advisory Committee to the Commission will convene by virtual web conference on Monday, August 28, 2023, at 3:30 p.m. Atlantic Time/Eastern Time. The purpose is to continue discussion on their project on the civil rights impacts of the Insular Cases in Puerto Rico.
August 28, 2023, Monday, at 3:30 p.m. (AT and ET):
Meeting will be held via Zoom.
Email Victoria Moreno, Designated Federal Officer at
This meeting will take place in Spanish with English interpretation. This committee meeting is available to the public through the registration link above. Any interested member of the public may listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. Per the Federal Advisory Committee Act, public minutes of the meeting will include a list of persons who are present at the meeting. If joining via phone, callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-
Members of the public are entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be emailed to Victoria Moreno at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit Office, as they become available, both before and after the meeting. Records of the meetings will be available via
Bureau of Industry and Security, Department of Commerce.
Notice of information collection, request for comment.
The Department of Commerce, in accordance with the Paperwork Reduction Act of 1995 (PRA), invites the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. The purpose of this notice is to allow for 60 days of public comment preceding submission of the collection to OMB.
To ensure consideration, comments regarding this proposed information collection must be received on or before October 10, 2023.
Interested persons are invited to submit comments by email to Mark Crace, IC Liaison, Bureau of Industry and Security, at
Requests for additional information or specific questions related to collection activities should be directed to Mark Crace, IC Liaison, Bureau of Industry and Security, phone 202-482-8093 or by email at
The Additional Protocol requires the United States to submit declaration forms to the International Atomic Energy Agency (IAEA) on a number of commercial nuclear and nuclear-related items, materials, and activities that may be used for peaceful nuclear purposes, but also would be necessary elements for a nuclear weapons program. These forms provides the IAEA with information about additional aspects of the U.S. commercial nuclear fuel cycle, including: mining and milling of nuclear materials; buildings on sites of facilities selected by the IAEA from the U.S. Eligible Facilities List; nuclear-related equipment manufacturing, assembly, or construction; import and export of nuclear and nuclear-related items and materials; and research and development. The Protocol also expands IAEA access to locations where these activities occur in order to verify the form data.
Submitted electronically or in paper form.
We are soliciting public comments to permit the Department/Bureau to: (a) Evaluate whether the proposed information collection is necessary for the proper functions of the Department, including whether the information will have practical utility; (b) Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used; (c) Evaluate ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of intent to prepare an environmental impact statement, request for comments.
This notice announces an Environmental Impact Statement (EIS) will be prepared in accordance with the National Environmental Policy Act (NEPA) to analyze the impacts to the environment of alternatives related to a funding program addressing species affected by fisheries managed under the Pacific Salmon Treaty (PST). NMFS intends to make funding decisions related to increasing the availability of prey to Southern Resident Killer Whales (SRKWs). This notice is necessary to inform the public of NMFS's intent to prepare this EIS and to provide the public with an opportunity to provide input for NMFS's consideration.
The NMFS requests comments concerning the scope of the analysis, and identification of relevant information, studies, and analyses. All comments must be received by 11:59 p.m. Eastern Time on September 25, 2023.
Send written comments to NOAA Fisheries, 2900 NW Stewart Parkway, Roseburg, OR 97471. Comments may also be sent via email to
Lance Kruzic, NMFS, 541-802-3728,
The purpose and need of the proposed action is to provide for additional prey (food) for the benefit of SRKWs, which are listed as endangered under the Endangered Species Act (ESA) consistent with applicable laws and treaties.
The United States and Canada have an agreement for the management of Chinook salmon and the fisheries that affect Chinook stocks that is part of the PST. This agreement was renewed in 2019 and is currently in effect through 2028. In association with the renewed agreement, the U.S. section of the Pacific Salmon Commission, the international body that implements the PST, agreed to seek Federal funding for activities to conserve certain species listed under the ESA that are affected by fisheries managed under the PST. Congress has appropriated annual funding for these activities in 2020 through 2023. A portion of the funding has been awarded to hatchery operators in the Pacific Northwest to increase production of Chinook salmon for the purpose of increasing prey for SRKWs.
NMFS is proposing to continue implementation of the funding program to increase prey for the benefit of SRKWs. Beginning in 2020, NMFS funded the production of additional hatchery Chinook salmon in existing hatchery programs in Washington, Oregon, and Idaho. Specific criteria were developed to guide these funding decisions to maximize the benefits to SRKWs, while mitigating potential adverse effects to salmon and steelhead listed under the ESA. NMFS conducted site-specific NEPA analyses for each funding decision or otherwise ensured that effects from funding specific hatcheries were evaluated within existing NEPA analyses. However, in a recent court ruling (
We will also be evaluating the effects of a No Action alternative, in which no Federal funding would be used to increase available Chinook prey for the benefit of SRKWs. NMFS is also planning to evaluate other possibilities. For example, instead of funding additional prey for SRKWs in the form of hatchery fish, funding could instead be used to improve the productivity of natural-origin salmon through habitat restoration/enhancement. Another alternative could reduce fishing impacts on select salmon stocks instead of producing additional hatchery fish. Through this notice, we are seeking input on these potential alternatives to help shape the development of our EIS consistent with our purpose and need for the proposed action.
The EIS will evaluate a range of alternatives, and the effects of these alternatives, on the human environment. Key resources to be considered include, but are not limited to, SRKWs and other wildlife species, salmon and steelhead, socioeconomics, and aquatic habitats. Considering a range of alternatives means there is a range of impacts to the key resources specified above that would be evaluated in the EIS, such as different abundances of hatchery salmon available as prey for SRKWs, reduced fishery impacts and corresponding salmon abundances, and effects of additional hatchery salmon production on ESA-listed salmon and steelhead.
The following consultations, permits, and/or other authorizations may be required as part of NMFS' continued funding to increase the availability of prey (food) for SRKWs: ESA Section 7 consultations, ESA Section 4(d) authorizations or Section 10 permits, Magnuson-Stevens Fishery Conservation and Management Act Essential Fish Habitat consultation; and consultation with Indian Tribes.
The draft environmental impact statement is scheduled to be made available for public review in the fall of
This notice of intent initiates the scoping process, which helps guide the development of the EIS. NMFS is hosting public webinars for informational purposes within the scoping period. Information on the webinar dates and times, and instructions for connecting or calling into the webinar will be posted at:
Public comments will not be accepted during the webinars.
The primary purpose of the scoping process is for the public to assist NMFS in developing the EIS. NMFS requests that the comments be specific. In particular, we request information regarding: any science that would be relevant in this assessment; significant issues; identification of impacts of concern; review and input regarding monitoring; possible alternatives that meet the purpose and need; effects or impacts to the human environment from the proposed action or alternatives.
Regional Administrator for the West Coast Region, NMFS.
If after publication of the Record of Decision, we determine that all requirements are met for NMFS' NEPA and ESA responsibilities, we may continue to provide funding for the production of additional prey for SRKWs.
National Marine Fisheries Service (NMFS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for information.
NOAA's National Ocean Service (NOS), National Centers for Coastal Ocean Science (NCCOS) in partnership with the NOAA National Marine Fisheries Service (NMFS), Southeast Fisheries Science Center (SEFSC) and Southeast Regional Office (SERO), hereafter NOAA, are working to build spatial science capacity in the U.S. Caribbean Region. Through this Request for Information, we are seeking public input to identify coastal and marine spatial data or other critical information to inform marine spatial analyses. Additionally, we are seeking feedback on data shortcomings and gaps that should be addressed prior to commencing marine spatial studies. The input we receive from meetings, as well as the responses to the items listed in the
Interested persons are invited to provide input in response to this Request for Information through September 30, 2023. Late-filed input will be considered to the extent practicable.
Verbal input will be accepted during two public meetings to be held in St. Croix, USVI on August 28-29 and in San Juan, Puerto Rico on August 31-September 1.
Interested persons are invited to provide input using one of the following methods:
Reports of meeting results will also be published and made available to the public in the weeks following the meetings. If you are unable to provide electronic written comments or participate in the meetings, please contact Jennifer Wright at
James Morris (
NOAA is an agency of the United States Federal government that works to conserve and manage coastal and marine ecosystems and resources. We work to make fisheries sustainable and productive, provide safe seafood to consumers, conserve threatened and endangered species and other protected resources, and maintain healthy ecosystems. NOAA has jurisdiction and
NOAA has recently been involved in planning for the expansion of offshore aquaculture in U.S. Federal waters through the development of Aquaculture Opportunity Areas (
The purpose of this Request for Information is to promote data development to inform marine spatial studies in Puerto Rico and the USVI, with an emphasis on data needs for offshore wind energy and aquaculture development. In addition to input received from the public through the electronic and verbal submissions, NOAA aims to inform the public about its coastal and ocean planning processes and capabilities, discuss the current data available for each ocean sector (e.g., military, fisheries, industry, natural resources), and gather ideas for other data sources. NOAA hopes to come out of the meetings with a strengthened relationship with the public and a list of data gaps and needs to pursue going forward.
Through this Request for Information, NOAA seeks written public input to inform the marine spatial studies in Puerto Rico and USVI. NOAA is particularly interested in receiving input concerning the items listed below. Responses to this Request for Information are voluntary, and respondents need not reply to items listed. When providing input, please specify if you are providing general feedback on marine spatial studies and/or if you are responding to one of the specific item number(s) below:
(1) Specific datasets related to ocean sectors, natural resources, and/or human activities you recommend NOAA use in marine spatial studies.
(2) Major concerns you have related to use of any specific datasets that may be used in marine spatial studies.
(3) Major concerns you have related to the impacts of new marine industries on ecological systems in Puerto Rico and/or the USVI.
(4) Major concerns you have related to the impact of new marine industries on other ocean industries in Puerto Rico and/or the USVI.
(5) Major concerns you have related to gaps in scientific knowledge or data that could impact marine spatial study efforts.
(6) Specific data or information you recommend NOAA or other partners collect, if it is not currently available or has not been previously collected.
(7) Ways in which NOAA can better engage and collaborate with the public and Territorial communities to promote economic, social, and ecological resilience as well as protect trust resources.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; availability of a Draft Environmental Assessment; request for comments.
NMFS announces the availability of the Draft Environmental Assessment (EA) on the effects of issuing an Incidental Take Permit (ITP) (No. 27106) to North Carolina Department of Environment and Natural Resources, Division of Marine Fisheries (NCDMF), pursuant to the Endangered Species Act (ESA) of 1973, as amended, for the incidental take of ESA-listed sea turtles and sturgeon associated with the otherwise lawful gill net fisheries operating in the inshore waters of North Carolina. The duration of the requested permit is 10 years. NMFS is requesting comment on the draft EA.
Written comments must be received at the appropriate address or fax number (see
The EA is available for download and review at
You may submit comments on this document, identified by NOAA-NMFS-2023-0098, by any of the following methods:
•
Celeste Stout, NMFS, Office of Protected Resources at
Publication of this notice begins the official public comment period for this draft EA. Per the National Environmental Policy Act (NEPA), the purpose of the draft EA is to evaluate the potential direct, indirect, and cumulative impacts caused by the issuance of Permit No. 27106 to NCDMF for the incidental take of ESA-listed sea
Section 9 of the ESA and Federal regulations prohibit the `taking' of a species listed as endangered or threatened. The ESA defines “take” to mean harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. NMFS may issue permits, under limited circumstances to take listed species incidental to, and not the purpose of, otherwise lawful activities. Section 10(a)(1)(B) of the ESA provides a mechanism for authorizing incidental take of listed species. NMFS regulations governing permits for threatened and endangered species are promulgated at 50 CFR 222.307.
The following species are included in the EA: North Atlantic and South Atlantic Distinct Population Segments (DPSs) of green (
NMFS received a draft permit application and conservation plan from NCDMF on June 22, 2022. Based on our review of the draft application, we requested further information and clarification on their mitigation measures and take requests. After several draft submissions and reviews, on December 2, 2022, NCDMF submitted a complete revised application for the incidental take of ESA-listed sea turtles and sturgeon. On December 22, 2022, we published a notice of receipt (87 FR 78659) of application and conservation plan from NCDMF for an incidental take permit. In that notice, we made the ITP application and associated conservation plan available for public comment. Subsequently, we received a request to extend the public comment period. NMFS provided a 30-day extension (88 FR 3971) to the comment period which closed on February 22, 2023. We received 231 comments on the application and conservation plan and responses to these comments are available in the draft EA.
This notice is provided pursuant to section 10(c) of the ESA and the National Environmental Policy Act (NEPA) regulations (40 CFR 1506.6). The draft EA was prepared in accordance with NEPA (42 U.S.C. 4321,
NMFS' proposed action is issuance of an ITP to NCDMF, which would authorize take of threatened and endangered sea turtle and sturgeon species associated with the otherwise lawful operation of NC commercial inshore large and small-mesh anchored gill net fisheries and require implementation of a conservation plan, in accordance with the requirements of the ESA. In preparing the draft EA, NMFS considered the following two alternatives for the proposed action.
Final permit determinations will not be completed until after the end of the 30-day comment period and will fully consider all public comments received during the comment period. NMFS will publish a record of its final action in the
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of information collection, request for comment.
The Department of Commerce, in accordance with the Paperwork Reduction Act of 1995 (PRA), invites the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. The purpose of this notice is to allow for 60 days of public comment preceding submission of the collection to OMB.
To ensure consideration, comments regarding this proposed information collection must be received on or before October 10, 2023.
Interested persons are invited to submit written comments to Adrienne Thomas, NOAA PRA Officer, at
Requests for additional information or
This is a request for revision and extension of an existing information collection.
The NOAA Commissioned Officer Corps is the uniformed service of the National Oceanic and Atmospheric Administration (NOAA), a bureau of the United States Department of Commerce. Officers serve under Senate-confirmed appointments and Presidential commissions (33 U.S.C. chapter 17, subchapter 1, sections 853 and 854). The NOAA Corps provides a cadre of professionals trained in engineering, earth sciences, oceanography, meteorology, fisheries science, and other related disciplines who serve their country by supporting NOAA's mission of surveying the Earth's oceans, coasts, and atmosphere to ensure the economic and physical well-being of the Nation.
NOAA Corps officers operate vessels and aircraft engaged in scientific missions and serve in leadership positions throughout NOAA. Persons wishing to apply for an appointment in the NOAA Commissioned Officer Corps must complete an application package, including NOAA Form 56-42, at least three letters of recommendation, and official transcripts. A personal interview must also be conducted. Eligibility requirements include a bachelor's degree with at least 48 credit hours of science, engineering, or other disciplines related to NOAA's mission, excellent health, and normal color vision with uncorrected visual acuity no worse than 20/400 in each eye (correctable to 20/20).
The revision includes updates which reflect the current status of the NOAA Corps. This includes amending the essay questions and updating the instructions to reflect a new direct-to-aviation recruitment model.
Applicants must utilize the online E-recruit electronic application to complete and digitally submit the form. An in-person interview is also required.
We are soliciting public comments to permit the Department/Bureau to: (a) Evaluate whether the proposed information collection is necessary for the proper functions of the Department, including whether the information will have practical utility; (b) Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used; (c) Evaluate ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
United States Patent and Trademark Office, U.S. Department of Commerce.
Notice of public listening session; request for comments.
The United States Patent and Trademark Office (USPTO or Office) seeks public comments on changes to the trademark rule regarding the duration of attorney recognition. In addition, the USPTO is announcing a public listening session on September 26, 2023, titled “Changes to Duration of Attorney Recognition,” to offer further opportunity for the public to provide input on this topic.
The public listening session will take place on September 26, 2023, from 2-3:30 p.m. ET. Anyone wishing to present oral testimony at the hearing, either in person or virtually, must submit a written request for an opportunity to do so no later than September 15, 2023. Persons seeking to attend, either in person or virtually, but not to speak at the event must register by September 18, 2023. Seating is limited for in-person attendance. The USPTO will accept written comments until October 6, 2023.
The public listening session will take place in person in the Clara Barton Auditorium at the USPTO, 600 Dulany Street, Alexandria, VA 22314. The session will also be available via live feed for those wishing to attend remotely. Registration is required for both in-person and virtual attendance. Information on registration is available on the USPTO's website at
For reasons of Government efficiency, commenters must submit their comments through the Federal eRulemaking Portal at
Visit the Federal eRulemaking Portal for additional instructions on providing comments via the portal. If electronic submission of comments is not feasible due to a lack of access to a computer and/or the internet, please contact the USPTO using the contact information below for special instructions regarding how to submit comments by mail or by hand delivery.
Catherine Cain, Office of the Deputy Commissioner for Trademark Examination Policy, at 571-272-8946 or
Under the Trademark Rules of Practice, the USPTO will recognize an attorney qualified under 37 CFR 11.14 as an applicant's or registrant's representative if that attorney files a power of attorney, signs a document on behalf of an applicant or registrant who is not already represented, or is otherwise identified in a document submitted on behalf of an applicant or registrant who is not already represented. 37 CFR 2.17(b). Once an attorney is recognized, the USPTO will correspond only with that attorney until recognition ends. 37 CFR 2.18(a)(2). Recognition as to a pending application ends when the mark registers, when ownership changes, or when the application is abandoned. 37 CFR 2.17(g)(1). Recognition as to a registration ends when the registration is canceled or expired, when ownership changes, or upon acceptance or final rejection of a post registration maintenance filing. 37 CFR 2.17(g)(2). The USPTO does not inquire into any engagement agreement between the attorney and the applicant or registrant to determine whether representation continues after the events that trigger the end of recognition under § 2.17(g). Therefore, following such an event, the trademark rules dictate that the USPTO correspond only with the applicant or registrant. 37 CFR 2.18(a). However, past customer feedback indicated that, in most cases, even after the occurrence of an event listed in the current § 2.17(g), representation continued, and the attorney should be the only recipient of the trademark registration certificate, maintenance and renewal reminders, and any other correspondence. For this reason, the USPTO currently sends, as a courtesy, correspondence to the attorney of record, except in connection with petitions to cancel filed with the Trademark Trial and Appeal Board, which are served on the registrant.
For several years, some outside practitioners have expressed concern that the current recognition rule, when read in conjunction with the correspondence rule, is problematic for practitioners whose recognition before the Office ends even though their representation of the applicant or registrant continues based on engagement agreements. These practitioners are concerned about missing response deadlines when representation continues, if they are removed from the record when recognition ends and will no longer receive correspondence from the USPTO regarding their clients' matters following abandonment or registration. Many of these practitioners have instructed their clients to disregard anything sent directly to them about their trademark application or registration to avoid having the clients subjected to a misleading solicitation, which is a growing problem for the USPTO and its customers. If their clients disregard all communications, including USPTO correspondence sent to them pursuant to § 2.18(a), and the practitioner is no longer receiving correspondence from the USPTO, deadlines for taking action would likely be missed. This group would like the USPTO to presume that representation, and therefore recognition, continues until the attorney withdraws or is revoked so that they, and not their clients, will continue to receive correspondence from the USPTO.
Other practitioners have expressed that they did not have any concerns with the current recognition rule because they do not wish to be subject to continuing legal and ethical obligations to the client after a listed event occurs. The current rule works to their advantage because they have no obligation to file a withdrawal form with the USPTO if recognition ends automatically. However, these practitioners have expressed concern as to whether there is an ethical obligation to contact their former clients about correspondence sent to them as a courtesy by the USPTO. As noted above, the USPTO continues to list all practitioners as the attorney of record and to send correspondence to them, even after recognition ended under the rule, because of the concerns over missed response deadlines.
In response to practitioner requests, the USPTO sends the courtesy email reminder that goes out in advance of the due date for a post registration maintenance document to both the owner and the last attorney of record (who is no longer recognized under the current rule and should not receive correspondence). The USPTO implemented this courtesy practice by sending the email reminders to both the applicant/registrant and the attorney as well as the notice of registration, the notice of abandonment, and the notice that an expungement or reexamination petition had been filed against the registration.
However, the practice has caused confusion among practitioners and has created some uncertainty for the USPTO in implementing its regulations. Sending email reminders and notices to attorneys who are no longer recognized under § 2.17(g) constitutes an unofficial waiver of § 2.18(a), which governs the parties with whom the USPTO will correspond in trademark matters. Moreover, despite the obligation under § 2.18(c) to maintain current and accurate correspondence addresses, the USPTO cannot be certain that the correspondence information in its records is still accurate, particularly regarding post registration reminders and notices that are sent 5-10 years or more after registration.
In a notice of proposed rulemaking (NPRM) to implement provisions of the Trademark Modernization Act (TMA), published in the
As noted in the final rule published on November 17, 2021, the USPTO received mixed comments regarding the
The USPTO also proposed to remove the name of any attorney whose recognition had ended under existing § 2.17(g) from the current attorney-of-record field in the USPTO's database, along with the attorney's bar information and any docketing information. However, the attorney's correspondence information, including any correspondence email address, would be retained so the USPTO could continue to send relevant correspondence and notices to both the formerly recognized attorney and the owner. Most commenters were opposed to removing the attorney information during the transition period, stating that this would cause unnecessary burdens to reappear in records.
Based on the public comments to the TMA NPRM, the USPTO determined that additional time was needed to address the concerns expressed. Therefore, the changes proposed in the TMA NPRM were not included in the TMA final rule. The USPTO now seeks additional input on whether § 2.17(g): (1) should be amended as discussed below, or (2) should not be amended, and all attorney information be removed when recognition ends following a listed event in § 2.17(g).
The USPTO now seeks additional feedback regarding possible changes to the provisions addressing the duration of recognition for representation in § 2.17(g). The changes under consideration would allow recognition as to a pending application or registration to continue until the applicant, registrant, or party to a proceeding revokes the power of attorney or the representative withdraws from representation.
As noted above, such a rule change would require an attorney who no longer represents an applicant to affirmatively withdraw or be revoked for recognition to end. Shifting the burden to the attorney to withdraw, or to the owner to file a revocation, would give the USPTO greater assurance that it is communicating with the correct party. If stakeholders support the rule change, there are at least two challenges to address:
(1) How to make withdrawal easier.
(2) How to implement the transition in the USPTO database.
Although withdrawal is relatively easy, it is worth exploring whether the USPTO can make it even easier. In addition, the USPTO must ensure that if an attorney is deceased, it can efficiently remove that practitioner from its records. Moreover, the process must be consistent with the Rules of Professional Conduct, which dictate the terms of withdrawal.
The other area of concern is the transition of the USPTO's electronic records from recognition for a set duration to continued recognition following any rule change. Two categories of attorneys would be immediately affected by any rule change: (1) attorneys who are recognized at the time the rule goes into effect, and (2) attorneys whose information remains in the record but who are not currently recognized by virtue of the previous recognition rule. The revisions under consideration would have limited effect on the first set of attorneys because their existing recognition would continue. There would be some impact on attorneys whose representation does not continue past a certain event or date and who no longer wish to be recognized by the Office as the attorney of record because they would have to proactively withdraw to avoid any ambiguity.
The attorneys in the second group for whom recognition has ended under the current rule, even though their information remains of record, cannot be retroactively recognized by implementation of the revisions under consideration even if they prefer recognition to continue.
The USPTO is now considering deleting all attorney information, after a listed event, from the records of all applications filed or registrations issued prior to the date of implementation of a change to § 2.17(g) stating that recognition continues until there is a revocation or withdrawal of the recognized attorney of record. The USPTO has considered requests that attorneys be given the opportunity to opt in to remaining of record in such situations. However, the USPTO has neither the staff nor the technological resources to implement an opt-in alternative as to the affected applications and registrations. In addition, such a provision would not reconcile inaccuracies in older records.
If the USPTO does not amend § 2.17(g) to allow continued recognition until there is a revocation or withdrawal of the recognized attorney of record, the USPTO would not continue the courtesy practice of sending notices or reminders to the listed attorney in addition to the applicant or registrant. Pursuant to the plain language of § 2.17(g) that recognition ends when a listed event occurs, all attorney information would be removed when such an event occurs or if it has already occurred. Thus, correspondence and relevant notices would no longer be sent to both the formerly recognized attorney and the owner. Following § 2.18(a), correspondence and notices would be sent to the applicant or registrant or to a newly recognized attorney. This option would also require a transition period during which attorney information would be removed for attorneys whose information remains in the record but who are not currently recognized by virtue of the rule.
The USPTO is holding a listening session on September 26, 2023, and is requesting public comments on the questions listed below. The USPTO will use a portion of the listening session to provide an overview of the changes under consideration. An agenda will be available approximately five days before the listening session on the USPTO website at
The USPTO poses the following questions for public comment. These questions are not meant to be exhaustive. We encourage interested stakeholders to address these and/or other related issues and to submit research and data that inform and
1. Do you think the current rule should remain unchanged, or are you in favor of the revisions under consideration?
2. Do you have suggestions for handling the transition period during which attorney information is removed from the record whether the current rule is retained or revised?
3. Do you have any suggestions for making withdrawal or re-recognition easier if the rule is revised to continue recognition?
Anyone wishing to participate as a speaker, either in person or virtually, must submit a request in writing no later than September 15, 2023. Requests to participate as a speaker must be submitted to
1. The name of the person desiring to participate;
2. The organization(s) that person represents, if any; and
3. The person's contact information (address, telephone number, and email).
Speaking slots are limited; the USPTO will give preference to speakers wishing to address one of the questions raised in this request for comments. Speakers will be announced a few days prior to the public listening session. The USPTO will inform each speaker in advance of their assigned time slot. If the USPTO receives more requests to speak than time allows and is unable to assign a time slot as requested, the agency will invite the requestor to submit written comments. Time slots will be at least three minutes and may be longer, depending on the number of speakers registered. A panel of USPTO personnel may reserve time to ask questions of particular speakers after the delivery of a speaker's remarks.
The public listening session will be physically accessible to people with disabilities. Individuals requiring accommodation, such as sign language interpretation or other ancillary aids, should communicate their needs to the individuals listed under the
Corporation for National and Community Service.
Notice of information collection; request for comment.
The Corporation for National and Community Service, operating as AmeriCorps, has submitted a public information collection request (ICR) entitled President's Volunteer Service Awards for review and approval in accordance with the Paperwork Reduction Act.
Written comments must be submitted to the individual and office listed in the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of this ICR, with applicable supporting documentation, may be obtained by calling AmeriCorps, Rhonda Taylor, at 202-606-6721 or by email to
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
A 60-day Notice requesting public comment was published in the
U.S. International Development Finance Corporation (DFC).
Notice of information collection; request for comment
Under the provisions of the Paperwork Reduction Act, agencies are required to publish a Notice in the
Comments must be received by October 10, 2023.
Comments and requests for copies of the subject information collection may be sent by any of the following methods:
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Agency Submitting Officer: Deborah Papadopoulos, (202) 357-3979.
This notice informs the public that DFC will submit to OMB a request for approval of the following information collection.
Department of the Army, DoD.
Notice of open meeting.
The Department of the Army is publishing this notice to announce the following Federal advisory committee meeting of the Board of Visitors for the U.S. Army Command and General Staff College (CGSC). This meeting is open to the public.
The Board of Visitors will meet from 8:30 a.m. to 3:00 p.m. on Tuesday, September 12, 2023, and from 8:30 a.m. to 10:45 a.m. on Wednesday, September 13, 2023.
Lewis and Clark Center, Arnold Conference Room, 120 Stovall St., Building 127, Fort Leavenworth, KS 66048.
Dr. Dale Spurlin, Alternate Designated Federal Officer for the Committee, by email at
The committee meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), 41 CFR 102-3.140(c), and 41 CFR 102-3.150.
Office of Elementary and Secondary Education (OESE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act (PRA) of 1995, the Department is proposing an extension without change of a currently approved information collection request (ICR).
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 Melissa Siry, 202-260-0926.
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.
Take notice that the Commission has received the following Natural Gas and Oil Pipeline Rate and Refund Report filings:
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:
Dated: August 4, 2023.
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
Take notice that the Commission received the following exempt wholesale generator filings:
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
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k. Pursuant to section 4.32(b)(7) of 18 CFR of the Commission's regulations, if any resource agency, Indian Tribe, or person believes that an additional scientific study should be conducted in order to form an adequate factual basis for a complete analysis of the application on its merit, the resource agency, Indian Tribe, or person must file a request for a study with the Commission not later than 60 days from the date of filing of the application, and serve a copy of the request on the applicant.
l.
The Commission strongly encourages electronic filing. Please file additional study requests and requests for cooperating agency status using the Commission's eFiling system at
m. The application is not ready for environmental analysis at this time.
n.
The project operates in a run-of-river mode with a minimum flow of 20 cubic feet per second, or reservoir inflow, whichever is less. The project has an average annual generation of 1.363 megawatt-hours between 2015 and 2020.
o. Copies of the application may be viewed on the Commission's website at
You may also register online at
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
p.
Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice of ready for environmental analysis.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k. Pursuant to section 4.32(b)(7) of 18 CFR of the Commission's regulations, if any resource agency, Indian Tribe, or person believes that an additional scientific study should be conducted in order to form an adequate factual basis for a complete analysis of the application on its merit, the resource agency, Indian Tribe, or person must file a request for a study with the Commission not later than 60 days from the date of filing of the application, and serve a copy of the request on the applicant.
l.
The Commission strongly encourages electronic filing. Please file additional study requests and requests for cooperating agency status using the Commission's eFiling system at
m. The application is not ready for environmental analysis at this time.
n.
The current license requires the project to operate in a run-of-river mode, such that outflow from the project approximates inflow to protect aquatic resources in the White River. The current license requires the impoundment to be maintained at an elevation between 710.4 and 711.6 feet NGVD 29. The current license also requires a minimum bypassed reach flow of 16 cubic feet per second (cfs) or inflow to the impoundment, whichever is less, to protect aquatic resources. The minimum and maximum hydraulic capacities of the powerhouse are 50 and 350 cfs, respectively. The average annual generation of the project was 4,927 megawatt-hours from 2017 through 2022.
o. At this time, the Commission has suspended access to the Commission's Public Reference Room. Copies of the application can be viewed on the Commission's website at
You may also register online at
p. 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
q.
r. Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice of ready for environmental analysis.
On January 3, 2022, Georgia Power Company (Georgia Power) filed an application for a new license for the Lloyd Shoals Hydroelectric Project (project) in the above captioned docket. On June 24, 2022, Georgia Power filed with the Georgia Department of Natural Resources, Environmental Protection Division (Georgia EPD), a request for water quality certification for the project under section 401(a)(1) of the Clean Water Act.
On July 19, 2022, staff provided the certifying authority with written notice pursuant to 40 CFR 121.6(b) that the applicable reasonable period of time for the state to act on the certification request was one (1) year from the date of receipt of the request, and that the certification requirement for the license would be waived if the certifying authority failed to act by June 24, 2023. Because the state did not act by June 24, 2023, we are notifying you pursuant to 40 CFR 121.9(c), and section 401(a)(1) of the Clean Water Act, 33 U.S.C. 1341(a)(1), that waiver of the certification requirement has occurred.
Environmental Protection Agency (EPA).
Notice of proposed settlement; request for public comment.
In accordance with the requirements of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERLCA”), notice is hereby given that a proposed CERCLA Cashout Settlement Agreement for Peripheral Parties (“Proposed Agreement”) associated with the Colorado Smelter Superfund Site, Pueblo, Colorado (“Site”) was executed by the U.S. Environmental Protection Agency (“EPA”), Region 8 and is now subject to public comment, after which EPA may modify or withdraw its consent if comments received disclose facts or considerations that indicate that the Proposed Agreement is inappropriate, improper, or inadequate.
Comments must be submitted on or before September 11, 2023.
The Proposed Agreement and additional background information relating to the agreement will be available upon request. Any comments or requests or for a copy of the Proposed Agreement should be addressed to Julie Nicholson, Enforcement Specialist, Superfund and Emergency Management Division, Environmental Protection Agency—Region 8, Mail Code 8SEM-PAC, 1595 Wynkoop Street, Denver, Colorado 80202, telephone number: (401) 714-6143, email address:
You may also send comments, identified by Docket ID No. EPA-R08-SFUND-2023-0366, to
Sarah Rae, Senior Assistant Regional Counsel, Office of Regional Counsel, Environmental Protection Agency, Region 8, Mail Code 8ORC-LEC, 1595 Wynkoop, Denver, Colorado 80202, telephone number: (303) 312-6839, email address:
The Proposed Agreement would resolve potential EPA claims under section 107(a) of CERCLA, against 1000 South Santa Fe LLC and 1100 South Santa Fe LLC(“Settling Parties”) for EPA response costs at or in connection with the property located at 1101-1109 Santa Fe Avenue and 1045-1049 South Santa Fe Avenue, in Pueblo, Colorado (the “Property”), which is part of the Colorado Smelter Superfund Site. The settlement is estimated to be $646,100, plus an additional sum for interest on that amount calculated from the effective date through the date of payment (“Payment Amount”). Settling Parties will remit the Payment Amount to EPA upon the transfer of the Property or within three years of the effective date, whichever occurs earlier. The Proposed Settlement Agreement also provides a covenant not to sue or to take administrative action from the United States to the Settling Parties pursuant to sections 106 and 107(a) of CERCLA, 42 U.S.C. 9606 and 9607(a) with regard to Operable Unit 02 (OU2).
For thirty (30) days following the date of publication of this document, EPA will receive electronic comments relating to the Proposed Agreement. EPA's response to any comments received will be available for public inspection by request. Please see the
Office of the National Cyber Director, Executive Office of the President, Cybersecurity and Infrastructure Security Agency, DHS, National Science Foundation, Defense Advanced Research Projects Agency, and Office of Management and Budget, Executive Office of the President.
Request for information (RFI).
The Office of the National Cyber Director (ONCD), the Cybersecurity Infrastructure Security Agency (CISA), the National Science Foundation (NSF), the Defense Advanced Research Projects Agency (DARPA), and the Office of Management and Budget (OMB) invite public comments on areas of long-term focus and prioritization on open-source software security.
Comments must be received in writing by 5 p.m. ET October 9, 2023.
Interested parties may submit comments through
Requests for additional information may be sent to:
As highlighted in the National Cybersecurity Strategy (
In 2021, following the aftermath of the Log4Shell vulnerability, ONCD in collaboration with the Office of Management and Budget's (OMB) Office of the Federal Chief Information Officer (OFCIO), established the Open-Source Software Security Initiative (OS3I) interagency working group with the goal of channeling government resources to foster greater open-source software security. Since then, OS3I has welcomed many other interagency partners, including the Cybersecurity Infrastructure Security Agency (CISA), the National Science Foundation (NSF), Defense Advanced Research Projects Agency (DARPA), National Institute of Standards and Technology (NIST),
Over the past year, OS3I identified several focus areas, including: (1) reducing the proliferation of memory unsafe programming languages; (2) designing implementation requirements for secure and privacy-preserving security attestations; and (3) identifying new focus areas for prioritization.
This Request for Information (RFI) aims to further the work of OS3I by identifying areas most appropriate to focus government priorities, and addressing critical questions such as:
• How should the Federal Government contribute to driving down the most important systemic risks in open-source software?
• How can the Federal Government help foster the long-term sustainability of open-source software communities?
• How should open-source software security solutions be implemented from a technical and resourcing perspective?
This RFI represents a continuation of OS3I's efforts to gather input from a broad array of stakeholders.
For this RFI, the Government intends to engage with interested parties in three phases:
• If you have any questions about the context of the Government's RFI, the processes described, or the numbered topics below, you may send them to
• By August 28, 2023, the Government will post responses to select questions on
• By October 9, 2023, all interested respondents should submit a written RFI response, in MS Word or PDF format, focusing on questions for which they have expertise and insights for the Government (no longer than 10 pages typed, size eleven font) to
• Title page, cover letter, table of contents, and appendix are not included within the 10-page limit. In the body of the email, also include contact information for your organization (POC Name, Title, Phone, Email, Organization Name, and Organization Address).
• The Government reviews and publishes the RFI responses submitted during Phase II. The Government may select respondents to engage with the RFI project team to elaborate on their response to the RFI.
Participation, or lack thereof, in this RFI process has no bearing on a party's ability or option to choose to participate in or receive an award for any future solicitation or procurement resulting from this or any other activity.
We are seeking insights and recommendations as to how the Federal Government can lead, assist, or encourage other key stakeholders to advance progress in the potential areas of focus described below.
Please consider providing input on these areas by addressing the questions below:
• Which of the potential areas and sub-areas of focus described below should be prioritized for any potential action? Please describe specific policy solutions and estimated budget and timeline required for implementation.
• What areas of focus are the most time-sensitive or should be developed first?
• What technical, policy or economic challenges must the Government consider when implementing these solutions?
• Which of the potential areas and sub-areas of focus described below should be applied to other domains? How might your policy solutions differ?
Respondents are not required to respond to every topic and are encouraged to focus on specific areas that meet their specialized expertise.
This RFI seeks public input as the Federal Government develops its strategy and action plan to strengthen the open-source software ecosystem. We hope that potential respondents will view this RFI as a civic opportunity to help shape the government's thinking about open-source software security.
Comments must be received no later than 5:00 p.m. ET October 9, 2023.
By October 9, 2023, all interested respondents should submit a written RFI response, in MS Word or PDF format, with their answers to questions on which they have expertise and insights for the Government through
The written RFI response should address ONLY the topics for which the respondent has expertise. Inputs that meet most of the following criteria will be considered most valuable:
• Easy for executives to review and understand: Content that is modularly organized and presented in such a fashion that it can be readily lifted (by topic area) and shared with relevant executive stakeholders in an easily consumable format.
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• All submissions are public records and may be published on
An additional appendix of no more than 5 pages long may also be included. This section should only include additional context about you or your organization.
Submission of comments is voluntary. The information will be used to determine focus and priority areas for open-source software security and memory-safety. Please note that all comments received in response to this notice will be posted in their entirety to
Export-Import Bank of the United States.
Notice of information collection; request for comment.
The Export-Import Bank of the United States (EXIM), invites the general public and other Federal Agencies to comment on the proposed information collection, as required by the Paperwork Reduction Act of 1995. As required by Export-Import Bank Act of 1945 (see section 8A(a)(1) of EXIM's charter), EXIM will survey U.S. exporters and commercial lending institutions to understand their experience with EXIM “meeting financial competition from other countries whose exporters compete with United States exporters.” EXIM plans to survey exporters and lenders that have engaged with EXIM on medium- and long-term support over the previous calendar year or responded to at least one of EXIM's last two surveys. The potential respondents will be sent an electronic invitation to participate in the online survey.
Comments should be received on or before October 10, 2023 to be assured of consideration.
Comments may be submitted electronically on
For specific questions related to collection activities, please contact Jessica Ernst,
The proposed survey will ask participants about their potential or completed deals involving EXIM, their opinion of EXIM's policies and procedures, their interaction and perceptions of other export credit agencies, and impacts of overall market conditions on their businesses.
The survey can be reviewed at:
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
Written PRA comments should be submitted on or before October 10, 2023. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele, (202) 418-2991.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
In 2021, the Commission released the Third Report and Order, Order on Reconsideration, and Fifth Further Notice of Proposed Rulemaking WC Docket No. 12-375, 36 FCC Rcd 9519 (2021). The Commission revised its rules by adopting, among other things, lower interim rate caps for interstate calls, new interim rate caps for international calls, and a new rate cap structure that requires ICS providers to differentiate between legally mandated and contractually required site commissions. The revisions also included expanded consumer disclosure requirements, as well as new reporting requirements for providers seeking waivers of the Commission's interstate and international rates.
In 2022, the Commission released the Fourth Report and Order and Sixth Further Notice of Proposed Rulemaking, WC Docket No. 12-375, FCC 22-76 (Sept. 30, 2022). The Commission adopted numerous requirements to improve access to communications services for incarcerated people with communication disabilities and expanded the scope of the Annual Reports to reflect these new requirements. Specifically, the Commission required ICS providers to report, at a minimum, for each facility served, the types of telecommunications relay services (TRS) that can be accessed from the facility and the number of completed calls and complaints for TTY-to-TTY calls, ASL point-to-point video calls, and each type of TRS for which access is provided. The Commission also eliminated the safe harbor, adopted in 2015, that had exempted ICS providers from any TRS-related reporting requirements if they either (1) operated in a facility that allowed the offering of additional forms of TRS beyond those mandated by the Commission or (2) had not received any complaints related to TRS calls. The Commission found that the safe harbor was no longer appropriate given the expanded reporting requirement for additional forms of TRS, and the importance of transparency regarding the state of accessible communications in incarceration settings.
The Commission also specified a number of provider obligations relating to access to and the provision of TRS. For instance, the Commission required, among other things, that an ICS provider must work with correctional authorities, equipment vendors, and TRS providers to ensure that screen-equipped communications devices such as tablets,
On January 5, 2023, the President signed into law the Martha Wright-Reed Just and Reasonable Communications Act of 2022, Public Law 117-338, 136 Stat. 6156 (the Martha Wright-Reed Act or the Act), expanding the Commission's statutory authority over communications services between incarcerated people and the non-incarcerated to include “any audio or video communications service used by inmates . . . regardless of the technology used.” The new Act also amends section 2(b) of the Communications Act of 1934, as amended (the Communications Act) to make clear that the Commission's authority extends to intrastate as well as interstate and international communications services used by incarcerated people.
The Act directs the Commission to “promulgate any regulations necessary to implement” the statutory provisions, including its mandate that the Commission establish a “compensation plan” ensuring that all rates and charges for IPCS “are just and reasonable,” not earlier than 18 months and not later than 24 months after its January 5, 2023 enactment. The Act also requires the Commission to consider, as part of its implementation, the costs of “necessary” safety and security measures, as well as “differences in costs” based on facility size, or “other characteristics.” It also allows the Commission to “use industry-wide average costs of telephone service and advanced communications services and the average costs of service a communications service provider” in determining just and reasonable rates.
On March 17, 2023, pursuant to the directive that the Commission implement the new Act and establish just and reasonable rates for IPCS services, the Commission released
In the
On August 3, 2023, the Bureaus issued a Public Notice seeking comment on proposed revisions to the instructions, template, and certification form for the Annual Reports,
Notice of this document will be published in the
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Request for comment.
The National Institute for Occupational Safety and Health (NIOSH) in the Centers for Disease Control and Prevention (CDC), an Operating Division of the Department of Health and Human Services (HHS), requests public comment and technical review on the draft Immediately Dangerous to Life or Health (IDLH) Value Profile document for the chemical hydrogen chloride (CAS# 7647-01-0).
Electronic or written comments must be received by October 10, 2023.
You may submit comments, identified by docket number CDC-2023-0057 and docket number NIOSH-156-F, by either of the following methods:
•
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R. Todd Niemeier, Ph.D., National Institute for Occupational Safety and Health, MS-C15, 1090 Tusculum Avenue, Cincinnati, OH 45226. Telephone: (513) 533-8166.
NIOSH is requesting public comment and technical review on a draft IDLH Value Profile document for the chemical hydrogen chloride. To facilitate the review of this document, NIOSH requests comment on the following specific questions for the draft Profile document:
1. Does this document clearly outline the health hazards associated with acute (or short-term) exposures to the chemical? If not, what specific information is missing from the document?
2. Are the rationale and logic behind the derivation of an IDLH value for a specific chemical clearly explained? If not, what specific information is needed to clarify the basis of the IDLH value?
3. Are the conclusions supported by the data?
4. Are the tables clear and appropriate?
5. Is the document organized appropriately? If not, what improvements are needed?
6. Are you aware of any scientific data reported in government publications, databases, peer-reviewed journals, or other sources that should be included within this document?
The draft IDLH Value Profile was developed to provide the scientific rationale behind derivation of IDLH values for the following chemical:
The IDLH Value Profile provides a detailed summary of the health hazards of acute exposures to high airborne concentrations of the chemical and the rationale for the IDLH value.
IDLH values are based on health effects considerations determined through a critical assessment of the toxicology and human health effects data. This approach ensures that the IDLH values reflect an airborne concentration of a substance that represents a high-risk situation that may endanger workers' lives or health.
The primary steps applied in the establishment of an IDLH value include the following:
1. Critical review of human and animal toxicity data to identify potentially relevant studies and characterize the various lines of evidence that can support the derivation of the IDLH value;
2. Determination of a chemical's mode of action or description of how a chemical exerts its toxic effects;
3. Application of duration adjustments (time scaling) to determine 30-minute-equivalent exposure concentrations and the conduct of other dosimetry adjustments, as needed;
4. Experimental or other data to establish a point of departure (POD) such as lethal concentrations (
5. Selection and application of an uncertainty factor (UF) for POD or critical adverse effect concentration, identified from the available studies to account for issues associated with interspecies and intraspecies differences, severity of the observed effects, data quality, or data insufficiencies; and
6. Development of the final recommendation for the IDLH value from the various alternative lines of evidence, with use of a weight-of-evidence approach to all the data.
NIOSH [2013]. Current intelligence bulletin 66: derivation of immediately dangerous to life or health (IDLH) values. Cincinnati, OH: US Department of Health and Human Services, Centers for Disease Control and Prevention, National Institute for Occupational Safety and Health, DHHS (NIOSH) Publication 2014-100.
Food and Drug Administration, HHS.
Notice; request for comments.
The Food and Drug Administration (FDA or Agency) is seeking stakeholder comments on the development of a technology and software assessment that examines the feasibility of dispensers with 25 or fewer full-time employees conducting interoperable, electronic tracing of products at the package level. FDA would like to obtain information regarding issues to be addressed in the assessment related to the accessibility of the necessary software and hardware to such dispensers; whether the necessary software and hardware is prohibitively expensive to obtain, install, and maintain for such dispensers; and if the necessary hardware and software can be integrated into business practices.
Either electronic or written comments on the notice must be submitted by September 11, 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
Daniel Bellingham, Office of Compliance, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993-0002, 301-796-3130,
On November 27, 2013, the Drug Supply Chain Security Act (DSCSA) (Title II of Pub. L. 113-54) was signed into law. The DSCSA outlines steps to achieve interoperable, electronic tracing of products at the package level to identify and trace certain prescription drugs as they are distributed in the United States. Section 202 of the DSCSA added the new sections 581 and 582 to the Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 360eee and 360eee-1). Under section 582(g)(3), FDA is required to enter into a contract with a private, independent consulting firm with expertise to conduct a technology and software assessment that looks at the feasibility of dispensers with 25 or fewer full-time employees conducting interoperable, electronic tracing of products at the package level. Under section 582(g)(1), dispensers and other trading partners will be required to, amongst other requirements, exchange transaction information and transaction statements in a secure, interoperable, electronic manner for each package; implement systems and processes for package-level verification, including the standardized numerical identifier; and implement systems and processes to facilitate the gathering of information necessary to produce the transaction information and statement for each transaction going back to the manufacturer if FDA or a trading partner requests an investigation in the event of a recall or for purposes of investigating a suspect or illegitimate product. These enhanced drug distribution security requirements are also referred to as “enhanced product tracing” or “enhanced verification.”
FDA is issuing this request for public comments prior to beginning the assessment, in accordance with section 582(g)(3)(D). The statement of work requires the selected firm to conduct an assessment that will address the proposed questions articulated below. In addition to commenting on the proposed questions below, stakeholders may provide comments on any aspect of the small dispenser assessment under the DSCSA.
Stakeholders that may be interested in responding to this request for information include manufacturers, repackagers, wholesale distributors, dispensers, State and Federal authorities, solution providers, and standards organizations, among others. FDA is particularly interested in receiving comments from the various sectors of the dispenser community, particularly pharmacies. FDA is seeking comments on the following proposed questions for small dispensers (
• Have you begun preparations for DSCSA requirements regarding the interoperable, electronic tracing of products at the package level required under section 582(g)(1) of the FD&C Act (
• How are you currently exchanging data with your trading partners (
• If not currently exchanging data with trading partners in a fully electronic manner, will you be able to in the near future? If not, what are the barriers? Elaborate on why or how, as appropriate. Please specify issues related to:
• accessibility of necessary software and hardware;
• cost to obtain, install, and maintain necessary software and hardware, particularly if it is prohibitively expensive;
• integration of necessary software and hardware into business practices, such as with wholesale distributors;
• other relevant information related to feasibility of dispensers with 25 or fewer full-time employees to conduct interoperable, electronic tracing of product at the package level.
• What type of software systems and hardware do you currently utilize to facilitate the electronic exchange of DSCSA-related data for transactions of products?
• What new or modified software systems and hardware do you anticipate putting in place to comply with the interoperable, electronic tracing requirements?
• How likely are you to change and upgrade your existing software systems that are already in use so that you can comply with the interoperable, electronic tracing requirements?
• Have you or do you plan to connect your system(s) with your trading partner(s) (
• Have you considered data integrity and security concerns when establishing agreements with third-party entities (
• Have you ever received transaction information from a trading partner, such as your wholesale distributor, that does not match the product that you received? If so, how long did it take to resolve the discrepancy on average? What if any unique challenges arose from these situations? How often does this happen?
• If you currently routinely scan a 2D data matrix barcode, how often do you receive a 2D data matrix barcode of the product identifier that cannot be scanned or read? Why are you unable to scan or read the 2D data matrix barcode (
• If you currently routinely scan the 2D data matrix barcode, how often you encounter a 2D data matrix barcode with missing or inaccurate data? What are the reasons for this and what is your process for handling these situations, including when manual steps are taken by your staff when an automated process was inadequate or failed?
• What new demands do you expect the DSCSA requirements in section 582(g)(1) of the FD&C Act to have on your current staff resources?
• How long do you expect it will take to train staff on the new requirements, how to use any new software or hardware, and any process changes? What additional resources do you anticipate needing to comply with the interoperable, electronic tracing requirements?
• Are there additional challenges not already identified when operationalizing new systems and processes for interoperable, electronic tracing of products at the package level required under section 582(g)(1) of the FD&C Act (
Stakeholders may provide other relevant information that may inform the development of the small dispenser assessment under the DSCSA.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Submit written comments (including recommendations) on the collection of information by September 11, 2023.
To ensure that comments on the information collection are received, OMB recommends that written comments be submitted to
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,
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 FDA's Voluntary Qualified Importer Program (VQIP), a voluntary fee-based program that provides expedited review and import entry of human and animal foods into the United States. Program participants may import products to the United States with greater speed and predictability, avoiding unexpected
Respondents to the information collection are persons that bring food, or cause food to be brought, from a foreign country into the customs territory of the United States (section 806 of the FD&C Act (21 U.S.C. 384b)) as a VQIP importer. A VQIP importer can be located outside the United States. Persons who may be a VQIP importer include the manufacturer, owner, consignee, and importer of record of a food, provided that the importer can meet all the criteria for participation.
To assist respondents with the information collection, we developed the guidance document entitled “FDA's Voluntary Qualified Importer Program” (issued November 2016, updated July 2023 to change the Paperwork Reduction Act burden statement address), available at
In the
We estimate the burden of this collection of information as follows:
Our estimated burden for the information collection reflects an overall adjustment decrease of 1,844 hours and a corresponding decrease of 18 responses. Since our last request for OMB approval of the information collection, we have adjusted our estimate of the number of respondents based on actual participation in the program. We assume the average burden required for the respective reporting and recordkeeping activities for both initial and continued participation in the program remain constant.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is requesting that any small business tobacco manufacturing industry organizations interested in participating in the selection of a nonvoting industry representative to serve on the Tobacco Products Scientific Advisory Committee for the Center for Tobacco Products notify FDA in writing. FDA is also requesting nominations for nonvoting industry representatives to be included in a pool of individuals to represent the interests of the small business tobacco manufacturing industry on the Tobacco Products Scientific Advisory Committee. A nominee may either be
Any small business tobacco manufacturing industry organization interested in participating in the selection of appropriate nonvoting members to represent industry interests must send a letter stating that interest to the FDA by September 11, 2023, (see sections I and II of this document for further details). Concurrently, nomination materials for prospective candidates should be sent to FDA by September 11, 2023.
All statements of interest from small business tobacco manufacturing industry organizations interested in participating in the selection process of nonvoting industry representative nominations should be sent to CAPT Serina Hunter-Thomas (see
Serina Hunter-Thomas, Office of Science, Center for Tobacco Products, Food and Drug Administration, Center for Tobacco Products Document Control Center, Bldg. 71, Rm. G335, 10903 New Hampshire Ave., Silver Spring, MD 20993-0002, 1-877-287-1373 (choose Option 5), or by email:
The Agency intends to add nonvoting industry representative(s) to the following advisory committee:
The Tobacco Products Scientific Advisory Committee (the Committee) advises the Commissioner of FDA (the Commissioner) or designee in discharging responsibilities related to the regulation of tobacco products. The Committee reviews and evaluates safety, dependence, and health issues relating to tobacco products and provides appropriate advice, information, and recommendations to the Commissioner.
The Committee includes three nonvoting members who represent industry interests. These members include one representative representing the interests of the tobacco manufacturing industry, one representative representing the interests of tobacco growers, and one representative representing the interests of the small business tobacco manufacturing industry, which may be filled on a rotating, sequential basis by representatives of different small business tobacco manufacturers based on areas of expertise relevant to the topics being considered by the Advisory Committee.
With this notice, nominations are sought for the following positions: A pool of individuals, with varying areas of expertise, to represent the interests of the small business tobacco manufacturing industry on a rotating, sequential basis.
Any industry organization interested in participating in the selection of an appropriate nonvoting member to represent industry interests should send a letter stating that interest to the FDA contact (see
Individuals may self-nominate and/or an organization may nominate one or more individuals to serve as a nonvoting industry representative. Contact information, a current curriculum vitae, and the name of the committee of interest should be sent to the FDA Advisory Committee Membership Nomination Portal (see
FDA seeks to include the views of women, and men, members of all racial and ethnic groups and individuals with and without disabilities on its advisory committees and, therefore encourages nominations of appropriately qualified candidates from these groups.
This notice is issued under the Federal Advisory Committee Act (5 U.S.C. app. 2) and 21 CFR part 14, relating to advisory committees.
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 11, 2023.
To ensure that comments on the information collection are received, OMB recommends that written comments be submitted to
Rachel Showalter, Office of Operations, Food and Drug Administration, Three
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 request supports the implementation of statutory and regulatory requirements and associated Agency forms. Sections 201, 505, and 701 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321, 355, and 371) establish provisions under which FDA issues regulations governing the use of radioactive drugs for basic scientific research. Specifically, § 361.1 (21 CFR 361.1) sets forth specific regulations about establishing and composing radioactive drug research committees (RDRCs) and their role in approving and monitoring basic research studies using radiopharmaceuticals, including reporting, recordkeeping, and labeling requirements. No basic research study involving any administration of a radioactive drug to research subjects is permitted without the authorization of an FDA-approved RDRC (§ 361.1(d)(7)). The type of research that may be undertaken with a radiopharmaceutical drug must be intended to obtain basic information and not to carry out a clinical trial for safety or efficacy. The types of basic research permitted are specified in the regulations and include studies of metabolism, human physiology, pathophysiology, or biochemistry.
To assist respondents with the applicable reporting requirements, we developed Form FDA 2914 entitled, “Report on Research Use of Radioactive Drugs: Membership Summary,” available at
We also developed the guidance document entitled, “Radioactive Drug Research Committee: Human Research Without An Investigational New Drug Application” (August 2010), available at
Types of research studies not permitted under the regulations are also specified and include those intended for immediate therapeutic, diagnostic, or similar purposes or to determine the safety or effectiveness of the drug in humans for such purposes (
The primary purpose of this collection of information is to determine whether the research studies are being conducted in accordance with required regulations and that human subject safety is assured. If these studies were not reviewed, human subjects could be subjected to inappropriate radiation or pharmacologic risks. Respondents to this information collection are the chairperson or chairpersons of each individual RDRC, investigators, and participants in the studies.
In the
We estimate the burden of this collection of information as follows:
The burden attributed to recordkeeping activities is assumed to be distributed among the individual elements and averaged among respondents. In the burden estimate, we assume an average burden per record of 10 hours for the RDRC respondents to maintain meeting minutes and 0.75 hours (45 minutes) for a subset of the respondents (37 RDRCs) to obtain consent of human research subjects.
Section 361.1(f) sets forth labeling requirements for radioactive drugs. These requirements are not in the burden estimate because they are information supplied by the Federal Government to the recipient for the purposes of disclosure to the public (5 CFR 1320.3(c)(2)).
Our estimated burden for the information collection reflects an overall decrease of 703 hours and a corresponding decrease of 158 responses. We attribute this adjustment to a decrease in the average burden per response, from 3.5 hours to 3 hours per response, associated with the public reporting burden for Form FDA 2915. The decrease is based on our program experience and matches the burden hours reflected on the form. In addition, this adjustment is also attributable to the Agency receiving fewer submissions over the last few years.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Submit written comments (including recommendations) on the collection of information by September 11, 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, 10 a.m.-12 p.m., 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 statutory and regulatory requirements that govern food labeling, and information collection recommendations discussed in associated Agency guidance. Sections 4, 5, and 6 of the Fair Packaging and Labeling Act (FPLA) (15 U.S.C. 1453, 1454, and 1455) and sections 201, 301, 402, 403, 409, 411, 701, and 721 of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 321, 331, 342, 343, 348, 350, 371, and 379e), establish provisions under which a food product shall be deemed to be misbranded if, among other things, its label or labeling fails to bear certain required information concerning the food product, is false or misleading in any particular, or bears certain types of unauthorized claims. Implementing regulations are codified in parts 101, 102, 104, and 105 (21 CFR parts 101, 102, 104, and 105). While regulations in part 101 set forth general food labeling provisions, requirements pertaining to the common or usual name for nonstandardized foods; guidelines for nutritional quality to prescribe the minimum level or range of nutrient composition appropriate for a given class of food; and requirements for foods for special dietary use are found in parts 102, 104, and 105, respectively. The requirements are intended to ensure the safety of food products produced or sold in the United States and enable consumers to be knowledgeable about the foods they purchase and include corresponding information disclosure requirements, along with the reporting and recordkeeping provisions, subject to enforcement by FDA.
We provide information resources regarding food labeling under the FD&C Act and its amendments on our website at
The information collection includes Form FDA 3570 entitled, “Small Business Nutrition Labeling Exemption Notice,” for use as applicable and available for download from our website at
• “
• “
• “Substantiation for Dietary Supplement Claims Made Under Section 403(r)(6) of the Federal Food, Drug, and Cosmetic Act” (January 2009). The guidance document is available from our website at
For operational efficiency, we are revising the information collection to account for burden that may result from activities associated with the labeling of certain beers, currently approved in OMB Control No. 0910-0728. The Tobacco Tax and Trade Bureau is responsible for the dissemination and enforcement of regulations with respect to the labeling of distilled spirits, certain wines, and malt beverages issued in the Federal Alcohol Administration Act. However, and as discussed in the guidance document “Labeling of Certain Beers Subject to the Labeling Jurisdiction of the Food and Drug Administration” (December 2014), certain bottled or otherwise packaged beers are subject to section 403 of the FD&C Act. The guidance document is available for download from our website at
We are also revising the information collection to include new requirements applicable to the gluten-free labeling of fermented or hydrolyzed foods established through rulemaking (RIN 0910-AH00) and approved in OMB Control No. 0910-0817.
In the
We estimate the burden of this collection of information as follows:
Our estimate reflects the cumulative average burden we attribute to the reporting and recordkeeping requirements found in the applicable regulations; individual collection activities may not be evenly distributed among respondents and/or the corresponding requirements.
These estimates reflect our continued experience with the information collection. We have made nominal adjustments to reflect the addition of burden associated with gluten and certain bottled or otherwise packaged beer; petition submissions received since our last evaluation of the information collection; and informal communications with industry regarding food product labeling.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA, the 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
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
This information collection helps support FDA regulations governing certification for color additives used in foods, drugs, cosmetics, and medical devices. All color additives must have FDA-approval for their intended use and be listed in the color additive regulations before they are permitted for use in food, drugs, cosmetics, and many medical devices. Some color additives have an additional requirement: they are permitted only if they are from batches that FDA has certified under section 721(a) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 379e(a)). This means that FDA chemists have analyzed a sample from the batch and have found that it meets the requirements for composition and purity stated in the regulation, called a “listing regulation,” for that color additive. We list color additives that have been shown to be safe for their intended uses in Title 21 of the Code of Federal Regulations (CFR). We require batch certification for all color additives listed in 21 CFR part 74 and for all color additives provisionally listed in 21 CFR part 82. Color additives listed in 21 CFR part 73 are exempted from certification.
The requirements for color additive certification are established in part 80 (21 CFR part 80). Procedures for color additive certification are set forth in part 80, subpart B (§§ 80.21 through 80.39) and communicate required data elements for requests for certification, limitations of certificates, exemptions from certification for color additive mixtures, treatment of batches pending and after certification, and recordkeeping requirements for respondents to whom a certificate is issued. During the batch certification procedure, a manufacturer of color additives must submit a “request for certification” that provides information about the batch, accompanied by a representative sample of a new batch of color additive, to us. FDA personnel perform chemical and other analyses of the representative sample and, providing the sample satisfies all certification requirements, issue a certificate that contains a certification lot number for the batch. The batch can then be used in FDA-regulated products marketed in the United States, in compliance with the uses and restrictions in that color additive's listing regulation. If the sample does not meet the requirements, the batch will be rejected. We require manufacturers to keep complete records showing disposal of all of the color additive covered by the certification.
FDA's web-based color certification information system is available for respondents to request color certification online, track their submissions, and obtain account status information. Prior to submitting a request for certification, the manufacturer must open a color certification account by sending a letter, as an email attachment, signed by responsible company representative, to FDA's Office of Cosmetics and Colors at
We charge a fee for certification based on the batch weight and require manufacturers to keep records of the batch pending and after certification. The user fees support FDA's color certification program. Additional information about color additive certification is available at:
The purpose for collecting this information is to help the Agency assure that only safe color additives will be used in foods, drugs, cosmetics, and medical devices sold in the United States.
We estimate the burden of this collection of information as follows:
We base our estimate on our review of the certification requests received over the past 3 years. Using information from industry personnel, we estimate that an average of 0.22 hour per response is required for reporting (preparing certification requests and accompanying samples) and an average of 0.25 hour per response is required for recordkeeping.
Based on a review of the information collection since our last request for OMB approval, we have slightly decreased our burden estimate based on our experience with this program. As a result, although the number of respondents increased, the number of responses per respondent decreased.
Administration for Strategic Preparedness and Response (ASPR), Department of Health and Human Services (HHS).
Notice.
The National Advisory Committee on Seniors and Disasters (NACSD) and the National Advisory Committee on Individuals with Disabilities and Disasters (NACIDD) will hold a joint public meeting using an online format on Tuesday, September 19, 2023 (1:00 p.m. to 3:00 p.m. ET). Notice of the meeting is required under section 10 (a) (2) of the Federal Advisory Committee Act (FACA). The NACSD and NACIDD provide expert advice and guidance to the U.S. Department of Health and Human Services (HHS) regarding the specific needs of older adults and people with disabilities, respectively, related to disaster preparedness and response. The Administration for Strategic Preparedness and Response (ASPR) manages and convenes the NACSD and the NACIDD on behalf of the Secretary of HHS.
Dr. Maxine Kellman, NACSD and NACIDD Designated Federal Official, (202) 260-0447;
Notice is hereby given of the cancellation of the National Cancer Institute Special Emphasis Panel, National Cancer Institute Special Emphasis Panel; SEP-9: NCI Clinical and Translational Cancer Research, October 26, 2023, 12:00 p.m. to October 26, 2023, 4:00 p.m., National Cancer Institute Shady Grove, 9609 Medical Center Drive, Room 7W104, Rockville, Maryland 20850 which was published in the
This meeting is cancelled and will be rescheduled.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
National Institutes of Health, HHS.
Notice.
The National Institutes of Health (NIH) seeks input on a proposal to revise the NIH Guidelines for Research Involving Recombinant or Synthetic Nucleic Acid Molecules (NIH Guidelines) to include specific considerations and requirements for conducting research involving gene drive modified organisms (GDMO) in contained research settings. NIH is proposing to update the NIH Guidelines to clarify minimum containment requirements, propose considerations for performing risk assessments, and define additional institutional responsibilities regarding Institutional Biosafety Committees (IBCs) and Biosafety Officers (BSOs). The proposed revisions are specific to GDMO research subject to the NIH Guidelines, conducted in contained settings and are consistent with the recommendations of
To ensure consideration, comments must be submitted in writing by October 10, 2023.
Comments may be submitted electronically to
Caroline Young, ScM, Acting Director of the Division of Biosafety, Biosecurity, and Emerging Biotechnology Policy, Office of Science Policy, at (301) 496-9838 or
The NIH currently supports basic gene drive research in contained laboratory settings as the technology holds great promise for advancing public health, particularly through the potential to reduce transmission of vector-borne human diseases such as malaria, dengue, or Zika. Under certain conditions, gene drive technology enables researchers to promote the spread of certain genetic traits that has the potential to mitigate disease by driving traits through a specific species population at a faster rate with fewer reproductive cycles.
Gene drive technology presents opportunities for many life sciences applications with potential benefits to public health, agriculture, and the environment but also raise biosafety, ethical, and social concerns. To help consider issues associated with conducting research involving GDMOs safely and responsibly, the NIH charged an advisory committee to the NIH Director, the Novel and Exceptional Technology and Research Advisory Committee (NExTRAC), to consider whether existing biosafety guidance is adequate for contained laboratory research utilizing GDMOs. The NExTRAC made multiple recommendations for strengthening NIH's existing policies and guidance, which were shared for public input and ultimately accepted by the NIH Director. These proposed changes only address the NExTRAC's recommendations pertaining to contained research. NIH does not currently support research involving potential field release of GDMOs and the NIH Guidelines pertain to contained research; as such, no changes are being proposed in this notice regarding field release research of GDMOs.
NIH is seeking input on its proposal to amend the NIH Guidelines to ensure the continued responsible research involving GDMOs in contained research settings. Specifically, NIH proposes to:
(1) clarify minimum containment requirements for research involving GDMOs;
(2) propose considerations for risk assessment;
(3) define additional institutional responsibilities for Institutional Biosafety Committees (IBCs) and Biosafety Officers (BSOs).
In addition to the amendments proposed related to contained research involving GDMOs, the NIH is seeking input on its proposal to:
1. replace the term “helper viruses” with the broader term “helper systems”; and
2. reclassify WNV and SLEV as risk group 2 agents for consistency with containment guidance provided in the Biosafety in Microbiological and Biomedical Laboratories (BMBL), 6th edition.
A definition for gene drive is proposed to be added to Section I-E, specifically:
Section II-A-3, which provides guidance for conducting a comprehensive risk assessment, has been updated in the past to provide additional guidance regarding issues that should be considered for research involving emerging technologies (
In deciding on the appropriate containment for an experiment, the first step is to assess the risk of the agent itself. Appendix B, Classification of Human Etiologic Agents on the Basis of Hazard, classifies agents into Risk Groups based on an assessment of their ability to cause disease in humans and the available treatments for such disease. Once the Risk Group of the agent is identified, this should be followed by a thorough consideration of how the agent is to be manipulated. Factors to be considered in determining the level of containment include agent factors such as: virulence, pathogenicity, infectious dose, environmental stability, route of spread, communicability, operations, quantity, availability of vaccine or treatment, and gene product effects such as toxicity, physiological activity, and allergenicity. Any strain that is known to be more hazardous than the parent (wild-type) strain should be considered for handling at a higher containment level. Certain attenuated strains or strains that have been demonstrated to have irreversibly lost known virulence factors may qualify for a reduction of the containment level compared to the Risk Group assigned to the parent strain (see Section V-B, Footnotes and References of Sections I-IV).
While the starting point for the risk assessment is based on the identification of the Risk Group of the parent agent, as technology moves forward, it may be possible to develop an organism containing genetic sequences from multiple sources such that the parent agent may not be obvious. In such cases, the risk assessment should include at least two levels of analysis. The first involves a
The Principal Investigator and Institutional Biosafety Committee must also be cognizant that the combination of certain sequences in a new biological context may result in an organism whose risk profile could be higher than that of the contributing organisms or sequences. The synergistic function of these sequences may be one of the key attributes to consider in deciding whether a higher containment level is warranted, at least until further assessments can be carried out. A new biosafety risk may occur with an organism formed through combination of sequences from a number of organisms or due to the synergistic effect of combining transgenes that results in a new phenotype.
A final assessment of risk based on these considerations is then used to set the appropriate containment conditions for the experiment (see Section II-B, Containment). The appropriate containment level may be equivalent to the Risk Group classification of the agent, or it may be raised or lowered as a result of the above considerations. The Institutional Biosafety Committee must approve the risk assessment and the biosafety containment level for recombinant or synthetic nucleic acid experiments described in Sections III-A, Experiments that Require NIH Director Approval and Institutional Biosafety Committee Approval, Before Initiation; III-B, Experiments that Require NIH OSP and Institutional Biosafety Committee Approval Before Initiation; III-C, Experiments Involving Human Gene Transfer that Require Institutional Biosafety Committee Approval Prior to Initiation; III-D, Experiments that Require Institutional Biosafety Committee Approval Before Initiation.
Careful consideration should be given to the types of manipulation planned for some higher Risk Group agents. For example, the RG2 dengue viruses may be cultured under the Biosafety Level (BL) 2 containment (see Section II-B); however, when such agents are used for animal inoculation or transmission studies, a higher containment level is recommended. Similarly, RG3 agents such as Venezuelan equine encephalomyelitis and yellow fever viruses should be handled at a higher containment level for animal inoculation and transmission experiments.
Individuals working with human immunodeficiency virus (HIV), hepatitis B virus (HBV) or other bloodborne pathogens should consult the applicable Occupational Safety and Health Administration (OSHA) (
Exotic plant pathogens and animal pathogens of domestic livestock and poultry are restricted and may require special laboratory design, operation and containment features not addressed in Biosafety in Microbiological and Biomedical Laboratories (see Section V-C, Footnotes and References of Sections I through IV). For information regarding the importation, possession, or use of these agents see Sections V-G and V-H, Footnotes and References of Sections I through IV.
Risk mitigation strategies employed in contained settings are not likely to differ for GDMOs compared to other gene modified organisms in the laboratory. However, given the relative newness of GDMO technology and its use in biomedical research, any risk assessment is likely to have greater uncertainty regarding potential risks. Section II-A-3 is proposed to be amended to provide additional guidance for conducting these assessments by insertion of new paragraphs five and six:
In deciding on the appropriate containment for an experiment, the first step is to assess the risk of the agent itself. Appendix B, Classification of Human Etiologic Agents on the Basis of Hazard, classifies agents into Risk Groups based on an assessment of their ability to cause disease in humans and the available treatments for such disease. Once the Risk Group of the agent is identified, this should be followed by a thorough consideration of how the agent is to be manipulated. Factors to be considered in determining the level of containment include agent factors such as: virulence, pathogenicity, infectious dose, environmental stability, route of spread, communicability, operations, quantity, availability of vaccine or treatment, and gene product effects such as toxicity, physiological activity, and allergenicity. Any strain that is known to be more hazardous than the parent (wild-type) strain should be considered for handling at a higher containment level. Certain attenuated strains or strains that have been demonstrated to have irreversibly lost known virulence factors may qualify for a reduction of the containment level compared to the Risk Group assigned to the parent strain (see Section V-B, Footnotes and References of Sections I-IV).
While the starting point for the risk assessment is based on the identification of the Risk Group of the parent agent, as technology moves forward, it may be possible to develop an organism containing genetic sequences from multiple sources such that the parent agent may not be obvious. In such cases, the risk assessment should include at least two levels of analysis. The first involves a consideration of the Risk Groups of the source(s) of the sequences and the second involves an assessment of the functions that may be encoded by these sequences (
The Principal Investigator and Institutional Biosafety Committee must also be cognizant that the combination of certain sequences in a new biological context may result in an organism whose risk profile could be higher than that of the contributing organisms or sequences. The synergistic function of these sequences may be one of the key
A final assessment of risk based on these considerations is then used to set the appropriate containment conditions for the experiment (see Section II-B, Containment). The appropriate containment level may be equivalent to the Risk Group classification of the agent or it may be raised or lowered as a result of the above considerations. The Institutional Biosafety Committee must approve the risk assessment and the biosafety containment level for recombinant or synthetic nucleic acid experiments described in Sections III-A, Experiments that Require NIH Director Approval and Institutional Biosafety Committee Approval, Before Initiation; III-B, Experiments that Require NIH OSP and Institutional Biosafety Committee Approval Before Initiation; III-C, Experiments Involving Human Gene Transfer that Require Institutional Biosafety Committee Approval Prior to Initiation; III-D, Experiments that Require Institutional Biosafety Committee Approval Before Initiation.
Research involving gene drive modified organisms may require risk assessments that incorporate a broader scope of considerations because of greater uncertainty of the technology and potential uncertainty of the impact of the newly modified organism. Specific attention must be paid to risks of an unintended release from the laboratory and the potential impact on humans, other populations of organisms, and the environment.
Considerations for conducting risk assessments for research involving gene drive modified organisms might include:
1. The specific types of manipulations based on:
a. Function or intended function of the genetic/gene drive construct (
b. Source of the genetic material (
c. The modifications to the construct;
d. Whether it is possible to predict the consequences of a construct, including the recognition of an unintended gene drive (
e. The potential ability of the gene drive to spread or persist in local populations;
2. Options for approaches to risk mitigation for specific types of risks in experiments or when dealing with a high degree of uncertainty about risks;
3. Considerations for implementing more stringent containment measures until biosafety data are accrued to support lowering containment.
Careful consideration should be given to the types of manipulation planned for some higher Risk Group agents. For example, the RG2 dengue viruses may be cultured under the Biosafety Level (BL) 2 containment (see Section II-B); however, when such agents are used for animal inoculation or transmission studies, a higher containment level is recommended. Similarly, RG3 agents such as Venezuelan equine encephalomyelitis and yellow fever viruses should be handled at a higher containment level for animal inoculation and transmission experiments.
Individuals working with human immunodeficiency virus (HIV), hepatitis B virus (HBV) or other bloodborne pathogens should consult the applicable Occupational Safety and Health Administration (OSHA) regulation, 29 CFR 1910.1030, and OSHA publication 3127 (1996 revised). BL2 containment is recommended for activities involving all blood-contaminated clinical specimens, body fluids, and tissues from all humans, or from HIV- or HBV-infected or inoculated laboratory animals. Activities such as the production of research-laboratory scale quantities of HIV or other bloodborne pathogens, manipulating concentrated virus preparations, or conducting procedures that may produce droplets or aerosols, are performed in a BL2 facility using the additional practices and containment equipment recommended for BL3. Activities involving industrial scale volumes or preparations of concentrated HIV are conducted in a BL3 facility, or BL3 Large Scale if appropriate, using BL3 practices and containment equipment.
Exotic plant pathogens and animal pathogens of domestic livestock and poultry are restricted and may require special laboratory design, operation and containment features not addressed in Biosafety in Microbiological and Biomedical Laboratories (see Section V-C, Footnotes and References of Sections I through IV). For information regarding the importation, possession, or use of these agents see Sections V-G and V-H, Footnotes and References of Sections I through IV.
In 2012 when the NIH Guidelines were updated to expand the scope to cover synthetic nucleic acid molecules, Section III-C and Section III-F-1 were amended to exempt research with certain oligonucleotides based on the lower risk posed by their transient nature. These sections also outlined criteria for higher risk nucleic acids that would not be exempt (
Human gene transfer is the deliberate transfer into human research participants of either:
1. Recombinant nucleic acid molecules, or DNA or RNA derived from recombinant nucleic acid molecules, or
2. Synthetic nucleic acid molecules, or DNA or RNA derived from synthetic nucleic acid molecules, that meet any one of the following criteria:
a. Contain more than 100 nucleotides; or
b. Possess biological properties that enable integration into the genome (
c. Have the potential to replicate in a cell; or
d. Can be translated or transcribed.
Human gene transfer is the deliberate transfer into human research participants of either:
1. Recombinant nucleic acid molecules, or DNA or RNA derived from recombinant nucleic acid molecules, or
2. Synthetic nucleic acid molecules, or DNA or RNA derived from synthetic nucleic acid molecules, that meet any one of the following criteria:
a. Contain more than 100 nucleotides; or
b. Possess biological properties that enable introduction of stable genetic modifications into the genome (
c. Have the potential to replicate in a cell; or
d. Can be translated or transcribed.
To provide guidance on physical containment for research involving GDMOs, Section III-D is proposed to be amended in multiple subsections to require that experiments involving GDMOs be conducted at a minimum of BL2 containment to provide the appropriate laboratory practices, containment equipment, and special laboratory design to protect laboratory workers, the public, and local ecosystems. A section specific to experiments involving GDMOs is proposed to be added as Section III-D-8. Sections III-D-4, III-D-5, and III-E-3, which cover experiments with whole animals, plants, and transgenic rodents, are also proposed to be amended to reference Section III-D-8.
Section III-D-4, which is part of Section III-D, Experiments that Require Institutional Biosafety Committee Approval Before Initiation, currently states:
This section covers experiments involving whole animals in which the animal's genome has been altered by stable introduction of recombinant or synthetic nucleic acid molecules, or nucleic acids derived therefrom, into the germ-line (transgenic animals) and experiments involving viable recombinant or synthetic nucleic acid molecule-modified microorganisms tested on whole animals. For the latter, other than viruses which are only vertically transmitted, the experiments may
This section covers experiments involving deliberate transfer of recombinant or synthetic nucleic acid
Section III-D-4-c-(2). The purchase or transfer of BL1 transgenic rodents is exempt from the
Section III-D-4-c-(3). Experiments involving the generation or use of gene drive modified animals require a minimum of BL2 containment and are covered under III-D-8, Experiments Involving Gene Drive Modified Organisms.
Experiments to genetically engineer plants by recombinant or synthetic nucleic acid molecule methods, to use such plants for other experimental purposes (
Experiments to genetically engineer plants by recombinant or synthetic nucleic acid molecule methods, to use such plants for other experimental purposes (
Experiments involving gene drive modified organisms generated by recombinant or synthetic nucleic acid molecules shall be conducted at a minimum of Biosafety Level (BL) 2, BL2-N (Animals) or BL2-P (plant) containment.
Only transgenic rodents that may be contained under BL1 are covered under Section III-E-3. Section III-E-3 is proposed to be amended to reference the new Section III-D-8 to reinforce that research with GDMOs shall be conducted at a minimum of BL2. Section III-E-3, which is part of Section III-E, Experiments that Require Institutional Biosafety Committee Notice Simultaneous with Initiation, states in part:
This section covers experiments involving the generation of rodents in which the animal's genome has been altered by stable introduction of recombinant or synthetic nucleic acid molecules, or nucleic acids derived therefrom, into the germ-line (transgenic rodents). Only experiments that require BL1 containment are covered under this section; experiments that require BL2, BL3, or BL4 containment are covered under Section III-D-4, Experiments Involving Whole Animals.
This section covers experiments involving the generation or use of rodents in which the animal's genome has been altered by stable introduction of recombinant or synthetic nucleic acid molecules, or nucleic acids derived therefrom, into the germ-line (transgenic rodents). Only experiments that require BL1 containment are covered under this section; experiments that require BL2, BL3, or BL4 containment are covered under Section III-D-4, Experiments Involving Whole Animals or Section III-D-8, Experiments Involving Gene Drive Modified Organisms.
In the NExTRAC report, the committee recommended that NIH should require appropriate expertise in the review of gene drive research by IBC members and BSO. Portions of Section IV-B are proposed to be amended regarding institutional responsibilities for the establishment of IBCs and requirements for BSOs.
Section IV-B-1-c. Appoint a Biological Safety Officer (who is also a member of the Institutional Biosafety Committee) if the institution: (i) conducts recombinant or synthetic nucleic acid molecule research at Biosafety Level (BL) 3 or BL4, or (ii) engages in large-scale (greater than 10 liters) research. The Biological Safety Officer carries out the duties specified in Section IV-B-3.
Section IV-B-1-c. Appoint a Biological Safety Officer (who is also a member of the Institutional Biosafety Committee) if the institution: (i) conducts recombinant or synthetic nucleic acid molecule research at Biosafety Level (BL) 3 or BL4, (ii) engages in large-scale (greater than 10 liters) research or (iii) conducts research involving gene drive modified organisms. The Biological Safety Officer carries out the duties specified in Section IV-B-3.
Section IV-B-2-a-(1). The Institutional Biosafety Committee must comprise no fewer than five members so selected that they collectively have experience and expertise in recombinant or synthetic nucleic acid molecule technology and the capability to assess the safety of recombinant or synthetic nucleic acid molecule research and to identify any potential risk to public health or the environment. At least two members shall not be affiliated with the institution (apart from their membership on the Institutional Biosafety Committee) and who represent the interest of the surrounding community with respect to health and protection of the environment (
Section IV-B-2-a-(1). The Institutional Biosafety Committee must comprise no fewer than five members so selected that they collectively have experience and expertise in recombinant or synthetic nucleic acid molecule technology and the capability to assess the safety of recombinant or synthetic nucleic acid molecule research and to identify any potential risk to public health or the environment. At least two members shall not be affiliated with the institution (apart from their membership on the Institutional Biosafety Committee) and who represent the interest of the surrounding community with respect to health and protection of the environment (
Section IV-B-3-a. The institution shall appoint a Biological Safety Officer if it engages in large-scale research or
Section IV-B-3-a is proposed to be amended to clarify the requirement for a BSO to be a member of the IBC. A new Section IV-B-3-c is proposed to be added to require a BSO for research involving GDMOs. The current IV-B-3-c sections will be re-lettered to IV-B-3-d.
Section IV-B-3-a. The institution shall appoint a Biological Safety Officer if it engages in large-scale research or production activities involving viable organisms containing recombinant or synthetic nucleic acid molecules. The Biological Safety Officer shall be a member of the Institutional Biosafety Committee.
Section IV-B-3-c. The institution shall appoint a Biological Safety Officer if it engages in recombinant or synthetic nucleic acid molecule research that involves gene drive modified organisms. The Biological Safety Officer shall be a member of the Institutional Biosafety Committee.
To emphasize that GDMOs may have an impact on ecosystems, a new footnote and reference for Sections I through IV is proposed to be added.
Section V-N Determination of whether a gene drive modified organism has a potential for serious detrimental impact on managed (agricultural, forest, grassland) or natural ecosystems should be made by the Principal Investigator and the Institutional Biosafety Committee, in consultation with scientists knowledgeable of gene drive technology, the environment, and ecosystems in the geographic area of the research.
Since research with GDMOs shall be conducted at a minimum of Biosafety Level 2, research involving host vector system organisms modified by a gene drive will not be exempt. Therefore, the exceptions (Appendices C-III-A and C-IV-A) to Appendices C-III and C-IV,
The following categories are not exempt from the NIH Guidelines: (i) experiments described in Section III-B which require NIH OSP and Institutional Biosafety Committee approval before initiation, (ii) experiments involving DNA from Risk Groups 3, 4, or restricted organisms (see Appendix B, Classification of Human Etiologic Agents on the Basis of Hazard, and Sections V-G and V-L, Footnotes and References of Sections I through IV) or cells known to be infected with these agents may be conducted under containment conditions specified in Section III-D-2 with prior Institutional Biosafety Committee review and approval, (iii) large-scale experiments (
The following categories are not exempt from the NIH Guidelines: (i) experiments described in Section III-B, which require NIH OSP and Institutional Biosafety Committee approval before initiation; (ii) experiments involving DNA from Risk Groups 3, 4, or restricted organisms (see Appendix B, Classification of Human Etiologic Agents on the Basis of Hazard, and Sections V-G and V-L, Footnotes and References of Sections I through IV) or cells known to be infected with these agents may be conducted under containment conditions specified in Section III-D-2 with prior Institutional Biosafety Committee review and approval; (iii) large-scale experiments (
Appendix G-III-A. Biosafety in Microbiological and Biomedical Laboratories, 5th edition, U.S. Department of Health and Human Services, Public Health Service, Centers for Disease Control and Prevention, Atlanta, Georgia, and National Institutes of Health, Bethesda, Maryland.
Appendix G-III-A. Biosafety in Microbiological and Biomedical Laboratories, 6th edition, U.S. Department of Health and Human Services, Public Health Service, Centers for Disease Control and Prevention, Atlanta, Georgia, and National Institutes of Health, Bethesda, Maryland.
Appendix G-III-B. Biosafety in Microbiological and Biomedical Laboratories, 3rd edition, May 1993, U.S. DHHS, Public Health Service, Centers for Disease Control and Prevention, Atlanta, Georgia, and NIH, Bethesda, Maryland.
Appendix G-III-B. Arthropod Containment Guidelines, Version 3.2, 2019, and Addendum 1 Containment Practices for Arthropods Modified with Engineered Transgenes Capable of Gene Drive, 2022, American Committee of Medical Entomology, American Society of Tropical Medicine and Hygiene, Arlington, Virginia. Appendices L and M specify containment conditions and practices for plants and animals, respectively, that preclude the use of containment as specified in Appendix G. Both Appendices L and M will be modified to incorporate the Arthropod Containment Guidelines and cross-reference to Appendix G-III-B.
Appendix L-III-C-1. Effective dissemination of arthropods and other small animals can be prevented by using one or more of the following procedures: (i) use non-flying, flight-impaired, or sterile arthropods; (ii) use non-motile or sterile strains of small animals; (iii) conduct experiments at a time of year that precludes the survival of escaping organisms; (iv) use animals that have an obligate association with a plant that is not present within the dispersal range of the organism; or (v) prevent the escape of organisms present in run-off water by chemical treatment or evaporation of run-off water.
Appendix L-III-C-1. Effective dissemination of arthropods and other small animals can be prevented by using
Appendix M-III-D. Other research with non-laboratory animals, which may not appropriately be conducted under conditions described in Appendix M, may be conducted safely by applying practices routinely used for controlled culture of these biota. In aquatic systems, for example, BL1 equivalent conditions could be met by utilizing growth tanks that provide adequate physical means to avoid the escape of the aquatic species, its gametes, and introduced exogenous genetic material. A mechanism shall be provided to ensure that neither the organisms nor their gametes can escape into the supply or discharge system of the rearing container (
Other types of non-laboratory animals (
Appendix M-III-D. Research with animals, which may not appropriately be conducted under conditions described in Appendix M, may be conducted safely by applying practices routinely used for controlled culture of these biota. In aquatic systems, for example, BL1 equivalent conditions could be met by utilizing growth tanks that provide adequate physical means to avoid the escape of the aquatic species, its gametes, and introduced exogenous genetic material. A mechanism shall be provided to ensure that neither the organisms nor their gametes can escape into the supply or discharge system of the rearing container (
Other types of animals (
The term “helper virus” is used in multiple sections of the NIH Guidelines to refer to the missing functions provided to a defective virus. However, helper systems (
The risk group classification in Appendix B of two viruses, West Nile virus and St. Louis encephalitis virus, are proposed to be changed from RG3 to RG2 to be consistent with the risk assessment that is articulated in the current edition of the BMBL.
Appendix B-III-D. Risk Group 3 (RG3)—Viruses and Prions.
Alphaviruses (Togaviruses)—Group A Arboviruses currently states in part:
—St. Louis encephalitis virus.
—West Nile virus (WNV).
Appendix B-II-D. Risk Group 2 (RG2)—Viruses.
Alphaviruses (Togaviruses)—Group A Arboviruses.
—St. Louis encephalitis virus.
Flaviviruses—Group B Arboviruses.
—West Nile virus (WNV).
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the Fogarty International Center Advisory Board.
This will be a hybrid meeting held in-person and virtually and will be open to the public as indicated below. Individuals who plan to attend in-person or view the virtual meeting 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 can be accessed from the Fogarty International Center website (
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 Persons 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 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 meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Institutes of Health, HHS.
Notice.
The Interagency Coordinating Committee on the Validation of Alternative Methods (ICCVAM) announces availability of the draft document, “Validation, Qualification, and Regulatory Acceptance of New Approach Methodologies.” ICCVAM will accept public comments on the document through September 5, 2023; 5:00 p.m. EDT.
Dr. Nicole Kleinstreuer, Director, National Toxicology Program (NTP) Interagency Center for the Evaluation of Alternative Toxicological Methods (NICEATM), email:
Shortly after its establishment as a standing committee in 1997, ICCVAM published a report, “Validation and Regulatory Acceptance of Toxicological Test Methods,” which outlined criteria for the validation and regulatory acceptance for new and alternative test methods (62 FR 11901). This and subsequent related documents described a validation model that, while being initially useful, has lately demonstrated limitations such as being lengthy and resource-intensive and not being compatible with many modern approaches to toxicity testing. Furthermore, for some contexts of use, methods may not need to undergo every step of the validation process described by these documents to yield valuable data for a federal agency.
In 2021, ICCVAM established its Validation Workgroup to update the 1997 document and align it with the principles articulated in the 2018 ICCVAM publication, “A Strategic Roadmap for Establishing New Approaches to Evaluate the Safety of Chemicals and Medical Products in the United States” (83 FR 7487). The Strategic Roadmap provides a conceptual framework promoting better communication between agencies and test method developers and more flexibility in how confidence is established, to help ensure the adoption of new methods by federal agencies and regulated industries once validated for a specific purpose or context of use.
A draft version of the new document, “Validation, Qualification, and Regulatory Acceptance of New Approach Methodologies,” is now available for public comment.
Stakeholders may submit comments via email to Ms. Amber Daniel at
Responses to this notice are voluntary. No proprietary, classified, confidential, or sensitive information should be included in statements submitted in response to this notice. This request for input is for planning purposes only and is not a solicitation for applications or an obligation on the part of the U.S. Government to provide support for any ideas identified in response to the request. Please note that the U.S. Government will not pay for the preparation of any information submitted or for its use of that information.
The ICCVAM Authorization Act of 2000 (42 U.S.C. 285
NICEATM administers ICCVAM, provides scientific and operational support for ICCVAM-related activities, and conducts and publishes analyses and evaluations of data from new, revised, and alternative testing approaches. NICEATM and ICCVAM work collaboratively to evaluate new and improved testing approaches applicable to the needs of U.S. federal agencies. NICEATM and ICCVAM welcome the public nomination of new, revised, and alternative test methods and strategies for validation studies and technical evaluations. Additional information about NICEATM can be found 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.,
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer at
Comments are invited on: (a) whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
SAMHSA is requesting approval from the Office of Management and Budget (OMB) for their Generic clearance for purposes of conducting qualitative research. SAMHSA conducts qualitative research to gain a better understanding of emerging substance use and mental health policy issues, improve the development and quality of instruments, and to ensure SAMHSA leadership, centers and offices have recent data and information to inform program and policy decision-making. SAMHSA is requesting approval for at least four types of qualitative research: (a) interviews, (b) focus groups, (c) questionnaires, and (d) other qualitative methods.
SAMHSA is the agency within the U.S. Department of Health and Human Services (HHS) that leads public health efforts to advance the behavioral health of the nation and to improve the lives of individuals living with mental and substance use disorders, and their families. It's mission is to lead public health and service delivery efforts that promote mental health, prevent substance misuse, and provide treatments and supports to foster recovery while ensuring equitable access and better outcomes. SAMHSA pursues this mission by providing grant funding opportunities and guidance to states and territories, as well as tribal and local communities; technical assistance to grantees and practitioners; publishing and sharing resources for individuals and family members seeking information on prevention, harm reduction, treatment and recovery; collecting, analyzing, and sharing behavioral health data; collaborating with other Federal agencies to evaluate programs and improve policies; and raising awareness of available resources through educational messaging campaigns and events. Integral to this role, SAMHSA conducts qualitative research and evaluation studies, develops policy analyses, and estimates the cost and benefits of policy alternatives for SAMHSA related programs.
Qualitative research and assessment are the main objectives of the activities included in this clearance. The goal of establishing the SAMHSA Generic Clearance for the Collection of Qualitative Research and Assessment is to help public health officials, policymakers, community practitioners, and the public to understand mental health and substance use trends and how they are evolving; inform the development and implementation of targeted evidence-based interventions; focus resources where they are needed most; and evaluate the success of programs and policies. A key objective is to decrease the burden on stakeholders while expanding and improving data collection, analysis, evaluation, and dissemination. To achieve this objective, SAMHSA is streamlining and modernizing data collection efforts, while also coordinating evaluation across the agency to ensure funding and policies are data driven. Additionally, the agency is utilizing rigorous evaluation and analytical processes that are in alignment with the Foundations for Evidence-Based Policymaking Act of 2018. SAMHSA, using robust methods to collect, analyze, and report valid, reliable, trustworthy, and protected data, is key to improving and impacting behavioral health treatment, prevention, and recovery for communities most in need. By using rigorous methods, and improving the quality and completeness of program data, data can be disaggregated across different population groups to assess disparities within the behavioral health care system. SAMHSA's vision will be accomplished by better leveraging optimal data to inform the agency's policies and programs.
The qualitative research participants will include grant recipients; policy experts; national, state, and local public health representatives; human service, and healthcare providers; and representatives of other health organizations. A variety of instruments and platforms will be used to collect information from respondents. The annual burden hours requested (15,000) are based on the number of collections we expect to conduct over the requested period for this clearance. The burden estimates were calculated based on the amount of IC submissions to the 0930-0393 Fast Track Generic Clearance for the Collection of Qualitative Feedback on the Substance Abuse and Mental Health Services Administration (SAMHSA) Service Delivery that are ineligible for OMB approval under it. This Generic information collection will provide a viable replacement option. Internal assessments of projected IC submission over the next three years estimate the burden hours for this information collection to be
Send comments Carlos Graham, SAMHSA Reports Clearance Officer, 5600 Fishers Lane, Room 15E57-B, Rockville, Maryland 20857,
Substance Abuse and Mental Health Services Administration; Center for Behavioral Health Statistics and Quality; Department of Health and Human Services.
Submission for OMB review; comment request.
Substance Abuse and Mental Health Services Administration (SAMHSA) within the Department of Health and Human Services has submitted the following information collection requirement to OMB for review and clearance under the Paperwork Reduction Act of 1995. This is the second notice for public comment; the first was published in the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Carlos Graham, SAMHSA Reports Clearance Officer, 5600 Fishers Lane, Room 15E57-A, Rockville, Maryland 20857,
SAMHSA 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.
The SAP Portal is to be a single web-based common application designed to collect information from individuals requesting access to confidential data assets from federal statistical agencies and units. When an application for confidential data is approved through the SAP Portal, SAMHSA will collect information to fulfill its data security requirements. This is a required step before providing the individual with access to restricted use microdata for the purpose of evidence building. SAMHSA's data security agreements and other paperwork, along with the corresponding security protocols, allow SAMHSA to maintain careful controls on confidentiality and privacy, as required by law. SAMHSA's collection of data security information will occur outside of the SAP Portal.
The following bullets outline the major components and processes in and around the SAP Portal, leading up to SAMHSA's collection of security requirements.
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The expected number of applications in the SAP Portal that receive a positive determination from SAMHSA in a given year may vary. Overall, per year, SAMHSA estimates it will collect data security information for 15 application submissions that received a positive determination within the SAP Portal. SAMHSA estimates that the total burden for the collection of information for data security requirements over the course of the three-year OMB clearance will be about 30 hours and, as a result, an average annual burden of 10 hours.
Cybersecurity and Infrastructure Security Agency (CISA), Department of Homeland Security (DHS).
60-Day notice and request for comments on a new collection.
CISA will submit the following Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and clearance.
Comments are encouraged and will be accepted until October 10, 2023.
You may submit comments, identified by docket number Docket # CISA-2023-0019, at:
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Consistent with CISA's authorities to “carry out comprehensive assessments of the vulnerabilities of the key resources and critical infrastructure of the United States” at 6 U.S.C. 652(e)(1)(B) and provide federal and non-federal entities with “operational and timely technical assistance” at 6 U.S.C. 659(c)(6) and “recommendation on security and resilience measures” at 6 U.S.C. 659(c)(7), CISA's ReadySetCyber Initiative will collect information in order to provide tailored technical assistance, services and resources to critical infrastructure (CI) organizations and state, local, tribal, and territorial (SLTT) governments based on the characteristics of their respective cybersecurity programs. CISA seeks to collect this information from US CI and SLTT organizations on a voluntary and fully electronic basis so that each organization can be best supported in receiving tailored cybersecurity recommendations and services.
The overarching goal of CISA's ReadySetCyber Initiative is to help CI and SLTT organizations access information and services that are tailored to their specific cybersecurity needs. In addition, CISA expects this initiative to yield several additional benefits, including:
• Further adoption of CISA's Cybersecurity Performance Goals (CPGs) as the default approach for assessing Organizational progress and identify prioritized cybersecurity gaps;
• Collection of information about organizations' cybersecurity posture and progress, enabling more targeted engagement with sectors, regions, and individual organizations;
• More effective allocation of capacity-constrained services to specific stakeholders;
• Provision of a simplified approach to the guiding stakeholders into enrollment for, scalable services and rapidly expand uptake thereof; and
• Furthering the development of relationships between CI and SLTT organizations and CISA's regional cybersecurity personnel.
CISA's CPGs are a set of voluntary cybersecurity practices which aim to reduce the risk of cybersecurity threats to U.S. CI and SLTT organizations. CISA offers services and resources to aid CI and SLTT organizations in adopting the CPGs and seeks to make accessing appropriate services and resources as efficient as possible, especially for organizations whose cybersecurity programs operate at low levels of capability.
For example, an organization that is unsure of its ability to enumerate all of its internet-facing sites and services could leverage CISA's highly scalable automated testing services to scan its entire network range. Organizations with cybersecurity programs with more advanced characteristics who wish to evaluate their network segmentation controls are better positioned to take advantage of CISA's more resource-intensive architecture assessments. All organizations completing the questionnaire will also be connected with a CISA cybersecurity representative in their jurisdiction to provide direct support and engagement.
To measure adoption of the CPGs and assist CI and SLTT organizations in finding the most impactful services and resources for their cybersecurity programs, CISA is seeking to establish a voluntary information collection that uses respondents' answers to tailor a recommended package of services and resources most applicable to their evaluated level of program capability. Without collecting this information, CISA would be unable to tailor an appropriate suite of services, recommendations, and resources to assist the organization in protecting itself against cybersecurity threats, thereby creating burdens of inefficiency for service requesters and CISA alike.
In addition, receipt of this information is critical to CISA's ability to measure the adoption of CISA's CPGs by CI and SLTT organizations. The information to be collected will address various inquiries, such as: whether an organization keeps a regularly updated inventory of all assets with an internet Protocol address; the types of incident reporting and vulnerability disclosures required by an organizations' contracts with its vendors and suppliers; and whether the entity requires a minimum password strength required for all password-protected assets.
The Office of Management and Budget is particularly interested in comments which:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including via the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), Oberlin College has completed an inventory of human remains and has determined that there is a cultural affiliation between the human remains and Indian Tribes or Native Hawaiian organizations in this notice. The human remains were removed from the Hawaiian Islands, HI.
Repatriation of the human remains in this notice may occur on or after September 11, 2023.
Dr. Amy V. Margaris, Oberlin College, King Building, 10 N. Professor Street, Oberlin, OH 44074, telephone (440) 775-5173, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of Oberlin College. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the inventory or related records held by Oberlin College.
Human remains representing, at minimum, one individual were removed from the Hawaiian Islands, HI. Accession #65 in the accession book of the former Oberlin College Museum records that in August of 1875, Mr. E. P. Church of Greenville, Michigan donated to the Museum one “Skull of Hawaiian, Cave Burial Place, Hawaiian Islands.” According to records of the Oberlin College Archives, E. P. Church was an 1863 graduate of Oberlin College who lived on O'ahu from 1865-1875. He served as Professor of Mathematics at Oahu College (now Punahou School) in Honolulu, Hawaii (1865-1871) and as President of Oahu College (1871-1875). The human remains were retained by Oberlin College after the Museum's closure in the 1950s, and they are now in the care of the Oberlin College Department of Anthropology. The human remains consist of a skull belonging to an adult of indeterminate age and sex. No associated funerary remains are present.
The human remains in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: archeological, biological, cultural, geographical, and historical.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, Oberlin College has determined that:
• The human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• There is a relationship of shared group identity that can be reasonably traced between the human remains described in this notice and the Hui Iwi Kuamo'o.
Written requests for repatriation of the human remains in this notice must be sent to the Responsible Official identified in
1. Any one or more of the Indian Tribes or Native Hawaiian organizations identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization.
Repatriation of the human remains in this notice to a requestor may occur on or after September 11, 2023. If competing requests for repatriation are received, Oberlin College must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the human remains are considered a single request and not competing requests. Oberlin College is responsible for sending a copy of this notice to the Native Hawaiian organization identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the Indiana State Museum and Historic Sites Corporation (ISMHS) has completed an inventory of human remains and associated funerary objects and has determined that there is no cultural affiliation between the human remains and associated funerary objects and any Indian Tribe. The human remains and associated funerary objects were removed from Floyd County, IN.
Disposition of the human remains and associated funerary objects in this notice may occur on or after September 11, 2023.
Michele Greenan, Indiana State Museum and Historic Sites Corporation, 650 West Washington Street, Indianapolis, IN 46204, telephone (317) 473-0836, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the ISMHS. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the inventory or related records held by the ISMHS.
Human remains representing, at minimum, 99 individuals were removed from Floyd County, IN. The site, identified as archeological site 12FL0073, is also referred to as the State Road 111 Slide Correction Project (the Indiana Department of Transportation (INDOT) project (DES #1592476) that resulted in the 2021-2022 removal of human remains from the site). Site 12FL0073 is a Middle-Late Archaic period site located along the Ohio River in Southern Indiana. Diagnostic artifacts associated with the site indicate a date range of approximately 4200 BCE through 1000 BCE, with limited evidence that it may extend earlier to 6000 BCE. Two radiocarbon dates taken from the site, 5350+/- 130 BP (3350 BCE) and 4950 +/-40 BP (2950 BCE), further validates a Middle-Late Archaic period association.
Site 12FL0073 was first recorded in 1998, when human remains were found eroding out of the riverbank. In 1998 and 1999, burial remains were removed under Indiana Division of Historic Preservation and Archaeology (DHPA) accidental discovery number AD 980013 (March 1998) and accidental discovery AD 990032 (July 1999). Between 2001 and 2002, an archeological project was carried out through the University of Kentucky (UK) at the site. Researchers from the University of Indianapolis (UINDY) were asked to assist with burial features and human remains found during these projects. Following these projects, the human remains and associated funerary objects were housed at UINDY and UK. In 2015, the Indiana Department of Transportation (INDOT) began assessing site 12FL0073 as they addressed erosion occurring along the bank of the Ohio River. This erosion was undermining State Road 111. During these assessments, the severity of the erosion was understood, and it was clear that other human remains at site 12FL0073 were in immediate danger. In November 2020, INDOT contacted the ISMHS to help facilitate NAGPRA compliance as they (working through outside contractors) removed these burials. INDOT also requested that the ISMHS include the human remains and associated funerary objects from the site that were housed at the UK and UINDY for inclusion in the inventory. The human remains and associated funerary objects housed at UK were transferred to the ISMHS in May 2021. The human remains and associated funerary objects housed at UINDY, which included the human remains removed under the 1998 and 1999 accidental discovery numbers, were transferred to ISMHS in September 2022. The human remains from the INDOT project were transferred to ISMHS in two groups, one in May of 2021 and the second in late January 2023.
The human remains consist of individual burials and single skeletal elements. The 211 associated funerary objects are 21 hafted bifaces, 21 bifaces, four scrapers, four flake tools, 16 cores, two hematite pestles, two granitic axes, one sandstone bannerstone, six cannel coal beads, two crinoid stem column beads, three sandstone pitted stones, one hematite pitted stone, two granitic or quartzite hammerstones, three granitic hammerstones, one core/tested cobble, one hematite chopper, one bone
The human remains and associated funerary objects in this notice were removed from known geographic locations. These locations are the aboriginal lands of one or more Indian Tribes. The following information was used to identify the aboriginal land: a final judgment of the Indian Claims Commission or the United States Court of Claims, a treaty, an Act of Congress, or an Executive Order.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes, the ISMHS has determined that:
• The human remains described in this notice represent the physical remains of 99 individuals of Native American ancestry.
• The 211 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• No relationship of shared group identity can be reasonably traced between the human remains and associated funerary objects and any Indian Tribe.
• The human remains and associated funerary objects described in this notice were removed from the aboriginal land of the Absentee-Shawnee Tribe of Indians of Oklahoma; Delaware Nation, Oklahoma; Delaware Tribe of Indians; Eastern Shawnee Tribe of Oklahoma; Miami Tribe of Oklahoma; Peoria Tribe of Indians of Oklahoma; Shawnee Tribe; and The Osage Nation.
Written requests for disposition of the human remains and associated funerary objects in this notice must be sent to the Responsible Official identified in
1. Any one or more of the Indian Tribes identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization, or who shows that the requestor is an aboriginal land Indian Tribe.
Disposition of the human remains and associated funerary objects described in this notice to a requestor may occur on or after September 11, 2023. If competing requests for disposition are received, the ISMHS must determine the most appropriate requestor prior to disposition. Requests for joint disposition of the human remains and associated funerary objects are considered a single request and not competing requests. The ISMHS is responsible for sending a copy of this notice to the Indian Tribes identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the University of Georgia Laboratory of Archaeology has completed an inventory of human remains and associated funerary objects and has determined that there is a cultural affiliation between the human remains and associated funerary objects and Indian Tribes or Native Hawaiian organizations in this notice. The human remains and associated funerary objects were removed from Dade County, GA.
Repatriation of the human remains and associated funerary objects in this notice may occur on or after September 11, 2023.
Dr. Amanda Roberts Thompson, University of Georgia Laboratory of Archaeology, 1125 E. Whitehall Road, Athens, GA 30605, telephone (706) 542-8373, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the University of Georgia Laboratory of Archaeology. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the inventory or related records held by the University of Georgia Laboratory of Archaeology.
Ancestral remains representing, at minimum, 13 individuals were removed from 9DD25, the Tunacunnhee site, in Dade County, GA. This site is located near Trenton, GA, a few hundred yards east of Lookout Creek and several miles south of the junction of Lookout Creek and the Tennessee River. In 1973, these human remains were excavated during a University of Georgia (UGA) field school led by Joseph R. Caldwell and Richard W. Jefferies. All eight of the mounds at the Tunacunnhee site were tested during the 1973 field season, with a total surface area of 8,000 feet was excavated. Since being removed, the collection has been housed at the University of Georgia Laboratory of Archaeology. The 304 associated funerary objects consist of indigenous ceramics, lithics, copper plates, mica, copper and silver pan pipes, copper earspools, copper pin, copper and silver fragments, woven materials, burnt clay, faunal remains, drilled bear canines, drilled shark teeth, raptor talons, and bone beads.
Ancestral remains representing, at minimum, three individuals were removed from site 9DD57, Dyar Rockshelter, in Dade County, GA, during a survey conducted by Bruce Smith in 1975. At the time the site was surveyed, a collection was made from the surface of the cave as well as from
Ancestral remains representing, at minimum, one individual were removed from site 9DD35, Bone Cave, in Dade County, GA, during a survey conducted by Bruce Smith in 1975. At the time the site was surveyed, a collection was made from the surface of the site. Since being removed, the collection has been housed at the University of Georgia Laboratory of Archaeology. The human remains belong to an individual of indeterminate age and sex. No associated funerary objects are present.
The human remains and associated funerary objects in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: archeological and geographical.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, the University of Georgia Laboratory of Archaeology has determined that:
• The human remains described in this notice represent the physical remains of 17 individuals of Native American ancestry.
• The 304 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• There is a relationship of shared group identity that can be reasonably traced between the human remains and associated funerary objects described in this notice and the Cherokee Nation; Eastern Band of Cherokee Indians; Kialegee Tribal Town; Poarch Band of Creek Indians; Shawnee Tribe; The Muscogee (Creek) Nation; Thlopthlocco Tribal Town; and the United Keetoowah Band of Cherokee Indians in Oklahoma.
Written requests for repatriation of the human remains and associated funerary objects in this notice must be sent to the Responsible Official identified in
1. Any one or more of the Indian Tribes or Native Hawaiian organizations identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization.
Repatriation of the human remains and associated funerary objects in this notice to a requestor may occur on or after September 11, 2023. If competing requests for repatriation are received, the University of Georgia Laboratory of Archaeology must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the human remains and associated funerary objects are considered a single request and not competing requests. The University of Georgia Laboratory of Archaeology is responsible for sending a copy of this notice to the Indian Tribes identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the California Department of Parks and Recreation and California State University, Chico have completed an inventory of human remains and associated funerary objects and have determined that there is a cultural affiliation between the human remains and associated funerary objects and Indian Tribes or Native Hawaiian organizations in this notice. The human remains and associated funerary objects were removed from Butte County, CA.
Repatriation of the human remains and associated funerary objects in this notice may occur on or after September 11, 2023.
Leslie Hartzell, Cultural Resources Division at California State Parks 715 P Street, Suite 13, Sacramento, CA 95814, telephone (415) 831-2700, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the California Department of Parks and Recreation and California State University, Chico. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the inventory or related records held by the California Department of Parks and Recreation and California State University, Chico.
Human remains representing, at minimum, two individuals were removed from Butte County, CA. In the spring of 1976, Bidwell Adobe (CA-BUT-3820/H) was excavated by M. Kowta and other archeologists affiliated with California State University, Chico. This site is part of the Bidwell Mansion State Historic Park and under the legal control of the California Department of Parks and Recreation. The human remains, funerary objects, and other items from this excavation are in the custody of California State University, Chico. The 3,822 associated funerary objects are 285 organics, 81 lots consisting of debitage, 15 modified stone fragments, two lots of projectile points, two shell fragments, 1,281 samples of charcoal, one sample of soil, 2,055 faunal elements, 72 modified faunal elements, 20 pieces of clay, three modified fragments of clay, one lot of basalt flakes, one lot of cobble core-tools, one lot of flakes, one lot of beads, and one lot of pestles.
In 1987, Bidwell Adobe (CA-BUT-3820/H) was excavated by Keith Johnson and other archeologists affiliated with California State University, Chico under agreement with the California Department of Parks and
Human remains representing, at minimum, one individual were removed from Butte County, CA. In 1990, Bidwell Adobe (CA-BUT-3820/H) was excavated by Keith Johnson and other archeologists affiliated with California State University, Chico under agreement with the California Department of Parks and Recreation. This site is part of the Bidwell Mansion State Historic Park and under the legal control of the California Department of Parks and Recreation. The funerary objects and other items from this excavation are in the custody of the California Department of Parks and Recreation. The three associated funerary objects are one lot of basalt flakes, one lot of obsidian flakes, and one lot of projectile points.
The human remains and associated funerary objects in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: anthropological, archeological, historical, and expert opinion.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, the California Department of Parks and Recreation and California State University, Chico have determined that:
• The human remains described in this notice represent the physical remains of three individuals of Native American ancestry.
• The 3,830 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• There is a relationship of shared group identity that can be reasonably traced between the human remains and associated funerary objects described in this notice and the Mechoopda Indian Tribe of Chico Rancheria, California.
Written requests for repatriation of the human remains and associated funerary objects in this notice must be sent to the Responsible Official identified in
1. Any one or more of the Indian Tribes or Native Hawaiian organizations identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization.
Repatriation of the human remains and associated funerary objects in this notice to a requestor may occur on or after September 11, 2023. If competing requests for repatriation are received, the California Department of Parks and Recreation and California State University, Chico must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the human remains and associated funerary objects are considered a single request and not competing requests. The California Department of Parks and Recreation and California State University, Chico.is responsible for sending a copy of this notice to the Indian Tribe identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the California Department of Transportation (Caltrans) with the assistance of the Fowler Museum at University of California, Los Angeles (UCLA) and has completed an inventory of human remains and associated funerary objects and has determined that there is a cultural affiliation between the human remains and associated funerary objects and Indian Tribes or Native Hawaiian organizations in this notice. The human remains and associated funerary objects were removed from Los Angeles County, CA.
Repatriation of the human remains and associated funerary objects in this notice may occur on or after September 11, 2023.
Emily Castano, California Department of Transportation, P.O. Box 942874 MS 27, Sacramento, CA 94271-0001, telephone (916) 956-0098, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of Caltrans. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the inventory or related records held by Caltrans.
In 1997, human remains representing, at minimum, three individuals were removed from site CA-LAN-2233 in Los Angeles County, CA. Caltrans initiated an emergency effort to recover burials located in the path of a construction project to improve State Route 126. Following the recovery, human remains and one associated funerary object were sent to the University of California, Riverside (UCR) radiocarbon dating lab for dating. In August of 2021, UCR sent the human remains and the associated funerary object listed in this notice to the Fowler Museum at UCLA. The one associated funerary object is an elk antler.
The human remains and associated funerary objects in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes,
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, Caltrans has determined that:
• The human remains described in this notice represent the physical remains of three individuals of Native American ancestry.
• The one object described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• There is a relationship of shared group identity that can be reasonably traced between the human remains and associated funerary objects described in this notice and the Santa Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation, California.
Written requests for repatriation of the human remains and associated funerary objects in this notice must be sent to the Responsible Official identified in
1. Any one or more of the Indian Tribes or Native Hawaiian organizations identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization.
Repatriation of the human remains and associated funerary objects in this notice to a requestor may occur on or after September 11, 2023. If competing requests for repatriation are received, Caltrans must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the human remains and associated funerary objects are considered a single request and not competing requests. Caltrans is responsible for sending a copy of this notice to the Indian Tribe identified in this notice.
Bureau of Ocean Energy Management, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Bureau of Ocean Energy Management (BOEM) proposes a new information collection request (ICR).
Comments must be received by the Office of Management and Budget (OMB) no later than September 11, 2023.
Submit your written comments on this ICR to the OMB's desk officer for the Department of the Interior at
Anna Atkinson by email at
In accordance with the Paperwork Reduction Act of 1995, BOEM provides the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps BOEM assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand BOEM's information collection requirements and provide the requested data in the desired format.
An important component of this project is the development of the NARW synthesis report, which will include a summary of: (1) existing sources of information related specifically to understanding presence, distribution, and density of NARWs in and around wind energy areas offshore the U.S. Atlantic coast; (2) current approaches for avoiding or limiting impacts to NARWs during construction and operation of offshore wind energy facilities; (3) a listing of mitigation measures recommended by others but not yet adopted; (4) current monitoring requirements and their implementation; and (5) an accounting of emerging technologies that may allow monitoring at project and regional scales.
In order to develop the synthesis report, BOEM seeks OMB approval for a set of standardized questions for NARW stakeholders regarding their activities to understand impacts from offshore wind energy projects on the whales and to ensure effective mitigation monitoring. The questions are designed to learn of recent and ongoing research and management strategies employed by relevant State and Federal governments, academic
Additionally, BOEM plans to conduct directed interviews of participants who indicate their willingness to provide additional feedback on future research priorities and management needs. This feedback will be compiled in a final report.
A
BOEM is again soliciting comments on the proposed ICR. BOEM is especially interested in public comments addressing the following issues: (1) is the collection necessary to the proper functions of BOEM; (2) what can BOEM do to ensure that this information is processed and used in a timely manner; (3) is the burden estimate accurate; (4) how might BOEM enhance the quality, utility, and clarity of the information to be collected; and (5) how might BOEM minimize the burden of this collection on the respondents, including minimizing the burden through the use of information technology?
Comments submitted in response to this notice are a matter of public record and will be available for public review on
In order for BOEM to consider withholding from disclosure your personally identifiable information, you must identify, in a cover letter, any information contained in your comments that, if released, would constitute a clearly unwarranted invasion of your personal privacy. You must also briefly describe any possible harmful consequence of the disclosure of information, such as embarrassment, injury, or other harm.
BOEM protects proprietary information in accordance with FOIA (5 U.S.C. 552) and DOI's implementing regulations (43 CFR part 2).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Drug Enforcement Administration, Justice.
Notice of application.
Caligor Coghlan Pharma Services has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to Supplementary Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before September 11, 2023. Such persons may also file a written request for a hearing on the application on or before September 11, 2023.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.34(a), this is notice that on July 11, 2023, Caligor Coghlan Pharma Services, 1500 Business Park Drive, Unit B, Bastrop, Texas 78602, applied to be registered as an importer of the following basic class(es) of controlled substance(s):
The company plans to import the listed controlled substances as finished dosage units for use in clinical trials. No other activities for these drug codes are authorized for this registration.
Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under 21 U.S.C. 952(a)(2). Authorization will not extend to the import of Food and Drug Administration-approved or non-approved finished dosage forms for commercial sale.
Drug Enforcement Administration, Justice.
Notice of application.
Continuus Pharmaceuticals has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to Supplementary Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before October 10, 2023. Such persons may also file a written request for a hearing on the application on or before October 10, 2023.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.33(a), this is notice that on July 6, 2023, Continuus Pharmaceuticals, 256 West Cummings Park, Woburn, Massachusetts 01801, applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to bulk manufacture the above listed controlled substance for research and development purposes only. No other activities for these drug codes are authorized for this registration.
Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under 21 U.S.C. 952(a)(2). Authorization will not extend to the import of Food and Drug Administration-approved or non-approved finished dosage forms for commercial sale.
Drug Enforcement Administration, Justice.
Notice of application.
Chattem Chemicals has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before September 11, 2023. Such persons may also file a written request for a hearing on the application on or before September 11, 2023.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.34(a), this is notice that on July 14, 2023, Chattem Chemicals, 3801 Saint Elmo Avenue, Chattanooga, Tennessee 37409-1237, applied to be registered as an importer of the following basic class(es) of controlled substance(s):
The company plans to import the listed controlled substances to manufacture bulk controlled substances for sale to its customers. The company plans to import an intermediate of Tapentadol (9780), to bulk manufacture Tapentadol for distribution to its customers. No other activities for these drug codes are authorized for this registration.
Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under 21 U.S.C. 952(a)(2). Authorization will not extend to the import of Food and Drug
2:00 p.m., Thursday, August 17, 2023.
1255 Union Street NE, Fifth Floor, Washington, DC 20002.
Parts of this meeting will be open to the public. The rest of the meeting will be closed to the public.
Regular Board of Directors meeting.
The General Counsel of the Corporation has certified that in his opinion, one or more of the exemptions set forth in the Government in the Sunshine Act, 5 U.S.C. 552b(c)(2) and (4) permit closure of the following portion(s) of this meeting:
Everything except the Executive Session.
Executive Session.
Lakeyia Thompson, Special Assistant, (202) 524-9940;
Nuclear Regulatory Commission.
Discontinuation of the State of New York's regulatory authority and reassumption of U.S. Nuclear Regulatory Commission's authority.
Notice is hereby given that effective August 9, 2023, the U.S. Nuclear Regulatory Commission (NRC) has assumed regulatory authority to evaluate and approve sealed source and device (SS&D) applications in the State of New York and approved the Governor of the State of New York's request to relinquish this authority.
The NRC has assumed regulatory authority for evaluating and approving SS&D applications on August 9, 2023.
Please refer to Docket ID NRC-2023-0112 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:
•
•
•
Robert Johnson, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-7314, email:
Section 274b. of the Atomic Energy Act (AEA) of 1954, as amended, provides the authority for NRC to enter into agreements with States that allow the States to assume, and the NRC to discontinue, regulatory authority over specified AEA radioactive materials and activities. On October 15, 1962, New York entered a section 274b. Agreement with the Atomic Energy Commission (the predecessor regulatory agency to the NRC) to regulate source material, byproduct material, and special nuclear material in quantities not sufficient to form a critical mass. This Agreement also provides the State regulatory authority to evaluate and approve SS&D applications.
On May 9, 2023, the NRC received a letter from New York Governor Kathy Hochul (ADAMS Accession No. ML23131A254) requesting discontinuation of the State's regulatory authority to evaluate and approve SS&D applications and for reassumption of this authority by the NRC. The Commission approved the request and has notified the State of New York that effective August 9, 2023, the NRC has reassumed authority to evaluate and approve SS&D applications within the State (ADAMS Accession No. ML23138A033). The State of New York will retain authority to regulate the manufacture and use of SS&Ds within the State in accordance with its section 274b. Agreement with the NRC.
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the Market Dominant or the Competitive product list, or the modification of an existing product currently appearing on the Market Dominant or the Competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern Market Dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3030, and 39 CFR part 3040, subpart B. For request(s) that the Postal Service states concern Competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3035, and 39 CFR part 3040, subpart B. Comment deadline(s) for each request appear in section II.
1.
2.
This Notice will be published in the
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on August 1, 2023, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on August 1, 2023, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on August 2, 2023, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on August 1, 2023, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on August 2, 2023, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on August 1, 2023, it filed with the Postal Regulatory Commission a
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe EDGX Exchange, Inc. (the “Exchange” or “EDGX”) proposes to enhance its drill-through protection processes for simple orders and make other clarifying changes. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
1.
The purpose of this rule filing is to amend Rule 21.17, Additional Price Protection Mechanisms and Risk Controls, to enhance the drill-through protection process for simple orders and make other clarifying changes.
Drill-through price protection is currently described in Exchange Rule 21.17(a)(4). Under Rule 21.17(a)(4)(A), if a buy (sell) order enters the EDGX Options Book
Current Rule 21.17(a)(4)(B) (as amended, proposed Rule 21.17(a)(4)(C))
Currently, the above-described iterative drill-through process does not apply to market orders. Specifically, if a buy (sell) market order would execute at the time of order entry, the System executes the order up to the Exchange-determined buffer amount above (below) the NBO (NBB) at the time of order entry and then rejects any remaining amount. For example, suppose a market order to buy two contracts enters the System; assume that the drill-through price buffer for a certain option series is $0.90 and that the following quotes are in the Book: Quote 1 (NBBO): 1 @5.00 × 1 @7.00; Quote 2: 2 @4.00 × 1 @8.00. One contract in the market order will execute against the 7.00 offer quote. The remaining one contract of the market order is cancelled, because the next best offer of 8.00 is 1.00 above the NBO, which is more than the 0.90 buffer amount.
The Exchange proposes for market orders with a Time-in-Force of Day to go through the iterative drill-through process described above.
The Exchange also proposes to amend Rule 21.17(a)(5)(A)(ii) to exclude from the current protections for market orders in no-bid series certain orders that would be otherwise subject to the drill-through protection under the proposed rule changes. Currently, under Rule 21.17(a)(5)(A)(ii), if the System receives a sell market order in a series after it is open for trading with an NBB of zero, and the NBO in the series is greater than $0.50, the System cancels or rejects the market order. The Exchange proposes amending this protection in the event a drill-through process is in progress. Specifically, the Exchange proposes to amend Rule 21.17(a)(5)(A)(ii) to note that in the event the System receives a sell market order in a series after it is open for trading with an NBB of zero and the NBO in the series is greater than $0.50, if the drill-through process is in progress for sell orders and the sell market order would be subject to drill-through protection, then the order would join the on-going drill-through process in the then-current iteration and at the then-current drill-through price, regardless of NBBO. The Exchange believes it is not optimal for these orders to be immediately booked at the minimum tick increment, as under the proposed rule change, such orders would instead, be subject to the drill-through protection mechanism described under Rule 21.17(a)(4), which may allow opportunity for execution at a more beneficial price level than the minimum tick increment.
Further, the Exchange proposes to amend Rule 21.17(a)(1) to specifically exclude orders that would be subject to drill-through protection from the market order NBBO width protections described therein. Currently, under Rule 21.17(a)(1), if a User submits a market order to the System when the NBBO width is greater than x% of the midpoint of the NBBO, subject to a minimum and maximum dollar amount (as determined by the Exchange on a class-by-class basis), the System cancels or rejects the market order. The Exchange proposes amending Rule 21.17(a)(1) to exclude Stop Orders
For example, assume that the drill-through price buffer for a certain option series is $0.90, and that the following quotes are in the Book: Quote 1 (NBBO): 1 @5.00 × 1 @7.00; Quote 2: 2 @4.00 × 1 @8.00. Additionally, the following Stop orders are being held in the System when Quote 2 is updated to 2 @4.00 × 1 @6.50 (the System received these stop orders in the below sequence):
Each of orders 1, 2 and 3 have a stop price less than the NBO, and will therefore be triggered by the 6.50 quote and enter the Book for execution or posting. A drill-through price for all three orders is set at the contra-side NBB of 5.00. Per proposed Rule 21.17(a)(4)(C), the orders will go through the drill-through process as follows:
1. Order 1 will execute against Quote 1 @$5.00.
2. Orders 2 and 3 are posted to sell at $4.10 for the Exchange-determined time period.
3. Drill-through process continues for orders 2 and 3 until they are canceled or executed.
As amended, under Rule 21.17(a)(4)(D), all Stop (Stop-Loss) and Stop-Limit orders elected as a result of the same election trigger (NBBO update or last sale price) will continue to use the same reference price for drill-through (even though they may have different stop prices).
The Exchange proposes to amend Rule 21.17(a)(4)(C)(ii),
The Exchange also proposes to add Rule 21.17(a)(4)(C)(iv)
Assume that the drill-through price buffer for a certain option series is $0.90, and that the following quotes are in the Book: Quote 1 (NBBO): 1 @5.00 × 1 @7.00; Quote 2: 2 @4.00 × 1 @8.00. The System receives the following orders in the below sequence:
During this time, Quote 2 is updated to: 2 @4.00 × 1 @6.50. Orders 1, 2, and 3 are elected, and the drill-through reference price for all three orders is set to contra-side NBB of 5.00.
1. Order 1 executes Quote 1 @$5.00.
2. Orders 2 and 3 are posted to sell @$4.10 (drill-through price) for the Exchange-determined time period.
3. Order 4 is elected due to updated best offer of $4.10, and joins Orders 2 and 3 at the iterative drill-through price of $4.10. The offer is updated to 4 @$4.10.
4. Order 5 (Sell 10 @Market (Day)) and Order 6 (Sell 1 @$4.05 Limit (Day)) enter the Book. Per proposed Rule 21.17(a)(4)(C)(iv), Orders 5 and 6 join the drill-through iteration at the drill-through reference price of $4.10, and the best offer is updated to 15 @$4.10.
5. The drill-through process continues for orders 2, 3, 4, 5, and 6 until the contracts are canceled or executed.
Because the proposed rule change may result in multiple orders going through the drill-through process at the same price and at the same time, the proposed rule change also describes how these orders will be prioritized and allocated when executing against resting interest or incoming interest. Specifically, proposed Rule 21.17(a)(4)(C)(v)
Continuing from the above example, assume the drill-through process iterates to the next drill-through price, which would be $3.20. In doing so, Order 6 posts at its limit price of $4.05, and the rest of the orders are eligible to execute in time sequence against the resting $4.00 bid. Per proposed Rule 21.17(a)(4)(C)(v), the orders will go through the drill-through process as follows:
1. Order 2 (Sell 1 @Market) will execute against Quote 2 @$4.00
2. Order 3 (Sell 1 @$3.95) will execute against Quote 2 @$4.00
3. The Quote 2 is exhausted, and the next best bid is Quote 1 for 5 @$3.00
4. Remaining drill-through is Order 4 (Sell 2 @Market) and Order 5 (Sell 10 @Market). Market is now 5 @$3.00 × 12 @$3.20, and the drill-through process continues until these contracts are executed or cancelled.
If, prior to the next drill-through iteration, Order 7 (buy 5 @$3.25) is entered and executes against Orders 4 and 5 at $3.20, the allocation will depend on the allocation algorithm for the relevant class, under the amended Rule.
1. If pro-rata, Order 7 trades 1 contract against Order 4 and 4 contracts against Order 5.
2. If price-time, Order 7 trades 2 contracts against Order 4 and 3 contracts against Order 5.
3. Remaining size on Order 4 (if applicable) and Order 5 will continue to drill-through as described in previous examples.
The Exchange also proposes to amend Rule 21.17(a)(4)(C)(vi).
Finally, the Exchange proposes to add Rule 21.17(a)(4)(C)(vii) to specify that the drill-through protection mechanism applies during all trading sessions and to provide clarity as to what happens to orders that are undergoing the drill-through process at the end of a trading session. Under the proposed rule change, if an order(s) (or unexecuted portion(s)) is undergoing the drill-through process at the end of a Global Trading Hours (“GTH”)
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of
In particular, the Exchange believes the proposed rule change to enhance drill-through protections for simple orders and to make certain market orders eligible for drill-through protection will remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, protect investors, because it will provide these orders with additional and consistent execution opportunities and protections. The primary purpose of the drill-through price protection is to prevent orders from executing at prices “too far away” from the market when they enter the Book for potential execution. The Exchange believes the proposed rule change is consistent with this purpose, because Users who submit market orders with a Time-in-Force of Day will receive the same level of drill-through price protection against execution at potentially erroneous prices that is currently afforded to supermarketable limit orders while receiving the same additional execution opportunities. Supermarketable limit orders currently go through the drill-through process, and market orders with a Time-in-Force of Day are functionally similar to supermarketable limit orders. Therefore, the Exchange believes it is appropriate to provide both types of orders with the same price protection.
Further, the proposed rule change to provide that any new market and limit orders that would be subject to drill-through protection will join any in-progress drill-through iterations and display at the then-current drill-through price (and the corresponding changes regarding allocation and prioritization) allows new orders to receive the same level of price protection as other orders undergoing the drill-through process. The proposed rule change will allow all orders additional execution opportunities while continuing to protect them against execution at potentially erroneous prices. Similarly, the Exchange believes the proposed change to consider changes to the NBO (NBB) during drill-through and to update the drill-through price to such NBO (NBB) should it be lower (higher) than the drill-through price will further provide opportunity for execution at reasonable prices by capturing any market moves that may result in more aggressive prices.
The Exchange believes the proposal will enhance risk protections, the individual firm benefits of which flow downstream to counterparties both at the Exchange and at other options exchanges, which increases systemic protections as well. The Exchange believes enhancing risk protections will allow Users to enter orders and quotes with further reduced fear of inadvertent exposure to excessive risk, which will benefit investors through increased exposure to liquidity for the execution of their orders.
Additionally, the Exchange believes changes to specifically exclude from market order NBBO width and market order in no-bid series protections certain orders that would be subject to drill-through protection will remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, protect investors. Specifically, the Exchange believes the changes to exclude certain orders that would be subject to drill-through protection from market order NBBO width protections may reduce inadvertent rejection of such orders which may be purposely priced far away from the NBBO at the time of entry and may otherwise miss an opportunity for execution if immediately cancelled. The Exchange also believes the changes to exclude certain orders that would be subject to drill-through protection from market order in no-bid series protections may allow opportunity for execution at a more beneficial price level than if they were immediately booked at the minimum tick increment. This proposed rule change may increase execution opportunities for Users that submit such Stop (Stop-Loss) and Market-on-Close orders (in the case of market order NBBO width protections) and sell market orders with an NBB of zero when the NBO in the series is greater than $0.50 (in the case of market orders in no-bid series protections).
The Exchange believes the proposed change to Rule 21.17(a)(4)(D) will protect investors because it clarifies that if multiple Stop (Stop-Loss) and Stop-Limit orders are triggered by the same trade price or NBBO (even if the orders have different stop prices), and would execute or post to the Book, the System uses the contra-side NBBO that existed at the time the first order in sequence was entered into the Book as the drill-through price for all orders. The Exchange believes that the proposed rule change will bring greater transparency and clarity to the rulebook, thus benefitting investors.
Finally, the Exchange believes the proposed changes to clarify when an order ceases to remain a part of the drill-through process and to specify what happens to orders undergoing drill-through at the end of a trading session will protect investors by adding transparency to the rules regarding the drill-through functionality and provide greater certainty as to the application of the drill-through process.
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 because the enhanced drill-through protection will apply to all marketable orders in the same manner. Additionally, it will provide the same price protection and execution opportunities to relevant market orders that are currently provided to supermarketable limit orders, which function in a similar 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. The proposed enhancement to the drill-through protection is consistent with the current protection and provides relevant market orders with improved protection against execution at potentially erroneous prices through drill-through price protection in accordance with User instructions. Additionally, the proposed rule change relates specifically to a price protection offered on the Exchange and how the System handles orders as part of this price protection mechanism.
The Exchange believes the proposed rule change would ultimately provide all market participants with additional execution opportunities when appropriate while providing protection from erroneous execution. The Exchange believes the proposal will enhance risk protections, the individual firm benefits of which flow downstream to counterparties both at the Exchange and at other options exchanges, which increases systemic protections as well. The Exchange believes enhancing risk protections will allow Users to enter orders and quotes with further reduced fear of inadvertent exposure to excessive risk, which will benefit investors through increased exposure to liquidity for the execution of their orders. Without adequate risk management tools, Members could reduce the amount of order flow and liquidity they provide. Such actions may undermine the quality of the markets available to customers and other market participants. Accordingly, the proposed rule change is designed to encourage Members to submit additional order flow and liquidity to the Exchange. Accordingly, the proposed rule change is designed to encourage Members to submit additional order flow and liquidity to the Exchange. The proposed flexibility may similarly provide additional execution opportunities, which further benefits liquidity in potentially volatile markets. In addition, providing Members with more tools for managing risk will facilitate transactions in securities because, as noted above, Members will have more confidence protections are in place that reduce the risks from potential system errors and market events.
Finally, the proposed clarifying changes are not intended to have any impact on competition, but rather codify current functionality to add transparency to the Rules.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
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
SR-CboeEDGX-2023-048 on the subject line.
• 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 June 5, 2023, Miami International Securities Exchange LLC 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 finds it 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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend ISE's Pricing Schedule at Options 7, Section 9 to reduce the ISE Options Regulatory Fee or “ORF”.
While the changes proposed herein are effective upon filing, the Exchange has designated the amendments become operative on August 1, 2023.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
ISE proposes to lower its ORF from $0.0014 to $0.0013 per contract side on August 1, 2023. Previously, ISE lowered or waived its ORF in 2017, 2021 and 2022.
Volumes in the options industry went over 900,000,000 in 2023. ISE has taken measures this year as well as in prior years to lower and waive its ORF to ensure that revenue collected from the ORF, in combination with other regulatory fees and fines, does not exceed the Exchange's total regulatory costs. Despite those prior measures, ISE will need to reduce its ORF again to account for trading volumes in the first half of 2023 that were higher than the Exchange forecast for ORF assessment purposes, which resulted in the collection of more ORF revenues than anticipated in the first half of 2023. At this time, ISE believes that the options volume it experienced in the first half of 2023 is likely to persist. The anticipated options volume would continue to impact ISE's ORF collection which, in turn, has caused ISE to propose reducing the ORF to ensure that revenue collected from the ORF, in combination with other regulatory fees and fines, would not exceed the Exchange's total regulatory costs.
ISE will continue to assess its ORF for each customer option transaction that is either: (1) executed by a Member on ISE; or (2) cleared by an ISE Member at The Options Clearing Corporation (“OCC”) in the customer range,
In the case where a Member both executes a transaction and clears the transaction, the ORF will be assessed to and collected from that Member. In the case where a Member executes a transaction and a different Member clears the transaction, the ORF will be assessed to and collected from the Member who clears the transaction and not the Member who executes the transaction. In the case where a non-Member executes a transaction at an away market and a Member clears the transaction, the ORF will be assessed to and collected from the Member who clears the transaction. In the case where a Member executes a transaction on ISE and a non-Member clears the transaction, the ORF will be assessed to the Member that executed the transaction on ISE and collected from the non-Member who cleared the transaction. In the case where a Member executes a transaction at an away market and a non-Member clears the transaction, the ORF will not be assessed to the Member who executed the transaction or collected from the non-Member who cleared the transaction because the Exchange does not have access to the data to make absolutely certain that ORF should apply. Further, the data does not allow the Exchange to identify the Member executing the trade at an away market.
The Exchange monitors the amount of revenue collected from the ORF to ensure that it, in combination with other regulatory fees and fines, does not exceed regulatory costs. In determining whether an expense is considered a regulatory cost, the Exchange reviews all costs and makes determinations if there is a nexus between the expense and a regulatory function. The Exchange notes that fines collected by the Exchange in connection with a disciplinary matter offset ORF.
Revenue generated from ORF, when combined with all of the Exchange's other regulatory fees and fines, is designed to recover a material portion of the regulatory costs to the Exchange of the supervision and regulation of member customer options business including performing routine surveillances, investigations, examinations, financial monitoring, and policy, rulemaking, interpretive, and enforcement activities. Regulatory costs include direct regulatory expenses and certain indirect expenses in support of the regulatory function. The direct expenses include in-house and third-party service provider costs to support the day-to-day regulatory work such as surveillances, investigations and examinations. The indirect expenses include support from such areas as Office of the General Counsel, technology, and internal audit. Indirect expenses were approximately 39% of the total regulatory costs for 2023. Thus, direct expenses were approximately 61% of total regulatory costs for 2023.
The ORF is designed to recover a material portion of the costs to the Exchange of the supervision and regulation of its Members, including performing routine surveillances, investigations, examinations, financial monitoring, and policy, rulemaking, interpretive, and enforcement activities.
Based on the Exchange's most recent review, the Exchange is proposing to reduce the amount of ORF that will be collected by the Exchange from $0.0014 per contract side to $0.0013 per contract side. The Exchange issued an Options Trader Alert on June 30, 2023 indicating the proposed rate change for August 1, 2023.
The proposed reduction is based on current levels of options volume. The below table displays monthly total volume for 2023.
Options
The Exchange will continue to monitor the amount of revenue collected from the ORF to ensure that it, in combination with its other regulatory fees and fines, does not exceed regulatory costs. If the Exchange determines regulatory revenues may exceed or are projected to exceed regulatory costs, the Exchange will adjust the ORF by submitting a fee change filing to the Commission and
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (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 the proposed fee change is reasonable because customer transactions will be subject to a lower ORF fee as of August 1, 2023 and the amount of the lower fee will fund a reasonable portion of the Exchange's regulatory costs. Moreover, the proposed reduction is necessary for the Exchange to avoid collecting revenue, in combination with other regulatory fees and fines, that would be in excess of its anticipated regulatory costs.
The Exchange designed the ORF to generate revenues that would be less than the amount of the Exchange's regulatory costs to ensure that it, in combination with its other regulatory fees and fines, does not exceed regulatory costs, which is consistent with the view of the Commission that regulatory fees be used for regulatory purposes and not to support the Exchange's business operations. As discussed above, however, after review of its regulatory costs and regulatory revenues, which includes revenues from ORF and other regulatory fees and fines, the Exchange determined that absent a reduction in ORF, it may collect revenue which would exceed its regulatory costs. Indeed, the Exchange notes that when taking into account the potential that recent options volume persists, it estimates the ORF may generate revenues that would cover more than the approximated Exchange's projected regulatory costs. As such, the Exchange believes it's reasonable and appropriate to reduce the ORF amount from $0.0014 to $0.0013 per contract side.
The Exchange also believes the proposed fee change is equitable and not unfairly discriminatory in that it is charged to all Members on all their transactions that clear in the customer range at OCC.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. This proposal does not create an unnecessary or inappropriate intra-market burden on competition because the ORF applies to all customer activity, thereby raising regulatory revenue to offset regulatory expenses. It also supplements the regulatory revenue derived from non-customer activity. The Exchange notes, however, the proposed change is not designed to address any competitive issues. Indeed, this proposal does not create an unnecessary or inappropriate inter-market burden on competition because it is a regulatory fee that supports regulation in furtherance of the purposes of the Act. The Exchange is obligated to ensure that the amount of regulatory revenue collected from the ORF, in combination with its other regulatory fees and fines, does not exceed regulatory costs.
No written comments were either solicited or received.
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
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 December 2, 2022, the National Securities Clearing Corporation (“NSCC”) filed with the Securities and Exchange Commission (“Commission”) advance notice SR-NSCC-2022-802 (“Advance Notice”) pursuant to section 806(e)(1) of Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act, entitled Payment, Clearing and Settlement Supervision Act of 2010 (“Clearing Supervision Act”)
NSCC provides clearing, settlement, risk management, central counterparty services, and a guarantee of completion for virtually all broker-to-broker trades involving equity securities, corporate and municipal debt securities, and unit investment trust transactions in the U.S. markets. A key tool that NSCC uses to manage its credit exposure to its members is collecting an appropriate amount of margin (
A member's margin is designed to mitigate potential losses to NSCC associated with the liquidation of the member's portfolio in the event that
NSCC employs daily backtesting to determine the sufficiency of each member's margin, by simulating the liquidation gains or losses using the actual unsettled positions in the member's portfolio, and the actual historical returns for each security held in the portfolio. A backtesting deficiency would result if the liquidation losses were greater than the member's margin. NSCC investigates the causes of any backtesting deficiencies, paying particular attention to members with backtesting deficiencies that bring the results for that member below the 99 percent confidence target (
Each member's margin consists of a number of applicable components, each of which is calculated to address specific risks faced by NSCC.
Generally, the largest portion of a member's margin is the volatility component. The volatility component is designed to reflect the amount of money that could be lost on a portfolio over a given period within a 99th percentile level of confidence. This component represents the amount assumed necessary to absorb losses while liquidating the member's portfolio.
NSCC's methodology for calculating the volatility component of a member's required fund deposit depends on the type of security and whether the security has sufficient pricing or trading history for NSCC to robustly estimate the volatility component using statistical techniques. Generally, for most securities (
Under NSCC's current Rules, one of the potential methods of calculating the VaR Charge relies on a measure of gap risk. It does not accrue for all portfolios, but instead only serves as the VaR Charge if it is the largest of three potential calculations.
Gap risk events have been generally understood as idiosyncratic issuer events (for example, earning reports, management changes, merger announcements, insolvency, or other unexpected, issuer-specific events) that cause a rapid shift in price volatility levels. The gap risk charge was designed to address the risk presented by a portfolio that is more susceptible to the effects of gap risk events,
The current gap risk charge applies only if a member's overall net unsettled non-index position with the largest absolute market value in the portfolio represents more than a certain percent of the entire portfolio's value, that is, if the net unsettled position exceeds a specified “concentration threshold.” The concentration threshold can be set no higher than 30 percent and is evaluated periodically based on members' backtesting results over a twelve month look-back period, and it is currently set at 5%.
The risk of large, unexpected price movements, particularly those caused by a gap risk event, are more likely to have a greater impact on portfolios with large net unsettled positions in securities that are susceptible to those events. Generally, index-based ETFs that track closely to diversified indices are less prone to the effects of gap risk events. Therefore, if the concentration threshold is met, NSCC currently calculates the gap risk charge for positions in the portfolio other than positions in ETFs that track diversified indices, referred to as “non-index positions.”
To calculate the gap risk charge, NSCC multiplies the gross market value of the largest non-index net unsettled position in the portfolio by a gap risk haircut, which can be no less than 10 percent (“gap risk haircut”).
NSCC is proposing to make the following changes to the gap risk charge: (1) make the gap risk charge an additive component of the member's total VaR Charge when it is applicable, rather than being applied as the applicable VaR Charge only when it is the largest of three separate calculations, (2) adjusting the gap risk charge to be based on the two largest positions in a portfolio, rather than based on the single largest position, (3) changing the floor of the gap risk haircut from 10 percent to 5 percent for the largest position, adding a floor of the gap risk haircut of 2.5 percent for the second largest position, and providing that gap risk haircuts would be determined based on backtesting and impact analysis, and (4) amending which ETF positions are excluded from the gap risk charge to more precisely include ETFs that are more prone to gap risk,
First, NSCC is proposing to make the result of the gap risk charge calculation an additive component of a member's total VaR Charge, rather than applicable as the VaR Charge only when it is the highest result of three calculations. Under the proposal, the VaR Charge would be equal to the sum of (1) the greater of either the core parametric estimation or the portfolio margin floor calculation, neither of which is changing in this proposal,
Second, NSCC is proposing to make the gap risk charge rely upon the absolute values of the two largest non-diversified net unsettled positions, as opposed to using the absolute value of only the single largest non-diversified net unsettled position. Therefore, the gap risk charge would be calculated by first multiplying each of the two largest non-diversified net unsettled positions with a gap risk haircut, and then adding the sum of the resulting products. The gap risk charge would be applicable if that sum of the resulting products exceeded the concentration threshold.
Third, NSCC proposes to revise the calculation of the gap risk haircut in response to making the proposal an additive component of a member's VaR Charge. Currently, the gap risk haircut is determined by selecting the largest of the 1st and 99th percentiles of three-day returns of a composite set of equities, using a look-back period of not less than 10 years plus a one year stress period.
In addition, NSCC proposes to revise the determination of the gap risk haircut in response to the proposal's inclusion of the two largest non-diversified net unsettled positions, as opposed to only the one, and to its additive nature. Currently, the percent that is applied to the largest non-index net unsettled position in the portfolio is no less than 10 percent.
Specifically, NSCC is proposing to lower the gap risk haircut that would be applied to the largest non-diversified net unsettled position to be a percent that is no less than 5 percent. The gap risk haircut that would be applied to the second largest non-diversified net unsettled position in the portfolio would be no larger than the gap risk haircut that would be applied to the largest non-diversified net unsettled position and would be subject to a floor of 2.5 percent. NSCC states that, upon implementation of the proposed rule change, NSCC would set the concentration threshold at 10%, apply a gap risk haircut on the largest non-diversified net unsettled position of 10% and a gap risk haircut on the second largest non-diversified net unsettled position of 5%.
Fourth, NSCC is proposing to amend what positions are excluded from the gap risk charge calculation. Currently, only “non-index” positions and index-based exchange-traded products that track a narrow market index are included in the gap risk charge.
NSCC states that certain ETFs, both index based and non-index based, are less prone to the effects of gap risk events as a result of having certain characteristics and, therefore, are less likely to pose idiosyncratic risks that the gap risk charge is designed to mitigate.
Although the Clearing Supervision Act does not specify a standard of review for an advance notice, the stated purpose of the Clearing Supervision Act is instructive: to mitigate systemic risk in the financial system and promote financial stability by, among other things, promoting uniform risk management standards for systemically important financial market utilities (“SIFMUs”) and strengthening the liquidity of SIFMUs.
Section 805(a)(2) of the Clearing Supervision Act authorizes the Commission to prescribe regulations containing risk management standards for the payment, clearing, and settlement activities of designated clearing entities engaged in designated activities for which the Commission is the supervisory agency.
• to promote robust risk management;
• to promote safety and soundness;
• to reduce systemic risks; and
• to support the stability of the broader financial system.
Section 805(c) provides, in addition, that the Commission's risk management standards may address such areas as risk management and default policies and procedures, among other areas.
The Commission has adopted risk management standards under section 805(a)(2) of the Clearing Supervision Act and section 17A of the Exchange Act (the “Clearing Agency Rules”).
The Commission believes that the proposal contained in NSCC's Advance Notice is consistent with the stated objectives and principles of section 805(b) of the Clearing Supervision Act. Specifically, as discussed below, the Commission believes that the changes proposed in the Advance Notice are consistent with promoting robust risk management, promoting safety and soundness, reducing systemic risks, and supporting the stability of the broader financial system.
The Commission believes that the Advance Notice is consistent with promoting robust risk management as well as safety and soundness because, based on the confidential information provided by NSCC and reviewed by the Commission, including the impact study demonstrating the collective impact of the proposed changes on the margin collected both at the overall clearing agency level and on a member-by-member basis and on NSCC's backtesting performance, the proposed changes with respect to the calculation of the gap risk charge provide better margin coverage than the current methodology. The Commission believes that the changes described in the Advance Notice should enable NSCC to better manage its exposure to portfolios with identified concentration risk, which should, in turn, limit its exposure to members in the event of a member default, which is consistent with promoting robust risk management.
The Commission believes that making the gap risk charge an additive component, as opposed to a potential substitutive option applicable only if it exceeds other methodologies for determining the VaR Charge, should help NSCC better protect against more idiosyncratic risk scenarios in concentrated portfolios than the current methodology. In addition, adjusting the gap risk calculation to take into account the two largest positions, as well as to apply two separate haircuts based on backtesting and impact analysis with floors set forth in the Rules, should allow NSCC to cover concurrent gap moves involving more than one concentrated position. Moreover, modifying the criteria for ETF positions subject to the gap risk charge based on
Further, the Commission believes that, to the extent the proposed changes are consistent with promoting NSCC's safety and soundness, they are also consistent with reducing systemic risk and supporting the stability of the broader financial system. NSCC has been designated as a SIFMU, in part, because its failure or disruption could increase the risk of significant liquidity or credit problems spreading among financial institutions or markets.
Accordingly, and for the reasons stated above, the Commission believes the changes proposed in the Advance Notice are consistent with section 805(b) of the Clearing Supervision Act.
Rule 17Ad-22(e)(4)(i) under the Exchange Act requires that a covered clearing agency establish, implement, maintain and enforce written policies and procedures reasonably designed to effectively identify, measure, monitor, and manage its credit exposures to participants and those arising from its payment, clearing, and settlement processes, including by maintaining sufficient financial resources to cover its credit exposure to each participant fully with a high degree of confidence.
Based on its review of the record, the Commission believes NSCC's proposal to broaden the scope of the gap risk charge and the related adjustments to its calculation could help improve NSCC's backtesting performance, provide broader coverage for idiosyncratic risk scenarios, and could help address the potential increased risks NSCC may face related to its ability to liquidate a portfolio that is susceptible to such risks in the event of a member default. Specifically, the Commission has reviewed and analyzed NSCC's analysis of the improvements in its backtesting coverage,
Accordingly, the Commission believes that the proposal would enable NSCC to better manage its credit risks by allowing it to respond regularly and more effectively to any material deterioration of backtesting performances, market events, market structure changes, or model validation findings, thereby helping to ensure that NSCC can take steps to collect sufficient margin to maintain sufficient financial resources to cover its exposure to its members. Therefore, the Commission believes the changes proposed in the Advance Notice are consistent with Rule 17Ad-22(e)(4)(i) under the Exchange Act.
Rule 17Ad-22(e)(6)(i) under the Exchange Act requires that each covered clearing agency that provides central counterparty services establish, implement, maintain and enforce written policies and procedures reasonably designed to cover its credit exposures to its participants by establishing a risk-based margin system that, at a minimum, considers, and produces margin levels commensurate with, the risks and particular attributes of each relevant product, portfolio, and market.
The Commission understands that, as described above, the proposal as a whole is designed to enable NSCC to more effectively address the risks presented by members' concentrated positions in securities more prone to gap risk events and to produce margin levels that are more commensurate with the particular risk attributes of these concentrated holdings, including the market price risk of liquidating large positions in securities that are more prone to gap risk events. The Commission believes that the proposal would improve NSCC's ability to consider, and produce margin levels commensurate with, the risks and particular attributes presented by a portfolio that meets the concentration threshold and, therefore, is more susceptible to the impacts of idiosyncratic risks.
First, the Commission believes that broadening the gap risk charge to an additive feature of the VaR Charge and using the two largest non-diversified positions would help NSCC to more effectively manage the idiosyncratic risks of portfolios with concentrated holdings. Specifically, the proposed changes should result in an overall increase of margin for members that have positions subject to the gap risk charge.
Second, given the proposed additive nature of the gap risk charge, the Commission believes the adjustments to the gap risk charge calculation (
Third, by providing additional specific objective criteria to determine which positions would be subject to the gap risk charge, the Commission believes that NSCC should be able to better identify those securities that may be more prone to idiosyncratic risks. Specifically, the proposal should ensure that ETFs identified as non-diversified (whether index-based or not) and therefore more prone to idiosyncratic risks will be subject to the gap risk charge.
Taken together, the Commission believes that the proposal should permit NSCC to calculate a gap risk charge that is more appropriately designed to address the gap risks presented by concentrated positions in portfolios. Accordingly, the Commission believes the proposal is consistent with Rule 17Ad-22(e)(6)(i) under the Exchange Act because it is designed to assist NSCC in maintaining a risk-based margin system that considers, and produces margin levels commensurate with, the risks and particular attributes of portfolios with identified concentration risks.
By the Commission.
On June 5, 2023, ICE Clear Credit LLC (“ICC”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(2) of the Securities Exchange Act of 1934 (the “Act”)
ICC is registered with the Commission as a clearing agency for the purpose of clearing CDS contracts.
ICC proposes general updates and edits to its Recovery Plan to promote clarity and to ensure that the information in it is current. The proposed amendments to the Recovery Plan reflect and relate to changes that impacted ICC in the past year. To that end, the current Recovery Plan includes in the introduction a disclaimer that, unless otherwise specified, all information provided in the plan is current as of December 31, 2021. The proposed rule change would update that date to December 31, 2022. The proposed amendments to the Recovery Plan also would include changes to the coverage amount under the ICC clearing participant (“CP”) default insurance policy (“CP Default Insurance Policy”), and the addition of ICC-specific procedures for financial resource calculations.
Section IV covers key recovery elements. Within this section, the proposed rule change would amend clearing participation (IV.B), management and governance (IV.C), and key performance metrics (IV.D). In Section IV.B, ICC would create a reference to a membership category, Associate Clearing Participant. In Section IV.C, ICC would make a correction to the Management/Governance chart to indicate that the business continuity plan (“BCP”) and disaster recovery (“DR”) Oversight Committee is not a sub-committee of the ICC Audit Committee. In Section IV.C, ICC would update the description of ICE Holding Board Chairman Vincent Tese, who is currently listed as an independent director of both ICE Holding and ICE Inc. The proposed rule change would amend the description to remove his listing as an independent director of Ice Inc. In Section IV.D, ICC would update its revenues, volumes, and expenses for years 2021 and 2022.
The proposed rule change also would amend Section VI of the Recovery Plan, which covers interconnections and interdependencies. Specifically, ICC proposes to amend Sections VI.A
The proposed rule change would make several updates to Section VIII of the Recovery Plan, which addresses ICC's recovery tools, primarily in Section VIII.B. First, the proposed rule change would update the name of the carrier for ICC's CP Default Insurance Policy, which is maintained at the ICE Group level and may be used as a recovery tool in a CP default scenario pursuant to ICC's Rules, provided certain conditions are met. Second, it would amend the amount of coverage to reflect that the Policy coverage amount has increased to $75 million (from $50 million, as reflected in the current Recovery Plan); third, it would update the points of contact for ICC's Default Insurance Policy; and fourth, it would update the coverage amount under the Professional Liability/Cyber (E&O) Insurance Policy from $110 million to $120 million to reflect that coverage amount under that policy has increased since the last update to the Recovery Plan. Fifth, in Section VIII.B.1.iii (Direct Infusion of Cash to ICC from Parent/ICE Group), ICC would update the current description of ICC's, ICE Inc's, and ICE Group's respective year-end cash balances to reflect their most current consolidated balance sheets. Finally, the proposed rule change would add a footnote in Section VIII.B that references and describes ICC's Risk Appetite Statements and Metrics, which define the thresholds ICC has established with respect to regulatory capital requirements and provide for alerts in the event that ICC is nearing a breach of these amounts (
Section X of the Recovery Plan identifies ICC's Financial Resources for Recovery. The proposed rule change would add details regarding the calculation of ICC's financial resources available for recovery to reflect new ICC-specific Financial Resource Calculation Procedures that ICC has added since the last update to the Recovery Plan. Specifically, the Recovery Plan would specify that ICC completes a voluntary annual calculation of regulatory requirements under European Market Infrastructure Regulation (“EMIR”) guidelines. It would note that ICC's calculation approximates the EMIR requirements and is calculated by ICE Treasury on an annual basis upon the finalization of ICC's statutory audit and financial statements, as well as a discussion of future expectations with the ICC Treasury Director, and specify that the EMIR Estimate includes four elements relating to: winding down/restructuring; operational and legal risks; credit and counterparty risk/market risk; and business risks. The proposed update would also include a reference to the Financial Resource Calculation Procedures and note that the procedures include additional details regarding the calculation of regulatory capital requirements under EMIR guidelines. The proposed rule change also would amend Section X to update the expected costs of recovery and wind-down, including expenses related to legal services, consulting, operations, regulatory capital requirements, and other wind down costs.
Section XI of the Recovery Plan (Financial Information) provides the balance sheet and income statement for ICC and the consolidated balance sheet and income statement for ICE Inc. and its subsidiaries. The proposed rule change would update the financial information in this section to reflect the most current financial statements for both entities.
The proposed rule change would make minor edits to Section XIII, Appendix G, which covers form default insurance proof of loss, by updating the carrier and policy number for ICC's CP Default Insurance Policy. In Section XIV, which contains the index of exhibits, the proposed rule change would update the index of exhibits with the current versions of policies and procedures, consistent with updated footnote references. Finally, the proposed rule change would make non-substantive typographical fixes in the ICC Recovery Plan, as well as conforming changes in the ICC Wind-Down Plan, including updates to entity names, and grammatical and formatting changes.
ICC proposes updates and edits to promote clarity and to ensure that the information provided in the Wind-Down Plan is current. The proposed rule change reflects and relates to changes that have impacted ICC in the past year, including the addition of ICC-specific procedures for financial resource calculations. The current Wind-Down Plan includes in the introduction a disclaimer that, unless otherwise specified, all information provided in the plan is current as of December 31, 2021. The proposed rule change would update that date to December 31, 2022.
Section II of the Wind-Down Plan is an overview of the structure of ICC. Section II.A addresses ownership of ICC. The proposed rule change would add additional language for the headquarter location for ICC. Section IV addresses membership and ICC governance. The proposed rule change would amend the Management and Governance chart in Section IV.B because the previous chart incorrectly indicated that the BCP and DR Oversight Committee are sub-committees of the ICC Audit Committee. Additionally, the proposed rule change would update the description of Vincent Tese in Section IV.B, so that he is listed as just an independent director of ICC, but is no longer listed as an independent director of ICE Inc.
In the beginning of Section VII, which addresses interconnections and interdependencies, the proposed rule change would update ICC revenue. Later in VII.C.2, the proposed rule change would update the number of personnel and facilities. In Section VII.C, which addresses operational services, the proposed rule change would update a list of in-house systems. Section VII.D addresses financial services and the proposed rule change would update the roles on its counterparty chart.
Section IX addresses financial resources to support wind-down. In this section, the proposed rule change would include additional details regarding the calculation of ICC's financial resources available for wind-down to reflect the new ICC-specific Financial Resource
The proposed rule change would update and edit to promote clarity and consistency in the ICC Wind-Down Plan. In the counterparty contractual agreements chart in Section VIII, the proposed rule change would remove the reference to a service no longer received from a specific external service provider (
Section 19(b)(2)(C) of the Act directs the Commission to approve a proposed rule change of a self-regulatory organization if it finds that such proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to such organization.
Section 17A(b)(3)(F) of the Act requires, among other things, that the rules of ICC be designed, to promote the prompt and accurate clearance and settlement of securities transactions and, to the extent applicable, derivative agreements, contracts, and transactions, as well as to assure the safeguarding of securities and funds which are in the custody or control of ICC or for which it is responsible.
As noted above, the proposed rule change primarily would update the Recovery Plan and Wind-Down Plan with current information about ICC's facilities, finances, operations, and Board. The Commission believes that by providing the most current information for ICC's revenues, volumes, and expenses, the proposed rule change will support ICC's ability to monitor its finances and compare its regulatory capital to its estimated recovery and wind-down costs. This in turn will help ensure ICC has the financial resources to promptly and accurately clear and settle transactions during recovery and, if necessary, conduct an orderly wind-down.
Further, the Commission believes that updating the Counterparty Chart to reflect current roles and changes to the functions performed by certain counterparties will generally support those utilizing the Plans by providing users of the Plans a correct overview of ICC's counterparties. Similarly, the Commission believes that updating the description of ICC's Default Insurance Policy and Professional Liability/Cyber (E&O) Insurance Policy to reflect increase coverage amounts and current points of contact will generally support those utilizing the Plans by providing users of the Plans a correct overview of these insurance policies. The Commission believes that these proposed changes would strengthen both plans by ensuring those utilizing them have information necessary to carry out recovery or an orderly wind-down, which in turn should help ICC to promptly and accurately clear and settle transactions during recovery and, if necessary, conduct an orderly wind-down.
ICC also proposed to include a reference to the thresholds for regulatory capital requirements that would trigger alerts for ICC nearing a capital requirement breach. This may lead to potential remedial actions, including whether ICC should initiate its plan to raise additional equity. The Commission believes that these proposed changes would strengthen the plans by ensuring those utilizing them have all of the information necessary to carry out recovery or an orderly wind-down, which in turn will help ensure ICC can promptly and accurately clear and settle trades and safeguard of securities and funds which are in its custody or control at these times.
For the reasons stated above, the Commission believes that the proposed rule change is consistent with Section 17A(b)(3)(F) of the Act.
Rule 17Ad-22(e)(3)(ii) requires ICC to establish, implement, maintain, and enforce written policies and procedures reasonably designed to maintain a sound risk management framework for comprehensively managing legal, credit, liquidity, operational, general business, investment, custody, and other risks that arise in or are borne by ICC, which includes plans for the recovery and orderly wind-down of ICC necessitated by credit losses, liquidity shortfalls, losses from general business risk, or any other losses.
The Commission believes the proposed changes described above that would add current financial, personnel, and board information support ICC's maintenance of plans for the recovery and orderly wind-down of ICC with updated accurate information. The proposed rule change also would addi details regarding the calculation of ICC's financial resources available for wind-down to reflect the new ICC Financial Resource Calculation Procedures. Additionally, ICC adds a reference to its thresholds for regulatory capital requirements that would trigger alerts for when ICC is nearing a capital requirement breach. The Commission believes that current financial information provides relevant information to those using the Plans to understand the resources available for recovery or an orderly wind-down.
Therefore, the Commission finds that the proposed rule change is consistent with Rule 17Ad-22(e)(3)(ii).
On the basis of the foregoing, the Commission finds that the proposed rule change is consistent with the requirements of the Act, and in particular, with the requirements of
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1)
Pursuant to the provisions of section 19(b)(1) under the Act,
The text of the proposed rule change is available at the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to modify its Fee Schedule, pursuant to IEX Rule 15.110(a) and (c), to modify the fees applicable to executions of and with displayed orders with an execution price at or above $1.00 per share. The Exchange currently does not charge Members a fee for an execution at or above $1.00 per share that provides displayed liquidity and charges Members $0.0009 per share for an execution at or above $1.00 per share that removes displayed liquidity.
As proposed, for executions at or above $1.00 per share, Members that enter displayed orders that provide liquidity will receive a rebate of $0.0004 per share and Members that enter orders that remove displayed liquidity will be charged a fee of $0.0010 per share, unless a lower fee applies.
The Exchange provides the following Fee Codes on execution reports to Members for executions of and with displayed liquidity: “ML” for orders that provide displayed liquidity, “MLS” for orders that provide displayed liquidity that executes against an order that originated from the same Member, “TL” for orders that remove displayed liquidity, and “TLS” for orders that remove displayed liquidity added by the same Member.
Specifically, the Exchange is proposing to make the following changes to its Fee Schedule:
• Replace the words “Effective January 2, 2023” at the top of the Fee Schedule with the words “Effective July 25, 2023” and on the line immediately after, add “New underlined text and deletions in brackets will be operative on September 1, 2023” (to indicate the date the fees in this proposal will be operative).
• Modify the first bullet point under the “Transaction Fees” header to specify that all fees identify the cost “or rebate” per share executed. And add a sentence stating that “Rebates are indicated by parentheses ().”
• In the “Base Rates” table, change the fee for executions at or above $1.00 per share for Fee Code ML from “FREE” to “($0.0004)”.
• In the “Base Rates” table, change the fee for executions at or above $1.00 per share for Fee Code TL from “$0.0009” to “$0.0010”.
• In the “Fee Code Combinations and Associated Fees” table, change the fee for executions at or above $1.00 per share for Fee Code ML from “FREE” to “($0.0004)”.
• In the “Fee Code Combinations and Associated Fees” table, change the fee for executions at or above $1.00 per share for Fee Code TL from “$0.0009” to “$0.0010”.
• In the “Fee Code Combinations and Associated Fees” table, change the fee for executions at or above $1.00 per share for Fee Code MLS from “FREE” to “($0.0004)”.
• In the “Fee Code Combinations and Associated Fees” table, change the fee for executions at or above $1.00 per share for Fee Code TLS from “$0.0009” to “$0.0010”.
The Exchange is not proposing to change the fees applicable to executions of and with displayed orders with an execution price below $1.00 per share, which would remain free for such orders that provide displayed liquidity and 0.09% of the total dollar volume of the execution for orders that take displayed liquidity. IEX is also not proposing to make any changes to the fees applicable to the execution of
The current fees for orders that provide or take displayed liquidity were adopted in 2021 and designed to attract displayed order flow to the Exchange by offering a fee-based incentive to provide displayed liquidity.
IEX believes that the proposed rule change is consistent with the provisions of section 6(b)
The Exchange believes that the proposed fee structure for providing and removing displayed liquidity is reasonable and consistent with the Act. Specifically, the Exchange believes that for securities that trade at or above $1.00 per share, it is reasonable to provide a $0.0004 per share rebate for providing displayed liquidity and to modestly increase the fee for removing displayed liquidity to $0.0010 per share. As noted above, the Exchange operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive. Within that context, charging $0.0010 per share for orders that remove displayed liquidity (coupled with a $0.0004 per share rebate for orders that add displayed liquidity) is designed to keep IEX's displayed trading prices competitive with those of other exchanges. In this regard, IEX notes that while many competing exchanges pay rebates to provide displayed liquidity that are substantially higher than those proposed, others charge fees to provide displayed liquidity for securities that trade at or above $1.00 per share.
In addition, IEX believes that it is reasonable and consistent with the Act to apply the proposed fees to executions when the adding and removing order originated from the same Member. IEX believes that the same factors that support the proposed fees overall, are also applicable to such executions. Specifically, IEX believes that the incentives to send displayed orders to IEX (and orders seeking to execute against displayed orders) will similarly provide an incentive to Members to send orders to IEX that might otherwise be internalized off-exchange, which may increase order interaction on IEX. Internalization on IEX is not guaranteed, and the additional orders that do not internalize are available to trade by all Members.
The Exchange also believes that it is reasonable and consistent with the Act not to modify its displayed fees for sub-dollar executions to synchronize those fees with the proposed fees for executions at or above $1.00 per share. The Exchange believes that the existing fee structure for such executions continues to be reasonably designed to incentivize displayed order flow (and orders seeking to trade with displayed order flow) in such securities.
Further, IEX believes that it is reasonable and consistent with the Act not to change the fees applicable to the execution of Retail orders that remove liquidity, which will continue to execute for free. In this regard, the Exchange believes that the existing fee structure continues to be reasonably designed to incentivize the entry of Retail orders, and notes that the Commission, in approving IEX's Retail Price Improvement Program, acknowledged the value of exchanges' offering incentives to attract both retail investor orders and orders specifically designated to execute only with retail orders.
The Exchange further believes that the proposed fee change is consistent with the Act's requirement that the Exchange provide for an equitable allocation of fees that is also not unfairly discriminatory.
First, the fees for adding and removing displayed liquidity will apply on a per share basis in an equal and nondiscriminatory manner to all Members, without regard to the volume of orders submitted by a Member or other factors.
Second, because the fees would apply on a flat, per share basis—like IEX's existing fees—they will continue to be fully deterministic, in that a Member will be able to determine the Exchange fees for each execution. IEX believes this aspect of its fee proposal will assist all Members in making decisions about routing of orders without the uncertainties associated with volume tiers or other requirements that cannot
Additionally, the Exchange believes that it is reasonable to modify the first bullet under “Transaction Fees” to include a reference to rebates and to specify that rebates are indicated by parentheses. Updating this bullet point will avoid any potential confusion as to the applicable fees and rebates for each execution.
Finally, to the extent the proposed change is successful in incentivizing the entry and execution of displayed orders on IEX, such greater liquidity will benefit all market participants by increasing price discovery and price formation as well as market quality and execution opportunities.
IEX does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange 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. The Exchange operates in a highly competitive market in which market participants can readily favor competing venues if fee schedules at other venues are viewed as more favorable. Consequently, the Exchange believes that the degree to which IEX fees could impose any burden on competition is extremely limited, and does not believe that such fees would burden competition between Members or competing venues. Moreover, as noted in the Statutory Basis section, the Exchange does not believe that the proposed changes raise any new or novel issues not already considered by the Commission.
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 because, while different fees are assessed in some circumstances, these different fees are not based on the type of Member entering the orders that match or on the volume of orders submitted by a Member but on the type of order entered, and all Members can submit any type of order and will be subject to the same fee for that type of order. IEX believes that applying a flat, per share fee or rebate for each type of order avoids imposing a burden on competition by ensuring that individual Members do not gain a competitive advantage over other Members based solely on their size or volume of orders they are able to submit to the Exchange. Further, the proposed fee changes continue to be intended to encourage market participants to bring increased order flow to the Exchange, which benefits all market participants.
Written comments were neither solicited nor received.
The foregoing rule change is effective upon filing pursuant to section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe Exchange, Inc. (the “Exchange” or “C2”) proposes to enhance its drill-through protection processes for simple orders and make other clarifying changes. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this rule filing is to amend Rule 5.34(a), Order and Quote Price Protection Mechanisms and Risk Controls (Simple Orders), to enhance the drill-through protection process for simple orders and make other clarifying changes.
Drill-through price protection is currently described in Exchange Rule 5.34(a)(4)(A). Under Rule 5.34(a)(4)(A), if a buy (sell) order enters the Book
Rule 5.34(a)(4)(C) establishes an iterative drill-through process, whereby the Exchange permits orders to rest in the Book for multiple time periods and at more aggressive displayed prices during each time period.
Currently, the above-described iterative drill-through process does not apply to market orders.
The Exchange proposes for market orders with a Time-in-Force of Day to go through the iterative drill-through process described above.
The Exchange also proposes to amend Rule 5.34(a)(1)(A)(ii) to exclude from the current protections for market orders in no-bid series certain orders that would be otherwise subject to the drill-through protection under the proposed rule changes. Currently, under Rule 5.34(a)(1)(A)(ii), if the System receives a sell market order in a series after it is open for trading with an NBB of zero, and the NBO in the series is greater than $0.50, the System cancels or rejects the market order. The Exchange proposes amending this protection in the event a drill-through process is in progress. Specifically, the Exchange proposes to amend Rule 5.34(a)(1)(A)(ii) to note that in the event the System receives a sell market order in a series after it is open for trading with an NBB of zero and the NBO in the series is greater than $0.50, if the drill-through process is in progress for sell orders and the sell market order would be subject to drill-through protection, then the order would join the on-going drill-through process in the then-current iteration and at the then-current drill-through price, regardless of NBBO. The Exchange believes it is not optimal for these orders to be immediately booked at the minimum tick increment, as under the proposed rule change, such orders would instead, be subject to the drill-through protection mechanism described under Rule 5.34(a)(4), which may allow opportunity for execution at a more beneficial price level than the minimum tick increment.
Further, the Exchange proposes to amend Rule 5.34(a)(2) to specifically exclude orders that would be subject to drill-through protection from the market order NBBO width protections described therein. Currently, under Rule 5.34(a)(2), if a User submits a market order to the System when the NBBO width is greater than x% of the midpoint of the NBBO, subject to a minimum and maximum dollar amount (as determined by the Exchange on a class-by-class basis), the System cancels or rejects the market order. The Exchange proposes amending Rule 5.34(a)(2) to exclude Stop (Stop-Loss)
For example, assume that the drill-through price buffer for a certain option series is $0.90, and that the following quotes are in the Book: Quote 1 (NBBO): 1 @5.00 × 1 @7.00; Quote 2: 2 @4.00 × 1 @8.00. Additionally, the following Stop orders are being held in the System when Quote 2 is updated to 2 @4.00 × 1 @6.50 (the System received these stop orders in the below sequence):
Each of orders 1, 2 and 3 have a stop price less than the NBO, and will therefore be triggered by the 6.50 quote and enter the Book for execution or posting. A drill-through price for all three orders is set at the contra-side NBB of 5.00. Per proposed Rule 5.34(a)(4)(C), the orders will go through the drill-through process as follows:
1. Order 1 will execute against Quote 1 @$5.00.
2. Orders 2 and 3 are posted to sell at $4.10 for the Exchange-determined time period.
3. Drill-through process continues for orders 2 and 3 until they are canceled or executed.
As amended, under Rule 5.34(a)(4)(E), all Stop (Stop-Loss) and Stop-Limit
The Exchange proposes to amend Rule 5.34(a)(4)(c)(ii), to specify that if at any time during the drill-through process, the NBO (NBB) changes to be below (above) the current drill-through price, such NBO (NBB) will become the new drill-through price and a new drill-through will immediately begin. As a result, any improvements to the market that occur while the drill-through is in process will be incorporated, thereby providing Users with further opportunity to be priced within the market while still being protected. Under the proposed rule change, any limit order with a price that is less aggressive than the new drill-through price would be entered in the Book at its limit price.
The Exchange also proposes to add Rule 5.34(a)(4)(C)(iv)
Assume that the drill-through price buffer for a certain option series is $0.90, and that the following quotes are in the Book: Quote 1 (NBBO): 1 @5.00 × 1 @7.00; Quote 2: 2 @4.00 × 1 @8.00. The System receives the following orders in the below sequence:
During this time, Quote 2 is updated to: 2 @4.00 × 1 @6.50. Orders 1, 2, and 3 are elected, and the drill-through reference price for all three orders is set to contra-side NBB of 5.00.
1. Order 1 executes Quote 1 @$5.00.
2. Orders 2 and 3 are posted to sell @$4.10 (drill-through price) for the Exchange-determined time period.
3. Order 4 is elected due to updated best offer of $4.10, and joins Orders 2 and 3 at the iterative drill-through price of $4.10. The offer is updated to 4 @$4.10.
4. Order 5 (Sell 10 @Market (Day)) and Order 6 (Sell 1 @$4.05 Limit (Day)) enter the Book. Per proposed Rule 5.34(a)(4)(C)(iv), Orders 5 and 6 join the drill-through iteration at the drill-through reference price of $4.10, and the best offer is updated to 15 @$4.10.
5. The drill-through process continues for orders 2, 3, 4, 5, and 6 until the contracts are canceled or executed.
Because the proposed rule change may result in multiple orders going through the drill-through process at the same price and at the same time, the proposed rule change also describes how these orders will be prioritized and allocated when executing against resting interest or incoming interest. Specifically, proposed Rule 5.34(a)(4)(C)(v) states the System prioritizes orders that are part of the same drill-through iteration (A) based on the time the System enters or reprices them in the Book (
Continuing from the above example, assume the drill-through process iterates to the next drill-through price, which would be $3.20. In doing so, Order 6 posts at its limit price of $4.05, and the rest of the orders are eligible to execute in time sequence against the resting $4.00 bid. Per proposed Rule 5.34(a)(4)(C)(v), the orders will go through the drill-through process as follows:
If, prior to the next drill-through iteration, Order 7 (buy 5 @$3.25) is entered and executes against Orders 4 and 5 at $3.20, the allocation will depend on the allocation algorithm for the relevant class, under the amended Rule.
The Exchange also proposes to amend Rule 5.34(a)(4)(C)(vi).
Finally, the Exchange proposes to add Rule 5.34(a)(4)(C)(vii) to specify that the drill-through protection mechanism applies during all trading sessions and to provide clarity as to what happens to orders that are undergoing the drill-through process at the end of a trading session. Under the proposed rule change, if an order(s) (or unexecuted portion(s)) is undergoing the drill-through process at the end of a Global Trading Hours (“GTH”)
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes the proposed rule change to enhance drill-through protections for simple orders and to make certain market orders eligible for drill-through protection will remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, protect investors, because it will provide these orders with additional and consistent execution opportunities and protections. The primary purpose of the drill-through price protection is to prevent orders from executing at prices “too far away” from the market when they enter the Book for potential execution. The Exchange believes the proposed rule change is consistent with this purpose, because Users who submit market orders with a Time-in-Force of Day will receive the same level of drill-through price protection against execution at potentially erroneous prices that is currently afforded to supermarketable limit orders while receiving the same additional execution opportunities. Supermarketable limit orders currently go through the drill-through process, and market orders with a Time-in-Force of Day are functionally similar to supermarketable limit orders. Therefore, the Exchange believes it is appropriate to provide both types of orders with the same price protection.
Further, the proposed rule change to provide that any new market and limit orders that would be subject to drill-through protection will join any in-progress drill-through iterations and display at the then-current drill-through price (and the corresponding changes regarding allocation and prioritization) allows new orders to receive the same level of price protection as other orders undergoing the drill-through process. The proposed rule change will allow all orders additional execution opportunities while continuing to protect them against execution at potentially erroneous prices. Similarly, the Exchange believes the proposed change to consider changes to the NBO (NBB) during drill-through and to update the drill-through price to such NBO (NBB) should it be lower (higher) than the drill-through price will further provide opportunity for execution at reasonable prices by capturing any market moves that may result in more aggressive prices.
The Exchange believes the proposal will enhance risk protections, the individual firm benefits of which flow downstream to counterparties both at the Exchange and at other options exchanges, which increases systemic protections as well. The Exchange believes enhancing risk protections will allow Users to enter orders and quotes with further reduced fear of inadvertent exposure to excessive risk, which will benefit investors through increased exposure to liquidity for the execution of their orders.
Additionally, the Exchange believes changes to specifically exclude from market order NBBO width and market order in no-bid series protections certain orders that would be subject to drill-through protection will remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, protect investors. Specifically, the Exchange believes the changes to exclude certain orders that would be subject to drill-through protection from market order NBBO width protections may reduce inadvertent rejection of such orders which may be purposely priced far away from the NBBO at the time of entry and may otherwise miss an opportunity for execution if immediately cancelled. The Exchange also believes the changes to exclude certain orders that would be subject to drill-through protection from market order in no-bid series protections may allow opportunity for execution at a more beneficial price level than if they were immediately booked at the minimum tick increment. This proposed rule change may increase execution opportunities for Users that submit such Stop (Stop-Loss) and Market-on-Close orders (in the case of market order NBBO width protections) and sell market orders with an NBB of zero when the NBO in the series is greater than $0.50 (in the case of market orders in no-bid series protections).
The Exchange believes the proposed change to Rule 5.34(a)(4)(E) will protect investors because it clarifies that if multiple Stop (Stop-Loss) and Stop-Limit orders are triggered by the same trade price or NBBO (even if the orders have different stop prices), and would execute or post to the Book, the System uses the contra-side NBBO that existed at the time the first order in sequence was entered into the Book as the drill-through price for all orders. The Exchange believes that the proposed rule change will bring greater transparency and clarity to the rulebook, thus benefitting investors.
Finally, the Exchange believes the proposed changes to clarify when an order ceases to remain a part of the drill-through process and to specify what happens to orders undergoing drill-through at the end of a trading session will protect investors by adding transparency to the rules regarding the drill-through functionality and provide greater certainty as to the application of the drill-through process.
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 because the enhanced drill-through protection will apply to all marketable orders in the same manner. Additionally, it will provide the same price protection and execution opportunities to relevant market orders that are currently provided to supermarketable limit orders, which function in a similar 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. The proposed enhancement to the drill-through protection is consistent with the current protection and provides relevant market orders with improved protection against execution at potentially erroneous prices through drill-through price protection in accordance with User instructions. Additionally, the proposed rule change relates specifically to a price protection offered on the Exchange and how the System handles orders as part of this price protection mechanism.
The Exchange believes the proposed rule change would ultimately provide all market participants with additional execution opportunities when appropriate while providing protection from erroneous execution. The Exchange believes the proposal will enhance risk protections, the individual firm benefits of which flow downstream to counterparties both at the Exchange and at other options exchanges, which increases systemic protections as well. The Exchange believes enhancing risk protections will allow Users to enter orders and quotes with further reduced fear of inadvertent exposure to excessive risk, which will benefit investors through increased exposure to liquidity for the execution of their orders. Without adequate risk management tools, Trading Permit Holders could reduce the amount of order flow and liquidity they provide. Such actions may undermine the quality of the markets available to customers and other market participants. Accordingly, the proposed rule change is designed to encourage Trading Permit Holders to submit additional order flow and liquidity to the Exchange. Accordingly, the proposed rule change is designed to encourage Trading Permit Holders to submit additional order flow and liquidity to the Exchange. The proposed flexibility may similarly provide additional execution opportunities, which further benefits liquidity in potentially volatile markets. In addition, providing Trading Permit Holders with more tools for managing risk will facilitate transactions in securities because, as noted above, Trading Permit Holders will have more confidence protections are in place that reduce the risks from potential system errors and market events.
Finally, the proposed clarifying changes are not intended to have any impact on competition, but rather codify current functionality to add transparency to the Rules.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend GEMX's Pricing Schedule at Options 7, Section 5 to reduce the GEMX Options Regulatory Fee or “ORF.”
While the changes proposed herein are effective upon filing, the Exchange has designated the amendments become operative on August 1, 2023.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
GEMX proposes to lower its ORF from $0.0013 to $0.0012 per contract side on August 1, 2023. Previously, GEMX lowered or waived its ORF in 2019, 2021, 2022 and 2023.
Volumes in the options industry went over 900,000,000 in 2023. GEMX has taken measures this year as well as in prior years to lower and waive its ORF to ensure that revenue collected from the ORF, in combination with other regulatory fees and fines, does not exceed the Exchange's total regulatory costs. Despite those prior measures, GEMX will need to reduce its ORF again to account for trading volumes in the first half of 2023 that were higher than the Exchange forecast for ORF assessment purposes, which resulted in the collection of more ORF revenues than anticipated in the first half of 2023. At this time, GEMX believes that the options volume it experienced in the first half of 2023 is likely to persist. The anticipated options volume would continue to impact GEMX's ORF collection which, in turn, has caused GEMX to propose reducing the ORF to ensure that revenue collected from the ORF, in combination with other regulatory fees and fines, would not exceed the Exchange's total regulatory costs.
GEMX will continue to assess its ORF for each customer option transaction that is either: (1) executed by a Member on GEMX; or (2) cleared by an GEMX Member at The Options Clearing Corporation (“OCC”) in the customer range,
In the case where a Member both executes a transaction and clears the transaction, the ORF will be assessed to and collected from that Member. In the case where a Member executes a transaction and a different Member clears the transaction, the ORF will be assessed to and collected from the Member who clears the transaction and not the Member who executes the transaction. In the case where a non-Member executes a transaction at an away market and a Member clears the transaction, the ORF will be assessed to and collected from the Member who clears the transaction. In the case where a Member executes a transaction on GEMX and a non-Member clears the transaction, the ORF will be assessed to the Member that executed the transaction on GEMX and collected from the non-Member who cleared the transaction. In the case where a Member executes a transaction at an away market and a non-Member clears the transaction, the ORF will not be
The Exchange monitors the amount of revenue collected from the ORF to ensure that it, in combination with other regulatory fees and fines, does not exceed regulatory costs. In determining whether an expense is considered a regulatory cost, the Exchange reviews all costs and makes determinations if there is a nexus between the expense and a regulatory function. The Exchange notes that fines collected by the Exchange in connection with a disciplinary matter offset ORF.
Revenue generated from ORF, when combined with all of the Exchange's other regulatory fees and fines, is designed to recover a material portion of the regulatory costs to the Exchange of the supervision and regulation of member customer options business including performing routine surveillances, investigations, examinations, financial monitoring, and policy, rulemaking, interpretive, and enforcement activities. Regulatory costs include direct regulatory expenses and certain indirect expenses in support of the regulatory function. The direct expenses include in-house and third-party service provider costs to support the day-to-day regulatory work such as surveillances, investigations and examinations. The indirect expenses include support from such areas as Office of the General Counsel, technology, and internal audit. Indirect expenses were approximately 39% of the total regulatory costs for 2023. Thus, direct expenses were approximately 61% of total regulatory costs for 2023.
The ORF is designed to recover a material portion of the costs to the Exchange of the supervision and regulation of its Members, including performing routine surveillances, investigations, examinations, financial monitoring, and policy, rulemaking, interpretive, and enforcement activities.
Based on the Exchange's most recent review, the Exchange is proposing to reduce the amount of ORF that will be collected by the Exchange from $0.0013 per contract side to $0.0012 per contract side. The Exchange issued an Options Trader Alert on June 30, 2023 indicating the proposed rate change for August 1, 2023.
The proposed reduction is based on current levels of options volume. The below table displays monthly total volume for 2023.
Options
GEMX lowered its ORF in the beginning of 2023 to account for options volume in 2022. The Exchange proposes to reduce its ORF to $0.0012 per contract side to ensure that revenue does not exceed the Exchange's estimated regulatory costs in 2023. Particularly, the Exchange believes that reducing the ORF when combined with all of the Exchange's other regulatory fees and fines, would allow the Exchange to continue covering a material portion of its regulatory costs, while lessening the potential for generating excess revenue that may otherwise occur using the rate of $0.0013 per contract side.
The Exchange will continue to monitor the amount of revenue collected from the ORF to ensure that it, in combination with its other regulatory fees and fines, does not exceed regulatory costs. If the Exchange determines regulatory revenues may exceed or are projected to exceed regulatory costs, the Exchange will adjust the ORF by submitting a fee change filing to the Commission and notifying
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (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 the proposed fee change is reasonable because customer transactions will be subject to a lower ORF fee as of August 1, 2023 and the amount of the lower fee will fund a reasonable portion of the Exchange's regulatory costs. Moreover, the proposed reduction is necessary for the Exchange to avoid collecting revenue, in combination with other regulatory fees and fines, that would be in excess of its anticipated regulatory costs.
The Exchange designed the ORF to generate revenues that would be less than the amount of the Exchange's regulatory costs to ensure that it, in combination with its other regulatory fees and fines, does not exceed regulatory costs, which is consistent with the view of the Commission that regulatory fees be used for regulatory purposes and not to support the Exchange's business operations. As discussed above, however, after review of its regulatory costs and regulatory revenues, which includes revenues from ORF and other regulatory fees and fines, the Exchange determined that absent a reduction in ORF, it may collect revenue which would exceed its regulatory costs. Indeed, the Exchange notes that when taking into account the potential that recent options volume persists, it estimates the ORF may generate revenues that would cover more than the approximated Exchange's projected regulatory costs. As such, the Exchange believes it's reasonable and appropriate to reduce the ORF amount from $0.0013 to $0.0012 per contract side on August 1, 2023.
The Exchange also believes the proposed fee change is equitable and not unfairly discriminatory in that it is charged to all Members on all their transactions that clear in the customer range at OCC.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. This proposal does not create an unnecessary or inappropriate intra-market burden on competition because the ORF applies to all customer activity, thereby raising regulatory revenue to offset regulatory expenses. It also supplements the regulatory revenue derived from non-customer activity. The Exchange notes, however, the proposed change is not designed to address any competitive issues. Indeed, this proposal does not create an unnecessary or inappropriate inter-market burden on competition because it is a regulatory fee that supports regulation in furtherance of the purposes of the Act. The Exchange is obligated to ensure that the amount of regulatory revenue collected from the ORF, in combination with its other regulatory fees and fines, does not exceed regulatory costs.
No written comments were either solicited or received.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe BZX Exchange, Inc. (the “Exchange” or “BZX”) proposes to enhance its drill-through protection processes for simple orders and make other clarifying changes. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this rule filing is to amend Rule 21.17, Additional Price Protection Mechanisms and Risk Controls, to enhance the drill-through protection process for simple orders and make other clarifying changes.
Drill-through price protection is currently described in Exchange Rule 21.17(d). Under Rule 21.17(d)(1), if a buy (sell) order enters the BZX Options Book
Current Rule 21.17(d)(2) (as amended, proposed Rule 21.17(d)(3))
Currently, the above-described iterative drill-through process does not apply to market orders. Specifically, if a buy (sell) market order would execute at the time of order entry, the System executes the order up to the Exchange-determined buffer amount above (below) the NBO (NBB) at the time of order entry and then rejects any remaining amount. For example, suppose a market order to buy two contracts enters the System; assume that the drill-through price buffer for a certain option series is $0.90 and that the following quotes are in the Book: Quote 1 (NBBO): 1 @5.00 × 1 @7.00; Quote 2: 2 @4.00 × 1 @8.00. One contract in the market order will execute against the 7.00 offer quote. The remaining one contract of the market order is cancelled, because the next best offer of 8.00 is 1.00 above the NBO, which is more than the 0.90 buffer amount.
The Exchange proposes for market orders with a Time-in-Force of Day to go through the iterative drill-through process described above.
The Exchange also proposes to amend Rule 21.17(e)(1)(B) to exclude from the current protections for market orders in no-bid series certain orders that would be otherwise subject to the drill-through protection under the proposed rule changes. Currently, under Rule 21.17(e)(1)(B), if the System receives a sell market order in a series after it is open for trading with an NBB of zero, and the NBO in the series is greater than $0.50, the System cancels or rejects the market order. The Exchange proposes amending this protection in the event a drill-through process is in progress. Specifically, the Exchange proposes to amend Rule 21.17(e)(1)(B) to note that in the event the System receives a sell market order in a series after it is open for trading with an NBB of zero and the NBO in the series is greater than $0.50, if the drill-through process is in progress for sell orders and the sell market order would be subject to drill-through protection, then the order would join the on-going drill-through process in the then-current iteration and at the then-current drill-through price, regardless of NBBO. The Exchange believes it is not optimal for these orders to be immediately booked at the minimum tick increment, as under the proposed rule change, such orders would instead, be subject to the drill-through protection mechanism described under Rule 21.17(d), which may allow opportunity for execution at a more beneficial price level than the minimum tick increment.
Further, the Exchange proposes to amend Rule 21.17(a) to specifically exclude orders that would be subject to drill-through protection from the market order NBBO width protections described therein. Currently, under Rule 21.17(a), if a User submits a market order to the System when the NBBO width is greater than x% of the midpoint of the NBBO, subject to a minimum and maximum dollar amount (as determined by the Exchange on a class-by-class basis), the System cancels or rejects the market order. The Exchange proposes amending Rule 21.17(a) to exclude Stop Orders
For example, assume that the drill-through price buffer for a certain option series is $0.90, and that the following quotes are in the Book: Quote 1 (NBBO): 1 @5.00 × 1 @7.00; Quote 2: 2 @4.00 × 1 @8.00. Additionally, the following Stop orders are being held in the System when Quote 2 is updated to 2 @4.00 × 1 @6.50 (the System received these stop orders in the below sequence):
Each of orders 1, 2 and 3 have a stop price less than the NBO, and will therefore be triggered by the 6.50 quote and enter the Book for execution or posting. A drill-through price for all three orders is set at the contra-side NBB of 5.00. Per proposed Rule 21.17(d)(3), the orders will go through the drill-through process as follows:
1. Order 1 will execute against Quote 1 @$5.00.
2. Orders 2 and 3 are posted to sell at $4.10 for the Exchange-determined time period.
3. Drill-through process continues for orders 2 and 3 until they are canceled or executed.
As amended, under Rule 21.17(d)(4), all Stop (Stop-Loss) and Stop-Limit orders elected as a result of the same election trigger (NBBO update or last sale price) will continue to use the same reference price for drill-through (even though they may have different stop prices).
The Exchange proposes to amend Rule 21.17(d)(3)(B),
The Exchange also proposes to add Rule 21.17(d)(3)(D)
Assume that the drill-through price buffer for a certain option series is $0.90, and that the following quotes are in the Book: Quote 1 (NBBO): 1 @5.00 × 1 @7.00; Quote 2: 2 @4.00 × 1 @8.00. The System receives the following orders in the below sequence:
During this time, Quote 2 is updated to: 2 @4.00 × 1 @6.50. Orders 1, 2, and 3 are elected, and the drill-through reference price for all three orders is set to contra-side NBB of 5.00.
1. Order 1 executes Quote 1 @$5.00.
2. Orders 2 and 3 are posted to sell @$4.10 (drill-through price) for the Exchange-determined time period.
3. Order 4 is elected due to updated best offer of $4.10, and joins Orders 2 and 3 at the iterative drill-through price of $4.10. The offer is updated to 4 @$4.10.
4. Order 5 (Sell 10 @Market (Day)) and Order 6 (Sell 1 @$4.05 Limit (Day)) enter the Book. Per proposed Rule 21.17(d)(3)(D), Orders 5 and 6 join the drill-through iteration at the drill-through reference price of $4.10, and the best offer is updated to 15 @$4.10.
5. The drill-through process continues for orders 2, 3, 4, 5, and 6 until the contracts are canceled or executed.
Because the proposed rule change may result in multiple orders going through the drill-through process at the same price and at the same time, the proposed rule change also describes how these orders will be prioritized and allocated when executing against resting interest or incoming interest. Specifically, proposed Rule 21.17(d)(3)(E)
Continuing from the above example, assume the drill-through process iterates to the next drill-through price, which would be $3.20. In doing so, Order 6 posts at its limit price of $4.05, and the rest of the orders are eligible to execute in time sequence against the resting $4.00 bid. Per proposed Rule 21.17(d)(3)(E), the orders will go through the drill-through process as follows:
1. Order 2 (Sell 1 @Market) will execute against Quote 2 @$4.00.
2. Order 3 (Sell 1 @$3.95) will execute against Quote 2 @$4.00.
3. The Quote 2 is exhausted, and the next best bid is Quote 1 for 5 @$3.00.
4. Remaining drill-through is Order 4 (Sell 2 @Market) and Order 5 (Sell 10 @Market). Market is now 5 @$3.00 × 12 @$3.20, and the drill-through process continues until these contracts are executed or cancelled.
If, prior to the next drill-through iteration, Order 7 (buy 5 @$3.25) is entered and executes against Orders 4 and 5 at $3.20, the allocation will depend on the allocation algorithm for the relevant class, under the amended Rule.
1. If pro-rata, Order 7 trades 1 contract against Order 4 and 4 contracts against Order 5.
2. If price-time, Order 7 trades 2 contracts against Order 4 and 3 contracts against Order 5.
3. Remaining size on Order 4 (if applicable) and Order 5 will continue to drill-through as described in previous examples.
The Exchange also proposes to amend Rule 21.17(d)(3)(F).
Finally, the Exchange proposes to add Rule 21.17(d)(3)(G) to specify that if an order(s) (or unexecuted portion(s)) is undergoing the drill-through process at the end of its last eligible trading session for that trading day (
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes the proposed rule change to enhance drill-through protections for simple orders and to make certain market orders eligible for drill-through protection will remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, protect investors, because it will provide these orders with additional and consistent execution opportunities and protections. The primary purpose of the drill-through price protection is to prevent orders from executing at prices “too far away” from the market when they enter the Book for potential execution. The Exchange believes the proposed rule change is consistent with this purpose, because Users who submit market orders with a Time-in-Force of Day will receive the same level of drill-through price protection against execution at potentially erroneous prices that is currently afforded to supermarketable limit orders while receiving the same additional execution opportunities. Supermarketable limit orders currently go through the drill-through process, and market orders with a Time-in-Force of Day are functionally similar to supermarketable limit orders. Therefore, the Exchange believes it is appropriate to provide both types of orders with the same price protection.
Further, the proposed rule change to provide that any new market and limit orders that would be subject to drill-through protection will join any in-progress drill-through iterations and display at the then-current drill-through price (and the corresponding changes regarding allocation and prioritization) allows new orders to receive the same level of price protection as other orders undergoing the drill-through process. The proposed rule change will allow all orders additional execution opportunities while continuing to protect them against execution at potentially erroneous prices. Similarly, the Exchange believes the proposed change to consider changes to the NBO (NBB) during drill-through and to update the drill-through price to such NBO (NBB) should it be lower (higher) than the drill-through price will further provide opportunity for execution at reasonable prices by capturing any market moves that may result in more aggressive prices.
The Exchange believes the proposal will enhance risk protections, the individual firm benefits of which flow downstream to counterparties both at the Exchange and at other options exchanges, which increases systemic protections as well. The Exchange believes enhancing risk protections will allow Users to enter orders and quotes with further reduced fear of inadvertent exposure to excessive risk, which will benefit investors through increased exposure to liquidity for the execution of their orders.
Additionally, the Exchange believes changes to specifically exclude from market order NBBO width and market order in no-bid series protections certain orders that would be subject to drill-through protection will remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, protect investors. Specifically, the Exchange believes the changes to exclude certain orders that would be subject to drill-through protection from market order NBBO width protections may reduce inadvertent rejection of such orders which may be purposely priced far away from the NBBO at the time of entry and may otherwise miss an opportunity for execution if immediately cancelled. The Exchange also believes the changes to exclude
The Exchange believes the proposed change to Rule 21.17(d)(4) will protect investors because it clarifies that if multiple Stop (Stop-Loss) and Stop-Limit orders are triggered by the same trade price or NBBO (even if the orders have different stop prices), and would execute or post to the Book, the System uses the contra-side NBBO that existed at the time the first order in sequence was entered into the Book as the drill-through price for all orders. The Exchange believes that the proposed rule change will bring greater transparency and clarity to the rulebook, thus benefitting investors.
Finally, the Exchange believes the proposed changes to specify what happens to orders undergoing drill-through at the end of a trading session will protect investors by adding transparency to the rules regarding the drill-through functionality and provide greater certainty as to the application of the drill-through process.
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 because the enhanced drill-through protection will apply to all marketable orders in the same manner. Additionally, it will provide the same price protection and execution opportunities to relevant market orders that are currently provided to supermarketable limit orders, which function in a similar 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. The proposed enhancement to the drill-through protection is consistent with the current protection and provides relevant market orders with improved protection against execution at potentially erroneous prices through drill-through price protection in accordance with User instructions. Additionally, the proposed rule change relates specifically to a price protection offered on the Exchange and how the System handles orders as part of this price protection mechanism.
The Exchange believes the proposed rule change would ultimately provide all market participants with additional execution opportunities when appropriate while providing protection from erroneous execution. The Exchange believes the proposal will enhance risk protections, the individual firm benefits of which flow downstream to counterparties both at the Exchange and at other options exchanges, which increases systemic protections as well. The Exchange believes enhancing risk protections will allow Users to enter orders and quotes with further reduced fear of inadvertent exposure to excessive risk, which will benefit investors through increased exposure to liquidity for the execution of their orders. Without adequate risk management tools, Members could reduce the amount of order flow and liquidity they provide. Such actions may undermine the quality of the markets available to customers and other market participants. Accordingly, the proposed rule change is designed to encourage Members to submit additional order flow and liquidity to the Exchange. Accordingly, the proposed rule change is designed to encourage Members to submit additional order flow and liquidity to the Exchange. The proposed flexibility may similarly provide additional execution opportunities, which further benefits liquidity in potentially volatile markets. In addition, providing Members with more tools for managing risk will facilitate transactions in securities because, as noted above, Members will have more confidence protections are in place that reduce the risks from potential system errors and market events.
Finally, the proposed clarifying changes are not intended to have any impact on competition, but rather codify current functionality to add transparency to the Rules.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
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.
Social Security Administration.
Notice of fee increase.
The Social Security Administration (SSA) is announcing a fee increase for the Consent Based Social Security Number (SSN) Verification (CBSV) service. We provide a fee-based SSN verification service to enrolled private businesses and government agencies who obtain a valid, signed consent form from the Social Security number holder.
Vivian Adebayo, Branch Chief, Office of Data Exchange, Policy Publications, and International Negotiations, Social Security Administration, 6401 Security Boulevard, Baltimore, Maryland 21235-6401, (866) 395-8801, email
For information on eligibility or filing for benefits, call SSA's national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit SSA's internet site, Social Security Online, at
Based on the consent forms, we verify the number holders' SSNs for the requesting party. The Privacy Act of 1974 (5 U.S.C. 552a(b)), section 1106 of the Social Security Act (42 U.S.C. 1306) and our regulation at 20 CFR 401.100, establish the legal authority for us to provide SSN verifications to third party requesters based on the written consent of the subject of the record. The CBSV process provides the business community and other government entities with consent-based SSN verifications in high volume. We developed CBSV as a user-friendly, internet-based application with safeguards that will protect the public's information. In addition to the benefit of providing high volume, centralized SSN verification services to the business community in a secure manner, CBSV provides us with cost and workload management benefits.
The primary reason for the fee increase is the declining volume in CBSV services. CBSV transactional volumes have decreased from 3.1 million transactions in FY 2021 to 2.1 million transactions in FY 2022. For FY 2023, we are projecting less than 1 million transactions based on current usage. Due to the significant decline in transactions, the per transaction costs are increasing. We will reevaluate transactional volumes in FY 2024. If the transaction volumes continue to decline, we will issue a subsequent notice to increase the CBSV fees again during FY 2024. We note that any unused advances and any fees collected in excess of our actual costs per transactions each year for CBSV services are refunded after the end of the fiscal year.
Social Security Administration (SSA).
Notice of a new matching program.
In accordance with the provisions of the Privacy Act, as amended, this notice announces a new matching program with the Bureau of the Fiscal Service (Fiscal Service), Department of the Treasury (Treasury). Under this matching program, Fiscal Service, Treasury will disclose savings security data to SSA. SSA will use the data to determine continued eligibility for Supplemental Security Income (SSI) applicants and recipients SSA will also use the data to determine the correct benefit amount for recipients and deemors who either did not report or who incorrectly reported their ownership of savings securities.
The deadline to submit comments on the proposed matching program is September 11, 2023. The matching program will be applicable on December 26, 2023, or once a minimum of 30 days after publication of this notice has elapsed, whichever is later. The matching program will be in effect for a period of 18 months.
You may submit comments by any one of three methods—internet, fax, or mail. Do not submit the same comments multiple times or by more than one method. Regardless of which method you choose, please state that your comments refer to Docket No. SSA-2023-0007 so that we may associate your comments with the correct regulation. Caution: You should be careful to include in your comments only information that you wish to make publicly available. We strongly urge you not to include in your comments any personal information, such as Social
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Interested parties may submit general questions about the matching program to Cynthia Scott, Division Director, Office of Privacy and Disclosure, Office of the General Counsel, Social Security Administration, G-401 WHR, 6401 Security Boulevard, Baltimore, MD 21235-6401, at telephone: (410) 966-1943, or send an email to
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Legal authority for the disclosure under this agreement for SSA to conduct this matching activity is contained in section 1631(e)(1)(B) and (f) of the Social Security Act (42 U.S.C. 1383(e)(1)(B) and (f)).
Tennessee Valley Authority (TVA).
60-Day notice of submission of information collection approval and request for comments.
The proposed information collection described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act of 1995. The Tennessee Valley Authority is soliciting public comments on this proposed collection.
Comments should be sent to the Public Information Collection Clearance Officer no later than October 10, 2023.
Requests for information, including copies of the information collection proposed and supporting documentation, should be directed to the Public Information Collection Clearance Officer: Jennifer A. Wilds, Specialist, Records Compliance, Tennessee Valley Authority, 400 W Summit Hill Dr., CLK-320, Knoxville, Tennessee 37902-1401.
Jennifer A. Wilds, Telephone (865) 632-6580 or by email at
The CUI Challenge Request Process is not intended to be used to address all disagreements regarding the proper designation of CUI. Authorized holders are encouraged to seek or utilize less formal means when resolving internal good faith disputes over the proper designation of information as CUI, such as discussion with the creator or designator of the information in dispute. Where resolution cannot be achieved through less formal means, the CUI challenge request process is available.
The CUI Challenge Request Process does not supersede any obligations under law or TVA policy to report information spills.
Tennessee Valley Authority (TVA).
30-Day notice of submission of information collection renewal approval with minor modifications and request to OMB.
Tennessee Valley Authority (TVA) provides notice of submission of this information clearance request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). The general public and other federal agencies are invited to comment. TVA previously published a 60-day notice of the proposed information collection reinstatement for public review June 5, 2023 and no comments were received.
The OMB will consider all written comments received on or before September 11, 2023.
Written comments for the proposed information collection reinstatement should be sent within 30 days of publication of this notice to
• The collections are voluntary;
• The collections are low-burden for respondents (based on considerations of total burden hours, total number of respondents, or burden-hours per respondent) and are low-cost for both the respondents and the Federal Government;
• The collections are non-controversial and do not raise issues of concern to other Federal agencies;
• The collections are targeted to the solicitation of feedback and input from respondents who have experience with the program or who may have experience with the program in the near future;
• Personally identifiable information (PII) is collected only to the extent necessary and will not be retained beyond the immediate need;
• Information gathered is intended to be used only internally for general service improvement and program management purposes and is not intended for release outside of the agency (if released, TVA will indicate the qualitative nature of the information);
• Information gathered will not be used for the purpose of substantially informing influential policy decisions; and
• Information gathered will yield qualitative information, and the collections will not be designed or expected to yield statistically reliable results or used as though the results are generalizable to the population of study. Feedback collected under this generic clearance provides useful information, but will not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. As a general matter, information collections will not result in any new system of records containing privacy information and will not ask questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval of a renewed collection. The collection involves the voluntary submission of information for registration of an Airman Knowledge Test as part of the FAA Airman Certification Process. The information collected is necessary to ensure compliance and proper registration of an individual for the necessary knowledge test for the certification or rating pursued by the individual.
Written comments should be submitted by September 11, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Ryan C. Smith by email at:
Airman Knowledge Tests are administered at approved Knowledge Testing Centers by an approved test proctor who is required to administer the appropriate Airman Knowledge Test to the individual pursuing FAA certification. Individuals taking an FAA Airman Knowledge Test must provide the following information to be collected in order to complete the registration process before the administration of the Airman Knowledge Test: Name, FAA Tracking Number (FTN), physical address, Date of Birth, email address, photo identification, phone number, test authorization (credentials of the individual such as an instructor endorsement), and previous number of test attempts.
The information provided by the individual is collected and stored electronically in the application used for test registration and delivery. This information is used to determine the identify and eligibility of the individual for compliance of FAA certification requirements.
Federal Highway Administration (FHWA), U.S. Department of Transportation.
Notice of limitation on claims for judicial review of actions by FHWA and other Federal agencies.
This notice announces actions taken by FHWA and other Federal agencies that are final. This final agency actions relate to a proposed trail project on and adjacent to the Rocky Flats National Wildlife Refuge (NWR) in Jefferson County, Colorado. The FHWA's Finding of No Significant Impact (FONSI) provides details on the proposed action.
By this notice, FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(
Tomasz Kubicz, Project Manager, Federal Highway Administration, Central Federal Lands Highway Division, 12300 W Dakota Avenue, Suite 380, Lakewood, Colorado 80228; telephone: (720) 963-3498, email:
Notice is hereby given that FHWA has taken a final agency action by issuing a FONSI and approving the Rocky Flats NWR Trails and Rocky Mountain Greenway Connections Project in Jefferson County, Colorado.
The project includes the construction of trails and two trail bridges on the Rocky Flats NWR and two road crossings with connecting trails adjacent to the Refuge. The U.S. Fish and Wildlife Service will construct the on-Refuge trails, which will be part of the regional Rocky Mountain Greenway trail system. The FHWA will construct the two trail bridges on the Refuge and the two road crossings and trails off the Refuge. The two road crossings consist of an underpass (concrete box culvert) at
The FHWA's action, related actions by other Federal agencies, and the laws under which such actions were taken, are described in the U.S. Fish and Wildlife Service's Environmental Assessment for Improved Visitor Access at Rocky Flats NWR, published in August 2020; the Service's FONSI, dated November 2020; FHWA's FONSI, dated August 2023; and other documents in the project file. The Service's EA and FONSI are available for download at
This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including by not limited to:
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Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of availability and request for comments.
This document provides the public with notice that on July 25, 2023, North County Transit District (NCTD) submitted a request to field test its new Crash Energy Management (CEM) Bi-Level cab cars that have been equipped with NCTD's Interoperable Electronic Train Management System (I-ETMS) technology. FRA is publishing this notice and inviting public comment on NCTD's request to test its positive train control (PTC) system.
FRA will consider comments received by August 30, 2023. FRA may consider comments received after that date to the extent practicable and without delaying implementation of valuable or necessary modifications to a PTC system.
Gabe Neal, Staff Director, Signal, Train Control, and Crossings Division, telephone: 816-516-7168, email:
In general, title 49 United States Code (U.S.C.) section 20157(h) requires FRA to certify that a host railroad's PTC system complies with title 49 Code of Federal Regulations (CFR) part 236, subpart I, before the technology may be operated in revenue service. On September 21, 2018, FRA certified NCTD's I-ETMS PTC system under 49 CFR 236.1015 and 49 U.S.C. 20157(h). Pursuant to 49 CFR 236.1035, a railroad must obtain FRA's approval before field testing an uncertified PTC system, or a product of an uncertified PTC system, or any regression testing of a certified PTC system on the general rail system.
Interested parties are invited to comment on NCTD's Test Request by submitting written comments or data. During its review of the test request, FRA will consider any comments or data submitted within the timeline specified in this notice and to the extent practicable, without delaying testing of valuable or necessary modifications to a PTC system.
In accordance with 49 CFR 211.3, FRA solicits comments from the public to better inform its decisions. DOT posts these comments, without edit, including any personal information the
Issued in Washington, DC.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice of actions on special permit applications.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations, notice is hereby given that the Office of Hazardous Materials Safety has received the application described herein.
Comments must be received on or before September 11, 2023.
Record Center, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, Washington, DC 20590.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Donald Burger, Chief, Office of Hazardous Materials Safety General Approvals and Permits Branch, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-13, 1200 New Jersey Avenue Southeast, Washington, DC 20590-0001, (202) 366-4535.
Copies of the applications are available for inspection in the Records Center, East Building, PHH-13, 1200 New Jersey Avenue Southeast, Washington, DC.
This notice of receipt of applications for special permit is published in accordance with part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
List of applications for modification of special permits.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations, notice is hereby given that the Office of Hazardous Materials Safety has received the application described herein.
Comments must be received on or before August 25, 2023.
Record Center, Pipeline and Hazardous Materials Safety Administration U.S. Department of Transportation Washington, DC 20590.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Donald Burger, Chief, Office of Hazardous Materials Safety General Approvals and Permits Branch, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-13, 1200 New Jersey Avenue Southeast, Washington, DC 20590-0001, (202) 366-4535.
Each mode of transportation for which a particular special permit is requested is indicated by a number in the “Nature of Application” portion of the table below as follows: 1—Motor vehicle, 2—Rail freight, 3—Cargo vessel, 4—Cargo aircraft only, 5—Passenger-carrying aircraft.
Copies of the applications are available for inspection in the Records Center, East Building, PHH-13, 1200 New Jersey Avenue Southeast, Washington, DC or at
This notice of receipt of applications for special permit is published in accordance with part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
List of applications for special permits.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations, notice is hereby given that the Office of Hazardous Materials Safety has received the application described herein.
Comments must be received on or before September 11, 2023.
Record Center, Pipeline and Hazardous Materials Safety Administration U.S. Department of Transportation Washington, DC 20590.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Donald Burger, Chief, Office of Hazardous Materials Safety General Approvals and Permits Branch, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-13, 1200 New Jersey Avenue Southeast, Washington, DC 20590-0001, (202) 366-4535.
Each mode of transportation for which a particular special permit is requested is indicated by a number in the “Nature of Application” portion of the table below as follows: 1—Motor vehicle, 2—Rail freight, 3—Cargo vessel, 4—Cargo aircraft only, 5—Passenger-carrying aircraft.
Copies of the applications are available for inspection in the Records Center, East Building, PHH-13, 1200 New Jersey Avenue Southeast, Washington, DC.
This notice of receipt of applications for special permit is published in accordance with part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).
Financial Crimes Enforcement Network (FinCEN), Treasury.
Notice and request for comments.
As part of its continuing effort to reduce paperwork and respondent burden, FinCEN invites comment on a renewal, without change, of existing information collection requirements concerning reports of foreign financial accounts and FinCEN Form 114, Report of Foreign Bank and Financial Accounts (FBAR). This request for comments is made pursuant to the Paperwork Reduction Act of 1995 (PRA).
Written comments are welcome and must be received on or before October 10, 2023
Comments may be submitted by any of the following methods:
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Please submit comments by one method only. Comments will be reviewed consistent with the PRA
FinCEN's Regulatory Support Section (RSS) at 1-800-767-2825 or electronically at
The legislative framework generally referred to as the Bank Secrecy Act (BSA) consists of the Currency and Foreign Transactions Reporting Act of 1970, as amended by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Public Law 107-56 (October 26, 2001), and other legislation, including the Anti-Money Laundering Act of 2020 (AML Act).
The BSA authorizes the Secretary of the Treasury (the “Secretary”),
Under 31 U.S.C. 5314, the Secretary “shall require a resident or citizen of the United States or a person in, and doing business in, the United States, to . . . keep records and file reports, when the resident, citizen, or person makes a transaction or maintains a relation for any person with a foreign financial agency.” The term “foreign financial agency” encompasses the activities found in the statutory definition of “financial agency,”
The regulations implementing 31 U.S.C. 5314 appear at 31 CFR 1010.350, 1010.306, and 1010.420. Section 1010.350 generally requires each U.S. person having a financial interest in, or signature or other authority over, a bank, securities, or other financial account in a foreign country to report such relationship to the Commissioner of Internal Revenue for each year such relationship exists, and to provide and report such information specified in a reporting form prescribed under 31 U.S.C. 5314. The FBAR is used to file the information required by this section and must be filed electronically with FinCEN.
The FBAR must be filed on or before April 15 of each calendar year for accounts maintained during the previous calendar year.
31 CFR 1010.420 outlines the recordkeeping requirements associated with foreign financial accounts required to be reported under section 1010.350. Specifically, filers must retain records of such accounts, to include type of account, account number, name of foreign financial institution maintaining the account, address of the foreign financial institution, and maximum value of the account during the calendar year, for a period of five years and make the records available for inspection as authorized by law.
The estimated average burden associated with the FBAR reporting and recordkeeping requirements will vary depending on the number of reportable foreign financial accounts and the applicability of special rules provided in the regulations which provide some relief from the full scope of the reporting obligations.
The information required to be reported on the FBAR is basic information U.S. persons will have received on account statements from the foreign financial institutions where the accounts are opened and maintained. Those statements will provide a U.S. person with the information needed to complete and file the FBAR. No special accounting or legal skills are necessary to transfer the basic information required to be reported, such as the name of the foreign financial institution, the type of account, and the account number, to the FBAR.
The special rules located at 31 CFR 1010.350(g) provide a variety of relief to FBAR filers by (1) limiting the information reported in the FBAR to the number of accounts and certain other basic identifying information, if the filer has a financial interest in, or signature or other authority over, 25 or more reportable accounts; (2) allowing for entities to file consolidated FBARs on their own behalf and on behalf of entities for which they have a direct or indirect ownership interest of over 50 percent; and (3) exempting reporting of foreign financial interest in accounts involving certain trust and retirement plans. However, filers reporting financial interest in, or signature authority over, 25 or more foreign financial accounts are required to maintain a record of the detailed account information on each of their foreign financial accounts, including the account number, the name of the foreign financial institution that holds the account, the address of the foreign financial institution, the maximum value of the account during the calendar year, and the type of account.
For the reasons noted above, FinCEN estimates that the approximate FBAR reporting burden will vary depending on the number of reportable foreign financial accounts and will range from approximately 20 minutes to 90 minutes. FinCEN estimates the average reporting burden per FBAR filer will be 55 minutes.
Past estimates of the FBAR recordkeeping requirement took into account time to store paper copies of the FBAR form and estimated that the approximate recordkeeping burden was 30 minutes. Since 2011, FBARs have been filed electronically. Electronically filing the FBAR allows a filer to save an electronic copy of the report, which satisfies the recordkeeping part of the requirement. FinCEN estimates it would take a filer five minutes to save an electronic copy of the FBAR. In addition to maintaining a copy of the form, those filers who take advantage of the special rules related to financial interests in or signature authority over 25 or more accounts would be required to respond to requests for detailed information on those accounts. However, FinCEN believes that in most cases, such information would be maintained by filers in the ordinary course of business in the form of periodic account statements and other business records which would be maintained mostly electronically. There is no requirement in the FBAR regulations to maintain such information in any particular format.
For these reasons, FinCEN estimates that the FBAR recordkeeping burden will be approximately five minutes.
FinCEN estimates the total annual reporting and recordkeeping burden per FBAR filer will be one hour (55 minutes for FBAR reporting, and five minutes for FBAR recordkeeping).
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. Records required to be retained under the BSA must be retained for five years.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on: (i) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (ii) the accuracy of the agency's estimate of the burden of the collection of information; (iii) ways to enhance the quality, utility, and clarity of the information to be collected; (iv) 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; and (v) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Departmental Offices, U.S. Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The public is invited to submit comments on these requests.
Comments should be received on or before September 11, 2023 to be assured of consideration.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of the submissions may be obtained from Melody Braswell by emailing
Notice; amended.
The Department of Veterans Affairs (VA), Office of Public and Intergovernmental Affairs (OPIA), Office of Tribal Government Relations (OTGR), is seeking nominations of qualified candidates to be considered for appointment as a member of the Advisory Committee on Tribal and Indian Affairs (“the Committee”) to represent the following Indian Health Service (IHS) Areas: Bemidji; California; Great Plains; Nashville; Navajo; Tucson.
Nominations for membership on the Committee must be received no later than 5 p.m. EST on August 21, 2023.
All nomination packages (Application, should be mailed to the Office of Tribal Government Relations, 810 Vermont Ave. NW, Suite 915H (075), Washington, DC 20420 or emailed to:
Ms. Stephanie Birdwell and/or Mr. Peter Vicaire, Office of Tribal Government Relations, 810 Vermont Ave. NW, Ste 915H (075), Washington, DC 20420. A copy of the Committee charter can be obtained by contacting
In carrying out the duties set forth, the Committee responsibilities include, but are not limited to:
(1) Identify for the Department evolving issues of relevance to Indian Tribes, Tribal organizations and Native American Veterans relating to programs and services of the Department;
(2) Propose clarifications, recommendations and solutions to address issues raised at Tribal, regional and national levels, especially regarding any Tribal consultation reports;
(3) Provide a forum for Indian Tribes, Tribal organizations, urban Indian organizations, Native Hawaiian organizations and the Department to discuss issues and proposals for changes to Department regulations, policies and procedures;
(4) Identify priorities and provide advice on appropriate strategies for Tribal consultation and urban Indian organizations conferring on issues at the Tribal, regional, or national levels;
(5) Ensure that pertinent issues are brought to the attention of Indian Tribes, Tribal organizations, urban Indian organizations and Native Hawaiian organizations in a timely manner, so that feedback can be obtained;
(6) Encourage the Secretary to work with other Federal agencies and Congress so that Native American Veterans are not denied the full benefit of their status as both Native Americans and Veterans;
(7) Highlight contributions of Native American Veterans in the Armed Forces;
(8) Make recommendations on the consultation policy of the Department on Tribal matters;
(9) Support a process to develop an urban Indian organization confer policy to ensure the Secretary confers, to the maximum extent practicable, with urban Indian organizations; and
(10) With the Secretary's written approval, conduct other duties as recommended by the Committee.
(1) At least one member of each of the 12 IHS service areas is represented in the membership of the Committee nominated by Indian Tribes or Tribal organization.
(2) At least one member of the Committee represents the Native Hawaiian Veteran community nominated by a Native Hawaiian Organization.
(3) At least one member of the Committee represents urban Indian organizations nominated by a national urban Indian organization.
(4) Not fewer than half of the members are Veterans, unless the Secretary determines that an insufficient number of qualified Veterans were nominated.
(5) No member of the Committee may be an employee of the Federal Government.
In accordance with Public Law 116-315, the Secretary determines the number and terms of service for members of the Committee, which are appointed by the Secretary, except that a term of service of any such member may not exceed a term of two years. Additionally, a member may be reappointed for one additional term at the Secretary's discretion.
(1) Diversity in professional and personal qualifications;
(2) Experience in military service and military deployments (please identify your Branch of Service and Rank);
(3) Current work with Veterans;
(4) Committee subject matter expertise; and
(5) Experience working in large and complex organizations.
Nominations should be typewritten (one nomination per nominator). Nomination package should include: (1) a letter of nomination that clearly states the name and affiliation of the nominee, the basis for the nomination (
The individual selected for appointment to the Committee shall be invited to serve a two-year term. All members will receive travel expenses and a per diem allowance in accordance with the Federal Travel Regulations for any travel made in connection with their duties as members of the Committee.
The Department makes every effort to ensure that the membership of its Federal advisory committees is balanced in terms of points of view represented and the committee's function. Every effort is made to ensure that a broad representation of geographic areas, males & females, racial and ethnic minority groups, and Veterans with disabilities are given consideration for membership. Appointment to this Committee shall be made without discrimination because of a person's race, color, religion, sex (including gender identity, transgender status, sexual orientation, and pregnancy), national origin, age, disability, or genetic information. Nominations must state that the nominee is willing to serve as a member of the Committee and appears to have no conflict of interest that would preclude membership. An ethics review is conducted for each selected nominee.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
Veteran's Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before October 10, 2023.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Maribel Aponte, Office of Enterprise and Integration, Data Governance Analytics (008), 810 Vermont Ave. NW, Washington, DC 20006, (202) 266-4688 or email
Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
Title 38 U.S.C. 1310, 1313, 1542, and 101(4) provide for payment of death pension or dependency and indemnity compensation (DIC) to an eligible veteran's child when there is not an eligible surviving spouse and the child is between the ages of 18 and 23 and attending school. Until the child reaches the age of majority, payment is made to a custodian or fiduciary on behalf of the child. An unmarried schoolchild who is not incompetent is entitled to begin receiving direct payment on the age of majority. Regulatory authority is found in 38 CFR 3.403, 3.667, and 3.854.
Form Letter 21P-863 is used to gather the necessary information to determine a schoolchild's continued eligibility to VA death benefits and eligibility to direct payment at the age of majority. If the collection were not conducted, VA would have no means of determining a child's current address, marital status, and school attendance. Without this information, continued entitlement to death benefits and eligibility for direct payment at the age of majority could not be determined, and proper payment would not be made. This is an extension only with no substantive changes and the respondent burden has not changed.
By direction of the Secretary.
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 Former Prisoners of War (ACFPOW) will conduct a hybrid meeting (in-person and virtual) on August 30, 2023 and August 31, 2023 at various times and multiple locations in Washington, DC. The meeting sessions will begin and end as follows:
Public participation will commence as follows:
Sessions are open to the public, except when the Committee is conducting a tour of VA facilities. Tours of VA facilities are closed, to protect Veterans' privacy and personal information, by 5 U.S.C. 552b(c)(6).
The purpose of the Committee is to advise the Secretary of Veterans Affairs on the administration of benefits under title 38 U.S.C., for Veterans who are Former Prisoners of War (FPOW), and to make recommendations on the needs of such Veterans for compensation, health care and rehabilitation.
On Wednesday, August 30th, the Committee will assemble in open session from 8:00 a.m. to 4:00 p.m. for discussion and briefings from senior leadership with Veterans Affairs Central Office, Veterans Benefits Administration and Veterans Health Administration officials.
On Thursday, August 31st, the Committee will assemble in open session from 9:00 a.m. to 10:30 a.m. for discussion and briefings from VA Washington DC Healthcare and the Baltimore Regional Office officials. The Committee will then convene a closed session from 11:00 a.m.-1:00 p.m. to tour the Washington DC VA Medical Center in conjunction with lunch.
Any member of the public wishing to attend the meeting or seeking additional information should contact, Designated Federal Officer, Department of Veterans Affairs, Advisory Committee on Former
Any member of the public who wishes to participate in the virtual meeting may use the following Cisco Webex Meeting Links:
Copyright Royalty Board, Library of Congress.
Final rule and order.
The Copyright Royalty Judges announce their final determination after remand of the rates and terms for making and distributing phonorecords for the period beginning January 1, 2018, and ending on December 31, 2022.
The final determination after remand is posted in eCRB at
Anita Brown, CRB Program Assistant, (202) 707-7658,
On October 26, 2020, the United States Court of Appeals for the D.C. Circuit (D.C. Circuit) issued its mandate vacating and remanding in part the original Determination
After receipt of the D.C. Circuit's ruling and mandate, the Judges consulted with the parties to the appeal and established procedures for the remand proceeding.
At the request of the parties, the Judges agreed to forego live testimony. On March 8, 2022, all parties were afforded an opportunity to present oral argument on all remand issues.
In the Initial Ruling, the Judges directed the parties to attempt to submit jointly agreed-upon regulatory provisions implementing the Initial Ruling for the Judges to consider. The Judges further ruled that, if the parties could not agree on all the regulatory language, they should make separate submissions regarding regulatory provisions in dispute.
The parties agreed to many regulatory provisions but disagreed as to several such provisions. Accordingly, they filed separate submissions and respective replies regarding the regulatory provisions. Services' Joint Submission of Regulatory Provisions (July 18, 2022); Copyright Owners' Submission of Regulatory Provisions to Implement the Initial Ruling (July 18, 2022); Services' Joint Response to Copyright Owners' Submission of Regulatory Provisions (Aug. 5, 2022); Copyright Owners' Response to Judges' July 27, 2022 Order Soliciting Responses Regarding Regulatory Provisions (Aug. 5, 2022).
The Judges considered those submissions and entered an order addressing the disputed regulatory provisions.
On November 30, 2022, the parties filed a Joint Submission in which they provided joint regulatory language no longer in dispute that applied the binding rulings of the Judges and the D.C. Circuit.
Having considered the parties' submissions (including the Joint Submission), the Initial Ruling, and all other pertinent material, the Judges adopted the several TCC rates set forth in the Phonorecords II-based benchmark as proposed by the Services.
Based on the entirety of the record, the Judges adopt
On the basis of the foregoing, the Judges propound the rates and terms described in this Final Determination After Remand for the period January 1, 2018, through December 31, 2022.
On October 26, 2020, the United States Court of Appeals for the D.C. Circuit (D.C. Circuit) issued its mandate vacating and remanding in part the Determination
After receipt of the D.C. Circuit's ruling and mandate, the Judges consulted with the parties to the appeal and established procedures for the remand proceeding.
At the request of the parties, the Judges agreed to forego live testimony. On March 8, 2022, all parties were afforded an opportunity to present oral argument on all remand issues.
After due consideration of all of the evidence and oral argument of counsel, the Judges
(1) With regard to the applicable rates and rate structure, the percent-of-revenue all-in headline royalty rate for the mechanical license shall be set at 15.1%, phased-in, as set forth below:
In all other respects, the rates and rate structure of the
To be clear: the 15.1% headline percentage rate substitutes for the headline percentage rates in subparts B and C of the Services
(2) The Services'
(3) To reiterate for clarity, consistent with the adoption of the
As a preliminary matter, the Judges address the issue of burden of proof raised by both parties. Pursuant to the Administrative Procedure Act (APA), “the proponent of a rule or order has the burden of proof.” 5 U.S.C. 556(d).
However, Copyright Owners assert that it is
Accordingly, the Judges find that Copyright Owners indeed do bear the burden of proof with regard to the appropriateness of uncapped rate structure and rates they are proposing on remand and the Services bear the burden of proof with regard to the appropriateness of the Phonorecords II-based benchmark they are continuing to advance on remand.
In establishing a royalty rate structure and the rates within it in the context of this remand proceeding, the Judges are guided by the rulings in
The D.C. Circuit noted that the Judges found the royalties in the
The D.C. Circuit found fault, however, in the Judges' determination to establish an uncapped and increased percentage-based total content cost (TCC).
While the Services had advocated uncapping the TCC alternative rate prong for some categories of service, that “does not mean they anticipated that the [Judges] would uncap the total content cost prong
To support their adoption of an uncapped TCC rate prong, the Judges “predicted that the sound recording copyright owners' royalty rates would naturally decline in the course of their negotiations with interactive streaming services.”
The D.C. Circuit concluded that, on remand, if and when the Judges consider the “uncapped” rate structure, they shall address all substantive challenges to that approach raised by the Services, including the issue of whether “an increase in mechanical license royalties would lead to a decrease in sound recording royalties.”
Thus, the D.C. Circuit held, the Judges erred procedurally in adopting an uncapped TCC alternative rate prong. The D. C. Circuit therefore instructed the Judges to provide the parties with the opportunity to fully address the issues regarding the uncapped TCC prong, and for the Judges to address the “substantive challenges” raised by the Services.
The statutory standard found in section 801(b)(1) instructs the Judges to set rates that are not only “reasonable,” but also reflective of four itemized objectives, or factors, which, as the D.C. Circuit stated, set forth “competing priorities.” 17 U.S.C. 801(b)(1)(A)-(D);
With regard to the other three objectives,
Within the parameters of the holdings in
After the Determination was issued, from its effective inception on January 1, 2018, through September 30, 2020—a 33-month period—the parties operated under the rates and rate structure set forth in that ruling. In light of the D.C. Circuit's decision in
According to the Services, [REDACTED]. [REDACTED]. Moreover, according to the Services, [REDACTED]. The Services further maintain that, [REDACTED].
The Services make the [REDACTED]. And, [REDACTED]. Id. ¶¶ 5, 9-13, 16-19, 22-23, 26-27.
The Services claim that [REDACTED]. More particularly, [REDACTED].
[REDACTED]. [REDACTED].
The Services' economic experts rushed to judgment upon learning of these facts, claiming that they disproved the seesaw theory.
Copyright Owners analyzed the royalty data over the same 33-month period (January 2018 through September 2020) and reach the opposite conclusion. One of their economic expert witnesses, Dr. Jeffrey Eisenach, testified that [REDACTED]. Moreover, he opined that [REDACTED].
Based on this analysis, Professor Watt declares empirical vindication of his seesaw theory. Watt RWRT ¶¶ 41-42, 46 (“The [Judges'] bargaining theory insights about the relationship between royalty rates were correct. . . . [REDACTED]. . . .”).
The Judges are perplexed by the willingness of the expert economic witnesses on both sides to opine that the rate changes from January 2018 through September 2020 can serve as confirmation of their clients' respective positions. The issue to be considered empirically was whether the sound recording rate would decrease in response to the increase in the mechanical rate. That is, if the record labels had previously set royalties at a level that would allow the Services merely to survive, would the record labels agree to lower their sound recording rate if more of the Services' surplus were acquired by Copyright Owners? To answer this question, the economists on both sides applied sophisticated bargaining models and critiques to explain the nature of the negotiations that would ensue.
In the process, the economists lost track of an obvious, elementary point: The
Moreover, no party called as a witness any representatives of the Majors, or subpoenaed their testimony or documents, to provide the Judges with evidence of how these record companies perceived the seesaw issue, whether as a permanent phenomenon or as an uncertain matter, given the pendency of the legal proceedings regarding the ultimate mechanical rate. Any of the parties could have requested that the Judges subpoena a sound recording industry witness to give testimony and produce documents as to this issue, pursuant to 17 U.S.C. 803(b)(6)(C)(ix), but none did so. Further, Copyright Owners, who are representing the music publishing interests of
Simply put, the period from period from January 2018 through September 2020 was a time the Judges construe as “33-months of uncertainty,”
Accordingly, the Judges place no weight on the purported changes or stability of the sound recording rates during the
In their initial remand submission, Copyright Owners provided no new evidence to support any aspect of the 15.1% revenue-based rate (or for that matter, any new evidence to support the rates or rate structure in the Determination), and elected to rely on the pre-remand record. In fact, in their initial remand submission, Copyright Owners do not so much as mention the 15.1% revenue rate derived by the Judges. However, in their reply remand submission (which the Judges found also to constitute, in part, a substantive
Thereafter, Copyright Owners asserted that the D.C. Circuit's affirmance of the
In their initial submission after the remand, the Services objected to any continued application by the Judges of the 15.1% revenue rate because, “as the Majority acknowledged, this particular division of revenues will never happen in the real world because of the complementary oligopoly power of the record labels.” Services' Joint Opening Brief (in Services' Joint Written Direct Remand Submission at Tab D) at 52 (“Services' Initial Submission”) (Apr. 1, 2021). More particularly in this regard, the Services note that Professor Marx's Shapley Value Model,
By this approach, the Services maintain, “the Majority awarded the Copyright Owners the full 15.1% of revenue dictated by its model (phased in over time), and left it up to the Services to convince the complementary oligopolist major labels to dramatically lower sound recording rates.”
Alternatively, the Services propose, through Professor Marx's post-remand written testimony, that the Judges now adopt “a more balanced, burden-sharing approach” to address what she described as the Majority's “imbalance” problem.
Professor Marx engages in an analysis based on the following math and logic (again, using the [REDACTED]% sound recording rate as an example of the fixed amount taken by the labels): (1) [REDACTED]% of the streaming revenues remain available to be split between the services and the musical works copyright owners; (2) adding the 15.1% revenue rate and her [REDACTED]% revenue retention percentage equals [REDACTED]%; and (3) the 15.1% revenue rate, as a percent of this [REDACTED]%, is [REDACTED]%; and (4) [REDACTED]% of the [REDACTED]% available for splitting between the services and the musical works copyright owners is [REDACTED]% (rounded).
Thus, she identifies her version of a “fair” result: The Services and Copyright Owners would split the residual revenue remaining after the labels have exercised their complementary oligopoly power to take an outsized fixed share—with the split proportional to the 15.1%-to-[REDACTED]% revenue amounts calculated respectively by the Judges (the 15.1% musical works rate) and Professor Marx (the [REDACTED]% service revenue retention).
In their final post-remand submission, the Services also flatly state: “[T]he D.C. Circuit did not “affirm” the 15.1% rate—it vacated that rate.” Services' Joint Rebuttal Brief Addressing the Judges' Working Proposal at 2 (Feb. 24, 2022) (“Services' Additional Submission”). However, the Services do not support that quoted statement with any citation to
The Judges determine that they are clearly bound by the D.C. Circuit's decision in
First, the Judges conclude that the D.C. Circuit's decision in
Second, when the D.C. Circuit reviewed the Determination, it applied “the same standards set forth in the Administrative Procedure Act, 5 U.S.C. 706.”
Here, the D.C. Circuit explicitly found that the Judges' analysis and findings in connection with the 15.1% revenue rate are
Third, the Judges note that
The clarity of the D.C. Circuit's affirmance of the royalty rate of 15.1% for the percent-of-revenue prong moots the issue of whether Professor Marx's attempt, described
More particularly, the sound recording royalty rates she posits ([REDACTED]%, [REDACTED]% and [REDACTED]%) are all functions of the sound recording companies' understanding of the Services' non-content costs (costs that the Services must recover out of retained revenues in order to remain in operation,
Alternately stated, when Professor Marx hypothesizes a given sound recording royalty rate in column 1 of Figure 8 in her WDRT, that rate is assumed, by the logic of the complementary oligopoly theory, to have already allowed the services to cover only their non-content costs and musical works royalties, as understood by the record labels. So, her assumed rate in column 1 is not a fixed parameter, but rather an independent variable, which is a function of,
Moreover, the defect in Professor Marx's attempt to remedy the so-called “imbalance” problem is a consequence of the statutory licensing and royalty scheme. To recap, the licensing of content used by the interactive services is bifurcated. The sound recording royalties paid by the interactive services to the record labels are not regulated, and complementary oligopoly power exists in that market, inflating sound recording royalty rates above an effectively competitive level.
Accordingly, any attempt by the Judges to reduce the mechanical royalty rate in order to allow the Services to retain more of the surplus would fail; it would be like pouring water into a bucket with a siphon at its base. More water would not remain in the bucket, but rather would accumulate wherever the siphon leads—in this case, to the record labels. The Judges could keep mechanical royalty rates depressed and allow this to occur, but that would harm Copyright Owners while providing no relief to the Services. And despite the old adage that “misery loves company,” the Judges detect no directive under section 801(b)(1) that they harm Copyright Owners without providing a gain for the interactive streaming services—and that they provide a windfall for the record labels, to boot.
Although Professor Marx's attempt to reduce the Services' “misery” by sharing it with Copyright Owners is unavailing, the statutory scheme and market forces do appear to combine to mitigate the burden created by the complementary oligopoly power of the sound recording companies. If interactive streaming revenue were to grow over the rate period,
The Services and Copyright Owners recognize the mitigation of harm to the Services generated by these facts (although they may well disagree with the Judges' application of these facts). During colloquy with counsel for Pandora and Spotify during closing arguments on remand, the Judges asked why they should in essence apply the “misery loves company” adage:
[JUDGE STRICKLER] [T]he problem is . . . the sound recording [rates] are unregulated in the interactive market . . . . Congress did not want that to be controlled at all. So every time I see . . . the services' argument about how we have [to] set a rate that's fair even though there's this ability of the sound recording [companies] to take more, my margin note is always this: “Are they arguing that ‘misery loves company?’ ” [W]hy shouldn't that misery be shared with Copyright Owners? . . . Isn't that really Professor Marx's argument in her proposed split . . . using the 15.1 percent figure . . . ?
[COUNSEL] [Regarding] Judge Strickler['s] . . . “misery loves company” issue. . . . I think . . . the way [Judge Strickler] put it during the trial was, even if I thought rates needed to come down, how would that help you; wouldn't the labels just take all that surplus for themselves based on their complementary oligopoly power? . . . . I want[ ] to address it right off the bat . . . . in open session.
Relat[ed] to . . . the seesaw . . . our point is that
[JUDGE STRICKLER]
[COUNSEL]
Similarly, on this topic, Copyright Owners' counsel accurately characterized the Judges' adoption of the static 15.1% Shapley-based rate as the inevitable consequence of “regulatory lag,” that requires a regulator to keep a rate constant over the statutory term because there is no sufficient data to project future rates.
Thus, dynamic changes going forward in the rate term are embodied in the 15.1% revenue rate, and dynamic market expectations are incorporated in the modeling data used to establish that rate.
Finally, the Judges consider the impact of Factors A-D of section 801(b)(1) in connection with the setting of the revenue percentage rate of 15.1%.
With regard to Factors B and C,
Accordingly, the Judges find it would be substantively unwarranted to engage in any new consideration on remand of the impact, if any, of Factors B and C on the otherwise reasonable 15.1% revenue rate.
The final itemized statutory factor—Factor (D)—instructs the Judges to consider the “competing priority” of “minimiz[ing] any disruptive impact on the structure of the industries involved and on generally prevailing industry practices.” 17 U.S.C. 801(b)(1)(D). As with Factors B and C, even if Johnson were construed to allow the Judges to revisit this issue on remand with respect to the 15.1% revenue rate, the Judges would not change the Majority analysis or findings. In the Determination, the Judges adopted the following interpretation of this standard set forth in previous determinations:
[T]he Judges reiterated their understanding of Factor D, concluding that a rate would need adjustment under Factor D if that rate directly produces an adverse impact that is substantial, immediate and irreversible in the short-run because there is insufficient time for either [party] to adequately adapt to the changed circumstance produced by the rate change and, as a consequence, such adverse impacts threaten the viability of the music delivery service currently offered to consumers under this license.
Also, in order to minimize any economic disturbance to the Services' businesses, the Majority decided to phase-in the 15.1% rate over the five-year rate term, setting annual percent-of-revenue rates as follows: 11.4% in 2018; 12.3% in 2019; 13.3% in 2020; and 14.2% in 2021, before the full 15.1% rate became effective in 2022 the final year of the rate term.
On remand, the Services have not made any argument that the rate structure or rates set by the Majority were “disruptive under this standard.”
For the forging reasons, the Judges do not disturb the Majority's finding that the percent-of-revenue rate at 15.1%, phased-in annually over the rate period, constitutes a “reasonable” rate under section 801(b)(1) to be used as the statutory rate for the 2018 to 2022 period.
The Determination set forth the following two primary reasons for adopting a “greater-of' rate structure that also included an uncapped TCC rate prong:
First, the use of an uncapped TCC metric is the most direct means of implementing a key finding . . . by the experts for participants on both sides in this proceeding: the ratio of sound recording royalties to musical works royalties should be lower than it is under the current rate structure. Incorporating an uncapped TCC metric into the rate structure permits the Judges to influence that ratio directly.
Second, an uncapped TCC rate prong effectively imports into the rate structure the protections that record companies have negotiated with services to avoid the diminution of revenue.
Copyright Owners claim that the uncapped TCC prong should be adopted. They contend that the D.C. Circuit remand was merely “procedural” rather than substantive, and the Judges thus are not precluded from readopting the uncapped TCC prong in this remand proceeding. CO Initial Submission at 35-38 (and record citations therein).
They further contend that the uncapped TCC prong was adopted to provide protection against revenue deferment and displacement occasioned by the Services choosing to elevate the growth of subscribers and other listeners over revenue maximization.
Copyright Owners argue that the uncapped TCC prong should be adopted because: (1) the Services have not shown any actual or threatened “disruption” or other harm resulting from the uncapped TCC prong during the 33-month period; (2) the Services actually experienced “unprecedented growth and profit” during this period; and (3) the Services paid lower percentages of revenues in mechanical and total royalties when the uncapped TCC prong was in effect. Copyright Owners' Reply Brief on Remand at 34-48 (and record citations therein).
Relatedly, according to Copyright Owners the Services' argument that the “see-saw” effect is unsupported by empirical evidence has collapsed, given the evidence relating to market performance. Further Copyright Owners maintain that this argument is irrelevant to the rate structure issue.
The Services argue on remand that the uncapped TCC rate prong must be rejected. The Services reject the “seesaw” theory claiming it is disproved by the experience of the parties during the 33-month period. Services' Joint Opening Brief at 48-49; Services' Joint Supplemental Brief at 7-13 (Nov. 15, 2021) (and record citations therein). The Services further contend that Copyright Owners have disavowed the “seesaw” theory as understood by the Majority. The Services allege that Copyright Owners now claim that the theory was nothing more than “a nod” to certain “core principles” of bargaining theory, rather than a specific prediction of a commensurate inverse relationship between increases in the mechanical royalty rate and decreases in the sound recording royalty rate. Services' Joint Supplemental Brief at 2, 5-7 (and record citations therein).
With regard to the uncapped TCC rate prong, the Services assert that Copyright Owners have not even attempted to demonstrate—nor could they demonstrate—that the uncapped TCC rate prong is consistent with all four statutory objectives set forth in section 801(b)(1). Services' Joint Reply Brief at 1, 3-4, 33-34 36 (July 2, 2021) (“Services' Reply”);
Finally, the Services contend that Copyright Owners have failed to explain their self-contradictory pre-remand argument that “an uncapped TCC prong `does nothing to protect Copyright Owners from the Services' revenue
The Judges conclude that the D.C. Circuit affirmed the Majority's
In fact, both rate prongs were indeed derived from the same analyses.
It is also clear from
When it came to . . . the ratio of sound recording to musical work royalties that Gans derived from his analysis the [CRB Judges] specifically found . . . reasonable Gans' equal value assumption [for dividing the Shapley surplus . . . between sound recording and musical works owners] and his reliance on Goldman Sachs' profit projections.
However, it is equally clear that the D.C. Circuit
This is no mere formality. Interested parties' ability to provide evidence and argument bearing on the essential components and contours of the [Judges'] ultimate decision not only protects the parties' interests, it also helps ensure that the [Judges'] ultimate decision is well-reasoned and grounded in substantial evidence. . . .
The Streaming Services separately challenge the uncapped rate structure as
Because the procedural infirmity precluded the D.C. Circuit from deciding whether the Majority's decision was “well-reasoned and grounded in substantial evidence,” there also can be no substantive presumption of the appropriateness of the uncapped TCC rate prong, as suggested by Copyright Owners. To the contrary, the D.C. Circuit's opinion makes it clear that on remand the Judges must engage in a fresh consideration of the statutory appropriateness,
Accordingly, although Copyright Owners correctly assert that
Two substantive issues are implicated raised with regard to the issue of reasonableness: (1) whether the “seesaw” theory is valid; and (2) if it is valid, whether there exist sufficient data to support the phased-in 26.2% uncapped TCC rate.
The D.C. Circuit described the Shapley Value Model methodology:
The Shapley methodology is a game theory model that seeks to assign to each market player the average marginal value that the player contributes to the market. This methodology first determines the costs that
The Shapley value gives each player his average marginal contribution to the players that precede him, where averages are taken with respect to all potential orders of the players. The Shapley value approach models bargaining processes in a free market by considering all the ways each party to a bargain would add value by agreeing to the bargain and then assigns to each party their average contribution to the cooperative bargain. The idea of the Shapley value is that each party should pay according to its average contribution to cost or be paid according to its average contribution to value. It embodies a notion of fairness. The Shapley model is a game theory model that is ultimately designed to model the outcome in a hypothetical `fair' market environment. It is closely aligned to bargaining models, when all bargainers are on an equal footing in the process.
To apply a Shapley Value Model in a rate proceeding, the economic modeler must obtain usable cost and revenue data to be inputted into the model. More particularly for this proceeding, the modeler must identify the parties' input costs, including the Services' non-content costs, and the revenue derived from interactive streaming.
Professor Gans, Copyright Owners' expert, utilized royalty and profit interactive streaming data for record companies and music publishers that he obtained from “a [then] recent music industry equity analysis report,” namely, a Goldman, Sachs Equity Research report dated October 4, 2016 entitled “Music in the Air, Stairway to Heaven.” Gans WDT ¶ 76 & n.39. As the Majority summarized Professor Gans's approach, “[h]e found that, for the music publishers to recover their costs and achieve profits commensurate with those of the record companies under his approach,
Regarding Professor Gans's Shapley-inspired analysis, the Majority stated:
[T]he Judges find the
Professor Marx constructed two Shapley Value Models, one of which was relied upon by the Majority. In the model credited by the Majority, Professor Marx assumed one collective owner of sound recording copyrights and one collective owner of musical works. She also assumed the presence of a single interactive service.
Copyright Owners criticized Professor Marx's decision to assume in her model only one interactive streaming service, rather than the multiple services that actually existed. They contend that assumption reduced the market power of the licensors in her model. According to Copyright Owners' economic experts, Professor Marx's approach was a misuse of the Shapley Value Model. They aver that the Shapley Value approach is intended only to eliminate from the rate derivation the bargaining ability of a “Must Have” input supplier (like the sound recording companies and Copyright Owners) to “hold-out” and thus squeeze licensees for higher royalties. By modeling every possible “arrival ordering,” they contend, the “hold-out” problem is avoided. They further contend that Professor Marx misconstrued the purpose of the Shapley approach by wrongly modeling market participants in a manner that significantly reduced the actual market power of these “Must Have” input suppliers. Determination at 66-67.
The Majority agreed with Professor Marx. The two Judges in the Majority found that her modeling reasonably “attempts to eliminate a separate factor—market power—that she asserts renders a market-based Shapley Analysis incompatible with the objectives of Factors B and C of section 801(b)(1).”
Although the Majority ultimately relied upon Professor Marx's modeling in this regard, the Majority found that her data inputs were problematic. Determination at 65. Specifically, Professor Marx relied on 2015 data from Warner/Chappell and Warner Music Group for music publisher sound recording company noncontent costs, respectively. The Majority found that 2015 data was less probative than 2016 data and understated the percentage of revenue to be paid to the two classes of content providers. However, the Majority ultimately found only that this one-year older data served to “understate” the allocation of surplus to the upstream content providers, and thus rejected only her lower [REDACTED]% bound for total royalties, The Majority did decide to adopt her upper bound of [REDACTED]% value for total royalties, which could (and ultimately did) “constitute a lower bound for total royalties in computing a royalty rate,” applied by the Majority in order to make a downward adjustment to offset the complementary oligopoly effect of “Must Have” inputs.
Professor Richard Watt was called by Copyright Owners as a rebuttal witness at the hearing, for the purpose of reviewing Professor Marx's WDT. Watt WRT ¶ 3. He concluded that Professor Marx's Shapley Value Model contains important methodological and data
Professor Watt also criticized her Shapley Value Model for failing to incorporate the fact that “the different interactive streaming companies—Spotify, Apple Music, Rhapsody/Napster, Google Play Music, Amazon, etc.—do all compete (and rather fiercely) among themselves, offering (perhaps perfectly) substitutable services.”
Each [interactive streaming] service in the increasingly crowded field is working frantically to overcome the perception that the main distinction among the uniformly priced $9.99 a month offering is little more than font style, quirky playlist title and color scheme. . . . [M]usic platforms have long fought against the perception that they're . . . selling a nearly interchangeable product . . . You're getting sold the same car [with] just got a different lick of paint on it.”).
Professor Watt claimed that incorporating this downstream competition into the model would reduce the Shapley values of the Services and increase the Shapley values for the input suppliers, by recognizing which players provide “essential inputs” and which are in competition with other suppliers of substitutable inputs.
He further criticized Professor Marx for including in her model “other distributors” who are not interactive streaming services.
Additionally, because he criticized Professor Marx's use of 2015 data (as noted
After analyzing these Shapley analyses,
Professor Watt's Nash Bargaining Model is the linchpin that connects: (a) the higher mechanical royalty rates generated by the Shapley Value results relied upon by the Majority with (b) the assumed lower sound recording rates—a connection that the Majority found to render “reasonable” and “fair” its uncapped TCC prong.
More particularly, the Majority recognized a potential problem that those Judges would have to resolve before utilizing the Shapley Value approach to create an uncapped TCC prong: “This is problematic because the sound recording rate against which the TCC rate would be applied is inflated . . . both by . . . complementary oligopoly [market] conditions . . . and the record companies' ability to obtain most of the available surplus due to the music publishers' absence from the bargaining table.” Determination at 73.
As to the issue of applying a TCC percentage to a sound recording royalty rate that is artificially high as a result of musical works rates being held artificially low through regulation, the Judges rely on Professor Watt's insight . . . that sound recording royalty rates in the unregulated market will decline in response to an increase in the compulsory license rate for musical works. 3/27/17 Tr. 3090 (Watt) (“[T]he reason why the sound recording rate is so very high is because the statutory rate is very low. And if you increase the statutory rate, the bargained sound recording rate will go down.”).
To repeat:
To resolve this issue, the Judges examine this bargaining model dispute in detail, as it bears on whether the uncapped TCC rate structure can be incorporated into the statutory rate.
Professor Watt utilized a general Nash Bargaining Model.
In his
The Services had no procedural right under part 351 of the Judges' regulations to proffer surrebuttal written testimony from economic witnesses to challenge Professor Watt's assertion, made for the first time in rebuttal, of the seesaw relationship between changes in the musical works royalty rate and the sound recording royalty rate paid by interactive services. Moreover, the Services and their economists also had no opportunity to weigh in on the Majority's application of same (which was not revealed until the Judges rendered their decision).
Pandora's economic expert, Professor Michael Katz, levied several criticisms of the bargaining model proffered by Professor Watt and applied by the Majority. The most important problem with Professor Watt's analysis, according to Professor Katz, is that the former's model assumes an “extremely unrealistic”
Professor Katz opines that this
Moreover, not only does Professor Katz assert the indisputability that such substitution would occur, he points out that
Beyond this purported inconsistency, Professor Katz finds Professor Watt's no-substitution assumption to be a serious
As a matter of music business dynamics, Professor Katz interprets Professor Watt's substitutability error as follows.
The assumption that a label receives a zero payoff if it does not reach agreement with a streaming service is equivalent to assuming that, if a streaming service shut down, none of the consumers who would otherwise have used that streaming service will switch to alternative streaming services or other sources of licensed music. The two forms of the assumption are equivalent because, when the services are substitutes, failure to reach an agreement with one service will not drive a label's payoffs from interactive streaming to zero. It will not result in the loss of all of the benefits that could be enjoyed by reaching an agreement. Instead, many consumers would engage in substitution and choose other streaming services, which will allow the label to earn profits from the additional royalties that would be paid to it by those other services.
Professor Katz attempts to adjust Professor Watt's Nash Bargaining Model to account for this substitution effect. In his Appendix A, Professor Katz—acknowledging the reality of multiple interactive services—changes Professor Watt's assumed single label's payoff
In addition, Professor Katz asserts that Professor Watt's modeling is unreliable because “his prediction of the size of the see-saw effect is very sensitive to the assumed values of various other parameters.”
In sum, Professor Katz finds Professor Watt's Nash Bargaining Model to be unusable as a foundation to set royalty rates because, although “there are theoretical reasons to believe that a see-saw effect
In rebuttal to Professor Katz's criticisms, Professor Watt states that “the record needs to be straight on Nash bargaining theory,” in order to explain “the foundational error” committed by Professor Katz. Watt RWRT ¶ 52. This basic mistake, according to Professor Watt, is Professor Katz's erroneous assertion that the bargaining model must account for a label's “outside option.”
Connecting this principle of bargaining theory to economic theory, Professor Watt explains his understanding of the relationship of the “outside option” to the more familiar economic concept of “opportunity cost”:
An outside option could also be referred to as an “opportunity cost,” since it is the value of what would be foregone should a deal with the service actually be struck. It is . . . useful to recognize the equivalence between an outside option and an opportunity cost, because economics in general has a very long history of understanding how opportunity costs weigh in on economic decision making.
Professor Watt then opines how Professor Katz confused the “outside option” with the disagreement (a/k/a threat) point in the Nash Bargaining Model:
[Professor] Katz claim[s] that the outside option value that the labels would enjoy should they not reach an agreement with the services should be included as part of the “disagreement point” within the bargaining model and reimbursed like a cost prior to bargaining. Doing this can dramatically alter the results of the model. It is also definitively not how such an option should be modelled. [Professor] Katz [is] guilty of misunderstanding the Nash bargaining model, and concretely, the meaning of a “disagreement point,” and the way that an outside option should be brought into the model.
More particularly, according to Professor Watt, these outside options/opportunity costs do not belong in a Nash Bargaining Model, because they are “not the types of status quo actual financial payments that may be modelled as disagreement points.”
Professor Watt then explains that an outside option/opportunity that by definition exists as an alternative to a bargain between two parties lies outside the two parties' bargain, and is thus out-of-place within a proper Nash Bargaining Model:
In the case at hand, if the parties never stop negotiating and never take up substitute options, then no joint enterprise is offered and there is no surplus to share, so each necessarily gets a payoff equal to 0, just as I assumed in my model.
[A]gainst this backdrop, an outside option (a potential payoff that is not directly related to a share of the surplus that is being negotiated) . . . comes in [to the model] as a constraint upon the set of feasible deals that could be struck, exactly as an opportunity cost would be treated.
According to Google's economic expert witness, Dr. Gregory Leonard, the Majority wrongly relied on Professor Watt's bargaining model because it is “highly stylized” and theoretically “simplified” in ways that make it unable to predict that “an increase in the musical works royalty would be offset nearly dollar-for-dollar by a decrease in the sound recording royalties (the “seesaw effect”), thus leaving the services virtually unaffected by the proposed increase in musical works royalties.” Leonard WDRT
Pointedly, Dr. Leonard criticizes Professor Watt's bargaining model as comprised of a “veneer of `complexity' . . . mathematical formulas and [a] reference to John Nash,” adopted to provide a rationalization for adoption of his Shapley Value modeling that would significantly increase the mechanical royalty rate.”
In particular, Dr. Leonard avers that Professor Watt's bargaining model materially abstracts away from,
These factors, he posited, are “important for determining how sound recording royalties would
Regarding the complementary oligopoly structure of the market and its impact on the bargaining process, Professor Leonard emphasizes that an important “real-world hurdle” assumed away by Professor Watt's modeling of a single label entity is that “each label would prefer to have the other labels lower their sound recording royalties while maintaining its own royalties at pre-existing levels . . . .”
Professor Watt replies with a spirited defense of economic modeling in general and his economic bargaining model in particular. He begins by pointing out that models are not supposed to be “perfect representations of reality [but rather] are intended to isolate what is important, in order to expose a useful insight on some issue of relevance.” Watt RWRT ¶ 105. He adds that economic models (not merely his bargaining model) “
With particular regard to his bargaining model, Professor Watt takes issue with Dr. Leonard's assertion that in the former's model the surplus is a “fixed constant.”
Turning to Dr. Leonard's critique regarding the purported distortionary effect of Professor Watt's modeling assumption of a single label and a single interactive service, Professor Watt responds by acknowledging that, if he had modeled multiple labels and services in the bargaining process, that would be “not particularly enlightening
Professor Marx criticizes Professor Watt's application of the Nash Bargaining Model because, in her opinion, its “precise prediction” of the nearly one-to-one seesaw relationship “depends critically on the assumptions that he makes and the numerical inputs that he uses.” Marx WDRT ¶ 33. First, criticizing his modeling
More particularly, Professor Marx maintains, a record label's disagreement payoff must be considered realistically “in any accounting of what would happen if record labels and interactive streaming services failed to reach an Agreement . . . .” Marx RWDT ¶ 35. And, she opines, when this real-world substitution effect is taken into account, the seesaw effect that Professor Watt estimates is reduced dramatically, because “[t]he greater . . . the substitution between streaming and other forms of distribution, the greater is the revenue that the record label can capture in the event of disagreement
Professor Marx opines that modeling the bargaining process without these real-world particulars diminishes the value of Professor Watt's Nash model in several significant ways. First, because his model fails to incorporate the presence of three major record labels, “each with substantial complementary oligopoly power,” it fails to capture the fact that “each record label does not fully internalize the impact of its rates on the viability of the industry.”
Next, Professor Marx avers that Professor Watt's bargaining model “does not explain how or over what time frame the market would move to a new equilibrium.”
JUDGE STRICKLER: What of the situation . . . that the . . . time period for the existing agreements between the . . . labels and the interactive streamers is such that they've already locked in a particular rate and then we set a rate that's higher for the mechanical to reflect the fact that the sound recording royalty should drop, but it's locked in for a period of time? Are we running the risk, then, of disrupting the market by having a total royalty that's greater than what is indicated by your Shapley testimony, simply because of the disparity of times in which the rates are . . . implemented?
PROFESSOR WATT: That's a very fair point. And I didn't even think of that until you've mentioned it . . . [T]he model I have done is . . . assuming that . . . the bargained thing happens at the same time as the—or in the same general period of time as a change in the statutory rate. You're absolutely correct.
Third, Professor Marx points out that Professor Watt's Nash model does not attempt to capture the effects of the heterogeneous and asymmetric distribution of information relevant to the bargain available to each party at the time of negotiation.
Lastly, Professor Marx avers that Professor Watt's Nash Bargaining Model fails to address, on a more general basis beyond informational issues, other “asymmetries among record labels and among services.” Marx WDRT ¶ 41.
In sum, Professor Marx concludes that these foregoing real-world points all preclude the Judges from relying on Professor Watt's testimony to identify a stable relationship between changes in the mechanical royalty rate and the sound recording royalty rate because they all share a common defect—they “lie outside Professor Watt's model.” Marx WRDT ¶ 41.
To be clear, Professor Marx does not criticize Professor Watt for neglecting to include these points in his bargaining model; rather, she acknowledges that “[t]hese are difficult features to capture in a tractable equilibrium model.”
Because Professor Marx's criticisms are of a similar nature to Professor Katz's criticisms, Professor Watt responds to Professor Marx as he did to Professor Katz. To summarize, Professor Watt responds to Professor Marx's points as follows:
• Her criticism is centered on what he characterizes as her “bogus” argument that he supposedly had predicted almost a “dollar for dollar” sound recording rate reduction in response to an increase in the musical works rate (the seesaw effect). Watt RWRT ¶ 19. Professor Watt finds this argument “particularly disheartening,” because Nash bargaining theory explains why the seesaw would apply to the splitting of the surplus based on the available data, and that “there are quite apparent reasons why available surplus may not decrease even if the musical works rate increased,
• Professor Marx implicitly contradicts her own reliance on the complementary oligopoly power of the Major labels by modifying his bargaining model through the insertion of a lower value for their bargaining power.
• Professor Marx misconstrues the purpose of his Nash model, which was to serve “as a reply” to Professor Marx's direct testimony, and “to show bargaining insights that bore upon aspects of the case.”
• Professor Marx, like Professor Katz, improperly includes in her bargaining model a potential payoff for the label arising from an “outside option,”
In her supplemental remand testimony, Professor Marx challenged several of Professor Watt's criticisms contained in his remand testimony. First, she takes issue with what he identified as two “core” economic principles of bargaining: (1) that all of the available net surplus will be shared; and (2) that neither of the two bargainers will demand a share such that more than the total net surplus is shared. Marx WSRT ¶¶ 7-8.
As an initial matter, she disputes the notion that these are “core” principles of bargaining.
As a further criticism, Professor Marx avers that “[i]n the real world, the negotiated royalty outcomes do not involve just two parties, but rather a sequence of overlapping, interrelated,
The purpose of Professor Watt's Nash Bargaining Model was to allay the Judges' concern that increasing the mechanical rate would lead to higher total royalties for the Services. His bargaining model was understood by the Majority to show that such higher total royalties would not result, because the model demonstrated the “seesaw” effect, whereby the sound recording rate would fall almost dollar-for-dollar with the increase in the mechanical rate.
On the surface, the economic experts on both sides appear to be at loggerheads regarding the existence and applicability of the seesaw relationship. However, as discussed below, on further analysis of their respective positions, in light of Professor Watt's remand testimony regarding
To recap: In his WRT, Professor Watt stated
[W]ith an appropriately modelled bargaining analysis . . . in my Appendix 3 . . . I show that for every dollar that the statutory rate for musical works undercuts a fair and reasonable rate, the freely negotiated rate for sound recordings will increase by an estimated [REDACTED] cents.
That is, if the musical works rate is increased to what would be a realistically fair and reasonable rate, then the negotiated fee for sound recordings would decrease almost dollar for dollar, with only a minor change in the total royalty rate for all copyrights combined.
It is only in his later remand testimony—after the D.C. Circuit's remand had compelled him to confront criticism from adverse economists—that Professor Watt expresses this assumption overtly, making explicit the “understanding” that he had theretofore only tacitly assumed:
In other words, a model in which only the two copyright rates are permitted to change . . . as was the
Indeed, as noted
Professor Spulber, on behalf of Copyright Owners, likewise emphasizes on remand the importance of the
[A]long with an increase in the compulsory license rate,
“All other things being equal” (
Economic modeling is supposed to simplify the situation in order to distill useful principles and teachings.
The Judges agree that the
At the heart of any analytical process lies simplification or abstraction, the whole purpose of which is that of making problems scientifically manageable. In the economic system we recognize, of course, that `everything depends on everything else,' and also that `everything is always changing'.
However, Professor Watt does not quote another portion of Professor Buchanan's article that makes a point that looms large in the present proceeding,
Real problems require the construction of models, and the skill of the scientist is reflected in the predictive or explanatory value of the model chosen. We simplify reality to construct these models, but the fundamental truth of interdependence must never be forgotten. . . . [However,]
This is not to say that Professor Watt was unaware of this caveat. As noted
With the foregoing testimony in mind, the Judges see particularly relevant several additional points in Professor Watt's
[T]he actual effects one would expect to see several years later would be based on the actual data at that time. Moreover, I would expect many other variables to have a larger effect on the bargains than the relatively small changes in the musical works rate. . . . [U]nderstanding actual market outcomes requires understanding these variables.
[A]n attempt to capture all aspects of the real world is too complex for a simple statistical exercise involving an econometric regression. There is no obvious data to actually use for some of the independent variables, such as consumer demand equations, costs of entry and exit, a measure of oligopolistic interaction, different timings of different rate bargains, and the actual values of outside options.
Although Professor Watt was hardly transparent in
Professor Spulber likewise opined that the absence of an explicit statement of these assumptions in Professor Watt's testimony was unremarkable and appropriate:
[A]ll other things being equal'. . . should be generally read into economic modeling conclusions or predictions, whether or not the words are repeated in each instance. Economists do not typically repeat these words in each place where they apply, since it would lead to constant repetition.
Regardless of whether economists invariably identify the existence of implicit assumptions lurking in each other's models, Professor Watt overlooked a cardinal rule of communication:
As to the issue of applying a TCC percentage to a sound recording royalty rate that is artificially high as a result of musical works rates being held artificially low through regulation, the Judges rely on Professor Watt's insight . . .
Professor Watt's bargaining model
Making the point ever so plainly, Professor Watt
Without the benefit of these caveats regarding an extrapolation of the “seesaw” theory to the real-world, and with absence of an explicit statement of the
Thus, when the Majority engaged in its analysis and “line-drawing” to apply the data and market projections relied upon by Dr. Gans's data, the Majority was operating—to use the D.C. Circuit's phrase—in its “wheelhouse,” making a finding that withstood appeal.
Additionally, an examination of the expert economists' testimony reveals that their facial disagreements vanish once the necessary assumptions are laid bare. Professor Watt and the Services' three economists all identify the following independent variables that will impact the relative levels of sound recording and musical works rates paid by interactive services:
(1) the level of downstream consumer demand;
(2) entry costs;
(3) exit costs;
(4) oligopolistic interaction;
(5) the timing of sound recording agreements
Professor Watt and the three Service economists agree with regard to the relevancy of these six independent variables.
Indeed, as noted
In this regard, it is noteworthy that none of Copyright Owners' several economic experts in this proceeding (Dr. Eisenach, Professor Gans, Dr. Rysman, or Professor Watt) ever
For these reasons, the Judges find erroneous the Majority's identification of a fixed relationship between the sound recording and mechanical royalty rates that could serve as a basis for the Majority's first rationale for yoking the mechanical rate to an uncapped TCC rate prong.
The foregoing analysis and decision related to the absence of a fixed relationship between the sound recording and mechanical royalty
According to Professors Katz and Marx, the Nash Bargaining Model constructed by Professor Watt is deficient because it fails to properly characterize the “disagreement payoff” to the sound recording company when it and an interactive service fail to reach an agreement. More particularly, as explained
As the several experts' positions in this regard, discussed
By contrast, Professor Watt cites to multiple economic game theory publications and authorities for the proposition that the presence and value of “outside options” are not to be included in the “disagreement payoff” contained in a Nash Bargaining Model.
According to Professor Watt and these authorities, the reason for excluding “outside options” from the Nash Bargaining Model is fundamental to the nature of the model itself. In the Nash approach, the negotiating parties are bargaining with each other only over the surplus
[T]he Nash bargaining model [is] designed as [a] self-contained portrayal[ ] of negotiating behavior. . . . Given a surplus to share, the Nash model . . . provide[s] allowance for
[A]n outside option (a potential payoff that is not directly related to a share of the surplus that is being negotiated) . . . comes in as a constraint upon the set of feasible deals that could be struck. . . .”
The Services never sought to introduce further testimony regarding this important dispute. This is particularly striking because the Services filed a motion to strike certain portions of the CO Reply, or for leave to file supplemental testimony responsive to those itemized portions. The portions the Services identified in their motion
In the course of discussions among the parties and the Judges regarding remand procedures, the Judges invited the parties to produce witnesses for a hearing, at which one or more of the Services' economic expert witnesses could have addressed this “outside options” issue. However, the Services (and Copyright Owners) waived the opportunity to produce witnesses at a hearing. Rather, they offered, and the Judges agreed, that they would stand on their written testimonies and proceed to closing arguments by counsel.
In the closing arguments, each side argued numerous points of controversy and provided the Judges with dozens of demonstrative aids summarizing record evidence and the parties' arguments, but none of those arguments or demonstrative aids so much as mentioned this “outside options” dispute. Moreover, when the Judges inquired during closing arguments as to whether Services' counsel would be addressing any of the experts' “modeling disputes,” counsel said that they were resting on their papers. 3/8/22 Tr. 86-87 (Closing Argument). Similarly, when the Judges inquired of Copyright Owners' counsel whether he would be addressing the modeling “dust-up” between Professors Watt and Katz, counsel demurred, stating that although he would “love to engage on it but . . . “there would be too many slides. . . .”
Simply put, the Services' economic experts made an assertion regarding the need for Professor Watt to have included “outside options” in his Nash Bargaining Model, but Professor Watt presented authority clearly stating that such inclusions would be improper. Thus, Copyright Owners made a
Dr. Leonard next claims that Professor Watt's assumption that the labels would bear virtually the entirety of an increase in the statutory rate, because they previously “have captured almost all” [the] surplus,” has been contradicted by the evidence. Specifically, he refers to the 33-month period in which the Phonorecords III rates were effective (January 2018 through September 2020). Leonard WDRT ¶ 16. However, as the Judges find in this Determination, that 33-month period was marked by significant uncertainty with regard to the ultimate rates and rate structure (and the rates were being phased-in), so no findings could reliably be made based on sound recording rate changes during that period.
The remainder of Dr. Leonard's critique concerns issues that would make a fixed TCC ratio inappropriate over the rate term. The Judges agree with those criticisms as previously discussed, but they do not pertain to this narrower issue of whether the
Accordingly, the Judges find that the Services' criticisms in this regard are insufficient to rebut Copyright Owners'
In rebuttal, Professor Watt says this criticism is inconsistent with Professor Katz's own analysis, because the latter also “sets the cost equal to a fraction of revenue. . . .” Watt ¶ 82 n.31 (referring apparently to a comparison of Katz WDRT ¶ 129 with
The Judges find that the common use by both experts of this assumed proportionality of a label's non-content costs to licensing revenues alone blunts Professor Katz's criticism of Professor Watt's modeling. Further, Professor Watt reasonably posits that higher revenue would imply a larger scale of business with associated general cost increases. (But the Judges do no agree that it was reasonable for Professor Watt to assume that distribution and administrative costs in particular would increase merely because of an increase in royalty rates; simply paying more money,
In the Determination, as noted
Copyright Owners likewise argue that the uncapped TCC rate structure should be “adopted to provide protection against revenue deferment and displacement in a revenue-based rate structure.” CO Initial Submission at 38;
Whereas Copyright Owners echo the Majority, the Services adopt the reasoning of the Dissent. They argue as follows:
[A] rate structure with a capped TCC prong, like the
In their Reply, Copyright Owners argue that the Majority maintained the benefits of price discrimination contained in the prior
The Services, in their Reply, take note that pre-remand, Copyright Owners had strenuously objected to any yoking of the mechanical royalty rate to the sound recording rate, maintaining that, although the Copyright Owners now advocate for an uncapped TCC rate to protect against revenue displacement and diminution:
[I]n their [pre-remand] reply proposed findings, the Copyright Owners had expressed a very different view, arguing that an uncapped TCC prong “does nothing to protect Copyright Owners from the Services' revenue displacement and deferment” [and] Copyright Owners have not even tried to explain away their complete about-face on this issue.
The Judges find that the second rationale put forth to support an uncapped TCC rate does not justify the adoption of that rate prong. Several reasons support this finding.
First, there is insufficient evidence to show how the sound recording companies contractually structure their own royalty rates, which would constitute the rate base for an uncapped TCC rate for the mechanical royalty. The sound recording royalty rate, when proffered for use as a mechanical royalty rate base, is analogous to pegging the value of a foreign currency to the U.S. dollar. That is no mere benchmark. The Judges must have the benefit of sufficient record evidence to demonstrate that the pegging (or, to use the D.C. Circuit's word in
But Copyright Owners presented virtually no evidence regarding how the sound recording companies structure their interactive service royalties. Indeed, in the hearing, Dr. Eisenach acknowledged that the “relative value of sound recording [to] musical works licenses may depend on a variety of factors,” but he intentionally eschewed unnecessary “assumptions, complexities and uncertainties associated with theoretical debates” as to why the particular market ratios existed.
The only reference to such sound recording rate formulae in Copyright Owners' voluminous PFF after the hearing was its statement that the effective revenue calculations in two of the Major labels' agreements with the
Second, compounding this problem, because the uncapped TCC rate is embedded in a “greater-of” rate structure, the labels can exploit their complementary oligopoly power when creating
Thus, there is insufficient evidence or testimony that would permit the Judges to make any adjustment for the complementary oligopoly power that may be built into each prong of the sound recording royalty rate structures.
Third, as the Services note, Copyright Owners pre-remand, opposed the
Copyright Owners rightly note that they obtain no legal protection under such a TCC prong. In making this argument regarding displacement and deferral of revenue, Copyright Owners lay out comprehensively
The notion that [the] TCC prong will provide protection from revenue gaming, deferral and displacement, and other revenue prong problems is unsupported and speculative.
What is left unanswered . . . is . . . how can it be reasonable to ask the Judges to set a rate that does not itself provide for a fair income . . . but simply puts the Services' fair income in the hands of the labels to negotiate terms that will adequately protect the Services as well? The labels do not have a mandate to ensure that the Copyright Owners provide a fair income to the Services, and cannot be directed to ensure such.
The Judges find this argument persuasive, both in its own right and in the fact that it has been advanced by Copyright Owners and the Services alike.
Fourth, the Judges note that the Majority did not find that revenue diminution, via displacement, deferral, or otherwise was pervasive, as Copyright Owners aver.
Given that the Majority found revenue diminution through displacement and/or deferral exists only “to some extent” and is not a “sweeping” issue, the Judges on remand find that the uncapped TCC rate structure creates the potential for unbalanced harm. As noted
The Judges next consider an issue emphasized by Copyright Owners: whether the Services have demonstrated that the uncapped TCC rate prong would cause a “disruptive impact” as set forth in Factor (D) of section 801(b)(1).
Section 801(b)(1) provides that one of the competing priorities of the Judges in setting the mechanical rate is “[t]o minimize any disruptive impact on the structure of the industries involved and on generally prevailing industry practices.” 17 U.S.C. 801(b)(1)(D). In
After the D.C. Circuit's ruling, an argument regarding “disruption” was first made by Copyright Owners, not the Services. Copyright Owners argued that the vacated rates should nonetheless be maintained as interim rates, during the pendency of the remand proceeding. Motion of Copyright Owners to Adopt Interim Rates and Terms Pending the Remand Determination,
In response to that motion, the Services did
On December 10, 2020, the Services submitted to the Judges their Proposal for Remand Proceedings, in which they made
In the CO Initial Submission, Copyright Owners assert,
Copyright Owners then assert that
In their initial substantive remand briefing, the Services once more
In the Services' Reply, the Services attack Copyright Owners' “singular focus on the disruptive impact of the uncapped TCC prong.” Services' Reply at 35. In particular, the Services argue:
1. they have maintained and demonstrated that Copyright Owners' uncapped rates and rate structure are “
2. the burden of proof with regard to Factor D disruption lies with Copyright Owners, because they are the ones who are advocating for the uncapped TCC rates and rate structure;
3. the presence of Factor D disruption,
4. the “full extent of the disruption to the Services from an uncapped TCC prong was never tested in the marketplace [because] [t]he Majority set escalating rates, and the [ ] Determination was vacated before the significant hike in rate levels was fully implemented.”
In their Remand Reply, with regard to the issue of “disruption,” Copyright Owners assert:
1. The Services have “completely abandoned” their appellate argument asserting disruption, and admit to having no evidence that the Board's adopted rate structure has any materially disruptive impact. Copyright Owners' Reply Brief on Remand at 5 (July 2, 2021).
2. The Services have not even attempted to show any Factor D related effect or other disruption from the adopted rates and structure.
3. The failure of the Services to provide evidence of disruption or to pursue the argument that disruption had occurred was inconsistent with their prior assertions that the uncapped TCC rates and rate structure created “a real risk of economic harm” and the “impact” or “harm' that the uncapped approach generated.
4. Each of the Services, in response to Copyright Owners' discovery requests, acknowledges that it was not offering new evidence regarding the “impact” of the Phonorecords III rates and rate structure.
5. The Services did not merely suffer no disruption, they experienced unprecedented growth and profit under the uncapped TCC rate prong.
6. The Services on remand have attempted to replace their prior “disruption” assertion with a claim of “unreasonableness.”
The full Factor D “disruption” standard, as set forth by the Judges, states that an adjustment is warranted by Factor D if the rate analysis made by the Judges would otherwise:
First, the issue of “disruptive impact” pertains here to the proposal advanced by Copyright Owners, not the Services. Thus, the burden of proving that this uncapped TCC rate prong proposal satisfies the elements, including Factor D, of the section 801(b)(1) standard in a sufficient manner lies with Copyright Owners, not the Services.
Second, Copyright Owners did not demonstrate with sufficient evidence or testimony that the uncapped TCC rate would be consistent with Factor D. To be clear, by this the Judges do not mean that Copyright Owners were obliged to prove a negative. Rather, they needed to prove, and indeed attempted to do so, that it was unlikely that their rates would cause a “disruptive impact.”
In this regard, as an
Further, as a
Moreover, Professor Watt further explained that many other factors would likely impact the sound recording rate together with an increase in the mechanical rate, including “a measure of oligopolistic interaction, different timings of different rate bargains, and the actual values of outside options.” Watt RWRT ¶ 118. Professor Watt candidly acknowledged that he has not modeled these independent variables, and he further notes that the data may not exist to allow for such modeling.
In particular, the purpose of the “seesaw” contention was that it prevented economic harm to the Services in connection with a rise in the mechanical rate. Although not of Professor Watt's design, that connection is intentionally built into the Majority's uncapped TCC rate.
Also, the “different timings of different rate bargains,” another independent variable identified in Professor Watt's remand testimony, was an issue raised to him at the hearing by Judge Strickler. Professor Watt candidly agreed that the Judge was “absolutely correct” that there is a “risk, then, of
Third, disruption in the narrow sense of Factor D as applied by the Judges previously is not relevant to the present problem. An increase in total royalties is not a short-run immediate issue, but rather an ever-present possibility that the seesaw analysis does not sufficiently address. Rather, the uncapped nature of the TCC rate prong renders it unreasonable rather than narrowly disruptive.
Balancing the foregoing considerations, the Judges find that Copyright Owners' disruption-based argument lacks merit.
For the foregoing reasons, the Judges decline to adopt the uncapped TCC rate tier proposed on remand by Copyright Owners.
Each of the Streaming Services advanced somewhat different rate plans, but all four proffered a benchmark that “broadly sought to maintain the
In particular, the D.C. Circuit found the Judges' treatment of the PR II-based benchmark to be “muddled.”
In the appeal, Copyright Owners attempted to defend the Judges' reliance on the absence of evidence of the settling parties' subjective intent in reaching the
The D.C. Circuit also criticized the attempt by the Judges' appellate counsel to “change tack” and argue that their rejection of the PR II-based benchmark was reasonable because: (1) evidence showed that the prior rates had been set far “too low” and (2) it was “outdated”. The D.C. Circuit found that those arguments also were “nowhere to be found in the [ ] Determination's discussion” of the appropriateness of the
On December 15, 2020, subsequent to the D.C. Circuit's decision, the Judges entered an Order Regarding Proceedings on Remand, in which the Judges stated:
The Judges accept the parties' proposals to resolve the issues concerning the use of the Phonorecords II settlement as a benchmark. . . .
The Services and Copyright Owners also agree that the Judges should resolve this issue based on the existing record, after receiving two rounds of additional briefing from the parties.
Based on the ruling in
The Judges reject Copyright Owners' reading of
Because
Relatedly, the Judges also reject Copyright Owners' assertion that the Judges can only consider on remand the
Further, the Judges emphasize that the rate structure of the PR II-based benchmark provides protection
The Judges weigh each benchmark's
On the other hand, the Judges reject the Services' argument that the
Through this approach, the Judges ultimately may adopt only one of the parties' benchmarks or other methodologies, or they may modify the proposals by combining them, provided such a modification is “within a reasonable range of contemplated outcomes . . . piecing together a rate structure, the economic and policy consequences of which had already been explored and developed by the parties in the record.”
In their consideration of the PR II-based benchmark, the Judges are not suggesting that this benchmark is the optimal tool to use in order to identify rates and terms among all approaches that
The Services maintain that their PR II-based benchmark satisfies the “reasonable” rate requirement and is consistent with the four itemized factors set forth in section 801(b)(1). They make several arguments in favor of this position.
First, they aver that their PR II-based benchmark possesses all the characteristics of an “ideal” benchmark. Services' Joint Opening Brief at 19. In this regard, they argue that their proffered benchmark “involves the same sellers, the same or similar buyers, and the same rights as at issue in this proceeding,” and that there has been “no material change in the economic circumstances of the marketplace that would warrant adjusting the rate levels or rate structure in the benchmark.”
Applying the facts to these benchmark characteristics, the Services assert that the first three elements—same sellers (here, licensors), same buyers (here, licensees) and same rights (the mechanical license for interactive streaming) are satisfied. In particular, they note that the majority of the participants in the present proceeding either directly participated in the
Turning to the next benchmark characteristic—the absence of a “material change in the economic circumstances of the marketplace that would warrant adjusting the rate levels or rate structure in the benchmark”—they emphasize that the PR II-based benchmark contains different rate levels for different product offerings, to account for (a) consumers' varying willingness-to-pay (WTP) and (b) the zero marginal physical cost of digital reproductions of sound recordings containing musical works.
Next, the Services point to the fact that the “headline”
Beyond these benchmark requisites, the Services also emphasize that the PR II-based benchmark is the product of a settlement whose
• The settlement was negotiated in the same statutory context, concerning the identical rate standard and factors as applicable to the present proceeding.
• Neither side would have accepted a deal materially worse than what it expected from a section 115 proceeding applying the section 801(b)(1) considerations.
• The statutory alternative diminishes any additional licensor-side negotiating power arising from “Must-Have” complementary oligopoly of the licensors of the musical works publishers.
The Services also maintain that the
Finally, the Services maintain that “[d]irect agreements between Copyright Owners and Services also support adoption of the PR II-based benchmark.”
Finally, the Services aver that the PR II-based benchmark satisfies the itemized four section 801(b)(1) factors. With regard to Factor A, they maintain that: (1) the
Regarding Factors B and C (the “fair return” and “relative contributions” objectives), the Services emphasize that the PR II-based benchmark satisfies these statutory elements because it: (1) was the result of negotiations between industrywide representatives who had every incentive to obtain a “fair” return and to receive recompense for their “contributions” to streaming; and (2) allowed interactive streaming to become “a significant means for consumers to listen to music” while simultaneously generating growth in annual royalties for Copyright Owners.”
Lastly on the subject of the statutory factors—regarding Factor D (minimizing disruptive impact)—the Services make a succinct argument: “By renewing the rate levels and structure of
The Services also address several further criticisms of the PR II-based benchmark contained in the Determination. Focusing first on an issue specifically addressed in
The Services note that no benchmark evidence presented by any party is proffered with supporting evidence of the subjective intent of the bargainers who negotiated the benchmark. Moreover, they note that the Majority in fact acknowledged that “[r]elying on a benchmark as
With regard to other criticisms of the Majority's failure to use the PR II-based benchmark, the Services argue that the Majority misapplied their previous rulings that they “cannot and will not set rates to protect any particular streaming service business model.”
The Services address another criticism—that the rates in the PR II-based benchmark are too low. This issue is largely moot, as the D.C. Circuit's affirmance of the Majority's expert “line-drawing” and “reasoned weighing of the evidence” confirmed that a rate increase was necessary. In this Initial Ruling, the Judges have acknowledged specifically the appropriateness of the 15.1% revenue rate—a 44% increase over the 10.5% headline rate in the PR II-based benchmark.
Copyright Owners assert that the record evidence overwhelmingly supports the Judges' rejection of the PR II-based benchmark. At the outset, they maintain that the Judges found—and the D.C. Circuit affirmed—that a rate increase was required in the
Next, Copyright Owners maintain that the evidence established that “market conditions” were “radically different” at the time of the
Copyright Owners particularly emphasize the substantial increase in streaming revenue during the
Additionally, Copyright Owners maintain that the identities of the parties involved in the
Next, Copyright Owners assert that the Services' evidence is inadequate to support a finding that the rates in their PR II-based benchmark are suitable for use in setting royalty rates in this proceeding. First, they echo the Determination, which stated that the Services (1) did not examine in detail the particular rates within the existing rate structure; (2) relied on the 2012 rates as objectively useful without further inspection; and (3) did not call witnesses to testify regarding the 2012 settlement negotiations.
Additionally, Copyright Owners claim that the D.C. Circuit found “validity” in Copyright Owners' assertion that the subjective intent of the parties to the
The four classic characteristics of an appropriate benchmark are:
(1) the degree of comparability of the negotiating parties to the parties contending in the rate proceeding,
(2) the comparability of the rights in question,
(3) the similarity of the economic circumstances affecting the earlier negotiators and the current litigants, and
(4) the degree to which the assertedly analogous market under examination reflects an adequate degree of competition to justify reliance on agreements that it has spawned.
Copyright Owners are clearly correct, however, in noting a substantial change in economic circumstances that distinguished the
Simply put, three economic principles co-exist. First, the downstream interactive streaming market remains differentiated among listeners with different willingnesses and abilities to pay, based on varied preferences (utility) and disparities in income. Second, streaming of the “second copy” of the sound recordings (with embedded musical works) remains physically costless (but generates potential “opportunity costs”). But, third, streaming revenues have grown substantially. There is no incompatibility or inconsistency in the simultaneity of these economic principles. Each of them must be taken into account and they are in this Initial Ruling.
This economic context refutes the arguments made during oral argument at the D.C. Circuit that the PR II-based benchmark should be rejected
Further, the foregoing analysis also undermines the pre-remand argument made by Copyright Owners that the PR II-based benchmark reflects a market that was not yet “mature,” or was only “experimental.” Markets are not “mature” as opposed to, say, “adolescent.” Indeed, the metaphor is strained because all economic models are subject to revision if the salient facts have changed, without rendering the prior models mere “experiments.” Markets simultaneously exhibit enduring characteristics—here, heterogeneous customers and zero marginal physical costs and dynamic change—here, significant revenue increases.
And yet, Copyright Owners seek to deny the idea that these principles could exist simultaneously. In an attempt to disqualify the application of the PR II-based benchmark, Copyright Owners complain:
[W]hile streaming activity and revenues grew under the Phonorecords II royalty rates, the [REDACTED]. For example . . . [REDACTED].
But as the Services explained, the economic defect in Copyright Owners' analysis, is that it ignores the principle of price discrimination and its beneficial effects:
[A]s [Professor] Hubbard explained, it is “meaningless” to compare growth in streams to growth in royalties in the context of Prime Music in particular because the record showed that Prime Music brings “new people into the market.” . . . If not for the flexibility (and beneficial price discrimination) the
This rebuttal by Professor Hubbard is an example of the important distinction between “increases in demand” (when the demand curve shifts outward) and movements “down the demand curve” (when sellers use price discrimination to generate more revenue without additional cost to attract buyers with a lower willingness or ability to pay). The parties' otherwise dueling economists agreed on this point.
Moreover, Copyright Owners baldly cherry-pick the data they present. [REDACTED] CO Initial Submission at 15-16. So, by their own data, presented in their own brief, they acknowledge that [REDACTED].
The appropriateness of adopting the price discriminatory rate provisions of the PR II-based benchmark is further underscored by Copyright Owners' candid acknowledgement at the hearing that they were essentially urging the Judges to adopt what is known as the “Bargaining Room” approach to rate setting.
In the present proceeding, the appropriateness,
Copyright Owners emphasize the inability of the Judges (or anyone) to identify present market rates precisely, let alone over the five-year rate period because the compulsory license set by the Judges cannot possibly contemplate every single business model that may develop in the ensuing time. . . . If the statutory rate is set
The Judges find no reason to depart from the policy decision in
With this background in mind, the Judges turn specifically to the interrelationship between the price discrimination aspects of the rates in the PR-II benchmark and the Bargaining Room approach.
Copyright Owners have demonstrated (albeit tacitly) their understanding that, if the statutory provisions did not contain a price discriminatory rate structure to reflect the varying WTP,
Thus, the Judges find there to be no real dispute as to
Further with regard to this fourth point, the parties have been operating over the past ten years under this basic rate structure, with profits accruing to the licensors and admittedly tolerable losses befalling the licensees. Moreover, after experience with these rates and this rate structure in the
The Judges rely on the PR II-based benchmark as an
Both Professors Katz and Hubbard noted that the current rate structure remains useful, not based on consideration of the parties' subjective understandings at the time of its creation, but because the market has not since changed in a manner that would create a basis for departure. Katz WDT ¶ 80 (“My analysis has identified no changes in industry conditions since then [2012] that would require changing the fundamental structure of the percentage-of-revenue prong.”); 4/13/17 Tr. 5977-78 (Hubbard) (changes in market are “not uncorrelated with the structure that was in place” in 2012).
In this regard, it bears emphasis that Copyright Owners' own witness, Dr. Eisenach, relied on several potential approaches that the Majority characterized as benchmarks for his rate analysis, without attempting to examine the subjective intent of the parties who negotiated those agreements. Indeed, the Majority found that the PR II Rates were properly considered as an objective benchmark, in the same manner as Dr. Eisenach's proffered benchmarks:
The Services do not examine in detail the particular rates within the existing rate structure. Rather, they treat the rates within that structure as benchmarks,
This point is not made to be critical of Dr. Eisenach's approach, but rather to show that the Services' reliance on the 2012 settlement as a benchmark shares this similar analytical characteristic, typical and appropriate for the benchmarking method. (The factual wrinkle here is that, hypothetically, the Services could have called witnesses and presented testimony regarding the negotiations that led to the 2012 (and 2008) settlements, but did not, rendering the 2012 benchmark similar to other benchmarks taken from other markets.)
Copyright Owners also aver that they entered into the
Further, as a general principle, a party's mere assertion that the
Copyright Owners also mistakenly rely on the fact that the Services bore the burden of proof regarding the absence of any subjective idiosyncratic factors that hypothetically could have diminished the useful value of the PR II-based benchmark.
In fact, given Copyright Owners' reliance on the subjective intent of the parties to a benchmark, the Judges attempted to identify potential subjective evidence of how the capped TCC rates in the PR II-based benchmark
[JUDGE STRICKLER] Do you discuss, Dr. Eisenach, . . . in your written direct or written rebuttal testimony how the parties arrived . . . at the ratios for sound recording to musical works in [witness interrupts]
[DR. EISENACH] That process is opaque to me, Your Honor.
[JUDGE STRICKLER] Did you [witness interrupts]
[DR. EISENACH] I know—I know there was a 2008 negotiation. I know there was a 2012 negotiation. I wasn't . . . present, and I'm not privy to any of the details.
[JUDGE STRICKLER] You were not informed by your client or by any other source of information as to how they arrived at those particular ratios?
[DR. EISENACH]
As noted
Here, the Judges further consider whether other rates within the PR II-based benchmark are reasonable, not only because they are part and parcel of the workable structure of that benchmark, but also to determine if they are supported by record evidence. To put this issue in context, those rates would apply on the second prong of the “greater-of” rate structure in the PR II-based benchmark. The first prong in the PR II-based benchmark rates is the 10.5% revenue rate—increased to 15.1% (as phased-in) by this Initial Ruling. The second prong consists of the “lesser of” a TCC rate or a per subscriber rate.
The Services describe the key feature of these non-headline rates as the fostering of beneficial price discrimination,
Amazon Music Unlimited, with more than 30 million available songs as of the
Thus, Amazon pays [REDACTED] for listening by the more casual consumers who use the limited catalog Prime Music service at no additional charge beyond their Prime membership fee, compared to consumers who want the full repertoire provided by Amazon Music Unlimited on their Echo devices.
It is also important to note that these differential rates on the second prong of the “greater-of” structure of the PR II Rates are overridden by the revenue percentage rate on the first prong if that first prong rate generates more revenue. For example, [REDACTED],
It is noteworthy that
First, Professor Katz notes that the existing rate structure captures two important aspects of the economics of the interactive streaming market: (1) the variable WTP among listeners; and (2) the corollary variable demand for streaming services.
Second, in similar testimony, Professor Hubbard captures the interrelationship between the economics of this market and the existing rate structure:
[F]rom an economic perspective, you can think of this market and this industry as being composed of different customer segments by tastes and preferences and willingness to pay. And so no rate structure can really work without understanding that, and no business model can really work without understanding that.
[I]n terms of rate structures, the
Third, the Services' experts further assert that the multiple pricing structures necessary to satisfy the WTP and the differentiated quality preferences of downstream listeners relate directly to the upstream rate structure to be established in this proceeding. For example, Professor Marx opines that the appropriate
Regarding a comparison of revenue growth to streaming growth, Professor Hubbard dismisses as economically “meaningless” Copyright Owners' argument that they have suffered
The Services also link their price discrimination argument to the fact that the marginal physical cost of streaming is zero to the need for a flexible rate structure such as now exists. In this regard, Professor Hubbard notes that, because “[t]he marginal production cost at issue here is—is zero. . . . it's not clear why it's not better to bring new customers into the market on which royalties would be paid and, of course, zero marginal cost incurred.” 4/13/17 Tr. 5917-18 (Hubbard).
Professor Marx makes the same argument as to the salutary nature of price discrimination in this context with regard to Spotify's ad-supported approach. Focusing on the first purpose, Spotify is attracting ad-supported listeners who have a relatively low WTP, whether they have low incomes, (a budget constraint) or low interest in music (low “utility,” in the parlance of economists). These listeners, and the advertising revenue they generate are real and reflect the WTP of a large swath of all interactive listeners.
Accordingly, a separate tier for an ad-supported service accounts for the different nature of the downstream listenership, allowing the upstream royalty to be based on that characteristic. This differentiation was essentially acknowledged by Copyright Owners late (
Another important evidentiary factor buttressing the need for price discriminatory rates and structures was the testimony of the Services' survey expert, Mr. Robert Klein, Chair and co-founder of Applied Marketing Systems, Inc. Mr. Klein surveyed 2,101 people (the Klein Survey) who were listeners to streamed music and found,
It is important to note that Copyright Owners' attacks on the Klein Survey are not levelled by any witnesses, nor contradicted by their own survey expert, because Copyright Owners elected not to proffer such an expert in their direct (or rebuttal) cases. Rather, Copyright Owners elected to make a descriptive argument regarding the elasticity of demand among different segments of the market, as opposed to a survey-based or econometric study of price elasticity.
[Although] Copyright Owners attack the Klein Survey on several fronts[,] [t]he arguments made by Copyright Owners are insufficient . . . to seriously weaken the probative value of the Klein Survey. In the end, the Judges are not persuaded by the Copyright Owners' revenue bundling arguments not to adopt a flexible, revenue-based royalty rate.
The Services also note that the existing rate structure has produced generally positive practical consequences in the marketplace. Their joint accounting expert, Professor Mark Zmijewski, testified that the [REDACTED] from the sale of product under (former) Subpart A since 2014 has been [REDACTED] over the same period. Expert Report of Mark E. Zmijewski February 15, 2017 ¶¶ 38, 40 (Zmijewski WRT); 4/12/17 Tr. 5783 (Zmijewski);
More particularly, Professor Zmijewski testified that:
• Total revenues reported by the NMPA for NMPA members from all royalty sources [REDACTED]. Zmijewski WRT ¶ 41.
• This [REDACTED].
• The [REDACTED].
• Mechanical royalty revenue for the sale of downloads and physical phonorecords [REDACTED].
In sum, the foregoing analysis demonstrates the economic reasonableness and appropriateness of the price discriminatory
The PR II-based benchmark contain several alternate rates explicitly calculated as a percentage of payments made by interactive streaming services to the record companies for sound recording rights.
With regard to these ratios, Copyright Owners' economic expert witness, Dr. Eisenach, stated: “In my opinion, the evidence . . . indicates that the relative valuation ratios implied by the current Section 115 compulsory license . . . represent
Dr. Eisenach's testimony regarding the “bounds” of useful market valuations is noteworthy because his acknowledgement is consonant with judicial precedent. The Judges' setting of reasonable rates often requires them to identify a “zone of reasonableness,” within which they identify appropriate statutory rates.
The 21% and 22% TCC rates within section 115 identified by Dr. Eisenach as generating the “lower bound on the relative market valuations” imply certain approximate percent-of-revenue rates,
It is important to emphasize and detail the context of these price discriminatory rates. These capped TCC rates are on the “greater of prong” that is compared with the headline 15.1% revenue rate (phased-in) that the Judges are also adopting in this Initial Ruling. As phased in, the headline rate is greater than all the capped TCC-based rates identified in Dr. Eisenach's testimony,
Dr. Eisenach also examined direct agreements between record companies and interactive streaming services that contain rates for sound recordings and mechanical royalties, respectively.
Dr. Eisenach also identified several additional useful benchmarks. First, he identified what was coined the “Pandora Opt-Out Agreement” benchmark,
Second, Dr. Eisenach identified YouTube agreements with music publishers that relate to the combination of a commercial sound recording and a “static image.” The YouTube agreements contain an explicit royalty of [REDACTED].
These additional rates identified in Dr. Eisenach's testimony further confirm the reasonableness of the non-headline rates within the PR II-based benchmark.
Finally, the Judges look at the effective rates paid by Spotify, the largest interactive streaming service in terms of in terms of the number of subscriber-months and the number of plays.
Turning to Spotify's free/ad-supported offering (and as noted
Copyright Owners argue that what the Services tout as beneficial price discrimination generates an “incredible” level of revenue diminution, including displacement, resulting in a “major problem” that reduces reportable revenues and thus the royalty base.
• [REDACTED];
• [REDACTED].
• [REDACTED];
• [REDACTED];
• [REDACTED];
• [REDACTED]
• [REDACTED];
• [REDACTED];
• [REDACTED]; and
• Copyright Owners' expert, Dr. Rysman, testified that interactive services often elect to forgo current profit maximization,
The Services' economic experts do not ignore the fact that there can be revenue attribution problems when interactive streaming is combined with other products or services. They acknowledge that, even absent any wrongful intent with regard to the identification and measurement of revenue, attribution of revenue across product/service lines of various services can be difficult and imprecise.
However, Professor Katz testified that the existing rate structure agreed to by the parties accommodates these bundling, deferral, and displacement issues via the use of an alternative rate prong that would be triggered if the royalty revenue resulting from the headline rate of 10.5% of streaming revenue fell below the royalty revenue generated by that second prong. Katz WDT ¶¶ 82-83; 3/13/17 Tr. 670 (Katz). Moreover, Professor Katz concluded that, because the marketplace appears to be functioning (in the sense that publishers are earning profits and new and existing interactive streaming services continue to operate despite accounting losses), these revenue-measurement issues are being adequately handled by the alternative rate prong, even if an altered second prong might work better.
Professor Katz further noted that the PR II-based benchmark rates were established when “ecosystem” entities such as Yahoo—akin to Amazon, Apple, and Google—were in the marketplace. 4/5/17 Tr. 5055-57 (Katz); see also Determination at 31 (and record citations therein) (noting the presence of Microsoft as well as Yahoo as licensees in the interactive market during the
More broadly, the Services' position regarding the use of the two prongs and their alternate rates to ameliorate the revenue-measurement problems is summed up by Professor Katz as follows:
[T]he primary reason [for the two rate prongs] . . . is because of the measurement issues that can come up when having royalties based on a . . . percentage of revenues because there can be issues about how to appropriately assign revenues to a service. And so I think the minim[a] can play an important role when those—you know, when those measurement problems are severe, you can turn to the minimum instead. . . . [W]hat I have in mind, right, is that what would happen if you could imagine an entrepreneur coming along and saying we want to have a service and have some incredibly low price and not a very good monetization model, where a copyright owner would say—in an effectively competitive market, would say, wait a minute, I don't want to license to you on those terms. It's—I just think the possibility of getting a return is so low, I'm not going to do it, even though you, as an entrepreneur, are willing to try this. I as the copyright owner want some sort of, you know, return on it. And that's what the minimum also helps to do.
After considering the record, the Judges determine that the Majority had not found—as Copyright Owners claim—that the activities and strategies by the Services were “incredible” or a “major problem. Rather, the Majority's characterization was measured, stating repeatedly that the Services engaged “
One way the input supplier can avoid this impact is to refuse to accept a percent of revenue form of payment and move to a fixed per-unit input price. This is what Copyright Owners originally and unsuccessfully sought in this proceeding, subject to a bargaining room approach by which they could switch back to the old approach (or any other approach) through purely market-based negotiations, unbounded by the statutory and regulatory standards of “fairness” and “effective competition.”
The Judges must reconcile the parties' competing considerations. A way by which they are both accommodated is through a pricing structure with
Pre-remand, Copyright Owners approached this rate setting process with an overarching premise: A musical work has an “inherent value” that must be reflected in the royalty rates. As the NMPA's president, Mr. Israelite testified, when asked how “inherent” value is defined:
[W]hoever owns an individual copyright is the one to define it. I think that would be the most appropriate definition of it. What someone is willing to license it for would be that inherent value to that owner . . . That would be market value.
If the market for musical works was as atomistic as the above quote assumes, the songwriter of an individual musical work could indeed set his or her own royalty rate, and refuse to license to any streaming service or other distributor who refused to pay that royalty. But that is not how the licensing market works.
Further, this “inherent” market value notion is antiquated as a matter of economics. Although an individual Copyright Owner can announce his or her “asking” royalty, that is not sufficient to generate a “market” royalty, unless and until a licensee agrees to pay it. In market-based economics. that is to say, the economic consensus that has governed economics since the “marginal revolution” in the mid to late 19th century, value is ascertained through the intersection of supply and demand, with the price established at the margin representing the market value of the good or service bought and sold.
Second, the fact that Copyright Owners originally proposed a per-subscriber alternative rate to their per-play rate itself belies their conviction that some “inherent” economic value exists. When the metric of value switches from “per-play” to “per-subscriber,” the focus of value likewise shifts from an emphasis on producer value to consumer value. That is, if there is truly an “inherent” value for a product or service, that singular value cannot divide into two distinct values with the “greater-of” the two controlling. Such an argument gives away the game, so to speak, demonstrating, perhaps unsurprisingly, that economic arguments (not unlike legal advocacy) are often situational—designed to support maximalist positions and the exercise of market power, however acquired.
Copyright Owners and the Majority complained that the PR II-based benchmark is too complex.
After considering this issue on remand, the Judges disagree. If some songwriters or lyricists have been confused by their royalty statements, their confusion of course should be resolved. However, one of the benefits of a collective is that it possesses the expertise and resources to identify and explain how royalties are computed and distributed. Moreover, this claim of complexity cannot serve as a basis to override the multi-part negotiated benchmark that the parties, through their respective trade associations, negotiated and implemented. As the Dissent stated: “There is no good reason why the rate structure that is consonant with the parties' ten-year history and with the relevant economic model should be sacrificed on the slender
Further, section 801(b)(1) does not identify “simplicity” as a statutory goal for the setting of rates, rate structure, and terms. Although there is certainly no need for gratuitous complexity, the price discriminatory structure and the associated levels of rates in the PR II-based benchmark that were eliminated by the Majority (while maintaining all the remaining complexity) were most certainly not gratuitous, but rather designed, after negotiations, to establish a structure that would expand the revenues and royalties to the benefit of Copyright Owners and Services alike, while also protecting Copyright Owners from potential revenue diminution by the Services. Moreover, when the market itself is complex—in that the WTP across consumer groups is heterogeneous and the offerings reflect that fact—it is unsurprising that the regulatory provisions would resemble the complex terms in a commercial agreement negotiated in such a setting. For the Judges to demand simplicity in this context would be to sacrifice the specificity that an effectively competitive market requires.
Copyright Owners maintain that the rates in the PR II-based benchmark are infirm because, like any benchmark for which a statutory rate is the default, they are not actual market rates. That is, such a rate is said to exist in the so-called “shadow” of the statutory rate.
The Judges reject this argument for several reasons. First, the argument is undercut by the explicit language of section 115 of the Copyright Act, which states: “In addition to the objectives set forth in section 801(b)(1), in establishing such rates and terms, the Copyright Royalty Judges may consider rates and terms under voluntary license agreements described in subparagraphs (B) and (C).” 17 U.S.C. 115(c)(3)(D). Subparagraphs (B) and (C), respectively, refer to agreements on “the terms and rates of royalty payments under this section” by “persons entitled to obtain a compulsory license under [17 U.S.C. 115(a)(1)]; and “licenses” covering “digital phonorecord deliveries.”
There is no basis to find, as Copyright Owners suggest, that statutorily-based or influenced benchmarks, including specifically the PR II-based benchmark in this proceeding, are
The Services' experts discount the foregoing shadow-based criticism. Moreover, the Services laud a statutorily-influenced benchmark in general, and the specific PR II-based benchmark in particular, because the latter reflects more equal bargaining power between licensors and licensees. In this regard, one of the Services' economic expert witnesses, Professor Katz, points out that rates set voluntarily by the parties in a settlement under the “shadow” provide two important benefits. First, with a statutory rate-setting proceeding as a backstop, large licensors cannot credibly threaten to “hold out” and “walk away” from the negotiations without an agreement, thereby negating their ability to use their “must have” status to obtain rates above effectively competitive levels. Second, when, as here, such negotiations are conducted with
The Judges agree that settlement agreements reached in the statutory shadow are useful. Although imperfect when considered in
Nonetheless, Copyright Owners are correct to note that, hypothetically, some licenses might have otherwise been negotiated at rates higher than the settlement rate that was affected by the so-called shadow. But that is simply the tradeoff that the statutory scheme makes in its identification of settlement rates as evidentiary benchmarks. Such a theoretical problem cannot serve to override the salutary aspects of benchmark settlement agreements.
Lastly, with regard to a benchmark affected by the so-called “shadow,” the Judges find that, with regard to the application of the itemized factors in
Accordingly, the Judges find the PR II Rates to be a useful benchmark. However, this benchmark is modified by the Judges' substitution of the 15.1% headline percentage rate for the 10.5% headline percentage rate in the benchmark.
The D.C. Circuit has previously held that the Judges have the authority to adopt elements from the existing rate provisions, if they find that those prevailing provisions better satisfy the statutory requisites than any other proposed structures and rates discernible from the record evidence.
In
Further, here the Judges are adopting actual elements from the prior rate provisions, rather than, as in
Finally, the Judges take note that
• SoundExchange notes that this rate “is
• SoundExchange argues that the Judges arbitrarily rejected . . . more recent data points in favor of the “outdated” settlement rate.
• SoundExchange maintains that the Judges conceded that the prevailing rate had limited value, as the settlement rate “was negotiated in the shadow of the statutory licensing system and cannot properly be said to be a market benchmark rate.”
• SoundExchange also argues that simply reciting that “nothing in the record persuades the Judges” that the prevailing rate is unreasonable . . . does not show that [it] is reasonable, or that it is supported by the written record.
• [G]iven the lack of creditable benchmarks in the record, the Judges did not err when they used the prevailing rate as the starting point of their Section 801(b) analysis.
• The Copyright Act contemplates that the Judges would . . . consider “prior determinations” and rates established “under voluntary license agreements.”
• [T]he Judges did not err when relying on the settlement rate. The Judges conceded that the settlement rate does not represent a market rate. . . . But . . . the relevant portion of the Copyright Act does not use the term “market rates,” nor does it require that the term “`reasonable rates” be defined as market rates. . . . The Act authorizes the Judges to consider rates set “under voluntary license agreements.”
• Music Choice complains that it agreed to a higher rate to avoid litigation costs, but has not introduced evidence that the settlement was involuntary or otherwise unreasonable. It was not arbitrary, then, for the Judges to consider the voluntary settlement rate.
In sum,
The Judges have considered the application of the four itemized statutory factors A through D, in connection with their application of the 15.1% revenue rate and their partial use of the PR II-based benchmark.
The Judges have explained
This point appears to raise a question: How could Copyright Owners and their economic experts object to a rate structure that inures to their benefit as well? The answer is: They do not object. They are not economic naifs. As stated
Second, given a heterogeneous downstream WTP, it would not be more profitable simply to equate “availability” with a higher rate. As noted
The Judges find Professor Rysman misapprehends the nature of a price signal. If the price is so high as to eliminate or reduce total revenue to creators, in no way will higher rates simply induce the supply of creative works over time. Indeed, even monopolists do not seek the highest price possible, but rather seek to maximize profits.
In sum, the Judges find that the Factor A objective of “maximizing the availability of creative works” is furthered by an upstream rate structure that contains multiple royalty rates reflective of and derived from downstream variable WTP, because it will facilitate beneficial price discrimination. Such price discrimination allows for access to be afforded “down the demand curve,” making musical works available to more members of the public. However, there is no evidence to suggest that the price discriminatory rates should be changed, in order to address the connection between price discrimination and the objective of Factor (A). Accordingly, the Judges find no basis to adjust either the rate structure or the rates based on Factor (A).
The concepts of “fair income,” “fair return” and recompense for costs and other contributions was considered in connection with the setting of the 15.1% revenue rate. In that context, the Judges analyzed the Shapley Value modeling that was designed to generate “fair” rates that allowed the parties to recover their costs and to share the surplus (over and above costs) in a manner that: (1) prevented the “Must Have” Input Suppliers (the record companies and Copyright Owners) from using the essential aspect of their inputs to engage in hold-up by threatening to withhold their respective repertoires; and (2) allocated surplus shares according to each party's contribution to the surplus (as calculated though the “arrival orderings” in the Shapley model).
The PR II-based benchmark was the product of an
Accordingly, this benchmark already incorporates the dynamics of a negotiation between parties with mutually countervailing power (although those dynamics required updating of the headline rate to 15.1% to account for the higher revenues, as undertaken by the Majority's Shapley analysis).
Therefore, the Judges do not make any adjustment in their application of the PR II-based benchmark pursuant to Factors B and C.
As noted
There is no record evidence to suggest that the Services' PR II-based benchmark, as utilized by the Judges in this Initial Ruling, would create the requisite “adverse impact” to trigger Factor D. The Services certainly do not assert that their own proffered benchmark would be disruptive. With regard to Copyright Owners, the Judges cannot identify any aspect of the PR II-based benchmark that would cause the type of disruption that can serve as an adjustment under the statutory language of Factor D or the Judges' application of same, as quoted above. The Judges understand Copyright Owners' complaint to be principally that [REDACTED] during the
The
Copyright Owners urge the elimination of the subpart C provisions as essentially obsolete because locker services for “purchased content” (new download purchases) and for “paid” downloads (already owned) have largely disappeared, as listeners transitioned away from ownership models to access models.
The Services argue that Copyright Owners do not point to any evidence to show that locker services have
The Judges find no reason on remand to treat the subpart C offerings differently than the manner in which they are treating the subpart B interactive streaming offerings, for the reasons set forth in the Dissent at 118-119. That means, however, that the various “headline” rates for these subpart C offerings must also adjust to 15.1%,
The Judges analyze the definition of “Service Revenue” for bundled offerings in the context of the partial adoption of the PR II-based benchmark. As discussed
In their Initial Determination, the Judges adopted a definition of “Service Revenue” (
After the Judges issued their Initial Determination, Copyright Owners submitted a Motion for Clarification or Correction of Typographical Errors and Certain Regulatory Terms which disclaimed any intent to seek rehearing, but sought “clarification or correction” of certain regulatory terms to conform them to what Copyright Owners claimed to be the apparent intent of the Initial Determination. (Motion for Clarification).
The Motion for Clarification argued, among other things, that the definition of Service Revenue as applied to bundled offerings should be reworked. Copyright Owners argued that defining the revenue as the total price of the bundle, minus the standalone published prices for the non-streaming offerings in the bundle, undervalued the revenue created by the streaming offerings. They proposed that “Service Revenue” for bundled offerings be defined as the standalone price of the offering (or comparable offerings).
The Services objected to Copyright Owners' styling of their motion as something other than a motion for rehearing. The Services also objected that Copyright Owners had not previously proposed a definition of “Service Revenue” for bundled offerings, and that their “late-proposed” definition was unsupported by the record.
On October 29, 2018, the Judges issued an Order concluding neither party had met the exceptional standard for granting rehearing motions,
The Judges explained that they nevertheless found it appropriate to resolve the issues that the parties had raised. Order on Rehearing at 2. The Judges added that, to the extent such resolution could be considered a rehearing under 17 U.S.C. 803(c)(2), the Judges resolved the motions on the papers without oral argument.
Regarding the definition of “Service Revenue” for bundled offerings, the Judges summarized the parties' competing arguments:
Copyright Owners presented evidence that the existing approach led,
The Services have observed
Despite these arguments, the Judges found that neither party presented evidence adequate to support the approach advocated in post-determination filings, because “the `economic indeterminacy' problem inherent in bundling” remained unresolved.”
Consistent with the Judges' Order on Rehearing, the Judges' replaced the definition of “Service Revenue” for a “Bundle” that they had included in the Initial Determination with a new definition in the Determination. The final definition provided, in pertinent part:
Service Revenue shall be the lesser of the revenue recognized from End Users for the bundle and the aggregate standalone published prices for End Users for each of the component(s) of the bundle that are Licensed Activities . . . [or] if there is no [such] standalone price, then the average standalone . . . price . . . for the most closely comparable product or service . . . or . . . the average of standalone prices for comparables.
The Services, Copyright Owners and George Johnson appealed the Judges' Determination to the D.C. Circuit.
The D.C. Circuit examined several authorities under which the Judges may revisit and amend a determination. It addressed the three ways identified in the statute: “(i) order rehearing `in exceptional cases' in response to a party's motion, 17 U.S.C. 803(c)(2)(A); (ii) correct `technical or clerical errors,'
The D.C. Circuit noted that the Judges were explicit that they did not treat the Motion for Clarification as a motion for rehearing under 17 U.S.C. 803(c)(2).
In
Beyond the explicit statutory authorities for amendments to determinations, the D.C. Circuit addressed arguments for inherent authority to make
In sum, the D.C. Circuit found that the Judges failed to explain the legal authority for reformulating the definition of “Service Revenue.” In relevant part, the D.C. Circuit ruled
Because the D.C. Circuit determined that the Judges failed to identify any legal authority for adopting the new Service Revenue definition, it found no occasion to address the Streaming Services' separate argument that the definition was arbitrary, capricious, or unsupported by substantial evidence.
The Services and Copyright Owners agreed that the Judges should resolve the definitional issue based on the existing record, after receiving two rounds of additional briefing from the parties.
On December 9, 2021, the Judges requested additional briefing. Dec. 9 Order. The Dec. 9 Order sought additional briefing setting forth the parties' views on whether this proceeding constitutes the type of new agency action addressed by the D.C. Circuit, which would allow adoption of a Service Revenue definition without limitation to the definition expressed in the Initial Determination. Additionally, the Judges requested additional evidence that the parties might offer to support adoption of the Service Revenue definitions expressed in either the Initial Determination or the Determination. In response to the Dec. 9 Order, the Judges received the following relevant briefing.
On February 9, 2022, the Judges solicited further briefing on “Whether the D.C. Circuit's
Copyright Owners assert that this remand proceeding offers a straightforward path to take new agency action and that the law makes clear that new agency action can consist of issuing a new determination on remand. CO Initial Submission at 71. Copyright Owners maintain that:
[T]the new agency action here is a determination after remand proceedings, the Board is largely free to chart its own procedural course, and the Board has done so in its December 15 Order. The Board is not required to undertake any of the procedural steps set forth in 17 U.S.C. 803(b) in order to take such “new agency action.” See 17 U.S.C. 803(d)(3) (requiring only that on remand further proceedings be taken “in accordance with subsection (a)”); 37 CFR 351.15;
Copyright Owners acknowledge the Services' position that the asserted procedural error is an “absence of authority” that can never be cured.
Copyright Owners argue that 17 U.S.C. 803(d)(3) states only that proceedings on remand must be in accordance with 17 U.S.C. 803(a). They contend that remand proceedings need not be confined to procedures the Services claim are too late in the game for the Judges to follow. The Copyright Owners point to the D.C. Circuit's ruling in
Copyright Owners further argue that the Judges may properly justify the changed definition under section 803(c) as a fuller explanation of the agency's reasoning at the time it was made. They urge that the Judges could explain that, especially in light of the evidence of how the Services misused the prior definition to make service revenue completely disappear, carrying over the prior bundle service revenue from
Copyright Owners note that the Judges reheard the evidence and legal arguments as presented in the parties' briefs on the issue and, as a result, may choose to adopt the revised definition. Copyright Owners maintain that for the Judges to do so would not be impermissible
The Services assert that the D.C. Circuit found only “three ways in which the Board can revise Initial Determinations” and that the Judges had failed to establish that the change to the service revenue definition fit any of those three categories. Services' Initial Submission at 64-65 (citing
According to the Services the
The Services add their view that the Judges cannot revisit the decision to deny rehearing without engaging in impermissible
The Services add that under section 803(c)(2)(A), the Judges can only use their rehearing authority “ `in exceptional cases' in response to a party's motion.”
According to the Services, the
The Services aver that the
The Services also note that the D.C. Circuit rejected the argument that the Judges have “inherent authority” to make changes to the Initial
The Services counter Copyright Owners' position that the Judges need not respond to the error the D.C. Circuit identified with this aspect of the Determination and that the Judges' “new agency action” may consist of issuing a new determination on remand. The Services argue that failure to address the legal and factual issues on which the D.C. Circuit remanded would violate the D.C. Circuit's order and would result in a second remand. The Services surmise that the issue of authority to make the changes to the Initial Determination are particularly important in this context, where the D.C. Circuit recognized that the Copyright Act places limits on the Judges' authority to alter an initial determination by defining conditions for rehearing and the types of changes that are permitted absent a rehearing. In this regard, the Services maintain that the Judges cannot do on remand what they lacked authority to do in the first instance. The Services assert that the Judges must resolve the legal question whether there is authority to alter the revenue definition in the Initial Determination. They urge that the remanded issue is not what the substance of the service revenue definition should be as a matter of first impression, but instead is whether the Judges have properly exercised authority to alter the Initial Determination's definition. Services Reply at 52-54.
The Services assert that the Judges have two paths available to them: (1) to provide a “fuller explanation” of the prior conclusion that the Judges had legal authority to revise the Service Revenue definition in the Initial Determination or (2) answer that threshold question through new agency action. The Services maintain that, if they pursue the “fuller explanation” path, the Judges are limited to elaborating on what they said previously, and that they cannot add new reasons they did not initially provide. With regard to what may constitute new agency action, the Services assert that path gives the Judges freedom to consider new reasons that the Copyright Act provided the Judges with the authority to make this change to the Initial Determination. The Services argue, however, that undertaking a new agency action does not, as Copyright Owners claim, obviate the need for the Judges to identify proper legal authority before substantively changing the Initial Determination, such authorities being limited to the authority of section 803(c)(4) or the rehearing authority of section 803(c)(2).
The Services address Copyright Owners' position that if the only possible outcome were for the Judges to reinstate a definition that lacked any explanation or evidentiary support solely because it was present in the Initial Determination, then the D.C. Circuit would not have remanded the issue but would have simply reversed and reinstated the Initial Determination definition. The Services urge that the D.C. Circuit could not reverse because the Department of Justice raised for the first time on appeal new justifications for the Judges' decision to change the Initial Determination. Instead, the Services maintain, the D.C. Circuit had to remand and give the Judges the opportunity to address the Department of Justice's new justifications in the first instance, as the D.C. Circuit could not rule them out given the posture of the appeal.
In the Services' Additional Submission, they concede that this remand proceeding is new agency action and that the Judges have provided the parties with sufficient procedural opportunities to present any new evidence and raise any additional arguments regarding the question the D.C. Circuit remanded. Services' Additional Submission at 38. But the Services still insist that the Judges may not alter the Service Revenue definition without first identifying legal authority in the Copyright Act for modifying the Initial Determination. In the Services' view the new agency action avenue provided by the D.C. Circuit merely offers a singular path beyond the Judges' ability to offer a “fuller explanation” of their previous reasoning for revisiting the definition in the Rehearing Order. According to the Services' argument, the new agency action provided for in this remand only offers the additional opportunity to offer new reasons supporting any legal authority for altering the Initial Determination's Service Revenue definition, beyond those that were raised in the appeal. Services' Additional Submission at 38-42
Copyright Owners argue that the Judges have the authority to engage in new agency action in this remand proceeding through a reconsideration of the Motion for Clarification as a motion for rehearing, pursuant to 17 U.S.C. 803(c)(2)(A) and 37 CFR 353.1. Copyright Owners urge, however, that proceeding in that fashion would add an entirely unnecessary and complicating step. They again suggest that there is no need to reconsider or recharacterize the Motion for Clarification as a motion for rehearing because the remand itself affords the opportunity for the Judges to take new agency action, which, as in a rehearing, permits them to reconsider evidence and arguments, but, unlike a rehearing, is not limited by the constraints of section 803(c)(2). CO Further Briefing, Tab B at 7-8.
Copyright Owners posit that if the Judges engage in new agency action to reconsider the Motion for Clarification as a motion for rehearing under 803(c), and to decide that motion based on all of the evidence in the record supporting the adopted bundle revenue definition and showing the prior bundle revenue definition to be unsupported and unreasonable, they may properly do so. They assert that the while they did not make a request for rehearing on the face of the Motion for Clarification, that is not the same as a finding that the standard could not have been met. The Judges may consider whether, based on the evidence in the record, the rehearing standard has been satisfied on this remand. In Copyright Owners' view, the Judges could conclude, revisiting on remand the question of whether the rehearing standard has now been met, that Copyright Owners have satisfied the “exceptional case” standard for granting rehearing motions under
The Services assert that the Judges cannot invoke their rehearing authority by construing the Motion for Clarification as a rehearing motion. They maintain that the D.C. Circuit expressly found that the revision of the Service Revenue definition for bundled offerings does not fall within the Judges' rehearing authority under section 803(c)(2)(A). The Services assert that Copyright Owners did not satisfy either prong of section 803(c)(2)(A), which authorizes rehearing only “upon motion of a participant” and “in exceptional cases.” They note that the D.C. Circuit agreed with the Judges' decision not to treat Copyright Owners' motion as one for rehearing and that the D.C. Circuit also agreed with the Judges' further finding that “Copyright Owners' motion did not meet the exceptional standard for granting rehearing motions.” Services' Further Briefing at 7 (citing
The Services add their view that the Judges are bound by the D.C. Circuit's conclusions on this issue. They maintain that because the Judges' section 803(c)(2)(A) rehearing authority is among the grounds that
The Services argue that Copyright Owners' Motion did not make any attempt to satisfy the exceptional cases standard set out in 17 U.S.C. 803(c)(2)(A). They argue that Copyright Owners did not purport to identify any new evidence, new legal authority, or even a substantive error in the Judges' reasoning in the Initial Determination, but instead the motion asserted that the Judges' inclusion of the definition of service revenue in the Initial Determination was supposedly inadvertent. The Services add that Copyright Owners did not identify any specific evidence in the
The Services point out that Copyright Owners' motion did not comply with the procedural requirements for a motion for rehearing. They then urge that the Judges cannot invoke their section 803(c)(2)(A) authority by rewriting a participant's motion to say it is seeking rehearing when that participant specifically and unambiguously disclaimed any intent to seek rehearing.
The Services note that the Judges previous conclusion that even if the Motion for Clarification had requested rehearing, that motion would not and does not meet that exceptional standard for granting rehearing and failed to make even a
The Services finally assert that this is not an extraordinary case where a party has identified an error that, if left uncorrected, would result in manifest injustice.
Copyright Owners assert that the prior bundle revenue definition (published in the Initial Determination) failed to address the “ `economic indeterminacy' problem inherent in bundling” appropriately and in a way consistent with Judges' precedent. CO Initial Submission at 75 (citing Order on Rehearing at 16-18). Copyright Owners proceeded to cite several portions of testimony from the Services' economic experts who acknowledged this problem.
Copyright Owners point out that the Judges already found with respect to other licenses that such an approach is not only fundamentally unfair, but “absurd.”
Copyright Owners point out that the proponent of a term bears the burden of proof as to adoption. The Judges made clear that the licensee who wishes to offer bundles must bear the burden of providing evidence that might mitigate the acknowledged economic indeterminacy problem inherent in bundling, because any such evidence would be in its possession, not in the possession of the licensors.
Copyright Owners dispute the Services' assertion that there is support for the
The Services argue that the evidence in the existing written record addressing bundles shows both that this definition is supported by the
Addressing the merits of the definition contained in the Initial Determination, the Services argue that it best serves the goals of the Copyright Act; that as a bright-line, easily administered rule, it continues the broad industry agreement from
The Services then assert that no other definition of service revenue for bundles that has been before the Judges combines both the administrative simplicity of the Initial Determination's definition and the broad price discrimination benefits of promoting discounted bundles. They maintain that while neither the Services nor Copyright Owners submitted evidence specifically addressing the way that customers, Services, or Copyright Owners might value the component parts of bundles, such subjective valuations are unnecessary for the Judges to find ample support for the
The Services also argue that while the Judges' decision in
Having considered the entirety of the record of this proceeding, a majority of the Judges (Definition Majority) conclude that this remand constitutes “new agency action” and meets all of the criteria to qualify as new agency action. The Judges thus have the opportunity to consider the issue afresh consistent with their procedural rules regarding remands.
The Definition Majority finds that it is unnecessary to attempt to distinguish new “agency action” from “new agency action.” Neither approach is endorsed clearly by the varied judicial interpretations of a new agency action.
Several reported cases point to new action as an alternative to a fuller explanation. But few define “new agency action” other than to say, as did the
New agency action is not synonymous with justification, or confirmation, of the prior action. New agency action is a procedural mechanism for reconsideration of the record, reopening the record for additional evidence and argument, and adoption of a conclusion based on the expanded record. In this instance, the presentations, written and oral, of participants on remand, together with a re-examination of the original record, support reversion to the definition originally announced in the Initial Determination. Ultimately, given repeated opportunities for legal analysis on the issue, both sides agreed that the remand proceeding itself, with ample notice and multiple opportunities for input was sufficient to constitute new agency action.
The Services argued, however, that notwithstanding this appropriate new agency action, the Judges remained without authority to adopt the revised definition as a term governing the royalty rates determined in this proceeding. Their arguments regarding procedures undertaken in the Determination are superseded by the Judges' conduct of extensive remand proceedings.
The present analytic approach merely takes the position that the Judges engaged in new agency action by conducting a fully open and broadly explored remand proceeding. Unlike a rehearing or exercise of continuing jurisdiction, this remand proceeding is not limited by the constraints of sections 803(c)(2) or 803(c)(4). Contrary to the Services' assertion, the Judges address the issue on which the D.C. Circuit remanded, the need to exercise authority within the lines drawn by the authorizing statute. This remand proceeding does not, therefore, violate the D.C. Circuit's order.
The
The Judges (the majority on this issue) determine that any confining action on remand to the provisions of sections 803(c)(2)(A) or 803(c)(4) would misconstrue the clear expression of the “new agency action” alternative presented by the D.C. Circuit,
The D.C. Circuit observed that the Judges have “considerable freedom to determine [their] own procedures.”
Case law regarding development of a “fuller explanation” of an agency's action emphasizes that the agency cannot adopt
The Judges, having engaged in new agency action to settle on the definition of service revenue for bundled offerings, do not find a need to address the statutory avenues or the confines that are provided for rehearing or continuing jurisdiction, nor do the Judges pursue the propriety of reconsideration of the
The fundamental difference between the impact of the two alternative definitions is simply stated:
To explain this difference, the Judges find it helpful to describe (as in the Determination and Dissent) how bundling facilitates price discrimination and how lower royalties for bundled streaming services incentivize such bundling.
Price discrimination occurs when a seller offers different units of output at different prices.
A seller can engage in price discrimination in several ways. One form is known as “second-degree price discrimination,” by which buyers self-sort the packages and quantities they purchase.
The applicability of these basic economic principles was understood and explained by the parties' experts at the hearing.
How does this downstream (retail level) benefit of price discrimination impact the setting of upstream royalty rates? As the Majority explained (in summarizing the Services' expert testimony) the linkage is explained by the economic concept of “derived demand”:
[M]ultiple pricing structures necessary to satisfy the WTP and the differentiated quality preferences of downstream listeners relate directly to the upstream rate structure to be established in this proceeding. Professor Marx opines that the appropriate
In the present proceeding, the PR II-based benchmark embodies the parties' negotiated definition of Bundled Revenue for purposes of calculating royalties on bundled interactive offerings. This is definition in the Initial Determination. Copyright Owners' preferred definition for Bundled Revenue—the Determination's definition—would not only ignore this agreed-upon definition, but would also de-link the royalty rate from the WTP of purchasers of bundles.
Under the definition in the Determination, royalties would be paid on the standalone $9.99/month Acme price. But the purpose of the bundling was to attract subscribers
By contrast, under the Initial Determination, the standalone price of NFL Sunday Ticket, $159.98/month, would be subtracted from the $140/month bundle price. Although that would preclude a payment of royalties on a
Expert testimony in this regard is “substantial evidence” on which the Judges can rely. For example, the D.C. Circuit also relied in
As in the case of family and student price discrimination, the beneficial effect of such differential pricing was supported by industry witnesses as well as expert witnesses.
Given the overall benefits from price discrimination, at first blush it is curious that Copyright Owners would risk “leaving money on the table” by removing the royalty-based incentive for price discrimination via bundling. The Judges have identified this problem earlier in this Initial Ruling, in connection with the broader issue of the overall beneficial price discriminatory structure of the PR II-based benchmark. As the Judges noted in that general price discrimination context, Copyright Owners' own expert economic witnesses acknowledged that they would not irrationally “leave money on the table.” In fact, Copyright owners' aim, according to that testimony, is to create an unregulated space—per the Bargaining Room theory—and to use their complementary oligopoly power to negotiate price discriminatory rates (in bundles or otherwise), which would free them from the section 801(b)(1) requirements of reasonableness and fairness.
The Judges further find that their prior ruling on this issue in
Even more distinguishable is Copyright Owners' assertion that
To be clear, the Judges are not declaring that an alternative Bundled Revenue definition and/or alternative rates and structures for bundle, might not have been preferable.
For the foregoing reasons, the Judges find that the definition in the Initial Determination (unlike the definition in the Determination) is consistent with the Judges' other substantive rulings herein. That is, just as the Majority abandoned its Bundled Revenue definition in its Initial Determination because it refused to credit the PR II-based benchmark (even as “guidance”), the Judges here do partially rely on the PR II-based benchmark, and thus find that it supports the Bundled Revenue definition contained in the Initial Determination.
As the forgoing analysis explains, bundling is a form of price discrimination. Accordingly, the Judges' explanation of how price discriminatory rates in the PR II-based benchmark interrelate with the Factor (A) through (D) objectives in section 801(b)(1) are equally applicable here. Accordingly, the Judges adopt by reference their discussion of those four factors set forth
On the basis of the foregoing analyses, and in consideration of the entirety of the record, the Judges make the following determination relating to the issues on remand from the D.C. Circuit.
As noted at the outset, the headline rate for all offerings throughout the
In all other respects, the rates and rate structure of the PR II-based benchmark shall be effective as the rates and structure throughout the
The definition of Service Revenue for bundled offerings throughout the
In light of the foregoing analyses and conclusions, the Judges hereby
The Judges
The Judges
The Judges
After the Judges have reviewed the parties' regulatory submissions, the Judges shall adopt and format the necessary regulatory language format terms relevant to this ruling and issue a
The parties shall not file any motions seeking rehearing or reconsideration of this Initial Ruling. Subsequent to the Judges' issuance of their Initial Determination after Remand as identified in the immediately preceding paragraph, any party may file a Motion for Rehearing within 15 days of the issuance of said Initial Determination after Remand.
After ruling on any and all Motions for Rehearing as identified in the immediately preceding paragraph, the Judges shall issue a Final Determination after Remand.
The present Order concerns a single issue in dispute among the parties
The dispute between the parties is whether the Judges should adopt in the Phonorecords III regulations: (1) the several “Total Content Cost” (“TCC”) rates
At a high level, the remaining regulatory issue is the following:
Whether a 26.2% TCC rate identified in the hearing record, and discussed both on appeal and on remand by the D.C. Circuit, should substitute for TCC rates in the Phonorecords III period, or whether these uncapped TCC rates should be set at the specific levels ranging between 20.65% and 22% set forth in the Phonorecords II-based benchmark adopted by the Judges in the Initial Ruling.
To frame, address, and rule on this issue, in this Order the Judges place the parties' dispute in the context of the prior rulings by the D.C. Circuit and the Judges in connection with this proceeding.
On January 5, 2016, the Judges initiated proceedings to determine the appropriate mechanical license royalty rates and terms for the January 1, 2018 to December 31, 2022 period.
In the Majority Opinion, the Judges adopted a “greater-of” royalty rate structure for the mechanical license, which contained a TCC rate applicable to all categories of offerings.
The Services appealed.
Copyright Owners argued in opposition that: (i) the Services' procedural rights were not violated because “every component” of the Majority's approach was contained in the hearing record; (ii) the Majority's rate and rate structure rulings were well-reasoned, factually supported and, therefore, not arbitrary and capricious; and (iii) sufficient reasons existed in the record to support the Majority's rejection of the Phonorecords II-based benchmark.
The D.C. Circuit vacated and remanded. More particularly,
1. The Majority Determination “failed to provide adequate notice of the drastically modified rate structure [they] ultimately adopted,” which was beyond “a reasonable range of contemplated outcomes” in “the parties' pre-hearing proposals, the arguments made at the evidentiary hearing, and the preexisting rate structures.”
2. The appellate issue of whether the Majority's adoption of the (phased-in) 26.2% TCC royalty rate was “arbitrary and capricious” could not be addressed—given the absence of “adequate notice” cited in point (1) above.
3. The Majority's derivation, calculation
4. The Majority's rejection of the Phonorecords II-based benchmark is remanded because the D.C. Circuit “cannot discern the basis on which the [Judges] rejected the Phonorecords II rates as a benchmark in [their] analysis, that issue is remanded to the [Judges] for a reasoned analysis.”
On remand, the Judges adopted procedures that mainly followed the parties' requests. More particularly, the Judges followed the D.C. Circuit's directive and reopened the evidentiary record to receive evidence and testimony relating to the TCC issues.
On July 1, 2022, the Judges issued their Initial Ruling
1. The Phonorecords II-based benchmark incorporates price discriminatory features for product differentiation as between: (a) subscription and ad-supported services; (b) portable and non-portable services; and (c) unbundled and bundled services.
2. The Phonorecords II-based benchmark “reflect[s] a rate structure with an adequate degree of competition, because there was a balance of bargaining power [“countervailing power”] between the two negotiating industrywide trade associations, offsetting the complementary oligopoly effects in place when a “Must Have” licensor bargains separately with each licensee.” Initial Ruling at 69.
3. Based upon the available record evidence, the Judges find . . . the Services' Phonorecords II-based benchmark . . . “more than sufficient to satisfy the legal requisites for application, as well as a practical benchmark, when used in conjunction with the 15.1% headline revenue rate advocated by Copyright Owners.” Initial Ruling at 59.
4. “Substantial evidence demonstrates that the Phonorecords II-based benchmark rates, other than the headline rate, are not `too low.' ” Initial Ruling at 73.
5. A Copyright Owner expert witness opined that “the evidence . . . indicates that the relative valuation ratios implied by the current Section 115 compulsory license [
6. The royalty rates and terms within subpart C of the Phonorecords II-based benchmark—
7. The D.C. Circuit had affirmed that: (a) the “headline” percentage royalty rate (not a TCC rate) of 10.5% was too low; and (b) that the Majority had not improperly exercised its authority when it increased that revenue royalty rate to 15.1% (as phased-in over the five-year rate term). Accordingly, on remand, the Judges maintained the 15.1% (phased-in) percentage royalty rate.
8. The D.C. Circuit affirmed the Majority's
For these reasons, the Judges decided in the Interim Ruling that: (1) the overall Phonorecords II rates comprise a “useful benchmark,” when the 15.1% headline percentage rate replaces the 10.5% headline percentage rate for the offerings in Subparts B and C of the Phonorecords II-based benchmark; and (2) “[t]he (phased-in) 26.2% rate [is] unreasonable.” Initial Ruling at 50 n.77; 88; and 93-94.
In the Initial Ruling, the Judges directed the parties to attempt to submit jointly agreed-upon regulatory provisions implementing the Initial Ruling, for the Judges to consider. The Judges further ruled that, if the parties could not agree on all the regulatory language, they should make separate submissions regarding regulatory provisions in dispute.
The parties agreed to many regulatory provisions but disagreed as to several such provisions. Accordingly, they filed separate submissions and respective replies, regarding the regulatory provisions. Services' Joint Submission of Regulatory Provisions (July 18, 2022); Copyright Owners' Submission of Regulatory Provisions to Implement the Initial Ruling (July 18, 2022); Services' Joint Response to Copyright Owners' Submission of Regulatory Provisions (Aug. 5, 2022); Copyright Owners' Response to Judges' July 27, 2022 Order Soliciting Responses Regarding Regulatory Provisions (Aug. 5, 2022).
The Judges considered those submissions and entered an order addressing the disputed regulatory provisions.
In the November 10th Order, the Judges directed the parties once more to file a joint submission “of regulatory provisions that embody the rulings set forth in
On November 30, 2022, the parties made the Joint Submission (as also identified at the outset of the present Order), in which they provided joint regulatory language no longer in dispute that applied the binding rulings of the Judges and the D.C. Circuit. However, as also noted above, the parties identified the single issue in dispute that relates to the nine service offerings described
According to Copyright Owners, the Initial Ruling “appears to plainly acknowledge that, in light of
According to Copyright Owners, the foregoing points are consistent with the limited scope of the remand, which “was not opened for new evidence concerning TCC rate percentages.” Joint Submission at 7 (citations omitted). Accordingly, Copyright Owners emphasize that “there is no evidence in the record after remand to support changing the (phased-in) 26.2% TCC rate percentage.” Joint Submission at 7. Copyright Owners—characterizing the former Phonorecords II TCC rates now at issue as newly derived and calculated—maintain that these “new” TCC rate percentages therefore are “foreclosed” by the Initial Ruling and post-remand orders cited above. Joint Submission at 7-8.
Copyright Owners also assert that the TCC rate at issue here—“was not appealed by the Services or challenged during the remand, nor called into question by the Circuit in
According to the Services, the Judges should adopt in the regulations the TCC percentage rates—ranging from 20.65% to 22%—because those rates are contained in the Phonorecords II-based benchmark adopted by the Judges and thus essentially have been “expressly set out by the Judges” in two prior decisions. Joint Submission at 2 (citing Initial Ruling at 2; November 10th Order at 6 n.13). In light of these prior Orders, the Services characterize
More pointedly, the Services argue that the Judges' Initial Ruling already expressly considered and rejected application of the 26.2% TCC rate.
The Services further maintain that
For the above reasons, the Services maintain that the Judges could not possibly be required on remand to adopt an express 26.2% in any portion of the Phonorecords III regulations.
Turning from their argument that the 26.2% TCC rate was rejected by the Judges, the Services focus on the Judges' finding in the post-remand Initial Ruling that the “
Finally, with regard to subsequent substantive challenges to the Initial Ruling, the parties correctly understand that such challenges can be made after the Judges issue their post-remand “Initial Determination” (a statutorily-mandated ruling).
Having considered the parties' submissions, the Initial Ruling and all other pertinent material, the Judges rule that the 26.2% TCC rate cannot and shall not be applied in the regulatory provisions now at issue. Rather, the Judges rule that the TCC rates set forth in the Phonorecords II-based benchmark shall be applied in the nine regulatory provisions now at issue, because they are consistent with and give effect to the Judges' Initial Ruling. The more particular bases for this ruling are set forth below.
Most fundamentally, the Judges note at the outset that in the Initial Ruling they expressly
In this regard, the Initial Ruling has relied upon the clear distinction made in
Further, the offerings now at issue were contained in the Phonorecords II-based benchmark, and the Judges' application of that benchmark in the Initial Ruling is unambiguous: Other than the new and increased headline rate of 15.1%, “the rates and rate structure of the
By contrast, Copyright Owners' proposed language introduces a change in the Phonorecords II-based benchmark rates that was never the subject of an evidentiary proceeding pre-or post-remand, whether through live or written testimony. But perhaps more importantly, as a matter of
Further, as the Services note, Copyright Owners themselves—even when advocating for an otherwise across-the-board 26.2% TCC prong—had continued to propose the 20.65% to 22% TCC rates for the nine offerings at issue now.
The Judges also reject Copyright Owners' argument that by maintaining the 20.65% through 22% TCC rates in the Phonorecords II-based benchmark they would be violating their prior rulings regarding the scope of the remand. Citing to the Judges' Order Regarding Proceedings on Remand at 1 (eCRB no. 23390) (“Remand Order”), Copyright Owners state in their Joint Submission that that the remand “was not opened for new evidence concerning TCC rate percentages.” Joint Submission at 7. But the decision to re-open the existing, and robust, evidentiary record only as to rate
Moreover, the Judges find no language in either the Remand Order or the Remand Scheduling Order, and no other basis, that would support Copyright Owners' characterization of the 20.65% through 22% TCC rates in the Phonorecords III-based benchmark as new evidence, given that they were expressly included in that benchmark which had been proffered at the hearing
Further, the present issue of whether the regulatory provisions implementing the Initial Ruling should apply the Phonorecords II-based benchmark TCC rates or the 26.2% TCC rate is
The Judges also reject Copyright Owners' argument that the Services somehow waived their argument for maintaining the 20.65% through 22% TCC Phonorecords II-based benchmark rates. More particularly, Copyright Owners incorrectly assert that these rates were “not appealed by the Services. . . .” Joint Submission at 8. Rather, the D.C. Circuit stated unambiguously: “[T]he Streaming Services object to the [Judges'] . . . rejection of the Phonorecords II . . . settlement[ ] as [a] rate benchmark[ ].”
Moreover, the D.C. Circuit repeatedly noted that it was vacating and remanding the Majority's Determination with regard to,
Likewise, Copyright Owners are wrong in their claim that the Services had never “challenged” these rate issues “during the remand.” Joint Submission at 8. Rather, the Services argued on remand for the Phonorecords II-based benchmark to be applied
Finally, the Judges find and conclude that their ruling in this Order sets forth reasonable rates satisfying the four objectives in the then-applicable (but now superseded) statutory rate standard contained in 17 U.S.C. 801(b)(1).
Further with regard to Factor (A), the Judges understand their analysis and reasoning in the Initial Ruling—applying the Phonorecords II-based benchmark and thus rejecting the 26.2% TCC rate—to be applicable to the present dispute regarding the adoption of regulations to implement the Initial Ruling. Accordingly, the Judges adopt by reference herein their analysis and reasoning set forth at pages 90-91 of the Initial Ruling. For those reasons, the Judges decide, as they did in the Initial Ruling, that there is no basis for yet a
Next, in considering Factors (B) and (C),
In their Joint Submission, the parties have presented no arguments specifically addressing how Factors (B) or (C) might support their proposed TCC rates now at issue. Examining the record, the Judges find and conclude that maintaining the Phonorecords II-based rates ranging from 20.65% to 22% embodies the fairness associated with rates negotiated between industrywide trade associations wielding relatively comparable bargaining power, as discussed
Finally, the Judges see no reason to alter their adoption of the Phonorecords II-based benchmark rates for the nine offerings at issue in this Order based upon the final listed statutory objective, Factor (D).
Moreover, the Judges reassert their point in the Initial Ruling that there is no need to independently consider any potential disruption under the Factor (D) standard because the Judges have already found an application of that rate to be unreasonable.
For the foregoing reasons, the Judges shall adopt in the regulatory provisions
Within two days of the date of issuance of this Restricted Order, the parties shall file an agreed proposed redacted version for public viewing.
I respectfully Dissent from Section IV of the Initial Ruling and Order after Remand (Initial Ruling). As explained herein, I conclude that the D.C. Circuit's rulings in
As further explained herein, the argument is
The Majority also renders Johnson
I join with the Majority though on its
To explicate the bases of this Dissent, my opinion as to this issue is set forth below.
The Majority and I analyze the definition of “Service Revenue” from “Bundled Offerings” (henceforth “Bundled Revenue” definition) in the context of our partial adoption of the PR II-based benchmark. As discussed
In the Determination, the earlier Majority likewise found the issues relating to the PR II-based benchmark to be bound-up with the question of the appropriate Bundled Revenue definition. But because that earlier Majority
In the interregnum between the Initial Determination and the (Final) Determination, the Judges considered Copyright Owners' post-hearing motion which sought,
Unlike in the Determination, in this Initial Remand Ruling the Judges
As a
As a
In this remand proceeding, the parties propose two starkly different definitions of Bundled Revenue. Each has a dramatically different impact on the use of the royalty structure and levels to incentivize price discrimination in the downstream market.
The Services argue in favor of the language contained in the Initial Determination,
the revenue recognized from End Users [
By contrast, Copyright Owners support the Majority's substituted language contained in the Determination, which defines Bundled Revenue, in pertinent part, as
the lesser of the revenue recognized from End Users [
In
In its Initial Determination, the [Judges] directed that the revenue from streaming services that are included in bundled offerings would generally be measured by the value remaining after subtracting the prices attributable to the other products in the bundle.
When the Copyright Owners objected to the substance of that definition in their motion for “clarification,” the Board adopted an entirely new definition of Service Revenue for bundled offerings. . . . This new definition generally measured the value of the streaming component of a bundle as the standalone price of the streaming component.
In the Clarification Order, the Judges succinctly summarized the parties' respective positions.
The Majority resolved this issue in the Clarification Order in favor of Copyright Owners. Specifically, the Majority found that, because of the “indeterminacy problem”
The Services appealed the Majority's abandonment of the Bundled Revenue definition in their Initial Determination. Their appeal “challenge[s] both the legal authority and the substantive soundness” of this switch.
First, the Services argued that the Majority failed to identify and explain the
The D.C. Circuit agreed with the Services regarding the
The D.C. Circuit's rulings in
To be precise, I take note of the following specific rulings in
1. “The problem is that the [Majority] has completely failed to explain under what authority it was able to materially rework that definition so late in the game.”
2. “The [Majority] did not treat Copyright Owners' motion to have the definition changed as a motion for rehearing . . . [because] Copyright Owners' motion did not request a literal rehearing of evidence or legal argument.”
3. “The [Majority] nowhere in its order or the [ ] Determination explains the source of its power to make `fundamental' changes under the authorizing statute . . . .”
4. “[I]t should go without saying that we may not sustain the Board's action based on its attorney's theorizing at oral argument . . . vacillating gestures to uninvoked authority will not do.”
“We must vacate the [ ] Determination's bundled offering Service Revenue definition and remand for the [CRB Judges] either to provide `fuller explanation of the agency's reasoning at the time of the agency action[,]' or to take `new agency action' accompanied by the appropriate procedures.”
Post-remand, the Judges stated their understanding, as well as the parties' understanding, of the issue on remand with respect to the Bundled Revenue definition:
The Services and Copyright Owners agree that the proceedings on remand should be limited to three issues: * * * [3] the adoption of a revised definition of “service revenue” for bundled offerings between issuing their Initial Determination and [their] Determination.
The parties proposed, and the Judges agreed, that the record would not be re-opened with regard to the Bundled Revenue definitional issue. Rather, the Remand Order permitted the parties only to provide further briefing on this matter.
In their respective briefing, Copyright Owners and the Services made arguments relating to: (1) the
Copyright Owners assert first that the Judges can preserve their post-hearing switch of the Bundled Revenue definition by sidestepping the D.C. Circuit's holding and rationale in
[T]he new agency action here is a determination after remand proceedings[.] [T]he [Judges are] largely free to chart [their] own procedural course, and [they] ha[ve] done so in [their] [Remand] Order. The [Judges are] not required to undertake any of the procedural steps set forth in 17 U.S.C. 803(b) in order to take such “new agency action.” See 17 U.S.C. 803(d)(3) (requiring only that on remand further proceedings be taken “in accordance with subsection (a)”); 37 CFR 351.15;
Copyright Owners reject the Services' position that the asserted procedural error is an “absence of authority” that can never be cured.
Copyright Owners further opine that if the only possible outcome were for the Judges to reinstate a definition that lacked any explanation or evidentiary support solely because it was present in the Initial Determination, then the D.C. Circuit would not have remanded the issue but would have simply reversed and reinstated the Initial Determination definition. But instead, they note, the D.C. Circuit remanded and said the Judges could take “new agency action” precisely to cure the asserted procedural defect. Copyright Owners assert that the remand allowed the parties to present the record evidence and their arguments so that the Judges can address the definition “afresh” in the remand determination.
Further, Copyright Owners argue that 17 U.S.C. 803(d)(3) states only that proceedings on remand must be in accordance with 17 U.S.C. 803(a). They contend that remand proceedings need not be confined to procedures the Services claim are too late in the game for the Judges to follow, again relying on the holding in
Also, Copyright Owners argue that the Judges may properly justify the changed definition under section 803(c) as a fuller explanation of the agency's reasoning at the time it was made. They urge that the Judges could explain that, especially in light of the evidence of how (in Copyright Owners' characterization) the Services misused the prior definition to make service revenue completely disappear, the Judges carry-over of the prior Bundled Revenue definition from
Copyright Owners also assert that, on remand, the Judges could explain that Copyright Owners had, in their Motion for Clarification, identified an “exceptional case” under section 803(c)(2) because the prior definition failed to comport with Judges' precedent and economic principles, and was unsupported by evidence. In addition, the Judges reheard the evidence and legal arguments as presented in the parties' briefs on the issue and, as a result, chose to adopt the revised definition. Copyright Owners maintain that for the Judges to do so would not be impermissible
Further, and again notwithstanding the holding in
However, Copyright Owners urge that proceeding in that fashion would add an entirely unnecessary and complicating step. They again suggest that there is no need to reconsider or recharacterize the Motion for Clarification as a motion for rehearing because the remand itself affords the opportunity for the Judges to take new agency action, which, as in a rehearing, permits them to reconsider evidence and arguments, but, unlike a rehearing, is not limited by the constraints of section 803(c)(2).
The Services' arguments are based on the reasoning of the D.C. Circuit in
According to the Services, the
The Services add their view that the Judges cannot revisit the decision to deny rehearing without engaging in impermissible
The Services next argue, relatedly, that the Judges cannot simply recast the Services Motion for Clarification as a rehearing motion in an attempt to satisfy the rehearing standard. In this regard, they maintain that Copyright Owners did not argue before the Judges or the D.C. Circuit that their Motion for Clarification satisfied the “exceptional cases” standard, and have therefore waived that argument.
The Services assert that the
The Services argue that the
The Services also note that the D.C. Circuit rejected the argument that the Judges have an “inherent authority”—unmentioned in the statute—to make changes to the Initial Determination. The D.C. Circuit explained that the specific restrictions Congress placed on the [Judges'] authority in section 803 “would be a nullity if [they] also had plenary authority to revise [their] determinations whenever [they] thought appropriate.”
The Services also reject Copyright Owners' position that the Judges may sidestep the D.C. Circuit's ruling by issuing a new determination on remand and simply arguing that
The Services also take note of the alternative path available to the Judges: to provide a “fuller explanation” of the prior conclusion that the Judges had legal authority to revise the Service Revenue definition. The Services maintain that if the Judges pursue the “fuller explanation” path, the Judges are limited to elaborating on what they said previously, and that they cannot add new reasons they did not initially provide.
The Services address Copyright Owners' position that if the only possible outcome were for the Judges to reinstate a definition that lacked any explanation or evidentiary support solely because it was present in the Initial Determination, then the D.C. Circuit would not have remanded the issue but would have simply reversed and reinstated the Initial Determination definition. The Services urge that the D.C. Circuit could not reverse because the CRB's appellate counsel had raised—for the first time on appeal—new justifications for the Judges' decision to change the Initial Determination. Instead, the Services maintain, the D.C. Circuit had to remand and give the Judges the opportunity to address appellate counsel's new justifications in the first instance, as the D.C. Circuit could not rule them out given the posture of the appeal. Services' Reply at 56.
Having considered the parties' arguments, I conclude that the rulings in
In reaching this conclusion, I take note of the following specific language in
Section 803 identifies three ways in which the Board can revise Initial Determinations. It can (i) order rehearing “in exceptional cases” in response to a party's motion; (ii) correct “technical or clerical errors,”; and (iii) “modify the terms, but not the rates” of a royalty payment, “in response to unforeseen circumstances that would frustrate the proper implementation of [the] determination.”
First, I consider whether in the present case they can engage in “new `agency action'” pursuant to 17 U.S.C. 803(c)(2)(A) by recasting Copyright Owners' Motion for Clarification as a Motion for Rehearing. I conclude that this avenue has been unambiguously cut-off by
The [CRB Judges'] material revision of the Bundled Revenue definition . . . does not fall within [their] rehearing authority under Section 803(c)(2)(A). We have that on no less an authority than the [CRB Judges themselves], [who were] explicit that [they] “did not treat the Copyright Owners' motion” to have the definition changed “as a motion] for rehearing under 17 U.S.C. 803(c)(2).” That is because the Copyright Owners' motion did not “request[ ] a literal rehearing of evidence or legal argument.”
Nor could they have because, as the [CRB Judges] found, the Copyright Owners' motion did “not meet [the] exceptional standard for granting rehearing motions” under Section 803(c)(2). . . . [The CRB Judges] explain[ed] that . . . Copyright Owners “failed to make even a
Further cutting off this “rehearing” approach,
Next, I consider whether the Judges can engage in “new `agency action'” by recharacterizing their switch of the Bundled Revenue definition as an attempted correction of “technical or clerical errors,” pursuant to their “continuing jurisdiction” under section 803(c)(4). Once again, they cannot, and the D.C. Circuit has effectively explained why this is so:
The [Judges] do[ ] not even try to squeeze [their] substantive rewrite of the Service Revenue definition into that [§ 803(c)(4)] category. Quite the opposite, the [Judges] admit[ ] that the new definition “represent[s] a departure” from the definition in the Initial Determination, and was a substantive swap designed to “mitigate” the alleged “problem” of the original definition leaving the interactive streaming service providers free to “obscure royalty-based streaming revenue by offering product bundles that include music service offerings with other goods and services[.]” . . . To that same point, the order itself labels the initial and new definitions “diametrically-opposed approaches to valuing bundled revenues.” . . . . Nothing technical or clerical about that.
On remand, I am unable to ascertain any basis for describing or justifying the changed Bundled Revenue definition as a technical or clerical correction. Thus, I conclude that the Judges cannot engage in “new `agency action'” pursuant to this section.
Next, I consider whether the Judges can engage in “new `agency action'”—
Come oral argument, the [Judges] attempted to explain that “the unforeseen circumstances would be that [they] initially adopted a definition that was not supported by the record, and that was in fact substantively unreasonable and would frustrate the proper implementation of their determination.” . . . It is hard to see how the need to ground the original definition in the record was an unforeseen circumstance. That is Administrative Law 101.
I further consider the argument (made by the Judges' appellate counsel and by Copyright Owners) that the Judges have the “inherent authority
As with regard to the proffered rationales discussed
Finally, I consider Copyright Owners' suggestion that the
The argument begins with a correct premise but seriously veers off course. Copyright Owners correctly note (and the Services do not disagree) that this remand proceeding constitutes “new `agency action.'” Copyright Owners then maintain that, because the Copyright Act does not provide for procedures that govern remand proceedings, the Judges are statutorily unconstrained with regard to the procedures they may adopt. This premise, although perhaps correct in other contexts, is most definitely incorrect in this specific context, given the clear holding in
Here, the D.C. Circuit has been unequivocal in identifying the statutory limitations that precluded the Judges from switching out the Bundled Revenue definition in their Initial Determination and replacing it with a different definition in the Determination that was, to use the Majority's phrase, “diametrically opposed” to the prior definition, in that it would eliminate the royalty-based incentive to price discriminate via bundling.
A reading of section 803(a), upon which Copyright Owners rely, provides a further demonstration of the error in this argument. This subsection lists the authorities whose pronouncements the Judges must “act in accordance with,” including, quite unsurprisingly, “the decisions of the court of appeals under this chapter.” 17 U.S.C. 803(a). In the instant case, the D.C. Circuit has unambiguously held that the Judges lacked the statutory authority to make the definitional switch at issue. For the Judges to construe that clear ruling as an implicit invitation to create new extra-statutory remand procedures that contradict the D.C. Circuit's rationale for the remand would be inexplicable and would render useless the procedural ruling in
In sum, I cannot and do not understand that the D.C. Circuit intended in
Also, 17 U.S.C. 803(d)(3) explicitly allows the D.C. Circuit to “vacate [a] determination of the . . . Judges and remand the case to the . . . Judges for further proceedings,” but only expressly allows the court to “enter its own determination”” in connection with “the amount or distribution of royalty fees and costs, and order the repayment of any excess fees, the payment of any underpaid fees and the payment of interest pertaining respectively thereto . . . .”
Accordingly, the Bundled Revenue definition in the Initial Determination should be reinstated. As explained in the portion of the Initial Remand Ruling in which I join, this reinstatement is harmonious with the entirety of the Judges' findings and conclusions regarding the other remanded issues.
Regarding the definition of “Service Revenue” from bundled offerings, the Judges summarized the parties' competing arguments:
Copyright Owners presented evidence that the existing approach led,
The Services rely on the fact that the approach to bundled revenue in the extant regulations is derived from the 2012 Settlement. The Judges have, however,
Despite these arguments, the Judges found that neither party presented evidence adequate to support the approach advocated in post-determination filings, because the “economic indeterminacy problem inherent in bundling” remained unresolved.
On remand, the parties have made the following arguments regarding the substance of the Bundled Revenue definition:
According to Copyright Owners, the prior Bundled Revenue definition in the Initial Determination failed to address the “ ‘economic indeterminacy’ problem inherent in bundling” appropriately and in a way consistent with Judges' precedent. CO Initial Submission at 75 (citing Clarification Order at 16-18). Copyright Owners proceeded to cite several portions of testimony from the Services' economic experts who acknowledged this problem.
Copyright Owners point out that the Judges already found with respect to other licenses that such an approach is not only fundamentally unfair, but “absurd.”
Copyright Owners also point out that the proponent of a term bears the burden of proof as to adoption. The Judges made clear that the licensee who wishes to offer bundles must bear the burden of providing evidence that might mitigate the acknowledged economic indeterminacy problem inherent in bundling, because any such evidence would be in its possession, not in the possession of the licensors.
They further argue that the hearing record and the Judges' precedent and reasoning further explain the unreasonableness of the prior definition and support the adopted bundle revenue definition.
Copyright Owners dispute the Services' assertion that there is support for the
The Services argue that the evidence in the existing written record addressing bundles shows both that this definition is supported by the
Addressing the merits of the definition contained in the Initial Determination, the Services argue that it best serves the goals of the Copyright Act; that as a bright-line, easily administered rule, it continues the broad industry agreement from
The Services contend the prior negotiated definition increases output and incentivizes beneficial price discrimination to reach casual and passive listeners who would otherwise not pay for music and thus would not generate revenue from which royalties could be paid. With regard to [REDACTED].
They further state that the definition of Bundled Revenue in Phonorecords II also enabled funneling of many of listeners into full-priced, full-catalog services. The Services allege that Copyright Owners also ignore the extensive royalties that were generated. They add that, for casual/passive listeners and those who may be funneled to subscription services, the per-subscriber minimum guarantees that the Copyright Owners will still be paid a fair royalty. The Services then cite several portions of testimony from various Services' economic experts who point out the realization of an expanded royalty pool, which the Services offer as proving a functioning marketplace.
The Services maintain that while neither the Services nor Copyright Owners submitted evidence specifically addressing the way that customers, Services, or Copyright Owners might value the component parts of bundles, such subjective valuations are unnecessary—given that the parties' negotiated handling of the bundling issues provides the Judges with ample support for the PR II-based benchmark definition in the Initial Determination. See
The Services also argue that while the Judges' decision in SDARS III did involve valuation of the music and non-music components of a bundle, the resolution in SDARS III is inapposite because, here, the rate structure has a way of ensuring that Copyright Owners are fairly compensated from bundles: the statutory minimum payment. Services' Reply at 62.
The fundamental difference between the impact of the two alternative definitions is simply stated:
To explain this difference, the Judges find it helpful to describe (as in the Determination and Dissent) how bundling facilitates price discrimination and how lower royalties for bundled streaming services incentivize such bundling.
Price discrimination occurs when a seller offers different units of output at different prices.
A seller can engage in price discrimination in several ways. One form is known as “second-degree price discrimination,” by which buyers self-sort the packages and quantities they purchase.
The applicability of these basic economic principles was understood and explained by the parties' experts at the hearing.
How does this downstream (retail level) benefit of price discrimination impact the setting of upstream royalty rates? As the Majority explained (in summarizing the Services' expert testimony) the linkage is explained by the economic concept of “derived demand”:
[M]ultiple pricing structures necessary to satisfy the WTP and the differentiated quality preferences of downstream listeners relate directly to the upstream rate structure to be established in this proceeding. Professor Marx opines that the appropriate
In the present proceeding, the PR II-based benchmark embodies the parties' negotiated definition of Bundled Revenue for purposes of calculating royalties on bundled interactive offerings. This is the definition in the Initial Determination. Copyright Owners' preferred definition for Bundled Revenue—the Determination's definition—would not only ignore this agreed-upon definition, but would also de-link the royalty rate from the WTP of purchasers of bundles.
Under the definition in the Determination, royalties would be paid on the standalone $9.99/month Acme price. But the purpose of the bundling was to attract subscribers
By contrast, under the Initial Determination, the standalone price of NFL Sunday Ticket, $159.98/month, would be subtracted from the $140/month bundle price. Although that would preclude a payment of royalties on a
Expert testimony in this regard is “substantial evidence” on which the Judges can rely. For example, the D.C. Circuit also relied in
As in the case of family and student price discrimination, the beneficial effect of such differential pricing was supported by industry witnesses as well as expert witnesses.
Given the overall benefits from price discrimination, at first blush it is curious that Copyright Owners would risk “leaving money on the table” by seeking to remove the royalty-based incentive for price discrimination via bundling. The Judges have identified this problem earlier in this Initial Remand Ruling, in connection with the broader issue of the overall beneficial price discriminatory structure of the PR-based benchmark. As the Judges noted in that general price discrimination context, Copyright Owners' own expert economic witnesses acknowledged that they would not irrationally leave money on the table. In fact, Copyright owners' aim, according to that testimony, is to create an unregulated space—per the Bargaining Room theory—and to use their complementary oligopoly power to negotiate price discriminatory rates (in bundles or otherwise), which would free them from the section 801(b)(1) requirements of reasonableness and fairness.
The Judges further find that their prior ruling on this issue in
Even more distinguishable is Copyright Owners' assertion that
Here, the issue, is how to address the WTP of different classes of buyers with heterogeneous WTP, not the pricing of a quantity discount. The parties addressed this issue by utilizing the Bundled Revenue definition contained in the PR II-based benchmark (and in the Initial Determination) to address the indeterminacy inherent in the variable WTP among purchasers of the bundles, by setting floors and minima, rather than attempt to sort out the WTP of individual (or individual blocs) of
To be clear, the Judges are not declaring that an alternative Bundled Revenue definition and/or alternative rates and structures for bundle, might not have been preferable.
For the foregoing reasons, I find that—even if the Judges had a procedural mechanism by which to support the switch in the Bundled Revenue definition—I would decline to utilize it in this Initial Remand Ruling, because the definition in the Initial Determination (unlike the definition in the Determination) is consistent with the Judges' other substantive rulings herein. That is, just as the Majority abandoned its Bundled Revenue definition in its Initial Determination because it refused to credit the PR II-based benchmark (even as “guidance”), the Judges here do partially rely on the PR II-based benchmark, and thus find that it supports the Bundled Revenue definition contained in the Initial Determination.
As the forgoing analysis explains, bundling is a form of price discrimination. Accordingly, the Judges' explanation of how price discriminatory rates in the PR II-based benchmark interrelate with the Factor A through D objectives in section 801(b)(1) are equally applicable here. Accordingly, the Judges incorporate by reference here their discussion of those four factors set forth
This Dissent in part is issued as a RESTRICTED document. Within 30 days of the date of issuance, the participants shall file a version of this Dissent with agreed redactions to permit viewing by the public.
The Copyright Royalty Judges (Judges) sit as a panel in all determination proceedings.
The undersigned Judge, author of this dissent in part (Benchmark Dissent) respectfully dissents
The Benchmark Dissent adopts the statements regarding the background and procedural posture of this remand proceeding.
The Benchmark Dissent agrees with the Remand Majority's retention of the headline percent-of-revenue rate and its phase-in over the period at issue.
For the reasons articulated in the Initial Ruling and the reasoning of the judge dissenting from that portion of the Initial Ruling, the definition of Service Revenue for bundled offerings contained in the Initial Determination must be adopted.
The first function of the Judges is “to make determinations . . . of reasonable terms and rates of royalty payments. . . .” 17 U.S.C. 801(b)(1). Under the statute in effect during the captioned proceeding, the rates shall be calculated to achieve four statutory objectives.
In general, in promulgating regulations the Judges aim to effect efficient and effective payment of royalty license fees. Regulations relating to license royalty rates describe the rates the Judges determine to be reasonable, whether presented by agreement of the affected parties or after adjudication. The regulations include, where necessary, methods of calculation of the payable royalties. The regulations also include such provisions as recordkeeping requirements, late fee assessments, and audit authority. As the Remand Majority points out, simplicity and clarity were not among the statutory factors applicable to determining royalty rates in the captioned underlying proceeding. Simplicity and clarity should, however, be paramount among the Judges' considerations in governing rate payment procedures.
In recent proceedings, the Judges have emphasized that the statute requires that they set both rates and terms. At the end of a different royalty rate proceeding, having been confronted with competing proposed regulations, or even with largely agreed regulatory terms, upon which the parties had proffered no evidence, the Judges cautioned counsel in this proceeding:
Please be reminded that the Judges have an obligation to set both rates and terms. . . . In any proceeding, just because a regulation is in the current Code of Federal Regulations does not mean that the Judges are adopting that term. . . . The Judges cannot determine rates or terms without an evidentiary record. . . . The Judges cannot adopt any terms of royalty administration unless the parties present evidence to support their proposed terms.
In the proceeding underlying the Determination, the parties proffered a variety of proposed regulations.
Amazon proposed retaining the PR II rate structure.
Apple proposed a per-play rate calculation, which would render the PR II rates and rate structure obsolete. Notwithstanding the different structure, however, Apple offered valid criticisms of the PR II rate structure. Apple termed the PR II rate structure “problematic.”
Apple noted that across the ten rate categories in the PR II rates, “there are roughly 79 different calculations that can be made.”
Google's proposal, from which the Majority derived the uncapped TCC rate prong of the Determination, contended that the “fragmented service categories are unnecessary under [its] proposal. . . .” Google, Inc.'s Proposed Findings . . . and Conclusions. . . (May 11, 2017) ¶ GPFF58. Google acknowledged questions regarding the complexity of the PR II rate structure. Google, therefore proposed a rate structure that would both streamline the regulations and protect Copyright Owners' concerns regarding Services' revenue deferment and displacement.
In the captioned underlying proceeding, the Judges heard little evidence offered in resounding support or vehement objection to the regulations the parties proffered. No party argued or supported the proposition that the PR II rate structure was the only way, or even the best way, to achieve license fee payment.
In this remand proceeding, no party argued against the all-in approach to rate calculation. The parties disagreed regarding retention of “mechanical floors” for configurations for which the Services must pay mechanical royalties both to Copyright Owners in this proceeding under section 115 and to Performing Rights Organizations (PROs) according to the determinations of the “Rate Court.”
The Remand Majority cites with approval the remand parties' criticism of the simplified rate structure in the Determination,
This is a Dissent in Part. The undersigned Judge does not disagree with the headline rate being retained at 15.1% or with the imposition of a TCC cap, for the reasons elucidated by the Remand Majority. Nonetheless, the Benchmark Dissent continues to disagree with adoption of the entirety of the rate
In the underlying proceeding, the Majority declined to label the rate structure and resulting rates incorporated in the regulations promulgated after the
Copyright Owners argue that the D.C. Circuit's remand for further explanation did not equate to finding error in the Judges' rejection of the PR II-based benchmark.
While the Copyright Owners' parsing of
As repeated by the parties in the initial proceeding and in their remand submissions, for an exemplar to serve as a useful benchmark, it must be compared to the target market. The hallmarks of a useful benchmark are: (1) unity of products, (2) unity of sellers, and (3) unity of buyers. In addition, (4) economic circumstances and market conditions can influence the value of a benchmark.
In the Remand Majority opinion, the Judges argue that the PR II rate structure meets “most of the requisites for a useful benchmark.”
The PR II rates regulated “sales” of the same licensing rights as those at issue in the current underlying proceeding,
The songwriter or songwriters own the copyright for musical works, that is, the musical notes and lyrics. In general, songwriters sell or license their works to publishers who fix the works to a physical medium, for example, piano rolls or sheet music. Music publishers also market the musical works licenses to record companies for their sound recordings. In today's market,
The Services argue unity of rights and sellers between the time of the PR II rates and the current proceeding. With respect to buyers, the Services allege that the current buyers are “the same or similar. . . .” Services' Initial Submission at 20. The Services argue that the PR II rates involved “either the same type of buyers or the very same buyers as this proceeding.”
The Services allege that “[m]ost of the participants in Phonorecords III were either directly involved in the Phonorecords II settlement or operated in the market at the time of the settlement.”
Although the Services argue that the buyers in the current market are the same as, or similar to, buyers at the time of adoption of the PR II rates, the Services then and now advocate differing rate calculations for each music delivery configuration. Indeed, between 2008 and 2012, the delivery configurations multiplied and the parties negotiated different rate structures for those multiple configurations. Acknowledging participation by a service with one configuration—or a plan to launch one configuration—is insufficient to establish a unity of buyers for purposes of rate setting. Almost a decade after the effectuation of the 2012 rates, with new businesses tacking music streaming onto their digital ecosystems, the development of new and different delivery configurations continues to evolve.
The Benchmark Dissent acknowledges that buyers of the musical works for which licenses are at issue in this proceeding are of the “same type” as the
The Services argue that the music streaming industry in 2018 was essentially unchanged from 2008 or 2012.
Spotify, the dominant pure play streaming service in the U.S., did not enter the U.S. market until mid-2011.
Further, three of the Services participating in the current proceeding are not pure play streaming services but are multidimensional marketing firms for whom music streaming is only one small facet of the business. From the perspective of those current licensees, the music streaming license is relatively insignificant to their overall financial
The Services further advocate use of the PR II rates and rate structure as a benchmark because they assert that the multifaceted rate structure is reflective of the Services' own price discriminatory services. The Majority noted the Services' price discrimination as a way to optimally monetize segments of the market with a lesser willingness to pay.
The Services assert that the PR II rates and rate structure have been adopted in negotiated direct licenses they have signed with rightsholders rendering those rates and that rate structure a valuable benchmark. The Services' witnesses analyzed direct licenses and concluded that the
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The D.C. Circuit dismissed the Majority's argument on appeal that (1) the PR II rates were too low and (2) the PR II rates were outdated. The D.C. Circuit noted that these two reasons might support the Majority's conclusions, but they could not be asserted in the first instance on appeal.
The D.C. Circuit found that the Judges' finding that the PR II rates were too low was not fully articulated until the matter was on appeal. As a result, the D.C. Circuit could not evaluate that reason as support for the final rates. Indirectly, however, the D.C. Circuit nonetheless accepted that underlying reason for the rate changes when it approved the higher rates themselves.
In the Determination, the Majority cited several factors that implied the inadequacy of the PR II rates and rate structure as a compelling benchmark for
Music streaming in the earlier rate setting periods was in its infancy. Listeners had not yet fully embraced the subscribed access model for music consumption. By 2018, listeners could choose from “a diverse array of streaming offerings.”
Another salient factor the Majority addressed is the rate structure itself. To understand the PR II rate structure, one needed ten separate full-page flow chart diagrams, each featuring three formulae for calculating greater-of and lesser-of rate components.
The rationale for these convoluted rate calculation differences is
In the end, a sound recording embodying a licensed musical work is being delivered to an end “user”: one song; one listener. The calculation of what royalty the songwriter is entitled to should not rest on the medium of transmission or the location of the listening.
In the interest of making government more transparent and accessible to interested citizens, less is more. Opaque systems and formulae are or should be, in a word, outdated. The fact of settlement does not cure or even address the unnecessary complication of paying a royalty for the use of a statutory license under the PR II rates structure. More importantly, owners of the copyrights being licensed should be able to comprehend, calculate, and verify the sources and amounts of their royalty payments.
The Services contend that the PR II rate structure is preferable as it is business model neutral. Nothing in the record supports that assertion. In fact, Apple argued that the PR II rate structure stifled innovation as streaming services sought to fit any new business into a business model already defined as one of the ten identified models in the
Copyright Owners participating in the current proceeding argued that the Judges should consider the subjective intent of the parties in agreeing to “roll over” the 2008 rates and rate structure into the PR II regulations. The Services countered that subjective intent is irrelevant, as the product of those negotiations serves as objective evidence of the parties' intents. On this question, the Services are correct. The negotiated rates show, objectively, that the negotiating parties agreed to a certain rate structure. The D.C. Circuit criticized the Majority for not including in the Final Determination an explanation of why the subjective intent of the parties to the settlement was a “prerequisite” to adoption of that settlement as a benchmark.
Negotiating parties' subjective state of mind can serve as convincing evidence of the economic circumstances and the state of the market at the time of the negotiations. While ascertaining the parties' subjective intent in reaching the settlement is not a “prerequisite” to examination of the terms as a benchmark, the Benchmark Dissent finds subjective intent informative and useful as one factor in weighing the value of the settlement as a benchmark.
The Services argued to the D.C. Circuit that the Majority's rejection of the PR II rates and rate structure was erroneous because the Majority failed to evaluate that structure and those rates under the statutory factors delineated in 17 U.S.C. 801(b)(1). Evaluation under section 801(b)(1) is required by the statute applicable to this proceeding.
The Services argue that the PR II rates and rate structure support and contribute to the maximization of musical works. As evidence, they cite the growth of music streaming overall, the profitability of all segments of the music industry.
No participant alleged, however, that music industry success is caused by or even correlated to the PR II rate structure. Coincidence is not probative evidence.
The Services argued they were receiving a fair income and copyright owners were receiving a fair return under the PR II regulations. Although the Services argued that overall music royalties absorbed an inordinate portion of their revenues, none expressly laid that lack of available revenue at the door of mechanical royalties. Amazon's witness, Dr. Glenn Hubbard described a growing increase in streaming industry revenues and forecasts of continuing growth.
The difficulty with this tautological argument is that revenue growth as between services and rightsholders has not been proportional. And, as Copyright Owners have argued, the
No participant presented evidence to elucidate specifically the relative roles of the parties relating to musical works. Economic evidence assumed that the marginal cost of streaming more music is minimal. This does not discount the services' sunk costs, such as the original technological or capital investments. With respect to the contributions of the copyright owners, the contribution is clear. It all begins with a song. Without new music, the Services could continue by streaming unregulated works, new arrangements or covers of existing works, and non-music content. Whether they would continue to enjoy the growth they have enjoyed over the last decade is unknown. The PR II rates might be a contributing factor to both stability and growth of the industry, but based on the totality of the evidence, the Dissent concludes that with regard to musical works, the relative role of the creator of the musical works, and to a lesser extent, the music publisher, is undervalued.
The language for the fourth statutory factor requires the Judges to establish a rate structure in such a way as “[t]o minimize any disruptive impact on the structure of the industries involved and on generally prevailing industry practices.” [FORMER] 17 U.S.C. 801(b)(1)(D). The Services argue that the change in rate structure determined by the Majority in this proceeding is massively, and potentially fatally, disruptive to music streaming services.
Ironically, the music industry has been in a constant state of disruption since the introduction of digital music. From peer-to-peer sharing, to purchased permanent downloads, to interactive and non-interactive streaming, the history of modern music consumption has been a model of disruption. Entry into the streaming market by multifaceted digital ecosystem providers is just the latest significant change in music delivery to consumers. Innovation in music delivery is constant.
Allegedly to minimize disruption, the Services advocated retention of the PR II rates and rate structure.
Indeed, the Benchmark Dissent's approach in this proceeding advances the notion that streamed music is streamed music. This is certainly true from the viewpoint of the songwriters and publishers, and of music consumers. Rather than introduce separate rate structures for each new delivery technology or streaming business model, the Judges need to establish a rate that will fairly compensate Copyright Owners for the use of their works and permit a fair return to licensees, regardless of what next technological disruption they might choose to introduce to the industry. In the captioned proceeding, the Majority declined to label the rate structure and resulting rates incorporated in the regulations promulgated after the
In the Determination, the Majority alluded to reasons they found the PR II rates to be inadequate to serve current circumstances.
For all of the reasons outlined above, the Remand Majority's acceptance and adoption of the
The Benchmark Dissent maintains that all these goals could be met equally well with a streamlined, transparent, fair, and reasonable rate structure, as several of the participants in this proceeding advocated.
This Dissent in part is issued as a RESTRICTED document. Within 30 days of the date of issuance, the participants shall file a version of this Dissent with agreed redactions to permit viewing by the public.
Issue Date: July 1, 2022.
Copyright, Phonorecords, Recordings.
For the reasons set forth in the preamble, the Copyright Royalty Judges amend 37 CFR part 385 as follows.
17 U.S.C. 115, 801(b)(1), 804(b)(4).
Cross-references to part 385 in this appendix are to those provisions as contained within this appendix.
(a)
(b)
(c)
(d)
For the purposes of this part, the following definitions apply:
(1) An amount of time not to exceed one month from the time of the transmission (unless the Licensee, in lieu of retransmitting the same sound recording as another Eligible Limited Download, separately, and upon specific request of the End User made through a live network connection, reauthorizes use for another time period not to exceed one month), or in the case of a subscription plan, a period of time following the end of the applicable subscription no longer than a subscription renewal period or three months, whichever is shorter; or
(2) A number of times not to exceed 12 (unless the Licensee, in lieu of retransmitting the same sound recording as another Eligible Limited Download, separately, and upon specific request of the End User made through a live network connection, reauthorizes use of another series of 12 or fewer plays), or in the case of a subscription transmission, 12 times after the end of the applicable subscription.
(1) Pays a subscription fee for an Offering during the relevant Accounting Period; or
(2) Makes at least one Play during the relevant Accounting Period.
(1) Neither the Service Provider, the Sound Recording Company, the Copyright Owner, nor any person or entity acting on behalf of or in lieu of any of them receives any monetary consideration for the Offering;
(2) The free usage does not exceed 30 consecutive days per subscriber per two-year period;
(3) In connection with the Offering, the Service Provider is operating with appropriate musical license authority and complies with the recordkeeping requirements in § 385.4;
(4) Upon receipt by the Service Provider of written notice from the Copyright Owner or its agent stating in good faith that the Service Provider is in a material manner operating without appropriate license authority from the Copyright Owner under 17 U.S.C. 115, the Service Provider shall within 5 business days cease transmission of the sound recording embodying that musical work and withdraw it from the repertoire available as part of a Free Trial Offering;
(5) The Free Trial Offering is made available to the End User free of any charge; and
(6) The Service Provider offers the End User periodically during the free usage an opportunity to subscribe to a non-Free Trial Offering of the Service Provider.
(1) An End User cannot choose to listen to a particular sound recording (
(2) The particular sound recordings available to the End User over a period of time are substantially limited relative to Service Providers in the marketplace providing access to a comprehensive catalog of recordings (
(1) A Sound Recording Company is lawfully distributing the sound recording through established retail channels or, if the sound recording is not yet released, the Sound Recording Company has a good faith intention to lawfully distribute the sound recording or a different version of the sound recording embodying the same musical work;
(2) For Eligible Interactive Streams or Eligible Limited Downloads, the Sound Recording Company requires a writing signed by an authorized representative of the Service Provider representing that the Service Provider is operating with appropriate musical works license authority and that the Service Provider is in compliance with the recordkeeping requirements of § 385.4;
(3) For Eligible Interactive Streams of segments of sound recordings not exceeding 90 seconds, the Sound Recording Company delivers or authorizes delivery of the segments for promotional purposes and neither the Service Provider nor the Sound Recording Company creates or uses a segment of a sound recording in violation of 17 U.S.C. 106(2) or 115(a)(2);
(4) The Promotional Offering is made available to an End User free of any charge; and
(5) The Service Provider provides to the End User at the same time as the Promotional Offering Stream an opportunity to purchase the sound recording or the Service Provider periodically offers End Users the opportunity to subscribe to a paid Offering of the Service Provider.
(1) A qualifying seller for purposes of this definition is the entity operating the Service Provider, including Affiliates, predecessors, or successors in interest, or—
(i) In the case of Permanent Downloads or Ringtones, a seller having a legitimate connection to the locker service provider pursuant to one or more written agreements (including that the Purchased Content Locker Service and Permanent Downloads or Ringtones are offered through the same third party); or
(ii) In the case of physical phonorecords:
(A) The seller of the physical phonorecord has an agreement with the Purchased Content Locker Service provider establishing an integrated offer that creates a consumer experience commensurate with having the same Service Provider both sell the physical phonorecord and offer the integrated locker service; or
(B) The Service Provider has an agreement with the entity offering the Purchased Content Locker Service establishing an integrated offer that creates a consumer experience commensurate with having the same Service Provider both sell the physical phonorecord and offer the integrated locker service.
(2) [Reserved]
(1) Contracts with or has a direct relationship with End Users or otherwise controls the content made available to End Users;
(2) Is able to report fully on Service Provider Revenue from the provision of musical works embodied in phonorecords to the public, and to the extent applicable, verify Service Provider Revenue through an audit; and
(3) Is able to report fully on its usage of musical works, or procure such reporting and, to the extent applicable, verify usage through an audit.
(1) Subject to paragraphs (2) through (5) of this definition and subject to GAAP,
(i) All revenue from End Users recognized by a Service Provider for the provision of any Offering;
(ii) All revenue recognized by a Service Provider by way of sponsorship and commissions as a result of the inclusion of third-party “in-stream” or “in-download” advertising as part of any Offering,
(iii) All revenue recognized by the Service Provider, including by way of sponsorship and commissions, as a result of the placement of third-party advertising on a Relevant Page of the Service Provider or on any page that directly follows a Relevant Page leading up to and including the Eligible Limited Download or Eligible Interactive Stream of a musical work; provided that, in case more than one Offering is available to End Users from a Relevant Page, any advertising revenue shall be allocated between or among the Service Providers on the basis of the relative amounts of the page they occupy.
(2) Service Provider Revenue shall:
(i) Include revenue recognized by the Service Provider, or by any associate, Affiliate, agent, or representative of the Service Provider in lieu of its being recognized by the Service Provider; and
(ii) Include the value of any barter or other nonmonetary consideration; and
(iii) Except as expressly detailed in this part, not be subject to any other deduction or set-off other than refunds to End Users for Offerings that the End Users were unable to use because of technical faults in the Offering or other bona fide refunds or credits issued to End Users in the ordinary course of business.
(3) Service Provider Revenue shall exclude revenue derived by the Service Provider solely in connection with activities other than Offering(s), whereas advertising or sponsorship revenue derived in connection with any Offering(s) shall be treated as provided in paragraphs (2) and (4) of this definition.
(4) For purposes of paragraph (1) of this definition, advertising or sponsorship revenue shall be reduced by the actual cost of obtaining that revenue, not to exceed 15%.
(5) In instances in which a Service Provider provides an Offering to End Users as part of the same transaction with one or more other products or services that are not Licensed Activities, then the revenue from End Users deemed to be recognized by the Service Provider for the Offering for the purpose of paragraph (1) of this definition shall be the revenue recognized from End Users for the bundle less the standalone published price for End Users for each of the other component(s) of the bundle; provided that, if there is no standalone published price for a component of the bundle, then the Service Provider shall use the average standalone published price for End Users for the most closely comparable product or service in the U.S. or, if more than one comparable exists, the average of standalone prices for comparables.
(6) In the case of a Mixed Service Bundle, the revenue deemed to be recognized from End Users for the Offering for the purpose of paragraph (1) of this definition shall be the greater of—
(i) The revenue deemed to be recognized pursuant to paragraph (5) of this definition; and
(ii) Either—
(A) In the case of a Mixed Service Bundle that either has 750,000 subscribers or other registered users, or is reasonably expected to have 750,000 subscribers or other registered users within 1 year after commencement of the Mixed Service Bundle, 40% of the standalone published price of the licensed music component of the bundle (
(B) Otherwise, 50% of the standalone published price of the licensed music component of the bundle (
(1) Is a copyright owner of a sound recording embodying a musical work;
(2) In the case of a sound recording of a musical work fixed before February 15, 1972, has rights to the sound recording, under 17 U.S.C. chapter 14, that are equivalent to the rights of a copyright owner of a sound recording of a musical work under title 17, United States Code;
(3) Is an exclusive Licensee of the rights to reproduce and distribute a sound recording of a musical work; or
(4) Performs the functions of marketing and authorizing the distribution of a sound recording of a musical work under its own label, under the authority of the Copyright Owner of the sound recording.
(1) To allow the End User to listen to the sound recording, while maintaining a live network connection to the transmitting service, substantially at the time of transmission, except to the extent that the sound recording remains accessible for future listening from a Streaming Cache Reproduction;
(2) Using technology that is designed such that the sound recording does not remain accessible for future listening, except to the extent that the sound recording remains accessible for future listening from a Streaming Cache Reproduction; and
(3) That is subject to licensing as a public performance of the musical work.
A Licensee shall pay a late fee of 1.5% per month, or the highest lawful rate, whichever is lower, for any payment owed to a Copyright Owner and remaining unpaid after the due date established in 17 U.S.C. 115(c)(2)(I) or (d)(4)(A)(i), as applicable and detailed in part 210 of this title. Late fees shall accrue from the due date until the Copyright Owner receives payment, except that where payment is due to the mechanical licensing collective under 17 U.S.C. 115(d)(4)(A)(i), late fees shall accrue from the due date until the mechanical licensing collective receives payment.
(a)
(b)
(c)
This subpart establishes rates and terms of royalty payments for making and distributing phonorecords, including by means of Digital Phonorecord Deliveries, in accordance with the provisions of 17 U.S.C. 115.
(a)
(b)
(c)
This subpart establishes rates and terms of royalty payments for Eligible Interactive Streams and Eligible Limited Downloads of musical works, and other reproductions or distributions of musical works through Limited Offerings, Mixed Service Bundles, Bundled Subscription Offerings, Paid Locker Services, and Purchased Content Locker Services provided through subscription and nonsubscription digital music Service Providers in accordance with the provisions of 17 U.S.C. 115, exclusive of Offerings subject to subpart D of this part.
(a)
(b)
(1)
(2)
(3)
(i) The result determined in step 2 in paragraph (b)(2) of this section; and
(ii) The royalty floor (if any) resulting from the calculations described in § 385.22.
(4)
(c)
(1) 5:01 to 6:00 minutes—Each Play = 1.2 Plays.
(2) 6:01 to 7:00 minutes—Each Play = 1.4 Plays.
(3) 7:01 to 8:00 minutes—Each Play = 1.6 Plays.
(4) 8:01 to 9:00 minutes—Each Play = 1.8 Plays.
(5) 9:01 to 10:00 minutes—Each Play = 2.0 Plays.
(6) For playing times of greater than 10 minutes, continue to add 0.2 Plays for each additional minute or fraction thereof.
(d)
(e)
(a)
(1)
(2)
(3)
(4)
(b)
This subpart establishes rates and terms of royalty payments for Promotional Offerings, Free Trial Offerings, and certain Purchased Content Locker Services provided by subscription and nonsubscription digital music Service Providers in accordance with the provisions of 17 U.S.C. 115.
(a)
(b)
(c)
(d)